[Federal Register Volume 76, Number 148 (Tuesday, August 2, 2011)]
[Proposed Rules]
[Pages 46209-46212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19518]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 76, No. 148 / Tuesday, August 2, 2011 / 
Proposed Rules  

[[Page 46209]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2011-0012]
RIN 0579-AD48


Importation of Tomatoes From the Economic Community of West 
African States Into the Continental United States

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the fruits and vegetables 
regulations to allow the importation of tomatoes from the member States 
of the Economic Community of West African States (ECOWAS) into the 
continental United States. As a condition of entry, tomatoes from the 
ECOWAS would be subject to a systems approach that would include 
requirements for pest exclusion at the production site, fruit fly 
trapping and monitoring, and procedures for packing the tomatoes. The 
tomatoes would also be required to be accompanied by a phytosanitary 
certificate issued by the national plant protection organization of the 
exporting country with an additional declaration that the tomatoes had 
been produced in accordance with the proposed requirements. This action 
would allow for the importation of tomatoes from the ECOWAS into the 
continental United States while continuing to provide protection 
against the introduction of quarantine pests.

DATES: We will consider all comments that we receive on or before 
October 3, 2011.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0012-0001.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2011-0012, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2011-
0012 or in our reading room, which is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 690-2817 before coming.

FOR FURTHER INFORMATION CONTACT: Mr. Phillip Grove, Regulatory 
Coordinator, PPQ, APHIS, 4700 River Road, Unit 156, Riverdale, MD 
20737-1236; (301) 734-6280.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-51, referred to below as the regulations) 
prohibit or restrict the importation of fruits and vegetables into the 
United States from certain parts of the world to prevent the 
introduction and dissemination of plant pests that are new to or not 
widely distributed within the United States. Section 319.56-28 of the 
regulations contains administrative instructions allowing the 
importation of tomatoes from various countries where the Mediterranean 
fruit fly (Medfly, Ceratitis capitata) is present.
    We currently do not allow the importation of fresh tomatoes from 
any member of the Economic Community of West African States (ECOWAS). 
The ECOWAS comprises the following members: Benin, Burkina Faso, Cape 
Verde, Gambia, Ghana, Guinea, Guinea-Bissau, Ivory Coast, Liberia, 
Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. The government 
of Senegal has requested that the Animal and Plant Health Inspection 
Service (APHIS) amend the regulations to allow fresh tomatoes (Solanum 
lycopersicum) to be imported from Senegal into the continental United 
States. Because of the similar pest risks present in the other 
countries in the ECOWAS, we prepared a regional pest risk assessment 
(PRA) and a risk management document (RMD) for the importation of 
tomatoes from any ECOWAS member State. Copies of the PRA and the RMD 
may be obtained from the person listed under FOR FURTHER INFORMATION 
CONTACT or viewed on the Regulations.gov Web site (see ADDRESSES above 
for instructions for accessing Regulations.gov).
    The PRA, titled ``Importation of Tomatoes, Solanum lycopersicum, 
from the Economic Community of West African States (ECOWAS) into the 
Continental United States'' (2009), evaluates the risks associated with 
the importation of tomatoes into the continental United States from the 
ECOWAS. The PRA identified 10 pests that could be introduced into the 
United States through the importation of tomatoes. Seven of the pests 
were determined to pose a high pest risk potential:

Bactrocera cucurbitae (melon fruit fly)
B. invadens (Asian fruit fly)
Ceratitis capitata (Medfly)
Ceratitis rosa (natal fruit fly)
Helicoverpa armigera (cotton bollworm)
H. assulta (cape gooseberry budworm)
Leucinodes orbonalis (eggplant fruit borer)

    Three of the pests were determined to pose a medium pest risk 
potential:

Chrysodeixis chalcites (golden twin spot moth)
Maconellicoccus hirsutus (pink hibiscus mealybug)
Nipaecoccus viridis (spherical mealybug)

    APHIS has determined that measures beyond standard port-of-entry 
inspection are required to mitigate the risks posed by these plant 
pests. Therefore, we are proposing to allow the importation of tomatoes 
from the ECOWAS into the continental United States only if they are 
produced in accordance with a systems approach to mitigate pest risk as 
outlined below. We are proposing to amend Sec.  319.56-28 by adding a 
new paragraph (h) to the end of the section that would set out 
requirements for the importation of fresh tomatoes from the ECOWAS.

Proposed Systems Approach

Production Site Requirements

    Tomatoes from the ECOWAS would have to be grown in approved 
production sites registered with the national plant protection 
organization (NPPO) of the exporting country. Initial approval of 
production sites would be completed jointly by the NPPO of the

[[Page 46210]]

exporting country and APHIS. The NPPO of the exporting country would 
have to visit and inspect the production sites monthly, beginning 2 
months before the harvest and continuing through the end of the 
shipping season. APHIS would be able to monitor the production sites, 
if necessary. This condition would ensure that the required 
phytosanitary measures are properly implemented throughout the process 
of growing and packing tomatoes for export to the United States.
    Production sites for tomatoes would also have to be pest-
exclusionary structures (PES). The PES would be required to have self-
closing double doors, and all openings, including vents, to the outside 
of the PES would have to be covered by screening with mesh openings of 
not more than 1.6 mm. Screening with openings of not more than 1.6 mm 
will prevent introduction of fruit flies, moths, and mealybugs.
    In addition, no shade trees could be grown within 10 meters of the 
entry door of the PES and no other fruit fly host plants could be grown 
within 50 meters of the entry door of the PES. These requirements would 
reduce the pest pressure of fruit flies outside the place of production 
because, during hot, sunny weather, pests congregate in shaded areas 
for survival.

Mitigation Measures for Fruit Flies

    The NPPO of the exporting country would be required to set and 
maintain fruit fly traps with an APHIS-approved protein bait inside the 
PES, beginning 2 months prior to the start of the shipping season and 
continuing through the end of the harvest. The traps would have to be 
set at a rate of eight traps per hectare, with a minimum of four traps 
in each PES, and checked every 7 days. We also propose to require the 
NPPO of the exporting country to maintain records of trap placement, 
trap maintenance, and captures of any fruit flies of concern. The 
trapping records would have to be maintained for 1 year and made 
available to APHIS upon request.
    Capture of a single fruit fly of concern inside a PES would 
immediately result in cancellation of exports to the United States from 
that PES. The detection of a fruit fly of concern in a consignment at 
the port of entry that is traced back to a PES would also result in 
immediate cancellation of exports to the United States from that PES. 
In both cases, exports from the PES in question could not resume until 
APHIS and the NPPO of the exporting country have mutually determined 
that the risk has been properly mitigated.

Harvesting Requirements

    The stem and calyx of each tomato would have to be removed. Removal 
of the stem and calyx would eliminate hiding places for small pests, 
thereby allowing the pests to be detected during the NPPO's inspection.

Packinghouse Requirements

    While being used for packing tomatoes for export to the United 
States, the packinghouses would only be allowed to accept fruit from 
registered production sites. This requirement would reduce the risk 
that quarantine pests are present on or in tomatoes exported to the 
United States.
    In addition, no shade trees could be grown within 10 meters of the 
entry door of the packinghouses, and no other fruit fly host plants 
could be grown within 50 meters of the entry door of the packinghouses. 
As mentioned earlier with regard to production sites, these 
requirements would reduce the pest pressure of fruit flies outside the 
packinghouse.

Post-Harvest Procedures

    The tomatoes would have to be safeguarded by an insect-proof screen 
or plastic tarpaulin while in transit to a packinghouse and while 
awaiting packing. Tomatoes would have to be packed for shipment to the 
United States within 24 hours of harvest in insect-proof cartons or 
containers, or covered with insect-proof mesh or a plastic tarpaulin. 
These safeguards would have to remain intact until arrival in the 
United States or the consignment would not be allowed to enter the 
United States. Containers transported by sea would have to be kept 
closed if stored within 20 meters of a fruit fly host prior to being 
loaded onto the vessel. These measures would prevent harvested fruit 
from being infested by quarantine pests.

Commercial Consignments

    Only commercial consignments of tomatoes would be allowed to be 
imported. Commercial consignments, as defined in Sec.  319.56-2, are 
consignments that an inspector identifies as having been imported for 
sale and distribution. Such identification is based on a variety of 
indicators, including, but not limited to: Quantity of produce, type of 
packaging, identification of grower or packinghouse on the packaging, 
and documents consigning the fruits or vegetables to a wholesaler or 
retailer. Produce grown commercially is less likely to be infested with 
plant pests than noncommercial consignments. Noncommercial consignments 
are more prone to infestations because the commodity is often ripe to 
overripe, could be of a variety with unknown susceptibility to pests, 
and is often grown with little or no pest control.

Inspection and Phytosanitary Certificate

    Each consignment of tomatoes would have to be inspected by the NPPO 
of the exporting country and found free of the quarantine pests listed 
earlier. Each consignment would also have to be accompanied by a 
phytosanitary certificate issued by the NPPO of the exporting country, 
providing the additional declaration ``These tomatoes were grown in 
registered production sites in [name of country] and the consignment 
has been inspected and found free of quarantine pests.'' This 
requirement would certify that the provisions of the regulations have 
been met.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866 and, therefore, has not been 
reviewed by the Office of Management and Budget.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
by contacting the person listed under FOR FURTHER INFORMATION CONTACT 
or on the Regulations.gov Web site (see ADDRESSES above for 
instructions for accessing Regulations.gov).
    This proposed rule would allow the importation of tomatoes from the 
member States of the ECOWAS under a systems approach. Entities 
potentially affected by this proposed rule are U.S. producers of fresh 
tomatoes (classified under Other Vegetable (except Potato) and Melon 
Farming, NAICS 111219) and importers of fresh tomatoes. Vegetable-
producing establishments are classified as small if their annual 
receipts are not more than $750,000. According to the 2007 Census of 
Agriculture (which has the most recent data on farm sizes), there were 
25,809 farms producing tomatoes in the United States. About 68 percent 
of these farms had less than 1 acre in tomatoes. Overall, 25,128 farms 
(97.4 percent) had a total of 39,879 acres in tomatoes (about 9 percent 
of the total planted area) and are considered small, with an average of 
about 1.6 acres and an average annual income of about $8,000 in 2007. 
The remaining 2.6 percent of the farms planted a total of 402,346 acres 
in tomatoes (91 percent of the planted area). They averaged 591 acres,

[[Page 46211]]

with an average annual income of about $3 million.
    The impact of potential tomato imports on U.S. small-entity 
producers as a result of this rule would be small. The annual decrease 
in producer welfare per small entity is estimated to be less than $4 or 
about 0.05 percent of average annual sales by small entities, when we 
assume that 1,934 metric tons of tomatoes would be exported to the 
United States from ECOWAS because of this rule. The dollar decrease in 
welfare for most small tomato producers would be even smaller, given 
that the majority planted less than an acre in tomatoes.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This proposed rule would allow tomatoes to be imported into the 
United States from the ECOWAS. If this proposed rule is adopted, State 
and local laws and regulations regarding tomatoes imported under this 
rule would be preempted while the fruit is in foreign commerce. Fresh 
fruits are generally imported for immediate distribution and sale to 
the consuming public and would remain in foreign commerce until sold to 
the ultimate consumer. The question of when foreign commerce ceases in 
other cases must be addressed on a case-by-case basis. If this proposed 
rule is adopted, no retroactive effect will be given to this rule, and 
this rule will not require administrative proceedings before parties 
may file suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. APHIS-
2011-0012. Please send a copy of your comments to: (1) Docket No. 
APHIS-2011-0012, Regulatory Analysis and Development, PPD, APHIS, 
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, 
and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and 
Independence Avenue, SW., Washington, DC 20250. A comment to OMB is 
best assured of having its full effect if OMB receives it within 30 
days of publication of this proposed rule.
    APHIS is proposing to amend the fruits and vegetables regulations 
to allow the importation of tomatoes from the member States of the 
ECOWAS into the continental United States. As a condition of entry, 
tomatoes from the ECOWAS would be subject to a systems approach that 
would include requirements for pest exclusion at the production site, 
fruit fly trapping and monitoring, and procedures for packing the 
tomatoes. The tomatoes would also be required to be accompanied by a 
phytosanitary certificate issued by the national plant protection 
organization of the exporting country with an additional declaration 
that the tomatoes had been produced in accordance with the proposed 
requirements. This action would allow for the importation of tomatoes 
from the ECOWAS into the continental United States while continuing to 
provide protection against the introduction of quarantine pests.
    The information collection activities would include a phytosanitary 
certificate with an additional declaration, production site 
registration, recordkeeping, and inspection of production sites.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 3.8 hours per response.
    Respondents: Foreign officials, importers of tomatoes from ECOWAS.
    Estimated annual number of respondents: 2.
    Estimated annual number of responses per respondent: 2.5.
    Estimated annual number of responses: 5.
    Estimated total annual burden on respondents: 19 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
851-2908.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

List of Subjects in 7 CFR Part 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

    Accordingly, we propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    1. The authority citation for part 319 continues to read as 
follows:

    Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 
and 136a; 7 CFR 2.22, 2.80, and 371.3.

    2. In Sec.  319.56-28, a new paragraph (h) is added to read as 
follows:


Sec.  319.56-28  Tomatoes from certain countries.

* * * * *
    (h) Tomatoes (fruit) (Solanum lycopersicum) from member States of 
the Economic Community of West African States. Fresh tomatoes may be 
imported into the continental United States from member States of the 
Economic Community of West African States (ECOWAS) only in accordance 
with this section and other applicable provisions of this subpart. The 
ECOWAS consists of Benin, Burkina Faso, Cape Verde, Gambia, Ghana, 
Guinea, Guinea Bissau, Ivory Coast, Liberia, Mali, Niger, Nigeria, 
Senegal, Sierra Leone, and Togo Republic. These conditions are designed 
to prevent the introduction of the following quarantine

[[Page 46212]]

pests: Bactrocera cucurbitae, B. invadens, Ceratitis capitata, 
Ceratitis rosa, Chrysodeixis chalcites, Helicoverpa armigera, H. 
assulta, Leucinodes orbonalis, Maconellicoccus hirsutus, and 
Nipaecoccus viridis.
    (1) Production site requirements. (i) Production sites in which the 
tomatoes are produced must be registered with the national plant 
protection organization (NPPO) of the exporting country. Initial 
approval of production sites must be completed jointly by the NPPO of 
the exporting country and APHIS.
    (ii) The NPPO of the exporting country must visit and inspect the 
production sites monthly, beginning 2 months before the harvest and 
continuing through the end of the shipping season. APHIS may monitor 
the production sites if necessary.
    (iii) Production sites must be pest-exclusionary structures (PES). 
The PES must have self-closing double doors. All openings, including 
vents, to the outside of the PES must be covered by screening with mesh 
openings of not more than 1.6 mm.
    (iv) No shade trees may be grown within 10 meters of the entry door 
of the PES, and no other fruit fly host plants may be grown within 50 
meters of the entry door of the PES.
    (2) Mitigation measures for fruit flies. (i) Beginning 2 months 
prior to the start of the shipping season and continuing through the 
end of the harvest, the NPPO of the exporting country must set and 
maintain fruit fly traps with an APHIS-approved protein bait inside 
each PES at a rate of eight traps per hectare, with a minimum of four 
traps in each PES, and check the traps every 7 days. The NPPO of the 
exporting country must maintain records of trap placement, trap 
maintenance, and captures of any fruit flies of concern. The NPPO must 
maintain trapping records for 1 year, and make the records available to 
APHIS upon request.
    (ii) Capture of a single fruit fly of concern inside a PES will 
immediately result in cancellation of exports to the United States from 
that PES. The detection of a fruit fly of concern in a consignment at 
the port of entry that is traced back to a PES will also result in 
immediate cancellation of exports to the United States from that PES. 
In both cases, exports from the PES in question may not resume until 
APHIS and the NPPO of the exporting country have mutually determined 
that the risk has been properly mitigated.
    (3) Harvesting requirements. The stem and calyx must be removed 
from the tomato.
    (4) Packinghouse requirements. (i) While in use for exporting 
tomatoes to the United States, the packinghouses may only accept fruit 
from registered production sites.
    (ii) No shade trees may be grown within 10 meters of the entry door 
of the packinghouses, and no other fruit fly host plants may be grown 
within 50 meters of the entry door of the packinghouses.
    (5) Post-harvest procedures. (i) The tomatoes must be safeguarded 
by an insect-proof mesh screen or plastic tarpaulin while in transit to 
the packinghouse and while awaiting packing.
    (ii) Tomatoes must be packed within 24 hours of harvest in insect-
proof cartons or containers, or covered with insect-proof mesh or a 
plastic tarpaulin for transport to the United States. These safeguards 
must remain intact until arrival in the United States or the 
consignment will be denied entry into the United States.
    (iii) If transported by sea, the containers in which the tomatoes 
are packed must be kept closed if stored within 20 meters of a fruit 
fly host prior to being loaded on the vessel.
    (6) Commercial consignments. The tomatoes may be imported in 
commercial consignments only.
    (7) Phytosanitary certificate. Each consignment of tomatoes must be 
accompanied by a phytosanitary certificate issued by the NPPO of the 
exporting country, providing an additional declaration ``These tomatoes 
were grown in registered production sites in [name of country] and the 
consignment has been inspected and found free of quarantine pests.''
* * * * *

    Done in Washington, DC, this 27th day of July 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-19518 Filed 8-1-11; 8:45 am]
BILLING CODE 3410-34-P