[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Rules and Regulations]
[Pages 34781-34783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14294]



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 Rules and Regulations
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  Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules 
and Regulations  

[[Page 34781]]



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: Final rule.

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SUMMARY: We are amending 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 will be 
subject to a systems approach that includes requirements for pest 
exclusion at the production site, fruit fly trapping and monitoring, 
and procedures for packing the tomatoes. The tomatoes will 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 have been produced in 
accordance with these requirements. This action will 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: Effective Date: July 12, 2012.

FOR FURTHER INFORMATION CONTACT: Mr. Tony Rom[aacute]n, Import 
Specialist, Plant Protection and Quarantine, APHIS, 4700 River Road, 
Unit 133, Riverdale, MD 20737-1236; (301) 851-2242.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in ``Subpart-Fruits and Vegetables'' (7 CFR 319.56-
1 through 319.56-56, 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.
    On August 2, 2011, we published in the Federal Register (76 FR 
46209-46212, Docket No. APHIS-2011-0012) a proposal \1\ to amend the 
regulations by allowing tomatoes from the member States of the Economic 
Community of West African States (ECOWAS) to be imported into the 
continental United States under 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. We 
also proposed to require the tomatoes 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.
---------------------------------------------------------------------------

    \1\ To view the proposed rule, the pest risk analysis, and the 
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2011-0012.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
October 3, 2011. We received four comments by that date. They were from 
members of the public and a State department of agriculture.
    Two commenters opposed the importation of tomatoes from the ECOWAS 
without raising any issues related to the pest risk analysis or 
proposed rule. The remaining comments are discussed below by topic.
    One commenter opposed the proposed rule, stating that the pest risk 
analysis (PRA) identified 10 quarantine pest species that could 
potentially accompany shipments of tomatoes from the ECOWAS into the 
continental United States and that the potential introduction of these 
pests, specifically the fruit flies, into the commenter's State would 
pose a risk to the State's agriculture.
    The PRA, which includes a qualitative, pathway-initiated pest risk 
assessment and a risk management document, not only identifies 
quarantine pests that could potentially accompany shipments of fresh 
tomatoes from the ECOWAS, but also identifies mitigation measures that 
will be required for this commodity to be imported into any State in 
the continental United States. The mitigation measures for tomatoes 
from the ECOWAS have been previously evaluated and proven effective for 
other commodities, and we will continuously monitor the effectiveness 
of those mitigations with port-of-entry inspections. We do not consider 
it necessary to prohibit the importation of a commodity based on 
identification of quarantine pests that could potentially accompany 
consignments when proven mitigations are available for this risk and 
will be required as a condition of importation.
    The commenter also requested additional information regarding the 
production site monitoring and post-harvest procedures. Specifically, 
the commenter asked about the frequency of Animal and Plant Health 
Inspection Service (APHIS) visits to production and packing facilities, 
the guidelines for and oversight of the packinghouse, and the 
corrective measures and penalties resulting from the detection of live 
pests.
    While being used for packing tomatoes for export to the United 
States, the packinghouses will only be allowed to accept fruit from 
registered production sites. In addition, 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.
    After initial approval of production site by both APHIS and the 
national plant protection organization (NPPO) of the exporting country, 
APHIS may monitor the production sites if necessary; however, regular 
inspection of production sites by APHIS is no longer required. The NPPO 
of the exporting country will be responsible for monitoring the 
production sites monthly beginning 2 months before harvest and 
continuing through the end of the shipping season. The inspection

[[Page 34782]]

of shipments at the port of entry by APHIS is sufficient to verify that 
the required packinghouse procedures have been followed because failure 
to follow these procedures will be evident by the presence of fruit 
flies or other quarantine pests at the point of entry.
    The detection of a single fruit fly of concern inside a pest 
exclusionary structure (PES) starting 2 months prior to export and 
continuing through the duration of the harvest, or detection of a fruit 
fly of concern in a consignment at port of entry inspection which is 
traced back to a PES will result in immediate cancellation of exports 
from that production site until APHIS and NPPO of the exporting country 
have mutually determined that the risk has been properly mitigated.
    With regard to other quarantine pests, the systems approach for the 
importation of tomatoes from ECOWAS includes the submission of a 
bilateral workplan to APHIS by the NPPO of each exporting country. 
Those workplans will include the specific corrective measures that must 
be taken to prevent a recurrence of the quarantine mealy bugs and moths 
identified in the PRA.
    One commenter opposed the proposed rule and stated that the 
potentially negative impact on the U.S. economy, specifically small 
tomato producers, resulting from this action would be too great. The 
commenter said that APHIS should promote greater production of tomatoes 
by U.S. farmers and promote the purchase of tomatoes produced in the 
United States as the healthy choice.
    The Plant Protection Act (7 U.S.C. 7701 et seq.), the authorizing 
statute for APHIS' plant-health-related activities, authorizes the 
Secretary of Agriculture to prohibit or restrict the importation of any 
plant product if the Secretary determines that the prohibition or 
restriction is necessary to prevent the introduction of a plant pest or 
noxious weed into the United States. The factors cited by the commenter 
are not within our decisionmaking authority under the Act.
    In addition, the economic analysis made available with the proposed 
rule noted that even when assuming imports into the United States of 20 
percent of the average annual exports from ECOWAS to the rest of the 
world, and no displacement of tomato imports from other countries, the 
welfare loss for U.S. small-entity producers would be equivalent to 
about 0.05 percent of their average annual revenue, or about $4.00.
    The commenter also mentioned the cost of controlling and monitoring 
the inspection and production of the commodity in another country and 
asked whether the cost of importing the commodity outweighs the 
benefits.
    APHIS involvement in the inspection and monitoring of the 
importation of tomatoes in ECOWAS member countries is limited. Prior to 
the importation of the tomatoes, APHIS and the NPPO of the exporting 
country approve the production sites. The only other time APHIS action 
may be required in the exporting country is in the event of the capture 
of a fruit fly of concern inside a PES.
    In addition, the agricultural quarantine and inspection (AQI) 
program provides for inspections of imported agricultural goods, 
products, and other articles to prevent the introduction of harmful 
agricultural pests and diseases. Services to directly provide these 
inspections or that support these inspections are known as AQI 
services. APHIS charges a user fee to recover the costs of providing 
AQI services. Therefore, much of the costs associated with the 
importation of tomatoes from the ECOWAS will be funded by the 
importers.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.

Executive Order 12866 and Regulatory Flexibility Act

    This final 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).
    The analysis examines impacts for U.S. small entities of this final 
rule, which will allow fresh tomato imports from member countries of 
the ECOWAS. The United States has no history of importing tomatoes from 
these countries. We model three levels of tomato exports to the United 
States from ECOWAS member States: (i) 5 percent of ECOWAS average 
annual world exports, 2003-2008 (484 metric tons (MT)); (ii) 10 percent 
of ECOWAS average annual world exports, 2003-2008 (967 MT); and (iii) 
20 percent of ECOWAS average annual world exports, 2003-2008 (1,934 
MT). Even when assuming the largest import quantity and no displacement 
of tomato imports from other countries, the welfare loss for U.S. 
small-entity producers would be equivalent to about 0.05 percent of 
their average annual revenue, that is, about $4.00. While U.S. tomato 
producers are predominantly small, this rule will not have a 
significant economic impact on a substantial number of small entities.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This rule would allow tomatoes to be imported into the United 
States from the ECOWAS. If this 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 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 the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0381.

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 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 amend 7 CFR part 319 as follows:

[[Page 34783]]

PART 319--FOREIGN QUARANTINE NOTICES

0
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.


0
2. Section 319.56-28 is amended as follows:
0
a. By adding a new paragraph (h) to read as set forth below.
0
b. By revising the Office of Management and Budget citation at the end 
of the section to read as set forth below.


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 pests: 
Bactrocera cucurbitae, B. invadens, Ceratitis capitata, C. 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.''

(Approved by the Office of Management and Budget under control 
numbers 0579-0049, 0579-0131, 0579-0316, 0579-0286, 0579-0345, and 
0579-0381.)


    Done in Washington, DC, this 6th day of June 2012.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2012-14294 Filed 6-11-12; 8:45 am]
BILLING CODE 3410-34-P