[Federal Register Volume 83, Number 107 (Monday, June 4, 2018)]
[Rules and Regulations]
[Pages 25547-25549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11890]



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 Rules and Regulations
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
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  Federal Register / Vol. 83, No. 107 / Monday, June 4, 2018 / Rules 
and Regulations  

[[Page 25547]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2015-0072]
RIN 0579-AE23


Importation of Tree Tomatoes From Ecuador 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 fruit and vegetable regulations to allow 
the importation of tree tomatoes from Ecuador into the continental 
United States. As a condition of entry, the tree tomatoes must be 
produced in accordance with a systems approach that includes 
requirements for importation in commercial consignments, registration 
and monitoring of places of production, field monitoring and pest 
control practices, trapping, and inspection for quarantine pests by the 
national plant protection organization of Ecuador. This action will 
allow the importation of tree tomatoes from Ecuador while continuing to 
protect against the introduction of plant pests into the United States.

DATES: Effective July 5, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Claudia Ferguson, M.S., Senior 
Regulatory Policy Specialist, Regulatory Coordination and Compliance, 
Imports, Regulations, and Manuals, PPQ, APHIS, 4700 River Road, Unit 
133, Riverdale, MD 20737-1231; (301) 851-2352.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-83, 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.
    In response to a request from the national plant protection 
organization (NPPO) of Ecuador, we prepared a pest risk assessment 
(PRA) to analyze the plant pest risks associated with the importation 
of tree tomato from Ecuador into the continental United States. The PRA 
identified four pests of quarantine significance present in Ecuador 
that could follow the pathway of tree tomatoes from Ecuador into the 
continental United States. They are:

Fruit Flies

 South American fruit fly (Anastrepha fracterculus)
 Mediterranean fruit fly (Ceratitis capitata)

Moth

 Tomato fruit borer (Neoleucinodes elegantalis)

Virus

 Tamarillo mosaic virus

    Based on the findings of the PRA, we prepared a risk management 
document (RMD) to determine whether phytosanitary measures exist that 
would address the quarantine plant pest risk. The RMD described the 
phytosanitary measures required by this rule and provides evidence of 
their efficacy in preventing the introduction of the identified 
quarantine pests. Those measures will be applied as part of a systems 
approach to phytosanitary security.
    On June 21, 2017, we published in the Federal Register (82 FR 
28262-28266, Docket No. APHIS-2015-0072) a proposal \1\ to amend the 
regulations to allow the importation of tree tomatoes from Ecuador into 
the continental United States under a systems approach that would 
include requirements for importation in commercial consignments, 
registration and monitoring of places of production, field monitoring 
and pest control practices, trapping, and inspection for quarantine 
pests by the NPPO of Ecuador.
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    \1\ To view the proposed rule, supporting documents, including 
the PRA and RMD, and the comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0072.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
August 21, 2017. We received five comments by that date, from private 
citizens and a State department of agriculture. Two commenters 
supported the action, while three opposed. The comments are discussed 
below.
    One commenter noted that the PRA rated the fruit flies as high and 
the moth and virus as a medium for likelihood for introduction. The 
commenter stated that these pests have a wide host range, which include 
economically important hosts. Furthermore, the life stages and symptoms 
of these pests and disease could be difficult to detect during post-
harvest and port-of-entry inspections. As such, the commenter 
recommended that shipments of tree tomato from Ecuador not be allowed 
into Florida.
    We have determined, for the reasons described in the RMD, that the 
specified measures in the RMD will effectively mitigate the risks 
associated with the importation of tree tomato from Ecuador. Under the 
systems approach, biometric samples of tree tomato fruit must be 
inspected by the NPPO of Ecuador following any post-harvest processing 
and found free of N. elegantalis and Tamarillo mosaic virus. These 
inspections, in addition to other phytosanitary measures described in 
the RMD, will be sufficient to reduce the risk.
    One commenter opposed the importation of tree tomatoes from Ecuador 
due to the risk of introduction of invasive species.
    As a signatory of the World Trade Organization agreement on 
Sanitary and Phytosanitary Measures, the United States is obligated to 
consider requests from foreign governments for access to the U.S. 
market. We have considered the risks associated with the action and, 
based on the PRA and RMD, we have determined that the mitigation 
measures are effective to protect animal and plant health within the 
United States.
    The same commenter stated that we needed to consider the economic 
effects this action would have on U.S. tomato growers.
    As mentioned in the economic analysis, tree tomatoes are not 
commercially grown in the United States. Therefore, we have determined 
that this action will not have a

[[Page 25548]]

significant economic impact on U.S. tomato producers.
    One commenter stated that we cannot control the pesticides used by 
Ecuador on their products.
    While the United States does not have direct control over 
pesticides that are used on food commodities in other countries such as 
tree tomatoes from Ecuador, there are regulations in the United States 
concerning the importation of food to ensure that commodities do not 
enter the United States containing illegal pesticide residues. 
Specifically, the Environmental Protection Agency (EPA) has the 
authority to establish, change, or cancel tolerances for food 
commodities through section 408 of the Federal Food, Drug, and Cosmetic 
Act. The EPA tolerance levels are enforced once the commodity enters 
the United States. Federal Government food inspectors are responsible 
for monitoring food commodities that enter the United States to confirm 
that tolerance levels are not exceeded and that residues of pesticide 
chemicals that are banned in the United States, like DDT, are not 
present on the commodities.
    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.

    Note: In the proposed rule, the systems approach for tree tomato 
from Ecuador was designated as Sec.  319.56-78; however, that 
section has since been utilized. Therefore, the systems approach 
will be added as Sec.  319.56-83.

Executive Orders 12866 and 13771 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. Further, because this rule is 
not significant, it does not trigger the requirements of Executive 
Order 13771.
    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 
on the Regulations.gov website (see footnote 1 in this document for a 
link to Regulations.gov) or by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Tree tomatoes are not commercially grown in the United States. U.S. 
consumers will benefit from having Ecuador as a new source of fresh 
tree tomato fruit. Ecuador has approximately 40 tree tomato production 
sites, with a total growing area of 650 acres. They are served by a 
single packinghouse. In 2014 (most recent data available), Ecuador 
exported approximately 5.1 metric tons of fresh tree tomatoes to 
Germany, Canada, Spain, Holland, Italy, and Japan in more than 130 
small shipments. Based on conversations with Ecuadorian officials, we 
expect that initially there will be about 13 shipments of tree tomatoes 
from Ecuador, with a total volume of about 0.5 metric tons.
    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 final rule allows fresh tree tomato to be imported into the 
continental United States from Ecuador. State and local laws and 
regulations regarding tree tomato imported under this rule will be 
preempted while the fruit is in foreign commerce. Fresh fruits are 
generally imported for immediate distribution and sale to the consuming 
public, and 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. 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 and 
recordkeeping requirements included in this final rule, which were 
filed under 0579-0464, have been submitted for approval to the Office 
of Management and Budget (OMB). When OMB notifies us of its decision, 
if approval is denied, we will publish a document in the Federal 
Register providing notice of what action we plan to take.
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 Ms. Kimberly Hardy, 
APHIS' Information Collection Coordinator, at (301) 851-2483.

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 are amending 7 CFR part 319 as follows:

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 319.56-83 is added to read as follows:


Sec.  319.56-83  Tree tomatoes from Ecuador.

    Fresh tree tomatoes (Solanum betaceum Cavanilles) may be imported 
into the continental United States from Ecuador only under the 
conditions of this systems approach described in this section. These 
conditions are designed to prevent the introduction of the following 
quarantine pests: Anastrepha fraterculus, South American fruit fly; 
Ceratitis capitata, Mediterranean fruit fly; Neoleucinodes elegantalis, 
a moth; and the Tamarillo mosaic virus.
    (a) General requirements--(1) Operational workplan. The national 
plant protection organization (NPPO) of Ecuador must provide an 
operational workplan to APHIS that details the activities that the NPPO 
of Ecuador will carry out to meet the requirements of this section. The 
operational workplan must be approved by APHIS and include and describe 
specific requirements as set forth in this section. APHIS will be 
directly involved with the NPPO of Ecuador in monitoring and auditing 
implementation of the systems approach.
    (2) Registered places of production. Tree tomatoes considered for 
export to the continental United States must be produced at places of 
production that are registered with the NPPO of Ecuador.
    (3) Registered packinghouses. Tree tomatoes must be packed for 
export to the continental United States in pest-exclusionary 
packinghouses that are registered with the NPPO of Ecuador.
    (4) Recordkeeping. The NPPO of Ecuador must maintain all forms and 
documents related to export program activities in registered places of 
production and packinghouses for at least 1 year and provide them to 
APHIS upon request.
    (5) Identification. The identity of each lot of tree tomatoes from 
Ecuador must

[[Page 25549]]

be maintained throughout the export process, from the place of 
production until the tomatoes are released for entry into the 
continental United States. The means of identification that allows the 
lot to be traced back to the place of production in which it was 
produced, and the packinghouse in which it was packed, must be 
described in the operational workplan.
    (6) Commercial consignments. Tree tomatoes from Ecuador may be 
imported in commercial consignments only.
    (7) Safeguarding. Lots of tree tomatoes destined for export to the 
continental United States must be safeguarded during movement from 
registered places of production to registered packinghouses, and from 
registered packinghouses to arrival at the port of entry into the 
continental United States, as specified by the operational workplan.
    (b) Places of production requirements. (1) Registered places of 
production of tree tomatoes destined for export to the continental 
United States must be determined by APHIS and the NPPO of Ecuador to be 
free from A. fraterculus and C. capitata based on trapping conducted in 
accordance with the operational workplan. If the flies per trap per day 
exceed levels specified in the operational workplan, the place of 
production will be prohibited from exporting tree tomatoes to the 
continental United States until APHIS and the NPPO of Ecuador jointly 
agree that the risk has been mitigated. The NPPO must keep records 
regarding the placement and monitoring of all traps, as well as records 
of all pest detections in these traps, for at least 1 year and provide 
the records to APHIS, upon request.
    (2) Places of production must remove fallen tree tomato fruit in 
accordance with the operational workplan. Fallen fruit may not be 
included in field containers of fruit brought to the packinghouse to be 
packed for export.
    (3) The NPPO of Ecuador must inspect fields at registered places of 
production at least once during the growing season for Tamarillo mosaic 
virus. Sites must be determined by the NPPO to be free of the virus as 
a result of these inspections.
    (4) Starting 60 days before harvest and continuing throughout the 
shipping season, the NPPO of Ecuador must visit and inspect registered 
places of production monthly for signs of infestation. The NPPO of 
Ecuador must allow APHIS to monitor these inspections. The NPPO of 
Ecuador must also certify to APHIS that registered places of production 
have effective fruit fly trapping programs and control guidelines in 
place to reduce pest populations.
    (5) If APHIS or the NPPO of Ecuador determines that a registered 
place of production has failed to follow the requirements in this 
paragraph (b), the place of production will be excluded from the export 
program until APHIS and the NPPO of Ecuador jointly agree that the 
place of production has taken appropriate remedial measures to address 
the plant pest risk.
    (c) Packinghouse requirements. (1) During the time registered 
packinghouses are in use for packing tree tomatoes for export to the 
continental United States, the packinghouse can only accept tree 
tomatoes that are from registered places of production and that are 
produced in accordance with this section.
    (2) Tree tomatoes must be packed in insect-proof cartons or 
containers, or covered with insect-proof mesh or plastic tarpaulin, 
within 24 hours of harvest. These safeguards must remain intact until 
the tree tomatoes arrive in the United States, or the consignment will 
not be allowed to enter the United States.
    (3) All openings to the outside of the packinghouse must be covered 
by screening with openings of not more than 1.6 mm or by some other 
barrier that prevents pests from entering. The packinghouse must have 
double doors at the entrance to the facility and at the interior 
entrance to the area where the tree tomatoes are packed.
    (d) Phytosanitary inspections. A biometric sample of tree tomato 
fruit jointly agreed upon by the NPPO of Ecuador and APHIS must be 
inspected in Ecuador by the NPPO of Ecuador or officials authorized by 
the NPPO of Ecuador following post-harvest processing. The sample must 
be visually inspected for N. elegantalis and Tamarillo mosaic virus. A 
portion of the fruit must then be cut open and inspected for A. 
fraterculus and C. capitata.
    (1) If N. elegantalis is found, the entire lot of fruit will be 
prohibited from import into the United States unless it is treated with 
an approved quarantine treatment monitored by APHIS.
    (2) If Tamarillo mosaic virus is found, the entire lot of fruit 
will be prohibited from importation into the United States.
    (3) If a single larva of A. fraterculus and C. capitata is found, 
the entire lot of fruit will be prohibited from importation to the 
United States and the place of production producing that fruit will be 
suspended from the export program until appropriate measures, as agreed 
upon by the NPPO of Ecuador and APHIS, have been taken.
    (e) Phytosanitary certificate. Each consignment of fresh tree 
tomato fruit from Ecuador must be accompanied by a phytosanitary 
certificate, issued by the NPPO of Ecuador, that contains an additional 
declaration that the tomatoes were produced in accordance with the 
requirements of this section, and have been inspected and found free of 
A. fraterculus, C. capitata, N. elegantalis, and the Tamarillo mosaic 
virus.


(Approved by the Office of Management and Budget under control number 
0579-0464)

    Done in Washington, DC, this 29th day of May 2018.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2018-11890 Filed 6-1-18; 8:45 am]
 BILLING CODE 3410-34-P