[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Rules and Regulations]
[Pages 34781-34783]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14294]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
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.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
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.
-----------------------------------------------------------------------
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