Importation of Tomatoes From France, Morocco and Western Sahara, Chile, and Spain

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 300 and 319

[Docket No. 97-016-1]

Importation of Tomatoes From France, Morocco and Western Sahara,

Chile, and Spain

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations governing fruits and

vegetables to allow tomatoes from France, Morocco and Western Sahara,

and Chile to be imported into the United States subject to certain

conditions. The proposed action would provide importers and consumers

in the United States with additional sources of tomatoes, while

continuing to provide protection against the introduction and

dissemination of injurious plant pests. We are also proposing to amend

the regulations pertaining to importation of tomatoes from Spain by

requiring containers of pink or red tomatoes to be sealed before

shipment if the containers will transit any other fruit fly supporting

areas while en route to the United States, and by requiring records to

be kept by Spain's plant protection service regarding trapping

practices and fruit fly captures. These actions appear necessary to

prevent the introduction of exotic fruit flies into the United States.

DATES: Consideration will be given only to comments received on or

before December 15, 1997.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 97-016-1, Regulatory Analysis and Development, PPD, APHIS,

suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please

state that your comments refer to Docket No. 97-016-1. Comments

received may be inspected at USDA, room 1141, South Building, 14th

Street and Independence Avenue SW., Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday, except holidays. Persons wishing to

[[Page 53762]]

inspect comments are requested to call ahead on (202) 690-2817 to

facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald C. Campbell, Staff Officer,

Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road Unit

140, Riverdale, MD 20737-1236, (301) 734-6799; fax (301)734-5786; E-

mail: [email protected].

SUPPLEMENTARY INFORMATION:

Background

The regulations in 7 CFR 319.56 through 319.56-8 (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, including

fruit flies, that are new to or not widely distributed within the

United States.

Tomatoes from France, Morocco and Western Sahara, and Chile

We are proposing to amend the regulations to allow tomatoes

(Lycopersicon esculentum) from France, Morocco and Western Sahara, and

Chile to be imported into the United States under certain conditions,

which are discussed below. We are proposing to allow these importations

at the request of various importers and foreign ministries of

agriculture, and after conducting pest risk analyses 1 that

indicate the tomatoes can be imported under the proposed conditions

without presenting any significant risk of introducing fruit flies or

other injurious plant pests into the United States.

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\1\ Information on these pest risk analyses and any other pest

risk analysis referred to in this document may be obtained by

writing to the person listed under FOR FURTHER INFORMATION CONTACT

or by calling the Plant Protection and Quarantine (PPQ) fax vault at

301-734-3560.

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The imported tomatoes would be subject to the requirements in

Sec. 319.56-6 of the regulations. Section 319.56-6 provides, among

other things, that all imported fruits and vegetables, as a condition

of entry, shall be subject to inspection, disinfection, or both, at the

port of first arrival, as may be required by a United States Department

of Agriculture (USDA) inspector to detect and eliminate plant pests.

Section 319.56-6 also provides that any shipment of fruits and

vegetables may be refused entry if the shipment is infested with fruit

flies or other injurious plant pests and an inspector determines that

it cannot be cleaned by disinfection or treatment.

In this proposed rule, as well as in the current regulations for

importing tomatoes from Spain, contained in Secs. 319.56-2t and 319.56-

2dd, we use the terms ``pink or red'' and ``green'' tomatoes. Green

tomatoes are unripened tomatoes. Once tomatoes start to ripen, they

show more and more pink coloring, which deepens to red as the tomatoes

ripen.

Tomatoes From France

We are proposing to allow tomatoes to be imported from France under

conditions very similar to current requirements for importing tomatoes

from Spain. Section 319.56-2t includes green tomatoes from Spain in the

list of fruits and vegetables that may be imported subject to

inspection and disinfection at the port of arrival, in accordance with

Sec. 319.56-6 of the regulations. Section 319.56-2t allows green, or

unripened, tomatoes to be imported into the United States from any area

of Spain, including Almeria Province. Because green tomatoes are not a

host to the Mediterranean fruit fly (Medfly), which is known to occur

in Spain, or, in Spain, to any other pest of concern to the United

States, they are not subject to the special conditions in Sec. 319.56-

2dd. Pink and red tomatoes from Spain are hosts, albeit poor ones, to

the Medfly. Therefore, the regulations at Sec. 319.56-2dd currently

allow the importation of pink and red tomatoes only from the Almeria

Province and only under certain conditions, which protect the tomatoes

from Medfly infestation.

As in Spain, the pest of concern for tomatoes in France is Medfly.

We are proposing to add green tomatoes from France to the list of

fruits and vegetables in Sec. 319.56-2t that may be imported into the

United States subject to inspection and disinfection at the port of

arrival in accordance with Sec. 319.56-6 of the regulations. Green

tomatoes are not a host to Medfly, or, in France, to any other pest of

concern to the United States. We would require that, to be eligible for

importation, the tomatoes must still be green upon arrival in the

United States. This requirement would ensure that the tomatoes at no

time, either in France or en route, become suitable Medfly host

material. (As discussed later in this document, we are also proposing

to add this requirement for the importation of green tomatoes from

Spain.) We are also proposing to allow pink or red tomatoes to be

imported into the United States from France if they are grown in the

Region of Brittany and meet certain conditions.

Although Medfly is not known to exist in Brittany, incidental

introductions are possible. Therefore, we propose to require that the

tomatoes be grown in Brittany in greenhouses registered with, and

inspected by, the Service de la Protection Vegetaux (SRPV). From June 1

through September 30, SRPV would be required to set and maintain Medfly

traps baited with trimedlure at a rate of one inside and one outside

each greenhouse. All traps would have to be checked every 7 days.

Brittany, in the northeast of France, has a temperate climate.

Temperatures from October through May are too cold for Medfly to

survive. It is unlikely that Medfly would become even temporarily

established in Brittany during the months of June through September,

but trapping would help ensure detection of Medfly should it be

introduced. Capture of a single Medfly inside or outside a registered

greenhouse would immediately result in cancellation of exports to the

United States from that greenhouse until the source of infestation is

determined, the Medfly infestation is eradicated, and measures have

been taken to preclude any future infestation. The Animal and Plant

Health Inspection Service (APHIS) generally considers eradication to

have occurred when there is no evidence of reproducing populations of

Medfly (for example, no finding of Medfly larvae, mated females, or

both male and female flies) for two life cycles of the Medfly. We

propose to require SRPV to maintain records of trap placement, checking

of traps, and any Medfly captures, and to make the records available to

APHIS upon request.

Also from June 1 through September 30, we would require that the

tomatoes be packed within 24 hours of harvest, safeguarded by fruit

fly-proof mesh screen or plastic tarpaulin while in transit to the

packing house and while awaiting packing, and packed in fruit fly-proof

containers for transit to the airport and subsequent shipping to the

United States. These requirements do not appear to be necessary during

other times of the year when the climate would not support fruit flies.

At all times of the year, however, we are proposing to require the

fruit fly-proof containers of tomatoes to be sealed by SRPV before

shipment, and the seal number recorded on a phytosanitary certificate

that must accompany the tomatoes, if the containers will transit any

other fruit fly supporting areas while en route to the United States.

This would ensure that the containers are not opened and exposed to

fruit flies, or contaminated with fruit fly infested fruit during

shipment to the United States. Flight over a fruit fly supporting area

without stopping does not constitute

[[Page 53763]]

``transit'' and thus does not trigger the SRPV seal and records

requirements.

SRPV would be responsible for export certification inspection and

issuance of phytosanitary certificates. We propose to require each

shipment of pink or red tomatoes to be accompanied by a phytosanitary

certificate issued by SRPV and bearing the declaration, ``These

tomatoes were grown in registered greenhouses in the Brittany Region of

France.''

The provisions for importing pink or red tomatoes from France would

be added to Sec. 319.56-2dd, and the heading for that section, which

now refers only to pink or red tomatoes from Spain, would be changed.

Tomatoes From Morocco and Western Sahara

As in France and Spain, the pest of concern for tomatoes in Morocco

and Western Sahara is Medfly. We are proposing to add green tomatoes

from Morocco and Western Sahara to the list of fruits and vegetables in

Sec. 319.56-2t that may be imported, provided that the tomatoes are

still green upon arrival in the United States, subject to inspection

and disinfection at the port of arrival in accordance with Sec. 319.56-

6 of the regulations. Green tomatoes are not a host to Medfly, or, in

Morocco and Western Sahara, to any other pest of concern to the United

States.

We are also proposing to add provisions to Sec. 319.56-2dd to allow

pink tomatoes to be imported into the United States from El Jadida and

Safi Provinces, Morocco, and from Dahkla Province, Western Sahara,

under conditions similar to those discussed above for tomatoes from

France. We are proposing to allow pink, but not fully ripe, red

tomatoes, as an additional precaution because of the endemic presence

of Medflies and Medfly host material in Morocco and Western Sahara, and

the free movement of Medfly host materials throughout Morocco and

Western Sahara. The surface area of a pink tomato is more than 30

percent but not more than 60 percent pink and/or red. A red tomato is

more than 60 percent pink and/or red. Tomatoes at any stage of ripeness

are poor hosts for Medfly, and pink tomatoes are less suitable Medfly

host material than red tomatoes.

The tomatoes would have to be grown in greenhouses registered with,

and inspected by, the Moroccan Ministry of Agriculture, Division of

Plant Protection, Inspection, and Enforcement (DPVCTRF). Because of the

prevalence of Medfly in Morocco and Western Sahara, the greenhouses

would have to be insect-proof.

The tomatoes would only be allowed to be shipped from Morocco and

Western Sahara between December 1 and April 30, inclusive. Although

Morocco and Western Sahara are capable of supporting year-round

populations of Medfly, population levels are lower during these months

than during late spring through early autumn.

Commercial greenhouses in Morocco and Western Sahara range in size

from less than 1 hectare to more than 14 hectares. Beginning 2 months

prior to the start of the shipping season and continuing through the

end of the shipping season, DPVCTRF would be required to set and

maintain Medfly traps baited with trimedlure inside the registered

greenhouses at a rate of four traps per hectare. In Morocco traps would

also be required outside registered greenhouses within a 2 kilometer

radius at a rate of four traps per square kilometer. In Western Sahara,

a single trap outside each registered greenhouse would be required.

Fewer traps would be required in Western Sahara because of the scarcity

of endemic Medfly host material and arid conditions in the tomato

production areas. All traps in Morocco and Western Sahara would have to

be checked every 7 days. We propose to require DPVCTRF to maintain

records of trap placement, checking of traps, and any Medfly captures,

and to make the records available to APHIS upon request.

Capture of a single Medfly in a registered greenhouse would

immediately result in cancellation of exports to the United States from

that greenhouse until the source of the infestation is determined, the

Medfly infestation has been eradicated, and measures are taken to

preclude any future infestation. Capture of a single Medfly within 200

meters of a registered greenhouse would necessitate increasing trap

density in order to determine whether there is a reproducing population

in the area. Six additional traps would have to be placed within a

radius of 200 meters surrounding the trap where the Medfly was

captured. Capture of two Medflies within 200 meters of a registered

greenhouse and within a 1-month time period would require Malathion

bait sprays within 200 meters of the trap or traps where Medflies were

caught every 7 to 10 days for 60 days to ensure eradication.

As with pink and red tomatoes from France and Spain, we propose to

require pink tomatoes from Morocco and Western Sahara to be packed

within 24 hours of harvest, safeguarded by fruit fly-proof mesh screen

or plastic tarpaulin while in transit to the packing house and while

awaiting packing, and packed in fruit fly-proof containers for transit

to the airport and subsequent shipping to the United States. The

tomatoes must be pink at the time of packing. In addition, we are

proposing to require that the fruit fly-proof containers of tomatoes be

sealed by the Moroccan Ministry of Agriculture, Fresh Product Export

(EACCE), before shipment, and the seal number recorded on a

phytosanitary certificate that must accompany the tomatoes, if the

containers will transit any other fruit fly supporting areas while en

route to the United States. This action appears necessary to ensure

that the containers are not opened and exposed to fruit flies, or

contaminated with fruit fly infested fruit during shipment to the

United States.

EACCE would be responsible for export certification inspection and

issuance of phytosanitary certificates. We propose to require each

shipment of pink tomatoes to be accompanied by a phytosanitary

certificate issued by EACCE and bearing the declaration, ``These

tomatoes were grown in registered greenhouses in El Jadida or Safi

Province, Morocco and were pink at the time of packing'' or ``These

tomatoes were grown in registered greenhouses in Dahkla Province,

Western Sahara and were pink at the time of packing.''

The provisions for importing pink tomatoes from Morocco and Western

Sahara would be added to Sec. 319.56-2dd.

Tomatoes From Chile

In Chile the primary pests of concern in tomatoes are the tomato

fruit moth (Scrobopalpula absoluta) and the tomato fruit fly

(Rhagoletis tomatis). These are temperate pests that infest tomatoes at

all stages of ripeness, including when they are green. USDA has

determined that a methyl bromide treatment, developed in Chile, is an

effective treatment for these pests in tomatoes. The treatment schedule

is as follows: Methyl bromide at the rate of 48 ounces per 1,000 cubic

feet at 70 deg.F for 2 hours. We are proposing to allow tomatoes from

Chile to be imported into the United States if the tomatoes are treated

in Chile with methyl bromide as described above. The treatment would

have to be conducted in facilities registered with the Secretario de

Agricultura y Ganaderia (SAG) and with APHIS personnel monitoring the

treatments. Requiring the treatment under these conditions would ensure

that the treatments were effectively administered.

In addition, we would require that the tomatoes be treated and

packed within

[[Page 53764]]

24 hours of harvest. They would have to be safeguarded by a fruit fly-

proof mesh screen or plastic tarpaulin while in transit to the packing

house and while awaiting packing, and be packed in fruit fly-proof

containers under APHIS monitoring for transit to the airport and

subsequent shipping to the United States. We believe these requirements

are necessary to protect the tomatoes against reinfestation by the

tomato fruit moth and fruit flies between the time of treatment and the

arrival of the tomatoes in the United States.

The proposed methyl bromide treatment of tomatoes in Chile under

APHIS monitoring prior to export of the tomatoes to the United States

would be required due to the nature of tomato production in Chile.

Tomatoes in Chile would be produced in open fields under normal

cultural practices that do not incorporate safeguards to mitigate the

risk of introducing tomato fruit fly and tomato fruit moth into the

United States. Furthermore, the tomato fruit fly and tomato fruit moth

are temperate pests that could potentially impact domestic tomato

production in the United States. Post harvest methyl bromide treatment

in Chile would be the only mitigative measure to ensure that tomato

fruit flies and tomato fruit moths are not inadvertently shipped to the

United States. By contrast, tomatoes from France, Morocco and Western

Sahara, and Spain would be produced in greenhouses under a systems

approach that incorporates multiple safeguards that mitigate the risk

of introducing Medflies into the United States.

We propose that SAG enter into a trust fund agreement with APHIS

before tomatoes from Chile could be precleared for import into the

United States. A trust fund agreement is required to recover APHIS

costs associated with monitoring the preclearance program in Chile. The

trust fund agreement would require SAG to pay in advance all estimated

costs to be incurred by APHIS in providing preclearance services during

a shipping season. These costs would include administrative expenses

incurred in conducting preclearance, as well as all salaries (including

overtime and the Federal share of employee benefits), travel expenses

(including per diem expenses), and other incidental expenses incurred

by the inspectors in providing these services. SAG would be required to

deposit a certified or cashier's check with APHIS for the amount of

these costs for the entire shipping season, as estimated by APHIS based

on projected shipment volumes and cost figures from previous

inspections. The agreement would further require that, if the deposit

does not meet the actual costs incurred by APHIS, SAG would deposit

with APHIS a certified or cashier's check for the amount of the known

remaining costs, as determined by APHIS, before completion of the

inspections. The agreement would also specify that unanticipated end-

of-season costs must be paid upon demand, and that further service will

be withheld until payment is made. If the amount SAG pays during a

shipping season exceeds the total costs incurred by APHIS in providing

preclearance services, the difference would be refunded to SAG by APHIS

at the end of the shipping season. Requiring payment of costs in

advance is necessary to help defray the costs to APHIS of providing

inspection services in Chile.

The provisions for importing tomatoes from Chile would be added to

Sec. 319.56-2dd. The treatment schedule for methyl bromide would be

added to the Plant Protection and Quarantine Treatment Manual (PPQ

Treatment Manual), which is incorporated into the regulations by

reference (see 7 CFR 300.1).

Tomatoes From Spain

The regulations at Sec. 319.56-2dd for importing pink or red

tomatoes from Almeria Province in Spain already require, among other

things, that the greenhouse grown pink or red tomatoes be packed within

24 hours of harvest, be safeguarded by a fruit fly-proof mesh screen or

plastic tarpaulin while in transit to the packing house and while

awaiting packing, and be packed in fruit fly-proof containers for

transit to the airport and subsequent shipping to the United States. We

are proposing to require the fruit fly-proof containers of tomatoes to

be sealed by the Spanish Ministry of Agriculture, Fisheries, and Food

(MAFF) before shipment, and the seal number recorded on the

phytosanitary certificate that must accompany the tomatoes to the

United States, if the containers will transit any other fruit fly

supporting areas while en route to the United States. We believe the

additional requirements for containers that will transit fruit fly

supporting areas are necessary to ensure that the shipments are not

opened and exposed to fruit flies or contaminated with fruit-fly

infested fruit during shipment to the United States.

The regulations at Sec. 319.56-2dd for importing pink or red

tomatoes from Spain also require MAFF to maintain Medfly traps inside

and outside the registered greenhouses, but do not require MAFF to

maintain records regarding the trapping. We propose to require MAFF to

maintain records of trap placement, checking of traps, and any Medfly

captures, and to make the records available to APHIS upon request. This

would help ensure that trapping is done properly and that appropriate

action is taken when fruit flies are found.

As discussed previously in this document, the regulations at

Sec. 319.56-2t for importing green tomatoes from Spain do not now

require that the tomatoes still be green upon arrival in the United

States. We propose to require that green tomatoes from Spain still be

green upon arrival in the United States. This requirement would ensure

that the tomatoes at no time, either in Spain or en route, become

suitable host material for Medfly.

Executive Order 12866 and the Regulatory Flexibility Act

This proposed rule has been reviewed under Executive Order 12866.

The 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.

This proposed rule would allow tomatoes from France, Morocco and

Western Sahara, and Chile to be imported into the United States subject

to certain conditions. This proposed action would provide importers and

consumers in the United States with additional sources of tomatoes,

while continuing to provide protection against the introduction and

dissemination of injurious plant pests. The proposal would also make

some minor changes to the provisions for importing tomatoes from Spain,

but these changes are not expected to have any effect on the volume of

tomatoes imported from Spain, and, therefore, are not expected to have

any economic impact. Under the Federal Plant Pest Act and the Plant

Quarantine Act (7 U.S.C. 150dd, 150ee, 150ff, 151-165, and 167), the

Secretary of Agriculture is authorized to regulate the importation of

fruits and vegetables to prevent the introduction of injurious plant

pests.

During 1995 about 12.3 million metric tons of tomatoes were

supplied to the United States market. Domestic production accounted for

about 95.4 percent of total supply. Imports from Spain accounted for

less than one-tenth of one percent of total tomatoes supplied to United

States consumers during 1995. Prices and sources of tomatoes supplied

to the United States market are summarized in the following table.

[[Page 53765]]

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Quantity (metric Total value Average value per Percentage (% of

Source of U.S. tomato supply tons) ($1,000,000) metric ton total supply) \2\

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Domestic Production................ 11,719,214 $1,576.01 $134.48 95.44

Imported Tomatoes \1\.............. 559,117 404.95 724.27 4.45

Spanish Imports.................... 657 1.11 1,695.58 0.0001

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Total Supply................. 12,278,988 1,982.07 161.42 100.0

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\1\ From countries other than Spain.

\2\ Percentage column may not sum due to rounding.

Sources: Agricultural Statistics 1995-96; Table 233 (figures converted to metric tons); USDA-NASS; Washington,

DC.

Foreign Agriculture Trade of the United States--FY 1995 Supplement; Table 25; USDA-ERS; Washington, DC.

It is estimated that annual tomato imports will increase by about

13,700 metric tons under this proposed rule. About 6,000 metric tons

are expected from Chile; the remaining 7,700 metric tons would arrive

from France and Morocco and Western Sahara. Currently, Spanish imports

arrive during the off-season for tomato production in the United States

(December 1 through April 30) and, therefore, do not directly compete

with United States tomatoes produced during the spring and summer

months. Proposed tomato imports from Morocco and Western Sahara will

also be restricted to arrival during the off-season. Imports from Chile

and France will be allowed entry throughout the year. However, Chilean

tomatoes are expected to be primarily imported during the off-season

due to seasonal growing differences between the northern and southern

hemispheres, and shipments from France are likely to fill a special

market niche (for higher quality fresh tomatoes).

Therefore, proposed imports would largely compete with existing

imports rather than with domestic production. This is further supported

by the price per ton that imports currently command in the United

States market. The value of imported tomatoes (from countries other

than Spain) averaged $724 per metric ton during 1995. Spanish imports

averaged $1,695 per metric ton during the same year. This price

discrepancy is likely due to the relatively high quality of off-season

tomato imports from Spain. In contrast to imports, prices for U.S.

produced tomatoes averaged about $161 per metric ton. Price

discrepancies between the import and domestic markets indicate that

imports cannot compete with domestic supplies unless they arrive during

the off-season or for specialty markets. During the off-season there

may be some U.S. producers who grow greenhouse tomatoes at higher than

average prices. However, this price differential is not reflected in

the data.

Even if all the proposed imports were directly substitutable for

domestic supplies, the net impact on United States society is

anticipated to be positive. Assuming a perfectly inelastic supply, a

demand elasticity of -0.5584, an initial quantity supplied of 12.3

million metric tons, and an increase in imports of 13,700 metric tons,

it is estimated that average U.S. tomato prices will decline from

$161.42 to $161.10 per metric ton.2 This represents a price

decrease of $0.32 per metric ton. Consumer welfare would increase by

$3,935,852. United States producers, however, would experience a

revenue decrease of $3,933,660, or about 0.2 percent of the total value

of domestic tomato supplies. This would result in a positive, albeit

small, net impact to United States society totaling about $2,192.

Foreign producers realize a gain of about $2,207,070. These results are

summarized in the following table.

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\2\ The demand elasticity is obtained from J.E. Epperson and

L.F. Lei, ``A Regional Analysis of Vegetable Production with

Changing Demand for Row Crops Using quadratic Programming,''

Southern Journal of Agricultural Economics, Volume 21, Number 1,

July 1989, pp. 87-96.

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U.S. consumer U.S. producer Net gain to U.S. Foreign producer

gain revenue loss society gain

------------------------------------------------------------------------

$3,935,852....... $3,933,660 $2,192 $2,207,070

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This proposed rule would provide U.S. consumers with additional

sources of tomatoes during winter months and for specialty markets.

Domestic producers who propagate greenhouse tomatoes during the off-

season may be slightly impacted. However, it is estimated that this

proposed rule will have a negligible economic impact on domestic tomato

producers. Most imports from Chile and Morocco and Western Sahara will

arrive during the off-season and not directly compete with U.S.

produced tomatoes. Even if imports could be readily substituted for

domestic production, U.S. producers would only be marginally impacted

due to the low volume of expected imports. A relatively small annual

quantity increase (13,700 metric tons valued at $2.2 million) of

imported tomatoes would not likely erode the market share of domestic

producers.

The Regulatory Flexibility Act requires that APHIS specifically

consider the economic impact of this proposed rule on ``small''

entities. The SBA has set forth size criteria by Standard Industrial

Classification (SIC) which was used as a guide in determining which

economic entities meet the definition of a ``small'' business.

The SBA does not maintain specific size standards for domestic

entities that either import or produce tomatoes. Therefore, this

analysis uses the size standards established for Vegetable and Melon

Producers (SIC code 0161) and Wholesale Traders of Fresh Fruits and

Vegetables (SIC code 5148). The SBA's definition of a ``small'' entity

included in the vegetable and melon producer classification is one that

generates less than $500,000 in annual receipts.3 Wholesale

traders of fresh fruits and vegetables are classified as ``small'' if

they employ fewer than 100 people.

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\3\ Small Business Administration; Washington, DC. SBA data was

modified by tomato specific information contained in the 1992 Census

of Agriculture.

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Currently there are about 15,438 ``small'' tomato producers and

5,122 ``small'' wholesale traders of fresh fruits and vegetables

according to the SBA criteria. The proposed rule change could

negligibly impact some ``small'' domestic entities. However, because

the supply of tomatoes in the United States market would only increase

by about

[[Page 53766]]

13,700 metric tons (less than one-tenth of one percent of total

domestic supply) and domestic producers would continue to supply more

than 95 percent of the tomatoes consumed in the United States each

year, it does not appear that this proposed rule would have a

significant economic impact on ``small'' entities. However, APHIS

invites public comments concerning the potential economic effects of

this proposed rule change on ``small'' United States entities. The

Agency is particularly interested in identifying potential economic

impacts on United States entities that produce tomatoes during the

winter months. All comments will be considered prior to finalization of

this Regulatory Flexibility Analysis.

Reporting and recordkeeping requirements of the proposed rule are

described below under ``The Paperwork Reduction Act'' section of this

document.

Executive Order 12778

This proposed rule would allow the importation of tomatoes from

France, Morocco and Western Sahara, and Chile under certain conditions.

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. Tomatoes 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 would be given to this rule, and this rule would 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. 97-016-1.

Please send a copy of your comments to: (1) Docket No. 97-016-1,

Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River

Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer,

OIRM, 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.

We are proposing to allow tomatoes from France, Morocco and Western

Sahara, and Chile to be imported into the United States subject to

certain conditions. We are also proposing to amend the regulations

pertaining to importation of tomatoes from Spain by requiring

containers of pink or red tomatoes to be sealed before shipment if the

containers will transit any other fruit fly supporting areas while en

route to the United States, and by requiring records to be kept by

Spain's plant protection service regarding trapping practices and fruit

fly captures. These proposed regulatory revisions would facilitate the

importation of tomatoes from France, Morocco and Western Sahara, Chile

and Spain while ensuring that tomatoes imported into the United States

do not harbor insect pests such as the Mediterranean fruit fly, tomato

fruit moth, and tomato fruit fly.

The implementation of these proposed regulatory actions would

require us to engage in certain information collection activities. We

are seeking approval from the Office of Management and Budget (OMB) to

engage in these information collection activities, which are described

below.

Phytosanitary certificate: The proposed rule would require that

pink or red tomatoes imported into the United States from registered

greenhouses in the Brittany Region of France and pink tomatoes imported

into the United States from registered greenhouses in El Jadida and

Safi Provinces, Morocco, and Dahkla Province, Western Sahara, be

accompanied by a phytosanitary certificate. The certificate would be

issued by a representative of the plant protection agency in the

respective country of origin after the representative examines the

shipment and ensures that it has been prepared in compliance with our

regulations.

Records of Medfly trap placement and Medfly captures: The proposed

rule would require that Medfly traps be placed in and/or around

registered greenhouses in Almeria Province, Spain; El Jadida and Safi

Provinces, Morocco; Dahkla Province, Western Sahara; and the Brittany

Region of France. Representatives from the respective national plant

protection agencies would be responsible for recording trap placement,

checking of traps, and Medfly captures. This information would be made

available to APHIS upon request.

We are soliciting comments from the public (as well as affected

agencies) concerning our proposed information collection requirements.

We need this outside input to help us:

(1) Evaluate whether the 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

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 0.670 hours per response.

Respondents: Foreign plant health protection authorities.

Estimated number of respondents: 6.

Estimated annual number of responses: 328.

Estimated average number of responses per respondent: 54.66.

Estimated total annual burden on respondents: 220 hours.

Copies of this information collection can be obtained from:

Clearance Officer, OIRM, USDA, Room 404-W, 14th Street and Independence

Ave., SW., Washington, DC 20250.

List of Subjects

7 CFR Part 300

Incorporation by reference, Plant diseases and pests, Quarantine.

7 CFR Part 319

Bees, Coffee, Cotton, Fruits, Honey, Imports, Incorporation by

reference, Nursery Stock, Plant diseases and pests, Quarantine,

Reporting and recordkeeping requirements, Rice, and Vegetables.

Accordingly, title 7, chapter III, of the Code of Federal

Regulations would be amended as follows:

PART 300--INCORPORATION BY REFERENCE

1. The authority citation for part 300 would continue to read as

follows:

[[Page 53767]]

Authority: 7 U.S.C. 150ee, 154, 161, 162 and 167; 7 CFR 2.22,

2.80, and 371.2(c).

2. In Sec. 300.1, paragraph (a), introductory text, would be

revised to read as follows:

Sec. 300.1 Materials incorporated by reference.

(a) Plant Protection and Quarantine Treatment Manual. The Plant

Protection and Quarantine Treatment Manual, which was reprinted

November 30, 1992, and includes all revisions through [insert date],

has been approved for incorporation by reference in 7 CFR chapter III

by the Director of the Office of the Federal Register in accordance

with 5 U.S.C. 552(a) and 1 CFR part 51.

* * * * *

PART 319--FOREIGN QUARANTINE NOTICES

3. The authority citation for part 319 would continue to read as

follows:

Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and

2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).

4. In Sec. 319.56-2t, the table would be amended by revising the

entry for tomato from Spain and by adding new entries for tomato from

France and Morocco and Western Sahara, in alphabetical order, to read

as follows:

Sec. 319.56-2t Administrative instructions: conditions governing the

entry of certain fruits and vegetables.

* * * * *

----------------------------------------------------------------------------------------------------------------

Country/locality Common name Botanical name Plant part(s)

----------------------------------------------------------------------------------------------------------------

* * * * * *

*

France.................................. Tomato....... (Lycopersicon esculentum)............. Fruit, only if

it is green

upon arrival

in the United

States (pink

or red fruit

may only be

imported from

the Region of

Brittany and

only in

accordance

with Sec.

319.56-2dd of

this subpart).

* * * * * *

*

Morocco and Western Sahara.............. Tomato....... (Lycopersicon esculentum)............. Fruit, only if

it is green

upon arrival

in the United

States (pink

fruit may only

be imported

from El Jadida

or Safi

Province,

Morocco, or

Dahkla

Province,

Western

Sahara, and

only in

accordance

with Sec.

319.56-2dd of

this subpart).

* * * * * *

*

Spain................................... Tomato....... (Lycopersicon esculentum)............. Fruit, only if

it is green

upon arrival

in the United

States (pink

or red fruit

may only be

imported from

Almeria

Province and

only in

accordance

with Sec.

319.56-2dd of

this subpart).

* * * * * *

*

----------------------------------------------------------------------------------------------------------------

* * * * *

5. Section 319.56-2dd would be revised to read as follows:

Sec. 319.56-2dd Administrative instructions: conditions governing the

entry of tomatoes.

(a) Tomatoes (fruit) (Lycopersicon esculentum) from Spain. Pink or

red tomatoes may be imported into the United States from Spain only

under the following conditions: 1

---------------------------------------------------------------------------

\1\ The surface area of a pink tomato is more than 30 percent

but not more than 60 percent pink and/or red. The surface area of a

red tomato is more than 60 percent pink and/or red. Green tomatoes

may be imported in accordance with Sec. 319.56-2t of this subpart.

---------------------------------------------------------------------------

(1) The tomatoes must be grown in the Almeria Province of Spain in

greenhouses registered with, and inspected by, the Spanish Ministry of

Agriculture, Fisheries, and Food (MAFF);

(2) The tomatoes may be shipped only from December 1 through April

30, inclusive;

(3) Two months prior to shipping, and continuing through April 30,

MAFF must set and maintain Mediterranean fruit fly (Medfly) traps

baited with trimedlure inside the greenhouses at a rate of four traps

per hectare. In all areas outside the greenhouses and within 8

kilometers, including urban and residential areas, MAFF must place

Medfly traps at a rate of four traps per square kilometer. All traps

must be checked every 7 days;

(4) Capture of a single Medfly in a registered greenhouse will

immediately result in cancellation of exports from that greenhouse

until the source of infestation is determined, the Medfly infestation

is eradicated, and measures are taken to preclude any future

infestation. Capture of a single Medfly within 2 kilometers of a

registered greenhouse will necessitate increasing trap density in order

to determine whether there is a reproducing population in the area.

Capture of two Medflies within 2 kilometers of a registered greenhouse

and within a 1-month time period will result in cancellation of exports

from all registered greenhouses within 2 kilometers of any of the finds

until the source of infestation is determined and the Medfly

infestation is eradicated;

(5) MAFF must maintain records of trap placement, checking of

traps, and any Medfly captures, and must make the records available to

APHIS upon request;

(6) The tomatoes must be packed within 24 hours of harvest. They

must be safeguarded by a fruit fly-proof mesh screen or plastic

tarpaulin while in transit to the packing house and while awaiting

packing, and packed in fruit fly-proof containers for transit to the

airport and subsequent shipping to the United States. Transit through

other fruit fly supporting areas is prohibited unless the fruit fly-

proof containers are sealed by MAFF before shipment and the official

seal number is recorded on the phytosanitary certificate; and

(7) MAFF is responsible for export certification inspection and

issuance of phytosanitary certificates. Each shipment of tomatoes must

be accompanied by a phytosanitary certificate issued by MAFF and

bearing the declaration, ``These tomatoes were grown in registered

greenhouses in Almeria Province in Spain.''

(b) Tomatoes (fruit) (Lycopersicon esculentum) from France. Pink or

red tomatoes may be imported into the United States from France only

under the following conditions: \1\

(1) The tomatoes must be grown in the Brittany Region of France in

greenhouses registered with, and

[[Page 53768]]

inspected by, the Service de la Protection Vegetaux (SRPV);

(2) From June 1 through September 30, SRPV must set and maintain

one Medfly trap baited with trimedlure inside and one outside the

greenhouse and must check the traps every 7 days;

(3) Capture of a single Medfly inside or outside a registered

greenhouse will immediately result in cancellation of exports from that

greenhouse until the source of the infestation is determined, the

Medfly infestation is eradicated, and measures are taken to preclude

any future infestation;

(4) SRPV must maintain records of trap placement, checking of

traps, and any Medfly captures, and must make them available to APHIS

upon request;

(5) From June 1 through September 30, the tomatoes must be packed

within 24 hours of harvest. They must be safeguarded by fruit fly-proof

mesh screen or plastic tarpaulin while in transit to the packing house

and while awaiting packing, and be packed in fruit fly-proof containers

for transit to the airport and subsequent shipping to the United

States. At all times of the year, transit through other fruit fly

supporting areas is prohibited unless the fruit fly-proof containers

are sealed by SRPV before shipment and the official seal number is

recorded on the phytosanitary certificate; and

(6) SRPV is responsible for export certification inspection and

issuance of phytosanitary certificates. Each shipment of tomatoes must

be accompanied by a phytosanitary certificate issued by SRPV and

bearing the declaration, ``These tomatoes were grown in registered

greenhouses in the Brittany Region of France.''

(c) Tomatoes (fruit) (Lycopersicon esculentum) from Morocco and

Western Sahara. Pink tomatoes may be imported into the United States

from Morocco and Western Sahara only under the following conditions:

\1\

(1) The tomatoes must be grown in the provinces of El Jadida or

Safi in Morocco or in the province of Dahkla in Western Sahara in

insect-proof greenhouses registered with, and inspected by, the

Moroccan Ministry of Agriculture, Division of Plant Protection,

Inspection, and Enforcement (DPVCTRF);

(2) The tomatoes may be shipped from Morocco and Western Sahara

only between December 1 and April 30, inclusive;

(3) Beginning 2 months prior to the start of the shipping season

and continuing through the end of the shipping season, DPVCTRF must set

and maintain Mediterranean fruit fly (Medfly) traps baited with

trimedlure inside the greenhouses at a rate of four traps per hectare.

In Morocco, traps must also be placed outside registered greenhouses

within a 2 kilometer radius at a rate of four traps per square

kilometer. In Western Sahara, a single trap must be placed outside each

registered greenhouse. All traps in Morocco and Western Sahara must be

checked every 7 days;

(4) DPVCTRF must maintain records of trap placement, checking of

traps, and any Medfly captures, and make the records available to APHIS

upon request;

(5) Capture of a single Medfly in a registered greenhouse will

immediately result in cancellation of exports from that greenhouse

until the source of the infestation is determined, the Medfly

infestation has been eradicated, and measures are taken to preclude any

future infestation. Capture of a single Medfly within 200 meters of a

registered greenhouse will necessitate increasing trap density in order

to determine whether there is a reproducing population in the area. Six

additional traps must be placed within a radius of 200 meters

surrounding the trap where the Medfly was captured. Capture of two

Medflies within 200 meters of a registered greenhouse and within a 1

month time period will necessitate Malathion bait sprays in the area

every 7 to 10 days for 60 days to ensure eradication;

(6) The tomatoes must be packed within 24 hours of harvest. They

must be safeguarded by a fruit fly-proof mesh screen or plastic

tarpaulin while in transit to the packing house and while awaiting

packing, and packed in fruit fly-proof containers for transit to the

airport and subsequent shipping to the United States. The tomatoes must

be pink at the time of packing. Transit through other fruit fly

supporting areas is prohibited unless the fruit fly-proof containers

are sealed by the Moroccan Ministry of Agriculture, Fresh Product

Export (EACCE), before shipment and the official seal number is

recorded on the phytosanitary certificate; and

(7) EACCE is responsible for export certification inspection and

issuance of phytosanitary certificates. Each shipment of tomatoes must

be accompanied by a phytosanitary certificate issued by EACCE and

bearing the declaration, ``These tomatoes were grown in registered

greenhouses in El Jadida or Safi Province, Morocco, and were pink at

the time of packing'' or ``These tomatoes were grown in registered

greenhouses in Dahkla Province, Western Sahara and were pink at the

time of packing.''

(d) Tomatoes from Chile. Tomatoes (fruit) (Lycopersicon esculentum)

from Chile, whether green or at any stage of ripeness, may be imported

into the United States only under the following conditions:

(1) The tomatoes must be treated in Chile with methyl bromide in

accordance with the PPQ Treatment Manual. The treatment must be

conducted in facilities registered with the Secretario de Agricultura y

Ganaderia (SAG) and with APHIS personnel monitoring the treatments;

(2) The tomatoes must be treated and packed within 24 hours of

harvest. Once treated, the tomatoes must be safeguarded by a fruit fly-

proof mesh screen or plastic tarpaulin while in transit to the packing

house and while awaiting packing, and be packed in fruit fly-proof

containers under APHIS monitoring for transit to the airport and

subsequent shipping to the United States; and

(3) Tomatoes may be imported into the United States from Chile only

if SAG has entered into a trust fund agreement with APHIS for that

shipping season. This agreement requires SAG to pay in advance all

costs that APHIS estimates it will incur in providing the preclearance

services prescribed in this section for that shipping season. These

costs will include administrative expenses incurred in conducting the

preclearance services; and all salaries (including overtime and the

Federal share of employee benefits), travel expenses (including per

diem expenses), and other incidental expenses incurred by the

inspectors in providing these services. The agreement requires SAG to

deposit a certified or cashier's check with APHIS for the amount of

these costs for the entire shipping season, as estimated by APHIS based

on projected shipment volumes and cost figures from previous

inspections. The agreement further requires that, if the initial

deposit is not sufficient to meet all costs incurred by APHIS, SAG must

deposit with APHIS another certified or cashier's check for the amount

of the remaining costs, as determined by APHIS, before the inspections

will be completed. The agreement also requires that, in the event of

unexpected end-of-season costs, SAG must deposit with APHIS a certified

cashier's check sufficient to meet such costs as estimated by APHIS,

before any further preclearance services will be provided. If the

amount SAG deposits during a shipping season exceeds the total cost

incurred by APHIS in providing preclearance services, the difference

will be returned to SAG by APHIS at the end of the shipping season.

[[Page 53769]]

Done in Washington, DC, this 9th day of October 1997.

Terry L. Medley,

Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 97-27427 Filed 10-15-97; 8:45 am]

BILLING CODE 3410-34-P