FLORIDA TOMATO GROWERS EXCHANGE

800 Trafalgar Court, Suite 300

Maitland, FL 32751

Telephone (407) 660-1949 Fax (407) 660-1656

July 25, 2006

Docket Clerk

Regulatory Analysis and Development, PPD

Animal and Plant Health Inspection Service, Station 3A-03.8

4700 River Road, Unit 118

Riverdale, MD 20737-1238

Re: Docket No. APHIS---2005-0106

Dear Sir / Madam:

The comments below are submitted on behalf of the Florida Tomato Growers
Exchange (Growers Exchange). These growers of tomatoes represent a
substantial volume of all tomatoes shipped out of the state of Florida,
and during the winter months, we are the predominant source of fresh
grown tomatoes in the United States.

Our growers are on the front line in the war to keep harmful pests and
diseases out of the U.S. We have witnessed first-hand the harm that the
Med-fly brings, so to with the White fly. We have seen canker destroy
the lime industry in Florida and stagger the citrus industry. And, this
devastation happened with APHIS enforcing strict standards. And our
fellow growers in the Border States have similar experiences with
imported pests and diseases harming their crops. Now APHIS is proposing
to streamline its regulations which we believe effectively relax its
standards. And, all this comes at a time when imports are outpacing our
exports. In 1995 the fruit, vegetable and tree nut industry enjoyed a
\$600 million trade surplus, but in 2005 we experienced a deficit of
\$2.3 Billion. More imports, more pests. More pests, more harm. It's
that simple and it is proof that APHIS' pest risk analysis and
mitigation procedures do not always work. We think these especially true
concerning exports from lesser and least developed countries. This is
the situation we are facing, and that is why we are opposed to this
proposed rule.

Even if APHIS believes it's proposal will not change its practices in
enforcing the law with the same standards, it is clear APHIS'
sophisticated risk analyses, demanding regimens, and mitigation
requirements have not prevented the introduction of some of the world's
most devastating pests and diseases into Florida and other border
states. Substantively, the Proposed Rule does not make the case that the
proposed changes are required or even needed to meet a demonstrable
problem. Certainly, streamlining the regulations, updating outmoded
sections, and the like are warranted and we support that effort. What is
not warranted is any change that is

Docket Clerk

Regulatory Analysis and Development, PPD

Animal and Plant Health Inspection Service, Station 3A-03.8

Re: Docket No. APHIS---2005-0106

prompted by a claim or claims that APHIS' prior regulatory scheme, based
on sound science, is somehow a non-tariff trade barrier. To respond to
these unwarranted claims and to statements that requests to export our
products to these countries would receive better and more prompt
treatment if we expedited our process is a not-so-subtle form of
blackmail. Just because such comments have been made does not mean that
APHIS must respond to them.

And, we see a fundamental flaw in the reasoning underlying the Proposed
Rule. APHIS continues to assume that every foreign country's plant pest
and disease protection organization is similar or equivalent to every
other country's organization, that the pests and diseases there are the
same or similar and can be addressed with similar or equivalent
mitigation practices, and that even the country itself is similar to
others. This allows APHIS to generalize the risks involved and prescribe
a mitigation plan to be employed by the foreign country's plant
protection organization. But, APHIS fails to analyze correctly the risks
associated with such country's plant protection regime, including
resources available, both money and staff, and past experience with that
organization. Clearly some country's plant pest organizations are more
able than others to prevent plant pests and diseases on exports of
fruits and vegetables to the U.S. But, APHIS appears not willing to
quantify the varying levels of risks of each country's ability to
enforce and monitor mitigation requirements and APHIS oversight cannot
meet the needs to provide oversight because of all the programs that are
in place around the world, most of which are in hard to reach locations.
The result is that the system of regulating pests and diseases on
imports of fruits and vegetables from countries around the world is
strained at best and calls to hasten the review of requests to export to
the U.S. will only further stretch the system. The bottom line is that
some countries can handle well the mitigation requirements imposed by
APHIS and some cannot. With more requests being processed faster, there
will be a greater need for APHIS to refine its risk assessments and
provide greater oversight. There will also be a greater need for
additional APHIS staff to monitor the imports and the conditions imposed
on these imports by APHIS involved in the 400 plus requests now pending
with APHIS. Assuming most of these requests are fast-tracked and the
commodities start to enter the U.S., it appears APHIS does not have the
staff to monitor whether its conditions are being adhered to. In the
alternative, APHIS should consider seriously at a minimum prohibiting
shipments of fruits and vegetables into states like Florida that have
crops that are highly susceptible to infestation by pest and diseases
from exports from countries which do not have equivalent plant pest
agencies.

We rely on APHIS to ensure the letter and spirit of the Plant Pest Act
and its implementing regulations. We are concerned the proposed
regulations are motivated primarily by the concerns raised by our
trading partners who seek a quicker review of their requests for
expansion of shipments of their fruits and vegetables into the U.S. We
are concerned that the views of the stakeholders --those growers who
will be harmed if the proposed revisions do not perform as
promised---were not solicited during the four year development of the
Proposed Rule. We are concerned that a sixty-day comment period is
clearly inadequate to allow us and others to review an admittedly
complicated proposal with experts in the industry and at the
Universities. This is particularly true during the summer months when
experts and industry leaders are away from their offices. We are also
concerned that significant parts of the Proposed Rule are vague,
confusing, and/or ill-defined. Our specific comments are provided below.

Docket Clerk

Regulatory Analysis and Development, PPD

Animal and Plant Health Inspection Service, Station 3A-03.8

Re: Docket No. APHIS---2005-0106

This proposal changes the way APHIS does business in a wholesale
manner.  While everyone in the industry is likely to support all of the
minor adjustments and technical amendments, most are uncertain about the
substantive changes.  That is why a number of organizations have sought
an extension of time to work with knowledgeable individuals in their
industries and with professors and research scientists who work with the
growers.  A sixty day comment period even with field hearings is
insufficient on its face.  We think the comment period should be
extended for an additional sixty days.  After all, APHIS had several
years to prepare this proposal.

 

For decades APHIS has operated under the Plant Pest Act and the Plant
Quarantine Act and their successor laws and regulations, using sound
science as the basis for its actions.  Notwithstanding statements that
this will remain the case, it is unclear to many that the notice-based
and regulatory approaches proposed will in fact not increase protection
for U.S. growers and likely will increase the risk of infestation of
U.S. crops from pests and diseases entering the U.S. based on this
proposal.

 

We question the need for such changes.  During the multi-year run-up to
this proposal APHIS was not transparent with its major
stakeholders-growers.  In fact, APHIS has been quite secretive about
this proposal and with other proposals such as the CAFTA-DR proposals,
seeking input from growers only after the proposal had been published in
the Federal Register.  On top of this, are the comments made by senior
APHIS officials at the field hearings and at other meetings stating that
the primary or at least an important reason for proceeding with this
proposal is because of pressure brought to bear on them by some of our
trading partners.  The officials says these trading partners threaten to
hold up our exports to these countries until we expedite their requests
to expand shipments to the U.S.  For example, one senior APHIS official
noted at a Field Hearing that this proposal \"would remove rulemaking as
a non-technical barrier to trade.\"  Does this mean that APHIS admits it
has been in violation of WTO rules for many years?  Or does it mean that
APHIS has been taken actions which were in compliance with WTO standards
because they were based on sound science, but now will relax their
regulations and not be compliance with WTO regulations or with sound
scientific principles?  Either way, we believe taking any action based
on pressure from other countries at a minimum is suspect and those
affective should be wary of what\'s is being proposed.  The same APHIS
official stated that \"we have the hope that our speedier processing of
import requests will lead to reciprocal action on our exports.\" 
Another senior APHIS official said one of our trading partners said,
\"we\'ll consider yours \[requests\] as soon as you consider ours.\" 
An, another APHIS official stated, \"like it or not, imports are linked
with exports.\" 

 

It\'s fair to conclude from the foregoing that this proposal, developed
without the input of the grower community, was in fact prompted by and
based on the threats of some of our trading partners and APHIS
improperly determined as policy that it should respond.  We believe that
such a response is in no way part of APHIS\' mission and it is the wrong
response in many ways.  APHIS should respond to such claims as they have
in the past, that sound science would be the only basis for determining
whether to approve a proposal or not.  Now, international politics are
influencing APHIS\'s decisions and actions.  APHIS must respond to these
foreign countries that

Docket Clerk

Regulatory Analysis and Development, PPD

Animal and Plant Health Inspection Service, Station 3A-03.8

Re: Docket No. APHIS---2005-0106

it will not take any action on their requests until they show by actions
that they are timely processing our request to export there using only
sound science as the basis for their decision.

Assuming APHIS proceeds with this proposal and expedites consideration
of foreign government\'s requests for expansion of their exports to the
U.S., and then APHIS must demand real reciprocity.  Not to require this
would be a grave mistake with potentially disastrous effects on our
exports and on our imports.  If APHIS does not include such a provision,
the entire proposal should be withdrawn.

 

There is no question that APHIS\'s expedited processing of requests to
expand shipments to the U.S. will directly cause the increase of
shipment of fruits and vegetables to the U.S. sooner than later,
adumbrating a sooner rather later increase in the risks of infesting
U.S. fruit and vegetable crops.  It is a fact that fruit and vegetable
imports have risen steadily and much faster than our exports.  For the
period from 2001-2005 fruit and vegetable imports rose 47% and the value
of our exports rose 19%.  Clearly, more imports mean more risk for our
growers.  And, mostly the increase is coming from lesser and least
developed countries.  Do we know if each of the countries granted
increased access to the U.S. has an equivalent/reciprocal process in
fact, not rhetoric, as that being proposed.  We doubt it, and we suggest
that this information be provided when APHIS responds to questions when
it publishes its final Rule.  Given the broad latitude APHIS has given
itself, we see no way any comment will delay APHIS\' rush to accommodate
foreign interests to the detriment of U.S. growers.  Notwithstanding
APHIS\' strict adherence to WTO\'s standard that the plant pest regimes
in every WTO\'s members\' country is equivalent to every other
country\'s regime we know, on-the-ground, in practice and in fact, that
this is not the reality.  Some are better than others. Generally,
developed countries\' regimes are more able to implement mitigation
requirements than lesser develop and least developed countries, and
those countries are the majority of the countries that have submitted
the 400 requests to ship fruits and vegetables into the U.S. And, this
difference is not accounted for, nor is it even recognized, in this
proposal, again to the immediate and direct detriment to U.S. growers.

 

Based on our assumption that the plant pest regimes, especially in
lesser and least developed countries, are not equivalent to the U.S. and
other developed regimes and even to other lesser and least developed
countries, expediting requests from these countries in the notice
process, APHIS must fully consider the actual state if the country\'s
plant pest regime, its resources, its personnel, expertise, and
experience and devise conditions that will prevent the shipments of
harmful plant pests and diseases into the U.S.  Stating the conditions
will work and that APHIS will monitor the implementation is not
sufficient to protect U.S. fruit and vegetable growers.  APHIS\'
assurances, without proof, are not enough to justify this proposal. 
More specifically, we do not think that a notice-based approval process
even with some conditions is satisfactory unless the country in
question\'s plant pest protection agency has the on-the-ground
resources, experience, staff, capability and willingness to do the work
to prevent pests and diseases from traveling on or with the commodity in
issue. And, such a decision should be justified in writing and subject
to review by the stakeholders as part of the Pest Risk Analysis (PRA). 
We believe such an analysis is at the heart of what APHIS should be
doing in any review of any country\'s request to expand shipments to the
U.S.

Docket Clerk

Regulatory Analysis and Development, PPD

Animal and Plant Health Inspection Service, Station 3A-03.8

Re: Docket No. APHIS---2005-0106

 

APHIS\' mission is not to respond to foreign countries\' false claims,
or to increase the supply of foreign commodities or to increase the
variety of commodities to the U.S.  APHIS\' mission is principally to
prevent the introduction of plant pests and diseases into the U.S. We
believe the justifications provided by APHIS do not support a shortened
notice-procedure and, more importantly, will not improve the protection
of U.S. growers. We are concerned and we believe this proposal will
place U.S. growers in greater jeopardy faster by increasing imports
faster and thereby increasing the risk of infestations. Preventing
stakeholders from commenting in a meaningful manner and in a timely
fashion violates the Administrative Procedures Act of 1946.

APHIS must be more open and more transparent in its effort to protect
U.S. crops. APHIS should: publish in the Federal Register or on its
website each request it has received and receives to expand shipments to
the U.S, including specifically when a country declares an area in that
country as pest-free; and, include specific country work plans in the
pest risk analysis (PRA) and provide all this information to its
stakeholders and allow for comments during the PRA stage and before it
is published for comment in the Federal Register; and require, as
previously noted, countries to document the resources, staff, and
technical experience needed to ensure APHIS' conditions are fully
complied with and provide such information to U.S. stakeholders in the
PRA process.

We are concerned about the notice-based process and the arbitrary manner
in which APHIS has chosen to include some conditions it deems acceptable
to allow commodities to be the beneficiary of this expedited process. No
explanation or justification is provided, thereby making the process
subjective, not objective. More importantly, using this approach is
based on a presumption, discussed above, that the foreign plant pest
protection agency is equivalent to the U.S. plant pest protection
agency, and APHIS, without any factual basis that this is the case makes
a decision based on this unfounded supposition. If a country's plant
pest protection agency is not capable of handling the conditions imposed
by APHIS in the notice-based proposal, then this process should not be
made available to expedite the review of that country's request. And, we
strongly believe that there are a number of countries that due to lack
of resources, lack of staff, etc. cannot at this time fully and
completely implement these conditions. This must be considered.

Criteria for notice-based reviews include phytosanitary certificates, a
certificate of origin, approved post-harvest treatments, port-of-entry
inspections and possibly a commercial shipment requirement. The first
three criteria are dependent on the actions made by the foreign
country's plant pest agency. While an agency can issue a certificate of
origin or a phytosanitary certificate, without proof that the agency is
in fact fully and completely meeting these conditions, independently
verified, in some cases, APHIS should not use the expedited,
notice-based process. And, we strongly urge that in any case, there must
be reciprocity with any country making a request to expand shipments to
the U.S. before any consideration of the request is granted and that
must be part of any rule concerning import requests.

Docket Clerk

Regulatory Analysis and Development, PPD

Animal and Plant Health Inspection Service, Station 3A-03.8

Re: Docket No. APHIS---2005-0106

In summary, we support APHIS' efforts to update, better organize, and
otherwise fix the minor issues that arise over time. However, we do not
believe APHIS is justified in relaxing its regulations to allow for
notice-based rulemaking. And, by taking this step, we believe APHIS has
exceeded its authority. We do not see this proposal as addressing any
real need and it will not make U.S. fruit and vegetable less susceptible
to increased risks from increased imports. In fact, we think we will be
more susceptible than ever with these proposed rules. We are suspicious
of any proposal that is developed without input from U.S. growers and is
based on spurious claims that the existing APHIS regulations are somehow
non-tariff trade barriers.

We believe the proposed regulations should include grower participation
in the Pest Risk Analysis process and that U.S. growers be notified of
requests being made to expand shipments into the U.S. We seek changes to
these regulations to require APHIS to fully document each country's
ability to fully and really implement all conditions required of it
before a request is granted and we demand that APHIS include in these
regulations its position that it will not consider any requests unless
and until that country has in place and in practice an expedited process
as proposed for APHIS. Lastly, we ask APHIS to reconsider its position
against granting an extension of 60 to 90 days so that the regulations
and their implications can be reviewed by industry experts who have been
mostly unavailable do to the timing of the publication of this proposed
rule.

If the changes we propose are not adopted, respectfully we ask you to
withdraw this proposal as not in the best interests of U.S. fruit and
vegetable growers.

Sincerely yours,

![](media/image1.png){width="2.2in" height="0.7972222222222223in"}

Reginald L. Brown

Executive Vice President

Florida Tomato Growers Exchange