[Federal Register Volume 76, Number 50 (Tuesday, March 15, 2011)]
[Proposed Rules]
[Pages 13892-13896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5963]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2010-0020]
RIN 0579-AD33


Importation of Tomatoes With Stems From the Republic of Korea 
Into the United States

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the fruits and vegetables 
regulations to allow, under certain conditions, the importation into 
the United States of commercial consignments of tomatoes with stems 
from the Republic of Korea. The conditions for the importation of 
tomatoes with stems from the Republic of Korea include requirements for 
pest exclusion at the production site, fruit fly trapping inside and 
outside the production site, and pest-excluding packinghouse 
procedures. The tomatoes would also be required to be accompanied by a 
phytosanitary certificate issued by the national plant protection 
organization of the Republic of Korea with an additional declaration 
confirming that the tomatoes had been produced in accordance with the 
proposed requirements. This action would allow for the importation of 
tomatoes with stems from the Republic of Korea while continuing to 
provide protection against the introduction of injurious plant pests 
into the United States.

DATES: We will consider all comments that we receive on or before May 
16, 2011.

ADDRESSES: You may submit comments by either of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2010-0020 to submit or view comments and 
to view supporting and related materials available electronically.
    <bullet> Postal Mail/Commercial Delivery: Please send one copy of 
your comment to Docket No. APHIS-2010-0020, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2010-0020.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in Room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Phillip B. Grove, Regulatory 
Coordination Specialist, Regulatory Coordination and Compliance, PPQ, 
APHIS, 4700 River Road Unit 156, Riverdale, MD 20737; (301) 734-6280.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-50, referred to below as the regulations) 
prohibit or restrict the importation of fruits and vegetables into

[[Page 13893]]

the United States from certain parts of the world to prevent the 
introduction and dissemination of plant pests.
    The national plant protection organization (NPPO) of the Republic 
of Korea (South Korea) has requested that the Animal and Plant Health 
Inspection Service (APHIS) amend the regulations to allow fresh 
tomatoes with stems (Solanum lycopersicum L.) (synonym: Lycopersicon 
esculentum P. Mill.) to be imported into the United States. As part of 
our evaluation of South Korea's request, we prepared a pest risk 
assessment (PRA) and a risk management document (RMD). Copies of the 
PRA and RMD may be obtained from the person listed under FOR FURTHER 
INFORMATION CONTACT or viewed on the Regulations.gov Web site or in our 
reading room (see ADDRESSES above for a link to Regulations.gov and 
information on the location and hours of the reading room).
    The PRA, titled ``Importation of Fresh Tomato Fruit with Stems 
(Solanum lycopersicum L.) (Synonym: Lycopersicon esculentum P. Mill.) 
from the Republic of Korea into the United States'' (July 2010), 
evaluates the risks associated with the importation of fresh tomatoes 
with stems into the United States from South Korea.
    The PRA and supporting documents identified eight pests of 
quarantine significance present in South Korea that could be introduced 
into the United States through the importation of fresh tomatoes with 
stems. These include one fruit fly (Bactrocera depressa); four moths 
(Heliocoverpa armigera, Heliocoverpa assulta, Mamestra brassicae, and 
Ostrinia furnacalis); two thrips (Scirtothrips dorsalis and Thrips 
palmi); and a pathogen (Ralstonia solanacearum race 3 biovar 2).
    Although R. solanacearum race 3 biovar 2 was evaluated in the PRA 
as a pest of quarantine significance, we believe there is a low 
likelihood of the pathogen becoming introduced into the United States 
through the importation of fresh tomatoes with stems from South Korea. 
Currently, APHIS permits the importation of tomatoes and peppers for 
consumption from countries where R. solanacearum race 3 biovar 2 is 
known to occur. To date, no known introductions of R. solanacearum race 
3 biovar 2 have occurred as a result of these importations. This 
supports the conclusion that even if R. solanacearum race 3 biovar 2 
entered with fruit, there is a low likelihood of establishment. 
Therefore, we are proposing to allow the entry of fresh tomatoes with 
stems from South Korea into the United States subject to a port of 
entry inspection for R. solanacearum race 3 biovar 2.
    APHIS has determined that measures beyond standard port-of-arrival 
inspections are required to mitigate the risks posed by the plant pests 
other than R. solanacearum race 3 biovar 2. Therefore, we are proposing 
to allow the importation of fresh tomatoes with stems from South Korea 
into the United States only if the tomatoes are produced under a 
systems approach. The systems approach would require that the tomatoes 
be grown in registered pest-exclusionary structures, would require 
trapping and monitoring inside and outside the pest-exclusionary 
structures for B. depressa, and would require packinghouse procedures 
designed to exclude the quarantine pests. Consignments of tomatoes with 
stems from South Korea would also be required to be accompanied by a 
phytosanitary certificate with an additional declaration stating that 
the tomatoes were grown in approved pest-exclusionary structures and 
were inspected and found free from quarantine pests of concern to the 
United States.

Registered Pest-Exclusionary Structures

    The tomatoes would have to be grown in pest-exclusionary structures 
that are registered with the NPPO of South Korea. The NPPO of South 
Korea and APHIS would have to jointly approve the pest-exclusionary 
structures. The pest-exclusionary structures would have to be equipped 
with double self-closing doors to prevent inadvertent introduction of 
pests into the pest-exclusionary structures. In addition, any vents or 
openings in the pest-exclusionary structures (other than the double 
self-closing doors) would have to be covered with screening 1.6 mm or 
smaller in order to prevent the entry of pests into the pest-
exclusionary structure. The 1.6 mm maximum screening size is adequate 
to exclude most insect pests of quarantine significance named earlier 
in this docket. Although the thrips species are small enough to pass 
through the screening, they are at least partially discouraged by the 
physical barrier of the 1.6 mm mesh and the resultant reduced velocity 
of wind currents upon which they are borne. In addition, because thrips 
are external feeders, they would most likely be detected during 
inspection of the tomato fruit before shipment.
    We would require that the pest-exclusionary structures be inspected 
monthly throughout the growing season (the months of March through 
November) by the NPPO of South Korea or its approved designee to ensure 
that phytosanitary and trapping procedures are employed to exclude 
plant pests and to verify that the screening is intact.

Trapping

    Trapping for B. depressa would be required both inside and outside 
the pest-exclusionary structures. Trapping would have to begin at least 
2 months prior to the start of harvest and continue for the duration of 
the harvest. Both inside and outside traps would have to be serviced 
once per week.
    APHIS-approved traps, with an APHIS-approved protein bait, would 
have to be placed inside the pest-exclusionary structures at a density 
of at least two traps per pest-exclusionary structure as well as within 
a 500-meter-wide buffer area around the registered pest-exclusionary 
structure at a density of one trap per 10 hectares. During the growing 
season at least one trap would have to be in the buffer area near each 
pest-exclusionary structure.
    If a single B. depressa is found in a trap inside a pest-
exclusionary structure, the NPPO of South Korea would have to 
immediately prohibit that pest-exclusionary structure from exporting 
tomatoes to the United States and notify APHIS of the action. The 
prohibition would remain in effect until the NPPO of South Korea and 
APHIS agree that the risk has been mitigated. If three B. depressa are 
found inside the buffer zone within 2 kilometers of each other within a 
30-day period, the NPPO of South Korea would have to immediately 
prohibit all registered pest-exclusionary structures within 2 
kilometers of the finds from exporting tomatoes to the United States 
and notify APHIS of the action. The prohibition would remain in effect 
until the NPPO of South Korea and APHIS agree that the risk has been 
mitigated.
    The manager of the pest-exclusionary structure would have to 
maintain records of trap placement, trap servicing, and fruit fly 
captures for at least 1 year and must report on the trapping program 
and provide copies of trapping records to the NPPO of South Korea each 
month. These trapping records would have to be made available to APHIS 
for review upon request.

Packinghouse Procedures

    The tomatoes would have to be packed within 24 hours of harvest in 
a pest-exclusionary packinghouse. While packing the tomatoes for export 
to the United States, the packinghouse would only be allowed to accept 
tomatoes from registered pest-exclusionary structures. A random sample 
of fruit per lot, as determined by the NPPO of South Korea and agreed 
to by APHIS, would have to

[[Page 13894]]

be inspected for external pests and the fruit cut to reveal internal 
pests. Each sample would have to be of a size sufficient to detect pest 
infestations. Inspection of cut fruit is effective at detecting fruit 
flies, such as B. depressa. Any damaged, diseased, or infested fruit 
would have to be removed and separated from the commodity destined for 
export to the United States. The tomatoes would have to be safeguarded 
by an insect-proof mesh, screen, or plastic tarpaulin while in transit 
from the production site to the packinghouse and while awaiting 
packing.
    The tomatoes would have to be packed for shipment to the United 
States in insect-proof cartons or containers, or covered with insect-
proof screen or plastic tarpaulin. These safeguards would have to 
remain intact until the arrival of the tomatoes in the United States or 
the consignment would not be allowed to enter the United States.

Commercial Consignments

    Only commercial consignments of tomatoes with stems from South 
Korea would be allowed to be imported into the United States. Produce 
grown commercially is less likely to be infested with plant pests than 
noncommercial consignments. Noncommercial consignments are more prone 
to infestations because the commodity is often ripe to overripe, could 
be of a variety with unknown susceptibility to pests, and is often 
grown with little or no pest control. Commercial consignments, as 
defined in Sec.  319.56-2, are consignments that an inspector 
identifies as having been imported for sale and distribution. Such 
identification is based on a variety of indicators, including, but not 
limited to: Quantity of produce, type of packing, identification of 
grower or packinghouse on the packaging, and documents consigning the 
fruits or vegetables to a wholesaler or retailer.

Phytosanitary Certificate

    To certify that the tomatoes have been produced in accordance with 
the mitigations described in this document, we would require that each 
consignment of tomatoes be accompanied by a phytosanitary certificate 
of inspection issued by the NPPO of South Korea bearing an additional 
declaration that reads ``Tomatoes in this consignment were grown in 
pest-exclusionary structures in accordance with 7 CFR 319.56-51 and 
were inspected and found free of Bactrocera depressa, Helicoverpa 
armigera, Helicoverpa assulta, Mamestra brassicae, Ostrinia furnacalis, 
Scirtothrips dorsalis, and Thrips palmi.''
    These proposed provisions governing the importation of fresh 
tomatoes with stems from South Korea would be added to the regulations 
as a new Sec.  319.56-51.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed 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).
    South Korea expects to export one 40-foot shipping container of 
fresh tomatoes with stems per year to the United States. A shipping 
container can hold about 25 metric tons (MT) of tomatoes with stems. In 
2009, the United States produced 1.47 million MT of tomatoes, U.S. 
imports reached 1.19 million MT, and U.S. exports were 0.17 million MT. 
Thus, the total U.S. supply of tomatoes for this period was 
approximately 2.49 million MT (production plus imports minus exports). 
This quantity greatly dwarfs the relatively small amount that is 
expected to be imported from South Korea. Therefore, while the majority 
of domestic tomato farms are small, the impact of the proposed tomato 
imports from South Korea would be negligible.
    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 proposed rule would allow fresh tomatoes with stems to be 
imported into the United States from South Korea. If this proposed rule 
is adopted, State and local laws and regulations regarding fresh 
tomatoes with stems 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 proposed 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 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. APHIS-
2010-0020. Please send a copy of your comments to: (1) Docket No. 
APHIS-2010-0020, Regulatory Analysis and Development, PPD, APHIS, 
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, 
and (2) Clearance Officer, OCIO, 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 amend the fruits and vegetables regulations to 
allow, under certain conditions, the importation into the United States 
of commercial shipments of tomatoes with stems from the Republic of 
Korea. The conditions for the importation of tomatoes with stems from 
the Republic of Korea include requirements for pest exclusion at the 
production site, fruit fly trapping inside and outside the production 
site, and pest-excluding packinghouse procedures. The tomatoes would 
also be required to be accompanied by a phytosanitary certificate 
issued by the national plant protection organization of the Republic of 
Korea with an additional declaration confirming that the tomatoes had 
been produced in accordance with the proposed requirements. This action 
would allow for the importation of tomatoes with stems from the 
Republic of Korea while continuing to provide protection against the 
introduction of injurious plant pests into the United States.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's

[[Page 13895]]

functions, including whether the information will have practical 
utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed 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 2 hours per response.
    Respondents: Foreign officials.
    Estimated annual number of respondents: 2.
    Estimated annual number of responses per respondent: 1.5.
    Estimated annual number of responses: 3.
    Estimated total annual burden on respondents: 6 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
851-2908.

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 proposed 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 propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    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.

    2. A new Sec.  319.56-51 is added to read as follows:


Sec.  319.56-51  Tomatoes with stems from the Republic of Korea.

    Fresh tomatoes with stems (Solanum lycopersicum L.) (Synonym: 
Lycopersicon esculentum P. Mill.) may be imported into the United 
States from the Republic of Korea only under the conditions described 
in this section. These conditions are designed to prevent the 
introduction of the following quarantine pests: Bactrocera depressa, 
Heliocoverpa armigera, Heliocoverpa assulta, Mamestra brassicae, 
Ostrinia furnacalis, Scirtothrips dorsalis, and Thrips palmi.
    (a) Registered pest-exclusionary structures. The tomatoes must be 
grown in pest-exclusionary structures that are registered with the 
national plant protection organization (NPPO) of the Republic of Korea 
and approved by the NPPO of the Republic of Korea and APHIS.
    (1) The pest-exclusionary structures must be equipped with double 
self-closing doors.
    (2) Any vents or openings in the pest-exclusionary structures 
(other than the double self-closing doors) must be covered with 1.6 mm 
or smaller screening in order to prevent the entry of pests into the 
pest-exclusionary structures.
    (3) The pest-exclusionary structures must be inspected monthly 
throughout the growing season (March through November) by the NPPO of 
the Republic of Korea or its approved designee to ensure that 
phytosanitary procedures are employed to exclude plant pests and 
diseases and to verify that the screening is intact.
    (b) Trapping for Bactrocera depressa. Trapping for B. depressa is 
required both inside and outside the pest-exclusionary structures. 
Trapping must begin at least 2 months prior to the start of harvest and 
continue until the end of harvest.
    (1) Inside the pest-exclusionary structures. APHIS-approved traps 
with an APHIS-approved protein bait must be placed inside the pest-
exclusionary structures at a density of at least two traps per pest-
exclusionary structure. The traps must be serviced at least once per 
week. If a single B. depressa is captured in a trap inside a pest-
exclusionary structure, the NPPO of the Republic of Korea will 
immediately prohibit that pest-exclusionary structure from exporting 
tomatoes to the United States and notify APHIS of the action. The 
prohibition will remain in effect until the NPPO of the Republic of 
Korea and APHIS agree that the risk has been mitigated.
    (2) Outside the pest-exclusionary structures. APHIS-approved traps 
with an approved protein bait must be placed in a 500-meter-wide buffer 
area around the registered pest-exclusionary structure at a density of 
one trap per 10 hectares. During the months of March through November, 
at least one trap must be placed in the buffer area near each pest-
exclusionary structure. The traps must be serviced at least once per 
week. If three B. depressa are found inside the buffer zone within 2 
kilometers of each other within a 30-day period, the NPPO of the 
Republic of Korea will immediately prohibit all registered pest-
exclusionary structures within 2 kilometers of the finds from exporting 
tomatoes to the United States and notify APHIS of the action. The 
prohibition will remain in effect until the NPPO of the Republic of 
Korea and APHIS agree that the risk has been mitigated.
    (3) Records of trap placement, trap servicing, and fruit fly 
captures for each pest-exclusionary structure must be kept for at least 
1 year and trapping records provided to the NPPO of the Republic of 
Korea each month. The NPPO of the Republic of Korea must make the 
records available to APHIS for review upon request.
    (c) Packinghouse procedures. The tomatoes must be packed within 24 
hours of harvest in a pest-exclusionary packinghouse. During the time 
the packinghouse is in use for exporting tomatoes to the United States, 
the packinghouse may only accept tomatoes from registered pest-
exclusionary structures. A random sample of fruit per lot, as 
determined by the NPPO of the Republic of Korea and agreed to by APHIS, 
must be inspected for external pests and the fruit must be cut to 
reveal internal pests. Each sample must be of sufficient size in order 
to detect pest infestations. Any damaged, diseased, or infested fruit 
should be removed and separated from the commodity destined for export. 
The tomatoes must be safeguarded by an insect-proof mesh, screen, or 
plastic tarpaulin while in transit from the production site to the 
packinghouse and while awaiting packing. The tomatoes must be packed in 
insect-proof cartons or containers, or covered with insect-proof mesh 
or plastic tarpaulin, for transit to the United States. These 
safeguards must remain intact until the arrival of the tomatoes in the 
United States or the consignment will not be allowed to enter the 
United States.

[[Page 13896]]

    (d) Commercial consignments. Tomatoes with stems from the Republic 
of Korea may be imported in commercial consignments only.
    (e) Phytosanitary certificate. Each consignment of tomatoes must be 
accompanied by a phytosanitary certificate of inspection issued by the 
NPPO of the Republic of Korea bearing the following additional 
declaration: ``Tomatoes in this consignment were grown in pest-
exclusionary structures in accordance with 7 CFR 319.56-51 and were 
inspected and found free from Bactrocera depressa, Heliocoverpa 
armigera, Heliocoverpa assulta, Mamestra brassicae, Ostrinia 
furnacalis, Scirtothrips dorsalis, and Thrips palmi.''

    Done in Washington, DC, this 9th day of March 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-5963 Filed 3-14-11; 8:45 am]
BILLING CODE 3410-34-P