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[Federal Register Volume 76, Number 197 (Wednesday, October 12, 2011)]
[Rules and Regulations]
[Pages 63149-63151]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26345]

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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

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Federal Register / Vol. 76, No. 197 / Wednesday, October 12, 2011 / 
Rules and Regulations

[[Page 63149]]

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: Final rule.

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SUMMARY: We are amending 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 will 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 will 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 have been produced in accordance with the requirements. This 
action will 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: Effective Date: November 14, 2011.

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 319.56-51, 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.
    On March 15, 2011, we published in the Federal Register (76 FR 
13892-13896, Docket No. APHIS-2010-0020) a proposal \1\ to amend the 
regulations to allow the importation of commercial consignments of 
tomatoes with stems from the Republic of Korea (South Korea) into the 
United States if produced under a systems approach. The proposed 
systems approach included requirements for pest-exclusionary 
structures, trapping and monitoring inside and outside the pest-
exclusionary structures for the fruit fly Bactrocera depressa, and 
packinghouse procedures designed to exclude the quarantine pests. We 
further proposed to require that consignments of tomatoes with stems 
from South Korea 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.
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    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2010-0020.
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    We solicited comments concerning our proposal for 60 days ending 
May 16, 2011. We received six comments by that date. They were from 
private citizens and a State department of agriculture. Four commenters 
supported the proposed rule. Two commenters were opposed to the 
proposed rule.
    One of these commenters stated their opposition to the proposed 
rule because the climate and crop production systems of the commenter's 
State would likely be favorable to many pests that could be imported 
with tomatoes from South Korea.
    We have determined, for the reasons described in the risk 
management document (RMD) that accompanied the proposed rule, that the 
measures specified in the RMD will effectively mitigate the risk 
associated with the importation of tomatoes with stems from South 
Korea. The commenter did not provide any evidence suggesting that the 
mitigations are not effective. Therefore, we are not taking the action 
requested by the first commenter.
    The other commenter expressed concern regarding the possibility 
that the South Korean national plant protection organization (NPPO) 
could falsify phytosanitary certificates, which could lead to pest 
introductions that would put U.S. farmers out of business.
    South Korea is a signatory to the International Plant Protection 
Convention (IPPC), like the United States. As a signatory to the IPPC, 
one of South Korea's responsibilities is to issue phytosanitary 
certificates with accurate and complete information. We have no reason 
to doubt that South Korea will do this.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
on the Regulations.gov Web site (see footnote 1 in this document for a 
link to Regulations.gov) or by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    This final rule amends the regulations to allow, under certain 
conditions, the importation into the continental United States of fresh 
tomatoes with stems from the Republic of Korea (South Korea). APHIS has 
concluded, based on a pest risk analysis, that a systems approach will 
mitigate the risk associated with importing this fruit.
    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

[[Page 63150]]

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.
    We also note that the average price of tomatoes exported from South 
Korea in 2009 was $2,447 per MT, compared to an average price of U.S. 
tomato imports of less than half that amount, $1,180 per MT. This large 
price difference implies that tomato imports from South Korea may not 
be widely competitive in the United States; South Korean exporters may 
intend to target U.S. specialty vegetable markets or certain ethnic 
consumer groups with special preference for Korean tomatoes with stems 
if they expect to earn prices comparable to South Korea's average 2009 
export price level.
    Farms producing tomatoes in open fields are classified within the 
North American Industry Classification System under ``Other vegetable 
(except potato) and melon farming'' (NAICS 111219). Farms producing 
tomatoes in greenhouses are classified under ``Other food crops grown 
under cover'' (NAICS 111419). For both industry classifications, a 
business is considered to be a small entity if its annual receipts are 
not more than $750,000.
    The average market value of crops sold by farms classified within 
``Other vegetable (except potato) and melon farming'' in 2007 was 
$312,333. We infer that the majority of the 25,809 farms that produced 
tomatoes in open fields that year were small. The average market value 
of crops sold by farms classified within ``Food crops grown under 
cover'' (NAICS 11141) in 2007 was $758,687. We infer that at least some 
of the 2,926 farms that produced tomatoes in greenhouses were small 
entities. While the majority of tomato farms are small, the impact of 
importation of tomatoes with stems from South Korea will be negligible.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This final rule allows tomatoes with stems to be imported into the 
United States from the Republic of Korea. State and local laws and 
regulations regarding tomatoes imported under this rule will be 
preempted while the fruit is in foreign commerce. Fresh fruits are 
generally imported for immediate distribution and sale to the consuming 
public, and remain in foreign commerce until sold to the ultimate 
consumer. The question of when foreign commerce ceases in other cases 
must be addressed on a case-by-case basis. No retroactive effect will 
be given to this rule, and this rule will not require administrative 
proceedings before parties may file suit in court challenging this 
rule.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0371.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 851-2908.

List of Subjects in 7 CFR Part 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

    Accordingly, we are amending 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

    Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 
and 136a; 7 CFR 2.22, 2.80, and 371.3.

0
2. A new Sec.  319.56-52 is added to read as follows:

Sec.  319.56-52  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

[[Page 63151]]

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.
    (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 319.56-52 and were 
inspected and found free from Bactrocera depressa, Heliocoverpa 
armigera, Heliocoverpa assulta, Mamestra brassicae, Ostrinia 
furnacalis, Scirtothrips dorsalis, and Thrips palmi.''

(Approved by the Office of Management and Budget under control 
number 0579-0371)

    Done in Washington, DC, this 5th day of October 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-26345 Filed 10-11-11; 8:45 am]
BILLING CODE 3410-34-P
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