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

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REGISTER issue of each week.

Rules and Regulations Federal Register

34781 

Vol. 77, No. 113 

Tuesday, June 12, 2012 

1To view the proposed rule, the pest risk 

analysis, and the comments we received, go to 

http://www.regulations.gov/ 

#!docketDetail;D=APHIS–2011–0012. 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 319 

[Docket No. APHIS–2011–0012] 

RIN 0579–AD48 

Importation of Tomatoes From the 

Economic Community of West African 

States Into the Continental United 

States 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending the fruits 

and vegetables regulations to allow the 

importation of tomatoes from the 

member States of the Economic 

Community of West African States 

(ECOWAS) into the continental United 

States. As a condition of entry, tomatoes 

from the ECOWAS will be subject to a 

systems approach that includes 

requirements for pest exclusion at the 

production site, fruit fly trapping and 

monitoring, and procedures for packing 

the tomatoes. The tomatoes will also be 

required to be accompanied by a 

phytosanitary certificate issued by the 

national plant protection organization of 

the exporting country with an 

additional declaration that the tomatoes 

have been produced in accordance with 

these requirements. This action will 

allow for the importation of tomatoes 

from the ECOWAS into the continental 

United States while continuing to 

provide protection against the 

introduction of quarantine pests. 

DATES: Effective Date: July 12, 2012. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Tony Roma ́n, Import Specialist, Plant 

Protection and Quarantine, APHIS, 4700 

River Road, Unit 133, Riverdale, MD 

20737–1236; (301) 851–2242. 

SUPPLEMENTARY INFORMATION: 

Background 

The regulations in ‘‘Subpart–Fruits 

and Vegetables’’ (7 CFR 319.56–1 

through 319.56–56, referred to below as 

the regulations) prohibit or restrict the 

importation of fruits and vegetables into 

the United States from certain parts of 

the world to prevent the introduction 

and dissemination of plant pests that are 

new to or not widely distributed within 

the United States. Section 319.56–28 of 

the regulations contains administrative 

instructions allowing the importation of 

tomatoes from various countries where 

the Mediterranean fruit fly (Medfly, 

Ceratitis capitata) is present. 

On August 2, 2011, we published in 

the Federal Register (76 FR 46209– 

46212, Docket No. APHIS–2011–0012) a 

proposal 1 to amend the regulations by 

allowing tomatoes from the member 

States of the Economic Community of 

West African States (ECOWAS) to be 

imported into the continental United 

States under a systems approach that 

would include requirements for pest 

exclusion at the production site, fruit fly 

trapping and monitoring, and 

procedures for packing the tomatoes. 

We also proposed to require the 

tomatoes to be accompanied by a 

phytosanitary certificate issued by the 

national plant protection organization of 

the exporting country with an 

additional declaration that the tomatoes 

had been produced in accordance with 

the proposed requirements. 

We solicited comments concerning 

our proposal for 60 days ending October 

3, 2011. We received four comments by 

that date. They were from members of 

the public and a State department of 

agriculture. 

Two commenters opposed the 

importation of tomatoes from the 

ECOWAS without raising any issues 

related to the pest risk analysis or 

proposed rule. The remaining comments 

are discussed below by topic. 

One commenter opposed the 

proposed rule, stating that the pest risk 

analysis (PRA) identified 10 quarantine 

pest species that could potentially 

accompany shipments of tomatoes from 

the ECOWAS into the continental 

United States and that the potential 

introduction of these pests, specifically 

the fruit flies, into the commenter’s 

State would pose a risk to the State’s 

agriculture. 

The PRA, which includes a 

qualitative, pathway-initiated pest risk 

assessment and a risk management 

document, not only identifies 

quarantine pests that could potentially 

accompany shipments of fresh tomatoes 

from the ECOWAS, but also identifies 

mitigation measures that will be 

required for this commodity to be 

imported into any State in the 

continental United States. The 

mitigation measures for tomatoes from 

the ECOWAS have been previously 

evaluated and proven effective for other 

commodities, and we will continuously 

monitor the effectiveness of those 

mitigations with port-of-entry 

inspections. We do not consider it 

necessary to prohibit the importation of 

a commodity based on identification of 

quarantine pests that could potentially 

accompany consignments when proven 

mitigations are available for this risk 

and will be required as a condition of 

importation. 

The commenter also requested 

additional information regarding the 

production site monitoring and postharvest procedures. Specifically, the 

commenter asked about the frequency of 

Animal and Plant Health Inspection 

Service (APHIS) visits to production 

and packing facilities, the guidelines for 

and oversight of the packinghouse, and 

the corrective measures and penalties 

resulting from the detection of live 

pests. 

While being used for packing 

tomatoes for export to the United States, 

the packinghouses will only be allowed 

to accept fruit from registered 

production sites. In addition, no shade 

trees may be grown within 10 meters of 

the entry door of the packinghouses, 

and no other fruit fly host plants may be 

grown within 50 meters of the entry 

door of the packinghouses. 

After initial approval of production 

site by both APHIS and the national 

plant protection organization (NPPO) of 

the exporting country, APHIS may 

monitor the production sites if 

necessary; however, regular inspection 

of production sites by APHIS is no 

longer required. The NPPO of the 

exporting country will be responsible 

for monitoring the production sites 

monthly beginning 2 months before 

harvest and continuing through the end 

of the shipping season. The inspection 


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34782 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations 

of shipments at the port of entry by 

APHIS is sufficient to verify that the 

required packinghouse procedures have 

been followed because failure to follow 

these procedures will be evident by the 

presence of fruit flies or other 

quarantine pests at the point of entry. 

The detection of a single fruit fly of 

concern inside a pest exclusionary 

structure (PES) starting 2 months prior 

to export and continuing through the 

duration of the harvest, or detection of 

a fruit fly of concern in a consignment 

at port of entry inspection which is 

traced back to a PES will result in 

immediate cancellation of exports from 

that production site until APHIS and 

NPPO of the exporting country have 

mutually determined that the risk has 

been properly mitigated. 

With regard to other quarantine pests, 

the systems approach for the 

importation of tomatoes from ECOWAS 

includes the submission of a bilateral 

workplan to APHIS by the NPPO of each 

exporting country. Those workplans 

will include the specific corrective 

measures that must be taken to prevent 

a recurrence of the quarantine mealy 

bugs and moths identified in the PRA. 

One commenter opposed the 

proposed rule and stated that the 

potentially negative impact on the U.S. 

economy, specifically small tomato 

producers, resulting from this action 

would be too great. The commenter said 

that APHIS should promote greater 

production of tomatoes by U.S. farmers 

and promote the purchase of tomatoes 

produced in the United States as the 

healthy choice. 

The Plant Protection Act (7 U.S.C. 

7701 et seq.), the authorizing statute for 

APHIS’ plant-health-related activities, 

authorizes the Secretary of Agriculture 

to prohibit or restrict the importation of 

any plant product if the Secretary 

determines that the prohibition or 

restriction is necessary to prevent the 

introduction of a plant pest or noxious 

weed into the United States. The factors 

cited by the commenter are not within 

our decisionmaking authority under the 

Act. 

In addition, the economic analysis 

made available with the proposed rule 

noted that even when assuming imports 

into the United States of 20 percent of 

the average annual exports from 

ECOWAS to the rest of the world, and 

no displacement of tomato imports from 

other countries, the welfare loss for U.S. 

small-entity producers would be 

equivalent to about 0.05 percent of their 

average annual revenue, or about $4.00. 

The commenter also mentioned the 

cost of controlling and monitoring the 

inspection and production of the 

commodity in another country and 

asked whether the cost of importing the 

commodity outweighs the benefits. 

APHIS involvement in the inspection 

and monitoring of the importation of 

tomatoes in ECOWAS member countries 

is limited. Prior to the importation of 

the tomatoes, APHIS and the NPPO of 

the exporting country approve the 

production sites. The only other time 

APHIS action may be required in the 

exporting country is in the event of the 

capture of a fruit fly of concern inside 

a PES. 

In addition, the agricultural 

quarantine and inspection (AQI) 

program provides for inspections of 

imported agricultural goods, products, 

and other articles to prevent the 

introduction of harmful agricultural 

pests and diseases. Services to directly 

provide these inspections or that 

support these inspections are known as 

AQI services. APHIS charges a user fee 

to recover the costs of providing AQI 

services. Therefore, much of the costs 

associated with the importation of 

tomatoes from the ECOWAS will be 

funded by the importers. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, without change. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This final rule has been determined to 

be not significant for the purposes of 

Executive Order 12866 and, therefore, 

has not been reviewed by the Office of 

Management and Budget. 

In accordance with the Regulatory 

Flexibility Act, we have analyzed the 

potential economic effects of this action 

on small entities. The analysis is 

summarized below. Copies of the full 

analysis are available by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT or on the 

Regulations.gov Web site (see 

ADDRESSES above for instructions for 

accessing Regulations.gov). 

The analysis examines impacts for 

U.S. small entities of this final rule, 

which will allow fresh tomato imports 

from member countries of the ECOWAS. 

The United States has no history of 

importing tomatoes from these 

countries. We model three levels of 

tomato exports to the United States from 

ECOWAS member States: (i) 5 percent 

of ECOWAS average annual world 

exports, 2003–2008 (484 metric tons 

(MT)); (ii) 10 percent of ECOWAS 

average annual world exports, 2003– 

2008 (967 MT); and (iii) 20 percent of 

ECOWAS average annual world exports, 

2003–2008 (1,934 MT). Even when 

assuming the largest import quantity 

and no displacement of tomato imports 

from other countries, the welfare loss for 

U.S. small-entity producers would be 

equivalent to about 0.05 percent of their 

average annual revenue, that is, about 

$4.00. While U.S. tomato producers are 

predominantly small, this rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Under these circumstances, the 

Administrator of the Animal and Plant 

Health Inspection Service has 

determined that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Executive Order 12988 

This rule would allow tomatoes to be 

imported into the United States from the 

ECOWAS. If this rule is adopted, State 

and local laws and regulations regarding 

tomatoes imported under this rule 

would be preempted while the fruit is 

in foreign commerce. Fresh fruits are 

generally imported for immediate 

distribution and sale to the consuming 

public and would remain in foreign 

commerce until sold to the ultimate 

consumer. The question of when foreign 

commerce ceases in other cases must be 

addressed on a case-by-case basis. If this 

rule is adopted, no retroactive effect will 

be given to this rule, and this rule will 

not require administrative proceedings 

before parties may file suit in court 

challenging this rule. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), the information collection or 

recordkeeping requirements included in 

this rule have been approved by the 

Office of Management and Budget 

(OMB) under OMB control number 

0579–0381. 

E-Government Act Compliance 

The Animal and Plant Health 

Inspection Service is committed to 

compliance with the E-Government Act 

to promote the use of the Internet and 

other information technologies, to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. For information pertinent to 

E-Government Act compliance related 

to this rule, please contact Mrs. Celeste 

Sickles, APHIS’ Information Collection 

Coordinator, at (301) 851–2908. 

List of Subjects in 7 CFR Part 319 

Coffee, Cotton, Fruits, Imports, Logs, 

Nursery stock, Plant diseases and pests, 

Quarantine, Reporting and 

recordkeeping requirements, Rice, 

Vegetables. 

Accordingly, we amend 7 CFR part 

319 as follows: 


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Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations 34783 

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. Section 319.56–28 is amended as 

follows: 

■ a. By adding a new paragraph (h) to 

read as set forth below. 

■ b. By revising the Office of 

Management and Budget citation at the 

end of the section to read as set forth 

below. 

§ 319.56–28 Tomatoes from certain 

countries. 

* * * * * 

(h) Tomatoes (fruit) (Solanum 

lycopersicum) from member States of 

the Economic Community of West 

African States. Fresh tomatoes may be 

imported into the continental United 

States from member States of the 

Economic Community of West African 

States (ECOWAS) only in accordance 

with this section and other applicable 

provisions of this subpart. The 

ECOWAS consists of Benin, Burkina 

Faso, Cape Verde, Gambia, Ghana, 

Guinea, Guinea Bissau, Ivory Coast, 

Liberia, Mali, Niger, Nigeria, Senegal, 

Sierra Leone, and Togo Republic. These 

conditions are designed to prevent the 

introduction of the following quarantine 

pests: Bactrocera cucurbitae, B. 

invadens, Ceratitis capitata, C. rosa, 

Chrysodeixis chalcites, Helicoverpa 

armigera, H. assulta, Leucinodes 

orbonalis, Maconellicoccus hirsutus, 

and Nipaecoccus viridis. 

(1) Production site requirements. (i) 

Production sites in which the tomatoes 

are produced must be registered with 

the national plant protection 

organization (NPPO) of the exporting 

country. Initial approval of production 

sites must be completed jointly by the 

NPPO of the exporting country and 

APHIS. 

(ii) The NPPO of the exporting 

country must visit and inspect the 

production sites monthly, beginning 2 

months before the harvest and 

continuing through the end of the 

shipping season. APHIS may monitor 

the production sites if necessary. 

(iii) Production sites must be pestexclusionary structures (PES). The PES 

must have self-closing double doors. All 

openings, including vents, to the 

outside of the PES must be covered by 

screening with mesh openings of not 

more than 1.6 mm. 

(iv) No shade trees may be grown 

within 10 meters of the entry door of the 

PES, and no other fruit fly host plants 

may be grown within 50 meters of the 

entry door of the PES. 

(2) Mitigation measures for fruit flies. 

(i) Beginning 2 months prior to the start 

of the shipping season and continuing 

through the end of the harvest, the 

NPPO of the exporting country must set 

and maintain fruit fly traps with an 

APHIS-approved protein bait inside 

each PES at a rate of eight traps per 

hectare, with a minimum of four traps 

in each PES, and check the traps every 

7 days. The NPPO of the exporting 

country must maintain records of trap 

placement, trap maintenance, and 

captures of any fruit flies of concern. 

The NPPO must maintain trapping 

records for 1 year, and make the records 

available to APHIS upon request. 

(ii) Capture of a single fruit fly of 

concern inside a PES will immediately 

result in cancellation of exports to the 

United States from that PES. The 

detection of a fruit fly of concern in a 

consignment at the port of entry that is 

traced back to a PES will also result in 

immediate cancellation of exports to the 

United States from that PES. In both 

cases, exports from the PES in question 

may not resume until APHIS and the 

NPPO of the exporting country have 

mutually determined that the risk has 

been properly mitigated. 

(3) Harvesting requirements. The stem 

and calyx must be removed from the 

tomato. 

(4) Packinghouse requirements. (i) 

While in use for exporting tomatoes to 

the United States, the packinghouses 

may only accept fruit from registered 

production sites. 

(ii) No shade trees may be grown 

within 10 meters of the entry door of the 

packinghouses, and no other fruit fly 

host plants may be grown within 50 

meters of the entry door of the 

packinghouses. 

(5) Post-harvest procedures. (i) The 

tomatoes must be safeguarded by an 

insect-proof mesh screen or plastic 

tarpaulin while in transit to the 

packinghouse and while awaiting 

packing. 

(ii) Tomatoes must be packed within 

24 hours of harvest in insect-proof 

cartons or containers, or covered with 

insect-proof mesh or a plastic tarpaulin 

for transport to the United States. These 

safeguards must remain intact until 

arrival in the United States or the 

consignment will be denied entry into 

the United States. 

(iii) If transported by sea, the 

containers in which the tomatoes are 

packed must be kept closed if stored 

within 20 meters of a fruit fly host prior 

to being loaded on the vessel. 

(6) Commercial consignments. The 

tomatoes may be imported in 

commercial consignments only. 

(7) Phytosanitary certificate. Each 

consignment of tomatoes must be 

accompanied by a phytosanitary 

certificate issued by the NPPO of the 

exporting country, providing an 

additional declaration ‘‘These tomatoes 

were grown in registered production 

sites in [name of country] and the 

consignment has been inspected and 

found free of quarantine pests.’’ 

(Approved by the Office of Management and 

Budget under control numbers 0579–0049, 

0579–0131, 0579–0316, 0579–0286, 0579– 

0345, and 0579–0381.) 

Done in Washington, DC, this 6th day of 

June 2012. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2012–14294 Filed 6–11–12; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Parts 93, 94, and 95 

[Docket No. APHIS–2006–0074] 

RIN 0579–AC36 

Highly Pathogenic Avian Influenza 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Interim rule; reopening of 

comment period. 

SUMMARY: We are reopening the 

comment period for our interim rule 

that amended the regulations 

concerning the importation of animals 

and animal products to prohibit or 

restrict the importation of bird and 

poultry products from regions where 

any subtype of highly pathogenic avian 

influenza (HPAI) is considered to exist. 

The interim rule also imposed 

restrictions concerning importation of 

live poultry and birds that have been 

vaccinated for certain types of HPAI, or 

that have been moved through regions 

where any subtype of HPAI is 

considered to exist. This action will give 

the public an additional opportunity to 

comment on the interim rule and on a 

change to its provisions that we are 

considering. 

DATES: We will consider all comments 

that we receive on or before July 12, 

2012. 

ADDRESSES: You may submit comments 

by either of the following methods: 


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