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.

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the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

63149 

Vol. 76, No. 197 

Wednesday, October 12, 2011 

1To view the proposed rule and the comments 

we received, go to http://www.regulations.gov/ 

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2010-0020. 

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. 

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 pestexclusionary structures, trapping and 

monitoring inside and outside the pestexclusionary 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 pestexclusionary structures and were 

inspected and found free from 

quarantine pests of concern to the 

United States. 

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 

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63150 Federal Register / Vol. 76, No. 197 / Wednesday, October 12, 2011 / Rules and Regulations 

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 

■ 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 § 319.56–52 is added to read 

as follows: 

§ 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 selfclosing doors. 

(2) Any vents or openings in the pestexclusionary 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 pestexclusionary 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 pestexclusionary 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 

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

SMALL BUSINESS ADMINISTRATION 

13 CFR Part 120 

RIN 3245–AG17 

Small Business Jobs Act: 504 Loan 

Program Debt Refinancing 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Final rule. 

SUMMARY: This rule finalizes the interim 

final rule that implemented section 

1122 of the Small Business Jobs Act of 

2010, which authorizes projects 

approved for financing under Title V of 

the Small Business Investment Act to 

include the refinancing of qualified 

debt. As a result of comments received, 

this final rule amends the interim final 

rule to authorize the financing of 

business expenses as part of a 

Refinancing Project, to allow the Third 

Party Loan to be at least as much as the 

504 loan instead of requiring that the 

Third Party Loan provide at least 50% 

of the financing, and to revise the 

definition of qualified debt. Other 

aspects of the interim final rule are 

adopted as final without change. 

DATES: Effective Date: This rule is 

effective October 12, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Andrew B. McConnell, Jr., Office of 

Financial Assistance, at 

jobsact_debtrefinancing@sba.gov or 

202–205–9949. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On February 17, 2011, SBA published 

an interim final rule with request for 

comments in the Federal Register to 

implement section 1122 of the Small 

Business Jobs Act of 2010 (Jobs Act). See 

76 FR 9213. This provision of the Jobs 

Act temporarily authorizes projects 

approved for financing under Title V of 

the Small Business Investment Act to 

include the refinancing of qualified 

debt. Prior to the Jobs Act, in a typical 

504 project with a refinancing 

component, the borrower was required 

to use a significant portion of the loan 

proceeds for expansion of the business. 

See 13 CFR 120.882(e). The temporary 

Jobs Act program authorizes the use of 

the 504 Loan Program for the 

refinancing of debt where there is no 

expansion of the small business, and is 

available for loan applications approved 

by SBA through September 27, 2012. 

The interim final rule was effective 

February 17, 2011 and the comment 

period was open until May 18, 2011. 

SBA received written comments from 34 

commenters, including 6 banks, 2 small 

businesses, 17 Certified Development 

Companies, 3 national trade 

associations, and 6 individuals. The 

comments are summarized and 

addressed below with, where 

applicable, the citation to the rule 

provision that has been changed after 

consideration of the comments. 

II. Summary of Comments Received 

1. Financing for Business Expenses— 

13 CFR 120.882(g)(6). In the interim 

final rule, SBA requested comments 

from the public on whether, and how, 

to implement the provision in the Jobs 

Act that authorizes the financing of 

business expenses in the temporary debt 

refinance program. Twenty-five of the 

34 comments received requested that 

SBA implement the authority to finance 

business expenses; none of the 

comments opposed implementing this 

authority. Several commenters stated 

that there is an urgent need for this 

financing due to the national recession 

which, they assert, resulted in bank 

regulator restrictions on lending 

institutions, limitations on lines of 

credit, and decreased opportunity for 

equipment vendor financing. Businesses 

could enhance their viability and 

growth potential if they were able to 

access the accumulated equity in their 

real estate and other fixed assets for 

business purposes. No suggestions were 

received on how to implement the 

business expense provision. 

Based on the comments, SBA is 

amending the rule to allow a Borrower 

to request the financing of business 

expenses as part of its application for 

the Refinancing Project. Such financing 

will be available only if the amount of 

cash that will be provided as a result of 

the refinancing exceeds the amount to 

be paid to the lender of the Qualified 

Debt. The Borrower’s application must 

include a specific description of the 

business expenses for which the 

financing is requested and an 

itemization of the amount of each 

expense. The funds provided for 

business expenses must be used solely 

for the business expenses of the 

Borrower, such as salaries, rent, 

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