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[Federal Register Volume 62, Number 200 (Thursday, October 16, 1997)]
[Proposed Rules]
[Pages 53761-53769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27427]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 300 and 319

[Docket No. 97-016-1]

Importation of Tomatoes From France, Morocco and Western Sahara, 
Chile, and Spain

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations governing fruits and 
vegetables to allow tomatoes from France, Morocco and Western Sahara, 
and Chile to be imported into the United States subject to certain 
conditions. The proposed action would provide importers and consumers 
in the United States with additional sources of tomatoes, while 
continuing to provide protection against the introduction and 
dissemination of injurious plant pests. We are also proposing to amend 
the regulations pertaining to importation of tomatoes from Spain by 
requiring containers of pink or red tomatoes to be sealed before 
shipment if the containers will transit any other fruit fly supporting 
areas while en route to the United States, and by requiring records to 
be kept by Spain's plant protection service regarding trapping 
practices and fruit fly captures. These actions appear necessary to 
prevent the introduction of exotic fruit flies into the United States.

DATES: Consideration will be given only to comments received on or 
before December 15, 1997.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 97-016-1, Regulatory Analysis and Development, PPD, APHIS, 
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please 
state that your comments refer to Docket No. 97-016-1. Comments 
received may be inspected at USDA, room 1141, South Building, 14th 
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 
4:30 p.m., Monday through Friday, except holidays. Persons wishing to

[[Page 53762]]

inspect comments are requested to call ahead on (202) 690-2817 to 
facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald C. Campbell, Staff Officer, 
Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road Unit 
140, Riverdale, MD 20737-1236, (301) 734-6799; fax (301)734-5786; E-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 7 CFR 319.56 through 319.56-8 (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, including 
fruit flies, that are new to or not widely distributed within the 
United States.

Tomatoes from France, Morocco and Western Sahara, and Chile

    We are proposing to amend the regulations to allow tomatoes 
(Lycopersicon esculentum) from France, Morocco and Western Sahara, and 
Chile to be imported into the United States under certain conditions, 
which are discussed below. We are proposing to allow these importations 
at the request of various importers and foreign ministries of 
agriculture, and after conducting pest risk analyses 1 that 
indicate the tomatoes can be imported under the proposed conditions 
without presenting any significant risk of introducing fruit flies or 
other injurious plant pests into the United States.
---------------------------------------------------------------------------

    \1\ Information on these pest risk analyses and any other pest 
risk analysis referred to in this document may be obtained by 
writing to the person listed under FOR FURTHER INFORMATION CONTACT 
or by calling the Plant Protection and Quarantine (PPQ) fax vault at 
301-734-3560.
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    The imported tomatoes would be subject to the requirements in 
Sec. 319.56-6 of the regulations. Section 319.56-6 provides, among 
other things, that all imported fruits and vegetables, as a condition 
of entry, shall be subject to inspection, disinfection, or both, at the 
port of first arrival, as may be required by a United States Department 
of Agriculture (USDA) inspector to detect and eliminate plant pests. 
Section 319.56-6 also provides that any shipment of fruits and 
vegetables may be refused entry if the shipment is infested with fruit 
flies or other injurious plant pests and an inspector determines that 
it cannot be cleaned by disinfection or treatment.
    In this proposed rule, as well as in the current regulations for 
importing tomatoes from Spain, contained in Secs. 319.56-2t and 319.56-
2dd, we use the terms ``pink or red'' and ``green'' tomatoes. Green 
tomatoes are unripened tomatoes. Once tomatoes start to ripen, they 
show more and more pink coloring, which deepens to red as the tomatoes 
ripen.

Tomatoes From France

    We are proposing to allow tomatoes to be imported from France under 
conditions very similar to current requirements for importing tomatoes 
from Spain. Section 319.56-2t includes green tomatoes from Spain in the 
list of fruits and vegetables that may be imported subject to 
inspection and disinfection at the port of arrival, in accordance with 
Sec. 319.56-6 of the regulations. Section 319.56-2t allows green, or 
unripened, tomatoes to be imported into the United States from any area 
of Spain, including Almeria Province. Because green tomatoes are not a 
host to the Mediterranean fruit fly (Medfly), which is known to occur 
in Spain, or, in Spain, to any other pest of concern to the United 
States, they are not subject to the special conditions in Sec. 319.56-
2dd. Pink and red tomatoes from Spain are hosts, albeit poor ones, to 
the Medfly. Therefore, the regulations at Sec. 319.56-2dd currently 
allow the importation of pink and red tomatoes only from the Almeria 
Province and only under certain conditions, which protect the tomatoes 
from Medfly infestation.
    As in Spain, the pest of concern for tomatoes in France is Medfly. 
We are proposing to add green tomatoes from France to the list of 
fruits and vegetables in Sec. 319.56-2t that may be imported into the 
United States subject to inspection and disinfection at the port of 
arrival in accordance with Sec. 319.56-6 of the regulations. Green 
tomatoes are not a host to Medfly, or, in France, to any other pest of 
concern to the United States. We would require that, to be eligible for 
importation, the tomatoes must still be green upon arrival in the 
United States. This requirement would ensure that the tomatoes at no 
time, either in France or en route, become suitable Medfly host 
material. (As discussed later in this document, we are also proposing 
to add this requirement for the importation of green tomatoes from 
Spain.) We are also proposing to allow pink or red tomatoes to be 
imported into the United States from France if they are grown in the 
Region of Brittany and meet certain conditions.
    Although Medfly is not known to exist in Brittany, incidental 
introductions are possible. Therefore, we propose to require that the 
tomatoes be grown in Brittany in greenhouses registered with, and 
inspected by, the Service de la Protection Vegetaux (SRPV). From June 1 
through September 30, SRPV would be required to set and maintain Medfly 
traps baited with trimedlure at a rate of one inside and one outside 
each greenhouse. All traps would have to be checked every 7 days. 
Brittany, in the northeast of France, has a temperate climate. 
Temperatures from October through May are too cold for Medfly to 
survive. It is unlikely that Medfly would become even temporarily 
established in Brittany during the months of June through September, 
but trapping would help ensure detection of Medfly should it be 
introduced. Capture of a single Medfly inside or outside a registered 
greenhouse would immediately result in cancellation of exports to the 
United States from that greenhouse until the source of infestation is 
determined, the Medfly infestation is eradicated, and measures have 
been taken to preclude any future infestation. The Animal and Plant 
Health Inspection Service (APHIS) generally considers eradication to 
have occurred when there is no evidence of reproducing populations of 
Medfly (for example, no finding of Medfly larvae, mated females, or 
both male and female flies) for two life cycles of the Medfly. We 
propose to require SRPV to maintain records of trap placement, checking 
of traps, and any Medfly captures, and to make the records available to 
APHIS upon request.
    Also from June 1 through September 30, we would require that the 
tomatoes be packed within 24 hours of harvest, safeguarded by fruit 
fly-proof mesh screen or plastic tarpaulin while in transit to the 
packing house and while awaiting packing, and packed in fruit fly-proof 
containers for transit to the airport and subsequent shipping to the 
United States. These requirements do not appear to be necessary during 
other times of the year when the climate would not support fruit flies. 
At all times of the year, however, we are proposing to require the 
fruit fly-proof containers of tomatoes to be sealed by SRPV before 
shipment, and the seal number recorded on a phytosanitary certificate 
that must accompany the tomatoes, if the containers will transit any 
other fruit fly supporting areas while en route to the United States. 
This would ensure that the containers are not opened and exposed to 
fruit flies, or contaminated with fruit fly infested fruit during 
shipment to the United States. Flight over a fruit fly supporting area 
without stopping does not constitute

[[Page 53763]]

``transit'' and thus does not trigger the SRPV seal and records 
requirements.
    SRPV would be responsible for export certification inspection and 
issuance of phytosanitary certificates. We propose to require each 
shipment of pink or red tomatoes to be accompanied by a phytosanitary 
certificate issued by SRPV and bearing the declaration, ``These 
tomatoes were grown in registered greenhouses in the Brittany Region of 
France.''
    The provisions for importing pink or red tomatoes from France would 
be added to Sec. 319.56-2dd, and the heading for that section, which 
now refers only to pink or red tomatoes from Spain, would be changed.

Tomatoes From Morocco and Western Sahara

    As in France and Spain, the pest of concern for tomatoes in Morocco 
and Western Sahara is Medfly. We are proposing to add green tomatoes 
from Morocco and Western Sahara to the list of fruits and vegetables in 
Sec. 319.56-2t that may be imported, provided that the tomatoes are 
still green upon arrival in the United States, subject to inspection 
and disinfection at the port of arrival in accordance with Sec. 319.56-
6 of the regulations. Green tomatoes are not a host to Medfly, or, in 
Morocco and Western Sahara, to any other pest of concern to the United 
States.
    We are also proposing to add provisions to Sec. 319.56-2dd to allow 
pink tomatoes to be imported into the United States from El Jadida and 
Safi Provinces, Morocco, and from Dahkla Province, Western Sahara, 
under conditions similar to those discussed above for tomatoes from 
France. We are proposing to allow pink, but not fully ripe, red 
tomatoes, as an additional precaution because of the endemic presence 
of Medflies and Medfly host material in Morocco and Western Sahara, and 
the free movement of Medfly host materials throughout Morocco and 
Western Sahara. The surface area of a pink tomato is more than 30 
percent but not more than 60 percent pink and/or red. A red tomato is 
more than 60 percent pink and/or red. Tomatoes at any stage of ripeness 
are poor hosts for Medfly, and pink tomatoes are less suitable Medfly 
host material than red tomatoes.
    The tomatoes would have to be grown in greenhouses registered with, 
and inspected by, the Moroccan Ministry of Agriculture, Division of 
Plant Protection, Inspection, and Enforcement (DPVCTRF). Because of the 
prevalence of Medfly in Morocco and Western Sahara, the greenhouses 
would have to be insect-proof.
    The tomatoes would only be allowed to be shipped from Morocco and 
Western Sahara between December 1 and April 30, inclusive. Although 
Morocco and Western Sahara are capable of supporting year-round 
populations of Medfly, population levels are lower during these months 
than during late spring through early autumn.
    Commercial greenhouses in Morocco and Western Sahara range in size 
from less than 1 hectare to more than 14 hectares. Beginning 2 months 
prior to the start of the shipping season and continuing through the 
end of the shipping season, DPVCTRF would be required to set and 
maintain Medfly traps baited with trimedlure inside the registered 
greenhouses at a rate of four traps per hectare. In Morocco traps would 
also be required outside registered greenhouses within a 2 kilometer 
radius at a rate of four traps per square kilometer. In Western Sahara, 
a single trap outside each registered greenhouse would be required. 
Fewer traps would be required in Western Sahara because of the scarcity 
of endemic Medfly host material and arid conditions in the tomato 
production areas. All traps in Morocco and Western Sahara would have to 
be checked every 7 days. We propose to require DPVCTRF to maintain 
records of trap placement, checking of traps, and any Medfly captures, 
and to make the records available to APHIS upon request.
    Capture of a single Medfly in a registered greenhouse would 
immediately result in cancellation of exports to the United States from 
that greenhouse until the source of the infestation is determined, the 
Medfly infestation has been eradicated, and measures are taken to 
preclude any future infestation. Capture of a single Medfly within 200 
meters of a registered greenhouse would necessitate increasing trap 
density in order to determine whether there is a reproducing population 
in the area. Six additional traps would have to be placed within a 
radius of 200 meters surrounding the trap where the Medfly was 
captured. Capture of two Medflies within 200 meters of a registered 
greenhouse and within a 1-month time period would require Malathion 
bait sprays within 200 meters of the trap or traps where Medflies were 
caught every 7 to 10 days for 60 days to ensure eradication.
    As with pink and red tomatoes from France and Spain, we propose to 
require pink tomatoes from Morocco and Western Sahara to be packed 
within 24 hours of harvest, safeguarded by fruit fly-proof mesh screen 
or plastic tarpaulin while in transit to the packing house and while 
awaiting packing, and packed in fruit fly-proof containers for transit 
to the airport and subsequent shipping to the United States. The 
tomatoes must be pink at the time of packing. In addition, we are 
proposing to require that the fruit fly-proof containers of tomatoes be 
sealed by the Moroccan Ministry of Agriculture, Fresh Product Export 
(EACCE), before shipment, and the seal number recorded on a 
phytosanitary certificate that must accompany the tomatoes, if the 
containers will transit any other fruit fly supporting areas while en 
route to the United States. This action appears necessary to ensure 
that the containers are not opened and exposed to fruit flies, or 
contaminated with fruit fly infested fruit during shipment to the 
United States.
    EACCE would be responsible for export certification inspection and 
issuance of phytosanitary certificates. We propose to require each 
shipment of pink tomatoes to be accompanied by a phytosanitary 
certificate issued by EACCE and bearing the declaration, ``These 
tomatoes were grown in registered greenhouses in El Jadida or Safi 
Province, Morocco and were pink at the time of packing'' or ``These 
tomatoes were grown in registered greenhouses in Dahkla Province, 
Western Sahara and were pink at the time of packing.''
    The provisions for importing pink tomatoes from Morocco and Western 
Sahara would be added to Sec. 319.56-2dd.

Tomatoes From Chile

    In Chile the primary pests of concern in tomatoes are the tomato 
fruit moth (Scrobopalpula absoluta) and the tomato fruit fly 
(Rhagoletis tomatis). These are temperate pests that infest tomatoes at 
all stages of ripeness, including when they are green. USDA has 
determined that a methyl bromide treatment, developed in Chile, is an 
effective treatment for these pests in tomatoes. The treatment schedule 
is as follows: Methyl bromide at the rate of 48 ounces per 1,000 cubic 
feet at 70  deg.F for 2 hours. We are proposing to allow tomatoes from 
Chile to be imported into the United States if the tomatoes are treated 
in Chile with methyl bromide as described above. The treatment would 
have to be conducted in facilities registered with the Secretario de 
Agricultura y Ganaderia (SAG) and with APHIS personnel monitoring the 
treatments. Requiring the treatment under these conditions would ensure 
that the treatments were effectively administered.
    In addition, we would require that the tomatoes be treated and 
packed within

[[Page 53764]]

24 hours of harvest. They would have to be safeguarded by a fruit fly-
proof mesh screen or plastic tarpaulin while in transit to the packing 
house and while awaiting packing, and be packed in fruit fly-proof 
containers under APHIS monitoring for transit to the airport and 
subsequent shipping to the United States. We believe these requirements 
are necessary to protect the tomatoes against reinfestation by the 
tomato fruit moth and fruit flies between the time of treatment and the 
arrival of the tomatoes in the United States.
    The proposed methyl bromide treatment of tomatoes in Chile under 
APHIS monitoring prior to export of the tomatoes to the United States 
would be required due to the nature of tomato production in Chile. 
Tomatoes in Chile would be produced in open fields under normal 
cultural practices that do not incorporate safeguards to mitigate the 
risk of introducing tomato fruit fly and tomato fruit moth into the 
United States. Furthermore, the tomato fruit fly and tomato fruit moth 
are temperate pests that could potentially impact domestic tomato 
production in the United States. Post harvest methyl bromide treatment 
in Chile would be the only mitigative measure to ensure that tomato 
fruit flies and tomato fruit moths are not inadvertently shipped to the 
United States. By contrast, tomatoes from France, Morocco and Western 
Sahara, and Spain would be produced in greenhouses under a systems 
approach that incorporates multiple safeguards that mitigate the risk 
of introducing Medflies into the United States.
    We propose that SAG enter into a trust fund agreement with APHIS 
before tomatoes from Chile could be precleared for import into the 
United States. A trust fund agreement is required to recover APHIS 
costs associated with monitoring the preclearance program in Chile. The 
trust fund agreement would require SAG to pay in advance all estimated 
costs to be incurred by APHIS in providing preclearance services during 
a shipping season. These costs would include administrative expenses 
incurred in conducting preclearance, as well as all salaries (including 
overtime and the Federal share of employee benefits), travel expenses 
(including per diem expenses), and other incidental expenses incurred 
by the inspectors in providing these services. SAG would be required to 
deposit a certified or cashier's check with APHIS for the amount of 
these costs for the entire shipping season, as estimated by APHIS based 
on projected shipment volumes and cost figures from previous 
inspections. The agreement would further require that, if the deposit 
does not meet the actual costs incurred by APHIS, SAG would deposit 
with APHIS a certified or cashier's check for the amount of the known 
remaining costs, as determined by APHIS, before completion of the 
inspections. The agreement would also specify that unanticipated end-
of-season costs must be paid upon demand, and that further service will 
be withheld until payment is made. If the amount SAG pays during a 
shipping season exceeds the total costs incurred by APHIS in providing 
preclearance services, the difference would be refunded to SAG by APHIS 
at the end of the shipping season. Requiring payment of costs in 
advance is necessary to help defray the costs to APHIS of providing 
inspection services in Chile.
    The provisions for importing tomatoes from Chile would be added to 
Sec. 319.56-2dd. The treatment schedule for methyl bromide would be 
added to the Plant Protection and Quarantine Treatment Manual (PPQ 
Treatment Manual), which is incorporated into the regulations by 
reference (see 7 CFR 300.1).

Tomatoes From Spain

    The regulations at Sec. 319.56-2dd for importing pink or red 
tomatoes from Almeria Province in Spain already require, among other 
things, that the greenhouse grown pink or red tomatoes be packed within 
24 hours of harvest, be safeguarded by a fruit fly-proof mesh screen or 
plastic tarpaulin while in transit to the packing house and while 
awaiting packing, and be packed in fruit fly-proof containers for 
transit to the airport and subsequent shipping to the United States. We 
are proposing to require the fruit fly-proof containers of tomatoes to 
be sealed by the Spanish Ministry of Agriculture, Fisheries, and Food 
(MAFF) before shipment, and the seal number recorded on the 
phytosanitary certificate that must accompany the tomatoes to the 
United States, if the containers will transit any other fruit fly 
supporting areas while en route to the United States. We believe the 
additional requirements for containers that will transit fruit fly 
supporting areas are necessary to ensure that the shipments are not 
opened and exposed to fruit flies or contaminated with fruit-fly 
infested fruit during shipment to the United States.
    The regulations at Sec. 319.56-2dd for importing pink or red 
tomatoes from Spain also require MAFF to maintain Medfly traps inside 
and outside the registered greenhouses, but do not require MAFF to 
maintain records regarding the trapping. We propose to require MAFF to 
maintain records of trap placement, checking of traps, and any Medfly 
captures, and to make the records available to APHIS upon request. This 
would help ensure that trapping is done properly and that appropriate 
action is taken when fruit flies are found.
    As discussed previously in this document, the regulations at 
Sec. 319.56-2t for importing green tomatoes from Spain do not now 
require that the tomatoes still be green upon arrival in the United 
States. We propose to require that green tomatoes from Spain still be 
green upon arrival in the United States. This requirement would ensure 
that the tomatoes at no time, either in Spain or en route, become 
suitable host material for Medfly.

Executive Order 12866 and the Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The 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.
    This proposed rule would allow tomatoes from France, Morocco and 
Western Sahara, and Chile to be imported into the United States subject 
to certain conditions. This proposed action would provide importers and 
consumers in the United States with additional sources of tomatoes, 
while continuing to provide protection against the introduction and 
dissemination of injurious plant pests. The proposal would also make 
some minor changes to the provisions for importing tomatoes from Spain, 
but these changes are not expected to have any effect on the volume of 
tomatoes imported from Spain, and, therefore, are not expected to have 
any economic impact. Under the Federal Plant Pest Act and the Plant 
Quarantine Act (7 U.S.C. 150dd, 150ee, 150ff, 151-165, and 167), the 
Secretary of Agriculture is authorized to regulate the importation of 
fruits and vegetables to prevent the introduction of injurious plant 
pests.
    During 1995 about 12.3 million metric tons of tomatoes were 
supplied to the United States market. Domestic production accounted for 
about 95.4 percent of total supply. Imports from Spain accounted for 
less than one-tenth of one percent of total tomatoes supplied to United 
States consumers during 1995. Prices and sources of tomatoes supplied 
to the United States market are summarized in the following table.

[[Page 53765]]

----------------------------------------------------------------------------------------------------------------
                                     Quantity  (metric     Total value     Average value per   Percentage (% of 
    Source of U.S. tomato supply           tons)           ($1,000,000)        metric ton      total supply) \2\
----------------------------------------------------------------------------------------------------------------
Domestic Production................         11,719,214          $1,576.01            $134.48             95.44  
Imported Tomatoes \1\..............            559,117             404.95             724.27              4.45  
Spanish Imports....................                657               1.11           1,695.58              0.0001
                                    ----------------------------------------------------------------------------
      Total Supply.................         12,278,988           1,982.07             161.42            100.0   
----------------------------------------------------------------------------------------------------------------
\1\ From countries other than Spain.                                                                            
\2\ Percentage column may not sum due to rounding.                                                              
Sources: Agricultural Statistics 1995-96; Table 233 (figures converted to metric tons); USDA-NASS; Washington,  
  DC.                                                                                                           
Foreign Agriculture Trade of the United States--FY 1995 Supplement; Table 25; USDA-ERS; Washington, DC.         

    It is estimated that annual tomato imports will increase by about 
13,700 metric tons under this proposed rule. About 6,000 metric tons 
are expected from Chile; the remaining 7,700 metric tons would arrive 
from France and Morocco and Western Sahara. Currently, Spanish imports 
arrive during the off-season for tomato production in the United States 
(December 1 through April 30) and, therefore, do not directly compete 
with United States tomatoes produced during the spring and summer 
months. Proposed tomato imports from Morocco and Western Sahara will 
also be restricted to arrival during the off-season. Imports from Chile 
and France will be allowed entry throughout the year. However, Chilean 
tomatoes are expected to be primarily imported during the off-season 
due to seasonal growing differences between the northern and southern 
hemispheres, and shipments from France are likely to fill a special 
market niche (for higher quality fresh tomatoes).
    Therefore, proposed imports would largely compete with existing 
imports rather than with domestic production. This is further supported 
by the price per ton that imports currently command in the United 
States market. The value of imported tomatoes (from countries other 
than Spain) averaged $724 per metric ton during 1995. Spanish imports 
averaged $1,695 per metric ton during the same year. This price 
discrepancy is likely due to the relatively high quality of off-season 
tomato imports from Spain. In contrast to imports, prices for U.S. 
produced tomatoes averaged about $161 per metric ton. Price 
discrepancies between the import and domestic markets indicate that 
imports cannot compete with domestic supplies unless they arrive during 
the off-season or for specialty markets. During the off-season there 
may be some U.S. producers who grow greenhouse tomatoes at higher than 
average prices. However, this price differential is not reflected in 
the data.
    Even if all the proposed imports were directly substitutable for 
domestic supplies, the net impact on United States society is 
anticipated to be positive. Assuming a perfectly inelastic supply, a 
demand elasticity of -0.5584, an initial quantity supplied of 12.3 
million metric tons, and an increase in imports of 13,700 metric tons, 
it is estimated that average U.S. tomato prices will decline from 
$161.42 to $161.10 per metric ton.2 This represents a price 
decrease of $0.32 per metric ton. Consumer welfare would increase by 
$3,935,852. United States producers, however, would experience a 
revenue decrease of $3,933,660, or about 0.2 percent of the total value 
of domestic tomato supplies. This would result in a positive, albeit 
small, net impact to United States society totaling about $2,192. 
Foreign producers realize a gain of about $2,207,070. These results are 
summarized in the following table.
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    \2\ The demand elasticity is obtained from J.E. Epperson and 
L.F. Lei, ``A Regional Analysis of Vegetable Production with 
Changing Demand for Row Crops Using quadratic Programming,'' 
Southern Journal of Agricultural Economics, Volume 21, Number 1, 
July 1989, pp. 87-96.

------------------------------------------------------------------------
  U.S. consumer      U.S. producer    Net gain to U.S.  Foreign producer
       gain           revenue loss         society            gain      
------------------------------------------------------------------------
$3,935,852.......       $3,933,660             $2,192        $2,207,070 
------------------------------------------------------------------------

    This proposed rule would provide U.S. consumers with additional 
sources of tomatoes during winter months and for specialty markets. 
Domestic producers who propagate greenhouse tomatoes during the off-
season may be slightly impacted. However, it is estimated that this 
proposed rule will have a negligible economic impact on domestic tomato 
producers. Most imports from Chile and Morocco and Western Sahara will 
arrive during the off-season and not directly compete with U.S. 
produced tomatoes. Even if imports could be readily substituted for 
domestic production, U.S. producers would only be marginally impacted 
due to the low volume of expected imports. A relatively small annual 
quantity increase (13,700 metric tons valued at $2.2 million) of 
imported tomatoes would not likely erode the market share of domestic 
producers.
    The Regulatory Flexibility Act requires that APHIS specifically 
consider the economic impact of this proposed rule on ``small'' 
entities. The SBA has set forth size criteria by Standard Industrial 
Classification (SIC) which was used as a guide in determining which 
economic entities meet the definition of a ``small'' business.
    The SBA does not maintain specific size standards for domestic 
entities that either import or produce tomatoes. Therefore, this 
analysis uses the size standards established for Vegetable and Melon 
Producers (SIC code 0161) and Wholesale Traders of Fresh Fruits and 
Vegetables (SIC code 5148). The SBA's definition of a ``small'' entity 
included in the vegetable and melon producer classification is one that 
generates less than $500,000 in annual receipts.3 Wholesale 
traders of fresh fruits and vegetables are classified as ``small'' if 
they employ fewer than 100 people.
---------------------------------------------------------------------------

    \3\ Small Business Administration; Washington, DC. SBA data was 
modified by tomato specific information contained in the 1992 Census 
of Agriculture.
---------------------------------------------------------------------------

    Currently there are about 15,438 ``small'' tomato producers and 
5,122 ``small'' wholesale traders of fresh fruits and vegetables 
according to the SBA criteria. The proposed rule change could 
negligibly impact some ``small'' domestic entities. However, because 
the supply of tomatoes in the United States market would only increase 
by about

[[Page 53766]]

13,700 metric tons (less than one-tenth of one percent of total 
domestic supply) and domestic producers would continue to supply more 
than 95 percent of the tomatoes consumed in the United States each 
year, it does not appear that this proposed rule would have a 
significant economic impact on ``small'' entities. However, APHIS 
invites public comments concerning the potential economic effects of 
this proposed rule change on ``small'' United States entities. The 
Agency is particularly interested in identifying potential economic 
impacts on United States entities that produce tomatoes during the 
winter months. All comments will be considered prior to finalization of 
this Regulatory Flexibility Analysis.
    Reporting and recordkeeping requirements of the proposed rule are 
described below under ``The Paperwork Reduction Act'' section of this 
document.

Executive Order 12778

    This proposed rule would allow the importation of tomatoes from 
France, Morocco and Western Sahara, and Chile under certain conditions. 
If this proposed 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. Tomatoes 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 would be given to this rule, and this rule would 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. 97-016-1. 
Please send a copy of your comments to: (1) Docket No. 97-016-1, 
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River 
Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, 
OIRM, 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 allow tomatoes from France, Morocco and Western 
Sahara, and Chile to be imported into the United States subject to 
certain conditions. We are also proposing to amend the regulations 
pertaining to importation of tomatoes from Spain by requiring 
containers of pink or red tomatoes to be sealed before shipment if the 
containers will transit any other fruit fly supporting areas while en 
route to the United States, and by requiring records to be kept by 
Spain's plant protection service regarding trapping practices and fruit 
fly captures. These proposed regulatory revisions would facilitate the 
importation of tomatoes from France, Morocco and Western Sahara, Chile 
and Spain while ensuring that tomatoes imported into the United States 
do not harbor insect pests such as the Mediterranean fruit fly, tomato 
fruit moth, and tomato fruit fly.
    The implementation of these proposed regulatory actions would 
require us to engage in certain information collection activities. We 
are seeking approval from the Office of Management and Budget (OMB) to 
engage in these information collection activities, which are described 
below.
    Phytosanitary certificate: The proposed rule would require that 
pink or red tomatoes imported into the United States from registered 
greenhouses in the Brittany Region of France and pink tomatoes imported 
into the United States from registered greenhouses in El Jadida and 
Safi Provinces, Morocco, and Dahkla Province, Western Sahara, be 
accompanied by a phytosanitary certificate. The certificate would be 
issued by a representative of the plant protection agency in the 
respective country of origin after the representative examines the 
shipment and ensures that it has been prepared in compliance with our 
regulations.
    Records of Medfly trap placement and Medfly captures: The proposed 
rule would require that Medfly traps be placed in and/or around 
registered greenhouses in Almeria Province, Spain; El Jadida and Safi 
Provinces, Morocco; Dahkla Province, Western Sahara; and the Brittany 
Region of France. Representatives from the respective national plant 
protection agencies would be responsible for recording trap placement, 
checking of traps, and Medfly captures. This information would be made 
available to APHIS upon request.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection requirements. 
We need this outside input to help us:
    (1) Evaluate whether the information collection is necessary for 
the proper performance of our agency's functions, including whether the 
information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
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 0.670 hours per response.
    Respondents: Foreign plant health protection authorities.
    Estimated number of respondents: 6.
    Estimated annual number of responses: 328.
    Estimated average number of responses per respondent: 54.66.
    Estimated total annual burden on respondents: 220 hours.
    Copies of this information collection can be obtained from: 
Clearance Officer, OIRM, USDA, Room 404-W, 14th Street and Independence 
Ave., SW., Washington, DC 20250.

List of Subjects

7 CFR Part 300

    Incorporation by reference, Plant diseases and pests, Quarantine.

7 CFR Part 319

    Bees, Coffee, Cotton, Fruits, Honey, Imports, Incorporation by 
reference, Nursery Stock, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Rice, and Vegetables.

    Accordingly, title 7, chapter III, of the Code of Federal 
Regulations would be amended as follows:

PART 300--INCORPORATION BY REFERENCE

    1. The authority citation for part 300 would continue to read as 
follows:

[[Page 53767]]

    Authority: 7 U.S.C. 150ee, 154, 161, 162 and 167; 7 CFR 2.22, 
2.80, and 371.2(c).

    2. In Sec. 300.1, paragraph (a), introductory text, would be 
revised to read as follows:

Sec. 300.1  Materials incorporated by reference.

    (a) Plant Protection and Quarantine Treatment Manual. The Plant 
Protection and Quarantine Treatment Manual, which was reprinted 
November 30, 1992, and includes all revisions through [insert date], 
has been approved for incorporation by reference in 7 CFR chapter III 
by the Director of the Office of the Federal Register in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51.
* * * * *

PART 319--FOREIGN QUARANTINE NOTICES

    3. The authority citation for part 319 would continue to read as 
follows:

    Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and 
2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).

    4. In Sec. 319.56-2t, the table would be amended by revising the 
entry for tomato from Spain and by adding new entries for tomato from 
France and Morocco and Western Sahara, in alphabetical order, to read 
as follows:

Sec. 319.56-2t  Administrative instructions: conditions governing the 
entry of certain fruits and vegetables.

* * * * *

----------------------------------------------------------------------------------------------------------------
            Country/locality               Common name               Botanical name               Plant part(s) 
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                    *                    *                  *            
                                                          *                                                     
France..................................  Tomato.......  (Lycopersicon esculentum).............  Fruit, only if 
                                                                                                  it is green   
                                                                                                  upon arrival  
                                                                                                  in the United 
                                                                                                  States (pink  
                                                                                                  or red fruit  
                                                                                                  may only be   
                                                                                                  imported from 
                                                                                                  the Region of 
                                                                                                  Brittany and  
                                                                                                  only in       
                                                                                                  accordance    
                                                                                                  with Sec.     
                                                                                                  319.56-2dd of 
                                                                                                  this subpart).
                                                                                                                
*                  *                  *                    *                    *                  *            
                                                          *                                                     
Morocco and Western Sahara..............  Tomato.......  (Lycopersicon esculentum).............  Fruit, only if 
                                                                                                  it is green   
                                                                                                  upon arrival  
                                                                                                  in the United 
                                                                                                  States (pink  
                                                                                                  fruit may only
                                                                                                  be imported   
                                                                                                  from El Jadida
                                                                                                  or Safi       
                                                                                                  Province,     
                                                                                                  Morocco, or   
                                                                                                  Dahkla        
                                                                                                  Province,     
                                                                                                  Western       
                                                                                                  Sahara, and   
                                                                                                  only in       
                                                                                                  accordance    
                                                                                                  with Sec.     
                                                                                                  319.56-2dd of 
                                                                                                  this subpart).
                                                                                                                
*                  *                  *                    *                    *                  *            
                                                          *                                                     
Spain...................................  Tomato.......  (Lycopersicon esculentum).............  Fruit, only if 
                                                                                                  it is green   
                                                                                                  upon arrival  
                                                                                                  in the United 
                                                                                                  States (pink  
                                                                                                  or red fruit  
                                                                                                  may only be   
                                                                                                  imported from 
                                                                                                  Almeria       
                                                                                                  Province and  
                                                                                                  only in       
                                                                                                  accordance    
                                                                                                  with Sec.     
                                                                                                  319.56-2dd of 
                                                                                                  this subpart).
                                                                                                                
*                  *                  *                    *                    *                  *            
                                                          *                                                     
----------------------------------------------------------------------------------------------------------------

* * * * *
    5. Section 319.56-2dd would be revised to read as follows:

Sec. 319.56-2dd  Administrative instructions: conditions governing the 
entry of tomatoes.

    (a) Tomatoes (fruit) (Lycopersicon esculentum) from Spain. Pink or 
red tomatoes may be imported into the United States from Spain only 
under the following conditions: 1
---------------------------------------------------------------------------

    \1\ The surface area of a pink tomato is more than 30 percent 
but not more than 60 percent pink and/or red. The surface area of a 
red tomato is more than 60 percent pink and/or red. Green tomatoes 
may be imported in accordance with Sec. 319.56-2t of this subpart.
---------------------------------------------------------------------------

    (1) The tomatoes must be grown in the Almeria Province of Spain in 
greenhouses registered with, and inspected by, the Spanish Ministry of 
Agriculture, Fisheries, and Food (MAFF);
    (2) The tomatoes may be shipped only from December 1 through April 
30, inclusive;
    (3) Two months prior to shipping, and continuing through April 30, 
MAFF must set and maintain Mediterranean fruit fly (Medfly) traps 
baited with trimedlure inside the greenhouses at a rate of four traps 
per hectare. In all areas outside the greenhouses and within 8 
kilometers, including urban and residential areas, MAFF must place 
Medfly traps at a rate of four traps per square kilometer. All traps 
must be checked every 7 days;
    (4) Capture of a single Medfly in a registered greenhouse will 
immediately result in cancellation of exports from that greenhouse 
until the source of infestation is determined, the Medfly infestation 
is eradicated, and measures are taken to preclude any future 
infestation. Capture of a single Medfly within 2 kilometers of a 
registered greenhouse will necessitate increasing trap density in order 
to determine whether there is a reproducing population in the area. 
Capture of two Medflies within 2 kilometers of a registered greenhouse 
and within a 1-month time period will result in cancellation of exports 
from all registered greenhouses within 2 kilometers of any of the finds 
until the source of infestation is determined and the Medfly 
infestation is eradicated;
    (5) MAFF must maintain records of trap placement, checking of 
traps, and any Medfly captures, and must make the records available to 
APHIS upon request;
    (6) The tomatoes must be packed within 24 hours of harvest. They 
must be safeguarded by a fruit fly-proof mesh screen or plastic 
tarpaulin while in transit to the packing house and while awaiting 
packing, and packed in fruit fly-proof containers for transit to the 
airport and subsequent shipping to the United States. Transit through 
other fruit fly supporting areas is prohibited unless the fruit fly-
proof containers are sealed by MAFF before shipment and the official 
seal number is recorded on the phytosanitary certificate; and
    (7) MAFF is responsible for export certification inspection and 
issuance of phytosanitary certificates. Each shipment of tomatoes must 
be accompanied by a phytosanitary certificate issued by MAFF and 
bearing the declaration, ``These tomatoes were grown in registered 
greenhouses in Almeria Province in Spain.''
    (b) Tomatoes (fruit) (Lycopersicon esculentum) from France. Pink or 
red tomatoes may be imported into the United States from France only 
under the following conditions: \1\
    (1) The tomatoes must be grown in the Brittany Region of France in 
greenhouses registered with, and

[[Page 53768]]

inspected by, the Service de la Protection Vegetaux (SRPV);
    (2) From June 1 through September 30, SRPV must set and maintain 
one Medfly trap baited with trimedlure inside and one outside the 
greenhouse and must check the traps every 7 days;
    (3) Capture of a single Medfly inside or outside a registered 
greenhouse will immediately result in cancellation of exports from that 
greenhouse until the source of the infestation is determined, the 
Medfly infestation is eradicated, and measures are taken to preclude 
any future infestation;
    (4) SRPV must maintain records of trap placement, checking of 
traps, and any Medfly captures, and must make them available to APHIS 
upon request;
    (5) From June 1 through September 30, the tomatoes must be packed 
within 24 hours of harvest. They must be safeguarded by fruit fly-proof 
mesh screen or plastic tarpaulin while in transit to the packing house 
and while awaiting packing, and be packed in fruit fly-proof containers 
for transit to the airport and subsequent shipping to the United 
States. At all times of the year, transit through other fruit fly 
supporting areas is prohibited unless the fruit fly-proof containers 
are sealed by SRPV before shipment and the official seal number is 
recorded on the phytosanitary certificate; and
    (6) SRPV is responsible for export certification inspection and 
issuance of phytosanitary certificates. Each shipment of tomatoes must 
be accompanied by a phytosanitary certificate issued by SRPV and 
bearing the declaration, ``These tomatoes were grown in registered 
greenhouses in the Brittany Region of France.''
    (c) Tomatoes (fruit) (Lycopersicon esculentum) from Morocco and 
Western Sahara. Pink tomatoes may be imported into the United States 
from Morocco and Western Sahara only under the following conditions: 
\1\
    (1) The tomatoes must be grown in the provinces of El Jadida or 
Safi in Morocco or in the province of Dahkla in Western Sahara in 
insect-proof greenhouses registered with, and inspected by, the 
Moroccan Ministry of Agriculture, Division of Plant Protection, 
Inspection, and Enforcement (DPVCTRF);
    (2) The tomatoes may be shipped from Morocco and Western Sahara 
only between December 1 and April 30, inclusive;
    (3) Beginning 2 months prior to the start of the shipping season 
and continuing through the end of the shipping season, DPVCTRF must set 
and maintain Mediterranean fruit fly (Medfly) traps baited with 
trimedlure inside the greenhouses at a rate of four traps per hectare. 
In Morocco, traps must also be placed outside registered greenhouses 
within a 2 kilometer radius at a rate of four traps per square 
kilometer. In Western Sahara, a single trap must be placed outside each 
registered greenhouse. All traps in Morocco and Western Sahara must be 
checked every 7 days;
    (4) DPVCTRF must maintain records of trap placement, checking of 
traps, and any Medfly captures, and make the records available to APHIS 
upon request;
    (5) Capture of a single Medfly in a registered greenhouse will 
immediately result in cancellation of exports from that greenhouse 
until the source of the infestation is determined, the Medfly 
infestation has been eradicated, and measures are taken to preclude any 
future infestation. Capture of a single Medfly within 200 meters of a 
registered greenhouse will necessitate increasing trap density in order 
to determine whether there is a reproducing population in the area. Six 
additional traps must be placed within a radius of 200 meters 
surrounding the trap where the Medfly was captured. Capture of two 
Medflies within 200 meters of a registered greenhouse and within a 1 
month time period will necessitate Malathion bait sprays in the area 
every 7 to 10 days for 60 days to ensure eradication;
    (6) The tomatoes must be packed within 24 hours of harvest. They 
must be safeguarded by a fruit fly-proof mesh screen or plastic 
tarpaulin while in transit to the packing house and while awaiting 
packing, and packed in fruit fly-proof containers for transit to the 
airport and subsequent shipping to the United States. The tomatoes must 
be pink at the time of packing. Transit through other fruit fly 
supporting areas is prohibited unless the fruit fly-proof containers 
are sealed by the Moroccan Ministry of Agriculture, Fresh Product 
Export (EACCE), before shipment and the official seal number is 
recorded on the phytosanitary certificate; and
    (7) EACCE is responsible for export certification inspection and 
issuance of phytosanitary certificates. Each shipment of tomatoes must 
be accompanied by a phytosanitary certificate issued by EACCE and 
bearing the declaration, ``These tomatoes were grown in registered 
greenhouses in El Jadida or Safi Province, Morocco, and were pink at 
the time of packing'' or ``These tomatoes were grown in registered 
greenhouses in Dahkla Province, Western Sahara and were pink at the 
time of packing.''
    (d) Tomatoes from Chile. Tomatoes (fruit) (Lycopersicon esculentum) 
from Chile, whether green or at any stage of ripeness, may be imported 
into the United States only under the following conditions:
    (1) The tomatoes must be treated in Chile with methyl bromide in 
accordance with the PPQ Treatment Manual. The treatment must be 
conducted in facilities registered with the Secretario de Agricultura y 
Ganaderia (SAG) and with APHIS personnel monitoring the treatments;
    (2) The tomatoes must be treated and packed within 24 hours of 
harvest. Once treated, the tomatoes must be safeguarded by a fruit fly-
proof mesh screen or plastic tarpaulin while in transit to the packing 
house and while awaiting packing, and be packed in fruit fly-proof 
containers under APHIS monitoring for transit to the airport and 
subsequent shipping to the United States; and
    (3) Tomatoes may be imported into the United States from Chile only 
if SAG has entered into a trust fund agreement with APHIS for that 
shipping season. This agreement requires SAG to pay in advance all 
costs that APHIS estimates it will incur in providing the preclearance 
services prescribed in this section for that shipping season. These 
costs will include administrative expenses incurred in conducting the 
preclearance services; and all salaries (including overtime and the 
Federal share of employee benefits), travel expenses (including per 
diem expenses), and other incidental expenses incurred by the 
inspectors in providing these services. The agreement requires SAG to 
deposit a certified or cashier's check with APHIS for the amount of 
these costs for the entire shipping season, as estimated by APHIS based 
on projected shipment volumes and cost figures from previous 
inspections. The agreement further requires that, if the initial 
deposit is not sufficient to meet all costs incurred by APHIS, SAG must 
deposit with APHIS another certified or cashier's check for the amount 
of the remaining costs, as determined by APHIS, before the inspections 
will be completed. The agreement also requires that, in the event of 
unexpected end-of-season costs, SAG must deposit with APHIS a certified 
cashier's check sufficient to meet such costs as estimated by APHIS, 
before any further preclearance services will be provided. If the 
amount SAG deposits during a shipping season exceeds the total cost 
incurred by APHIS in providing preclearance services, the difference 
will be returned to SAG by APHIS at the end of the shipping season.

[[Page 53769]]

    Done in Washington, DC, this 9th day of October 1997.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 97-27427 Filed 10-15-97; 8:45 am]
BILLING CODE 3410-34-P
```