This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

39209

Vol. 63, No. 140

Wednesday, July 22, 1998

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.

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Parts 300 and 319

[Docket No. 97–016–2]

RIN 0579–AA88

Importation of Tomatoes From France,

Morocco and Western Sahara, Chile,

and Spain

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the

regulations governing the importation of

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. This action provides

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 amending 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 are necessary to

prevent the introduction of exotic fruit

flies into the United States.

DATES: This final rule is effective July

22, 1998. The incorporation by reference

of certain publications listed in the

regulations is approved by the Director

of the Federal Register as of July 22,

1998.

FOR FURTHER INFORMATION CONTACT: Mr.

Ronald C. Campbell, Import Specialist,

Phytosanitary Issues Management Team,

PPQ, APHIS, 4700 River Road Unit 140,

Riverdale, MD 20737–1236, (301) 734–

6799; fax (301) 734–5786; e-mail:

rcampbell@aphis.usda.gov.

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.

On October 16, 1997, we published in

the Federal Register (62 FR 53761–

53769, Docket No. 97–016–1) a proposal

to amend the regulations by allowing

fresh tomatoes (Lycopersicon

esculentum) to be imported into the

United States from France, Morocco and

Western Sahara, and Chile under

specific conditions. We proposed to

allow these importations at the request

of various importers and foreign

ministries of agriculture, and after

conducting pest risk analyses 1 that

indicated the tomatoes could be

imported under these conditions

without presenting any significant risk

of introducing fruit flies or other

injurious plant pests into the United

States. We also proposed to amend the

regulations concerning the importation

of tomatoes from Spain by requiring

containers of pink or red tomatoes to be

sealed before shipment if the containers

were to transit other fruit-fly supporting

areas 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.

We solicited comments concerning

our proposal for 60 days ending

December 15, 1997. We received seven

comments by that date. They were from

representatives of State and foreign

governments and producer

organizations, and a university

professor. One comment was favorable

to the proposal. The other commenters

expressed various concerns about our

proposal, all of which are discussed

below.

Comment: The proposal to allow

importation of pink tomatoes from

Morocco and Western Sahara does not

consider the presence of fruit flies other

than the Mediterranean fruit fly

(Medfly). West Africa and North Africa

are home to numerous other fruit fly

species. Also, two moth species, the Old

World bollworm or tomato worm,

Helicoverpa armigera (Huber), and the

tomato moth, Lacanobia oleracea (L.),

could be transported into Florida on

tomatoes from these areas.

Response: We are making no changes

to the proposed rule in response to this

comment. With respect to fruit fly

species other than Medfly, our pest risk

assessment indicates that tomatoes are

not a host to other fruit fly species

found in Morocco and Western Sahara.

We believe that the proposed pest

mitigation measures developed for

tomatoes from Morocco and Western

Sahara will reduce to an insignificant

level the risk of introducing Medfly and

other insect pests, including moth

species, into the United States. Pink

tomatoes from Morocco and Western

Sahara will be grown in insect-proof

greenhouses where the tomatoes are

protected from insects throughout the

growing season. Post-harvest safeguards

required by the rule, including covering

of the fruit by a fruit fly-proof mesh

screen or plastic tarpaulin prior to

packing, and packing in fruit fly-proof

containers, will continue to protect the

tomatoes from insects.

Additionally, in accordance with

§ 319.56–6 of the regulations, all

shipments of fruits and vegetables

imported into the United States are

inspected at the port of arrival for

injurious plant pests. Both Helicoverpa

armigera (Huber) and Lacanobia

oleracea (L.) are visually detectable by

inspection. If a shipment of tomatoes

from Morocco and Western Sahara is

determined to be infested with either of

these pests, or any other pest of concern,

that shipment will either be disinfested

(e.g., cleaned or fumigated), destroyed,

or reexported. If a specific pest

continually appears in shipments of

tomatoes from Morocco and Western

Sahara, we will consider amending our

regulations to require that measures be

taken in Morocco and Western Sahara to

mitigate the presence of that pest.
39210 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations

Comment: Green tomatoes are

authorized entry into the United States

because they are not subject to attacks

by Medfly. Therefore, if tomatoes are

loaded in Spain while ‘‘green’’ (green or

breaker), are shipped to the United

States under controlled conditions, and

are lightly colored upon arrival in the

United States, there is no phytosanitary

justification to prohibit entry. The

Animal and Plant Health Inspection

Service (APHIS) should, therefore,

remove the requirement that tomatoes

be green upon arrival in the United

States.

Response: Tomatoes in general are

considered poor hosts for Medfly, and

we agree that green tomatoes are not

Medfly host material. However, breaker

tomatoes (fruit in the initial stages of

ripeness) are hosts, albeit poor ones.

Because green tomatoes are not required

to be safeguarded in any way while in

transit to the United States, there is

potential for ripening tomatoes that

transit areas where Medfly exists to

become infested. Therefore, we are

requiring that green tomatoes be green

upon arrival in the United States as an

additional precaution against

infestation. Consequently, we are

making no changes to the proposed rule

in response to this comment.

Comment: APHIS states in the

preamble to the proposed rule that

tomatoes will be subject to inspection

and disinfection at the port of first

arrival as may be required by a United

States Department of Agriculture

(USDA) inspector. This means that the

regulations do not explicitly require

inspection of imported tomatoes. In

other words, tomatoes may be imported

into the United States from Medflyinfested areas without being inspected

by APHIS inspectors. Thus, the risk of

introducing the Medfly and other

injurious plant pests into the United

States is much greater than APHIS

suggests.

Response: We proposed to allow

tomatoes to be imported into the United

States from France, Morocco and

Western Sahara, and Chile under a

combination of phytosanitary measures

that constitute a framework of

overlapping, redundant safeguards. In

the case of tomatoes from France and

Morocco and Western Sahara, where the

pest of concern is the Medfly, these

measures include safeguards to protect

the tomatoes from Medfly infestation

while they are growing, as well as after

harvest. In the case of tomatoes from

Chile, where the primary pests of

concern are the tomato fruit moth and

the tomato fruit fly, the measures

include treatment with methyl bromide.

These measures would be applied in the

exporting country, and would, in and of

themselves, be expected to reduce the

risk of the tomatoes introducing plant

pests, including Medfly, to a negligible

level. As an additional precaution, the

tomatoes would be subject to § 319.56–

6 of the regulations, which provides for

inspection of all imported fruits and

vegetables at the port of arrival in the

United States. While not every piece of

imported fruit or vegetable is examined

upon its arrival in the United States, a

certain amount of fruits or vegetables

from each shipment is inspected by

USDA inspectors stationed at the ports.

The amount inspected is based on the

potential pest risk, including whether

there have been past pest interceptions

in similar shipments. In accordance

with § 319.56–6, if an inspector finds

evidence of a plant pest on or in any

fruit or vegetable or its container, or

finds that the fruit or vegetable may

have been associated with other articles

infested with plant pests, the owner of

the produce or the owner’s agent must

clean or treat the produce as required by

an inspector. The inspector may require

additional inspection, cleaning, and

treatment at any time and place. If an

inspector finds that an imported fruit or

vegetable is so infested that, in the

judgment of the inspector, it cannot be

cleaned or treated, or if it contains soil

or other contaminants, or if it otherwise

fails to meet conditions of the

regulations for entry into the United

States, the entire lot will be refused

entry. It is our contention that this

combination of safeguards will reduce

the risk of pest introduction, including

Medfly introduction, to a negligible

level.

Comment: The pest risk assessments

listed a number of pests that might

accompany these shipments of tomatoes

from France, Morocco and Western

Sahara, and Chile. The species listed

were mostly given a high rating in terms

of pest potential, yet the only mitigation

offered is visual inspection upon arrival.

Visual inspection, when suitably and

properly performed will likely find

many of these pests. But, these

inspections are not being performed as

thoroughly and as often as necessary,

and, the discovery of nymphs or other

immature stages that cannot be clearly

identified taxonomically usually results

in nonaction.

Response: As explained in the

response to the previous comment,

every shipment of imported fruits and

vegetables is inspected at the port of

first arrival. While the number of

individual fruits and vegetables

examined in a shipment varies

depending upon various factors related

to pest risk (e.g., the types of pests that

we would expect to be associated with

the shipment, history of past pest

interceptions), we believe the

inspections are adequate to detect pests

if they are present in a shipment. It is

not true that no action is taken if a pest

cannot be clearly identified

taxonomically. If the life stage of a pest,

or any other factor, prevents an

inspector from making an identification

at the port, our policy is to require

cleaning or treatment of the infested

commodity, if feasible, or to refuse

entry. Concurrently, unidentified pests

are often sent on to USDA laboratories,

and sometimes other Federal

laboratories, for positive identification

so that we are aware of any new

potential pest risk that may be

associated with similar shipments in the

future.

Comment: Increased imports from

Medfly-infested areas will increase the

risk of introducing the Medfly and other

devastating plant pests into the United

States, which places U.S. agriculture

and agricultural trade in jeopardy.

Allowing this increased risk is contrary

to APHIS’ obligations under the Federal

Plant Pest Act and the Plant Quarantine

Act.

Response: Both the Federal Plant Pest

Act and the Plant Quarantine Act

prohibit the movement of articles

covered by those Acts, unless the

movement is made in accordance with

such regulations as the Secretary of

Agriculture may promulgate to prevent

the dissemination of plant pests into the

United States or interstate. As explained

earlier in this document and in the

proposed rule, we believe that this rule

will effectively reduce the risk of the

introduction of Medfly and other plant

pests into the United States to an

insignificant level. Therefore, we are

making no changes to the proposal in

response to this comment.

Comment: There appears to be no way

for APHIS to ensure that pink tomatoes

come only from Almeria Province in

Spain, El Jadida and Safi Provinces in

Morocco, or Dahkla Province, Western

Sahara. Additionally, the requirement

that the tomatoes to be shipped be no

more than 30 to 60 percent pink or red

is too subjective. Such a standard is

subject to abuse.

Response: Our proposal provided that

pink tomatoes may be imported into the

United States from Morocco and

Western Sahara only if they are

produced in insect-proof greenhouses in

El Jadida and Safi Provinces, Morocco,

or Dahkla Province, Western Sahara,

that are registered with and inspected

by the Moroccan Ministry of

Agriculture. Additionally, a

phytosanitary certificate will be
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations 39211

required for tomatoes from Morocco and

Western Sahara to ensure the tomatoes

were produced in a registered

greenhouse. We believe that this

requirement adequately ensures that

pink tomatoes from other areas of

Morocco and Western Sahara will not be

exported to the United States. Similar

requirements are already in place for

tomatoes from the Almeria Province of

Spain, and there have been no

problems. Additionally, the description

of a pink tomato as having a surface area

more than 30 percent but not more than

60 percent pink and/or red corresponds

to standard industry color scales for

tomato ripeness. Consequently, we do

not expect any confusion about what

constitutes a pink tomato eligible for

importation into the United States from

Spain, Morocco and Western Sahara.

Therefore, we are making no changes to

the proposed rule in response to this

comment.

Comment: Tomatoes from Chile must

be treated with methyl bromide in

facilities regulated by the Servicio

Agricola y Ganadero (SAG). We expect

the equipment and facilities to be

approved and monitored by APHIS

personnel.

Response: The commenter’s

expectation is correct. In our proposal,

we explicitly stated that the tomatoes

must be treated in Chile with methyl

bromide in accordance with the PPQ

Treatment Manual, and that the

treatment must be conducted in

facilities registered with SAG and with

APHIS personnel monitoring the

treatments.

Comment: APHIS states that if the

proposed rule is adopted, it will

preempt State and local laws regarding

tomatoes imported under this rule

because tomatoes remain in foreign

commerce until sold to the ultimate

consumer. The U.S. Customs Service

has determined with regard to tomatoes

sold in retail grocery stores that the

ultimate consumer is in fact the retail

grocery store and not the retail grocery

store customer. Further, the Suspension

Agreement entered into between the

Department of Commerce and the

foreign producers and shippers that

send tomatoes to the United States

requires that the tomatoes be sold at a

reference price to importers or buyers

other than consumers. Thus, it is

incorrect for APHIS to conclude that

this order preempts State and local

laws.

Response: The position of the USDA

is that fresh fruits and vegetables

imported for immediate sale, such as

tomatoes, remain in foreign commerce

until sold to the ultimate consumer. The

U.S. Customs Service, for the purposes

of the Tariff Act of 1930, as amended,

has defined ‘‘ultimate purchaser’’ for

imports from non-North American Free

Trade Agreement countries as

‘‘generally the last person in the United

States who will receive an article in the

form in which it is imported’’ (19 CFR

134.1(d)). The Custom Service’s

position, while not controlling in

USDA’s administration of its own

statutes, is not inconsistent with

USDA’s position. Further, the

Suspension Agreement referenced by

the commenter refers to an agreement

between the United States and Mexican

tomato growers as to the minimum

prices that Mexican tomato growers can

charge for tomatoes exported to the

United States. The agreement arose out

of an anti-dumping case and is

unrelated to USDA’s determination as to

when foreign commerce ceases under

the plant quarantine laws for tomatoes

imported from France, Morocco and

Western Sahara, Chile, and Spain.

Comment: The current provisions

concerning tomatoes from the Almeria

Province of Spain require Medfly

trapping at a rate much higher than that

proposed for Brittany, yet the risk is

characterized as equivalent. Therefore,

the trapping requirement should be the

same. In any case, the proposal for just

one trap inside and one trap outside the

greenhouse in Brittany does not appear

to be adequate. In addition, there is no

mention as to how the two life-cycle

time period will be determined. Will

this be based on a specific time interval

or a life-cycle model? And, treatments,

where necessary, should continue for

two life-cycles rather than 60 days. It

appears that this will be a requirement

for France, but not for Morocco.

Response: We disagree that the risk is

equivalent between Almeria Province,

Spain, and the Brittany region of France.

Unlike the Almeria Province of Spain,

the climate in Brittany is temperate and

not suitable to support a permanent

Medfly population. Medfly does,

however, occur in southern France and

could be temporarily introduced into

Brittany during the summer months.

Therefore, trapping in France is a

precaution related to the summer

months. Trapping inside and outside

each greenhouse in Brittany is adequate

due to the fact that Medfly is not known

to occur in Brittany and climatic

conditions prevent the establishment of

a permanent population.

Furthermore, the two life-cycle model

has not been proposed for either France

or Morocco and Western Sahara,

because export decisions will not be

based on true area freedom for Medflies.

Requirements that Malathion bait sprays

be applied over a 60-day period when

2 Medflies are trapped within 200

meters of a registered greenhouse within

a 1-month time period is an additional

safeguard for tomatoes from Morocco

and Western Sahara. This provision is

one of several overlapping safeguards in

the systems approach that has been

developed to ensure that Medflies and

other exotic insect pests do not enter the

United States with tomatoes from

Morocco and Western Sahara. It should

not be confused with the two life-cycle

model that has been used by APHIS in

other regulations. Therefore, we are

making no changes to the proposed rule

in response to this comment.

Comment: The tomato fruit fly,

Rhagoletis tomatis, does not occur in

central Chile. Consequently, tomatoes

grown between the 4th and 7th Regions

should be enterable into the United

States subject only to methyl bromide

fumigation for the tomato fruit moth

(Scrobopalpula absoluta). The 4th

through 7th Regions of Chile should be

declared a Rhagoletis tomatis free zone.

Response: Due to the absence of

internal controls for transporting

tomatoes between different regions of

Chile, we do not believe that the 4th

through 7th Regions of Chile should be

declared a Rhagoletis tomatis free zone.

Furthermore, declaration of the 4th

through 7th Regions of Chile as

Rhagoletis tomatis free would not

change any of the treatment

requirements for tomato shipments from

Chile to the United States due to the

endemic presence of the tomato fruit

moth, Scrobopalpula absoluta.

Therefore, we are making no changes to

the proposed rule in response to this

comment.

Comment: The proposed regulations

would require tomatoes from Chile to be

treated with methyl bromide and

packed within 24 hours of harvest, then

packed in fruit-fly-proof containers for

transit to the airport for shipment to the

United States, and all these activities

would have to be conducted under the

monitoring of an APHIS inspector.

Because these preclearance activities

will be taking place in Chile, we believe

that shipments of tomatoes from Chile

should not be subject to the port-ofarrival inspection requirements of

§ 319.56–6.

Response: As noted in the response to

a previous comment, every shipment of

fruits and vegetables, as a condition of

entry into the United States, is

inspected at the port of first arrival in

accordance with § 319.56–6 of the

regulations. Although every vegetable or

piece of fruit might not be examined, a

certain number of fruits or vegetables

from each shipment is inspected, based

on the potential pest risk. That potential
39212 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations

risk may be mitigated to a large degree

by preclearance measures such as those

required for Chilean tomatoes, but we

will not grant a blanket exemption from

port-of-arrival inspection to any

commodity on that basis because of

possible infestations en route and the

necessity to spot check to verify that

prescribed safeguards are followed.

Therefore, we are making no changes to

the proposed rule in response to this

comment.

Therefore, based on the rationale set

forth in the proposed rule and in this

document, we are adopting the

provisions of the proposal as a final rule

without change.

Effective Date

This is a substantive rule that relieves

restrictions and, pursuant to the

provisions of 5 U.S.C. 553, may be made

effective less than 30 days after

publication in the Federal Register.

This rule will facilitate the movement of

fresh tomatoes into the United States,

providing additional sources of

tomatoes for U.S. importers and

increasing the supply of fresh tomatoes

in the U.S. marketplace. Therefore, the

Administrator of the Animal and Plant

Health Inspection Service has

determined that this rule should be

effective upon publication in the

Federal Register.

Executive Order 12866 and the

Regulatory Flexibility Act

This 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 rule allows tomatoes from

France, Morocco and Western Sahara,

and Chile to be imported into the

United States subject to certain

conditions. This action will 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.

This rule also makes 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

U.S. market. Domestic production

accounted for about 95.4 percent of total

supply. About 2.1 million metric tons

(17 percent) of the total quantity of

tomatoes supplied to U.S. consumers

during 1995 were marketed as fresh

tomatoes. Imports from Spain accounted

for less than one-tenth of one percent of

the total quantity of tomatoes supplied

to U.S. consumers during 1995. Imports

from Spain also accounted for less than

one-tenth of one percent of the total

quantity of fresh tomatoes supplied to

U.S. consumers during 1995. Prices and

sources of tomatoes supplied to the U.S.

market are summarized in the following

table:

Source of U.S. tomato supply Quantity (metric

tons)

Total value

($1,000,000)

Average value

per metric ton

Percent of

total quantity

supplied 1

Domestic production:

Fresh market ..................................................................................... 1,489,613 $853.9 $573.20 12.1

Processed market ............................................................................. 10,229,601 725.1 70.88 83.3

Imports:

Fresh market ..................................................................................... 559,117 406.1 725.41 4.6

Processed market ............................................................................. ............................ ............................ ........................ ........................

Total supply ....................................................................................... 12,278,988 1,985.1 161.77 100.0

1Percentage 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.

We estimate that the annual quantity

of tomatoes supplied to the U.S. market

will increase by about 13,700 metric

tons under this rule. About 6,000 metric

tons are expected from Chile; the

remaining 7,700 metric tons will arrive

from France and Morocco and Western

Sahara.

Tomato imports from Morocco and

Western Sahara will be restricted to

arrival during winter months. Imports

from Chile and France will be allowed

entry throughout the year. However,

Chilean tomatoes are expected to be

imported primarily during the winter

months due to seasonal growing

differences between the northern and

southern hemispheres, and shipments

from France are likely to fill a special

market niche for high quality fresh

tomatoes.

Therefore, imported tomatoes from

France, Morocco and Western Sahara,

and Chile will compete primarily with

existing imports and domestic tomatoes

produced during the winter months.

Price discrepancies between the import

and domestic markets indicate that

imports cannot compete with domestic

supplies unless they arrive during the

winter months or for specialty markets.

Prices for all tomatoes supplied to the

U.S. market during 1995 averaged about

$161.77 per metric ton. Prices for

domestic production averaged about

$573.20 per metric ton for fresh

tomatoes and $70.88 per metric ton for

processed tomatoes. By contrast, the

value of imported tomatoes averaged

$725.41 per metric ton during 1995.

Spanish imports, which arrive during

the winter and early spring (December

1 through April 30), averaged $1,695 per

metric ton during the same year. This

price discrepancy is likely due to the

relatively high quality of winter tomato

imports from Spain. During winter

months, there may be some U.S.

producers in Florida and other States

who grow field or greenhouse tomatoes

at higher than average prices. However,

this price differential is not reflected in

the data. Additionally, published price

data for imported tomatoes does not

include shipping costs. If these costs

were incorporated into imported tomato

prices, the average price discrepancy

between domestic and imported prices

would likely be greater. Specific prices

for imported fresh tomatoes from

various countries and regions are

summarized in the following table:
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations 39213

2The 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.

3Small Business Administration; Washington,

DC. SBA data was modified by tomato specific

information contained in the 1992 Census of

Agriculture.

Source of imported tomatoes Quantity

(metric tons)

Total value

(1,000,000)

Average value

per metric ton

Canada ..................................................................................................................................... 11,098 $16.1 $1,452.92

Mexico ...................................................................................................................................... 534,345 366.4 685.67

Other Latin America ................................................................................................................. 53 0.03 525.17

Netherlands .............................................................................................................................. 11,238 18.8 1,674.29

Belgium/Luxembourg ................................................................................................................ 1,195 1.2 2,166.81

Spain ........................................................................................................................................ 657 1.1 1,695.29

Other Western Europe ............................................................................................................. 12 0.02 1,447.61

Asia ........................................................................................................................................... 1,174 1.0 844.15

Africa ........................................................................................................................................ 2 0.002 1,175.00

Total imports ............................................................................................................................. 559,774 406.1 725.41

Note: Shipping cost not included. Columns may not sum due to rounding.

Source: Foreign Agriculture Trade of the United States—FY 1995 Supplement; Table 25; USDA–ERS; Washington, DC.

Our economic analysis first estimated

the potential impact of this rule on total

U.S. tomato production and then

estimated the potential impact on U.S.

production of fresh tomatoes.

The estimated impact on total tomato

production was determined by

assuming that all of the increase in

imports expected as a result of this rule

were directly substitutable for domestic

supplies. In that case, domestic

producers could experience a decline in

tomato prices from $161.77 per metric

ton to $161.45 per metric ton, or $0.32

per metric ton. This estimate assumes a

perfectly inelastic supply, a demand

elasticity of ¥0.5584 2, an initial

quantity supplied of 12.3 million metric

tons, and an increase in imports of

13,700 metric tons. This price decrease

would result in a total revenue decrease

for U.S. producers of $3,929,277, or

about 0.2 percent of the total value of

domestic tomato production. The price

decrease would increase consumer

welfare by $3,931,469, resulting in a

positive, albeit small, net impact to U.S.

society totaling about $2,192. Foreign

producers would realize a gain of about

$2,211,865.

If the impact were restricted to the

fresh market, domestic producers could

experience a decline in fresh tomato

prices from $614.76 per metric ton to

$607.40 per metric ton, or $7.36 per

metric ton. This estimate assumes a

perfectly inelastic supply, a demand

elasticity of ¥0.55842 2, an initial

quantity supplied of 2.1 million metric

tons, and an increase in imports of

13,700 metric tons. This price decrease

would result in a total revenue decrease

for U.S. fresh tomato producers of

$15,083,488, or about 1.8 percent of the

total value of domestic fresh tomato

production. The price decrease would

increase consumer welfare by

$15,133,904, resulting in a positive net

impact to U.S. society totaling about

$50,416. Foreign producers would

realize a gain of about $8,321,380.

Estimated welfare impacts for both the

entire and fresh U.S. tomato markets are

summarized in the following table:

U.S. tomato market U.S. consumer

gain

U.S. producer

revenue loss

Net gain to

U.S. society

Foreign producer gain

Entire market 1 .................................................................................................. $3,931,469 $3,929,277 $2,192 $2,207,070

Fresh market .................................................................................................... 15,133,904 15,083,488 50,416 8,321,380

1 Includes all tomatoes consumed in both the processed and fresh markets.

In summary, this rule will provide

U.S. consumers with additional sources

of tomatoes during winter months and

for specialty markets. Domestic

producers who propagate field or

greenhouse tomatoes during the winter

months may be slightly affected.

However, the relatively low volume of

expected imports (13,700 metric tons

with a maximum value of $8.3 million)

is unlikely to significantly erode the

market share of domestic producers.

The Regulatory Flexibility Act

requires that APHIS specifically

consider the economic impact of this

rule on ‘‘small’’ entities. The SBA has

set forth size criteria by Standard

Industrial Classification (SIC), which

were 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.

Currently there are about 15,438

‘‘small’’ fruit and vegetable producers

and 5,122 ‘‘small’’ wholesale traders of

fresh fruits and vegetables, according to

the SBA criteria. The rule could

negligibly impact some ‘‘small’’

domestic entities. However, because the

supply of tomatoes in the U.S. market

will only increase by about 13,700

metric tons (less than one-tenth of one

percent of total domestic supply) and

domestic producers will continue to

supply more than 95 percent of the

tomatoes consumed in the United States

each year, it does not appear that this

rule will have a significant economic

impact on a substantial number of small

entities.

We solicited comments in our

proposed rule on our Initial Regulatory

Flexibility Analysis. We received

several, which are discussed below.
39214 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations

Comment: These imports will

compete directly with tomatoes

produced in Florida. APHIS states that

tomatoes produced in the fall and

winter months are the off season, but

this is not the off season for tomatoes

produced in Florida. APHIS needs to

specifically address potential impacts

on Florida’s winter tomato industry.

Additionally, APHIS finds that even if

tomatoes compete with domesticallyproduced tomatoes, the impact will be

marginal due to the low volume of

imports. We disagree with this

conclusion as well because even a small

increase in imports can have a large

impact on the price of fresh tomatoes.

Fresh tomatoes are extremely pricesensitive.

Response: We acknowledge that

tomatoes imported from France,

Morocco and Western Sahara, and Chile

will compete with tomatoes produced

during the winter in Florida and other

States. We also acknowledge that fresh

tomato prices are price sensitive. When

potential economic impacts are

restricted to the fresh tomato market,

U.S. producers would likely incur a

revenue loss of $15.1 million as a result

of this rule change. This accounts for

about 1.8 percent of the total annual

value of fresh tomatoes supplied to U.S.

consumers.

Florida producers produced about

344,105 metric tons of fresh tomatoes

between December 1995 and April 1996.

This accounted for about 54 percent of

Florida’s total annual harvest and about

16.8 percent of total fresh tomatoes

supplied to the U.S. market during that

period. The average price for Florida

winter tomatoes between December

1995 and April 1996 was about $703.55

per metric ton. For this reason, it is

likely that competition between

imported and Florida grown tomatoes

would be fairly limited due to the

relatively large price discrepancy that

exists between foreign and domestic

markets. As previously mentioned,

imported tomatoes are likely to fill a

special market niche rather than

substitute for domestic supply.

Comment: We question APHIS’ use of

SBA size standards established for

melon and vegetable producers, and the

conclusions reached using that data, in

its Regulatory Flexibility Analysis for

the proposed rule. Further, we dispute

APHIS’ statement that 95 percent of

tomatoes marketed in the United States

are produced domestically and the

conclusions reached based on that

figure.

Response: As explained above, we

used size standards published by the

SBA for Melon and Vegetable Producers

(SIC code 0161) and Wholesale Traders

of Fresh Fruits and Vegetables (SIC code

5148)—which include producers and

wholesale traders of tomatoes—because

the SBA does not maintain separate size

standards that are specific to tomato

producers or wholesale traders of

tomatoes. We are not aware of any other

published size standards for domestic

tomato producers or wholesale traders

of tomatoes, and the commenter did not

offer any such information. Similarly,

the commenter did not provide any

supporting information or alternative

figures when disputing the proposed

rule’s statement that 95 percent of the

U.S. tomato supply is produced

domestically. As noted in the proposed

rule, we obtained that 95 percent figure

from data published annually in

USDA’S ‘‘Agricultural Statistics’’ and

‘‘Foreign Agricultural Trade of the

United States.’’

Comment: There are several more

current elasticity estimates that could be

used for the economic analysis. Spreen

et al. used a price flexibility of roughly

¥0.28 to estimate the impact of losing

methyl bromide for the Florida

vegetable industry (Spreen et al., ‘‘Use

of Methyl Bromide and the Economic

Impact of Its Proposed Ban on the

Florida Fresh Fruit and Vegetable

Industry.’’ University of Florida Ag.

Exp. Sta. Bull. 898, 1995). Using that

flexibility and the assumptions in the

Initial Regulatory Flexibility Analysis

for the proposed rule, the economic

impact increases to more than $6.1

million. While this may pale in

comparison to the overall U.S. industry,

these increased imports concentrated on

the winter fresh tomato industry could

have more significant impacts. This is

especially true noting the sensitivity of

this industry to increased imports

because of the recent anti-dumping case

resolved by the suspension agreement

signed by Mexican producers with the

U.S. Government. These increased

imports not only jeopardize the

economic health of U.S. producers, but

also jeopardize the suspension

agreement with Mexico that suspended

the anti-dumping case taken to the U.S.

Department of Commerce and U.S.

International Trade Commission.

Response: We agree that use of a

different elasticity measurement would

change the estimated net economic

impact. The literature includes many

examples of tomato elasticities and

price flexibilities that have been

calculated for specific States, regions, or

seasons. The demand elasticity used in

this analysis was originally developed

to calculate potential economic impacts

on a national scale and was, therefore,

appropriate for this analysis.

Furthermore, the suspension

agreement referenced by the commenter

refers to an agreement between the

United States and Mexican tomato

growers as to the minimum prices that

Mexican tomato growers can charge for

tomatoes exported to the United States.

The agreement arose out of an antidumping case and is not related to

tomato imports from France, Morocco

and Western Sahara, and Chile.

Comment: APHIS stated that tomatoes

from France will fill a special market for

higher quality fresh tomatoes. There is

no basis in the record that tomatoes

from France are higher quality tomatoes.

Further, there is nothing in the record

that indicates consumers want an

additional source of tomatoes.

Response: The statement referred to

by the commenter appeared in the

Initial Regulatory Flexibility Analysis

for the proposed rule. We said that

tomatoes from France will be allowed

entry throughout the year and that

* * * ‘‘shipments from France are

likely to fill a special market niche (for

higher quality fresh tomatoes).’’ That

statement was merely an explanation of

how the French tomatoes may be

marketed. This rulemaking is not based

on either the quality of the potential

imports or the demand for them. It only

removes a regulatory barrier that does

not appear necessary from a pest risk

perspective. Other issues are beyond the

scope of this rulemaking.

Comment: This proposed rule will

harm U.S. producers who are still

suffering from losses in excess of $750

million due to increased tomato imports

from Mexico. The U.S. Department of

Commerce found that tomatoes from

Mexico were unfairly dumped into the

U.S. market.

Response: Our economic analysis

indicates that U.S. tomato producers

could experience a revenue decrease of

about $3.9 million. This accounts for

about 0.2 percent of the annual value of

U.S. tomato production. Specific

impacts related to tomato imports from

Mexico are not relevant to this

rulemaking.

Executive Order 12988

This rule allows the importation of

tomatoes from France, Morocco and

Western Sahara, and Chile under certain

conditions. State and local laws and

regulations regarding tomatoes imported

under this rule will be preempted while

the fruit is in foreign commerce.

Tomatoes are generally imported for

immediate distribution and sale to the

consuming public, and will remain in

foreign commerce until sold to the

ultimate consumer. The question of

when foreign commerce ceases in other
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations 39215

cases must be addressed on a case-bycase 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.

National Environmental Policy Act

An environmental assessment and

finding of no significant impact have

been prepared for this rule. The

assessment provides a basis for the

conclusion that the importation of

tomatoes from France, Morocco and

Western Sahara, and Chile will not

present a risk of introducing or

disseminating plant pests and will not

have a significant impact on the quality

of the human environment. Based on

the finding of no significant impact, the

Administrator of the Animal and Plant

Health Inspection Service has

determined that an environmental

impact statement need not be prepared.

The environmental assessment and

finding of no significant impact were

prepared in accordance with: (1) The

National Environmental Policy Act of

1969 (NEPA) (42 U.S.C. 4321 et seq.), (2)

Regulations of the Council on

Environmental Quality for

implementing the procedural provisions

of NEPA (40 CFR parts 1500–1508), (3)

USDA regulations implementing NEPA

(7 CFR part 1b), and (4) APHIS’ NEPA

Implementing Procedures (7 CFR part

372).

Copies of the environmental

assessment and finding of no significant

impact are available for public

inspection 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 inspect copies are requested

to call ahead on (202) 690–2817 to

facilitate entry into the reading room. In

addition, copies may be obtained by

writing to the individual listed under

FOR FURTHER INFORMATION CONTACT.

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

0579–0131.

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 is amended

as follows:

PART 300—INCORPORATION BY

REFERENCE

1. The authority citation for part 300

continues to read as follows:

Authority: 7 U.S.C. 150ee, 154, 161, 162,

and 167; 7 CFR 2.22, 2.80, and 371.2(c).

2. In § 300.1, paragraph (a),

introductory text, is revised to read as

follows:

§ 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

June 1998, 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

continues 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 § 319.56–2t, the table is amended

by revising the entry for Spain and by

adding new entries for France and

Morocco and Western Sahara, in

alphabetical order, to read as follows:

§ 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 § 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 the El Jadida or Safi Province, Morocco, or

Dahkla Province, Western Sahara, and only in accordance with

§ 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 § 319.56–2dd of this subpart).

* * * * * * *
39216 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations

1The 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 § 319.56–2t of this

subpart. 2See footnote 1 in paragraph (a) of this section. 3See footnote 1 in paragraph (a) of this section.

* * * * *

5. Section 319.56–2dd is revised to

read as follows:

§ 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 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 the find 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: 2

(1) The tomatoes must be grown in the

Brittany Region of France in

greenhouses registered with, and

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 each 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 flyproof 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: 3

(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 in the

immediate proximity of 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 2

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;
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations 39217

(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, which is incorporated by

reference at § 300.1 of this chapter. The

treatment must be conducted in

facilities registered with the Servicio

Agricola y Ganadero (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-ofseason 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.

(Approved by the Office of Management and

Budget under control number 0579–0131)

Done in Washington, DC, this 15th day of

July, 1998.

Charles Schwalbe,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 98–19470 Filed 7–21–98; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 211

[INS No. 1920–98]

RIN 1115–AE47

Waiver of Inadmissibility for Certain

Applicants for Admission as

Permanent Residents

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Final rule.

SUMMARY: This rule makes a technical

correction to the Immigration and

Naturalization Service (Service)

regulations that govern the documentary

requirements for immigrants and

corresponding waivers. The regulations

at 8 CFR 211.1(b)(3) permit District

Directors, in individual cases, to waive

the inadmissibility of aliens seeking

admission for permanent residence or as

returning residents who fail to present

the appropriate travel documents. This

rule will clarify that aliens granted

waivers pursuant to 8 CFR 211.1(b)(3)

are not exempt from the visa

requirement, and that carriers remain

liable for fines imposed under section

273(a) of the Act for bring these aliens

to the United States, even if the District

Director grants a waiver of

inadmissibility to the alien at the time

of admission into the United States as

a returning resident. This change is

necessary to conform the language of the

regulations with the statutory authority

which exists to impose a fine when an

alien is transported to the United States

without the proper documentation.

DATES: This rule is effective July 22,

1998.

FOR FURTHER INFORMATION CONTACT: Una

Brien, Immigration and Naturalization

Service, 1400 Wilson Blvd., Suite 210,

Arlington, Virginia 22209, telephone

(202) 305–7018.

SUPPLEMENTARY INFORMATION: Section

273 of the Immigration and Nationality

Act (the Act) imposes a fine on any

carrier who brings to the United States

any alien who lacks the passport or visa

required by law. Section 211(b) of the

Act permits the Attorney General to

waive the inadmissibility of aliens

seeking admission as returning residents

who lack the necessary travel

documents. Under the jurisprudence

developed by the Board of Immigration

Appeals (BIA), whether granting a

waiver of inadmissibility relieves the

carrier of liability for a fine depends on

how the regulation governing the

exercise of this waiver authority is

written. See e.g., Matter of ‘‘Flight SR–

4’’, 10 I&N Dec. 197 (BIA 1963). The BIA

has treated regulations that provide for

a ‘‘blanket’’ waiver as also relieving the

carrier of fine liability. The carrier

remains liable, however, if the

regulations provide for waivers only in

individual cases. See Matter of Plane

‘‘CUT–604’’, 7 I&N Dec. 701, 702 (BIA

1958) citing Matter of PAA Plane ‘‘Flight

204’’, 6 I&N Dec. 810 (BIA 1955).

On March 22, 1996, the Service

published a final rule in the Federal

Register at 61 FR 11717, which

amended the regulations governing

granting waivers of inadmissibility to

nonimmigrants. The purpose of the

amendment was to ensure that when the

Service grants a waiver of

inadmissibility, the carrier is not

relieved from fine liability. On

September 30, 1996, Congress passed

the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996,