[Federal Register Volume 63, Number 140 (Wednesday, July 22, 1998)]
[Rules and Regulations]
[Pages 39209-39217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19470]



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

[[Page 39209]]


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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.

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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: <a href="/cdn-cgi/l/email-protection#4f3d2c2e223f2d2a23230f2e3f27263c613a3c2b2e61282039"><span class="__cf_email__" data-cfemail="e19382808c9183848d8da18091898892cf94928580cf868e97">[email protected]</span></a>.

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 <SUP>1</SUP> 
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.
---------------------------------------------------------------------------

    \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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    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 Sec. 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.

[[Page 39210]]

    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 Medfly-infested 
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 Sec. 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 
Sec. 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

[[Page 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-of-arrival inspection requirements of Sec. 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 Sec. 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

[[Page 39212]]

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:

----------------------------------------------------------------------------------------------------------------
                                                                                                    Percent of  
        Source of U.S. tomato supply          Quantity (metric     Total value     Average value  total quantity
                                                    tons)         ($1,000,000)    per metric ton   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
----------------------------------------------------------------------------------------------------------------
\1\ 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.         

    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:

[[Page 39213]]



----------------------------------------------------------------------------------------------------------------
                                                                    Quantity        Total value    Average value
                  Source of imported tomatoes                     (metric tons)     (1,000,000)   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 <SUP>2</SUP>, 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 <SUP>2</SUP>, 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. consumer   U.S. producer    Net gain to       Foreign   
               U.S. tomato market                      gain        revenue loss    U.S. society    producer gain
----------------------------------------------------------------------------------------------------------------
Entire market <SUP>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.<SUP>3</SUP> 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'' 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.

[[Page 39214]]

    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 domestically-produced 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 price-sensitive.
    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 anti-dumping 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

[[Page 39215]]

cases must be addressed on a case-by-case basis. No retroactive effect 
will be given to this rule, and this rule will not require 
administrative proceedings before parties may file suit in court 
challenging this rule.

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 Sec. 300.1, paragraph (a), introductory text, is 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 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 Sec. 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:


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      Fruit, only if it is green upon 
                                                              esculentum).       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      Fruit, only if it is green upon 
                                                              esculentum).       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 Sec.  319.56-2dd of this  
                                                                                 subpart).                      
                                                                                                                
                *                *                *                *                *                *          
                                                          *                                                     
Spain..........................  Tomato....................  (Lycopersicon      Fruit, only if it is green upon 
                                                              esculentum).       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).                      
                                                                                                                
                *                *                *                *                *                *          
                                                          *                                                     
----------------------------------------------------------------------------------------------------------------


[[Page 39216]]

* * * * *
    5. Section 319.56-2dd is 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: <SUP>1</SUP>
---------------------------------------------------------------------------

    \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 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: <SUP>2</SUP>
---------------------------------------------------------------------------

    \2\ See footnote 1 in paragraph (a) of this section.
---------------------------------------------------------------------------

    (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 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: 
<SUP>3</SUP>
---------------------------------------------------------------------------

    \3\ See footnote 1 in paragraph (a) of this section.
---------------------------------------------------------------------------

    (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;

[[Page 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 Sec. 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-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.

(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


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