[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]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
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 the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 63, No. 140 / Wednesday, July 22, 1998 /
Rules and Regulations
[[Page 39209]]
=======================================================================
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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 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.
---------------------------------------------------------------------------
\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 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. consumer U.S. producer Net gain to Foreign
U.S. tomato market gain revenue loss U.S. society 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.
---------------------------------------------------------------------------
\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: 1
---------------------------------------------------------------------------
\1\ The surface area of a pink tomato is more than 30 percent
but not more than 60 percent pink and/or red. The surface area of a
red tomato is more than 60 percent pink and/or red. Green tomatoes
may be imported in accordance with Sec. 319.56-2t of this subpart.
---------------------------------------------------------------------------
(1) The tomatoes must be grown in the Almeria Province of Spain in
greenhouses registered with, and inspected by, the Spanish Ministry of
Agriculture, Fisheries, and Food (MAFF);
(2) The tomatoes may be shipped only from December 1 through April
30, inclusive;
(3) Two months prior to shipping, and continuing through April 30,
MAFF must set and maintain Mediterranean fruit fly (Medfly) traps
baited with trimedlure inside the greenhouses at a rate of four traps
per hectare. In all areas outside the greenhouses and within 8
kilometers, including urban and residential areas, MAFF must place
Medfly traps at a rate of four traps per square kilometer. All traps
must be checked every 7 days;
(4) Capture of a single Medfly in a registered greenhouse will
immediately result in cancellation of exports from that greenhouse
until the source of infestation is determined, the Medfly infestation
is eradicated, and measures are taken to preclude any future
infestation. Capture of a single Medfly within 2 kilometers of a
registered greenhouse will necessitate increasing trap density in order
to determine whether there is a reproducing population in the area.
Capture of two Medflies within 2 kilometers of a registered greenhouse
and within a 1-month time period will result in cancellation of exports
from all registered greenhouses within 2 kilometers of 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
---------------------------------------------------------------------------
\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:
3
---------------------------------------------------------------------------
\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
