Korean tomatoes okayed for U.S. import

BILLING CODE: 3410-34-P
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. APHIS-2010-0020]
RIN 0579-AD33
Importation of Tomatoes With Stems From the
Republic of Korea Into the United States
AGENCY: Animal and Plant Health Inspection Service,

USDA.
ACTION: Final rule.
SUMMARY: We are amending the fruits and vegetables

regulations to allow, under certain
conditions, the importation into the United States

of commercial consignments of tomatoes with
stems from the Republic of Korea. The conditions

for the importation of tomatoes with stems
from the Republic of Korea will include

requirements for pest exclusion at the production

site,
fruit fly trapping inside and outside the

production site, and pest-excluding packinghouse
procedures. The tomatoes will also be required to

be accompanied by a phytosanitary certificate
issued by the national plant protection

organization of the Republic of Korea with an

additional
declaration confirming that the tomatoes have been

produced in accordance with the
requirements. This action will allow for the

importation of tomatoes with stems from the
Republic of Korea while continuing to provide

protection against the introduction of injurious
plant pests into the United States.
EFFECTIVE DATE: [Insert date 30 days after date of

publication in the Federal Register].
2
FOR FURTHER INFORMATION CONTACT: Mr. Phillip B.

Grove, Regulatory Coordination
Specialist, Regulatory Coordination and Compliance,

PPQ, APHIS, 4700 River Road Unit 156,
Riverdale, MD 20737; (301) 734-6280.
SUPPLEMENTARY INFORMATION:
Background
The regulations in "Subpart–Fruits and Vegetables"

(7 CFR 319.56-1 through 319.56-51,
referred to below as the regulations) prohibit or

restrict the importation of fruits and vegetables
into the United States from certain parts of the

world to prevent the introduction and
dissemination of plant pests.
On March 15, 2011, we published in the Federal

Register (76 FR 13892-13896, Docket
No. APHIS-2010-0020) a proposal1 to amend the

regulations to allow the importation of
commercial consignments of tomatoes with stems from

the Republic of Korea (South Korea)
into the United States if produced under a systems

approach. The proposed systems approach
included requirements for pest-exclusionary

structures, trapping and monitoring inside and
outside the pest-exclusionary structures for the

fruit fly Bactrocera depressa, and packinghouse
procedures designed to exclude the quarantine

pests. We further proposed to require that
consignments of tomatoes with stems from South

Korea be accompanied by a phytosanitary
certificate with an additional declaration stating

that the tomatoes were grown in approved

pestexclusionary
structures and were inspected and found free from

quarantine pests of concern to
the United States.
We solicited comments concerning our proposal for

60 days ending May 16, 2011. We
received six comments by that date. They were from

private citizens and a State department of
1 To view the proposed rule and the comments we

received, go to
http://www.regulations.gov/fdmspublic/component/mai

n?main=DocketDetail&d=APHIS-2010-0020.
3
agriculture. Four commenters supported the proposed

rule. Two commenters were opposed to
the proposed rule.
One of these commenters stated their opposition to

the proposed rule because the climate
and crop production systems of the commenter’s

State would likely be favorable to many pests
that could be imported with tomatoes from South

Korea.
We have determined, for the reasons described in

the risk management document (RMD)
that accompanied the proposed rule, that the

measures specified in the RMD will effectively
mitigate the risk associated with the importation

of tomatoes with stems from South Korea. The
commenter did not provide any evidence suggesting

that the mitigations are not effective.
Therefore, we are not taking the action requested

by the first commenter.
The other commenter expressed concern regarding the

possibility that the South Korean
national plant protection organization (NPPO) could

falsify phytosanitary certificates, which
could lead to pest introductions that would put

U.S. farmers out of business.
South Korea is a signatory to the International

Plant Protection Convention (IPPC), like
the United States. As a signatory to the IPPC, one

of South Korea’s responsibilities is to issue
phytosanitary certificates with accurate and

complete information. We have no reason to doubt
that South Korea will do this.
Therefore, for the reasons given in the proposed

rule and in this document, we are
adopting the proposed rule as a final rule, without

change.
Executive Order 12866 and Regulatory Flexibility

Act
This final rule has been determined to be not

significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed

by the Office of Management and Budget.
4
In accordance with the Regulatory Flexibility Act,

we have analyzed the potential
economic effects of this action on small entities.

The analysis is summarized below. Copies of
the full analysis are available on the

Regulations.gov Web site (see footnote 1 in this

document
for a link to Regulations.gov) or by contacting the

person listed under FOR FURTHER
INFORMATION CONTACT.
This final rule amends the regulations to allow,

under certain conditions, the importation
into the continental United States of fresh

tomatoes with stems from the Republic of Korea
(South Korea). APHIS has concluded, based on a pest

risk analysis, that a systems approach will
mitigate the risk associated with importing this

fruit.
South Korea expects to export one 40-foot shipping

container of fresh tomatoes with
stems per year to the United States. A shipping

container can hold about 25 metric tons (MT) of
tomatoes with stems. In 2009, the United States

produced 1.47 million MT of tomatoes, U.S.
imports reached 1.19 million MT, and U.S. exports

were 0.17 million MT. Thus, the total U.S.
supply of tomatoes for this period was

approximately 2.49 million MT (production plus

imports
minus exports). This quantity greatly dwarfs the

relatively small amount that is expected to be
imported from South Korea.
We also note that the average price of tomatoes

exported from South Korea in 2009 was
$2,447 per MT, compared to an average price of U.S.

tomato imports of less than half that
amount, $1,180 per MT. This large price difference

implies that tomato imports from South
Korea may not be widely competitive in the United

States; South Korean exporters may intend to
target U.S. specialty vegetable markets or certain

ethnic consumer groups with special preference
for Korean tomatoes with stems if they expect to

earn prices comparable to South Korea’s
average 2009 export price level.
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Farms producing tomatoes in open fields are

classified within the North American
Industry Classification System under “Other

vegetable (except potato) and melon farming”
(NAICS 111219). Farms producing tomatoes in

greenhouses are classified under “Other food
crops grown under cover” (NAICS 111419). For both

industry classifications, a business is
considered to be a small entity if its annual

receipts are not more than $750,000.
The average market value of crops sold by farms

classified within “Other vegetable
(except potato) and melon farming” in 2007 was

$312,333. We infer that the majority of the
25,809 farms that produced tomatoes in open fields

that year were small. The average market
value of crops sold by farms classified within

“Food crops grown under cover” (NAICS 11141)
in 2007 was $758,687. We infer that at least some

of the 2,926 farms that produced tomatoes in
greenhouses were small entities. While the majority

of tomato farms are small, the impact of
importation of tomatoes with stems from South Korea

will be negligible.
Under these circumstances, the Administrator of the

Animal and Plant Health Inspection
Service has determined that this action will not

have a significant economic impact on a
substantial number of small entities.
Executive Order 12988
This final rule allows tomatoes with stems to be

imported into the United States from the
Republic of Korea. State and local laws and

regulations regarding tomatoes imported under this
rule will be preempted while the fruit is in

foreign commerce. Fresh fruits are generally
imported for immediate distribution and sale to the

consuming public, and remain in foreign
commerce until sold to the ultimate consumer. The

question of when foreign commerce ceases
in other cases must be addressed on a case-by-case

basis. No retroactive effect will be given to
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this rule, and this rule will not require

administrative proceedings before parties may file

suit in
court challenging this rule.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of

1995 (44 U.S.C. 3501 et seq.), the
information collection or recordkeeping

requirements included in this rule have been

approved
by the Office of Management and Budget (OMB) under

OMB control number 0579-0371.
E-Government Act Compliance
The Animal and Plant Health Inspection Service is

committed to compliance with the
E-Government Act to promote the use of the Internet

and other information technologies, to
provide increased opportunities for citizen access

to Government information and services, and
for other purposes. For information pertinent to

E-Government Act compliance related to this
rule, please contact Mrs. Celeste Sickles, APHIS'

Information Collection Coordinator, at
(301) 851-2908.
List of Subjects in 7 CFR Part 319
Coffee, Cotton, Fruits, Imports, Logs, Nursery

stock, Plant diseases and pests,
Quarantine, Reporting and recordkeeping

requirements, Rice, Vegetables.
Accordingly, we are amending 7 CFR part 319 as

follows:
PART 319–FOREIGN QUARANTINE NOTICES
1. The authority citation for part 319 continues to

read as follows:
Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786;

21 U.S.C. 136 and 136a; 7 CFR
2.22, 2.80, and 371.3.
2. A new § 319.56-52 is added to read as follows:
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§ 319.56-52 Tomatoes with stems from the Republic

of Korea.
Fresh tomatoes with stems (Solanum lycopersicum L.)

(Synonym: Lycopersicon
esculentum P. Mill.) may be imported into the

United States from the Republic of Korea only
under the conditions described in this section.

These conditions are designed to prevent the
introduction of the following quarantine pests:

Bactrocera depressa, Heliocoverpa armigera,
Heliocoverpa assulta, Mamestra brassicae, Ostrinia

furnacalis, Scirtothrips dorsalis, and Thrips
palmi.
(a) Registered pest-exclusionary structures. The

tomatoes must be grown in pestexclusionary
structures that are registered with the national

plant protection organization (NPPO)
of the Republic of Korea and approved by the NPPO

of the Republic of Korea and APHIS.
(1) The pest-exclusionary structures must be

equipped with double self-closing doors.
(2) Any vents or openings in the pest-exclusionary

structures (other than the double selfclosing
doors) must be covered with 1.6 mm or smaller

screening in order to prevent the entry of
pests into the pest-exclusionary structures.
(3) The pest-exclusionary structures must be

inspected monthly throughout the growing
season (March through November) by the NPPO of the

Republic of Korea or its approved
designee to ensure that phytosanitary procedures

are employed to exclude plant pests and
diseases and to verify that the screening is

intact.
(b) Trapping for Bactrocera depressa. Trapping for

B. depressa is required both inside
and outside the pest-exclusionary structures.

Trapping must begin at least 2 months prior to the
start of harvest and continue until the end of

harvest.
(1) Inside the pest-exclusionary structures.

APHIS-approved traps with an APHISapproved
protein bait must be placed inside the

pest-exclusionary structures at a density of at
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least two traps per pest-exclusionary structure.

The traps must be serviced at least once per
week. If a single B. depressa is captured in a trap

inside a pest-exclusionary structure, the NPPO
of the Republic of Korea will immediately prohibit

that pest-exclusionary structure from
exporting tomatoes to the United States and notify

APHIS of the action. The prohibition will
remain in effect until the NPPO of the Republic of

Korea and APHIS agree that the risk has been
mitigated.
(2) Outside the pest-exclusionary structures.

APHIS-approved traps with an approved
protein bait must be placed in a 500-meter-wide

buffer area around the registered pestexclusionary
structure at a density of one trap per 10 hectares.

During the months of March
through November, at least one trap must be placed

in the buffer area near each pestexclusionary
structure. The traps must be serviced at least once

per week. If three B. depressa
are found inside the buffer zone within 2

kilometers of each other within a 30-day period,

the
NPPO of the Republic of Korea will immediately

prohibit all registered pest-exclusionary
structures within 2 kilometers of the finds from

exporting tomatoes to the United States and
notify APHIS of the action. The prohibition will

remain in effect until the NPPO of the Republic
of Korea and APHIS agree that the risk has been

mitigated.
(3) Records of trap placement, trap servicing, and

fruit fly captures for each pestexclusionary
structure must be kept for at least 1 year and

trapping records provided to the NPPO
of the Republic of Korea each month. The NPPO of

the Republic of Korea must make the
records available to APHIS for review upon request.
(c) Packinghouse procedures. The tomatoes must be

packed within 24 hours of harvest in
a pest-exclusionary packinghouse. During the time

the packinghouse is in use for exporting
tomatoes to the United States, the packinghouse may

only accept tomatoes from registered pest9
exclusionary structures. A random sample of fruit

per lot, as determined by the NPPO of the
Republic of Korea and agreed to by APHIS, must be

inspected for external pests and the fruit
must be cut to reveal internal pests. Each sample

must be of sufficient size in order to detect pest
infestations. Any damaged, diseased, or infested

fruit should be removed and separated from the
commodity destined for export. The tomatoes must be

safeguarded by an insect-proof mesh,
screen, or plastic tarpaulin while in transit from

the production site to the packinghouse and
while awaiting packing. The tomatoes must be packed

in insect-proof cartons or containers, or
covered with insect-proof mesh or plastic

tarpaulin, for transit to the United States. These
safeguards must remain intact until the arrival of

the tomatoes in the United States or the
consignment will not be allowed to enter the United

States.
(d) Commercial consignments. Tomatoes with stems

from the Republic of Korea may be
imported in commercial consignments only.
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(e) Phytosanitary certificate. Each consignment of

tomatoes must be accompanied by a
phytosanitary certificate of inspection issued by

the NPPO of the Republic of Korea bearing the
following additional declaration: “Tomatoes in this

consignment were grown in pestexclusionary
structures in accordance with 7 CFR 319.56-52 and

were inspected and found free
from Bactrocera depressa, Heliocoverpa armigera,

Heliocoverpa assulta, Mamestra brassicae,
Ostrinia furnacalis, Scirtothrips dorsalis, and

Thrips palmi.”
(Approved by the Office of Management and Budget

under control number 0579-0371)
Done in Washington, DC, this 5th day of October

2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health

Inspection Service.
[FR Doc. 2011-26345 Filed 10/11/2011 at 8:45 am;

Publication Date: 10/12/2011]