[Federal Register Volume 76, Number 64 (Monday, April 4, 2011)]
[Proposed Rules]
[Pages 18419-18421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7894]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed 
Rules

[[Page 18419]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 301 and 319

[Docket No. APHIS-2010-0127]
RIN 0579-AD34


Movement of Hass Avocados From Areas Where Mediterranean Fruit 
Fly or South American Fruit Fly Exist

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to relieve certain restrictions regarding the 
movement of fresh Hass variety avocados. Specifically, we are proposing 
to amend our domestic regulations to provide for the interstate 
movement of Hass avocados from Mediterranean fruit fly quarantined 
areas in the United States with a certificate if the fruit is 
safeguarded after harvest in accordance with specific measures. We are 
also proposing to amend our foreign quarantine regulations to remove 
trapping requirements for Mediterranean fruit fly for Hass avocados 
imported from the State of Michoacan, Mexico, requirements for 
treatment or origin from an area free of Mediterranean fruit fly for 
Hass avocados imported from Peru, and requirements for trapping or 
origin from an area free of South American fruit fly for Hass avocados 
imported from Peru. These actions are warranted in light of research 
demonstrating the limited host status of Hass avocados to Mediterranean 
fruit fly and South American fruit fly. This action would make our 
domestic and foreign requirements for movement of Hass avocados 
consistent with each other and would relieve restrictions for Mexican 
and Peruvian Hass avocado producers. In addition, this action would 
provide a means for Hass avocados to be moved interstate if the 
avocados originate from a Mediterranean fruit fly quarantined area in 
the United States.

DATES: We will consider all comments that we receive on or before May 
4, 2011.

ADDRESSES: You may submit comments by either of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2010-0127 to submit or view comments and 
to view supporting and related materials available electronically.
    <bullet> Postal Mail/Commercial Delivery: Please send one copy of 
your comment to Docket No. APHIS-2010-0127, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2010-0127.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Tony Rom[aacute]n, Import 
Specialist, Regulations, Permits, and Manuals, PPQ, APHIS, APHIS, 4700 
River Road, Unit 133, Riverdale, MD 20737-1231; (301) 734-0627.

SUPPLEMENTARY INFORMATION:

Background

    The domestic fruit fly regulations, contained in 7 CFR 301.32 
through 301.32-10 (referred to below as the domestic regulations), were 
established to prevent the spread of certain fruit fly species, 
including Ceratitis capitata (Mediterranean fruit fly), into 
noninfested areas of the United States. The regulations designate soil 
and many fruits, nuts, vegetables, and berries as regulated articles 
and impose restrictions on the interstate movement of those regulated 
articles from regulated areas.
    Avocado, Persea americana (including the variety Hass), is listed 
as a regulated article for Mediterranean fruit fly, melon fruit fly 
(Bactrocera cucurbitae), Mexican fruit fly (Anastrepha ludens), 
Oriental fruit fly (Bactrocera dorsalis), peach fruit fly (Anastrepha 
zonata), and sapote fruit fly (Anastrepha serpentina) in the 
regulations. Because avocados are listed as regulated articles, they 
may not be moved interstate from an area quarantined for one of those 
fruit flies unless the movement is authorized by a certificate or 
limited permit. In general, avocados may be eligible for a certificate 
if a bait spray is applied to the production site beginning prior to 
harvest and continuing through the end of harvest or if a post-harvest 
irradiation treatment is applied to the fruit. To be eligible for a 
limited permit, a regulated article must be moved to a specific 
destination for specialized handling, utilization, or processing or for 
treatment and meet all other applicable provisions of the regulations. 
For Hass avocados moving interstate from any Mexican fruit fly or 
sapote fruit fly quarantined area, the avocados may be moved interstate 
under certificate if the fruit is safeguarded after harvest in 
accordance with specific measures set out in Sec.  301.32-4(d). We have 
determined that Hass avocados are a host for Mexican fruit fly and 
sapote fruit fly only after harvest; these measures are designed to 
prevent Hass avocados harvested in a quarantined area from being 
infested with these fruit flies after harvest. Avocados handled in 
accordance with these measures are thus allowed to move from the 
quarantined area without further restriction under the certificate.
    The regulations in ``Subpart-Fruits and Vegetables'' (7 CFR 319.56-
1 through 319.56-50, referred to below as the import 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 that are new to or not 
widely distributed within the United States.
    The requirements for importing Hass variety avocados into the 
United States from Michoacan, Mexico, are described in Sec.  319.56-30. 
Those requirements include pest surveys and pest risk-reducing 
practices, treatment, packinghouse procedures, inspection,

[[Page 18420]]

and shipping procedures. Although Mediterranean fruit fly is not known 
to be present in Michoacan, Mexico, the regulations require that 
trapping be conducted for Mediterranean fruit fly and that any fruit 
fly finds are reported to the Animal and Plant Health Inspection 
Service (APHIS).
    The regulations in Sec.  319.56-50 allow the importation into the 
continental United States of Hass avocados from Peru provided that the 
avocados originate from an area free of Mediterranean fruit fly or that 
the avocados have been treated for Mediterranean fruit fly in 
accordance with our phytosanitary treatment regulations in 7 CFR part 
305. In addition, the regulations in Sec.  319.56-50 require that the 
avocados must either originate from an area within Peru that is free of 
South American fruit fly or an area with low pest prevalence for South 
American fruit fly and where trapping for South American fruit fly is 
conducted.
    In response to a proposed rule \1\ published in the Federal 
Register on January 7, 2009 (74 FR 651-664, Docket No. APHIS-2008-
0126), that led to establishment of the Peruvian Hass avocado 
provisions in Sec.  319.56-50, the national plant protection 
organization (NPPO) of Peru commented that Hass avocados attached to 
trees are not hosts for the guava fruit fly (A. striata), or the South 
American fruit fly. In addition, the NPPO commented that there has 
never been a reported interception of Mediterranean fruit fly in Hass 
avocados from Peru. In our final rule published in the Federal Register 
and effective on January 4, 2010 (75 FR 1-13), we stated that more 
research would need to be done in accordance with APHIS's survey and 
sampling protocol to confirm the commenter's assertion with respect to 
Mediterranean fruit fly and South American fruit fly; we did, however, 
acknowledge that guava fruit fly has been demonstrated not to infest 
Hass avocados. Consequently, we did not finalize our proposed 
restrictions related to the movement of Hass avocados from areas where 
the guava fruit fly is present.
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    \1\ To view the proposed rule, the comments we received, and the 
final rule, go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0126.
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    In December 2010, the NPPO of Peru, in collaboration with the 
Peruvian Hass Avocado Growers Association (ProHass), submitted a report 
\2\ supporting the assertion that Hass avocado is not a viable host for 
Mediterranean fruit fly or South American fruit fly and requested that 
we amend Sec.  319.56-50 to relieve the restrictions associated with 
those fruit flies on the movement of Hass avocados from Peru.
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    \2\ Plant Health Division Servicio Nacional de Sanidad Agraria 
(SENASA) Ministry of Agriculture & Technical Department Peruvian 
Hass Avocado Growers Association (ProHass), Nonhost Status of 
Commercial Avocado (Persea americana) ``Hass'' with respect to 
Ceratitis capitata, Anastrepha fraterculus, and Anastrepha striata 
(Diptera: Tephritidae) in Peru. (December 2010).
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    In response to the request by the NPPO of Peru, we prepared a 
commodity import evaluation document (CIED), titled ``Host status of 
``Hass'' avocados to Mediterranean fruit fly Ceratitis capitata 
(Wiedemann) and the South American fruit fly, Anastrepha fraterculus 
(Wiedemann),'' which evaluated the host status of Hass avocados for 
Mediterranean fruit fly and South American fruit fly. The conclusions 
of the CIED, which considers recent research and other references on 
this topic, are consistent with the study by the NPPO of Peru and 
ProHass, which demonstrated that Hass avocados are conditional non-
hosts of Mediterranean fruit fly and South American fruit fly (i.e., 
not hosts under field conditions). While infestation of Hass avocados 
within Peru by Mediterranean fruit fly and South American fruit fly 
were observed during laboratory infestation tests, all deposited eggs 
were encapsulated by callous tissues and died. The main risk is from 
avocado fruit that is outside of the normal population, i.e., the wrong 
cultivar, fruit left to become overripe on the tree, injured or damaged 
fruit, fruit picked up from the ground, or picked fruit left in the 
field for days. Copies of the CIED may be obtained from the person 
listed under FOR FURTHER INFORMATION CONTACT or viewed on the 
Regulations.gov Web site (see ADDRESSES above for instructions for 
accessing Regulations.gov).
    Based on the findings of the study CIED, we believe that the 
trapping requirements for Mediterranean fruit fly for Hass avocados 
imported from the State of Michoacan, Mexico, the treatment 
requirements and origin restrictions for Mediterranean fruit fly for 
imported Hass avocados from Peru, and the trapping requirements and 
origin restrictions for South American fruit fly for imported Hass 
avocados from Peru are no longer warranted. Therefore, we are proposing 
to amend Sec.  319.56-30 by removing paragraph (c)(1)(iii), which 
contains trapping requirements for Mediterranean fruit flies in 
Michoacan, Mexico. We are also proposing to amend Sec.  319.56-50 by 
removing paragraph (d), which requires that Hass avocados from Peru 
originate from places of production where trapping is conducted for 
South American fruit fly in Peru or from areas free of that pest; by 
removing paragraph (e), which requires that Hass avocados from Peru be 
treated for Mediterranean fruit fly or originate from an area in Peru 
free of that pest; and by removing paragraphs (j)(1) through (j)(3), 
which require that the phytosanitary certificate state that the Hass 
avocados in the consignment meet the requirements in paragraphs (d) and 
(e). In addition, we are proposing to amend paragraph (g) to remove the 
fruit cutting requirement for Hass avocados from Peru with respect to 
Mediterranean fruit fly and South American fruit fly and the 
requirement for treatment of Hass avocados from Peru for Mediterranean 
fruit fly. We would retain the fruit cutting requirement for avocado 
seed moth and the inspection for quarantine pests. We would continue to 
require that Hass avocados from Mexico and Peru undergo the post-
harvest safeguarding and other requirements that currently apply for 
their importation into the United States and include requiring that 
fallen fruit be excluded from consignments, that harvested avocados be 
moved from the orchard to the packinghouse within 3 hours of harvest, 
and that avocados moving from the orchard to the packinghouse be 
protected from fruit fly infestations and be accompanied by a field 
record indicating the location of the avocados' originating orchard.
    The findings of the CIED also support providing alternatives to 
treatment for domestic Hass avocado producers. Although there are 
currently no areas within the United States that are quarantined due to 
the presence of Mediterranean fruit fly, in order to make our domestic 
and foreign requirements for movement of Hass avocados consistent with 
each other, we are proposing to amend paragraph (d) in Sec.  301.32-4 
to provide for the interstate movement of Hass avocados from 
Mediterranean fruit fly domestic quarantined areas under certificate if 
the fruit is safeguarded after harvest in accordance with specific 
phytosanitary measures. Those measures would be the same as those that 
currently apply to Hass avocados moving interstate from Mexican fruit 
fly and sapote fruit fly domestic quarantined areas and include 
requiring that fallen fruit be excluded from consignments, that 
harvested avocados be moved from the orchard to the packinghouse within 
3 hours of harvest, and that avocados moving from the orchard to the 
packinghouse be

[[Page 18421]]

protected from fruit fly infestations and be accompanied by a field 
record indicating the location of the avocados' originating orchard. We 
do not have domestic quarantine regulations for South American fruit 
fly.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed 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.
    In accordance with 5 U.S.C. 603, we have performed an initial 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this proposed rule on small entities. Copies of 
the full analysis are available by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site (see 
ADDRESSES above for instructions for accessing Regulations.gov).
    Entities potentially impacted by this rule include U.S. producers 
and importers of Hass avocados, most of which are considered small 
entities. The proposed rule may affect the quantity and/or price of 
Hass avocados imported from Mexico and Peru. In particular, Hass 
avocados imported from these countries may become more competitively 
priced, depending upon the costs of fruit fly quarantine measures 
relative to the other costs of producing and preparing the fruit for 
importation by the United States. APHIS does not have information on 
the extent to which the quantity or price of Hass avocado imports may 
be affected by the proposed rule. In addition, U.S. producers in areas 
quarantined for the Mediterranean fruit fly would benefit from the 
proposed rule by being able to move avocados out of the quarantined 
area under certificate. There are currently no areas in the United 
States quarantined because of Mediterranean fruit fly.
    Based on the information we have, there is no reason to conclude 
that adoption of this proposed rule would result in any significant 
economic effect on a substantial number of small entities. However, we 
do not currently have all of the data necessary for a comprehensive 
analysis of the effects of this proposed rule on small entities. 
Therefore, we are inviting comments on potential effects. In 
particular, we are interested in determining the number and kind of 
small entities that may incur benefits or costs from the implementation 
of this proposed rule.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This proposed rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects

7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

7 CFR Part 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

    Accordingly, we propose to amend 7 CFR parts 301 and 319 as 
follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 continues to read as 
follows:

    Authority:  7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.
    Section 301.75-15 issued under Sec. 204, Title II, Public Law 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 
(7 U.S.C. 1421 note).


Sec.  301.32-4  [Amended]

    2. In Sec.  301.32-4, paragraph (d) introductory text is amended by 
removing the word ``Mexican'' and adding the words ``Mediterranean, 
Mexican,'' in its place.

PART 319--FOREIGN QUARANTINE NOTICES

    3. 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.


Sec.  319.56-30  [Amended]

    4. Section 319.56-30 is amended by removing paragraph (c)(1)(iii).
    5. Section 319.56-50 is amended as follows:
    a. By revising paragraphs (b)(1) and (b)(2) to read as set forth 
below.
    b. By removing paragraphs (d) and (e) and redesignating paragraphs 
(f) through (j) as paragraphs (d) through (h), respectively.
    c. By revising newly redesignated paragraph (g) to read as set 
forth below.
    d. In newly redesignated paragraph (h) introductory text, by 
removing the words ``In addition:'' and by removing newly redesignated 
paragraphs (h)(1) through (h)(3).


Sec.  319.56-50  Hass avocados from Peru.

* * * * *
    (b) * * * (1) The NPPO of Peru must visit and inspect registered 
places of production monthly, starting at least 2 months before harvest 
and continuing until the end of the shipping season, to verify that the 
growers are complying with the requirements of paragraphs (c) and (e) 
of this section and follow pest control guidelines, when necessary, to 
reduce quarantine pest populations. Any personnel conducting trapping 
and pest surveys under paragraph (d) of this section must be trained 
and supervised by the NPPO of Peru. APHIS may monitor the places of 
production if necessary.
    (2) In addition to conducting fruit inspections at the 
packinghouses, the NPPO of Peru must monitor packinghouse operations to 
verify that the packinghouses are complying with the requirements of 
paragraph (f) of this section.
* * * * *
    (g) NPPO of Peru inspection. Following any post-harvest processing, 
inspectors from the NPPO of Peru must inspect a biometric sample of 
fruit from each place of production at a rate to be determined by 
APHIS. The inspectors must visually inspect for the quarantine pests 
listed in the introductory text of this section and must cut fruit to 
inspect for S. catenifer. If any quarantine pests are detected in this 
inspection, the place of production where the infested avocados were 
grown will immediately be suspended from the export program until an 
investigation has been conducted by APHIS and the NPPO of Peru and 
appropriate mitigations have been implemented.
* * * * *

    Done in Washington, DC, this 29th day of March 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-7894 Filed 4-1-11; 8:45 am]
BILLING CODE 3410-34-P