81372 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

1To view the proposed rule and the comments 

we received, go to http://www.regulations.gov/ 

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2008-0060. 

of civil and criminal laws; investigations, 

inquiries, and proceedings thereunder; 

national security and intelligence activities; 

and protection of the President of the U.S. or 

other individuals pursuant to Section 3056 

and 3056A of Title 18. The DHS/USCIS–012 

CIDR System of Records contains information 

that is collected by, on behalf of, in support 

of, or in cooperation with DHS and its 

components and may contain PII collected by 

other federal, state, local, tribal, foreign, or 

international government agencies. The 

Secretary of Homeland Security has 

exempted this system from the following 

provisions of the Privacy Act, subject to 

limitations set forth in 5 U.S.C. 552a(c)(3); 

(d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) 

pursuant to 5 U.S.C. 552a (k)(1) and (k)(2). 

Exemptions from these particular subsections 

are justified, on a case-by-case basis to be 

determined at the time a request is made, for 

the following reasons: 

(a) From subsection (c)(3) (Accounting for 

Disclosures) because release of the 

accounting of disclosures could alert the 

subject of an investigation of an actual or 

potential criminal, civil, or regulatory 

violation to the existence of the investigation, 

and reveal investigative interest on the part 

of DHS as well as the recipient agency. 

Disclosure of the accounting would therefore 

present a serious impediment to law 

enforcement efforts and/or efforts to preserve 

national security. Disclosure of the 

accounting could also permit the individual 

who is the subject of a record to impede the 

investigation, to tamper with witnesses or 

evidence, and to avoid detection or 

apprehension, which would undermine the 

entire investigative process. 

(b) From subsection (d) (Access to Records) 

because access to the records contained in 

this system of records could inform the 

subject of an investigation of an actual or 

potential criminal, civil, or regulatory 

violation, to the existence of the 

investigation, and reveal investigative 

interest on the part of DHS or another agency. 

Access to the records could permit the 

individual who is the subject of a record to 

impede the investigation, to tamper with 

witnesses or evidence, and to avoid detection 

or apprehension. Amendment of the records 

could interfere with ongoing investigations 

and law enforcement activities and would 

impose an impossible administrative burden 

by requiring investigations to be 

continuously reinvestigated. In addition, 

permitting access and amendment to such 

information could disclose security-sensitive 

information that could be detrimental to 

homeland security. 

(c) From subsection (e)(1) (Relevancy and 

Necessity of Information) because in the 

course of investigations into potential 

violations of federal law, the accuracy of 

information obtained or introduced 

occasionally may be unclear or the 

information may not be strictly relevant or 

necessary to a specific investigation. In the 

interests of effective law enforcement, it is 

appropriate to retain all information that may 

aid in establishing patterns of unlawful 

activity. 

(d) From subsections (e)(4)(G), (e)(4)(H), 

and (e)(4)(I) (Agency Requirements), and (f) 

(Agency Rules) because portions of this 

system are exempt from the individual access 

provisions of subsection (d) for the reasons 

noted above, and therefore DHS is not 

required to establish requirements, rules, or 

procedures with respect to such access. 

Providing notice to individuals with respect 

to existence of records pertaining to them in 

the system of records or otherwise setting up 

procedures pursuant to which individuals 

may access and view records pertaining to 

themselves in the system would undermine 

investigative efforts and reveal the identities 

of witnesses, and potential witnesses, and 

confidential informants. 

Dated: December 14, 2010. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2010–32540 Filed 12–27–10; 8:45 am] 

BILLING CODE 9111–97–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 319 

[Docket No. APHIS–2008–0060] 

RIN 0579–AD13 

Hass Avocados From Mexico; 

Importation Into the Commonwealth of 

Puerto Rico and Other Changes 

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 provide for the 

importation of Hass avocados from 

Mexico into Puerto Rico under the same 

systems approach currently required for 

the importation of Hass avocados into 

all States of the United States from 

Michoaca ́n, Mexico. The systems 

approach requirements include 

trapping, orchard certification, limited 

production area, trace back labeling, 

pre-harvest orchard surveys for all pests, 

orchard sanitation, post-harvest 

safeguards, fruit cutting and inspection 

at the packinghouse, port-of-arrival 

inspection, and clearance activities. 

This action will allow for the 

importation of Hass avocados from 

Michoaca ́n, Mexico, into Puerto Rico 

while continuing to provide protection 

against the introduction of quarantine 

pests. In addition, we are amending the 

regulations to provide for the Mexican 

national plant protection organization to 

use an approved designee to inspect 

avocados for export and to suspend 

importation of avocados into the United 

States from Michoaca ́n, Mexico, only 

from specific orchards or packinghouses 

when quarantine pests are detected, 

rather than suspending imports from the 

entire municipality where the affected 

orchards or packinghouses are located. 

These changes will provide additional 

flexibility in operating the export 

program while continuing to provide 

protection against the introduction of 

quarantine pests. 

DATES: Effective Date: December 28, 

2010. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David B. Lamb, Import Specialist, 

Regulatory Coordination and 

Compliance, PPQ, APHIS, 4700 River 

Road, Unit 133, Riverdale, MD 20737– 

1231; (301) 734–0627. 

SUPPLEMENTARY INFORMATION: 

Background 

Under the regulations in ‘‘Subpart— 

Fruits and Vegetables’’ (7 CFR 319.56–1 

through 319.56–50, referred to below as 

the regulations), the Animal and Plant 

Health Inspection Service (APHIS) 

prohibits or restricts the importation of 

fruits and vegetables into the United 

States from certain parts of the world to 

prevent plant pests from being 

introduced into and spread within the 

United States. 

The requirements for importing Hass 

avocados into the United States from 

Michoaca ́n, Mexico, are described in 

§ 319.56–30. Those requirements 

include pest surveys and pest riskreducing practices, treatment, 

packinghouse procedures, inspection, 

and shipping procedures. 

On May 14, 2010, we published in the 

Federal Register (75 FR 27225–27227, 

Docket No. APHIS–2008–0060) a 

proposal 1 to amend the regulations to: 

• Allow the importation of Hass 

avocados from Michoaca ́n, Mexico, into 

Puerto Rico, under the same conditions 

required for importation into the 50 

States; 

• Provide for the Mexican national 

plant protection organization (NPPO) to 

use an approved designee to inspect 

avocados for export; and 

• Limit the scope of suspension of 

export certification to the orchard or 

packinghouse in which pests are found, 

rather than the municipality in which 

the orchard or packinghouse is located. 

We solicited comments concerning 

our proposal for 60 days ending July 13, 

2010. We received four comments by 

that date. They were from associations 

of avocado producers and 

representatives of State and foreign 


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Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 81373 

2To view this and other ISPMs on the Internet, 

go to http://www.ippc.int/ and click on the 

‘‘Adopted Standards’’ link under the ‘‘Core 

activities’’ heading. 

governments. They are discussed below 

by topic. 

General Comments 

One commenter stated that invasive 

pests are one of the foremost challenges 

for California avocado growers and that 

research has definitively shown that 

some of the most pernicious avocado 

pests presently found in California 

originated in Mexico and Central 

America. This commenter stated that 

growers are apprehensive about any 

modification of export protocols that 

shifts risk to the domestic producer, and 

the commenter characterized the 

proposed rule as an example of such 

risk-shifting. 

The commenter did not specify which 

pernicious avocado pests prompted this 

concern. The regulations in § 319.56–30 

set out a systems approach designed to 

mitigate the risk of introducing 

quarantine pests via the importation of 

Hass avocados from Mexico into the 

United States. By any measure, the 

systems approach has been successful at 

this goal. In 9 years of fruit cutting and 

inspection of Hass avocados imported 

from Mexico, over 28 million fruit were 

examined (20.2 million in the orchards, 

7.2 million in packinghouses, and 

602,490 at border inspection ports) for 

pests. Twice, the quarantine pest 

Contrachelus perseae was found, both 

times in backyard avocados that would 

not have been eligible to be exported to 

the United States. Both outbreaks of this 

pest were eradicated. All other avocados 

from this export program have been 

found to be free of quarantine pests. 

There is no evidence that the 

importation of Hass avocados from 

Mexico has resulted in the introduction 

of quarantine pests into the United 

States. 

The proposed changes are minor 

updates designed to provide additional 

flexibility in operating the export 

program while continuing to provide 

protection against the introduction of 

quarantine pests. 

Allowing the Importation of Hass 

Avocados From Mexico Into Other U.S. 

Territories 

We did not receive any comments 

expressing concern about allowing the 

importation of Hass avocados from 

Mexico into Puerto Rico. However, one 

commenter requested that we eliminate 

all restrictions on the importation and 

distribution of Hass avocados to the U.S. 

territories as well. The commenter 

stated that, unless there is a sound 

scientific reason to ban Mexican Hass 

avocados from being distributed into the 

U.S. territories, APHIS should allow the 

trade, whether or not there has been a 

formal diplomatic request to lift this 

trade barrier. The commenter stated that 

the Plant Protection Act (7 U.S.C. 7701 

et seq.) clearly considers the territories 

to be part of the United States. 

The commenter noted that Hass 

avocados produced in California, Chile, 

New Zealand, and the Dominican 

Republic can all be imported or moved 

interstate to the U.S. territories without 

any additional safeguards or other 

mitigations for known pests. The 

commenter stated that if APHIS were to 

maintain such restrictions on Mexican 

Hass avocados without a scientific 

justification, it would risk violating the 

nondiscrimination provisions of the 

World Trade Organization’s Agreement 

on the Application of Sanitary and 

Phytosanitary Measures and the 

comparable provisions of the North 

American Free Trade Agreement. 

Finally, the commenter stated, 

maintaining a trade restriction may trap 

unwary U.S. or Mexican produce 

handlers who are consolidating 

shipments of produce to the territories. 

The commenter also stated that, if the 

commenter’s proposed change was 

adopted, it would be appropriate to 

eliminate box markings for restricted 

distribution, as the extremely small 

markets in the U.S. territories would not 

justify the expensive and burdensome 

box marking and storage arrangements 

that would be necessary for packers, 

importers, and marketers, nor the 

potential compliance costs incurred by 

APHIS. 

Section 319.56–1 prohibits the 

importation of all fruits or vegetables 

except as provided in the regulations. 

We only allow the importation of fruits 

or vegetables after conducting an 

analysis of the pest risk associated with 

the importation of said fruits or 

vegetables. As noted in the commodity 

import evaluation document we made 

available to the public along with the 

proposed rule, the risks associated with 

the importation of Hass avocados from 

Mexico to U.S. territories have not been 

analyzed. Therefore, we will not allow 

such importation until an analysis is 

completed. The differing pest situations 

in each of the territories require us to 

conduct separate analyses regarding the 

importation of Hass avocados from 

Mexico into each territory. 

Hass avocados produced in California 

have historically been allowed to move 

freely within the United States, which, 

as the commenter notes, clearly 

includes the territories; we expect that 

any pests associated with the interstate 

movement of avocados from California 

would have been introduced into the 

territories long ago. The risk analyses for 

the importation of Hass avocados from 

Chile, New Zealand, and the Dominican 

Republic all included analysis specific 

to the territories. 

As the importation of most fruits and 

vegetables is prohibited under § 319.56– 

1, we ask that foreign governments 

interested in exporting fruits and 

vegetables to the United States, or to 

new areas within the United States, 

make formal requests to do so, so that 

we can prioritize our risk analysis 

activity. If we receive a formal request 

to analyze the risks associated with the 

importation of Hass avocados from 

Mexico into the U.S. territories, we will 

consider it. 

With respect to the commenter’s 

concern regarding produce handlers, for 

consignments imported into the 50 

States and Puerto Rico, we will include 

as a condition of the import permit a 

prohibition on moving the avocados to 

any U.S. territory. In the past, we have 

found such restrictions to be effective at 

preventing the unauthorized interstate 

movement of fruits and vegetables. As 

part of allowing the importation of Hass 

avocados from Mexico into Puerto Rico, 

we proposed to remove the requirement 

for marking boxes to indicate limitations 

on their distribution from paragraph 

(c)(3)(vii) of § 319.56–30 for that reason. 

However, we are not removing the 

remaining box marking requirements in 

paragraph (c)(3)(vii), which require the 

avocados to be packed in boxes or crates 

that are clearly marked with the identity 

of the grower, packinghouse, and 

exporter. This information is necessary 

in case we need to conduct traceback on 

Hass avocados imported from Mexico. 

Use of an Approved Designee To Inspect 

Avocados for Export 

The regulations in § 319.56– 

30(c)(3)(iv) require samples of Hass 

avocados produced in Michoaca ́n, 

Mexico, to be selected, cut, and 

inspected by the Mexican NPPO and 

found free from pests. We proposed to 

amend that paragraph to provide for 

avocados to be selected, cut, and 

inspected by either the Mexican NPPO 

or its approved designee. We stated that 

the use of approved designees in 

situations such as this is consistent with 

the International Plant Protection 

Convention’s International Standard for 

Phytosanitary Measures (ISPM) No. 20,2

which, among other things, describes a 

system that NPPOs may use to authorize 

other government services, nongovernmental organizations, agencies, or 


srobinson on DSKHWCL6B1PROD with RULES
81374 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

3http://www.biocontrol.ucr.edu/Stenoma/ 

Stenoma.html. 

persons to act on their behalf for certain 

defined functions. 

One commenter supported this 

change, but stressed the importance of 

reviewing the criteria that will be 

utilized by the Mexican NPPO to choose 

a designee for these purposes. Another 

commenter noted that ISPM No. 20 

states that, for the use of approved 

designees, the ISPM guidelines state 

that ‘‘operational procedures’’ are 

required and that ‘‘procedures should be 

developed for the demonstration of 

competency and for audits, corrective 

actions, system review and withdrawal 

of authorization.’’ This commenter 

recommended that APHIS require the 

Mexican NPPO to provide detailed 

procedures consistent with ISPM No. 20 

before making this change. The 

commenter also recommended that the 

regulations indicate that APHIS retains 

the right to conduct periodic audits to 

verify that the procedures, once 

implemented, are being properly 

performed by the NPPO’s designee. 

We will review and approve the 

Mexican NPPO’s procedures for 

approving designees to select, cut, and 

inspect fruit before the Mexican NPPO 

begins using approved designees. The 

specific process by which this takes 

place will be detailed in the workplan 

that the Mexican NPPO provides to 

APHIS annually. APHIS must approve 

the workplan. For that reason, it is not 

necessary to delay changing the 

regulations in order to ensure that 

APHIS can review and approve the 

Mexican NPPO’s procedures for 

approving designees. With respect to the 

second commenter’s other 

recommendation, the introductory text 

of paragraph (c) of § 319.56–30 already 

indicates that APHIS will be directly 

involved with the NPPO in the 

monitoring and supervision of activities 

carried out under § 319.56–30. This 

would include monitoring the 

procedures for approving designees. 

Two commenters recommended that 

we allow the Mexican NPPO to use 

approved designees for the pest surveys 

and trapping required in paragraph 

(c)(1) of § 319.56–30. The commenters 

stated that there may be many highly 

qualified entomologists or other experts 

in the private sector that would be 

available for contracting with the 

Mexican NPPO to carry out 

phytosanitary tasks in the avocado 

orchards. 

These commenters suggested that we 

amend the introductory text of 

paragraph (c), which currently indicates 

that personnel carrying out tasks 

required in paragraph (c) must be 

‘‘hired, trained, and supervised by the 

Mexican NPPO,’’ to indicate that it 

allows the use of accredited inspectors 

to perform these tasks. 

It was necessary to amend paragraph 

(c)(3)(iv) in order to accommodate the 

use of approved designees because that 

paragraph specifically required the 

Mexican NPPO to select, cut, and 

inspect fruit. However, the requirement 

that personnel who perform tasks 

required in paragraph (c) of § 319.56–30 

be hired, trained, and supervised by the 

Mexican NPPO does not mean that 

those personnel have to be employees of 

the Mexican NPPO; they can be hired as 

contractors, provided that they are 

trained and supervised by the Mexican 

NPPO, and provided that they operate 

in accordance with the various 

procedures described in ISPM No. 20. 

Thus, the regulations already 

accommodate the use of approved 

designees for these functions. We 

appreciate the opportunity to clarify this 

point. 

Limiting the Scope of Suspension of 

Export Certification 

Paragraph (e) of § 319.56–30 sets out 

the procedures that are followed when 

a pest is detected in the surveys and 

inspections required in paragraph (c). 

Under paragraph (e)(1), when avocado 

seed pests other than the avocado stem 

weevil Copturus aguacatae (Heilipus 

lauri, Conotrachelus aguacatae, C. 

perseae, or Stenoma catenifer) are 

detected during semiannual pest 

surveys, orchard surveys, packinghouse 

inspections, or other monitoring or 

inspection activities, the entire 

municipality in which the pests are 

discovered loses its pest-free 

certification and avocado exports from 

that municipality are suspended. 

However, our regulations in paragraphs 

(e)(2) and (e)(3) call for the suspension 

of the export certification of individual 

orchards and packinghouses where the 

avocado stem weevil, Copturus 

aguacatae, is detected, rather than for 

the suspension of the export 

certification of the entire municipality. 

Based on our experience with the 

avocado seed pests in the Mexican Hass 

avocado export program, we proposed 

to replace paragraphs (e)(1) through 

(e)(3) of § 319.56–30 with a new 

paragraph (e) stating that suspension of 

avocado shipments applies to orchards 

or packinghouses within a municipality 

when H. lauri, C. aguacatae, C. perseae, 

Copturus aguacatae, or S. catenifer are 

detected. 

One commenter stated that APHIS 

should establish a buffer zone with a 

radius of at least 1 square mile from the 

specific site where an avocado seed pest 

is detected. The commenter added that 

orchards encompassed in part or in their 

entirety by this buffer zone should be 

suspended from the avocado export 

program until the pests of concern have 

been eradicated. To support this 

position, the commenter cited recent 

research conducted in Guatemala by Dr. 

Mark Hoddle, an entomologist at the 

University of California, Riverside, 

which has shown that S. catenifer are 

vigorous fliers that commence flight at 

dusk and continue on and off until 

dawn. The commenter quoted a 

personal communication from Dr. 

Hoddle stating that it is highly likely 

that S. catenifer flies more than 100 

meters in one night. The study from 

which this figure was derived measured 

flight distances between release points 

and pheromone traps designed to lure 

male avocado seed moths. The 

commenter stated that this distance is 

almost certainly different for females, 

which are likely to fly even farther, if 

necessary, to locate a site suitable for 

egg-laying; this assertion was based on 

a personal communication from Dr. 

Jocelyn Millar, also an entomologist at 

the University of California, Riverside. 

The commenter further stated that 

various moth species have been 

documented to fly ‘‘at least several 

kilometers’’ to locate pheromone 

sources, citing Hoddle, M.S., et al., 

‘‘Field optimization of the sex 

pheromone of Stenoma catenifer 

(Lepidoptera: Elachistidae): Evaluation 

of lure types, trap height, male flight 

distances, and number of traps needed 

per avocado orchard for detection,’’ 

scheduled for publication in an 

upcoming issue of the Bulletin of 

Entomological Research. 

Another commenter, supporting the 

change we proposed, cited a Web site 

presented by Dr. Hoddle 3 that states 

that the flight of S. catenifer when 

released from vials ranged between 3 

and 12 meters; those moths invariably 

sought refuge in nearby fallen leaves 

and other debris. The commenter also 

stated that the original pest risk 

assessment for the importation of Hass 

avocados year-round and into all 50 

States, prepared in 2004, contained an 

appendix confirming the limited 

mobility of the seed pests other than S. 

catenifer. 

We appreciate the commenters 

submitting additional information about 

S. catenifer. In citing Dr. Hoddle’s Web 

site, the second commenter did not 

mention that the flights of 3 to 12 meters 

occurred when S. catenifer was released 

during the day (specifically, at 2 p.m.). 

As discussed by the first commenter, S. 

catenifer has been shown to fly longer 


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Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 81375 

distances at night in at least some 

circumstances. 

However, the evidence from Dr. 

Hoddle’s studies regarding S. catenifer’s 

mobility in Guatemala may not 

necessarily be relevant to its mobility in 

Mexico. S. catenifer is known to 

respond to changes in climate; 

Guatemala’s is a hot climate with 

periodic shifts from wet to dry seasons, 

while the province of Michoaca ́n is 

drier and cooler. 

More importantly, conducting the 

Mexican Hass avocado export program 

has given us extensive information 

about how H. lauri, C. aguacatae, C. 

perseae, Copturus aguacatae, and S. 

catenifer behave in commercial Hass 

avocado production in Michoaca ́n. As 

noted earlier, only twice has any one of 

these pests been found, both times in 

backyard avocados that would not have 

been eligible to be exported to the 

United States, and none of the 

quarantine pests identified in the 2004 

pest risk assessment (including the seed 

pests at issue here) have been found in 

avocados presented for importation into 

the United States. 

The information provided by the first 

commenter does not change our 

conclusion, based on years of evaluation 

of the effectiveness of the systems 

approach used to mitigate pests in 

approved municipalities, that the 

mobility of avocado seed pests, 

including S. catenifer, creates no greater 

risk of their avoiding detection than the 

mobility of the avocado stem weevil, 

and that the same scope of export 

suspension should apply to avocado 

seed pests and the stem weevil. Given 

our years of experience with surveying 

and inspecting for these pests in 

Michoaca ́n, we have determined that 

the proposed changes are appropriate. 

As noted in the proposed rule, if 

avocado seed pests are present in places 

of production close to a place of 

production in which an avocado seed 

pest is found, the required surveys 

would find it in those nearby places of 

production, and we would suspend 

those places of production as well. The 

entire municipality would be suspended 

if the pests were detected in all places 

of production within that municipality. 

In addition, if circumstances were to 

change, and S. catenifer or any of the 

other seed pests were to suddenly begin 

infesting commercially produced 

avocado fruit across wide distances, our 

surveys and inspections would find the 

pest, and we would make any necessary 

adjustments to the program or suspend 

it while we determined appropriate 

mitigations for the pests. 

One commenter stated that 

suspension of orchards and 

packinghouses when a pest is found can 

and should be based on the scientific 

evidence of the biology of the particular 

pest and its known mobility at various 

stages. Such suspensions should be no 

greater than scientifically necessary to 

protect against exported avocados being 

a pathway for infestations. 

The changes in this final rule limit 

suspension to the orchard or 

packinghouse where a pest is found. If 

the commenter is recommending 

suspending only portions of an orchard 

or packinghouse when a pest of 

particularly low mobility is found in the 

orchard or packinghouse, we would not 

consider that operationally feasible, 

since avocados and pests may be moved 

around freely within orchards or 

packinghouses. 

One commenter stated that, from the 

inception of the export program, APHIS 

has based its assumptions about S. 

catenifer and other seed pests on the 

results of fruit cutting. The commenter 

stated that small larvae of these pests 

may easily be overlooked in fruit that, 

in all respects, appears uninfested or 

damage-free. Consequently, the 

commenter stated, orchard surveys that 

rely on fruit cutting should not inform 

APHIS’ decisionmaking on the mobility 

of avocado seed pests. 

We disagree with the commenter. 

Inspection using fruit cutting is an 

effective mitigation for these pests. 

Avocado fruit discolor immediately 

when larvae bore tunnels in the fruit, 

meaning that damage can be easily 

detected in cut fruit. Inspection has 

served as an effective mitigation thus far 

in preventing the introduction of these 

pests into the United States, even given 

the great volumes of Hass avocados that 

have been imported since the beginning 

of the program. 

Other Issues 

One commenter recommended that 

we remove paragraphs (f) and (h) from 

§ 319.56–30, as paragraph (f) relates to 

restrictions that have been removed 

from the regulations and paragraph (h) 

is duplicated by paragraph (g). 

We agree. In a final rule published in 

the Federal Register on October 29, 

2010 (75 FR 66643–66644, Docket No. 

APHIS–2008–0016), we made these 

changes, although we removed 

paragraph (g) rather than paragraph (h). 

That final rule also revised paragraph 

(c)(3)(vii) to accommodate the use of 

bulk shipping bins for Hass avocados 

from Mexico and to remove outdated 

restrictions. That paragraph has also 

contained the box marking requirements 

reflecting the prohibition on importing 

Hass avocados from Mexico into Puerto 

Rico or the U.S. territories. We had 

proposed to remove the last two 

sentences of the paragraph, which 

contained the box marking requirement 

and the outdated restrictions; instead, 

this final rule specifically removes the 

box marking requirement. 

One commenter stated that the 

administrative instructions found in 7 

CFR 352.29 were published to support 

and maintain the former shipping 

restrictions on Mexican Hass avocados, 

which were removed several years ago. 

This commenter stated that there are no 

longer any restrictions on moving 

Mexican avocados through the United 

States. The commenter stated that these 

administrative instructions no longer 

serve any valid purpose and should be 

eliminated to avoid confusion by the 

public. 

The commenter misunderstands the 

scope and purpose of § 352.29, which 

regulates the movement of all avocados 

from anywhere in Mexico through the 

United States, rather than the 

importation of avocados into the United 

States. The regulations in § 319.56–30 

allow only Hass variety avocados from 

the State of Michoaca ́n to be imported 

into the United States. However, when 

exporting to countries other than the 

United States, Mexican producers and 

exporters may wish to move avocados of 

other varieties or from other areas of 

Mexico through the United States before 

the avocados arrive at their ultimate 

destination, in order to use U.S. ports of 

export. The provisions in § 352.29 allow 

such transit to occur safely. 

One commenter presented extensive 

information on the use of sex 

pheromones to lure and trap S. catenifer 

and recommended that we work with 

the Mexican NPPO to deploy 

pheromone traps for monitoring and 

detection purposes in Michoaca ́n. 

We appreciate the commenter 

updating us on the progress of this 

research. We will review the 

information submitted and consider 

whether to incorporate pheromone 

trapping into the Mexican Hass avocado 

export program. If we determine that 

requiring such trapping would be 

useful, we will publish a proposed rule 

and take public comment on the use of 

pheromone trapping. 

One commenter complimented the 

NPPO of Peru on its cooperation in 

researching S. catenifer and 

recommended that we encourage and 

facilitate a level of cooperation between 

California scientists and the Mexican 

NPPO comparable to the level of 

cooperation those scientists receive 

from the NPPO of Peru. 

We support the Mexican NPPO 

working with private collaborators on 

managing quarantine pest problems. As 


srobinson on DSKHWCL6B1PROD with RULES
81376 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

members of the North American Plant 

Protection Organization, APHIS and the 

Mexican NPPO share a commitment to 

controlling and eliminating quarantine 

pest populations. We will continue to 

encourage collaboration with private 

groups should opportunities arise. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, with the changes discussed in this 

document. 

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. 

Immediate implementation of this 

rule is necessary to provide relief to 

those persons who are adversely 

affected by restrictions we no longer 

find warranted. The shipping season for 

Hass avocados from Mexico is yearround. Making this rule effective 

immediately will allow interested 

producers and others in the marketing 

chain to benefit from these changes. 

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 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. 

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. 

Puerto Rico has a relatively small 

avocado industry, importing most of its 

supply from the Dominican Republic. In 

2007, 737 Puerto Rican farms harvested 

avocados, a significant decrease from 

the 1,217 farms reported in 2002, and 

suggesting an increasing reliance on 

imports. Most, if not all, of these farms 

are small. Most avocados grown in 

Puerto Rico, as in the rest of the 

Caribbean and in Florida, are not Hass 

variety but larger, smooth-skinned 

varieties. 

We expect this rule to primarily result 

in increased import competition. Any 

impacts for Puerto Rico’s small entities 

will depend in part upon the extent to 

which Hass avocados imported from 

Mexico substitute for the larger, smoothskinned varieties produced 

domestically. Avocado imports from 

Mexico will directly compete with Hass 

avocados that may be shipped from 

California. 

Other amendments included in this 

rule provide for the Mexican NPPO to 

use an approved designee to inspect 

avocados for export, and when seed 

pests are detected, for suspension of 

avocado imports from specific orchards 

or packinghouses rather than from the 

entire municipality where the affected 

orchards or packinghouses are located. 

These changes will benefit U.S. entities 

generally by facilitating the inspection 

process in Mexico and minimizing 

import disruptions and reductions due 

to pest detections. 

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 Hass avocados 

to be imported into Puerto Rico from 

Michoaca ́n, Mexico. State and local 

laws and regulations regarding Hass 

avocados 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 this rule, and this 

rule will not require administrative 

proceedings before parties may file suit 

in court challenging this rule. 

Paperwork Reduction Act 

This final 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 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. Section 319.56–30 is amended as 

follows: 

■ a. By revising paragraph (a)(2) to read 

as set forth below. 

■ b. In paragraph (c)(3)(iv), by adding 

the words ‘‘or its approved designee’’ 

after the word ‘‘NPPO’’. 

■ c. In paragraph (c)(3)(vii), by removing 

the words ‘‘, and with the statement ‘‘Not 

for importation or distribution in Puerto 

Rico or U.S. Territories.’’ ’’ and adding a 

period in their place. 

■ d. By revising paragraph (e) to read as 

set forth below. 

§ 319.56–30 Hass avocados from 

Michoacan, Mexico. 

* * * * * 

(a) * * * 

(2) Shipping restrictions. The 

avocados may be imported into and 

distributed in all States and in Puerto 

Rico, but not in any U.S. Territory. 

* * * * * 

(e) Pest detection. If any of the 

avocado pests Heilipus lauri, 

Conotrachelus aguacatae, C. perseae, 

Copturus aguacatae, or Stenoma 

catenifer are detected during the 

semiannual pest surveys in a 

packinghouse, certified orchard or areas 

outside of certified orchards, or other 

monitoring or inspection activity in the 

municipality, the Mexican NPPO must 

immediately initiate an investigation 

and take measures to isolate and 

eradicate the pests. The Mexican NPPO 

must also provide APHIS with 

information regarding the circumstances 

of the infestation and the pest risk 

mitigation measures taken. Orchards 

affected by the pest detection will lose 

their export certification immediately, 

and avocado exports from that orchard 

will be suspended until APHIS and the 

Mexican NPPO agree that the pest 

eradication measures taken have been 

effective. 

* * * * * 

Done in Washington, DC, this 21st day of 

December 2010. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2010–32589 Filed 12–27–10; 8:45 am] 

BILLING CODE 3410–34–P 


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