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[Federal Register Volume 80, Number 32 (Wednesday, February 18, 2015)]
[Proposed Rules]
[Pages 8561-8564]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-03289]

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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. 80, No. 32 / Wednesday, February 18, 2015 / 
Proposed Rules

[[Page 8561]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2014-0088]
RIN 0579-AE05

Mexican Hass Avocado Import Program

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: Commercial consignments of Hass avocado fruit are currently 
authorized entry into the continental United States, Hawaii, and Puerto 
Rico from the Mexican State of Michoac[aacute]n under a systems 
approach to mitigate against quarantine pests of concern. We are 
proposing to amend the regulations to allow the importation of fresh 
Hass avocado fruit into the continental United States, Hawaii, and 
Puerto Rico from all of Mexico, provided individual Mexican States meet 
the requirements set out in the regulations and the operational 
workplan. Initially, this action would only apply to the Mexican State 
of Jalisco. With the exception of a clarification of the language 
concerning when sealed, insect-proof containers would be required to be 
used in shipping and the removal of mandatory fruit cutting at land and 
maritime borders, the current systems approach would not change. That 
systems approach, which includes requirements for orchard 
certification, limited production area, trace back labeling, pre-
harvest orchard surveys, orchard sanitation, post-harvest safeguards, 
fruit cutting and inspection at the packinghouse, port-of-arrival 
inspection, and clearance activities, would then be required for 
importation of fresh Hass avocado fruit from all approved areas of 
Mexico. The fruit would also be required to be imported in commercial 
consignments and accompanied by a phytosanitary certificate issued by 
the national plant protection organization of Mexico with an additional 
declaration stating that the consignment was produced in accordance 
with the systems approach described in the operational workplan. This 
action would allow for the importation of fresh Hass avocado fruit from 
Mexico while continuing to provide protection against the introduction 
of plant pests into the continental United States, Hawaii, and Puerto 
Rico.

DATES: We will consider all comments that we receive on or before April 
20, 2015.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0088.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2014-0088, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2014-
0088 or in our reading room, which 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) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Mr. David B. Lamb, Senior Regulatory 
Policy Specialist, RPM, PPQ, APHIS, 4700 River Road Unit 133, 
Riverdale, MD 20737-1231; (301) 851-2103.

SUPPLEMENTARY INFORMATION:

Background

    Under the regulations in ``Subpart-Fruits and Vegetables'' (7 CFR 
319.56 through 319.56-71), 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 fresh Hass avocado fruit 
into the United States from Michoac[aacute]n, Mexico, are described in 
Sec.  319.56-30. Those requirements include pest surveys and pest risk-
reducing practices, treatment, packinghouse procedures, inspection, and 
shipping procedures.
    The national plant protection organization (NPPO) of Mexico has 
requested that APHIS amend the regulations in order to allow Hass 
avocados to be imported from all of Mexico into the continental United 
States, Hawaii, and Puerto Rico. As part of our evaluation of Mexico's 
request, we prepared a pest risk assessment (PRA), ``Importation of 
Fresh Fruit of Avocado (Persea americana Mill. var. `Hass') from Mexico 
into the Continental United States, Hawaii, and Puerto Rico, A 
Qualitative, Pathway-Initiated Pest Risk Assessment'' (January 2014), 
which evaluated the risk of permitting the importation of Mexican Hass 
avocados from all of Mexico into the continental United States, Hawaii, 
and Puerto Rico.
    We also prepared a commodity import evaluation document (CIED) to 
determine what phytosanitary measures should be applied to mitigate the 
pest risk associated with the importation of Hass avocados from all of 
Mexico into the continental United States, Hawaii, and Puerto Rico. 
Copies of the PRA and 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 a link to Regulations.gov and information 
on the location and hours of the reading room).
    In the CIED, entitled, ``Expansion of areas allowed to import Fresh 
Commercial Avocado Fruit (Persea americana Mill. Var. `Hass') from 
Mexico into the Continental United States, Hawaii, and Puerto Rico,'' 
(June 2014), we determined that because the systems approach currently 
in place is successful in mitigating the risks of introducing 
quarantine pests associated with the importation of fresh Hass avocado 
fruit from Michoac[aacute]n, Mexico, into the continental United 
States, Hawaii, and Puerto Rico, the current systems approach will also 
adequately mitigate the risks of introducing quarantine pests from the 
other Mexican States. We concluded that the phytosanitary risks for 
insect pests associated with the importation of Hass avocados from all 
of Mexico into the continental United States, Hawaii, and

[[Page 8562]]

Puerto Rico would be effectively mitigated using nearly the same 
systems approach as is currently used for the importation of Hass 
avocados from Michoac[aacute]n, Mexico, as set forth in Sec.  319.56-
30. We are proposing to make some minor changes to the systems 
approach. Those proposed changes are discussed below.
    Based on the findings of the CIED and the PRA, we are proposing to 
amend Sec.  319.56-30 to allow commercial shipments of Hass avocados 
from all growing areas of Mexico to be imported into the continental 
United States, Hawaii, and Puerto Rico.
    The first additional Mexican State that would be expected to become 
eligible to export Hass avocados under this proposed expansion would be 
the State of Jalisco. Currently, only Jalisco is prepared to meet the 
requirements set out in the regulations for eligibility to ship fresh 
Hass avocado fruit into the continental United States, Hawaii, and 
Puerto Rico. Specifically, these requirements are found in Sec.  
319.56-30(c) and include orchard certification, traceback labeling, 
pre-harvest orchard surveys, orchard sanitation, post-harvest 
safeguards, and fruit cutting and inspection at the packinghouse. This 
proposed rule would allow for future importation of fresh Hass avocados 
from other Mexican States provided those States meet the APHIS 
requirements contained in the regulations. Prior to shipments beginning 
from any future States, APHIS would work with the NPPO of Mexico to 
ensure that they meet the requirements of Sec.  319.56-30(c). Any 
additions to the review process for approving new States will be added 
to the operational workplan as mutually negotiated and agreed on 
between APHIS and the NPPO of Mexico.

Pests of Concern

    Specific pests of concern associated with fresh avocado fruit for 
which mitigations are required are listed in paragraphs (c)(1)(ii), 
(c)(2)(i), and (e) of Sec.  319.56-30. They are:
     Conotrachelus aguacatae, a small avocado seed weevil;
     Conotrachelus perseae, a small avocado seed weevil;
     Copturus aguacatae, avocado stem weevil;
     Heilipus lauri, large avocado seed weevil; and
     Stenoma catenifer, avocado seed moth.
    We are proposing to remove references to these specific pests from 
the regulations. The pest list would instead be maintained in the 
operational workplan provided to APHIS for approval by the NPPO of 
Mexico. An operational workplan is an agreement between APHIS' Plant 
Protection and Quarantine program, officials of the NPPO of a foreign 
government, and, when necessary, foreign commercial entities, that 
specifies in detail the phytosanitary measures that will comply with 
our regulations governing the import or export of a specific commodity. 
Operational workplans apply only to the signatory parties and establish 
detailed procedures and guidance for the day-to-day operations of 
specific import/export programs. Operational workplans also establish 
how specific phytosanitary issues are dealt with in the exporting 
country and make clear who is responsible for dealing with those 
issues. The existing systems approach for importing fresh Hass avocado 
fruit into the United States from Michoac[aacute]n, Mexico, currently 
requires that an annual workplan be developed. This change would allow 
APHIS flexibility and responsiveness in adding or removing pests of 
concern from the list of actionable pests. (The current regulations 
refer to a ``bilateral work plan.'' For the sake of consistency with 
our other regulations, we would change the term to ``operational 
workplan'' in this rulemaking.)
    Additionally, based on the findings of the PRA, we would add eight 
pests to the list of pests of concern to be maintained in the 
operational workplan. Of those, we would require field and packinghouse 
surveys for Cryptaspasma perseana, a tortricid moth, and Conotrachelus 
serpentinus, a weevil, but not for the other six pests listed below, 
which were determined to pose a medium or low chance of following the 
importation pathway of fresh Hass avocado fruit from Mexico. These 
pests, which would be addressed through port of entry inspection, are:
     Avocado sunblotch viroid;
     Maconellicoccus hirsutus (Green), pink hibiscus mealybug;
     Pseudophilothrips perseae (Watson), a thrips;
     Scirtothrips aceri (Moulton), a thrips;
     Scirtothrips perseae Nakahara, a thrips; and
     Sphaceloma perseae Jenkins, avocado scab.
    We have determined that the existing mitigations would be 
sufficient to prevent these six pests from following the pathway of 
importation, in particular, packinghouse culling, restriction of 
shipments to commercial consignments only, and NPPO inspection. The six 
pests listed above produce symptoms on infested fruit that are 
macroscopic in nature and thus easily detectable upon surface 
inspection. Further, commercially produced fruit are grown and packed 
to meet quality standards that are much higher than non-commercially 
produced fruit and are therefore less likely to serve as hosts to pests 
of phytosanitary concern. Interceptions of pests in commercial 
shipments of fruit versus passenger baggage indicate commercially 
produced fruit represents a much lower risk of carrying pests.

Fruit Covering Requirements

    In Sec.  319.56-30, paragraph (c)(3)(vii) currently references the 
lid, insect-proof mesh, or other material required to be placed over 
the avocados prior to leaving the packinghouse to protect against fruit 
fly infestation. Paragraph (c)(3)(viii) describes refrigerated transit 
requirements for the avocado fruit within Mexico. Recently, a maritime 
shipment of fresh avocado fruit from Mexico arrived in Port Manatee, 
FL, for the first time. The avocados were in uncovered trays inside 
sealed refrigerated containers, and the shipment was delayed because 
the avocados were not covered with a lid, insect-proof mesh, or other 
material. As a result of this incident, we have examined the 
requirements in paragraphs (c)(3)(vii) and (c)(3)(viii) and determined 
that we should clarify our intentions regarding whether those lids, 
insect-proof mesh, or other material need to remain in place throughout 
the entire shipping process.
    Since the lids, insect-proof mesh, or other material are intended 
to provide phytosanitary protection against fruit flies, and transport 
in refrigerated trucks or containers provides the same protection, we 
are proposing to amend the regulations in order to stipulate that those 
coverings would not be required when the avocado fruit is inside a 
refrigerated container or truck. Such coverings would therefore not be 
required to be applied at the packinghouse, as the avocados are 
transferred directly from inside the packinghouse into refrigerated 
containers or trucks, and all transit within Mexico is required to be 
completed in these containers or trucks. If the avocado fruit is 
transferred to a non-refrigerated container at an air or maritime port 
in Mexico for shipment to the United States, a covering would have to 
be applied.

Port of Entry Fruit Cutting

    Currently, Hass avocado fruit are required to be biometrically 
sampled and cut in the field, at the packinghouse, and by an inspector 
at the port of first entry into the United

[[Page 8563]]

States. We received a request from U.S. Customs and Border Protection 
to amend the port of entry requirement, which is found in Sec.  319.56-
30(f), in order to allow the fruit to be cut at the discretion of the 
inspector. Given the lack of quarantine pest interceptions in shipments 
of avocado fruit from Mexico at the ports of first entry for the period 
from 1997 to 2014, we propose to amend the requirement. This will allow 
for operational flexibility. The other cutting and sampling 
requirements would remain unchanged.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The 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).
    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.
    Mexican officials have requested that additional States in Mexico 
be allowed to export Hass avocados to the United States under the same 
systems approach that was implemented for Michoac[aacute]n, Mexico, and 
has successfully kept pest infestations associated with imported 
avocados out of the United States. U.S. imports of avocado from Mexico 
have increased significantly over the years, from 311 million pounds in 
2003 to over 1.1 billion pounds in 2013. U.S. avocado production over 
the 10 years from the 2002/03 season through the 2011/12 season 
averaged 423 million pounds per year, of which California accounted for 
87.5 percent or over 375 million pounds. Nearly all of California's 
production is of the Hass variety.
    While APHIS does not have information on the size distribution of 
U.S. avocado producers, according to the Census of Agriculture, there 
were a total of 93,020 fruit and tree nut farms in the United States in 
2012. The average value of agricultural products sold by these farms 
was less than $274,000, which is well below the SBA's small-entity 
standard of $750,000. It is reasonable to assume that most avocado 
farms qualify as small entities. Between 2002 and 2012, the number of 
avocado operations in California grew by approximately 17 percent, from 
4,801 to 5,602 operations.
    Avocados produced in the State of Jalisco, north of 
Michoac[aacute]n, are expected to be the first that would be exported 
to the United States under this rule. These imports would help meet the 
increasing year-round U.S. demand for avocados. Per capita avocado 
consumption in the United States grew from 1.1 pounds in 1989 to 4.5 
pounds in 2011. A growing Hispanic population and greater awareness of 
the avocado's health benefits have helped to spur demand.
    In 2012, Jalisco produced about 90 million pounds of Hass avocados. 
Given required phytosanitary safeguards, only a fraction of this 
quantity is expected to qualify for importation by the United States. 
But even if all of Jalisco's avocado production were to meet the 
requirements for U.S. entry, the total quantity would be equivalent to 
less than 8 percent of U.S. Hass avocado imports in 2013 of over 1.2 
billion pounds. The proposed rule is therefore not expected to have a 
large impact on the U.S. avocado market or California producers because 
of potential imports solely from the Mexican State of Jalisco. Any 
market effects are as likely to be borne by other foreign suppliers, 
such as Chile and Peru, as by U.S. producers.

Executive Order 12988

    This proposed rule would allow fresh Hass avocado fruit to be 
imported into the United States from all of Mexico. If this proposed 
rule is adopted, State and local laws and regulations regarding fresh 
Hass avocado fruit imported under this rule would be preempted while 
the fruit is in foreign commerce. Fresh fruits and vegetables are 
generally imported for immediate distribution and sale to the consuming 
public and would 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. If this proposed rule is 
adopted, 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 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 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 propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
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.

0
2. Section 319.56-30 is amended as follows:
0
a. By revising the section heading.
0
b. In the introductory paragraph, by removing the words ``Michoacan, 
Mexico,'' and adding the word ``Mexico'' in their place.
0
c. By revising paragraph (c) introductory text.
0
d. In paragraph (c)(1)(i), by removing the words ``bilateral work 
plan'' and adding the words ``operational workplan'' in their place.
0
e. In paragraph (c)(1)(ii), by removing the words ``the large avocado 
seed weevil Heilipus lauri, the avocado seed moth Stenoma catenifer, 
and the small avocado seed weevils Conotrachelus aguacatae and C. 
perseae'' and adding the words ``avocado pests listed in the 
operational workplan'' in their place.
0
f. In paragraph (c)(2) introductory text, by removing the words 
``annual work plan'' and adding the words ``operational workplan'' in 
their place.
0
g. In paragraph (c)(2)(i), by removing the words ``the avocado stem 
weevil Copturus aguacatae'' and adding the words ``avocado pests listed 
in the operational workplan'' in their place.
0
h. In paragraph (c)(3) introductory text, by removing the words 
``annual work plan'' and adding the words ``operational workplan'' in 
their place.
0
i. By revising paragraph (c)(3)(vii).
0
j. In paragraph (c)(3)(viii), by adding two sentences at the end of the 
paragraph.
0
k. In paragraph (e), by removing the words ``Heilipus lauri, 
Conotrachelus

[[Page 8564]]

aguacatae, C. perseae, Copturus aguacatae, or Stenoma catenifer'' and 
adding the words ``listed in the operational workplan'' in their place.
0
l. In paragraph (f), by removing the word ``will'' and adding the word 
``may'' in its place.
    The revisions and additions read as follows:

Sec.  319.56-30  Hass avocados from Mexico.

* * * * *
    (c) Safeguards in Mexico. The avocados must have been grown in an 
orchard located in a municipality that meets the requirements of 
paragraph (c)(1) of this section. The orchard in which the avocados are 
grown must meet the requirements of paragraph (c)(2) of this section. 
The avocados must be packed for export to the United States in a 
packinghouse that meets the requirements of paragraph (c)(3) of this 
section. The Mexican national plant protection organization (NPPO) must 
provide an annual operational workplan to APHIS that details the 
activities that the Mexican NPPO will, subject to APHIS' approval of 
the workplan, carry out to meet the requirements of this section; APHIS 
will be directly involved with the Mexican NPPO in the monitoring and 
supervision of those activities. The personnel conducting the trapping 
and pest surveys must be hired, trained, and supervised by the Mexican 
NPPO or by the State delegate of the Mexican NPPO.
* * * * *
    (3) * * *
    (vii) The avocados must be packed in clean, new boxes or bulk 
shipping bins, or in clean plastic reusable crates. The boxes, bins, or 
crates must be clearly marked with the identity of the grower, 
packinghouse, and exporter.
    (viii) * * * If, at the port of export for consignments shipped by 
air or sea, the packed avocados are transferred into a non-refrigerated 
container, the boxes, bins, or crates must be covered with a lid, 
insect-proof mesh, or other material to protect the avocados from 
fruit-fly infestation prior to leaving the packinghouse. Those 
safeguards must be intact at the time the consignment arrives in the 
United States.
* * * * *

    Done in Washington, DC, this 11th day of February 2015.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2015-03289 Filed 2-17-15; 8:45 am]
BILLING CODE 3410-34-P
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