This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

5293

Vol. 62, No. 24

Wednesday, February 5, 1997

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Part 319

[Docket No. 94–116–5]

RIN 0579–AA84

Importation of Fresh Hass Avocado

Fruit Grown in Michoacan, Mexico

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the

regulations governing the importation of

fruits and vegetables to allow fresh Hass

avocado fruit grown in approved

orchards in approved municipalities in

Michoacan, Mexico, to be imported into

certain areas of the United States,

subject to certain conditions. We are

taking this action in response to a

request from the Mexican Government

and after reviewing public comments

regarding that request and conducting a

pest risk assessment. The conditions to

which the importation of fresh Hass

avocado fruit will be subject, including

pest surveys and pest risk-reducing

cultural practices, packinghouse

procedures, inspection and shipping

procedures, and restrictions on the time

of year shipments may enter the United

States, will reduce the risk of pest

introduction to an insignificant level.

Furthermore, climatic conditions in

those areas of the United States into

which the avocados will be allowed will

preclude the establishment in the

United States of any of the exotic plant

pests that may attack avocados in

Michoacan, Mexico.

EFFECTIVE DATE: March 7, 1997.

FOR FURTHER INFORMATION CONTACT: Mr.

Ronald C. Campbell, Staff Officer, Port

Operations, PPQ, APHIS, 4700 River

Road Unit 139, Riverdale, MD 20737–

1236, (301) 734–6799; E-mail:

rcampbell@aphis.usda.gov.

SUPPLEMENTARY INFORMATION:

Background

The Fruits and Vegetables regulations

contained in 7 CFR 319.56 through

319.56–8 (referred to below as the

regulations) prohibit or restrict the

importation of fruits and vegetables into

the United States to prevent the

introduction and dissemination of

injurious insects that are new to or not

widely distributed within and

throughout the United States. The

regulations do not provide for the

importation of fresh avocado fruits

grown in Mexico into the United States,

except to Alaska under the conditions

specified in § 319.56–2bb.

On November 15, 1994, we published

an advance notice of proposed

rulemaking (ANPR) in the Federal

Register (59 FR 59070–59071, Docket

No. 94–116–1) announcing that the

Animal and Plant Health Inspection

Service (APHIS) had received a request

from the Government of Mexico to

allow, under certain conditions, the

importation of fresh Hass avocado fruit

grown in approved orchards in

approved municipalities in Michoacan,

Mexico, into certain areas of the United

States. We solicited comments

concerning the Mexican Government

request for 28 days ending on December

13, 1994, and two public hearings were

held in late November 1994 concerning

issues raised in the ANPR. On December

19, 1994, we published a document in

the Federal Register (59 FR 65280,

Docket No. 94–116–2) informing the

public that we had reopened the

comment period and would continue to

accept comments until January 3, 1995,

including any comments received

between December 13—the close of the

original comment period—and

December 19. By the close of the

extended comment period, we had

received over 300 comments concerning

the ANPR.

On July 3, 1995, we published in the

Federal Register (60 FR 34831–34842,

Docket No. 94–116–3) a proposed rule

to allow fresh Hass avocado fruit grown

in approved orchards in approved

municipalities in Michoacan, Mexico, to

be imported into certain areas of the

United States, subject to certain

conditions. The proposed rule, which

was published in response to the

Mexican Government request

mentioned above, included additional

proposed phytosanitary requirements

that we believe addressed many of the

concerns expressed in the comments

received in response to our November

1994 ANPR. The proposed rule also

announced the availability of two

documents that examined the risks

associated with the proposed

importation program: ‘‘Risk

Management Analysis: A Systems

Approach for Mexican Avocado,’’ which

is referred to below as the risk

management analysis, and ‘‘Importation

of Avocado Fruit (Persea americana)

from Mexico: Supplemental Pest Risk

Assessment,’’ referred to below as the

supplemental pest risk assessment.

On August 4, 1995, we published a

notice of public hearings in the Federal

Register (60 FR 39889–39890, Docket

No. 94–116–4) that detailed the dates,

times, and locations of five public

hearings regarding the July 1995

proposed rule.

We solicited comments concerning

the July 3, 1995, proposed rule for 105

days ending on October 16, 1995. We

received 2,080 comments by that date,

including 211 oral comments delivered

at the five public hearings. Slightly

more than 60 percent of the

commenters—1,254 commenters out of

2,080—identified themselves as working

in the domestic avocado industry, either

directly as growers, packers, and

shippers, or indirectly as part of their

work in associated fields (agricultural

consultants, pest control advisors,

nurserymen, etc.). The remaining

commenters included representatives of

other agricultural interests, such as

apple and citrus growers, packers, and

shippers; members of Congress;

representatives of State, local, and

foreign governments; university

researchers and professors; owners and

employees of produce markets and retail

operations; consultants; customs

brokers; and representatives of

numerous associations such as

chambers of commerce, farm bureaus,

marketing associations, consumer

groups, and trade associations. Three

hundred and ten of the commenters

supported the proposed rule; 1,751

opposed it. Twenty-three of those

comments opposing the proposal were

petitions signed by a total of 958

individuals. Nineteen of the comments

neither supported nor opposed the
5294 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

proposal; 8 of those comments were

postcards containing only a name and

address, and the remaining 11

comments argued both sides of the

issue, asked only that we use science as

the sole criterion for making a decision,

or discussed risk assessment

methodology in general terms.

Those commenters who supported the

proposed rule generally expressed their

faith in the ability of the proposed

systems approach to allow for the safe

importation of Hass avocados from

Mexico. Many of those commenters

supporting the proposed rule also cited

the need for the United States to lead

the way in the elimination of non-tariff

trade barriers.

The comments of those who opposed

the proposed rule generally fell into one

of three categories: (1) Dissatisfaction

with the quantity or quality of the pest

trapping and surveys conducted in

Mexico and APHIS’ supporting

documentation, (2) skepticism with

regard to how closely the proposed

safeguards would be followed in

Mexico, and (3) skepticism regarding

APHIS’ ability to effectively monitor

and enforce the safeguards contained in

the systems approach. These concerns

were also raised in a study prepared by

the University of California at

Riverside’s Center for Exotic Pest

Research titled ‘‘Risks of Exotic Pest

Introductions from Importation of Fresh

Mexican Hass Avocados into the United

States.’’ This study was submitted as a

comment on the proposed rule and, as

such, has been carefully reviewed by

APHIS and is addressed in this final

rule. The specific comments pertaining

to the proposed rule are discussed in

detail, by subject, below.

Risk Management Analysis and

Supplemental Pest Risk Assessment

Documents

Comment: The proposed rule states

that Anastrepha spp. fruit flies have

never been found in Hass avocados

outside of laboratory tests, but APHIS

itself said in a 1987 Federal Register

document (52 FR 27669–27672, Docket

No. 87–101, July 23, 1987) that its

records showed over 200 Anastrepha

finds in avocados intercepted at the

U.S./Mexican border from smugglers.

Response: The proposed rule stated

that ‘‘according to APHIS and

Agricultural Research Service records,

Anastrepha fruit flies have never been

found in Hass avocados outside of

laboratory tests.’’ In their interception

records, APHIS inspectors do not

normally record the variety of the fruit

involved in a pest interception, so these

written records are silent as to whether

any Hass avocados were involved in

those pest detections reported in the

1987 Federal Register document.

However, APHIS Plant Protection and

Quarantine officers at the El Paso, TX,

border crossing report that they have cut

thousands of confiscated Hass variety

avocados without intercepting any fruit

fly larvae. Similarly, Japanese plant

health officials report that they have not

detected any fruit fly larvae in more

than 5 million kilograms of Mexican

Hass avocados that have been imported

into Japan since 1992.

Comment: APHIS’ risk management

analysis declares: ‘‘There is a small

possibility that part of or a whole

shipment could be periodically diverted

to southern States. Since California Hass

would be out of season, detection would

be fairly easy.’’ Similarly, the

supplemental pest risk assessment

states, with regard to Florida and

California, that ‘‘* * * it would be

relatively easy to detect smuggling or

intentional diversion of shipments

because Hass avocado fruit are not

otherwise generally available in those

areas during the winter months.’’ To the

contrary, the Avocado Market Research

and Information Center of the California

Avocado Commission (CAC) reports that

during the 1991 to 1994 marketing

years, movement of California Hass

avocados to destination markets

averaged 8,533,212 pounds for the

month of November; 10,636,068 pounds

for December; 18,108,162 pounds for

January; and 19,530,637 pounds for

February. To claim that domestic Hass

avocados are out of season during the

months of November through February

is simply incorrect; that assertion,

therefore, cannot be used to support

APHIS’ argument that the seasonal

unavailability of domestic Hass

avocados will make it easy to detect

Mexican Hass avocados in prohibited

States. It follows that the risk reduction

estimate of 95 to 99 percent attributed

to limited U.S. distribution is

insupportable because it will be more

difficult than originally thought to

detect transshipment. APHIS must

reevaluate this supposed mitigation

measure in view of factual realities.

Response: We agree that the

characterization of domestic avocados

as ‘‘out of season’’ and ‘‘not * * *

generally available’’ between November

and February was inaccurate. Domestic

production is lower during that

period—especially during November

and December—but not as low as those

statements in the supplemental pest risk

assessment and the risk management

analysis suggest. The availability of

domestic avocados in larger numbers

than originally recognized does not,

however, have a significant impact on

our risk reduction estimates. The risk

management analysis indicates that the

95 to 99 percent risk reduction estimate

noted by the commenter is the reduction

realized by limiting distribution versus

allowing distribution throughout the

United States. Our ability to detect

Mexican avocados in markets outside

the approved distribution area does play

a role in the estimate of risk reduction,

but the risk reduction estimate is based

more on our expectation that the vast

majority of the imported avocados will

remain in the approved States. The

supplemental pest risk assessment

considered the possibility that as much

as 5 percent of the imported fruit could

be transported to a habitat suitable for

pest establishment (which is a subset of

all non-approved States) and still

concluded that the risk of a pest

outbreak would be insignificant.

Another factor to consider is our

decision to include in this final rule a

requirement for all Mexican avocados

imported into the United States to be

individually labeled with a sticker that

identifies the packinghouse in which

the avocados were packed for shipment

to the United States. (The new

stickering requirement is in response to

a separate comment that is discussed

later in this document.) The stickering

requirement will work to both

discourage transshipment and facilitate

identification of Mexican-origin

avocados.

Comment: The persea mite, which is

now devastating groves in California, is

believed to have originated in Mexico or

Central America. Why was the persea

mite not considered in the supplemental

pest risk assessment?

Response: During the risk assessment

process, APHIS collected information

on the persea mite (Oligonychus persea,

also known as the avocado mite) and

considered the risk posed by this pest.

Unfortunately, this species was

mistakenly not included on the list of

potential arthropod quarantine pests in

table 3 of the supplemental pest risk

assessment. However, the persea mite is

currently established in the United

States and is not considered a

quarantine pest. Pests that do not satisfy

internationally accepted criteria of a

quarantine pest are not analyzed in

detail in risk assessments because nonquarantine pests are not candidates for

risk mitigation. Although O. persea

should have been listed on the pest list,

its inclusion would not have changed

the supplemental pest risk assessment

beyond the pests listed in table 3.

Listing of O. persea in table 3 would not

have changed the findings of the risk

assessment and would not have altered
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5295

the proposed mitigation program, which

focuses on quarantine pests.

Comment: The leaf spotter, a pest

identified in ‘‘Australian literature’’ that

lays its eggs on immature fruit and

eventually covers the fruit in pustules,

occurs in Mexico and was not addressed

in the supplemental pest risk

assessment.

Response: We are not aware of an

avocado pest referred to as the ‘‘leaf

spotter.’’ Nonetheless, we reexamined

the scientific literature and believe that

the commenter may have been referring

to one of two insect pests. Homona

spargotis (Lepidoptera: Tortricidae) was

first detected in the Australian State of

Queensland in 1980 and since then a

few papers discussing this pest have

appeared in the Australian literature.

One common name associated with this

pest is ‘‘avocado leafroller’’ but one

paper reports that ‘‘serious damage also

results from superficial scarring of the

fruit.’’ Amblypelta nitida (Hemiptera:

Coreidae) also occurs in Queensland

and is listed as a pest of macadamia and

avocado. This true bug is sometimes

referred to as the ‘‘fruit spotting bug.’’

However, we could find no evidence

linking either of these pests with

Mexican avocados. According to the

scientific literature, all available pest

data bases, and taxonomic specialists on

these insect groups, neither of these

pests have ever been detected in

Mexico.

Comment: Too little is known about

the basic taxonomy, biology, and

ecology of the avocado seed pests and

stem weevils that attack the avocados in

Michoacan. Similarly, it is not known

which species of Anastrepha attacks

avocado fruit. Overall, there is a dearth

of survey data and other reliable

information on the population levels of

all the pests of concern in Michoacan.

More information must be gathered

through additional precertification

trapping and surveys before APHIS can

construct a scientifically valid systems

approach for the importation of Hass

avocados from Michoacan, Mexico.

Response: On the contrary, we believe

that there is sufficient information

available regarding all of the pests of

concern. By way of illustration, our risk

management analysis and its

attachments together contain over six

pages of literature citations that back up

the information and conclusions found

in that document. Similarly, the

supplemental pest risk assessment lists

nearly four pages of citations. Avocados

and pests of avocados have been studied

in detail for many years, especially in

Mexico, which is the world’s largest

producer and consumer of avocados. We

believe that the information contained

in the existing literature, along with

ongoing studies, surveys, and trapping,

provides a rational, reasonable, and

scientifically valid basis for the

safeguards contained in this final rule,

safeguards that we believe will allow for

the safe importation of Hass avocados

from Michoacan, Mexico.

Comment: Mexican avocados should

be prohibited entry into the United

States until zero pest risk can be

guaranteed.

Response: If zero tolerance for pest

risk were the standard applied to

international trade in agricultural

commodities, it is quite likely that no

country would ever be able to export a

fresh agricultural commodity to any

other country. There will always be

some degree of pest risk associated with

the movement of agricultural products;

APHIS’ goal is to reduce that risk to an

insignificant level. In the case of Hass

avocados from Mexico, we believe that

the overlapping and redundant

safeguards contained in this final rule

will reduce the pest risk associated with

their importation to an insignificant

level.

Comment: The State of Michoacan in

general and the four municipalities

listed in the proposed rule in particular

are extremely diverse in terms of

elevation and environment.

Temperature data have not been

provided to support the claim that

temperatures are ‘‘generally’’ below 70

°F throughout the area during the

months of November through February,

and it seems likely that in some

locations—especially at lower

elevations—temperatures would be over

70 °F for parts of some days during the

export period. Has APHIS taken into

account these differences in elevation,

temperature, and likely levels of pest

activity in Michoacan? In addition,

APHIS’ statement that Anastrepha spp.

will not oviposit below 70 °F is

erroneous.

Response: The proposed rule stated

that fruit flies reduce mating and

oviposition when temperatures fall

below 70 °F, not that they stop such

activities. Our data show that although

daytime temperatures may rise above 70

°F, which happens on some days,

usually for a short time in the late

afternoon, the average temperature in

the region during November through

February is between 62 and 64 °F, with

nighttime lows in the 40’s. Studies

conducted by the Agricultural Research

Service (ARS) of the U.S. Department of

Agriculture (USDA) have shown that the

Mexican fruit fly is less active, and

oviposits less at temperatures below 70

°F, so the climate is not favorable to

fruit fly activity during the proposed

shipping season. The unfavorable

climate, combined with the Hass

avocado’s non-preferred host status,

make it likely that the infestation threat

posed to the avocados by Anastrepha

spp. fruit flies will be insignificant.

Comment: The trapping data provided

in support of the proposed rule

indicates that Anastrepha spp. fruit flies

were trapped at 17 percent of the

trapping sites. This indicates that

Mexican fruit fly and other Anastrepha

spp. fruit flies are present in the

Michoacan avocado groves.

Response: We have acknowledged

that Anastrepha spp. fruit flies are

present in Michoacan, which is why the

regulations in this final rule set forth

safeguards to prevent the introduction

of those pests. The requirements, such

as surveillance trapping, increased

trapping in response to a single fruit fly

detection, Malathion bait treatments,

covering of harvested avocados, flyproof screens on packinghouses, and

inspections, work together with the nonpreferred host status of Hass avocado

fruit attached to the tree to eliminate

any significant risk from Anastrepha.

Comment: No rational basis is given

for a number of the probability and

confidence estimates used in the

supplemental pest risk assessment. For

example, the estimate for P6 (probability

of infested fruit introduced into a

suitable habitat leading to an outbreak)

is very weakly supported. As used in

the supplemental pest risk assessment,

these estimates are inappropriate,

misleading, and create a false sense of

security. A transparent, thoroughly

documented, and replicable risk

analysis should be prepared and

submitted to peer review.

Response: As stated in the

supplemental pest risk assessment (p.

26), and in accordance with

internationally accepted guidelines for

pest risk assessment, when specific data

were not available to provide precise

estimates for a particular probability,

estimates were based on available data

and expert judgment. Estimates based

largely on expert judgment typically

have a degree of uncertainty associated

with them. We accounted for the

uncertainty of our estimates by

characterizing them as a distribution of

potential probabilities (i.e., as

probability density functions) instead of

point estimates. Some commenters

indicated that APHIS underestimated

the probabilities while others indicated

that APHIS has overestimated the risk of

importing Mexican avocado fruit.

However, APHIS did not receive any

information (e.g., biological, regulatory,

statistical, or methodological) that could

be interpreted as evidence that the
5296 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

probability estimates were incorrect, or

that they should be changed.

Comment: The supplemental pest risk

assessment was conducted improperly

and fails the test of peer review. Thus,

its results must be rejected and provide

no basis for accepting the proposed rule.

Response: The methods used by

APHIS have been subjected to extensive

internal and external peer review and

have been accepted within the United

States and internationally. Some

commenters on this issue, including two

individuals identified as risk assessment

experts, commented that APHIS’ risk

assessment constituted correct and

appropriate use of risk assessment tools.

A variety of official commenters and

peer reviewers, including risk

assessment experts, commended APHIS’

risk assessment, commented that the

methods had been applied

appropriately, and considered the

conclusions to be justified and

believable.

Comment: The APHIS supplemental

pest risk assessment and risk

management analysis documents were

not prepared in accordance with North

American Plant Protection Organization

(NAPPO) and the United Nations’ Food

and Agriculture Organization (FAO) risk

assessment guidelines.

Response: All of the components of

plant pest risk analysis as described by

FAO (1995) and NAPPO (1995) are

present in either the risk management

analysis or the supplemental pest risk

assessment. Despite the fact that the

FAO and NAPPO documents are only in

draft form, and despite the fact that

these documents are guidelines and not

standards, APHIS satisfied the

requirements of each step suggested by

the FAO and NAPPO documents. It is

true, however, that the order in which

the information is presented in the two

APHIS documents is not along the

general theoretical lines of: (1) Initiate

risk analysis because of a new request

for importation; (2) assess the base risk;

(3) develop a risk mitigation program;

and (4) conduct and monitor the risk

mitigation program. The situation with

Mexican avocado fruit is more complex

because over the past few decades

APHIS has considered repeatedly the

risks of importing Mexican avocado

fruit. The two APHIS documents cover

risk assessment and risk management,

but the various components of these two

documents do not represent a simple

chronological progression of events. The

supplemental pest risk assessment

includes a more complete assessment of

the baseline risks than was presented in

previous risk assessments (e.g., see

attachments 1 (entomology risk

assessment) and 2 (pathology risk

assessment) in the risk management

analysis). APHIS’ risk analysis work

started long before FAO prepared the

first draft of its guidelines. APHIS has

offered for public consideration a

number of documents prepared on this

issue over the years. Although the

chronology of these documents does not

match the order given in the FAO

guidelines, all of the components of a

complete pest risk analysis as

recommended by FAO are available in

the documents prepared by APHIS.

Comment: The criteria for the

assignment of risk estimates found

within the supplemental pest risk

assessment are explained well, but the

rationale for the risk estimate assigned

to each of the quarantine pests is

essentially absent. The summary

conclusions are appropriate but should

be explained clearly so that the

reasoning and logic used to estimate risk

can be easily and fully understood.

Response: Most of the estimates were

based to some extent on expert

judgment. APHIS did not elaborate on

the components of the professional

judgment used by team members

because such elaboration would be a

statement regarding the background and

experiences of the scientists involved.

The summary conclusions are not

explained in detail, but we believe that

our final assessment of the plant pest

risk regarding each category of pest is

well represented in tables 9 and 10 of

the supplemental pest risk assessment.

Comment: The only Mexican avocado

pest survey data made available in

support of the proposed rule were 1993–

1994 data from 129 groves in the

Michoacan municipalities of Periban,

Salvador Escalante, Tancitaro, and

Uruapan. Current pest management

practices in Michoacan avocado

orchards emphasize prophylactic

treatments with broad-spectrum

pesticides (typically 12 treatments per

year in export groves). No specifics were

provided regarding what pesticides

were used, how they were applied, and

when treatments were applied in

relation to the survey data. Given this,

it is impossible to determine what

impacts the pesticide treatments may

have had on the data and what effect

future alterations in pesticide use

patterns may have on pest populations

in the growing areas.

Response: As we noted in the

proposed rule, some trapping was

conducted while trees were being

treated with pesticides. Clearly, such

treatments will have an effect on pest

populations, and that effect would have

been reflected in the survey data. This

sort of pesticide treatment is routine in

Michoacan, and similar pesticide

treatment will occur in orchards

growing avocados for export to the

United States, so we believe that

trapping conducted during or after

pesticide treatment provided accurate

population data. This final rule requires

that annual surveys and routine

trapping be conducted in the production

area as part of the avocado export

program, so future alterations in

pesticide use patterns would also be

reflected in the pest population data

gathered from those activities.

Comment: The key hypothesis that

Hass variety avocados have a high level

of natural resistance to Anastrepha spp.

fruit flies is supported only by weak

data and inference. The hypothesis is

readily testable and should be

thoroughly evaluated using proper

scientific protocol before it is factored

into the analysis. If sound data are

collected to support the hypothesis of

Anastrepha resistance, then the

physiological basis for that resistance

should be determined. Otherwise,

changes in environmental or other

factors (e.g., drought, tree stress, etc.)

that affect fruit physiology could negate

the resistance, as was the case with

Sharwil avocados in Hawaii.

Response: APHIS’ use of presumed

host resistance in its systems approach

is based on studies conducted in Mexico

and Central America, some of which

were conducted by the ARS, that have

repeatedly shown avocados to be poor

hosts of fruit flies and that have never

pointed to Hass avocados as an

Anastrepha fruit fly host. These studies

are backed in practical terms by the

experience of APHIS personnel at the

U.S./Mexican border who have been

cutting confiscated avocados, including

Hass variety avocados.

Mexico is the world’s largest producer

and consumer of avocados; there are

over 80,000 hectares of avocados

planted in the State of Michoacan alone.

The avocado is a large, economically

significant crop in Mexico around

which has developed an industry

dedicated to the growing and marketing

of avocados. Industry and university

researchers in Mexico have prepared

numerous publications regarding the

identification and control of pests of

avocados, yet there are no publications

on the control of Anastrepha spp. fruit

flies in Hass variety avocados. APHIS’

own interception records over the past

several years confirm that no

Anastrepha spp. fruit flies have been

found infesting Hass avocados. We

believe, therefore, that the conditions

set forth in the proposed rule and in this

final rule adequately address the pest

concerns associated with the

importation of Hass avocados from
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5297

Mexico and would detect a problem if

one were to exist.

Comment: Compliance is assumed in

many aspects of APHIS’ risk assessment

process, failing to take into account

human behavior (e.g., greed leading one

to repack and transship Mexican

avocados out of the approved area).

Response: Human error and

purposeful deceit were considered

continuously during the risk assessment

process and during estimation of each of

the probabilities. Some probability

estimates were based almost exclusively

on our consideration of human error

and deceit. For example, in the

supplemental pest risk assessment, P5,

the probability that fruit would be

transported to an area with suitable

hosts and climate (i.e., transshipment to

areas outside the approved States),

ranged from 0.5 percent to 5 percent

under the proposed program. Such

transshipment could occur only as a

result of human error or purposeful

deceit, so our estimate of risk resulted

directly from our consideration of the

possibility of human error and the

incentive for purposeful deceit.

Comment: APHIS should include the

risk of infestation due to vehicle

accidents in warm southern States and

transshipment as part of its risk

analysis.

Response: Scenarios such as accidents

during transport and transshipment

were included in the supplemental pest

risk assessment and were considered as

part of P5, the probability that fruit

would be transported to an area with

suitable hosts and climate, and P6, the

probability that infested fruit in a

suitable habitat leads to outbreak.

Comment: APHIS should convene an

independent scientific panel to review

the APHIS risk assessment plan and

determine if the plan is in accord with

accepted scientific principles. Until

then, the proposal should be

withdrawn.

Response: We heard the call for an

independent scientific review of the

proposed systems approach and risk

reduction plans even before the

proposed rule was published on July 3,

1995. In the proposed rule, we

announced that 2 days of hearings

would be held to focus exclusively on

the APHIS risk assessment documents

upon which the proposed rule was

based in order to provide an

opportunity for experts in relevant

disciplines to present their views on

those documents and the scientific

issues raised by them. Those hearings,

which were conducted on August 17

and 18, 1995, produced testimony from

25 speakers. In addition to that oral

testimony, we received written

comments from interested experts in

various disciplines during the comment

period. We believe, therefore, that

scientists and independent scientific

panels had ample opportunity during

the 105-day comment period to present

their opinions on the APHIS risk

assessment plan.

Comment: The only realistic

protection for the United States is to

insist on ‘‘certified infestation-free

zones.’’ APHIS should insist on

additional studies, at least 3 years in

duration, before proceeding with any

change in the policy. This would be

consistent with the NAPPO guidelines

for the establishment of a pest-free zone.

If APHIS is truly interested in

maintaining the integrity of

phytosanitary standards, it will demand

further study resulting in the

establishment of these pest-free zones.

Response: As we explained in the

proposed rule and in this final rule,

APHIS uses systems approaches to

phytosanitary security to allow fruits

and vegetables to be imported safely

into the United States from countries

that are not free of certain plant pests.

Our experience with systems

approaches for the importation of

commodities and systems approaches

for domestic commodities has

demonstrated that such approaches can

be used safely and successfully to allow

for the importation or exportation of

fruits and vegetables from countries or

areas that are not free from pests. In this

instance, we believe that the systems

approach to phytosanitary security

found in this final rule will prevent the

introduction of plant pests into the

United States from Michoacan.

Therefore, we do not believe that it is

necessary to establish Michoacan as a

pest-free zone prior to importing Hass

avocados.

Comment: The supporting

documentation for the proposed rule

mentions that large-scale fruit cutting

was conducted in Mexico to determine

pest prevalence in Michoacan’s export

avocado groves, but no data were

offered to back up those claims. The

data regarding fruit cutting should be

made available to the public.

Response: This information may be

obtained by contacting the person listed

under FOR FURTHER INFORMATION

CONTACT, as several individuals did

following the publication of the

proposed rule. The cutting data are

available in at least summary form for

the period 1985 to 1991, and detailed

information is available for groves and

packinghouses for certain of those years.

Comment: A university researcher

reported that she discovered immature

avocado stem weevil larvae in an export

grove in Michoacan during a 1994 trip

to the region. APHIS’ risk documents,

however, state that none have been

found.

Response: The researcher mentioned

in the comment traveled to Michoacan

as part of a joint APHIS/CAC team that

went to Mexico on an informationgathering trip to look at orchards

infested with stem weevils and seed

weevils. The team visited a grove that

appeared to be poorly managed and,

within 5 minutes, found the avocado

stem weevil to be present in trees within

the orchard. The orchard was not

certified for Sanidad Vegetal’s export

program. Later that day, however, a pest

management consultant who had not

visited the orchard in question

speculated that it had once been an

export orchard. It was that encounter

with the consultant that led the

researcher to conclude that she detected

avocado stem weevils in an export

grove.

Prior to APHIS’ interest in the stem

weevil, Sanidad Vegetal was not

certifying export orchards as being free

of stem weevils, so it is possible that

some orchards that had previously been

certified for the export program did

have stem weevil infestations. In 1994,

however, Sanidad Vegetal instituted

surveys for the stem weevil, and all

orchards certified for the U.S. export

program will be required to be free from

the pest. Sanidad Vegetal inspectors

know how to survey for stem weevils,

and the experience of the APHIS/CAC

team illustrates that the pest is not

difficult to detect.

Comment: The Monte Carlo model

used in the supplemental pest risk

assessment was unnecessary in the first

place and only provides a veil of

analytical objectivity; the model

predicts what was initially assumed.

The data upon which parameters for the

model were estimated are either

nonexistent or are not adequately

documented. The results of the model

cannot be accepted with any level of

confidence.

Response: Monte Carlo simulation is

a well-established and scientifically

based tool of risk assessment. One of the

primary utilities of this method is its

ability to account for uncertainty in risk

predictions. APHIS used Monte Carlo

simulations because uncertainty existed

with regard to the true value of some of

the component probabilities. Monte

Carlo simulations provided estimates of

risk in the desired format, i.e., risk

expressed as a range of values, each

with an associated probability. Data are

available that affect each of the

estimates made in the risk assessment.

Much of the information used by APHIS
5298 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

to estimate risk can be found in the

scientific sources listed in section IV of

the supplemental pest risk assessment.

Section IV of that document lists 58

separate sources of information, 53 of

which are scientific references; the

remaining 5 can be considered

‘‘regulatory’’ references. APHIS is

confident that its characterization of risk

is accurate. Although some commenters

disagreed with our assessment of the

risk, no specific evidence was provided

that indicated that the risk assessment

model should be changed or that the

associated probability estimates should

be reconsidered.

Systems Approaches

Comment: The term ‘‘systems

approach’’ should be defined in the

regulations.

Response: There is no need to define

the term in the regulations because the

term is not used in the regulations. The

term ‘‘systems approach’’ is used in the

preamble portion of the proposed rule

and this final rule, as well as in the two

risk documents, to describe an

overlapping, redundant series of

safeguards that, in this case, will be

applied to the importation of avocados

from Mexico. The safeguards themselves

are set forth in the final regulations, but

the term used to describe those

safeguards collectively is not.

Comment: APHIS compares its

proposed systems approach for Mexican

avocados to the systems approaches

used for the importation of Unshu

oranges from Japan, peppers from Israel,

and tomatoes from Spain. However,

APHIS fails to mention that the Unshu

oranges must be grown and packed in

isolated, canker-free export orchards

surrounded by disease-free buffer zones,

or that the Spanish tomatoes and Israeli

peppers must be grown in insect-proof

plastic screenhouses. Measures such as

orchard/buffer zone freedom from pests

and enclosed growing areas vastly

reduce the pest risks presented by those

commodities; there is no equivalent

degree of protection built into the

proposed system for Mexican avocados.

Response: In the proposed rule, we

explained that APHIS uses systems

approaches to establish conditions

whereby fruits and vegetables may be

imported into the United States from

countries that are not free of certain

plant pests. There is no ‘‘one size fits

all’’ systems approach; specific

measures are necessary to address

specific pest risks, so different

commodity/pest combinations will

require different approaches. Just as the

systems approaches for Unshu oranges,

Spanish tomatoes, and Israeli peppers

lower the pest risks associated with

each commodity to an acceptable level,

we believe that the required safeguards

in this final rule will allow Hass

avocados to be safely imported into the

United States by lowering the risk of

pest introduction to an acceptable level.

Comment: The proposed rule cites the

systems approaches used for Unshu

oranges from Japan, peppers from Israel,

tomatoes from Spain, citrus from

Florida and Texas, apples from

Washington, and stonefruit from

California. These systems were put into

place after multiple years of data

collection and analysis. The approach

found in the proposed rule, on the other

hand, is based on barely a year’s worth

of data that is flawed and generally

incomplete; the systems approach is

being offered as a substitute for

obtainable knowledge. APHIS holds its

domestic growers and trapping

programs to a high standard of quality;

it is certainly reasonable to expect that

an import program of this magnitude be

based on solid, supportable, long-term

data.

Response: To characterize the systems

approach for avocados as being the

product of ‘‘barely a year’s worth of

data’’ in contrast to other programs that

were put in place after multiple years of

data collection and analysis is

inaccurate. Mexican government and

industry officials have been actively

seeking permission to export avocados

to the United States since the early

1970’s; the importation program

established by this final rule is based on

data collected during those years, as

well as on information gathered by

APHIS through its own activities and

research. We believe that the Mexican

data, supplemented by our own data

collected over those years, is of

sufficient quality and quantity to

provide the foundation upon which to

base the safeguards found in this final

rule.

Comment: Much is made about the

fact that the nine mitigating measures

are designed to ‘‘individually and

cumulatively reduce the risk of pests.’’

However, four of the nine measures

(trapping and field treatments, host

resistance, post-harvest safeguards, and

winter shipment) are specifically

designed to control fruit flies. The

remaining five safeguards do not act

cumulatively to adequately address the

threats posed by the seed weevil and

other avocado-specific pests.

Response: First, we believe that

winter shipment is a mitigating measure

that has an effect on pests other than

fruit flies because the avocado stem and

seed pests, like the fruit flies, would not

survive winter temperatures in the

northeastern United States. More

importantly, however, we disagree with

the commenter’s assertion that the

safeguards do not have a cumulative

effect on reducing the risk of the

avocado seed and stem pests. Those

safeguards determine whether the pests

are present (field surveys), deny the

pests opportunities to establish a

presence (field sanitation), ensure that

pests have not infested the avocado fruit

(packinghouse inspection and fruit

cutting, port-of-arrival inspection), and

deny the pests the opportunity to

become established in the United States

should they somehow get in (limited

U.S. distribution, winter shipping).

Those six safeguards are each an

individual means of detecting or

preventing the presence of pests;

together, we believe they will reduce the

risk of pest introduction to an

insignificant level.

Comment: A verification process for

the systems approach must be put in

place so we can tell if the program is

being followed and if the program is

effective.

Response: We believe that the

necessary checks are already built into

the process to allow us to determine

whether the program is being followed.

Throughout the growing, packing, and

shipping processes, APHIS personnel

will be on hand to monitor compliance

with the regulations and to conduct

sufficient inspections to determine the

phytosanitary condition of the fruit.

That monitoring and inspection will

allow us to tell if the program is being

followed and is effective.

Comment: APHIS’ experience with

the failed program to import Sharwil

avocados from Hawaii should show

APHIS that reliance on the assumed

non-host status of a commodity and on

systems approaches can result in little

to no actual phytosanitary security.

Response: The Hawaiian Sharwil

avocado program might be considered to

have been a failure from a commercial

perspective if one was interested only in

moving Sharwil avocados from Hawaii

to the mainland, since the program was

canceled following the detection of

pests on the avocados. From a

quarantine perspective, however, the

program could accurately be described

as a success because the safeguards built

into the program allowed us to detect

the presence of pests and terminate the

program before those pests could be

disseminated into the continental

United States. In terms of the pest/

commodity interaction, the situation in

Hawaii differs from the situation in

Michoacan. The primary pest of concern

for the Sharwil program was the

Oriental fruit fly, which is present at

very high levels in Hawaii’s avocado
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5299

production area. Oriental fruit fly

utilizes a variety of host fruits and will

attack almost anything that is available

due to its high population density. The

situation in Michoacan is not

comparable because Anastrepha spp.

fruit flies are not present at high

population levels in the export orchards

and, when compared to Oriental fruit

fly, Anastrepha spp. fruit flies have a

restricted host range.

Comment: The risk management

analysis describes the proposed program

as a systems approach consisting of nine

mitigation measures used to bring the

identified pest risk to an acceptable

level. However, only the required field

sanitation and fruit fly treatments

actually qualify as mitigation measures;

the remaining components—trapping,

fruit cutting, visual inspection, etc.—are

in actuality monitoring tools. The

proposed approach, therefore, would be

more accurately (and more credibly)

described as a process for monitoring

the efficacy of cultivation, sanitation,

and treatment procedures to allow for

and attest to the movement of

uninfested fruit only. Such an approach

is not invalid, but it should be properly

characterized in the final report.

Response: Although field sanitation

and fruit fly treatments are the only two

components of the systems approach

that have a direct effect on the field

populations of pests, we believe that all

nine components can appropriately be

characterized as mitigating measures

because what is being mitigated is the

risk that an infested shipment of

avocados will enter the United States

and result in pests becoming established

in this country. That risk can be

mitigated by monitoring the efficacy of

cultivation, sanitation, and treatment

procedures to allow for and attest to the

movement of uninfested fruit as well as

through field sanitation and fruit fly

treatments.

Commercial Shipments

Comment: The proposed rule would

require the avocados to be imported in

commercial shipments only, but fails to

define the term ‘‘commercial shipment.’’

Response: The background

information of the proposed rule draws

a distinction between commercial

shipments and wild or ‘‘backyard’’

avocados, explaining that the two

categories of produce are grown under

very different conditions. The term is

not defined in the proposed rule,

however, largely because a definition for

the term is already present in the

regulations. Specifically, the following

definition of the term commercial

shipment appears in § 319.56–1 of the

regulations (and thus applies to the

regulations set forth in this final rule):

‘‘A shipment containing fruits and

vegetables that an inspector identifies as

having been produced for sale and

distribution in mass markets. Such

identification will be based on a variety

of indicators, including, but not limited

to: quantity of produce, type of

packaging, identification of grower or

packing house on the packaging, and

documents consigning the shipment to

a wholesaler or retailer.’’

Comment: The proposal requires that

trucks transporting avocados from the

packinghouse be sealed, but no mention

is made as to where or by whom the seal

may be broken. It appears, then, that a

truck could be loaded with 500 boxes of

avocados at a certified packing house,

sealed, then be driven to a mango

packinghouse, reopened, and the rest of

the truck loaded with mangos or some

other produce item. The truck then

could be driven to the border crossing

at Nogales, AZ, for avocado inspection.

From Nogales, the mangos could be

shipped to California or some other

southwestern State and the avocados

shipped under U.S. Customs bond on to

the northeast. If the avocados contained

any pests, they could easily transfer to

the other product and be shipped

anywhere.

Response: We intend that the

refrigerated truck or refrigerated

container in which the avocados are

transported be sealed at the

packinghouse and not opened until it

reaches the United States. Mixed loads

such as those envisioned by the

commenter will not be permitted. The

language in the regulations is not, as the

commenter noted, clear on those points,

so in this final rule we have added

language to § 319.56–2ff(c)(3)(viii) to

make it clear that the truck or container

must remain unopened until it reaches

the U.S. port of first arrival.

Seasonal Restrictions

Comment: The proposed rule states

that the avocados may be imported from

November through the month of

February. Under proper storage

conditions, wholesalers and distributors

can hold avocados for several weeks

past the end of February. Will

businesses be required to dispose of

their Mexican avocado inventory come

March 1st?

Response: The November through

February restriction applies to the

importation of Mexican avocados, not to

their distribution in the approved

States. Under the provisions of the

proposed rule, for example, a truckload

of avocados could cross the border on

the last day of February, take several

days to arrive at a market in an

approved State, and be first offered for

sale by a wholesaler or distributor in

early March. Therefore, businesses will

not be required to dispose of their

Mexican avocado inventory on March

1st of each year.

Comment: With controlledatmosphere storage, Mexican avocados

imported at the end of February could

theoretically be sold into the month of

April, when temperatures in some of the

approved States could be high enough

to enable pests to become established.

Therefore, imports should be allowed

only until mid-January to ensure that

the temperatures in the approved States

at the end of the retail sales period—not

just the end of the importation

window—are low enough to preclude

the survival and establishment of the

pests of concern.

Response: Even with some type of

controlled-atmosphere storage, we do

not believe it is likely that the shelf life

of the Mexican-origin avocados could

extend into the month of April. Even if

one of the pests of concern were to

infest the fruit, avoid detection, survive

shipment, and finally escape into the

environment during a period of mild

weather, there would be no host

material available to sustain a pest

population.

Distribution Within the United States

Comment: The proposed requirement

for boxes in which the avocados are

shipped to be marked ‘‘Distribution

limited to the following States: * * *’’

will be meaningless as a deterrent to

transshipment; persons wishing to

transship the avocados can easily repack

the fruit in other boxes. At the very

least, APHIS should require that each

individual Mexican-origin avocado be

marked with an indelible dye or bear a

sticker denoting its origin.

Response: We agree with the

numerous commenters who made this

point and have added a stickering

requirement to this final rule.

Specifically, we will require that each

avocado fruit be labeled with a sticker

bearing the Sanidad Vegetal registration

number of the packinghouse in which

the avocado was prepared for shipment

to the United States. We believe this

stickering requirement will make it

easier to identify Mexican-origin

avocados at terminal markets and

present an additional obstacle to

transshipment of the fruit to nonapproved States.

Comment: The limited distribution

scheme is an unrealistic concept, given

the open nature of the U.S. marketing

and transportation systems. The

restrictions will be ignored because of

high consumer demand for avocados in
5300 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

areas outside the approved States and

the price disparity between California

and Mexican avocados. The price

disparity will be even greater when the

$0.054 per-pound tariff cited in the

proposed rule is eliminated.

Response: If the limited distribution

requirement was the only means of risk

mitigation available in the Mexican

avocado import program, the open

nature of the U.S. marketing and

transportation systems would be a

matter of concern. Limited distribution

is, however, only one of a series of

safeguards designed to prevent the

introduction of pests into the United

States through the importation of

avocados from Mexico. We do not

expect limited distribution to be

foolproof, but we also do not expect that

infested avocados will be entering the

United States through legally imported

commercial shipments in the first place.

Further, we anticipate that

unscrupulous distributors will be the

exception, rather than the rule, so we

believe that the restrictions on

distribution of the avocados will be

widely observed, rather than ignored.

As an earlier commenter pointed out,

domestically grown avocados are

certainly available during the period

when Mexican avocados will be

imported, so the high consumer demand

anticipated by the commenter in nonapproved States could be met by

domestic supply and by those avocados

that are already being imported to all

regions of the United States from Chile,

the Dominican Republic, and the

Bahamas.

With regard to the expected price

differential between imported Mexicanorigin avocados and domestic avocados,

the commenter is correct in noting that

the $0.054 per pound tariff will be

eventually eliminated. Under the North

American Free Trade Agreement, all

fees and tariff rates on Schedule C

commodities, including avocados, are to

be eliminated within 10 years, with a

gradual decline of 10 percent per year.

Whether or not the price differential

will give rise to a black market for

avocados or lead established

distributors to knowingly violate the

law for the sake of profit is another

matter. An unscrupulous distributor

who wished to illegally transship

Mexican avocados would have to pay

the costs associated with obtaining a

shipment of imported Mexican

avocados at wholesale prices from a

terminal market in an approved State,

moving that shipment to a secure

location, unloading the boxes from the

truck or container, removing all the

avocados from their packing boxes,

peeling the sticker from each piece of

fruit, perhaps adding a new sticker to

each piece of fruit, repacking the fruit in

new boxes, loading the boxes back onto

the truck or container, and driving the

load of avocados across the country to

one of the expected high-demand

markets (south Florida, Texas, and

California), all of which would limit the

profitability of such an illegal

enterprise. We believe that this limited

profit potential, when combined with

other factors such as the ready

availability of domestic and imported

avocados in areas outside the approved

States and the fact that persons involved

in such illegal transshipment are liable

to legal action, incarceration, or fines,

makes it unlikely that large-scale

transshipment will take place.

Comment: In the risk documents and

the proposed rule, APHIS asserts that

the Fruit and Vegetable Division of the

Agricultural Marketing Service (AMS)

would notify APHIS if Mexican-origin

avocados showed up at terminal

markets in non-approved States. The

AMS would be in no position to render

such assistance because their

responsibility is to grade fruits and

vegetables for export.

Response: The AMS does grade

domestically marketed fruit, as well as

fruit intended for export, so AMS

personnel will indeed be present at

terminal markets in non-approved

States and will thus be in a position to

assist APHIS in identifying misdirected

avocados.

Comment: In the risk documents and

the proposed rule, APHIS asserts that

the AMS would notify APHIS if

Mexican-origin avocados showed up at

terminal markets in prohibited States.

How will AMS personnel—or APHIS

inspectors—be able to tell the difference

between Mexican-origin Hass avocados

and Hass avocados that originated in

domestic groves or were imported from

Chile?

Response: Domestically grown Hass

avocados and Hass avocados imported

from Chile will be clearly labeled and

readily identifiable, since there is no

reason for a distributor or other person

to disguise their origin. Similarly, the

Mexican avocados will be packaged and

individually labeled to indicate that

they originated in Mexico, so a person

wishing to sell transshipped Mexican

avocados in a terminal market in a nonapproved State would have to go to

some lengths to disguise the origin of

the fruit. As discussed in the response

to a previous comment, we do not

believe that the level of profit that might

be expected from selling transshipped

Mexican avocados would be great

enough to entice a significant number of

people to engage in such illegal activity.

Comment: The commissioner of

agriculture in one State and the

governor of another have noted that

consumers, processors, and distributors

in their States have expressed interest in

the availability of Hass avocados from

Mexico and would like to see the list of

approved States expanded to include

their respective States.

Response: The placement of

additional States on the list of approved

States would have to be part of a

subsequent rulemaking. The public

must be given an opportunity to

comment on the inclusion of additional

States, and importations into the nonapproved States were not considered in

the supplemental pest risk assessment

and risk management analysis prepared

for July 1995 proposed rule, so we do

not have sufficient information

regarding the potential plant pest risk

associated with importing Mexican

avocados into other States. New States

may be added in the future if APHIS

receives a request to do so and the

agency determines that avocados can be

imported into that State without

presenting a significant pest risk; if such

a determination is made, a proposed

rule to add the State would be

published in the Federal Register.

Comment: Part of the rationale behind

APHIS’ limited distribution safeguard is

the contention that there is no suitable

host material to sustain the pests of

concern, especially the avocado-specific

pests. There is, however, the possibility

that the avocado seed weevils and the

avocado seed moth could become

established in the northeastern United

States by using red bay (Persea

borbonia), a relative of avocado (Persea

americana), as a host. Red bay is a host

of Heilipus apiatus, which is closely

related to the large avocado seed weevil

Heilipus lauri.

Response: Although H. apiatus is

related to H. lauri, H. apiatus is a stem

borer, not a seed pest. It is very unlikely

that H. lauri, Conotrachelus aguacatae

and C. perseae could survive by feeding

on the small seeds of red bay (fruit size

1–2 cm.). In addition, the seed moth is

found only at lower elevations in the

tropics, even though the host is grown

commonly at higher elevations. In fact,

all of the pests of concern become rare

or are completely absent at the higher

elevations. Although specific

temperature threshold information for

these pests may be scarce or absent,

there is no reason to believe that these

tropical or subtropical pests could

survive the winters in the approved

States.
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5301

Trust Fund Agreement and APHIS

Participation

Comment: APHIS and Mexico need to

recognize that APHIS is neither

adequately staffed nor funded to

properly deal with this proposed

importation program. This limitation

could be waived if all APHIS incurred

costs were borne by Mexico.

Response: The proposed rule clearly

stated that all costs associated with

APHIS’ participation in the program

would be paid by the Mexican avocado

industry association through a trust

fund agreement with APHIS. Paragraph

(b) of proposed § 319.56–2ff stated, in

part, that the Mexican avocado industry

association would be required to ‘‘pay

in advance all costs that APHIS expects

to incur through its involvement in the

trapping, survey, harvest, and

packinghouse operations * * *’’ Those

provisions are the same in this final

rule. The costs of inspecting imported

agricultural commodities at the port of

first arrival are recovered, when

applicable, by user fees.

Comment: The Mexican avocado

growers should be required to post a

bond or to somehow insure or

indemnify their product, so that in the

event of a pest infestation, domestic

avocado growers would receive some

financial compensation for their losses.

Response: We believe that requiring

Mexican growers to somehow

indemnify their product would be

unnecessary and ill-advised, largely

because no country in the world

requires the indemnification of

agricultural products offered for

importation; if the United States were to

set a precedent and require such

indemnification, it would be only a

matter of time before our domestic

agricultural producers would be

required to indemnify their products

offered for export. Any grower or farmer

has little control over his or her produce

once it has left the grove or farm, let

alone once it has been exported to

another nation. To ask that grower or

farmer to insure his or her produce from

the farm gate to the end consumer

would be unfair at best, especially in

this instance, given that the regulations

prohibit the distribution of Mexican

Hass avocados in U.S. avocado-growing

States. Finally, requiring such

indemnification would run counter to

our obligations under current

international trade agreements and

would certainly be subject to challenge

by Mexico and other potentially affected

trading partners.

Safeguards in Mexico

Comment: Why does Sanidad Vegetal,

an agency of the Mexican national

government, have to hire, train, and

supervise the personnel who will be

involved in trapping and conducting the

pest surveys? Mexico does not require

the USDA to hire, train, and supervise

the personnel engaged in similar

activities in California or Washington,

for example. Mexico accepts the results

provided by State-level personnel, as

should APHIS.

Response: The commenter is correct

in pointing out that Mexico—and many

other countries as well—accepts the

plant-health-related work performed in

the United States by State personnel.

We have, therefore, modified the

regulations in this final rule to allow the

personnel who conduct the trapping

and pest surveys in Michoacan to be

hired, trained, and supervised either by

Sanidad Vegetal, as was proposed, or by

the Michoacan State delegate of the

Secretaria de Agricultura, Ganaderia y

Desarrollo Rural (Secretariat of

Agriculture, Livestock, and Rural

Development), who holds a position

that is roughly equivalent to that of a

State agriculture commissioner in the

United States.

Comment: The supplementary pest

risk assessment states that ‘‘any

proposed program would include * * *

field surveys for specific avocado pests

at the State, municipality, and grove

levels,’’ but the area surveys called for

in the proposed rule appear to be only

at the municipality and grove levels.

Response: The reference to State-level

surveys in the supplementary pest risk

assessment was an error. State-level

surveys were not part of the Mexican

work plan, nor were they considered in

the risk management analysis or the

proposed rule. More importantly,

however, no estimates of risk or risk

reduction were based on the expectation

that State-level surveys would be

conducted. We believe that the required

municipality- and grove-level surveys,

which focus on detecting pests in the

production areas, will provide us the

necessary pest population information.

Comment: The supplemental pest risk

assessment states that one factor in the

assessment that affects risk management

is the assumption that all traces of stems

and other plant material would be

removed from the avocados before

packing. The proposed regulations,

however, do not mention removing

stems.

Response: The statement to which the

commenter is referring can be found on

page 8 of the supplemental pest risk

assessment. Freedom from stems and

other kinds of plant material is one of

the ‘‘Quarantine 56 conditions’’ that the

risk assessment assumes will be in

effect, which is indeed the case.

Paragraph (a) of § 319.56–2 requires that

‘‘all importations of fruits and

vegetables must be free from plants or

portions of plants, as defined in

§ 319.56–1.’’ Plants or portions of plants

is defined as ‘‘leaves, twigs, or other

portions of plants, or plant litter or

rubbish as distinguished from clean

fruits and vegetables, or other

commercial articles.’’ We have added

language to the packinghouse

requirements in § 319.56–2ff(c)(3) to

make it clear that stems, leaves, and

other portions of plant must be removed

from the avocado fruit.

Comment: The proposed rule calls for

dead branches to be pruned and

removed from the orchards, but

provides no set schedule for those

actions to occur. Without a more precise

schedule, the practice may not

effectively prevent stem weevil

infestations. Tree pruning should be

timed to remove dead or dying branches

before adult stem weevil emergence in

the spring or the fall. Spring removal

and destruction of dead or dying

branches would help to break the

reproductive cycle and reduce the

population level of any adult stem

weevils that may be present in those

orchards.

Response: No prescribed schedule

was included because we intend for the

removal of dead branches to be a

continuing part of an orchard’s

management and upkeep. The

regulations in this final rule require, as

was proposed, that ‘‘[d]ead branches on

avocado trees in the orchard must be

pruned and removed from the orchard.’’

That requirement is one of the

conditions under which any approved

orchard must operate.

Comment: The proposed rule calls for

avocado fruit that has fallen from the

trees to be removed from the orchards

prior to harvest. Given the fact that such

fruit is more likely to be infested by

pests, removal of fallen fruit should be

part of a regular field sanitation routine,

not merely be a pre-harvest event.

Response: We agree that removing

fallen fruit as a regular practice would

lower the risk of fruit fly attraction

within an orchard and would thereby

lower the overall fruit fly population in

an orchard. Therefore, we have changed

§ 319.56–2ff(c)(2)(iii) in this final rule to

require that fallen fruit be removed from

export orchards at least once a week.

Comment: It will be all but impossible

for the registered growers in Michoacan

to patrol their approved orchards often

enough to remove all the avocado fruit
5302 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

that has fallen from the trees prior to

harvest, and it is unrealistic to expect

that pickers who are paid by the bin or

by the pound will not place fruit from

the ground into their field boxes during

the harvest, thus increasing the risk that

infested avocados will be exported to

the United States. How will APHIS

enforce these requirements?

Response: Although it is unlikely that

any orchard could ever be kept

completely free of fallen fruit, we

believe that it is possible for a grower

to keep up with most of the fallen fruit

by following sound field sanitation

practices. As noted in the response to

the previous comment, we will require

that fallen fruit be removed from the

orchard on a weekly basis, rather than

just before harvest. Because a finding of

infested fruit will result in the

suspension or withdrawal of an

orchard’s export certification, it is in a

grower’s best economic interests to

prevent fallen fruit from being

intermingled with harvested fruit.

Inspections at the packinghouse prior to

and during the culling process, along

with subsequent inspections in the

United States, are expected to alert us to

the presence of pests, and frequent

checks by APHIS and Sanidad Vegetal

inspectors will help ensure that the

requirements of the regulations are

being observed.

Comment: It is highly unlikely that

avocados in the approved orchards

could be harvested by pickers, dumped

into bins or other containers, loaded

onto trucks, and covered in less than 3

hours after being picked. It is more

likely that the fruit will be exposed for

longer periods of time and thus exposed

to potential fruit fly infestation. How

will APHIS be able to supervise these

requirements?

Response: We acknowledge that a

grower may not be able to transport all

his avocados to the packinghouse

within 3 hours of harvesting them, so

there are provisions for protecting the

fruit until it is moved. Specifically, the

regulations in this final rule require, as

was proposed, harvested avocados to be

‘‘moved from the orchard to the

packinghouse within 3 hours of harvest

or they must be protected from fruit fly

infestation until moved.’’ APHIS

inspectors and Sanidad Vegetal

personnel will be monitoring the export

groves during harvest and will ensure

that these and all the other requirements

of the regulations are met.

Comment: The Mediterranean fruit fly

(Medfly) has been found at high levels

in the Mexican State of Chiapas, which

is close to the State of Michoacan. In

order to monitor potential Medfly

movement into the Michoacan region,

monitoring for Medfly at a higher trap

density than called for in the proposed

rule is needed.

Response: Given the history of

Medfly’s spread and the spread of other

fruit flies, we believe that Medfly is

unlikely to migrate the 650 miles from

Chiapas to Michoacan. The trapping

densities and trap types required in this

final rule for Medfly monitoring in

Mexico are the same as those used to

monitor for Medfly in California, where

much of the State’s fruit production area

lies within 650 miles of the recent Los

Angeles Basin infestation.

Comment: Field surveys are defined

by APHIS as the most effective

safeguard for protection against

avocado-specific pests, but these

surveys rely almost exclusively on

programs under the direction of Sanidad

Vegetal. If this is to be the most effective

line of defense against the introduction

of the seed weevil, APHIS should be

directly involved in implementing this

program and not merely monitoring the

process.

Response: With regard to the required

safeguards, including field surveys, the

regulations in § 319.56–2ff(c) clearly

state that ‘‘APHIS will be directly

involved with Sanidad Vegetal in the

monitoring and supervision of those

activities.’’ APHIS personnel will be

present in Michoacan in a supervisory

and monitoring capacity to ensure that

the required safeguards are being

observed, not to conduct field surveys

for the Mexican avocado industry.

Municipality Requirements

Comment: A survey should be

required for the avocado seed moth, and

sex lure or food bait traps should be

used to monitor for the avocado seed

moth.

Response: In this final rule, as in the

proposed rule, the regulations in

§ 319.56–2ff(c)(1)(ii) require that each

municipality be surveyed at least

annually for the avocado seed moth and

the other avocado seed pests. A sex lure

or food bait is not available for use in

trapping for the avocado seed moth, but

we continue to believe that the annual

survey required by the regulations will

serve to alert us to the presence of this

and other pests in the municipalities,

and that the other safeguards in the

regulations will ensure that shipments

of avocados will be free of the pests of

concern.

Comment: The proposed regulations

call for at least 300 hectares of each

municipality to be surveyed for seed

weevils and seed moths at least

annually. While the proposal states that

‘‘portions’’ of each registered orchard

and areas with wild or backyard

avocado trees must be included in the

survey, the term ‘‘portions’’ is not

defined and is, thus, open to

interpretation. Additionally, there is no

explanation of how a 300-hectare survey

per municipality will yield a 95 percent

confidence level of detection. How can

a single annual survey of 300 hectares

serve as the basis for calling a

municipality free of seed weevils and

seed moths?

Response: We did not specify a

minimum size for the ‘‘portions’’ to be

surveyed because the survey must

include portions of each registered

orchard and areas with wild or backyard

avocado trees, and the number of those

areas will vary between municipalities.

However, the work plan in which

Sanidad Vegetal will set forth the details

of the survey activity will have to be

approved by APHIS, and APHIS

personnel will be supervising the

surveys, so we will be able to ensure

that Sanidad Vegetal continues its

current practice of reflecting the size of

an orchard in the size of the surveyed

area, i.e., surveying larger orchards more

widely than smaller orchards. The

overall survey size of 300 hectares per

municipality was selected to ensure that

there would be a 95 percent or greater

confidence level, independent of the

size of the municipality, that the survey

would detect the pests if they occur in

1 percent or more of the commercial

growing areas within the municipality.

The only way to approach a 100 percent

confidence level would be to survey

every tree, which is not practical. It

should be noted that the municipality

must be found free of the avocado seed

pests—i.e., none found during the entire

300-hectare survey—and that the survey

must be conducted during the growing

season and prior to the harvest of the

avocados. The nature and timing of this

annual survey offers a high degree of

assurance that the avocados exported to

the United States will be free from

avocado seed pests.

Comment: Field survey is a critical

element. The survey protocol is set up

to have a 95 percent confidence level of

finding 1 percent infestation; this

assumes an evenly distributed

infestation, not the more likely scenario

of certain groves being more likely

infested than others and a spotty

distribution of weevils within an

infested grove.

Response: We believe that the field

surveys required by the regulations,

which will be supervised by APHIS, are

already designed to address the uneven

distribution thought likely by the

commenter. The required surveys will

include each registered orchard, so

every grove from which avocados will
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5303

be exported to the United States will be

inspected; areas with wild or backyard

avocado trees will be surveyed as well.

Within each registered orchard, the

APHIS personnel supervising the

surveys will ensure that the survey sites

are randomly selected to provide a

reliable means of detecting uniform or

spotty distributions of pests within each

orchard. (To make that requirement

clear, we have added the words

‘‘randomly selected’’ to § 319.56–

2ff(c)(1)(ii) in this final rule to describe

the selection of survey sites within each

orchard.)

Comment: The proposed regulations

call for at least 300 hectares of each

municipality to be surveyed for seed

weevils and seed moths at least

annually. Have any of those surveys

been conducted yet? APHIS should have

conducted its own survey to determine

the municipalities to be free of the

avocado seed pests and fruit flies before

publishing the proposed rule.

Response: Seed pest surveys have

been conducted routinely by Sanidad

Vegetal for its own programs over the

past several years, but the surveys called

for by the regulations have not been

conducted yet because Sanidad Vegetal

and APHIS do not know which

municipalities and orchards will

register to participate in the avocado

export program. When the work plan is

submitted and the participating

municipalities and groves are identified,

APHIS will be directly involved with

Sanidad Vegetal in the monitoring and

supervision of the surveys.

Sanidad Vegetal Avocado Export

Program

Comment: APHIS claims in the

proposed rule that over 5 million

kilograms of avocados have been

exported to Japan during the last 3 years

under the Sanidad Vegetal Avocado

Export Program with no recorded

interceptions of the 8 pests of concern.

APHIS failed to mention, however, that

one quarter of all Mexican avocado

shipments to Japan were fumigated after

live pests were discovered. In addition,

the Japanese inspectors do not routinely

cut fruit as part of their inspection

process. Finally, Japan and the other

countries to which Mexican avocados

are exported do not have domestic

avocado industries, so there is

significantly less risk for those countries

from the start.

Response: It is Japanese plant

protection policy to fumigate an

imported commodity from any country

when any live organism is found—

regardless of the organism’s quarantine

or pest status—so it is not accurate to

characterize the fumigation of Mexican

avocados by Japan as being solely in

response to the detection of live pests.

What is of primary importance is the

fact that the Japanese have not detected

the presence of any of the eight pests of

concern to APHIS. APHIS did not claim

that Japanese plant protection officials

cut fruit as part of their routine

inspection. The Japanese have sampled

and carefully examined approximately

50,000 avocados over the last 3 years,

cutting the fruit if external signs of pests

indicate the need to do so. Finally, there

is less risk posed to a country without

a domestic avocado industry, but only

in terms of avocado-specific pests; such

a country would still seek to identify

and mitigate, as necessary, the risks

presented by other pests such as

Anastrepha spp. fruit flies.

Orchard and Grower Requirements

Comment: Under the proposed

regulations, APHIS would allow an

orchard to continue shipping even after

more than one Anastrepha spp. fruit fly

is discovered during a 30-day period,

provided malathion bait sprays were

applied. The proposed rule states that

this protocol is similar to those used in

Texas and Florida; however, Florida

orchards are eliminated from their

export program if two Caribbean fruit

flies are discovered in an orchard. Why

is there a disparity?

Response: In the proposed rule, we

stated that the procedures for fruit fly

trapping, increased trapping in response

to a fruit fly detection, and pesticide

treatments in response to additional

detections in the Mexican avocado

program were similar to the procedures

used by APHIS in citrus fruit

production areas of Florida and Texas

where Anastrepha spp. fruit flies exist.

The similarities can only carry so far,

however, when there are differences in

the pest of concern, the susceptibility of

the commodity to infestation, or both.

Accordingly, the program response to

the capture of Caribbean fruit flies

(Anastrepha suspensa) in a Florida

citrus grove differs from the program

response for the capture of Anastrepha

ludens, A. serpentina, or A. striata in a

Mexican avocado grove. APHIS believes

that the systems approach used in each

case, although different, adequately

reduces the risk to an insignificant level

in their respective pest situations.

Comment: The proposed regulations

would require trapping for Anastrepha

spp. fruit flies throughout the year in

production areas. Research shows that

Hass avocados are not fruit fly hosts;

therefore, trapping for fruit flies should

not be required in avocado production

areas. If the requirement is maintained,

Mexican avocados should be allowed

entry into the United States without

seasonal or geographic restrictions.

Response: We disagree with the

commenter’s contention that fruit fly

trapping is unnecessary. Although we

do believe that Hass avocados still on

the tree are non-preferred hosts for

Anastrepha spp. fruit flies, we

nonetheless believe that it is prudent to

require trapping in the production areas

to allow us to monitor the population

levels of the fruit flies. Significant

increases in fruit fly populations in the

production areas would increase pest

pressure on the avocados, which would

necessitate a reassessment or adjustment

of the program’s fruit fly risk mitigation

measures. We continue to believe that

the fruit fly trapping, along with the

seasonal and geographic restrictions and

the other elements of the program, are

necessary to provide for the safe

importation of avocados from Mexico.

Comment: The Anastrepha spp. trap

density of 1 trap per 10 hectares is too

low for effective monitoring. The

biological reality is that adult fruit flies

would move between various hosts in

the region as different hosts become

more or less attractive for oviposition. A

proper regional trapping program

should be established that includes

buffer areas around orchards. Also, the

attraction range of McPhail traps is

small—a few feet or meters—compared

to other trap types. Relying on traps of

this type and trap densities at this low

a level could allow fruit fly population

levels to increase significantly without

detection.

Response: The Anastrepha spp. fruit

fly trapping is intended to indicate

whether fruit fly populations are present

in production areas, rather than in areas

where wild or alternative host material

may be grown, which is why the

trapping is to be conducted in the

orchards. We believe that the required

trap density of 1 trap per 10 hectares

will be sufficient to indicate the

presence of fruit fly populations in the

orchards. In the United States, the

national detection protocol for

Anastrepha ranges from 1 trap per 10

square miles to 5 traps per square mile;

the Rio Grande Valley and Florida citrus

protocol for Anastrepha ranges from 5

to 15 traps per square mile. The density

required in the Mexican orchards—1

trap per 10 hectares—works out to

approximately 25 traps per square mile,

which is the same density required to

maintain the fruit-fly-free zone in the

Mexican State of Sonora. With regard to

the type of traps used, we believe that

some of the other traps currently

available may be comparable to the

McPhail trap, but none are better for

monitoring for Anastrepha fruit flies.
5304 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

Comment: Field trapping data can,

and likely will, be modified to get the

‘‘right’’ answer.

Response: APHIS will be directly

involved with Sanidad Vegetal in the

monitoring and supervision of all

required activities in Mexico, including

the trapping. We believe this routine

supervision and monitoring will

discourage any tampering with trapping

data, especially considering that an

orchard or even an entire municipality

could be subject to suspension or

expulsion from the export program if

caught falsifying trapping data. Further,

trained APHIS personnel will be present

in the municipalities, orchards, and

packinghouses throughout the growing

season and harvest and would thus be

in a position to notice the discrepancies

between falsified data and actual

conditions.

Comment: The proposed regulations

call for certain actions to be taken if a

fruit fly is trapped in an orchard, but the

protocol for the number of malathion

treatments to be used and when export

shipments could be resumed in relation

to fruit fly finds is unclear.

Additionally, nothing is said with

regard to actions that would be taken in

the event of fruit fly larvae being found

in avocado fruit.

Response: As stated in the proposed

rule and in this final rule, the trapping

of a single fruit fly in an export orchard

will require the deployment of at least

10 additional traps in the 50-hectare

area surrounding the trap in which the

fruit fly was found, and any additional

finds within 30 days in the 260-hectare

area surrounding the first find will

necessitate the application of malathion

bait treatments in the affected orchard

in order for the orchard to remain

eligible to export avocados to the United

States. Exports from the orchard would

not be suspended based on fruit fly

finds alone, so the resumption of export

shipments in relation to fruit fly finds

is not addressed in the regulations. If,

however, the grower failed to apply

malathion bait treatments when

required, the orchard would lose its

export certification and the grower

would have to requalify for that

certification before exports from the

orchard could resume. The specific

protocol for the number of malathion

treatments that would have to be

applied in the orchard is not spelled out

in the regulations; rather, the applicable

protocols would be detailed in the

annual work plan prepared by Sanidad

Vegetal and approved by APHIS that

details the activities that Sanidad

Vegetal will carry out to meet the

requirements of the regulations. The

detection of fruit fly larvae in avocado

shipments at the packinghouse or

during subsequent inspections will

automatically result in the rejection of

the infested shipment based on its

failure to meet the requirement for

freedom from pests and will trigger an

evaluation of the export program.

Comment: Under the proposed

regulations, APHIS would allow an

orchard to continue shipping even after

more than one Anastrepha spp. fruit fly

is discovered during a 30-day period,

provided malathion bait sprays were

applied. The discovery of additional

flies found within 1 month, or

preferably one life cycle, should require,

in addition to malathion and bait

treatments, the suspension of any

exports until 30 days or, again,

preferably one life cycle, has passed

with no new detections. This would

help assure that any fruits that might

contain fruit fly eggs or larvae are not

shipped.

Response: We believe that the poor

Anastrepha host status of Hass

avocados, along with the application of

malathion bait treatments, increased

trapping, lower wintertime fruit fly

activity, and the required post-harvest

safeguards makes it unnecessary to

suspend exports from a grove based on

the trapping of more than one fruit fly

within a 260-hectare area centered

within the grove.

Packinghouse Requirements

Comment: The proposed rule would

require 250 avocados per shipment to be

selected, cut, and inspected at the

packinghouse prior to the culling

process. To reach a 95 percent

confidence level of detecting a 1 percent

infestation rate, at least 300 avocados

should be inspected.

Response: We agree with the

commenter. Depending on the size of

the fruit and the number of field boxes,

the size of a shipment could range

between 1,000 and 4,000 avocados;

hypergeometric tables indicate that the

sample size needed to reach the 95

percent confidence level of detecting a

1 percent infestation would vary

between 258 and 288 fruit. Therefore,

we have changed the required sample

size in § 319.56–2ff(c)(3)(iv) to 300 fruit.

Comment: No size is given for a

‘‘shipment,’’ yet the proposed

regulations say to cut 250 fruit per

shipment in the packinghouse prior to

the culling process. With a large

shipment, cutting 250 fruit could yield

a near-zero confidence level of detecting

1 percent or greater infestation. Sample

size must bear some relationship to the

total lot size.

Response: As noted in the previous

response, the size of a shipment could

vary between 1,000 and 4,000 avocados,

and hypergeometric tables indicate that

a sample size of 288 avocados would be

sufficient to detect a 1 percent

infestation in a shipment of 4,000

avocados with 95 percent confidence.

Because we will require 300 avocados to

be sampled from each shipment, and

because increasing the sample size

above that level will not significantly

increase the statistical probability of

detecting a 1 percent infestation, we

have not made any changes in response

to that comment.

Comment: It is not unreasonable to

expect that some growers in Mexico will

take avocados from non-certified groves

to a certified grove or an export

packinghouse and attempt to pass the

avocados off as having been grown in a

certified grove. What safeguards will be

in place to prevent this from happening?

Response: As stated in the proposed

rule and in this final rule, a finding of

any of the avocado seed pests Heilipus

lauri, Conotrachelus aguacatae, C.

perseae, or Stenoma catenifer in a

municipality during an annual pest

survey, orchard survey, packinghouse

inspection, or other monitoring or

inspection activity will result in the

municipality’s loss of its pest-free

certification and the suspension of

avocado exports from that municipality

until APHIS and Sanidad Vegetal agree

that the pest eradication measures taken

have been effective and that the pest

risk within that municipality has been

eliminated. Similarly, a finding of the

stem weevil Copturus aquacatae during

an orchard survey or in a packinghouse

will result in an orchard losing its

export certification for the entire

shipping season of November through

February. Because avocado fruit from

non-certified groves presents a greater

pest risk than does fruit grown in

certified groves, we believe that it is

unlikely that the growers and packers in

an approved municipality would allow

their entire export operation to be

jeopardized by allowing potentially

infested fruit from non-certified

orchards to be commingled with their

export-quality fruit. In addition to that

purely economic disincentive, APHIS

and Sanidad Vegetal inspectors will also

be present in the municipalities,

orchards, and packinghouses during the

shipping season to ensure that all

requirements of the regulations are

being observed.

Comment: It will be difficult for

inspectors in packinghouses or at the

border to detect the presence of stem

weevils in avocados once the fruit has

been washed because washing removes

the white residue or ‘‘sugaring’’ that is
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5305

found on the fruit when stem weevils

are present.

Response: Under the inspection

system contained in the proposal and in

this final rule, packinghouse inspection

would occur after the fruit has been

removed from the field boxes and before

the fruit has been washed, so any white

residue would still be visible. However,

detecting the presence of stem weevils

after washing is also possible with

proper training, as is evidenced by the

hundreds of instances in which APHIS

inspectors at the El Paso, TX, border

crossing have detected the pest in

avocados confiscated from smugglers.

Shipping Requirements and

Restrictions

Comment: Illinois should be

eliminated from the list of approved

States because of the large number of

terminal markets in Chicago that

regularly ship produce to unapproved

States. It would be too difficult to

prevent Mexican avocados from being

shipped to unapproved States from

Chicago.

Response: The fact that a distributor

in one State may deal with a distributor

in another State was not a significant

consideration in the compilation of the

list of approved States. Certainly, any

distributor in any State who was

determined to transport avocados

outside of the approved States could

likely do so, be he in Maine or Illinois.

Illinois and the other approved States

were requested as markets by Mexico

because the cold winter climate and

general unsuitability to tropical pest

infestation of those States offered an

additional safeguard for the proposed

export program, reasoning with which

APHIS agreed. Distributors in States on

the southern and western periphery of

the approved area are likely to deal with

customers in neighboring States; if those

States were eliminated from the list of

approved States, we would simply be

left with another group of States that

border on non-approved States.

Comment: Ports of entry in Texas

should not be limited to those listed in

the proposed rule; rather, APHIS should

issue permits that would be valid for

multiple ports in order to preserve

competition.

Response: The Texas ports of entry

were selected because they are staffed

by APHIS inspectors who are

experienced with dealing with avocado

shipments. We believe that the seven

Texas ports of entry listed in the

regulations will be adequate to meet the

needs of importers who wish to receive

their products through Texas. If there is

a demonstrated need for additional

ports of entry in Texas or circumstances

otherwise warrant the addition of new

ports of entry for Mexican avocados,

such an addition to the list of ports

would have to be proposed as part of a

future rulemaking.

Comment: The proposed rule would

require the avocados to be moved

through the United States by air or in a

refrigerated truck or rail car, as

temperature is critical to the

suppression of these known pests. I

would think a temperature recording

device showing that the avocados have

been held under refrigeration at 40

degrees through the transporting period

would be mandatory. I see no reason for

a refrigeration requirement without a

temperature and temperature recording

requirement.

Response: The cooler temperatures in

Michoacan and the cold temperatures in

the approved States played a role in our

assessment of pest risk, but the

requirement for refrigerated trucks,

containers, or rail cars was not

specifically identified as a mitigating

measure in the supplemental pest risk

assessment or in the risk management

analysis. By the time the avocados have

entered the United States, keeping the

temperature of the fruit low during

transport contributes as much to

maintaining fruit quality as it does to

suppressing possible pest activity. The

importer of the fruit would certainly

expect that the fruit would be in the best

possible condition upon its arrival in an

approved State, and the person

transporting the fruit would seek to

meet that expectation. Therefore, we do

not believe it is necessary for APHIS to

require that temperature logs be

maintained by the person transporting

avocados imported into the United

States from Mexico.

Comment: How will APHIS ensure

that shipments of avocados are not

diverted to non-approved States during

transit?

Response: The avocados will be

required to travel under a bond posted

by the importer with the U.S. Customs

Service. The bond serves to guarantee

that the shipment will be delivered

intact to the destination listed on the

permit issued for its importation; if the

shipment does not arrive at its

destination, the fact that the in-bond

papers have not been closed out will

serve to notify Customs and APHIS that

the permit requirements have been

violated. Persons violating the

conditions of the permit and the inbond agreement are liable to forfeiture

of the bond and significant civil and

criminal penalties.

Comment: The shipping corridor

should not extend as far to the north as

was proposed; there are too many routes

leading west in the northern area of the

corridor.

Response: We believe that the routes

that lead north and east from El Paso,

TX, would likely be used by shippers,

especially those with destinations in the

western portion of the approved States.

As noted in the response to the previous

comment, significant penalties can be

assessed on shippers who fail to observe

the conditions of the permit.

Comment: Nogales, AZ, and El Paso,

TX, should be eliminated as ports of

entry for Mexican avocados bound for

the northeastern United States. These

ports are so far west that diversion of

shipments to the high-demand

California markets would be likely.

Response: Nogales and El Paso are

each situated at the northern end of a

major north-south Mexican highway

and are significant hubs for U.S./

Mexican trade. These ports are staffed

with APHIS personnel experienced with

handling avocado shipments and are

currently used as ports of entry for

avocados and other restricted products

such as citrus fruit and mangoes that are

moving through the United States to

destinations outside the United States

under the plant quarantine safeguard

regulations in 7 CFR part 352. The

permit and bond agreement under

which the avocados will be shipped will

clearly delineate the areas through

which the avocados may be moved and,

as noted in the responses to the

previous two comments, significant

penalties can be assessed on shippers

who fail to observe the conditions of the

permit.

Inspection

Comment: Inspection at the port of

first arrival is a weak link in the systems

approach. Given the risk presented, an

inspection scheme of closer to 100

percent would be more appropriate than

the current plan.

Response: Inspection at the port of

first arrival is intended to accomplish

two goals. First, inspectors check the

documents accompanying the shipment

to ensure that the avocados are from an

approved orchard and were processed

in an approved packinghouse and are

accompanied by a phytosanitary

certificate. The inspectors also ensure

that the limited distribution statement

appears on all boxes, that a U.S.

Customs Service bond has been secured

for the shipment, and that the in-bond

papers indicate that the shipment is

consigned to an importer in an

approved State. Second, the inspectors

will select a sample of fruit from each

shipment and carefully cut and inspect

those avocados to verify their pest-free

status. Inspection at the port of first
5306 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

arrival is essentially a redundant

safeguard that serves to verify that all

the regulatory requirements applicable

to the importation of the avocados have

been met.

Comment: Inspections are likely to be

negatively impacted by the numbers of

boxes coming through.

Response: Given the number of ports

of entry and the expected volume of

imported Mexican avocados, we do not

believe that APHIS inspectors at the

ports of entry will be faced with an

overwhelmingly large number of

shipments. In all cases, shipments of

avocados being offered for entry into the

United States will be inspected in

accordance with the regulations.

Comment: The proposed regulations

state that the avocados, upon arrival at

the terminal market in the northeastern

States, are subject to inspection. I would

think an inspection would be

mandatory and should reflect

temperature and fruit condition on

arrival.

Response: As noted in the response to

the previous comment, we will inspect

all shipments of avocados offered for

importation into the United States from

Mexico. APHIS personnel are not

routinely assigned to terminal markets,

so we cannot require that an additional

inspection be conducted when the

avocados arrive at their destination.

Under the Federal Plant Pest Act

(FPPA), APHIS does have the authority

to inspect the avocados at the port of

first arrival, at any stops in the United

States en route to the northeastern

States, and upon arrival at the terminal

market in the northeastern States; the

regulations in § 319.56–2ff(i) reflect that

authority.

Other Comments

Comment: The proposed rule is silent

with regard to issues of liability, which

is a matter that could affect many

businesses. For example, a distributer

cannot police the product once it has

been sold, but there are distributors in

the approved States who routinely do

business with customers who operate

both inside and outside of the approved

States. To the extent that there is

potential enforcement action against

wholesalers, brokers, and distributors, it

should be clear as to the penalties for

violating the regulations.

Response: Just as is the case with all

apparent violations of APHIS

regulations, the Agency’s Regulatory

Enforcement staff would examine the

case and conduct an investigation to

ascertain the facts of the case.

Subsequent actions could range from

warnings to civil penalties to

recommendations for criminal

prosecution, depending on the facts of

each particular case.

Comment: There is a basic conflict of

interest between APHIS’ new mandate

to facilitate international (import) trade

and its historical mandate to prevent the

introduction and establishment of exotic

pests. The proposed rule is biased

toward promoting trade to the detriment

of pest exclusion and is a clear

departure from established APHIS

protocols for pests with major potential

impact such as Anastrepha spp. fruit

flies.

Response: APHIS’ primary

responsibility with regard to

international import trade is now, and

has been for many years, to identify and

manage the risks associated with

importing commodities. Because, as we

have already noted, there is no such

thing as zero risk in international trade,

reducing risk to an insignificant level is

the only realistic approach. If there is no

practical way to mitigate a particular

risk associated with a product, APHIS

will prohibit that product’s entry into

the United States, as is our right under

current international trade agreements;

we have done so in the past and will

continue to do so when warranted.

However, when we determine that the

risk can be reduced to an insignificant

level, it is our responsibility under those

same trade agreements to make

provisions for the importation of that

product. In terms of facilitating trade,

APHIS’ role is solely in the area of

exports, i.e., working to eliminate

obstacles to the exportation of

commodities produced in the United

States. The systems approaches for

citrus from Florida and Texas, apples

from Washington, and stonefruit from

California that we cited in the proposed

rule are examples of ways that we have

found to answer the pest concerns of

our trading partners in order to enable

the exportation of domestically grown

fruits and vegetables. Just as we seek to

open foreign markets to our Washington

apples or California stonefruit, however,

we must also listen to the requests of

other nations seeking to export their

products to the United States.

Comment: Will APHIS provide for

monitoring and trapping in the United

States for the fruit flies and seed pests

once Mexican avocados are allowed into

the country? Are there procedures for

such monitoring?

Response: APHIS already has an

established national fruit fly monitoring

program in place, and monitoring for

certain other exotic pests is conducted

by Federal and State agencies

participating in the Cooperative

Agricultural Pest Survey (CAPS)

program. In addition to these formal

programs, the day-to-day observations of

homeowners, growers, and cooperative

extension service agents also play a role

in the detection of pests across the

country.

Comment: What actions will the

Federal government take if pests are

introduced into the United States

through the importation of avocados

from Mexico? Will the Federal

government pay for pest eradication if

the introduced pests become

established? Are there quarantine

treatments available for use in the

United States to qualify affected

commodities for interstate movement

and export if the introduced pests

become established?

Response: APHIS’ Domestic and

Emergency Operations staff has

prepared a draft emergency action plan

that addresses the Federal response in

the unlikely event that a pest outbreak

occurs. As with any pest outbreak,

APHIS would cooperate with any

affected States in assessing the extent of

an outbreak, applying mitigative

measures to eliminate the pest if

appropriate, and providing for

continued agricultural trade from the

area affected by the pest outbreak.

Comment: Due to government-wide

budget cuts and frozen or reduced

staffing levels, APHIS will be unable to

enforce the proposed restrictions from

the grove in Mexico to the final U.S.

consumer. APHIS states that it would

make ‘‘resource adjustments’’ to

accommodate the proposed avocado

import program, but APHIS officials

have acknowledged that the agency is

finding it difficult to meet its current

program demands. Before the proposed

rule can go forward, APHIS must

demonstrate that it has sufficient

resources to execute its responsibilities

under the proposed system.

Response: As was stated in the

proposed rule, import authorizations

will not be provided for Mexican

avocados if the level of resources

decreases below the level needed to

ensure that all imported regulated

articles are subject to the level of

inspection and monitoring necessary to

prevent the introduction of plant pests

into the United States. At the present

time, it is difficult to provide the details

on APHIS monitoring and supervision

because we do not yet know the number

and total acreage of orchards and the

number of packinghouses in Michoacan

that will be participating in the avocado

export program. We can say, however,

that APHIS personnel will be present

during the harvest, shipping season, and

during critical orchard survey and

trapping activities to ensure that the
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5307

requirements of the regulations are

being met.

Comment: I want to have confidence

that if this proposal as written is not

followed that immediate corrective

action will be taken in Mexico and the

United States. How can domestic

growers have confidence that each

element of this complex proposal will

be stringently enforced in Mexico and in

the United States? What penalties will

be enacted for failure to adhere to the

requirements?

Response: The introductory text of the

regulations in § 319.56–2ff clearly states

that fresh Hass avocados may be

imported from Mexico into the

northeastern United States only if the

importation is authorized by a permit

and only under the conditions set forth

in the regulations; if those conditions

are not met, the avocados may not be

imported into the United States.

The growers, packers, and shippers in

Michoacan have, at the very least, a

financial interest in meeting the

conditions of the regulations; failure to

do so can result in the loss of their

ability to export avocados to the United

States for an entire shipping season.

Beyond that, Sanidad Vegetal personnel

will be in the production areas and

packinghouses conducting surveys,

trapping, and inspections to ensure that

the requirements of the regulations are

being met. Finally, APHIS inspectors

will be present in Mexico and will be

directly involved with Sanidad Vegetal

in the monitoring and supervision of the

required safeguards.

In terms of penalties that would apply

for violations committed in the United

States, the FPPA and the Plant

Quarantine Act provide for a penalty of

not more than $5,000 and imprisonment

for not more than 1 year for any person

who knowingly violates regulations

promulgated under those acts, which is

the case with the regulations in this

final rule. Civil penalties of up to $1,000

per violation can be assessed for other

violations of the regulations. In

addition, the FPPA gives an APHIS

inspector the authority to seize,

quarantine, treat, apply other remedial

measures to, destroy, or otherwise

dispose of, in such manner as he deems

appropriate, any product or article

moving into or through the United

States in violation of regulations

promulgated under the FPPA.

Comment: Mexico allows the use of

pesticides that are not allowed or

strictly controlled in the United States,

the residues of which will be harmful to

U.S. consumers.

Response: As we noted in the

proposed rule, the U.S. Food and Drug

Administration (FDA) samples and tests

imported fruits and vegetables for

pesticide residues. If residue of a

pesticide unapproved in the United

States is found in a shipment of

imported fruit or vegetables, the

shipment is denied entry into the

United States by the FDA.

Comment: APHIS should require that

the avocados receive quarantine

treatments such as fumigation, heat or

cold treatments, or irradiation to

eliminate the pests of concern while the

avocados are still in Mexico.

Response: There are currently no

approved quarantine treatments

available for avocados to eliminate the

pests of concern. There is no established

protocol for the irradiation of avocados,

and fumigation is not effective against

all the pests, especially the seed

weevils. Procedures such as cold

treatment, hot water treatment, or hot

forced air treatment cannot eliminate

those seed pests without significantly

degrading the quality of the fruit.

Comment: To comply with the

National Environmental Policy Act

(NEPA), APHIS should prepare an

environmental impact report that takes

into account the likelihood of pest

establishment in growing areas in

California and Florida and the effects

that such an infestation will have, such

as increased pesticide usage and the

burning of infested avocado groves.

What will the Federal government do to

mitigate the negative impacts of those

considerations?

Response: For the proposed rule,

those issues were addressed in the

supplemental pest risk assessment (e.g.,

the likelihood of pest establishment on

pages 23–35 and environmental impacts

on page 22). An environmental

assessment and a finding of no

significant impact have been prepared

for this final rule.

Response to Petitions

On March 15, 1996, the USDA

received a petition from the CAC asking

that the Department: (1) Reopen the

administrative record for the proposed

rule for the purpose of receiving newly

discovered evidence obtained by the

CAC; (2) hold an additional public

hearing to explore the newly discovered

evidence; and (3) stay further

administrative action on the proposed

rule pending the outcome of an

investigation of the conduct of a foreign

agent of the Michoacan Avocado

Commission (MAC). On April 12, 1996,

the CAC notified USDA that it had

obtained additional pest information

that would form the basis for a

supplemental petition that would be

submitted to USDA after CAC had

completed its analysis of the pest

information.

In a letter dated April 17, 1996, the

USDA asked the CAC to submit any

substantive information supporting its

petition; on April 29, 1996, the CAC

complied with that request by

delivering a copy of the pest survey

information on which the March 15

petition was based. In a letter

accompanying the April 29 submission

of information, the CAC notified the

USDA that a supplemental petition

would be delivered to the Department

the following week. The supplemental

petition was delivered to USDA on May

3, 1996. In that supplemental petition,

the CAC reiterated its request that the

Department reopen the administrative

record to receive new pest evidence and

to hold an additional public hearing to

explore the new evidence and asked

that the Department require APHIS to

prepare a new quantitative pest risk

assessment based on all available data,

including the new data submitted with

the supplemental petition. In its May 3

supplemental petition, the CAC also

stated that it would continue to seek

additional data and that any significant

new information would be used as the

basis for a new filing to further

supplement its petition.

On May 16, 1996, the CAC submitted

a new filing in the form of a letter

containing additional information

intended to support and further

supplement those first two requests that

the USDA reopen the administrative

record, conduct a new quantitative pest

risk assessment based on all available

data, and hold an additional public

hearing on the proposed rule. In that

May 16 letter, the CAC made the

following additional claims: (1)

Chemical treatment programs have

failed to eliminate stem weevils in

Uruapan, Michoacan, Mexico, and that

orchards once found free are being

reinfested; (2) local agricultural agencies

in Michoacan in charge of field

sanitation have not yet complied with

procedures set forth by Mexico’s

Secretaria de Agricultura, Ganadaria y

Desarollo Rural (SAGDR); and (3)

certain packinghouses have been

identified as candidates for handling

avocados destined for export to the

United States despite the fact that they

are located in areas where pests are

known to be present at high levels.

The CAC filed a third supplement to

the March 15 petition on December 20,

1996, once again requesting that the

USDA reopen the administrative record,

conduct a new quantitative pest risk

assessment based on all available data,

and hold an additional public hearing

on the proposed rule. This third filing
5308 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

contained claims that: (1) Recent

surveys show that orchards in

Michoacan—including orchards in

Sanidad Vegetal’s export program—

contain stem weevils and (2) Mexican

avocado growers are withdrawing from

government plant health programs and

the regional association of avocado

growers has withdrawn from the MAC.

In its March 15 petition and the May

3, May 16, and December 20, 1996,

supplemental filings to that petition, the

CAC presented information pertaining

to three areas: The prevalence of pests

in Michoacan; the activities of local,

State, and national agricultural officials

in Mexico; and the integrity of the

rulemaking process. After carefully

reviewing the petition and

supplemental filings, we have

concluded that the evidence offered by

the CAC does not warrant our reopening

the administrative record, holding

additional hearings, delaying further

administrative action on the proposed

rule, or preparing a new quantitative

pest risk assessment. Therefore, we are

denying the CAC petition for the

reasons explained below.

First, the CAC stated that the pest

survey data it had obtained show that

the fruit fly and weevil populations in

Michoacan are substantially higher than

indicated in earlier prevalence data

supplied to USDA by the Mexican

government. It follows, the CAC argues,

that the USDA’s supplemental pest risk

assessment, risk management analysis,

and the safeguards found in the

proposed rule are inadequate because

they were primarily based on

incomplete pest data that understated

the true level of quarantine pests in

Mexico.

The CAC claims in its March 15

petition that results of surveys

conducted between February 1995 and

February 1996 contradict APHIS’’

conclusion that certain municipalities

within the State of Michoacan qualify as

areas of low pest prevalence for the

purposes of lifting the quarantine on

Mexican avocados. (Copies of official

Sanidad Vegetal records of the results of

those surveys constitute the majority of

the supporting information provided to

USDA by the CAC on April 26, 1996.)

The March 15 petition claims that the

survey results reflect positive detection

of stem weevils (Copturas aguacatae) in

orchards currently enrolled in the

avocado export program administered

by Sanidad Vegetal and that detections

occurred in orchards sampled during

the November-December 1995 survey

period. The December 20 supplemental

filing repeats those claims based on

surveys conducted between June and

November 1996 that reportedly reflect

stem weevil detections in export

orchards and orchards that had

previously been declared free from that

pest. Similarly, in its May 3

supplemental filing, the CAC offers

copies of official Sanidad Vegetal seed

weevil survey records as evidence that

heavy seed weevil infestations exist

near Uruapan, which is one of the

municipalities that Mexico has

indicated will likely be offered for

consideration as an approved

municipality under the avocado export

program described in the proposed rule.

Uruapan itself is threatened with seed

weevil infestation, the CAC claims,

because avocados from the infested area

are transported without restrictions or

safeguards to packinghouses located in

Uruapan. That pest survey information,

the CAC claims, indicates that pest

levels in Michoacan are higher than

previously thought and USDA should,

therefore, suspend further action on the

proposed rule until new pest risk

assessments and risk management

analyses can be conducted. In its May

16 letter, the CAC further claims that

chemical treatment programs have

failed to eliminate stem weevils in

Uruapan, Michoacan, thus leaving open

the possibility that stem weevil

populations will spread throughout the

orchards of that municipality.

The proposed rule and its supporting

documentation were not predicated on

the absence or near-absence of pests

throughout the entire State of

Michoacan. APHIS acknowledges that

the two small seed weevils and the stem

weevil are known to exist in Michoacan,

which is why the proposed rule

contained weevil-specific safeguards to

ensure that any avocados exported to

the United States would not be infested

with those pests. Under the program

described in the proposed rule, the

detection of a single stem weevil in an

orchard would render that orchard

ineligible to export avocados to the

United States; the detection of any one

of the seed weevils would render the

entire municipality ineligible. If the

seed and stem weevils are present in the

growing areas of Michoacan in ‘‘readily

detectable numbers,’’ as described in the

petition, we are confident that surveys

conducted or supervised by APHIS

employees would detect those pests and

prevent infested orchards and

municipalities from being eligible to

export avocados to the United States.

Moreover, the export eligibility granted

to orchards and municipalities must be

renewed each year, and that eligibility

may be withdrawn at any point during

the November through February

shipping season based on the detection

of a stem weevil, in the case of an

orchard, or a seed weevil, in the case of

an entire municipality.

In its May 16 letter, the CAC asserts

that 4 of the 15 packinghouses

identified by SAGDR as ‘‘candidates’’

for packing and exporting avocados to

the United States are located in areas

where quarantine pests are present, and

another 3 of the candidate

packinghouses are located in an area

where pest population levels are

unknown due to operational problems

within the local agricultural agency. As

noted above, the proposed rule did not

assume pest freedom or near-freedom in

Michoacan; the system described in the

proposed rule, therefore, contains

several layers of protection to prevent

the potential infestation of harvested

fruit during its movement to and

handling in packinghouses. Under the

program described in the proposed rule,

an export packinghouse must be listed

on the annual work plan prepared by

Sanidad Vegetal and approved by

APHIS, so if we had any concerns about

the location, condition, or operation of

a particular packinghouse we could

resolve those concerns as part of the

approval process for the work plan. In

order to prevent pests from entering the

work areas where fruit is inspected,

sorted, cleaned, and prepared for

shipment, an export packinghouse

would have to meet specific conditions

regarding its construction and operation

and would be prohibited from handling

fruit from anywhere but a certified

export orchard. The avocados

themselves, when being moved from the

export orchard to the packinghouse,

would have to be protected from fruit

fly infestation. It is important to note

that the packinghouses identified by

SAGDR are ‘‘candidates’’ for

participation in the avocado export

program; any packinghouse that failed

to meet all of the requirements of the

program would not qualify for

participation in the program.

The CAC reports in its March 15

petition that it had obtained extensive

and recent fruit fly trapping records

from Tancitaro, Mexico, from trapping

conducted between September 1995 and

February 1996; the CAC did submit

official Sanidad Vegetal fruit fly

trapping records as supporting

information for that petition. The

petition notes that much of that trapping

occurred during months that the

proposed rule would allow avocados to

be imported into the United States. The

petition further maintains that fruit flies

were found in each of the 33 orchards

that were monitored, even though the

orchards were extensively treated to

control fruit flies.
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5309

The CAC is inaccurate in its claims

that the fruit fly finds reflected in the

data ‘‘occurred despite a rigorous and

documented program of chemical

treatment to control fly infestations.’’

Mexican agricultural officials have long

claimed that the Hass avocado is not a

fruit fly host, so there is no ‘‘rigorous

* * * program of chemical treatment’’

to eliminate fruit flies in avocado groves

in Michoacan. Although APHIS does

not accept the Mexican claim that Hass

avocados are not attacked by fruit flies,

we do believe that the Hass avocado is

a non-preferred host while still on the

tree. Throughout this rulemaking, we

have acknowledged that Anastrepha

spp. fruit flies are present in Michoacan

and could attack harvested Hass

avocados and fruit that has fallen from

the trees, which is why the proposed

rule contained safeguards to reduce the

risk presented by those pests. The

proposed requirements, such as

surveillance trapping, increased

trapping in response to a single fruit fly

detection, malathion bait treatments,

covering of harvested avocados, flyproof screens on packinghouses, and

inspections, work together with the nonpreferred host status of Hass avocado

fruit attached to the tree to eliminate

any significant risk from Anastrepha.

The repeated fruit fly finds portrayed in

the CAC’s March 15 petition would not

occur under the program described in

the proposed rule, which requires

trapping density to be increased if a

single Anastrepha spp. fruit fly is

trapped in an orchard and further

requires malathion bait sprays to be

applied if a second Anastrepha spp.

fruit fly is trapped within 30 days and

260 hectares of the first finding.

In its petition, the CAC correctly

points out that importation of Hass

avocados from Mexico is possible only

if the area of origin can be certified pest

free for the three species of seed weevil

and the seed moth and can be shown to

be an area of low pest prevalence for the

stem weevil and fruit flies. The CAC

then asserts that its newly obtained data

indicate that two of the municipalities

in Michoacan cannot properly be

characterized as areas of low pest

prevalence for fruit flies or the stem

weevil. As noted above, a municipality

or orchard could gain approval to export

avocados to the United States under the

program described in the proposed rule

only after extensive field surveys

conducted or supervised by USDA

employees demonstrate municipality

freedom from the three species of seed

weevils and the seed moth and orchard

freedom from the stem weevil. That

being the case, some municipalities and

orchards in Michoacan may well be

ineligible for participation in the

program due to the presence of some or

all of those pests. That potentiality does

not, however, invalidate the entire

program, as the CAC seems to suggest.

The field surveys are intended to

demonstrate that an area is free of

certain pests; if that freedom cannot be

demonstrated, the importation of

avocados from that area will continue to

be prohibited.

The second area discussed in the

petition and the supplemental filings is

the activities of local, State, and

national agricultural officials in Mexico.

One aspect of this is the CAC’s claim

that APHIS may be relying on

incomplete pest data that understate the

true level of quarantine pests in

Michoacan. In its March 15 petition, the

CAC claims that the pest survey and

trapping data that the Mexican

government supplied to APHIS are

incomplete because the Mexican

government decided to withhold one or

more positive pest survey reports from

the data provided to the USDA due to

pressure applied by a ‘‘well-connected

grower.’’ Judging from the information

related in the CAC’s March 15 petition

and an accompanying declaration,

however, the claim that information was

withheld to mollify a powerful grower

appears to be a mischaracterization of

the nature of the incident. The

information submitted by CAC shows

that a state-level inspector detected

weevils (it appears the petition is

referring to stem weevils, although the

species is not identified) in a grove, the

grower sought to have the pest finding

overturned or suppressed, but Sanidad

Vegetal determined that an infestation

did exist and should be documented.

The petition hints that there is

something unscrupulous about Sanidad

Vegetal’s subsequent decision not to

forward the records for that orchard to

the USDA for the purposes of

precertifying the orchard for the

proposed export program. However, if

the records show that the orchard

contains stem weevils that would render

it ineligible for participation in the

proposed export program, it would

serve no purpose to pass those records

on to the USDA with a request that the

orchard be approved for participation in

the proposed export program.

Obviously, the orchard would not

qualify for the program.

In its May 3 supplemental petition,

the CAC claims that Mexico made a

‘‘conscious decision to withhold

damaging pest survey findings from the

USDA.’’ The CAC bases that claim on its

interpretation of correspondence

between APHIS and Sanidad Vegetal,

particularly an August 19, 1994, request

for data from APHIS and Sanidad

Vegetal’s September 23, October 10, and

October 11, 1994, responses to that

request. Once again, the CAC points out

that Sanidad Vegetal did not forward all

available survey results and other pest

data from areas in which seed weevils,

stem weevils, or fruit flies had been

detected and portrays that lack of data

as a deliberate deception on the part of

Sanidad Vegetal. APHIS is well aware

that those pests are present in

Michoacan, and Sanidad Vegetal has not

attempted to portray the situation

otherwise; in fact, Sanidad Vegetal

officials have taken visiting APHIS

representatives into infested avocado

groves in Michoacan to demonstrate

methods of detecting seed weevils and

stem weevils. In the August 1994 letter

cited by the CAC, APHIS was seeking

additional information to help it

determine whether an export program

based on the freedom of certain

orchards and municipalities from seed

and stem weevils would be feasible, and

the data supplied by Sanidad Vegetal

were responsive to that request.

In its May 16 letter, the CAC contends

that operational problems ‘‘plague’’

SAGDR’s local field sanitation agencies.

To support that contention, CAC points

to a letter from a SAGDR district chief

to one of his district’s local plant health

boards. The letter, dated April 24, 1996,

admonishes the local board for failing to

submit any monthly activity reports

since the board’s formation on

September 19, 1995, and informs the

board that it faces the risk of being

dissolved unless the reports are

submitted promptly. The CAC claims

that the letter, coupled with what is

described by a CAC contact in Mexico

as grower mistrust of government

agencies, casts doubt on Mexico’s ability

to oversee the pest survey, trapping, and

registration activities described in the

proposed rule. Under this final rule, the

personnel conducting the trapping and

pest surveys must be hired, trained, and

supervised by Sanidad Vegetal or by the

Michoacan State delegate of SAGDR,

and APHIS will be directly involved

with Sanidad Vegetal in the monitoring

and supervision of those activities. The

trapping and pest surveys are integral

aspects of the avocado export program;

if the scope and conduct of those

activities in a particular municipality

did not meet with APHIS’ approval, the

municipality, and all the orchards

within that municipality, would be

ineligible for participation in the

program.

In its December 20 supplemental

filing, the CAC contends that substantial

numbers of Mexican avocado growers
5310 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

are abandoning the Mexican

government’s plant health programs and

that the regional association of avocado

growers in Michoacan has withdrawn

from the MAC. These developments, the

CAC claims, provides evidence that the

plant health infrastructure in Mexico is

weakening at all levels, which will

result in major problems that will

threaten U.S. agriculture if the

importation of Mexican avocados is

authorized. We certainly agree that

grower participation in government

plant health programs is an important

element in the control and prevention of

plant pest problems in the avocadoproducing municipalities of Michoacan,

which is why the regulations in this

final rule require that each orchard and

grower wishing to export avocados to

the United States must be registered

with Sanidad Vegetal’s avocado export

program and must be listed as an

approved orchard or an approved

grower in the annual work plan

provided to APHIS by Sanidad Vegetal.

Therefore, any Michoacan growers who

abandon the Mexican government’s

plant health programs will simply not

be eligible to export avocados to the

United States. Similarly, the regulations

also clearly state that avocados may be

imported only if the Mexican avocado

industry association representing

Mexican avocado growers, packers, and

exporters—i.e., the MAC—has entered

into a trust fund agreement with APHIS

to pay in advance all estimated costs

that APHIS expects to incur through its

involvement in the trapping, survey,

harvest, and packinghouse operations

required as safeguards in Mexico. A

document submitted by the CAC with

its December 20 filing appears to

indicate that dissension within the MAC

has led a regional growers group to

temporarily withdraw from the MAC. If

that is indeed the case, it appears that

some accommodation would have to be

reached within the MAC for that

organization to remain a viable entity

capable of executing a trust fund

agreement with APHIS. Without a trust

fund agreement, avocados may not be

exported under the regulations in this

final rule.

Report language attached to the

Department’s 1997 appropriations bill

directed the Secretary of Agriculture to

review recent evidence of pest

infestation in Mexico—i.e., the pestrelated information submitted to APHIS

by the CAC in its petition and

supplemental filings—and determine

whether the original data that APHIS

relied upon is sound and complete. As

discussed above, we have thoroughly

examined all of the information

submitted by the CAC and have

determined that the original data upon

which APHIS relied is sound and

complete and serves as a reliable basis

for this rule and the risk-mitigating

safeguards it contains. Further, the pest

surveys and fruit fly trapping required

by this rule as a prerequisite to the

approval of municipalities and orchards

for participation in the avocado export

program will provide the ongoing

APHIS-supervised pest monitoring

mentioned in the report language.

The third and final area, which is

discussed only in the March 15 petition,

is the CAC’s claim that there is evidence

to suggest that a foreign agent for the

MAC engaged in activities that violated

Federal conflict-of-interest laws and

Federal lobbying laws. The petition also

states that the same agent had

substantive ex parte communications

with USDA personnel prior to and after

the Department’s decision to issue the

proposed rule. The petition contends

that the illegal activities of the agent and

USDA’s apparent practice of permitting

substantive ex parte communication

between USDA and the supporters, but

not the opponents, of the proposed rule

have ‘‘irreparably tainted the integrity

and propriety’’ of the rulemaking

proceeding.

APHIS believes that the allegations in

the petition regarding the agent’s

employment with the MAC and the

nature of a contractual arrangement the

agent may have had with the MAC do

not bear upon on the integrity of this

rulemaking proceeding. APHIS

acknowledges that if the allegations are

shown to be supported and it is

determined that the agent violated

conflict-of-interest laws or contracted

for a ‘‘success fee’’ for lobbying on the

behalf of a foreign client in violation of

lobbying laws, those actions may indeed

have serious ramifications for the agent.

It does not follow, however, that the

alleged activities of a single interested

party would affect the manner in which

USDA has conducted this rulemaking

proceeding. Indeed, USDA was unaware

of the alleged contractual and other

arrangements until the allegations were

made in the petition. The fact of the

matter is that the alleged arrangements

had absolutely no effect on the

rulemaking proceeding or the decisions

reached by APHIS with regard to this

final rule.

A review of the calendars and daily

activity logs of Department officials

indicates that the petitioner’s contention

that USDA engaged in prohibited ex

parte communication with the agent

while denying requests for meetings

from opponents of the proposed rule is

incorrect. Those records indicate that

courtesy visits were paid to USDA

officials by both opponents and

supporters of the proposed rule

following the proposed rule’s

publication. Any written materials given

to USDA officials during those visits

were placed in the public rulemaking

record, and those officials report that

substantive issues pertaining to the

proposed rule were not discussed.

Therefore, based on the rationale set

forth in the proposed rule and in this

document, we are adopting the

provisions of the proposal as a final rule

with the changes discussed in this

document.

Executive Order 12866 and Regulatory

Flexibility Act

This rule has been reviewed under

Executive Order 12866. The rule has

been determined to be significant for

purposes of Executive Order 12866, and,

therefore, has been reviewed by the

Office of Management and Budget.

In accordance with 5 U.S.C. 604, we

have performed a Final Regulatory

Flexibility Analysis, which is set out

below, regarding the impact of this rule

on small entities.

This rule will allow fresh Hass

avocado fruit grown in approved

orchards in approved municipalities in

Michoacan, Mexico, to be imported into

the United States under certain

conditions designed to prevent the

introduction and dissemination of plant

pests. In the July 1995 proposed rule,

we invited comments concerning the

potential effects on small entities of the

proposed Mexican avocado importation

program and noted that we were

particularly interested in determining

the number and kind of small entities

that may incur benefits or costs from

implementation of the program. Some

commenters—mostly owners and

employees of produce markets or retail

operations, customs brokers, and

representatives of other agricultural

interests such as apple and citrus

growers, packers, and shippers—stated

that they expected to benefit from the

proposed avocado import program

through increased business or expanded

export opportunities for other U.S.

agricultural products.

Many other commenters took the

opposite view, however. Slightly more

than 60 percent of the 2,080 individuals

who commented on the proposed rule

identified themselves as working in the

domestic avocado industry, either

directly as growers, packers, and

shippers, or indirectly as part of their

work in associated fields (agricultural

consultants, pest control advisors,

nurserymen, etc.). Many of those

commenters believed that they would be
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5311

1All tons in this analysis are short tons (2,000

pounds).

negatively affected by the proposed

avocado import program because of the

wide price disparity between

domestically produced avocados and

the less expensive Mexican-origin

avocados. Those commenters stated that

they would be unable to compete in the

approved States during the import

period and that the low price of the

Mexican product would encourage

illegal transshipment of the Mexican

avocados to areas outside the approved

States. Several commenters criticized

the initial regulatory flexibility analysis

for failing to pay sufficient attention to

Florida avocado production.

The initial regulatory flexibility

analysis published in the proposed rule

noted that we did not at that time have

all the data necessary for a

comprehensive analysis of economic

effects, and thus invited comments

concerning potential effects. The initial

regulatory flexibility analysis was based

on data available to us at the time it was

written, and came to some broad

conclusions about approximate effects

based on a simple model employing

some basic data about supply and price

gleaned from the overall U.S. and

Mexican avocado markets. Among the

preliminary conclusions was a likely

increase in the availability of fresh

avocados to U.S. consumers by about 12

percent, reducing the average at-thefarm price for U.S. avocados to about

$0.42 per pound. However, as several

commenters pointed out, the marketing

of avocados in the United States is very

complex, with effects arising from

established practices in the food

marketing sector and the patterns of the

wholesale and retail distribution

structure. Commenters also pointed out

that an accurate analysis should focus

on price and supply data that are

specific to the months when Hass

avocados would be allowed entry, and

should be based on the average values

for those months over a multi-year

period.

We have taken these and other

comments into account and employed

additional data supplied by

commenters. We have obtained data on

Mexican and U.S. production and

exports covering a 5-year period (1990–

1994). As a result, this final regulatory

flexibility analysis examines more

complex economic scenarios than the

initial regulatory flexibility analysis and

provides a more detailed analysis. By

using improved models with more

extensive, multi-year data, we have

examined effects in both approved and

non-approved States that take into

consideration several possible reactions

by both U.S. and Mexican businesses.

We have provided analyses based on a

range of U.S. imports of Mexican

avocados. We have also examined

several different possible responses by

U.S. producers, ranging from partial to

complete redirection of their product

away from approved States during

months when Hass avocados from

Michoacan would be allowed entry.

This rule will directly affect avocado

growers, particularly growers of Hass

variety avocados, so its impact will be

felt mainly in California. The United

States produced an average of 189,244

tons 1 of avocados per year between

1990 and 1994; of this amount,

California accounted for 91.4 percent,

Florida 8.4 percent, and Hawaii the

remaining 0.2 percent. The farm value

of U.S. production ranged from $118

million to $255 million, of which 98

percent was for the fresh market. There

were 7,203 avocado growers in the

United States in 1992 (1 in Arizona,

5,973 in California, 604 in Florida, 610

in Hawaii, and 15 in Texas); 98.5

percent of these operations are

considered to be small entities.

(According to the standard set by the

Small Business Administration for

agricultural producers, a producer with

less than $0.5 million annually in sales

qualifies as a small entity.) California

avocado producers, including small

entities, derive a substantial degree of

income from off-farm employment.

According to a 1994 report by the

Economic Research Service, 55 percent

of operators of California avocado farms

reported working off the farm at least

100 days a year. Approximately 44

percent reported working off the farm at

least 200 days a year.

Florida is less likely to be affected

because fewer growers there produce

Hass variety avocados; most produce a

lower-cost greenskin variety. In general,

if two commodities are substitutable, a

change in the price of one, ceteris

paribus, causes a change in the same

direction in the quantity purchased of

the other. If the two commodities have

comparable quality and are considered

substitutable, then the differences

between their prices would not be large

(the degree of substitutability depends

on the cross elasticities of demand

between the two commodities).

However, the data show that the prices

received by farmers and the wholesale

prices of greenskin variety avocados,

which is the dominant variety grown in

Florida, are substantially lower than

prices received for Hass variety

avocados. For example, the price

received by avocado growers in

California was $0.79 per pound in 1994,

while the price received by Florida

growers during the same year was $0.31

per pound. Similarly, the average

wholesale market price for California

Hass avocados was $1.72 per pound

(average for Boston, Chicago, Los

Angeles, New York, and Philadelphia)

during the third week of December

1995, while the average wholesale price

for the greenskin variety was $0.44 per

pound. If the price differential was the

only market signal of preference for the

two products, then the Hass variety

would be driven out of the market, but

this is not the case. The wholesale price

of the California Hass avocado is $1.96

per pound in Miami, while the price of

the Florida greenskin variety is only

$0.42 per pound.

U.S. exports averaged 11,583 tons

between 1990 and 1994, while imports

were about 19,119 tons. Over this

period, about 94 percent of the U.S.

production of avocados was consumed

domestically. The largest importer of

U.S. avocados is Canada. The other

major markets for U.S. avocados include

France, Japan, and the United Kingdom.

The largest suppliers of imports to the

United States are Chile and the

Dominican Republic.

Mexico is the largest producer of

avocados in the world, accounting for

approximately 40 percent of world

production. An average of 807,000 tons

per year was produced between 1990

and 1994. Most of the avocado

production in Mexico occurs in the

State of Michoacan, accounting for

approximately 77 percent of the total.

The Hass variety accounts for 95 percent

of the avocado production in

Michoacan. Mexico is also one of the

world’s largest exporters of fresh

avocados. Exports averaged 22,000 tons

per year between 1990 and 1994. The

average rate of export between 1990 and

1994 was about 2.75 percent of

production, with the rest being

consumed domestically.

Avocados are shipped from U.S.

domestic sources throughout the year.

Florida’s peak marketing season is

between July and December, while

California’s is between March and

August. The 19 northeastern States and

the District of Columbia (the approved

States) receive between 12 and 18

percent of the shipments of California

avocados annually. California

shipments to the approved States during

the period allowed in this final rule

(November through February) account

for only 2.3 to 4.6 percent (or about

3,900 to 4,850 tons) of total annual

California avocado shipments. Imports

account for about 42 percent of the

supply in the approved States during

those months; California avocados
5312 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

2 Garoyan, Leon, ‘‘Proposed Rule for the

Importation of Fresh Hass Avocado Fruit Grown in

Michoacan, Mexico: An Analysis of the Impact on

California’s Avocado Industry,’’ Management

Research Associates, August 22, 1995. (Prepared for

the California Avocado Commission (CAC) and

attached as Exhibit 30 to the CAC’s October 13,

1995, comments on the proposed rule.) The price

elasticity of ¥1.07 was estimated using data from

Appendix Table 1 of that report covering North East

and East Central regions of the United States for the

months of November to February between 1986 and

1994.

account for about 36 percent of the

supply in the approved States during

that same period. The remainder, about

22 percent of the supply, comes from

Florida.

Mexican avocados could be sold at

substantially lower prices than

California avocados. However,

consumer purchases may not be

proportional to price changes, should

they occur. Additionally, since many

grocery stores and supermarkets are

likely to be carrying avocados from only

one source at any given time, consumers

may not have the option of comparing

price and quality of avocados from

different areas. The retail price

differentials might not be representative

of the actual cost differences between

avocados from the two sources, as

retailers may not mark the exact price

differential. This is evidenced by the

small difference in wholesale prices

between California Hass and Chilean

Hass avocados. While the import price

of Chilean Hass avocados was only

$0.67 per pound, the wholesale price in

the six major northeastern cities was

about $1.46 per pound during the third

week of December 1995. The average

wholesale price of the California Hass

avocado was $1.72 per pound during

the same period. If a similar price

pattern would hold for Mexican Hass

avocados, wholesale prices will not

differ as widely between Mexican

avocados and others available on the

domestic market as expected by some.

The costs associated with illegal

transshipment (e.g., relabeling the

product and illegally transporting it

outside the approved States) make it

unlikely that price differences between

domestic and Mexican-origin Hass

avocados will be great enough to lead to

transshipment of Hass avocados

imported under this final rule.

Allowing importation of Hass

avocados from Mexico is expected to

have a variable impact upon domestic

entities. The magnitude of the impact

would depend upon the size of the preimport supply, pre-import avocado

price, and the elasticities of demand. In

this final regulatory flexibility analysis,

which was developed, in part, using

price and production data submitted by

commenters, two scenarios in which

affected entities may be impacted by

various levels of Mexican avocado

imports are examined. In one scenario,

California Hass avocado growers, in

reaction to the entry of Mexican

imports, redirect a percentage of the

avocados they otherwise ship to markets

in the approved States to markets in

non-approved States (Table 1); in the

other scenario, we examine the unlikely

situation in which there is a complete

redirection of California Hass avocados

from markets in the approved States to

markets in the non-approved States.

Based on data from 1990 through

1994, the average wholesale price in the

approved States during the months of

November through February—the 4

months that avocados can be imported

into the approved States under this

rule—was about $1.56 per pound and

the available quantity was about 10,500

tons. The wholesale price and supply

were $1.47 per pound and 26,500 tons,

respectively, in the non-approved

States. Price changes in the two

scenarios are measured against their

average levels.

The level of Hass avocado exports

from Michoacan, Mexico, during

November through February is currently

about 9,400 tons. The import levels in

the top row of Table 1 reflect a 10, 20,

30, 40, and 50 percent diversion of

current Michoacan Hass avocado

exports from other markets to markets in

the approved areas of the United States.

TABLE 1.—THE IMPORTATION OF HASS AVOCADOS FROM MICHOACAN, MEXICO, TO APPROVED STATES: IMPACT IN THE

UNITED STATES WITH A PARTIAL REDIRECTION OF U.S. GROWN HASS AVOCADOS FROM MARKETS IN APPROVED

STATES TO MARKETS IN NON-APPROVED STATES (PRICE ELASTICITY IS –1.07).

Percentage of current Michoacan exports diverted to the U.S. market

10 20 30 40 50

Imports (tons) .................................................................................. 940 1,880 2,820 3,760 4,700

California Hass avocados diverted to non-approved States (tons) 153 306 459 612 765

Percent change in price:

In the approved States ............................................................ (8) (16) (25) (33) (41)

In non-approved States ........................................................... (1) (1) (2) (2) (3)

Change in producer surplus (millions of dollars) ............................ (1.37) (2.70) (3.99) (5.24) (6.44)

Change in consumer surplus (millions of dollars) .......................... 3.31 6.86 10.66 14.71 18.98

Total surplus (millions of dollars) ......................................... 1.94 4.16 6.67 9.47 12.54

Table 1 summarizes the estimated

economic impacts in the United States,

based on a price elasticity of ¥1.07,

which was estimated using data

provided in comments by the California

Avocado Commission.2 The estimated

economic impacts result from the entry

of imported Mexican Hass avocados into

markets in the approved States and from

the estimated producer losses and

consumer gains that would result from

a partial redirection of U.S. grown Hass

avocados from markets in the approved

States to non-approved States. For

example, a 10 percent diversion of

present Michoacan exports from

markets in other countries to the United

States results in a price decrease of 8

percent in the approved States and a

price decrease of 1 percent in the nonapproved States. California producers

would lose about $1.37 million, while

consumers would gain about $3.31

million. The net benefit in this scenario

would be about $1.94 million. If a 50

percent diversion of present Michoacan

exports from other markets to the

United States were to occur, there

would be a resulting price decrease of

about 41 percent in the approved States

and about 3 percent in the nonapproved States. Producers would lose

about $6.44 million and consumers

would gain about $18.98 million,

resulting in a net benefit of about $12.54

million.

In sum, as a result of the importation

of Mexican avocados to the approved

States and partial redirection of

domestically grown avocados, California

Hass avocado producers would lose

between $1.37 million and $6.44

million, i.e., about 0.5 percent to 5.4
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5313

percent of their crop’s farm value, while

consumers in the approved and nonapproved States would gain between

$3.31 million and $19 million.

Consumer gains are larger than producer

losses in all cases.

In the unlikely scenario where

complete redirection would occur, U.S.

producers would abdicate the markets

in the approved States to Mexican

imports during the approved import

period and would redirect their supply

to markets in non-approved States. In

this case, imports from Mexico would

replace California Hass avocados in the

approved States so that the actual

supply in those markets would not

change, and thus no impact would be

expected in the approved States. The

only impacts would be those in nonapproved States. The extent of any

actual decrease in prices would depend

to a great degree upon the size of the

price elasticity of demand and

magnitude of the change in supply. For

an elasticity of ¥1.07 and with a 10-

percent diversion of present Michoacan

exports from other countries to the

United States, the resulting price

decrease is 3 percent in the nonapproved States. California producers

would lose $2.31 million and

consumers would gain $2.63 million.

The net benefit in this case would be

$0.32 million. A 50-percent diversion of

present Michoacan exports from other

countries to the United States results in

a price decrease of 17 percent.

Producers could lose $11.14 million and

consumers could gain $14.03 million in

the non-approved States. The net benefit

in this case would be $2.89 million. For

lower price elasticities, both losses and

gains are higher. Thus, in the unlikely

event of total redirection of domestically

grown Hass avocado from approved

States to non-approved States,

California Hass avocado producers

could lose between $2.31 million and

$11.14 million, i.e. about 0.9 percent to

9.4 percent of their crop’s farm value,

while consumers in non-approved

States could gain between $2.63 million

and $14.03 million. In all cases,

consumer gains outweigh grower losses.

The only significant alternative to this

rule is to make no changes in the fruits

and vegetables regulations, i.e., to

continue to prohibit the importation of

fresh avocados from Mexico. Prior to the

publication of the proposed rule that

preceded this rule, we had rejected that

alternative because there appeared to be

no pest risk reason to maintain the

prohibition on the avocados in light of

the safeguards that would be applied to

their importation. In the course of this

rulemaking, we have found no new

evidence indicating that the importation

of fresh Hass avocados under the

conditions set forth in this rule will

present a significant risk of plant pest

introduction.

Executive Order 12988

This rule has been reviewed under

Executive Order 12988, Civil Justice

Reform. This rule will allow fresh Hass

avocado fruit to be imported into the

United States from the Mexican State of

Michoacan. State and local laws and

regulations regarding fresh Hass

avocado fruit imported under this rule

will be preempted while the avocados

are in foreign commerce. Fresh

avocados are generally imported for

immediate distribution and sale to the

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. This rule has no

retroactive effect and does not require

administrative proceedings before

parties may file suit in court.

National Environmental Policy Act

An environmental assessment and

finding of no significant impact have

been prepared for this rule. The

assessment provides a basis for the

conclusion that the importation of fresh

Hass avocados from Michoacan, Mexico,

under the conditions specified in this

rule will not present a significant risk of

introducing or disseminating plant pests

and would not have a significant impact

on the quality of the human

environment. Based on the finding of no

significant impact, the Administrator of

the Animal and Plant Health Inspection

Service has determined that an

environmental impact statement need

not be prepared.

The environmental assessment and

finding of no significant impact were

prepared in accordance with: (1) The

National Environmental Policy Act of

1969, as amended (NEPA) (42 U.S.C.

4321 et seq.), (2) Regulations of the

Council on Environmental Quality for

implementing the procedural provisions

of NEPA (40 CFR parts 1500–1508), (3)

USDA regulations implementing NEPA

(7 CFR part 1b), and (4) APHIS’ NEPA

Implementing Procedures (7 CFR part

372).

Copies of the environmental

assessment and finding of no significant

impact are available for public

inspection at USDA, room 1141, South

Building, 14th Street and Independence

Avenue SW., Washington, DC, between

8 a.m. and 4:30 p.m., Monday through

Friday, except holidays. Persons

wishing to inspect copies are requested

to call ahead on (202) 690–2817 to

facilitate entry into the reading room. In

addition, copies may be obtained by

writing to the individual listed under

FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

This final rule contains an

information collection requirement that

was not included in the proposed rule.

Specifically, this final rule requires that

fruit be labeled with a sticker that bears

the Sanidad Vegetal registration number

of the packing house. In accordance

with section 3507(d) of the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et seq.), this information collection

requirement has been submitted for

approval to the Office of Management

and Budget (OMB). When OMB notifies

us of its decision, we will publish a

document in the Federal Register

providing notice of the assigned OMB

control number or, if approval is denied,

providing notice of what action we plan

to take.

List of Subjects in 7 CFR Part 319

Bees, Coffee, Cotton, Fruits, Honey,

Imports, Nursery Stock, Plant diseases

and pests, Quarantine, Reporting and

recordkeeping requirements, Rice,

Vegetables.

Accordingly, 7 CFR part 319 is

amended as follows:

PART 319—FOREIGN QUARANTINE

NOTICES

1. The authority citation for part 319

continues to read as follows:

Authority: 7 U.S.C. 150dd, 150ee, 150ff,

151–167, 450, 2803, and 2809; 21 U.S.C. 136

and 136a; 7 CFR 2.22, 2.80, and 371.2(c).

2. A new § 319.56–2ff is added to read

as follows:

§ 319.56–2ff Administrative instructions

governing movement of Hass avocados

from Mexico to the northeastern United

States.

Fresh Hass variety avocados (Persea

americana) may be imported from

Mexico into the United States for

distribution in the northeastern United

States only under a permit issued in

accordance with § 319.56–4, and only

under the following conditions:

(a) Shipping restrictions. (1) The

avocados may be imported in

commercial shipments only;

(2) The avocados may be imported

only during the months of November,

December, January, and February; and

(3) The avocados may be distributed

only in the following northeastern

States: Connecticut, Delaware, the

District of Columbia, Illinois, Indiana,

Kentucky, Maine, Maryland,

Massachusetts, Michigan, New

Hampshire, New Jersey, New York,
5314 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations

Ohio, Pennsylvania, Rhode Island,

Vermont, Virginia, West Virginia, and

Wisconsin.

(b) Trust fund agreement. The

avocados may be imported only if the

Mexican avocado industry association

representing Mexican avocado growers,

packers, and exporters has entered into

a trust fund agreement with the Animal

and Plant Health Inspection Service

(APHIS) for that shipping season. That

agreement requires the Mexican

avocado industry association to pay in

advance all estimated costs that APHIS

expects to incur through its involvement

in the trapping, survey, harvest, and

packinghouse operations prescribed in

paragraph (c) of this section. These costs

will include administrative expenses

incurred in conducting the services and

all salaries (including overtime and the

Federal share of employee benefits),

travel expenses (including per diem

expenses), and other incidental

expenses incurred by the inspectors in

performing these services. The

agreement requires the Mexican

avocado industry association to deposit

a certified or cashier’s check with

APHIS for the amount of those costs, as

estimated by APHIS. If the deposit is not

sufficient to meet all costs incurred by

APHIS, the agreement further requires

the Mexican avocado industry

association to deposit with APHIS a

certified or cashier’s check for the

amount of the remaining costs, as

determined by APHIS, before the

services will be completed. After a final

audit at the conclusion of each shipping

season, any overpayment of funds

would be returned to the Mexican

avocado industry association or held on

account until needed.

(c) Safeguards in Mexico. The

avocados must have been grown in the

Mexican State of Michoacan 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. Sanidad Vegetal must provide

an annual work plan to APHIS that

details the activities that Sanidad

Vegetal will, subject to APHIS’ approval

of the work plan, carry out to meet the

requirements of this section; APHIS will

be directly involved with Sanidad

Vegetal in the monitoring and

supervision of those activities. The

personnel conducting the trapping and

pest surveys must be hired, trained, and

supervised by Sanidad Vegetal or by the

Michoacan State delegate of the

Secretaria de Agricultura, Ganaderia y

Desarrollo Rural (SAGDR).

(1) Municipality requirements. (i) The

municipality must be listed as an

approved municipality in the annual

work plan provided to APHIS by

Sanidad Vegetal.

(ii) The municipality must be

surveyed at least annually and found to

be free from the large avocado seed

weevil Heilipus lauri, the avocado seed

moth Stenoma catenifer, and the small

avocado seed weevils Conotrachelus

aguacatae and C. perseae. The survey

must cover at least 300 hectares in the

municipality and include randomly

selected portions of each registered

orchard and areas with wild or backyard

avocado trees. The survey must be

conducted during the growing season

and completed prior to the harvest of

the avocados.

(iii) Trapping must be conducted in

the municipality for Mediterranean fruit

fly (Medfly) (Ceratitis capitata) at the

rate of 1 trap per 1 to 4 square miles.

Any findings of Medfly must be

reported to APHIS.

(2) Orchard and grower requirements.

The orchard and the grower must be

registered with Sanidad Vegetal’s

avocado export program and must be

listed as an approved orchard or an

approved grower in the annual work

plan provided to APHIS by Sanidad

Vegetal. The operations of the orchard

must meet the following conditions:

(i) The orchard and all contiguous

orchards and properties must be

surveyed annually and found to be free

from the avocado stem weevil Copturus

aguacatae. The survey must be

conducted during the growing season

and completed prior to the harvest of

the avocados.

(ii) Trapping must be conducted in

the orchard for the fruit flies Anastrepha

ludens, A. serpentina, and A. striata at

the rate of one trap per 10 hectares. If

one of those fruit flies is trapped, at

least 10 additional traps must be

deployed in a 50-hectare area

immediately surrounding the trap in

which the fruit fly was found. If within

30 days of the first finding any

additional fruit flies are trapped within

the 260-hectare area surrounding the

first finding, malathion bait treatments

must be applied in the affected orchard

in order for the orchard to remain

eligible to export avocados.

(iii) Avocado fruit that has fallen from

the trees must be removed from the

orchard at least once every 7 days and

may not be included in field boxes of

fruit to be packed for export.

(iv) Dead branches on avocado trees

in the orchard must be pruned and

removed from the orchard.

(v) Harvested avocados must be

placed in field boxes or containers of

field boxes that are marked to show the

Sanidad Vegetal registration number of

the orchard. The avocados must be

moved from the orchard to the

packinghouse within 3 hours of harvest

or they must be protected from fruit fly

infestation until moved.

(vi) The avocados must be protected

from fruit fly infestation during their

movement from the orchard to the

packinghouse and must be accompanied

by a field record indicating that the

avocados originated from a certified

orchard.

(3) Packinghouse requirements. The

packinghouse must be registered with

Sanidad Vegetal’s avocado export

program and must be listed as an

approved packinghouse in the annual

work plan provided to APHIS by

Sanidad Vegetal. The operations of the

packinghouse must meet the following

conditions:

(i) During the time the packinghouse

is used to prepare avocados for export

to the United States, the packinghouse

may accept fruit only from orchards

certified by Sanidad Vegetal for

participation in the avocado export

program.

(ii) All openings to the outside must

be covered by screening with openings

of not more than 1.6 mm or by some

other barrier that prevents insects from

entering the packinghouse.

(iii) The packinghouse must have

double doors at the entrance to the

facility and at the interior entrance to

the area where the avocados are packed.

(iv) Prior to the culling process, a

sample of 300 avocados per shipment

must be selected, cut, and inspected by

Sanidad Vegetal and found free from

pests.

(v) The identity of the avocados must

be maintained from field boxes or

containers to the shipping boxes so the

avocados can be traced back to the

orchard in which they were grown if

pests are found at the packinghouse or

the port of first arrival in the United

States.

(vi) Prior to being packed in boxes,

each avocado fruit must be cleaned of

all stems, leaves, and other portions of

plants and labeled with a sticker that

bears the Sanidad Vegetal registration

number of the packinghouse.

(vii) The avocados must be packed in

clean, new boxes. The boxes must be

clearly marked with the identity of the

grower, packinghouse, and exporter,

and the statement ‘‘Distribution limited

to the following States: CT, DC, DE, IL,

IN, KY, ME, MD, MA, MI, NH, NJ, NY,

OH, PA, RI, VA, VT, WV, and WI.’’
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Rules and Regulations 5315

(viii) The boxes must be placed in a

refrigerated truck or refrigerated

container and remain in that truck or

container while in transit through

Mexico to the port of first arrival in the

United States. Prior to leaving the

packinghouse, the truck or container

must be secured by Sanidad Vegetal

with a seal that will be broken when the

truck or container is opened. Once

sealed, the refrigerated truck or

refrigerated container must remain

unopened until it reaches the port of

first arrival in the United States.

(ix) Any avocados that have not been

packed or loaded into a refrigerated

truck or refrigerated container by the

end of the work day must be kept in the

screened packing area.

(d) Certification. All shipments of

avocados must be accompanied by a

phytosanitary certificate issued by

Sanidad Vegetal certifying that the

conditions specified in this section have

been met.

(e) Pest detection. (1) If any of the

avocado seed pests Heilipus lauri,

Conotrachelus aquacatae, C. perseae, or

Stenoma catenifer are discovered in a

municipality during an annual pest

survey, orchard survey, packinghouse

inspection, or other monitoring or

inspection activity in the municipality,

Sanidad Vegetal must immediately

initiate an investigation and take

measures to isolate and eradicate the

pests. Sanidad Vegetal must also

provide APHIS with information

regarding the circumstances of the

infestation and the pest risk mitigation

measures taken. The municipality in

which the pests are discovered will lose

its pest-free certification and avocado

exports from that municipality will be

suspended until APHIS and Sanidad

Vegetal agree that the pest eradication

measures taken have been effective and

that the pest risk within that

municipality has been eliminated.

(2) If Sanidad Vegetal discovers the

stem weevil Copturus aguacatae in an

orchard during an orchard survey or

other monitoring or inspection activity

in the orchard, Sanidad Vegetal must

provide APHIS with information

regarding the circumstances of the

infestation and the pest risk mitigation

measures taken. The orchard in which

the pest was found will lose its export

certification immediately and will be

denied export certification for the entire

shipping season of November through

February.

(3) If Sanidad Vegetal discovers the

stem weevil Copturus aguacatae in fruit

at a packinghouse, Sanidad Vegetal

must investigate the origin of the

infested fruit and provide APHIS with

information regarding the circumstances

of the infestation and the pest risk

mitigation measures taken. The orchard

where the infested fruit originated will

lose its export certification immediately

and will be denied export certification

for the entire shipping season of

November through February.

(f) Ports. The avocados may enter the

United States at:

(1) Any port located in the

northeastern States specified in

paragraph (a)(3) of this section;

(2) The ports of Galveston or Houston,

TX, or the border ports of Nogales, AZ,

or Brownsville, Eagle Pass, El Paso,

Hidalgo, or Laredo, TX; or

(3) Other ports within that area of the

United States specified in paragraph (g)

of this section.

(g) Shipping areas. Except as

explained below in this paragraph for

avocados that enter the United States at

Nogales, AZ, avocados moved by truck

or rail car may transit only that area of

the United States bounded on the west

by a line extending from El Paso, TX, to

Denver, CO, and due north from Denver;

and on the east and south by a line

extending from Brownsville, TX, to

Galveston, TX, to Kinder, LA, to

Memphis, TN, to Knoxville, TN,

following Interstate 40 to Raleigh, NC,

and due east from Raleigh. All cities on

these boundary lines are included in

this area. If the avocados are moved by

air, the aircraft may not land outside

this area. Avocados that enter the

United States at Nogales, AZ, must be

moved to El Paso, TX, by the route

specified on the permit, and then must

remain within the shipping area

described above in this paragraph.

(h) Shipping requirements. The

avocados must be moved through the

United States either by air or in a

refrigerated truck or refrigerated rail car

or in a refrigerated container on a truck

or rail car. If the avocados are moved in

a refrigerated container on a truck or rail

car, an inspector must seal the container

with a serially numbered seal at the port

of first arrival in the United States. If the

avocados are moved in a refrigerated

truck or a refrigerated rail car, an

inspector must seal the truck or rail car

with a serially numbered seal at the port

of first arrival in the United States. If the

avocados are transferred to another

vehicle or container in the United

States, an inspector must be present to

supervise the transfer and must apply a

new serially numbered seal. The

avocados must be moved through the

United States under Customs bond.

(i) Inspection. The avocados are

subject to inspection by an inspector at

the port of first arrival, at any stops in

the United States en route to the

northeastern States, and upon arrival at

the terminal market in the northeastern

States. At the port of first arrival, an

inspector will sample and cut avocados

from each shipment to detect pest

infestation.

Done in Washington, DC, this 31st day of

January 1997.

Terry L. Medley,

Administrator, Animal and Plant Health

Inspection Service.

[FR Doc. 97–2825 Filed 2–4–97; 8:45 am]

BILLING CODE 3410–34–P

NATIONAL CREDIT UNION

ADMINISTRATION

12 CFR Part 701

Organization and Operations of

Federal Credit Unions

AGENCY: National Credit Union

Administration (NCUA).

ACTION: Final rule and withdrawal of

amendments to Interpretive Ruling and

Policy Statement 94–1.

SUMMARY: The NCUA Board has

withdrawn Interpretive Ruling and

Policy Statement 96–2 (IRPS 96–2) that

was published in 61 FR 59305

(November 22, 1996). The NCUA Board

has determined that subsequent legal

events make the withdrawal of IRPS 96–

2 appropriate.

DATES: This rule is effective February 5,

1997.

FOR FURTHER INFORMATION CONTACT: John

Ianno, Trial Attorney, Office of General

Counsel or Michael J. McKenna, Acting

Associate General Counsel, Office of

General Counsel, National Credit Union

Administration, 1775 Duke Street,

Alexandria, Virginia 22314–3428 or

telephone: (703) 518–6540.

SUPPLEMENTARY INFORMATION: On

November 14, 1996, the Board issued an

interim final Interpretive Ruling and

Policy Statement (IRPS 96–2) to permit

federal credit unions to restructure their

fields of membership consistent with

court decisions limiting federal credit

union’s ability to serve eligible credit

union members and new select groups.

Two events have caused the Board to

conclude that withdrawal of IRPS 96–2

is appropriate at this time. First, on

December 4, 1996, the U.S. District

Court for the District of Columbia issued

an Order invalidating IRPS 96–2 and

enjoining NCUA from implementing it.

Second, on December 24, 1996, the U.S.

Court of Appeals for the District of

Columbia Circuit issued a partial stay of

the District Court’s earlier injunction

which prevented federal credit unions

from serving new members of select