[Federal Register Volume 62, Number 24 (Wednesday, February 5, 1997)]
[Rules and Regulations]
[Pages 5293-5315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2825]



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

[[Page 5293]]



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: <a href="/cdn-cgi/l/email-protection#e4968785899486818888a485948c8d97ca91978085ca838b92"><span class="__cf_email__" data-cfemail="aedccdcfc3decccbc2c2eecfdec6c7dd80dbddcacf80c9c1d8">[email protected]</span></a>.

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 Sec. 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

[[Page 5294]]

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 non-
quarantine 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

[[Page 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  deg.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  deg.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  deg.F is erroneous.
    Response: The proposed rule stated that fruit flies reduce mating 
and oviposition when temperatures fall below 70  deg.F, not that they 
stop such activities. Our data show that although daytime temperatures 
may rise above 70  deg.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  deg.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  deg.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, fly-proof screens on packinghouses, and 
inspections, work together with the non-preferred 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

[[Page 5296]]

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

[[Page 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 
information-gathering 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

[[Page 5298]]

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

[[Page 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 Sec. 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 
Sec. 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 controlled-atmosphere 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 non-
approved 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

[[Page 5300]]

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 non-approved 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 
Mexican-origin 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 non-approved 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 non-approved 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.

[[Page 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 Sec. 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 Sec. 319.56-2 requires that ``all 
importations of fruits and vegetables must be free from plants or 
portions of plants, as defined in Sec. 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 Sec. 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 Sec. 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

[[Page 5302]]

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 Sec. 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 Sec. 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

[[Page 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 Sec. 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.

[[Page 5304]]

    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 Sec. 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

[[Page 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 in-bond 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

[[Page 5306]]

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 
Sec. 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

[[Page 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 Sec. 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

[[Page 5308]]

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.

[[Page 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, fly-proof screens on packinghouses, and 
inspections, work together with the non-preferred 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

[[Page 5310]]

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 avocado-producing 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 pest-related 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

[[Page 5311]]

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-the-farm 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 
<SUP>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.
---------------------------------------------------------------------------

    \1\ All tons in this analysis are short tons (2,000 pounds).
---------------------------------------------------------------------------

    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

[[Page 5312]]

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 pre-import 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.<SUP>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 non-approved 
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 non-approved 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 5313]]

percent of their crop's farm value, while consumers in the approved and 
non-approved 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 non-approved 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 non-approved 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 Sec. 319.56-2ff is added to read as follows:


Sec. 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 
Sec. 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,

[[Page 5314]]

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.''

[[Page 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


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