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[Federal Register: May 14, 2010 (Volume 75, Number 93)]
[Proposed Rules]
[Page 27225-27227]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my10-16]

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Proposed Rules
                                                Federal Register
________________________________________________________________________

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

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[[Page 27225]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2008-0060]
RIN 0579-AD13

Hass Avocados from Mexico; Importation into the Commonwealth of
Puerto Rico and Other Changes

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend our fruits and vegetables
regulations to provide for the importation of Hass avocados from Mexico
into Puerto Rico under the same systems approach currently required for
the importation of Hass avocados into all States of the United States
from Michoac[aacute]n, Mexico. The systems approach requirements
include trapping, orchard certification, limited production area, trace
back labeling, pre-harvest orchard surveys for all pests, orchard
sanitation, post-harvest safeguards, fruit cutting and inspection at
the packinghouse, port-of-arrival inspection, and clearance activities.
This action would allow for the importation of Hass avocados from
Michoac[aacute]n, Mexico, into Puerto Rico while continuing to provide
protection against the introduction of quarantine pests. In addition,
we are proposing to amend the regulations to provide for the Mexican
national plant protection organization to use an approved designee to
inspect avocados for export and to suspend importation of avocados into
the United States from Michoac[aacute]n, Mexico, only from specific
orchards or packinghouses when quarantine pests are detected, rather
than suspending imports from the entire municipality where the affected
orchards or packinghouses are located. These changes would provide
additional flexibility in operating the export program while continuing
to provide protection against the introduction of quarantine pests.

DATES: We will consider all comments that we receive on or before July
13, 2010.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to (http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0060) to submit or view comments
and to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send one copy of
your comment to Docket No. APHIS-2008-0060, Regulatory Analysis and
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118,
Riverdale, MD 20737-1238. Please state that your comment refers to
Docket No. APHIS-2008-0060.
    Reading Room: You may read any comments that we receive on this
docket in our reading room. The reading room is located in room 1141 of
the USDA South Building, 14th Street and Independence Avenue SW.,
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m.,
Monday through Friday, except holidays. To be sure someone is there to
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its
programs is available on the Internet at (http://www.aphis.usda.gov).

FOR FURTHER INFORMATION CONTACT: Mr. David B. Lamb, Import Specialist,
Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road
Unit 133, Riverdale, MD 20737-1231; (301) 734-0627.

SUPPLEMENTARY INFORMATION:

Background

    Under the regulations in ``Subpart-Fruits and Vegetables'' (7 CFR
319.56 through 319.56-50), the Animal and Plant Health Inspection
Service (APHIS) prohibits or restricts the importation of fruits and
vegetables into the United States from certain parts of the world to
prevent plant pests from being introduced into and spread within the
United States. The requirements for importing Hass avocados into the
United States from Michoac[aacute]n, Mexico, are described in Sec.
319.56-30. Those requirements include pest surveys and pest risk-
reducing practices, treatment, packinghouse procedures, inspection, and
shipping procedures.
    In this document, we are proposing to:
     Allow the importation of Hass avocados from
Michoac[aacute]n, Mexico, into Puerto Rico, under the same conditions
required for importation into the 50 States;
     Provide for the Mexican national plant protection
organization (NPPO) to use an approved designee to inspect avocados for
export; and
     Limit the scope of suspension of export certification to
the orchard or packinghouse in which pests are found, rather than the
municipality in which the orchard or packinghouse is located.
    These changes are discussed directly below.

Importation of Hass Avocados from Michoac[aacute]n, Mexico, into Puerto
Rico

    In a final rule published on November 30, 2004 in the Federal
Register (69 FR 69749-69722, Docket No. 03-022-5) and effective on
January 31, 2005, we amended the regulations governing the importation
of fruits and vegetables to expand the number of States in which fresh
Hass avocado fruit grown in approved orchards in approved
municipalities in Michoac[aacute]n, Mexico, may be distributed.
Currently, Hass avocados from Michoac[aacute]n, Mexico, are permitted
entry into the 50 States if they are produced in accordance with the
requirements of a systems approach as provided in Sec.  319.56-30. This
action was based on a pest risk assessment (PRA), ``Importation of
Avocado Fruit (Persea americana Mill. var. `Hass'), from Mexico, A Risk
Assessment'' (November 2004), which evaluated the risk of permitting
the importation of Mexican Hass avocados only into the 50 States.
    At the request of the Government of Mexico, we prepared a commodity
import evaluation document (CIED) to determine what phytosanitary
measures should be applied to mitigate the pest risk associated with
the importation of Hass avocados from Michoac[aacute]n, Mexico, into
the Commonwealth of Puerto Rico. Copies of the CIED may be obtained
from the person listed under FOR FURTHER INFORMATION CONTACT or viewed
on the Regulations.gov Web site (see ADDRESSES above for instructions
for accessing Regulations.gov).
    In the CIED, titled ``Importation of Hass Avocado fruit from
Michoac[aacute]n,

[[Page 27226]]

Mexico into Puerto Rico'' (September 2009), we determined that because
the systems approach currently in place is successful in mitigating the
risks of introducing quarantine pests associated with the importation
of Hass avocado from Mexico into the 50 U.S. States, and because
avocados entering the United States from other approved exporting
countries may also move to Puerto Rico without additional requirements,
the current systems approach will also adequately mitigate the risks of
introducing quarantine pests directly into Puerto Rico as well. We
concluded the phytosanitary risks for insect pests associated with the
importation of Hass avocados from Michoac[aacute]n, Mexico, into the
Commonwealth of Puerto Rico would be effectively mitigated using the
same systems approach as is currently used for the importation of Hass
avocados from Michoac[aacute]n, Mexico, into the 50 States, as set
fourth in Sec.  319.56-30. These import requirements include trapping,
orchard certification, limited production area, trace back labeling,
pre-harvest orchard surveys for all pests, orchard sanitation, post-
harvest safeguards, fruit cutting and inspection at the packinghouse,
port-of-arrival inspection, and clearance activities.
    Based on the findings of the CIED and the November 2004 PRA, we are
proposing to amend Sec.  319.56-30 to allow commercial shipments of
Hass avocados from Michoac[aacute]n, Mexico, to be imported into Puerto
Rico. Specifically, we are proposing to amend Sec.  319.56-30(a)(2),
which currently prohibits Hass avocados from Mexico from being imported
into or distributed in Puerto Rico and U.S. territories, to allow their
importation into Puerto Rico. Because Mexico's request was specific to
Puerto Rico, the CIED did not consider U.S. territories, so that
prohibition would remain.
    In addition, we are proposing to amend Sec.  319.56-30(c)(3)(vii)
to remove the requirement that boxes of avocados be marked to indicate
that their distribution in Puerto Rico or U.S. territories is
prohibited. The prohibition on distribution in U.S. territories would
continue to be enforced through the APHIS permitting process.
Specifically, we would implement this distribution limitation by
denying permit applications for consignments of the avocados to
destinations outside the 50 States and Puerto Rico and, for
consignments imported into the 50 States and Puerto Rico, by including
as a condition of the permit a prohibition on moving the avocados to
any U.S. territory. This same paragraph also contains a requirement for
box marking that applied from January 31, 2005, through January 31,
2007; as this requirement is outdated, we would remove it.

Use of an Approved Designee to Inspect Avocados for Export

    Currently, our regulations in Sec.  319.56-30(c)(3)(iv) require
samples of Hass avocados produced in Michoac[aacute]n, Mexico, to be
selected, cut, and inspected by the Mexican NPPO and found free from
pests. The Mexican NPPO has requested that we amend the regulations to
provide for the use of an approved designee to perform these functions.
The use of approved designees in situations such as this is consistent
with the International Plant Protection Convention's International
Standard for Phytosanitary Measures (ISPM) No. 20,\1\ which describes a
system that NPPOs may use to authorize other government services, non-
governmental organizations, agencies, or persons to act on their behalf
for certain defined functions. This system includes the development of
procedures to determine the competency of designees, to perform system
audits and review, to implement corrective actions, and to withdraw
authorization. We have determined that an approved designee could
perform NPPO functions when a system meeting the criteria of ISPM 20 is
used. Accordingly, we are proposing to amend the regulations to provide
for the Mexican NPPO to use an approved designee to perform these
functions. Specifically, we are proposing to amend Sec.  319.56-
30(c)(3)(iv) to provide for avocados to be selected, cut, and inspected
by either the Mexican NPPO or its approved designee.
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    \1\ To view this and other ISPMs on the Internet, go to (http://www.ippc.int/) and click on the ``Adopted Standards'' link under the
``Core activities'' heading.
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Limiting the Scope of Suspension of Export Certification

    Paragraph (e) of Sec.  319.56-30 sets out the procedures that are
followed when a pest is detected in the required inspections.
Currently, under paragraph (e)(1), when avocado seed pests are detected
during semiannual pest surveys, orchard surveys, packinghouse
inspections, or other monitoring or inspection activities, the entire
municipality in which the pests are discovered loses its pest-free
certification and avocado exports from that municipality are suspended.
However, our regulations in paragraphs (e)(2) and (e)(3) call for the
suspension of the export certification of individual orchards and
packinghouses where the stem weevil Copturus aguacatae is detected,
rather than for the suspension of the export certification of the
entire municipality. This difference in the scope of suspension was
originally created because we had limited specific information on the
mobility of avocado seed pests within approved municipalities in
Mexico, so we took a more cautious approach by providing for the
suspension of the entire municipality in which a seed pest was
detected.
    Now that we have had years to evaluate the effectiveness of the
systems approach used to mitigate pests in approved municipalities,
APHIS has concluded that the mobility of avocado seed pests creates no
greater risk of their avoiding detection than the mobility of the
avocado stem weevil, and that the same scope of export suspension
should apply to avocado seed pests and the stem weevil. In addition, if
avocado seed pests are present in places of production close to a place
of production in which an avocado seed pest is found, the required
surveys would find it in those nearby places of production, and we
would suspend those places of production as well. Of course, the entire
municipality would be suspended if the pests were detected in all
places of production within that municipality. Given this information,
APHIS has concluded that suspension of shipments from an affected
orchard or packinghouse, rather than from an entire municipality, would
provide sufficient safeguards against pest introduction while
minimizing trade disruptions. Therefore, we are proposing to apply
suspensions only to an affected orchard or packinghouse, rather than to
an entire municipality, when seed pests are detected. Specifically, we
are proposing to replace paragraphs (e)(1) through (e)(3) of Sec.
319.56-30 with a new paragraph (e) that would state that suspension of
avocado shipments applies to orchards or packinghouses within a
municipality when the pests Heilipus lauri, Conotrachelus aguacatae, C.
perseae, Copturus aguacatae, or Stenoma catenifer are detected.
    Protocols for reinstatement from suspension of export of Hass
avocados would continue to be included in the operational work plan
between Mexico and the United States required under Sec.  319.56-30(c).

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been determined to be not significant for
the purposes of Executive Order 12866 and, therefore, has not been
reviewed by the Office of Management and Budget.

[[Page 27227]]

    We have prepared an initial regulatory flexibility analysis for
this proposed rule. The analysis examines the potential economic
effects of this action on small entities, as required by the Regulatory
Flexibility Act. The analysis identifies avocado producers, importers,
and wholesalers in Puerto Rico as the small entities most likely to be
affected by this action and considers the effects of increased imports
of avocados. Puerto Rico is a large net importer of avocados. Imports
for 2007 totaled around 3,700 short tons while exports totaled only 8
short tons, as preliminarily reported by the Puerto Rican Department of
Agriculture's Office of Agricultural Statistics.\2\ In other words,
three-fifths of Puerto Rico's avocado supply is imported. In addition,
there may well be movement of avocado from the mainland United States
to Puerto Rico, which would not be reported as imports. Based on the
information presented in the analysis, we expect affected entities
would experience minimal economic effects as a result of additional
imports arriving in Puerto Rico from Mexico. We invite comment on the
analysis, which is posted with this proposed rule on the
Regulations.gov Web site (see ADDRESSES above for instructions for
accessing Regulations.gov) and may be obtained from the person listed
under FOR FURTHER INFORMATION CONTACT.
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    \2\ Puerto Rico Dept. of Agriculture, Office of Agricultural
Statistics. ``18.58F23 Fresh Fruits.'' November 13, 2007. p. 23.
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Executive Order 12988

    This proposed rule would allow Hass avocados to be imported into
Puerto Rico from Michoac[aacute]n, Mexico. If this proposed rule is
adopted, State and local laws and regulations regarding Hass avocados
imported under this rule would be preempted while the fruit is in
foreign commerce. Fresh Hass avocados are generally imported for
immediate distribution and sale to the consuming public and would
remain in foreign commerce until sold to the ultimate consumer. The
question of when foreign commerce ceases in other cases must be
addressed on a case-by-case basis. If the proposed rule is adopted, no
retroactive effect will be given to this rule, and this rule will not
require administrative proceedings before parties may file suit in
court challenging the rule.

Paperwork Reduction Act

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

List of Subjects in 7 CFR Part 319

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

0
Accordingly, we propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

    Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136
and 136a; 7 CFR 2.22, 2.80, and 371.3.

0
2. Section 319.56-30 is amended as follows:
0
a. By revising paragraph (a)(2) to read as set forth below.
0
b. In paragraph (c)(3)(iv), by adding the words ``or its approved
designee'' after the word ``NPPO''.
0
c. In paragraph (c)(3)(vii), by removing the last two sentences.
0
d. By revising paragraph (e) to read as set forth below.

Sec.  319.56-30  Hass avocados from Michoac[aacute]n, Mexico.

    (a) * * *
    (2) Shipping restrictions. The avocados may be imported into and
distributed in all States and in Puerto Rico, but not in any U.S.
Territory.
* * * * *
    (e) Pest detection. If any of the avocado pests Heilipus lauri,
Conotrachelus aguacatae, C. perseae, Copturus aguacatae, or Stenoma
catenifer are detected during the semiannual pest surveys in a
packinghouse, certified orchard or areas outside of certified orchards,
or other monitoring or inspection activity in the municipality, the
Mexican NPPO must immediately initiate an investigation and take
measures to isolate and eradicate the pests. The Mexican NPPO must also
provide APHIS with information regarding the circumstances of the
infestation and the pest risk mitigation measures taken. Orchards
affected by the pest detection will lose their export certification
immediately, and avocado exports from that orchard will be suspended
until APHIS and the Mexican NPPO agree that the pest eradication
measures taken have been effective.
* * * * *
    Done in Washington, DC, this 10\th\ day of May 2010.

Kevin Shea
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2010-11598 Filed 5-13-10; 8:45 am]
BILLING CODE 3410-34-S
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