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Rules and Regulations Federal Register

1 

Vol. 75, No. 1 

Monday, January 4, 2010 

1To view the proposed rule and the comments 

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

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2008-0126. 

2 In this final rule, the provisions of the systems 

approach are added as § 319.56–50. We discuss the 

comments in terms of provisions of proposed 

§ 319.56–49 so that the reader can follow along with 

the proposal. 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Parts 305 and 319 

[Docket No. APHIS–2008–0126] 

RIN 0579–AC93 

Importation of Hass Avocados From 

Peru 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending the fruits 

and vegetables regulations to allow the 

importation of Hass avocados from Peru 

into the continental United States. As a 

condition of entry, Hass avocados from 

Peru will have to be produced in 

accordance with a systems approach 

that includes requirements for 

importation in commercial 

consignments; registration and 

monitoring of places of production and 

packinghouses; grove sanitation; pestfree areas or trapping for the South 

American fruit fly; pest-free areas or 

treatment for the Mediterranean fruit 

fly; surveys for the avocado seed moth; 

and inspection for quarantine pests by 

the national plant protection 

organization of Peru. Hass avocados 

from Peru will also be required to be 

accompanied by a phytosanitary 

certificate with an additional 

declaration stating that the avocados 

were grown, packed, and inspected and 

found to be free of pests in accordance 

with these requirements. This action 

will allow the importation of Hass 

avocados from Peru into the United 

States while continuing to provide 

protection against the introduction of 

quarantine pests. 

DATES: Effective Date: February 3, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Charisse Cleare, Regulatory 

Coordination Specialist, Regulations, 

Permits, and Manuals, PPQ, APHIS, 

4700 River Road Unit 136, Riverdale, 

MD 20737–1236; (301) 734–0773. 

SUPPLEMENTARY INFORMATION: 

Background 

The regulations in ‘‘Subpart—Fruits 

and Vegetables’’ (7 CFR 319.56–1 

through 319.56–49, referred to below as 

the regulations) prohibit or restrict the 

importation of fruits and vegetables into 

the United States from certain parts of 

the world to prevent the introduction 

and dissemination of plant pests that are 

new to or not widely distributed within 

the United States. 

On January 7, 2009, we published in 

the Federal Register (74 FR 651–664, 

Docket No. APHIS–2008–0126) a 

proposal 1 to amend the regulations to 

allow the importation of Hass avocados 

from Peru into the continental United 

States. As a condition of entry, we 

proposed to require Hass avocados from 

Peru to be produced in accordance with 

a systems approach that included 

requirements for importation in 

commercial consignments; registration 

and monitoring of places of production 

and packinghouses; grove sanitation; 

pest-free areas, trapping, or treatment 

for fruit flies; surveys for the avocado 

seed moth; and inspection for 

quarantine pests by the national plant 

protection organization (NPPO) of Peru. 

We also proposed to require Hass 

avocados from Peru to be accompanied 

by a phytosanitary certificate with an 

additional declaration stating that the 

avocados were grown, packed, and 

inspected and found to be free of pests 

in accordance with the proposed 

requirements. We proposed to add the 

systems approach to the regulations in 

a new § 319.56–49.2

We solicited comments concerning 

our proposal for 60 days ending March 

9, 2009. We received 30 comments by 

that date. They were from private 

citizens, producers, importers, 

exporters, and representatives of State 

and foreign governments. Twenty of the 

commenters supported the proposed 

rule. The issues raised by the remaining 

commenters are discussed below by 

topic. 

General Comments 

Two commenters expressed general 

concerns about the proposed rule. One 

stated that scientists say that not enough 

time has passed to study the pests 

associated with the importation of Hass 

avocados from Peru and the potential 

threat those pests pose. This commenter 

stated that, without substantial inquiry 

into the effects of the pests, allowing the 

importation of avocados from Peru 

would be unsafe, with very serious 

consequences for California avocado 

growers. Another commenter stated that 

California avocado growers have 

experienced pest introductions due to 

the inadequate inspection of Hass 

avocados imported from Mexico, and 

further stated that there is no reason to 

expect that inspection of Hass avocados 

from Peru will provide any better 

protection. 

We prepared a pest risk assessment 

(PRA) and risk management document 

(RMD) as part of our evaluation of the 

request from the NPPO of Peru to export 

Hass avocados to the United States. 

Based on the evidence and discussion 

presented in the PRA and RMD, we 

have concluded that the mitigations we 

proposed, with some changes as 

discussed later in this document, will be 

effective at preventing the quarantine 

pests identified in the PRA from being 

introduced into the United States via 

the importation of avocados from Peru. 

The first commenter did not provide 

any specific citations supporting the 

assertion that scientists say not enough 

time has passed to study the pests 

associated with the importation of Hass 

avocados from Peru, nor did the 

commenter indicate that the evidence 

presented in the PRA and RMD was 

inadequate. 

With regard to the second 

commenter’s concern about pests being 

introduced via the importation of Hass 

avocados from Mexico, it should be 

noted that, in 9 years of fruit cutting and 

inspection of Hass avocados imported 

from Mexico, over 28 million fruit were 

examined (20.2 million in the orchards, 

7.2 million in packinghouses, and 

602,490 at border inspection ports) for 

pests. Twice, the quarantine pest 

Contrachelus perseae was found, both 

times in backyard avocados that would 

not have been eligible to be exported to 

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2 Federal Register / Vol. 75, No. 1 / Monday, January 4, 2010 / Rules and Regulations 

3To view the notice, the draft PRA, and the 

comments we received, go to http:// 

www.regulations.gov/fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2006-0072. 

the United States. Both outbreaks of this 

pest were eradicated. All other avocados 

from this export program have been 

found to be free of quarantine pests. 

There is no evidence that the 

importation of Hass avocados from 

Mexico has resulted in the introduction 

of quarantine pests into the United 

States. 

Comments on the PRA 

We prepared a draft PRA titled 

‘‘Importation of ‘Hass’ Avocado (Persea 

americana) Fruit from Peru into the 

Continental United States’’ (May 2006). 

The draft PRA evaluated the risks 

associated with the importation of Hass 

avocados into the continental United 

States (the lower 48 States and Alaska) 

from Peru. We published a notice 3 in 

the Federal Register on May 25, 2006 

(71 FR 30113, Docket No. APHIS–2006– 

0072), in which we advised the public 

of the availability of the draft PRA and 

solicited comments on it for 60 days 

ending July 24, 2006. We also 

conducted a peer review of the draft 

PRA. We made changes to the May 2006 

PRA in response to public comments 

and peer review comments and 

prepared a revised PRA, dated 

December 2008, for the January 2009 

proposal. We accepted comments on the 

revised PRA during the comment period 

for the proposed rule. 

One commenter provided a comment 

on the May 2006 PRA recommending 

that mirids of the genus Dagbertus be 

added to the list of quarantine pests 

associated with Hass avocados from 

Peru. We stated in the December 2008 

PRA that we had not found any 

evidence that Dagbertus spp. were pests 

of avocados in Peru. Addressing this 

statement, the commenter provided an 

unpublished study that the commenter 

believed supported the addition of 

Dagbertus spp. to the list of quarantine 

pests of avocados in Peru. The 

commenter also consulted an 

entomologist, who stated that he had 

not tested whether Dagbertus spp. can 

oviposit in hard mature avocado fruit 

and added, with respect to the pests’ 

ability to travel the commercial 

pathway, ‘‘I can’t guarantee it won’t 

happen.’’ The commenter urged APHIS 

to further evaluate the quarantine pest 

status of Dagbertus spp. to determine 

whether risk mitigation measures are 

warranted. 

We appreciate the opportunity to 

clarify our earlier statement. While 

Dagbertus spp. are pests of avocados in 

Peru, they are highly unlikely to travel 

the pathway of commercial avocado 

fruit exported from Peru. According to 

Wysocki et al. (2002), pests of the family 

Miridae, which includes the Dagbertus 

genus, ‘‘feed and insert their eggs on 

opening buds, leaves, flowers and small 

fruit. Attacks seem to especially affect 

flowers and recently set fruit, causing 

them to drop.’’ Fallen immature fruit 

would not be marketable and thus 

would typically not be exported for 

commercial sale. The other plant parts 

mentioned would not be allowed to be 

included in shipments of avocados 

intended for export. 

The information in Wysocki et al. 

(2002) is corroborated by the fact that, 

since 1985, Dagbertus spp. have been 

intercepted at U.S. ports of entry only 

26 times from anywhere in the world, 

on any commodity, including flowers 

and other plant parts in addition to 

fruit. 

The paper the commenter submitted 

does not identify a specific species of 

Dagbertus spp. as a pest. Additionally, 

none of the information we have about 

Dagbertus spp. indicates that we should 

further analyze any specific species 

within the genus. In the PRA 

accompanying this final rule, we have 

added Dagbertus spp. to the list of plant 

pests potentially affecting Hass 

avocados in Peru, but we have indicated 

in that list that these species will not 

follow the pathway of commercial fruit. 

We continue to consider Dagbertus spp. 

not to be quarantine pests. 

One commenter examined the 

references in the PRA regarding the 

quarantine pest Stenoma catenifer, the 

avocado seed moth, and stated that we 

should have considered the work of Dr. 

Mark Hoddle and Dr. C.L. Hohmann in 

assessing the risk posed by that pest. 

The commenter stated that the omission 

of the work of these authors called into 

question whether the risk mitigation 

strategy we proposed for the avocado 

seed moth would be effective. 

The avocado seed moth was rated as 

a high-risk pest, meaning that the 

references we consulted were sufficient 

to establish that the pest risk rating was 

the highest available. The work of Dr. 

Hoddle indicates that the avocado seed 

moths can cause extensive damage to 

Hass avocado crops, meaning that it 

supports our rating of the pest risk of 

the avocado seed moth as high. It also 

describes the seasonality of this pest, 

which is not relevant for Peru; avocados 

are only produced in one season in 

Peru, unlike Guatemala, the site of Dr. 

Hoddle’s research, where avocados are 

produced year-round. 

The two papers by Dr. Hohmann that 

the commenter cited discuss pesticide 

treatment and avocado seed moth 

infestation levels in avocados grown in 

Brazil (Hohmann et al., 2000) and the 

placement of avocado seed moth eggs 

laid within the tree and in the avocados 

(Hohmann et al., 2003). This work does 

not directly address the question of the 

appropriate pest risk rating for avocado 

seed moth. As appropriate, it will 

inform our operational workplan, which 

is required under the systems approach, 

and specifically the provisions of the 

workplan that deal with specific details 

of fruit cutting and sampling. 

One commenter stated that Ferrisia 

malvastra, a mealybug, should not have 

been identified in the PRA as a 

quarantine pest. The commenter stated 

that the NPPO of Peru does not have 

records indicating that F. malvastra is 

present in Peru and that the reference 

(Ben-Dov et al., 2003) that the PRA cites 

as evidence of the pest’s presence in 

Peru also indicates that the pest is 

present in the United States. 

The genus Ferrisia is comprised of 

several species which may be difficult 

to differentiate from one another (Gullan 

et al., 2003). Soon after being described, 

Heliococcus malvastrus, a 

parthenogenic mealybug first described 

by McDaniel in 1962, was synonymized 

with F. virgata (McKenzie, 1967). The 

species was then separated, redescribed, 

and named F. consobrina (Williams and 

Watson, 1988), a name that was the 

junior synonym to F. malvastra (BenDov, 2005). Hence, the observation 

noted in Williams & Granara (1992) 

records the presence of what is now 

considered F. malvastra in Peru. 

The PRA notes that F. malvastra is 

present in the United States and further 

indicates that this pest is on the 

actionable pest list maintained by the 

Plant Protection and Quarantine 

program’s National Identification 

Service. Our regulatory practice is to 

treat such pests as quarantine pests. We 

are making no changes to the quarantine 

pest status of F. malvastra in response 

to this comment. 

One commenter stated that, between 

2001 and 2005, the NPPO of Peru 

sampled a total of 12,505 Hass avocados 

attached to trees, finding no fruit 

infested with fruit flies. The commenter 

asserted that these data indicate that 

Hass avocados attached to trees are not 

hosts for the fruit flies identified in the 

PRA as quarantine pests: Anastrepha 

fraterculus, the South American fruit 

fly; A. striata, the guava fruit fly; and 

Ceratitis capitata, the Mediterranean 

fruit fly or Medfly. 

While these data are not inconsistent 

with the assertion made by the 

commenter, the data are not sufficient to 

prove that assertion. (For example, 

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Federal Register / Vol. 75, No. 1 / Monday, January 4, 2010 / Rules and Regulations 3 

research would need to be done to 

determine the host status of avocados 

off the tree.) APHIS has developed a 

protocol for surveys and sampling to 

demonstrate that a fruit or vegetable is 

not a host of a specific pest. If the NPPO 

of Peru wishes to establish that Hass 

avocados in Peru are not hosts of these 

fruit flies, it can follow the APHIS 

protocol for doing so. 

However, one of these fruit flies, A. 

striata, has been demonstrated not to 

infest Hass avocados, in Aluja et al. 

(2004). We do not currently consider 

Hass avocados to be a host of this pest; 

in a final rule published in the Federal 

Register on June 30, 2009 (74 FR 31154– 

31160, Docket No. APHIS–2006–0189), 

and effective on July 30, 2009, we 

removed restrictions related to the 

movement of Hass avocados from areas 

where certain Anastrepha spp. fruit flies 

(including A. striata) are present. 

Accordingly, we have removed A. 

striata from the pest list in the PRA that 

accompanies this final rule. It should be 

noted that A. fraterculus is still on the 

pest list, meaning that avocados from 

Peru will still need to be grown in 

places of production that have a low 

prevalence of A. fraterculus, as 

demonstrated by trapping, or that are 

free of that pest, as described in further 

detail later in this document. 

Monitoring and Oversight 

Two commenters addressed APHIS 

monitoring and oversight of the systems 

approach generally. One asked what the 

level of APHIS oversight would be in 

Peru, what level of expertise and 

resources would be dedicated to the 

systems approach by the NPPO of Peru, 

and whether periodic site visits were 

planned to verify program compliance. 

The second commenter, noting the 

RMD’s statement that ‘‘APHIS will be 

directly involved with SENASA [the 

NPPO of Peru] in monitoring and 

auditing implementation of the systems 

approach,’’ stated that APHIS should 

provide on-site monitoring of all aspects 

of the systems approach throughout the 

harvest period and that a requirement 

for such APHIS monitoring should be 

included in the regulations. 

The NPPO of Peru is obligated to 

fulfill its responsibilities under the 

systems approach as a signatory to the 

International Plant Protection 

Convention (IPPC). We have determined 

that it is not necessary for us to monitor 

program activities on site unless we 

have reason to believe that such 

activities may not be adequately 

mitigating pest risks. Thus, we do not 

plan to make periodic site visits. This is 

consistent with our practice in other 

import programs. We have conducted 

site visits as part of developing the 

systems approach; we found the NPPO 

of Peru to have the necessary resources 

and capacity to implement the systems 

approach. In addition, APHIS 

inspection of Hass avocados from Peru 

at the port of entry will serve as a check 

on the effectiveness of the systems 

approach. 

Grove Sanitation 

Paragraph (c) of proposed § 319.56–49 

contained grove sanitation 

requirements. We proposed to require 

avocado fruit that has fallen from the 

trees to be removed from each place of 

production at least once every 7 days, 

starting 2 months before harvest and 

continuing to the end of harvest. 

One commenter stated that we should 

require grove sanitation to occur only 

during the harvest season, rather than 

beginning 2 months before harvest, and 

that we should require removal of fallen 

fruit every 15 days, rather than every 7 

days. The commenter provided the 

following reasons: 

• Hass avocados on the ground are 

poor hosts for fruit flies, and fruit 

attached to trees are not hosts for fruit 

flies. 

• The avocado seed moth does not 

occur in the coast of Peru, where most 

avocado production in Peru is expected 

to occur. 

• Hass avocado fruit fall to the 

ground because of a normal 

physiological characteristic of the 

avocado crop, not due to pest attacks. 

We disagree with this commenter. 

Avocado fruit do, in fact, fall from trees 

due to pest attacks; indeed, unusual 

fruit drop is often a symptom of pest 

infestation. In addition, fallen avocado 

fruit are typically damaged and thus 

provide good host material for pests of 

avocados, including fruit flies; for this 

reason, we proposed to prohibit fallen 

avocado fruit from being included in 

field containers of fruit brought to the 

packinghouse to be packed for export. 

The occurrence of the avocado seed 

moth in only one area in Peru is not 

relevant to this provision of the systems 

approach, which targets all the 

quarantine pests. 

The 7-day interval for removal of 

fallen fruit that we proposed is 

consistent with our regulations for the 

importation of Hass avocados from 

Mexico in § 319.56–30; the requirement 

to begin grove sanitation 2 months 

before harvest is consistent with other 

import programs that contain grove 

sanitation requirements (although not 

the Mexican program, since Hass 

avocados are exported from Mexico 

year-round). We have determined that 

this sanitation period and interval are 

necessary to provide appropriate 

protection against the introduction of 

quarantine pests via Hass avocados 

imported from Peru. 

Mitigation Measures for A. fraterculus 

In paragraph (d) of proposed 

§ 319.56–49, we proposed to provide 

two options for mitigating the risk 

associated with the fruit flies A. 

fraterculus, the South American fruit 

fly, and A. striata, the guava fruit fly, in 

avocados from Peru: Establishment of an 

area free of A. fraterculus and A. striata, 

in accordance with our pest-free area 

regulations in § 319.56–5, or trapping to 

demonstrate that places of production 

have a low prevalence of A. fraterculus 

and A. striata. 

Although the January 2009 PRA 

identified both A. fraterculus and A. 

striata as potential pests of Hass 

avocados from Peru, Hass avocados are 

known to be poor hosts for Anastrepha 

spp. fruit flies in general. However, the 

risk that these fruit flies will infest Hass 

avocados increases if their population is 

high in areas where avocados are 

produced. Trapping to demonstrate an 

area of low pest prevalence was 

proposed as an appropriate mitigation 

for these two fruit flies. 

As noted above, we have removed A. 

striata from the pest list in the PRA 

accompanying this final rule, meaning 

that these requirements apply only with 

regard to A. fraterculus in this final rule. 

One commenter stated that allowing 

the NPPO of Peru to define areas of low 

pest prevalence without direct APHIS 

oversight would not be prudent. 

Perhaps, the commenter stated, the 

NPPO of Peru could define areas of low 

pest prevalence after several years of 

program implementation without 

incident, but without a proven track 

record, the risks would be too great to 

place an untried systems approach in 

the hands of government officials in the 

exporting country. The commenter 

recommended that the final rule include 

provisions for mandatory monitoring of 

fruit fly trapping by APHIS. 

The commenter did not identify a 

specific risk associated with oversight of 

the fruit fly trapping by the NPPO of 

Peru. In import programs that involve 

fruit fly trapping, we do not typically 

require APHIS oversight of the trapping 

itself. Instead, we require in the 

regulations that records of the fruit fly 

trapping be kept and made available to 

APHIS. We included in the proposed 

rule requirements for the NPPO of Peru 

to keep records of fruit fly detections for 

each trap, update the records each time 

the traps are checked, and make the 

records available to APHIS inspectors 

upon request. Fruit fly trapping itself is 

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4 Federal Register / Vol. 75, No. 1 / Monday, January 4, 2010 / Rules and Regulations 

4 In Peru, the departamento is the first level of 

political subdivision within the country, similar to 

the U.S. State. However, because Peru is about fivesixths of the size of Alaska and there are 25 

departamentos, a typical departamento is smaller 

than most States. 

conducted in accordance with the 

International Atomic Energy Agency 

(IAEA) guidelines for fruit fly trapping, 

which are internationally recognized 

and well-understood. By auditing the 

fruit fly trapping records, we can 

determine whether the trapping is being 

conducted consistent with the IAEA 

guidelines. Records of finds of fruit flies 

in the trapping would also indicate 

whether the trapping procedures needed 

to be adjusted. As noted earlier, we have 

conducted site visits as part of 

developing the systems approach; we 

found the NPPO of Peru to have the 

necessary resources and capacity to 

implement the systems approach, 

including fruit fly trapping. We are 

making no changes to the proposed rule 

in response to this comment. 

This commenter also asserted that the 

proposed rule did not provide adequate 

mitigations for the risk associated with 

A. fraterculus and A. striata, stating that 

we should add to the final rule 

provisions prohibiting the distribution 

of Hass avocados from Peru to areas of 

the United States where fruit flies could 

become established. The commenter 

stated that A. fraterculus is considered 

the most important fruit fly pest in 

South America, with a very wide range 

of hosts ranging from tropical to 

temperate species. A. fraterculus 

exhibits greater morphological variation 

than related species, and there is strong 

evidence that a complex of cryptic 

species is included in the nominal 

species A. fraterculus, of which the 

South American variety may be more 

aggressive and dangerous. 

The commenter stated that provisions 

prohibiting the distribution of Hass 

avocados from Mexico to certain areas 

of the United States were only removed 

when research was completed 

establishing that Hass avocados were 

not hosts of the Anastrepha species 

present in Mexico, but that A. 

fraterculus was not included in this 

research, in part because of evidence 

that the Mexican morphotype differs 

significantly from the South American 

morphotype. The commenter stated 

that, until and unless field research in 

Peru demonstrates the nonsusceptibility of Hass avocados to attack 

by A. fraterculus and A. striata, 

provisions limiting the distribution of 

Hass avocados from Peru should be 

imposed. 

We agree with the commenter that A. 

fraterculus is likely composed of 

‘‘sibling species,’’ as discussed in the 

PRA, and we also agree that the host 

status of Hass avocados for A. 

fraterculus is uncertain. However, the 

commenter did not provide any 

evidence that we did not consider in the 

PRA when discussing the host status of 

Hass avocados for A. fraterculus, nor 

did the commenter point out any 

evidence suggesting that some species of 

A. fraterculus exhibit a greater 

preference for Hass avocados than 

others. As stated in the PRA, a review 

of the current literature suggests that 

under most circumstances, Hass 

avocados do not serve as hosts for 

Anastrepha spp. The PRA ultimately 

concluded that, given the available 

evidence, A. fraterculus could be 

considered a pest of avocado in Peru. 

This is consistent with allowing the 

importation of Hass avocados from Peru 

that originate in an area of low pest 

prevalence for A. fraterculus and 

requiring that Hass avocados be 

inspected for A. fraterculus before being 

exported to the United States. 

The research to demonstrate the nonsusceptibility of Hass avocados to attack 

by A. fraterculus that the commenter 

recommends would be necessary if we 

had proposed to require no mitigations 

for A. fraterculus; instead, we proposed 

to require Hass avocados from Peru to 

come from areas that are free of A. 

fraterculus or areas that have been 

demonstrated by trapping to have a low 

prevalence of A. fraterculus. 

As noted earlier, we have determined 

that A. striata is not a pest of Hass 

avocados, based on research to which 

the commenter alludes. 

The commenter also recommended 

that we require the storing of ‘‘voucher 

specimens’’ of A. fraterculus in 95 

percent alcohol, to facilitate genetic 

analyses conducted later in time and 

aimed at differentiating sibling/cryptic 

species, some of which may exhibit a 

stronger preference for avocados. 

If a sibling or cryptic species of A. 

fraterculus that has a stronger 

preference for Hass avocados were to 

emerge in Peru, we would become 

aware of it through fruit fly trapping, 

fruit inspection, and general monitoring, 

and we would impose additional 

restrictions on the importation of Hass 

avocados from Peru as appropriate. 

Therefore, it is not necessary to require 

the specimen storage that the 

commenter suggests. 

Mitigation Measures for Medfly 

Paragraph (e) of proposed § 319.56–49 

provided three options for mitigating 

the risk associated with Medfly in 

avocados from Peru: Establishment of an 

area free of Medfly, trapping to 

demonstrate that places of production 

are free of Medfly, or treatment. With 

regard to trapping, we proposed to 

require that, when traps are serviced, if 

any Medfly are found, 10 additional 

traps be deployed in a 0.5-km2 area 

immediately surrounding all traps 

where Medfly was found to determine 

whether a reproducing population is 

established. If any additional Medfly are 

found within 30 days of the first 

detection, the affected place of 

production would be ineligible to export 

avocados without treatment for Medfly 

until the source of the infestation is 

identified and the infestation is 

eradicated. APHIS would have to 

concur with the determination that the 

infestation has been eradicated. 

One commenter expressed concern 

about using trapping to demonstrate 

place of production freedom from 

Medfly, noting that allowing pest-free 

places of production would be 

unprecedented unless all of the export 

groves in Peru are greater than 0.5 km2

and are surrounded by buffer zones. The 

commenter stated that international 

standards for area freedom from Medfly 

should continue to be used. 

We agree with the commenter’s 

concern. Peru’s places of production do 

not all meet the conditions noted by the 

commenter, thus making determining 

place of production freedom from 

Medfly operationally difficult. 

Therefore, this final rule does not 

include trapping to establish a pest-free 

place of production as a mitigation 

option for Medfly. We are providing 

only for the establishment of pest-free 

areas and treatment as mitigation 

options in paragraph (e). We are also 

making several changes elsewhere in the 

proposed regulatory text to remove 

references to pest-free places of 

production as a mitigation option for 

Medfly. 

Surveys for the Avocado Seed Moth 

In paragraph (f) of proposed § 319.56– 

49, we proposed to require surveys to 

demonstrate that registered places of 

production are free of the avocado seed 

moth. Specifically, we proposed to 

require Peruvian departamentos 4 in 

which avocados are grown for export to 

the United States to be surveyed by the 

NPPO of Peru at least once annually, no 

more than 2 months before harvest 

begins, and found to be free from 

infestation by the avocado seed moth. 

We stated that an annual survey is 

appropriate for the avocado seed moth 

because the pest has limited mobility; 

the results of a survey conducted no 

more than 2 months before harvest 

would indicate freedom from the 

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avocado seed moth for the entire harvest 

period. 

Two commenters addressed the fact 

that we proposed to require an annual 

rather than a semiannual survey for the 

avocado seed moth, noting that the 

regulations for the importation of Hass 

avocados from Mexico in § 319.56–30 

require semiannual surveys for the 

avocado seed moth (and other seed 

pests), once during the wet season and 

once during the dry season. One 

commenter noted that, while the moth 

does have limited mobility, other factors 

may have greater bearing on the timing 

of surveys. The commenter cited field 

work by Dr. Mark Hoddle in Guatemala 

in which it was observed that seasonal 

transitions from humid to dry climatic 

conditions are accompanied by an 

increase in the detection of the avocado 

seed moth in avocado fruit. This 

commenter recommended that we 

require semiannual surveys for the 

avocado seed moth to provide a more 

accurate picture of the risk posed by 

that pest. 

We have determined that semiannual 

surveys for the avocado seed moth are 

not necessary because the climatic shifts 

from wet to dry seasons that occur in 

Guatemala and Mexico do not occur in 

Peru’s avocado production areas; rather, 

Peru’s avocado production areas remain 

arid throughout the year. Additionally, 

Peru’s avocado production areas are 

separated by desert, further inhibiting 

the spread of the moth between places 

of production. These factors indicate 

that an annual survey is adequate to 

detect the avocado seed moth. 

As part of the departamento surveys, 

we proposed to require the NPPO of 

Peru to cut and inspect a biometric 

sample of fruit at a rate determined by 

APHIS. We stated that we expect the 

biometric sample to include about 300 

fruit from each place of production. 

One commenter recommended that 

we include more specificity in the 

regulations with regard to fruit cutting, 

stating that the NPPO of Peru should not 

be in a position to negotiate with APHIS 

on a fruit cutting sampling plan given 

the importance of the avocado seed 

moth as a pest. The commenter stated 

that the fact that no specific sample size 

would be included in the regulations 

provides little assurance that the survey 

will protect against the introduction of 

the avocado seed moth. 

As stated in the proposal, the rate at 

which the fruit will be sampled will be 

determined by APHIS; it will not be 

subject to negotiation, other than the 

sharing of data that informs all 

determinations of appropriate biometric 

sample rates. The sample rate will 

detect a pest prevalence with a 

confidence level that is consistent with 

other import programs in which surveys 

and inspection are used to detect highrisk pests. APHIS can adjust the rate if 

necessary to provide further security 

against pest risks. The number of fruit 

to be sampled will be determined based 

on this biometric sample rate and will 

be contained in the workplan developed 

by the NPPO of Peru and approved by 

APHIS; the workplan is required under 

the systems approach. Given this, it is 

not necessary to include a specific 

number of fruit to be sampled in the 

regulations. 

If one or more avocado seed moths 

was detected in the annual survey, we 

proposed to require the affected place of 

production to be immediately 

suspended from the export program 

until appropriate measures to 

reestablish pest freedom, agreed upon 

by the NPPO of Peru and APHIS, have 

been taken. These measures could 

include further delimiting surveys, 

appropriate pesticide treatments, or 

removal of infested host material. 

One commenter noted that we 

proposed to require surveys for the 

avocado seed moth to be conducted at 

the departamento level, but to suspend 

places of production when an avocado 

seed moth is found. This commenter 

stated that we should require 

suspension of the affected departamento 

for at least the remainder of the export 

season during which the avocado seed 

moth is detected, similar to the 

requirements in the regulations for the 

importation of Hass avocados from 

Mexico in § 319.56–30. The commenter 

also recommended that we amend the 

regulations to indicate that finding the 

avocado seed moth during any 

monitoring or inspection activity, not 

just the annual survey, would result in 

the suspension of the affected 

departamento. 

Another commenter praised the 

approach in the proposed rule of 

suspending only the affected place of 

production, rather than the entire 

departamento, upon detection of the 

avocado seed moth. This commenter 

recommended that we change the 

regulations for the importation of Hass 

avocados from Mexico to match the 

approach described in the proposed 

rule. 

The NPPO of Peru conducts its 

surveys for avocado seed moth at the 

departamento level; we proposed to 

recognize this survey methodology by 

requiring the survey to be at the 

departamento level. As noted earlier, 

the limited mobility of the pest, 

combined with the continual arid 

climate of Peru’s avocado production 

areas and their separation by desert, 

mean that the avocado seed moth will 

not move very far under its own power 

and is unlikely to move between places 

of production. In addition, if the pest is 

present in places of production close to 

a place of production in which the 

avocado seed moth has been found, the 

surveys would find it in those nearby 

places of production, and we would 

suspend those places of production as 

well. Given this information, it is 

appropriate to suspend from the export 

program only the places of production 

in which the avocado seed moth has 

been found, rather than the entire 

departamento. 

We agree with the first commenter 

that any detection of an avocado seed 

moth, including detections during 

monitoring and inspection other than 

the annual survey, should result in 

suspension of the affected place of 

production. We have amended the 

regulatory text in this final rule to 

include detections during any 

monitoring or inspection activity as a 

reason for suspension. 

We have evaluated the similar 

provisions of the regulations for the 

importation of Hass avocados from 

Mexico and have determined that it is 

not necessary to suspend the entire 

municipality in which an avocado seed 

pest has been found. We are preparing 

a proposed rule that would amend those 

regulations accordingly. 

One commenter recommended two 

additional mitigations for the risk posed 

by the avocado seed moth. One, which 

the commenter presented as an 

additional, precautionary step until the 

incidence of avocado seed moth in the 

production areas of Peru is better 

understood, was to hold a random 

sample of fruit (perhaps 300 per 

departamento) under controlled 

conditions to test for emergence of adult 

moths. Although this would not prevent 

potentially infested fruit picked at the 

same time from entering the commercial 

pathway, the commenter stated that the 

observance of adult moths could still be 

used to suspend shipments once an 

infestation became evident, thereby 

reducing overall risk. 

The other mitigation the commenter 

suggested was to prohibit the 

importation or distribution of Hass 

avocados from Peru to the State of 

California, to offset what the commenter 

characterized as the poor reliability of 

fruit cutting to detect larval infestations 

of the avocado seed moth. 

The NPPO of Peru has been 

conducting surveys for the avocado seed 

moth for years, and we have visited 

Peru’s avocado production areas to 

better understand the pest conditions 

there. We therefore disagree with the 

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commenter’s suggestion that the 

incidence of avocado seed moth in the 

growing areas of Peru is not well 

understood. We also disagree with the 

commenter’s assertion that fruit cutting 

is an unreliable means of detecting 

larval infestations of avocado seed 

moth. Surveying and cutting techniques 

can be designed to reduce uncertainties, 

and our selection of a biometric 

sampling rate will take any remaining 

uncertainties into account. Fruit cutting 

has been successful at preventing the 

introduction of avocado seed pests from 

Mexico into the United States through 

the importation of Hass avocados. 

Therefore, we have determined that the 

additional mitigations suggested by the 

commenter are not necessary to prevent 

the introduction of avocado seed moth 

into the United States via the 

importation of Hass avocados from Peru. 

Sealing Containers 

Paragraph (h) of proposed § 319.56–49 

contained packinghouse requirements. 

To safeguard consignments of avocados 

to be exported from Peru to the United 

States, proposed paragraph (h)(4) would 

have required the fruit to be packed in 

insect-proof packaging, or covered with 

insect-proof mesh or a plastic tarpaulin, 

for transport to the United States. These 

safeguards would have had to remain 

intact until arrival in the United States. 

Two commenters noted that the 

proposed rule did not include a 

requirement to seal containers while in 

transit to the United States. One of these 

commenters encouraged us to require 

the use of cargo seals to enhance the 

phytosanitary integrity of consignments 

during transit, to provide evidence of 

any container breaches, and to prevent 

cross-contamination from boxes of 

uncertified avocados or other 

potentially infested fruit. The other 

commenter also noted that the proposed 

rule did not include repackaging 

requirements for containers of Hass 

avocados from Peru. 

We agree with the commenters that 

seals are useful to ensure the 

phytosanitary integrity of consignments. 

We typically require the use of such 

seals in the bilateral workplan that 

provides specific details on how the 

export program will be implemented in 

the exporting country. We will do so for 

avocados from Peru. Similarly, we will 

include repackaging requirements in the 

bilateral workplan. 

Identification of Shipments 

Proposed paragraph (h)(5) provided 

that shipping documents accompanying 

consignments of avocados from Peru 

that are exported to the United States 

would have to include the official 

registration number of the place of 

production at which the avocados were 

grown and would have to identify the 

packing shed or sheds in which the fruit 

was processed and packed, and that this 

identification would have to be 

maintained until the fruit is released for 

entry into the United States. 

Two commenters recommended that 

we additionally require individual 

cartons of avocados to be labeled with 

this information. (One of these 

commenters also recommended that we 

require individual avocado fruit to be so 

labeled as well.) The commenters stated 

that this information would allow for 

traceback to and suspension of 

individual places of production and 

packinghouses in the event that a pest 

is discovered in the United States, 

rather than having to suspend all 

avocado exports from Peru. The 

commenters stated that this requirement 

would thereby isolate the problem 

without unnecessarily disrupting the 

flow of trade. 

We agree with these commenters that 

labeling cartons and fruit with place of 

production and packinghouse 

registration numbers would allow for 

traceback to specific places of 

production or packinghouses and would 

thus help to continue the flow of trade 

if a pest is discovered. We typically 

require in the bilateral workplan that 

such information be included on 

individual cartons. We will do so for 

avocados from Peru. As the commenters 

noted, an exporting country has an 

incentive to provide this information in 

order to minimize unnecessary trade 

disruptions in the event of a pest 

detection. 

Inspection 

Paragraph (i) of proposed § 319.56–49 

provided for inspection of a biometric 

sample of fruit from each place of 

production by the NPPO of Peru at a 

rate to be determined by APHIS. 

One commenter stated that the 

regulations should limit the amount of 

discretion granted to the NPPO of Peru 

in this most critical aspect of the 

systems approach, providing a specific 

sampling plan. Another commenter 

stated that the regulations for the 

importation of Hass avocados from 

Mexico require specific numbers of fruit 

to be cut for inspection prior to export 

and at the port of first arrival in the 

United States; this commenter praised 

the approach in the proposal and asked 

that the specific fruit cutting 

requirements be removed from the 

Mexican Hass avocado regulations. 

As we proposed, the sampling rate for 

this inspection will be determined by 

APHIS. The general sampling plan will 

be contained in the bilateral workplan, 

which APHIS must approve in order for 

Peru to be able to export avocados. 

Therefore, the NPPO of Peru will not 

have sole discretion in setting a 

biometric sample rate or developing a 

sampling plan. The regulations provide 

mechanisms by which APHIS will 

direct this activity. 

In fact, with respect to the Mexican 

Hass avocado import program, the 

requirement to cut specific numbers of 

fruit for inspection prior to export and 

at the port of first arrival is contained in 

the bilateral workplan required to be 

developed under paragraph (c) of 

§ 319.56–30. Paragraph (c)(3)(iv) of 

§ 319.56–30, which contains the preexport inspection requirement for Hass 

avocados from Mexico, refers to a 

biometric sample, at a rate determined 

by APHIS. Paragraph (h) of that section, 

which contains the requirement for 

inspection at the port of first arrival, 

does not refer to any specific sampling 

mechanism. We will use the workplan 

in a similar manner in the import 

program for Hass avocados from Peru. 

In addition, it should be noted that 

Hass avocados from Peru will be 

inspected at the port of entry into the 

United States, providing a check on the 

efficacy of the inspection in Peru. 

One commenter noted that systems 

approaches, such as the one we 

proposed for the importation of Hass 

avocados from Peru, are more complex 

in nature than post-harvest treatments 

and require a higher level of expertise 

and oversight. This commenter asked 

whether there would be a higher level 

of inspection than normal of avocados 

from Peru at ports of entry to verify that 

the avocados are free of pests. 

We do not plan to inspect at a higher 

level than our usual level, unless 

evidence indicates that there may be a 

problem with the implementation of the 

systems approach. As noted earlier, we 

have found the NPPO of Peru to have 

the necessary resources and capacity to 

implement the systems approach. 

Inconsistencies With the Regulations for 

Importing Hass Avocados From Mexico 

in § 319.56–30 

Four commenters noted that the 

provisions of the proposed rule and the 

regulations for importing Hass avocados 

from Mexico in § 319.56–30 were 

inconsistent in various ways. Some of 

these comments have been addressed 

earlier in this document. The remaining 

comments are addressed here. 

One commenter stated that it was 

only over a period of years that APHIS 

relinquished oversight of Hass avocado 

growers in Mexico to the Mexican 

NPPO, and recommended that APHIS 

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take a similar path with the NPPO of 

Peru. In contrast, two commenters 

stated generally that the phytosanitary 

track record of the Mexican Hass 

avocado import program over the past 

11 years warrants at least no more 

burdensome treatment than APHIS 

proposed to provide for Hass avocados 

imported from Peru. One commenter 

recommended that several specific 

provisions of the regulations for the 

importation of Hass avocados from 

Mexico be changed to be consistent with 

similar provisions in the proposed rule. 

Since the establishment of the 

Mexican Hass avocado import program, 

APHIS has accumulated experience 

with how large-scale systems approach 

programs such as the Mexican program 

work, which in turn has given us better 

information on the appropriate level of 

oversight for such programs. As stated 

earlier, we have found the NPPO of Peru 

to have the necessary resources and 

capacity to implement the systems 

approach, and, as a signatory to the 

IPPC, the NPPO of Peru is obligated to 

fulfill its responsibilities under the 

systems approach. 

The specific differences between the 

proposed rule and the Mexican Hass 

avocado regulations brought up by the 

last commenter are addressed below. 

The commenter stated that, because 

area freedom is not required, APHIS 

seems inclined to accept that the Hass 

avocado is a poor host for A. fraterculus 

and Medfly without any supporting 

documentation. The commenter stated 

that APHIS should remove fruit flyrelated restrictions for Mexican Hass 

avocados before allowing the same 

commodity into the United States from 

another country under fewer 

restrictions. 

Our analysis establishing that Hass 

avocado is a poor host for A. fraterculus 

is documented in the PRA; the 

commenter did not provide any 

comments specific to that analysis. With 

regard to fruit flies, as noted earlier, we 

published a June 2009 final rule 

removing restrictions related to the 

movement of Hass avocados from areas 

where certain Anastrepha spp. fruit flies 

(including A. striata) are present, 

including Mexico. The PRA did not 

determine that Hass avocados are a poor 

host for Medfly; as discussed earlier, 

this final rule requires Hass avocados 

from Peru to be produced in an area that 

the Administrator has determined to be 

free of Medfly or to be treated for 

Medfly. 

The commenter noted that we 

proposed to allow the whole country of 

Peru to export avocados to the United 

States, but exports from Mexico are 

limited to approved municipalities in 

only one State, Michoacan. 

Other States in Mexico have different 

pests and different pest densities than 

Michoacan, which is less warm and 

humid than surrounding avocado 

production areas in Mexico. Mitigating 

the pest risk associated with Hass 

avocados produced in States other than 

Michoacan would require the 

development of a different systems 

approach. We have not received a 

formal request from the Government of 

Mexico to do so. 

The commenter noted that we did not 

propose to require personnel conducting 

trapping and pest surveys to be hired by 

the NPPO of Peru. Instead, we proposed 

to require any personnel conducting 

trapping and pest surveys to be trained 

and supervised by the NPPO of Peru. 

The commenter requested that we 

remove the requirement that the 

Mexican NPPO hire its personnel 

conducting trapping and pest surveys, 

which is contained in § 319.56–30(c). 

We have evaluated this provision of 

the regulations for the importation of 

Hass avocados from Mexico and have 

determined that it is not necessary for 

such personnel to be hired by the 

Mexican NPPO. We are preparing a 

proposed rule that would amend those 

regulations accordingly. 

The Mexican Hass avocado import 

regulations require APHIS to be directly 

involved with the Mexican NPPO in the 

monitoring and supervision of its 

activities. We did not propose to require 

direct monitoring and supervision for 

Hass avocados from Peru. The 

commenter stated that the strong record 

of success of the Mexican Hass avocado 

import program provides ample reason 

to remove the requirement for direct 

monitoring and supervision from that 

program. 

We acknowledge the success of the 

Mexican Hass avocado import program, 

as noted earlier in this document. We 

plan to reevaluate this provision of the 

regulations and, if warranted, issue a 

proposal to change it. 

The commenter noted that there is no 

specific requirement for inspection of 

Hass avocados imported from Peru. 

Under the general fruits and 

vegetables regulations in § 319.56–3, 

APHIS is authorized to inspect all fruits 

and vegetables imported into the United 

States. It is thus not necessary to 

include specific provisions for port-ofentry inspection for Hass avocados from 

Peru. 

Economic Issues and Comments on the 

Economic Analysis 

Four commenters opposed the 

proposed rule for economic reasons, 

stating that domestic avocado farm 

profit margins are already low due to 

adverse weather and other foreign 

competition. They cited specific 

concerns. One commenter stated that 

the vast majority of California avocado 

growers operate small family farms, 

with 5- to 20-acre groves, and would be 

adversely affected by the proposal. One 

commenter stated that imports should 

be limited to things or specialties that 

cannot be produced in the United 

States, as buying close to home helps to 

improve the U.S. economy and reduces 

carbon emissions associated with global 

climate change while providing bettertasting fruit to the consumer. 

Another commenter mentioned that 

the recent economic downturn had 

affected domestic avocado farmers’ 

personal wealth and access to credit. 

This commenter also noted that Peru’s 

avocado growing season is from May to 

September, meaning that the effects on 

the domestic market would be seasonal, 

and stated that the proposal should not 

be finalized in order to promote 

sustainable, long-term, non-seasonal 

employment. Finally, this commenter 

stated that the American Recovery and 

Reinvestment Act of 2009 exhibits 

protectionism of U.S. products and 

employment as a policy to aid the U.S. 

economy, and stated that the proposed 

rule should reflect this policy. 

The Plant Protection Act (7 U.S.C. 

7701 et seq.), the authorizing statute for 

APHIS’ plant-health-related activities, 

authorizes the Secretary of Agriculture 

to prohibit or restrict the importation of 

any plant product if the Secretary 

determines that the prohibition or 

restriction is necessary to prevent the 

introduction of a plant pest or noxious 

weed into the United States. We have 

determined that the measures in the 

systems approach we proposed, 

amended as described earlier, are 

sufficient to prevent the introduction of 

any plant pests. The factors cited by the 

commenters are not within our 

decisionmaking authority under the Act. 

The initial regulatory flexibility 

analysis (IRFA) we prepared for the 

proposed rule acknowledged that the 

majority of U.S. producers and packers 

of fresh avocados are considered to be 

small entities as defined by Small 

Business Association size standards. 

However, we have estimated that U.S. 

consumption (demand) is more than 

double U.S. production of avocados, 

indicating that consuming only U.S. 

avocados would create a shortage of 

avocados on the U.S. market. Projected 

imports of avocados from Peru would 

likely decrease the U.S. avocado price 

by a maximum of 4 percent, assuming 

no displacement of other imports. 

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8 Federal Register / Vol. 75, No. 1 / Monday, January 4, 2010 / Rules and Regulations 

5From the Foreign Agriculture Service’s 

Production, Supply, and Distribution online 

database. 

Furthermore, we have concluded that it 

is likely that at least a portion of the 

projected imports from Peru would 

displace imports from other foreign 

sources when fresh avocado supplies 

are low and demand is high, meaning 

that price effects would likely be 

smaller than 4 percent. 

The Office of Management and Budget 

designated the proposed rule as not 

significant under Executive Order 

12866. One commenter stated that this 

rule should not have been designated 

not significant, saying that the rule runs 

counter to the interests of U.S. avocado 

growers and does little to assure the 

health and safety of U.S. consumers. 

Executive Order 12866 provides 

specific criteria for the Office of 

Management and Budget to use in 

determining the appropriate designation 

of a rule. This commenter did not 

provide any reasons why the rule 

should have been designated significant 

under Executive Order 12866. In 

addition, the commenter did not specify 

how the proposed rule should be 

changed to assure the health and safety 

of U.S. consumers. This final rule will 

allow the importation of Hass avocados 

from Peru into the United States while 

continuing to provide protection against 

the introduction of quarantine pests. 

One commenter stated that allowing 

the importation of Hass avocados from 

Peru could only adversely affect 

producer prices while having a 

negligible effect on the consumer price. 

As indicated in the IRFA prepared for 

the proposed rule, we have determined 

that estimated price effects and welfare 

impacts are highly sensitive to 

displacement and import levels; 

however, given the conservative 

assumption of zero displacement, 

imports from Peru at an estimated 50 

percent more than current projections 

(28,500 metric tons), and short-run 

supply and demand elasticities, we have 

concluded that the overall net changes 

in welfare of allowing the importation of 

fresh Hass avocados from Peru under 

the specified systems approach are 

likely to be positive. This indicates that 

any decline in producer welfare would 

be exceeded by a gain in consumer 

welfare, primarily in the form of lower 

prices. 

One commenter stated that the 

demand and supply elasticities used in 

calculating changes in producer and 

consumer welfare in the IRFA 

accompanying the proposed rule should 

be modified based on more recent data 

that reflect the current state of the U.S. 

economy. This commenter noted that 

our elasticity projections originated 

from a 2003 publication that used data 

from 1998 and stated that demand for 

avocados, a product with no substitutes 

that is a relative mainstay in the diet of 

many Americans, will be inherently 

inelastic, meaning that price changes 

have relatively less effect on the amount 

demanded. However, the commenter 

stated, a new supplier of lower-priced 

avocados, coupled with American 

consumers’ heightened awareness to 

price changes for relatively common 

produce (due to the poor economic 

climate), will cause the demand for 

avocados to become much more elastic 

and responsive to price changes than 

reflected in the elasticities used in the 

IRFA. Accordingly, the commenter 

recommended that we use a greater 

elasticity of demand value for projecting 

net welfare gains and that we use these 

elasticities to measure the effects on 

suppliers. 

There is no published evidence to 

suggest that avocados have emerged as 

a ‘‘mainstay’’ of the U.S. diet. Rather, 

APHIS believes that avocados remain a 

specialty item that has become more 

popular in American culture over the 

last two decades. Furthermore, the state 

of the economy is not a major 

determinant of the price elasticity of 

demand for a good or service; however, 

consumers in a recession are more likely 

to reevaluate goods and services in 

terms of necessity or luxury. Goods and 

services deemed to be necessities are 

typically less elastic while goods 

determined to be luxuries are typically 

more elastic. A change in the price of 

fresh avocados may cause a consumer to 

reconsider purchasing avocados in 

times of economic downturn. The price 

elasticity of demand of ¥1.2 that we 

used in the IRFA is a relatively elastic 

price elasticity of demand that reflects 

that consumers are relatively sensitive 

to changes in prices of fresh avocados. 

It should be noted that, for the 

analysis, we used two sets of supply 

elasticities to measure both short-term 

and long-term welfare effects on 

producers as a result of the projected 

increase in imports of fresh avocados to 

fully capture potential changes in the 

market. 

One commenter noted that several 

commenters who supported the rule 

stated that U.S. consumption of 

avocados will increase by 15 to 20 

percent in 2009 and stated that such a 

rise in consumption is likely an 

overstatement based on data not 

reflecting the current financial 

condition of U.S. consumers. 

Domestic consumption of fresh 

avocados has nearly doubled over the 

last decade, with an overall average 

increase in 10 percent per season. 

Although demand has been estimated to 

be price-elastic and domestic 

consumption has declined over one 

season, the overall trend indicates that 

market demand is likely to experience 

long-term growth. In any case, our 

analysis is not dependent on such 

projections. 

One commenter stated that, while the 

IRFA accompanying the proposed rule 

framed displacement around how 

imports from Peru will displace 

Mexican and Chilean imports, the more 

appropriate question is how much of the 

domestic supply will be displaced. The 

commenter asserted that more of the 

domestic supply will be displaced than 

the imports from Mexico and Chile, 

meaning a negative impact on an 

already depressed market of domestic 

suppliers. 

The commenter provided no data to 

support this assertion, and published 

data 5 support our analysis. Domestic 

consumption of fresh avocados declined 

by 10 percent during the 2007–2008 

season, while fresh domestic production 

increased by 25 percent and U.S. 

exports of fresh avocados increased by 

47 percent. During this same season, 

imports from foreign sources decreased 

by nearly 24 percent over the previous 

season, suggesting that some 

displacement of foreign sources 

occurred during this period. 

Miscellaneous Changes 

In this final rule, we are correcting an 

error in proposed paragraph (b), which 

referred incorrectly to the NPPO of Peru 

verifying that growers are complying 

with the requirements of paragraphs (c) 

and (f) of § 319.56–49. Paragraph (f) 

contains the requirements for surveys 

for the avocado seed moth; we had 

intended to refer to paragraph (g), which 

contains harvesting requirements, and 

we have corrected the error in this final 

rule. 

In addition, the proposed requirement 

in paragraph (b)(4) referred to ‘‘groves,’’ 

rather than places of production, which 

was the term used in the rest of the 

proposed regulations. We are changing 

proposed paragraph (b)(4) to refer to 

places of production in this final rule. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, with the changes discussed in this 

document. 

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Entomological Society of America 96(6): 

723–737. 

Hohmann, C.L., Dos Santos, W.J., Menegium, 

A.M. 2000. Avaliac ̧a ̃o de te ́cnicas de 

manejo para o controle de broca-doabacate, Stenoma catenifer (Wals) 

(Lepidoptera: Oecophoridae). Rev. Bras. 

Frutic. Jaboticabal 22: 359–363. 

Hohmann, C.L., Meneguim, A.M., Andrade, 

E.A., Novaes, T.C., and Zandona ́ C. 2003. 

The avocado fruit borer Stenoma 

catenifer (Wals.) (Lepidoptera: 

Elachistidae): Egg and damage 

distribution and parasitism. Revista 

Brasileria de Frutic. Jaboticaba1 25: 432– 

435. 

McKenzie, H.L. 1967. Mealybugs of 

California with taxonomy, biology, and 

control of North American species 

(Homoptera: Coccoidae: 

Pseudococcidae). University of 

California Press, California. 524 pp. 

Williams, D.J., and M.C. Granara de Willink. 

1992. Mealybugs of Central and South 

America. CAB International, 

Wallingford, UK. 635 pp. 

Williams, D.J., and G.W. Watson. 1988. The 

Scale Insects of the Tropical South 

Pacific Region: Part 2: The mealybugs 

(Pseudococcidae). CAB International, 

Wallingford, Oxon, UK. 260 pp. 

Wysoki, M., M.A. Van den Berg, G. Ish-Am, 

S. Gazit, J.E. Pen ̃ a, and G.K. Waite. 2002. 

Pests and Pollinators of Avocado, pp. 

223–294. In: J.E. Pen ̃ a, J.L. Sharp, and M. 

Wysoki [Eds]. Tropical Fruit Pests and 

Pollinators: Biology, Economic 

Importance, Natural Enemies and 

Control. CABI Publishing. 430 pp. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This final rule has been reviewed 

under Executive Order 12866. The rule 

has been determined to be not 

significant for the purposes of Executive 

Order 12866 and, therefore, has not 

been reviewed by the Office of 

Management and Budget. 

In accordance with the Regulatory 

Flexibility Act, we have analyzed the 

potential economic effects of this action 

on small entities. 

The NPPO of Peru requested market 

access for commercial shipments of 

fresh Hass avocados into the continental 

United States for domestic 

consumption. APHIS is finalizing a 

proposed rule that was published on 

January 7, 2009, to grant this request 

provided Peru produces its Hass 

avocados in accordance with a systems 

approach that will include registration 

and monitoring of places of production 

and packinghouses; grove sanitation; 

pest-free areas or trapping for the South 

American fruit fly; pest-free areas or 

treatment for Medfly; surveys for the 

avocado seed moth; and inspection for 

quarantine pests by Peru’s NPPO. Hass 

avocados from Peru will also be 

required to be accompanied by a 

phytosanitary certificate with an 

additional declaration stating that the 

avocados have been inspected for 

quarantine pests and were grown and 

packed in accordance with the 

requirements of this final rule. These 

mitigations will allow for the 

importation of Hass avocados from Peru 

into the United States while providing 

protection against the introduction of 

quarantine pests. Application of the 

mitigation measures in granting Peru’s 

request is consistent with World Trade 

Organization agreements that sanitary 

and phytosanitary regulatory 

restrictions should be based on 

scientific evidence and applied only to 

the extent necessary to protect human, 

animal, and plant health. 

The Regulatory Flexibility Act of 1980 

requires agencies to evaluate the 

potential effects of proposed and final 

rules on small businesses, small 

organizations, and small governmental 

jurisdictions. Section 605 of the Act 

allows an agency to certify a rule if the 

proposed rulemaking will not have a 

significant economic impact on a 

substantial number of small entities. 

APHIS has determined this to be the 

case for this final rulemaking, and this 

analysis provides the factual basis for 

such certification in this case. 

The United States is the world’s 

leading importer of all fresh Hass 

avocados, with imports between 60 and 

75 percent of total world exports 

annually. Japan and Canada rank a 

distant second and third with combined 

imports of 18 to 20 percent annually. 

Mexico and Chile account for 

approximately 50 and 30 percent, 

respectively, of U.S. imports of Hass 

avocados.6 The United States exports 

less than 1.5 percent of its production, 

whereas U.S. consumption is more than 

double production. While the final rule 

is consistent with World Trade 

Organization agreements that sanitary 

and phytosanitary regulatory 

restrictions should be based on 

scientific evidence and applied only to 

the extent necessary to protect human, 

animal, and plant health, it will have 

the added benefit in meeting an average 

annual increase in domestic market 

demand for Hass avocados. 

APHIS received several comments 

based on the findings of the initial 

regulatory flexibility analysis (IRFA) 

prepared for the proposed rule; 

however, after careful consideration 

none was found to contain significant 

issues that would require a reevaluation 

of the proposed regulations. We address 

these comments in detail in the 

Background section of this document. 

Impact on Small Entities 

The final rule may directly affect U.S. 

domestic producers of Hass avocados, as 

well as firms responsible for packing 

and shipping these commodities for 

domestic and foreign markets. We find 

that a substantial number of these 

businesses are small entities, according 

to Small Business Administration (SBA) 

guidelines and based on 2002 Census of 

Agriculture data. SBA classifies 

producers within the category Other 

Non-Citrus Fruit Farming (NAICS 

111339) having annual sales of not more 

than $750,000 as small entities. 

California is the largest U.S. producer of 

avocados, accounting for approximately 

86 percent of all production and nearly 

all Hass avocado production. According 

to the 2002 Census of Agriculture 

Summary and State Data report, there 

were a total of 6,251 avocado farms in 

the United States in 2002, with 

California farms representing 

approximately 85 percent (or 4,801 

farms) of this total.7 Of the remaining 

farms, 839 are located in Florida, 601 

are located in Hawaii, and 10 are 

located in Texas. 

APHIS does not have information on 

the size distribution of the total U.S. 

avocado producers, but according to the 

2002 Census of Agriculture, there were 

a total of 95,680 Fruit and Tree Nut 

farms (NAICS 1113) in the United States 

in 2002.8 Of this number, nearly 99 

percent had annual sales in 2002 of less 

than $500,000, which is well below the 

SBA’s small-entity threshold of 

$750,000.9 While cash receipts by size 

for avocado farms were not reported in 

the 2002 Census of Agriculture, it is 

reasonable to assume that most of the 

6,251 domestic avocado farms currently 

in operation qualify as small entities. 

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10 Federal Register / Vol. 75, No. 1 / Monday, January 4, 2010 / Rules and Regulations 

10 Go to http://www.regulations.gov/fdmspublic/ 

component/main?main=DocketDetail&d=APHIS2008-0126. The environmental assessment and 

finding of no significant impact will appear in the 

resulting list of documents. 

Avocado packing and shipping 

establishments, those engaged in 

postharvest crop activities (NAICS 

115114), are also expected to be small 

according to SBA guidelines. The smallentity standard for packinghouses is 

$6.5 million or less in annual receipts. 

In 2004, the California Avocado 

Commission reported that 51 companies 

were active handlers of California 

avocados at the end of October 2003. Of 

this number, 18 companies had first 

sales of avocados of under $10,000; 8 

companies had avocado sales of 

between $10,000 and $49,999; 5 

companies had sales from $50,000 to 

$99,999; 5 companies had sales from 

$100,000 to $499,999; 2 companies had 

sales from $500,000 to $999,999; 2 

companies had sales from $1 million to 

$4,999,999; 1 company had sales from 

$5 million to $9,999,999; 2 companies 

had sales from $10 million to 

$19,999,999; 6 companies had sales 

from $20 million to $49,999,999; and 2 

companies sold over $50 million worth 

of California avocados. This information 

indicates that 40 of the 51 firms are 

small entities. We conclude that the 

majority of the handlers that will be 

affected by the rule are small entities. 

According to the Peru Avocado 

Growers Association, exporters expect 

to ship approximately 19,000 metric 

tons of fresh Hass avocados per year 

from Peru to the United States. The 

projected imports are roughly 5 percent 

of U.S. fresh avocado consumption and 

11 percent of U.S. fresh avocado 

production. It is highly likely, however, 

that at least a portion of the projected 

imports from Peru will displace imports 

from other foreign sources when fresh 

avocado supplies are low and demand 

is high. If no displacement were to 

occur, projected fresh avocado imports 

from Peru will represent an increase in 

fresh avocado imports of 9 percent. The 

extent to which displacement occurs is 

a critical factor affecting the size of 

potential impacts of this final rule, but, 

even under the conservative estimate of 

zero displacement, overall net benefits 

are expected to be positive. In the 

analysis of expected price and welfare 

impacts of the IRFA, we examined 

effects of the projected level of fresh 

avocado imports from Peru if none, 11 

percent, or 24 percent of the imports 

were to displace fresh avocado imports 

from other countries. We compared the 

price and welfare effects for two sets of 

demand and supply elasticities and 

quantified the welfare effects. The 

higher the level of displacement of 

imports from other countries, the 

smaller the price decline, and the 

smaller the welfare losses for producers 

and welfare gains for consumers. In all 

cases, the model results showed positive 

net benefits overall. 

In addition to considering the effects 

for three possible levels of displacement 

of fresh avocado imports from other 

sources, we analyzed the sensitivity of 

the results to different quantities of 

fresh Hass avocados imported from 

Peru. We calculated the price and 

welfare effects assuming the avocado 

imports to be 50 percent less or 50 

percent greater than the 19,000 metric 

tons projected by Peru. Given the 

linearity of the model used to assess 

welfare impacts, this sensitivity analysis 

yielded changes in welfare that are 

proportional to the assumed levels of 

imports. Reasonably, some portion of 

the imports from Peru will likely 

displace existing imports, and price and 

welfare effects of the rule for U.S. 

entities will be thereby moderated. The 

results of the sensitivity analysis 

indicate that consumers may be 

positively affected and U.S. producers 

may be negatively affected by a decline 

in market prices ranging between 1 

percent and 6 percent, depending on the 

price elasticities of demand and supply 

and displacement ranging from 11 to 24 

percent of fresh avocado imports from 

Peru. Net welfare gains for these same 

levels of displacement range from $2.9 

million to $17.8 million. In all of the 

modeled scenarios, consumer gains 

resulting from the final rule were found 

to exceed U.S. producer losses. 

Nevertheless, producer prices are 

estimated to continue to decline in the 

long run, which may continue to 

negatively impact producer revenues. 

As producer receipts decline, so shall 

revenues for avocado handlers. As 

domestic demand experiences an 

average annual increase for this 

specialty product, the modeled results 

for all scenarios in the long run showed 

positive net benefits overall. 

We conclude that, while small 

producing entities will be affected by 

the final rule, the overall net changes in 

welfare of allowing the importation of 

fresh Hass avocados from Peru under 

the specified systems approach are 

likely to be positive given the sizable 

domestic demand for Hass avocados 

given the available domestic supply. 

Under these circumstances, the 

Administrator of the Animal and Plant 

Health Inspection Service has 

determined that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Executive Order 12988 

This final rule allows Hass avocados 

to be imported into the United States 

from Peru. State and local laws and 

regulations regarding avocados 

imported under this rule will be 

preempted while the fruit is in foreign 

commerce. Fresh avocados are generally 

imported for immediate distribution and 

sale to the consuming public, and 

remain in foreign commerce until sold 

to the ultimate consumer. The question 

of when foreign commerce ceases in 

other cases must be addressed on a caseby-case basis. No retroactive effect will 

be given to this rule, and this rule will 

not require administrative proceedings 

before parties may file suit in court 

challenging this rule. 

National Environmental Policy Act 

An environmental assessment and 

finding of no significant impact have 

been prepared for this final rule. The 

environmental assessment provides a 

basis for the conclusion that the 

importation of Hass avocados from Peru 

under the systems approach required by 

this final rule will 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 (NEPA), as amended (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). 

The environmental assessment and 

finding of no significant impact may be 

viewed on the Regulations.gov Web 

site.10 Copies of the environmental 

assessment and finding of no significant 

impact are also 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. 

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Federal Register / Vol. 75, No. 1 / Monday, January 4, 2010 / Rules and Regulations 11 

Paperwork Reduction Act 

In accordance with the Paperwork 

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

et seq.), the information collection or 

recordkeeping requirements included in 

this rule have been approved by the 

Office of Management and Budget 

(OMB) under OMB control number 

0579–0355. 

E-Government Act Compliance 

The Animal and Plant Health 

Inspection Service is committed to 

compliance with the E-Government Act 

to promote the use of the Internet and 

other information technologies, to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. For information pertinent to 

E-Government Act compliance related 

to this rule, please contact Mrs. Celeste 

Sickles, APHIS’ Information Collection 

Coordinator, at (301) 851–2908. 

List of Subjects 

7 CFR Part 305 

Irradiation, Phytosanitary treatment, 

Plant diseases and pests, Quarantine, 

Reporting and recordkeeping 

requirements. 

7 CFR Part 319 

Coffee, Cotton, Fruits, Imports, Logs, 

Nursery stock, Plant diseases and pests, 

Quarantine, Reporting and 

recordkeeping requirements, Rice, 

Vegetables. 

■ Accordingly, we are amending 7 CFR 

parts 305 and 319 as follows: 

PART 305—PHYTOSANITARY 

TREATMENTS 

■ 1. The authority citation for part 305 

continues to read as follows: 

Authority: 7 U.S.C. 7701–7772 and 7781– 

7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 

2.80, and 371.3. 

■ 2. In § 305.2, the table in paragraph 

(h)(2)(i) is amended by adding in 

alphabetical order, under Peru, a new 

entry for ‘‘Avocado’’ to read as follows: 

§ 305.2 Approved treatments. 

* * * * * 

(h) * * * 

(2) * * * 

(i) * * * 

Location Commodity Pest Treatment schedule 

* * * * * * * 

Peru.

* * * * * * * 

Avocado ............................. Ceratitis capitata ................ MB T101–c–1, MB&CT T108–a–1, MB&CT T108–a–2, 

MB&CT T108–a–3, CT T107–a. 

* * * * * * * 

* * * * * 

PART 319—FOREIGN QUARANTINE 

NOTICES 

■ 3. 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. 

■ 4. A new § 319.56–50 is added to read 

as follows: 

§ 319.56–50 Hass avocados from Peru. 

Fresh Hass variety avocados (Persea 

americana P. Mill.) may be imported 

into the continental United States from 

Peru only under the conditions 

described in this section. These 

conditions are designed to prevent the 

introduction of the following quarantine 

pests: Anastrepha fraterculus 

(Wiedemann), the South American fruit 

fly; Ceratitis capitata (Wiedemann), the 

Mediterranean fruit fly; Coccus viridis 

(Green), the green scale; Ferrisia 

malvastra (McDaniel), a mealybug; and 

Stenoma catenifer Walsingham, the 

avocado seed moth. 

(a) General requirements. (1) The 

national plant protection organization 

(NPPO) of Peru must provide a 

workplan to APHIS that details the 

activities that the NPPO of Peru will, 

subject to APHIS’ approval of the 

workplan, carry out to meet the 

requirements of this section. The NPPO 

of Peru must also establish a trust fund 

in accordance with § 319.56–6. 

(2) The avocados must be grown at 

places of production that are registered 

with the NPPO of Peru and that meet 

the requirements of this section. 

(3) The avocados must be packed for 

export to the United States in 

packinghouses that are registered with 

the NPPO of Peru and that meet the 

requirements of this section. 

(4) Avocados from Peru may be 

imported in commercial consignments 

only. 

(b) Monitoring and oversight. (1) The 

NPPO of Peru must visit and inspect 

registered places of production monthly, 

starting at least 2 months before harvest 

and continuing until the end of the 

shipping season, to verify that the 

growers are complying with the 

requirements of paragraphs (c) and (g) of 

this section and follow pest control 

guidelines, when necessary, to reduce 

quarantine pest populations. If trapping 

is conducted under paragraph (d)(2) of 

this section, the NPPO of Peru must also 

verify that the growers are complying 

with the requirements in those 

paragraphs and must certify that each 

place of production has effective fruit 

fly trapping programs. Any personnel 

conducting trapping and pest surveys 

under paragraphs (d)(2) or (f) of this 

section must be trained and supervised 

by the NPPO of Peru. APHIS may 

monitor the places of production if 

necessary. 

(2) In addition to conducting fruit 

inspections at the packinghouses, the 

NPPO of Peru must monitor 

packinghouse operations to verify that 

the packinghouses are complying with 

the requirements of paragraph (h) of this 

section. 

(3) If the NPPO of Peru finds that a 

place of production or packinghouse is 

not complying with the requirements of 

this section, no fruit from the place of 

production or packinghouse will be 

eligible for export to the United States 

until APHIS and the NPPO of Peru 

conduct an investigation and 

appropriate remedial actions have been 

implemented. 

(4) The NPPO of Peru must retain all 

forms and documents related to export 

program activities in places of 

production and packinghouses for at 

least 1 year and, as requested, provide 

them to APHIS for review. 

(c) Grove sanitation. Avocado fruit 

that has fallen from the trees must be 

removed from each place of production 

at least once every 7 days, starting 2 

months before harvest and continuing to 

the end of harvest. Fallen avocado fruit 

may not be included in field containers 

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12 Federal Register / Vol. 75, No. 1 / Monday, January 4, 2010 / Rules and Regulations 

of fruit brought to the packinghouse to 

be packed for export. 

(d) Mitigation measures for A. 

fraterculus. Places of production must 

meet one of the following requirements 

for A. fraterculus: 

(1) Pest-free area. The avocados must 

be produced in a place of production 

located in an area that is designated as 

free of A. fraterculus in accordance with 

§ 319.56–5. 

(2) Place of production with low pest 

prevalence. (i) Beginning at least 1 year 

before harvest begins and continuing 

through the end of the harvest, trapping 

must be conducted in registered places 

of production with at least 1 trap per 

0.2 square kilometers (km2) to 

demonstrate that the places of 

production have a low prevalence of A. 

fraterculus. APHIS-approved traps 

baited with APHIS-approved plugs must 

be used and serviced at least once every 

2 weeks. 

(ii) During the trapping, when traps 

are serviced, if A. fraterculus are 

trapped at a particular place of 

production at cumulative levels above 

0.7 flies per trap per day, pesticide bait 

treatments must be applied in the 

affected place of production in order for 

the place of production to remain 

eligible to export avocados to the United 

States. The NPPO of Peru must keep 

records of fruit fly detections for each 

trap, update the records each time the 

traps are checked, and make the records 

available to APHIS inspectors upon 

request. 

(e) Mitigation measures for C. 

capitata. Places of production must 

meet one of the following requirements 

for C. capitata: 

(1) Pest-free area. The avocados must 

be produced in a place of production 

located in an area that is designated as 

free of C. capitata in accordance with 

§ 319.56–5. 

(2) Treatment. Avocados from Peru 

must be treated for C. capitata in 

accordance with part 305 of this 

chapter. 

(f) Surveys for S. catenifer. 

(1) Peruvian departamentos in which 

avocados are grown for export to the 

United States must be surveyed by the 

NPPO of Peru at least once annually, no 

more than 2 months before harvest 

begins, and found to be free from 

infestation by S. catenifer. APHIS must 

approve the survey protocol used to 

determine and maintain pest-free status 

and the actions to be performed if S. 

catenifer is detected. Surveys must 

include representative areas from all 

parts of each registered place of 

production in each departamento. The 

NPPO of Peru must cut and inspect a 

biometric sample of fruit at a rate 

determined by APHIS. Fruit sampled 

must be either from the upper half of the 

tree or from the ground. Sampled fruit 

must be cut and examined for the 

presence of eggs and larvae of S. 

catenifer in the pulp or seed and for the 

presence of eggs in the pedicel. 

(2) If one or more S. catenifer is 

detected in the annual survey, or during 

any other monitoring or inspection 

activity, the affected place of production 

will be immediately suspended from the 

export program until appropriate 

measures to reestablish pest freedom, 

agreed upon by the NPPO of Peru and 

APHIS, have been taken. The NPPO of 

Peru must keep records of S. catenifer 

detections for each orchard, update the 

records each time the orchards are 

surveyed, and make the records 

available to APHIS inspectors upon 

request. The records must be 

maintained for at least 1 year after the 

beginning of the harvest. 

(g) Harvesting requirements. 

Harvested avocados must be placed in 

field cartons or containers that are 

marked with the official registration 

number of the place of production. The 

place of production where the avocados 

were grown must remain identifiable 

when the fruit leaves the grove, at the 

packinghouse, and throughout the 

export process. The fruit must be moved 

to a registered packinghouse within 3 

hours of harvest or must be protected 

from fruit fly infestation until moved. 

The fruit must be safeguarded by an 

insect-proof screen or plastic tarpaulin 

while in transit to the packinghouse and 

while awaiting packing. 

(h) Packinghouse requirements. 

(1) During the time registered 

packinghouses are in use for packing 

avocados for export to the United States, 

the packinghouses may only accept 

avocados that are from registered places 

of production and that are produced in 

accordance with the requirements of 

this section. 

(2) Avocados must be packed within 

24 hours of harvest in an insectexclusionary packinghouse. All 

openings to the outside of the 

packinghouse must be covered by 

screening with openings of not more 

than 1.6 mm or by some other barrier 

that prevents pests from entering. 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. 

(3) Before packing, all avocados must 

be cleaned of all plant debris. 

(4) Fruit must be packed in insectproof packaging, or covered with insectproof mesh or a plastic tarpaulin, for 

transport to the United States. These 

safeguards must remain intact until 

arrival in the United States. 

(5) Shipping documents 

accompanying consignments of 

avocados from Peru that are exported to 

the United States must include the 

official registration number of the place 

of production at which the avocados 

were grown and must identify the 

packing shed or sheds in which the fruit 

was processed and packed. This 

identification must be maintained until 

the fruit is released for entry into the 

United States. 

(i) NPPO of Peru inspection. 

Following any post-harvest processing, 

inspectors from the NPPO of Peru must 

inspect a biometric sample of fruit from 

each place of production at a rate to be 

determined by APHIS. The inspectors 

must visually inspect for the quarantine 

pests listed in the introductory text of 

this section and must cut fruit to inspect 

for S. catenifer. Unless the avocados 

were produced in a pest-free area as 

described in paragraph (d)(1) of this 

section, the inspectors must cut fruit to 

inspect for A. fraterculus. Unless the 

avocados were produced in a pest-free 

area as described in paragraph (e)(1) of 

this section, the inspectors must cut 

fruit to inspect for C. capitata. If any 

quarantine pests are detected in this 

inspection, the place of production 

where the infested avocados were grown 

will immediately be suspended from the 

export program until an investigation 

has been conducted by APHIS and the 

NPPO of Peru and appropriate 

mitigations have been implemented. If 

C. capitata is detected, avocados from 

the place of production where the 

infested avocados were produced may 

be imported into the United States only 

if treated with an approved treatment 

for C. capitata in accordance with part 

305 of this chapter. 

(j) Phytosanitary certificate. Each 

consignment of Hass avocados imported 

from Peru into the United States must 

be accompanied by a phytosanitary 

certificate issued by the NPPO of Peru 

with an additional declaration stating 

that the avocados in the consignment 

were grown, packed, and inspected and 

found to be free of pests in accordance 

with the requirements of 7 CFR 319.56– 

50. In addition: 

(1) If the avocados were produced in 

an area free of A. fraterculus, the 

phytosanitary certificate must state that 

the avocados in this consignment were 

produced in an area designated as free 

of A. fraterculus in accordance with 7 

CFR 319.56–5. 

(2) If the avocados were produced in 

an area free of C. capitata, the 

phytosanitary certificate must state that 

the avocados in this consignment were 

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Federal Register / Vol. 75, No. 1 / Monday, January 4, 2010 / Rules and Regulations 13 

produced in an area designated as free 

of C. capitata in accordance with 7 CFR 

319.56–5. 

(3) If the avocados have been treated 

for C. capitata prior to export, the 

phytosanitary certificate must state that 

the avocados in the consignment have 

been treated for C. capitata in 

accordance with 7 CFR part 305. 

(Approved by the Office of Management and 

Budget under control number 0579–0355) 

Done in Washington, DC, this 28th day of 

December. 

Cindy Smith, 

Administrator, Animal and Plant Health 

Inspection Service. 

[FR Doc. E9–31182 Filed 12–31–09; 8:45 am] 

BILLING CODE 3410–34–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 50 

RIN 3150–AI01 

[NRC–2007–0008] 

Alternate Fracture Toughness 

Requirements for Protection Against 

Pressurized Thermal Shock Events 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Final rule. 

SUMMARY: The Nuclear Regulatory 

Commission (NRC) is amending its 

regulations to provide alternate fracture 

toughness requirements for protection 

against pressurized thermal shock (PTS) 

events for pressurized water reactor 

(PWR) pressure vessels. This final rule 

provides alternate PTS requirements 

based on updated analysis methods. 

This action is desirable because the 

existing requirements are based on 

unnecessarily conservative probabilistic 

fracture mechanics analyses. This action 

reduces regulatory burden for those 

PWR licensees who expect to exceed the 

existing requirements before the 

expiration of their licenses, while 

maintaining adequate safety, and may 

choose to comply with the final rule as 

an alternative to complying with the 

existing requirements. 

DATES: Effective Date: February 3, 2010. 

ADDRESSES: You can access publicly 

available documents related to this 

document using the following methods: 

Federal e-Rulemaking Portal: Go to 

http://www.regulations.gov and search 

for documents filed under Docket ID 

NRC–2007–0008. Address questions 

about NRC Dockets to Carol Gallagher at 

301–492–3668; e-mail 

Carol.Gallagher@nrc.gov. 

NRC’s Public Document Room (PDR): 

The public may examine publicly 

available documents at the NRC’s PDR, 

Public File Area O1–F21, One White 

Flint North, 11555 Rockville Pike, 

Rockville, Maryland. The PDR 

reproduction contractor will copy 

documents for a fee. 

NRC’s Agencywide Documents Access 

and Management System (ADAMS): 

Publicly available documents created or 

received at the NRC are available 

electronically at the NRC’s Electronic 

Reading Room at http://www.nrc.gov/ 

reading-rm/adams.html. From this page, 

the public can gain entry into ADAMS, 

which provides text and image files of 

NRC’s public documents. If you do not 

have access to ADAMS or if there are 

problems in accessing the documents 

located in ADAMS, contact the NRC’s 

PDR reference staff at 1–800–397–4209, 

or (301) 415–4737, or by e-mail to 

PDR.Resource@nrc.gov. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Veronica M. Rodriguez, Office of 

Nuclear Reactor Regulation, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001; telephone 

(301) 415–3703; e-mail: 

Veronica.Rodriguez@nrc.gov, Mr. 

Matthew Mitchell, Office of Nuclear 

Reactor Regulation, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001; telephone (301) 415– 

1467; e-mail: Matthew.Mitchell@nrc.gov, 

or Mr. Mark Kirk, Office of Nuclear 

Regulatory Research, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001; telephone (301) 251– 

7631; e-mail: Mark.Kirk@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion 

III. Responses to Comments on the Proposed 

Rule and Supplemental Proposed Rule 

IV. Section-by-Section Analysis 

V. Availability of Documents 

VI. Agreement State Compatibility 

VII. Voluntary Consensus Standards 

VIII. Finding of No Significant 

Environmental Impact: Availability 

IX. Paperwork Reduction Act Statement 

X. Regulatory Analysis 

XI. Regulatory Flexibility Act Certification 

XII. Backfit Analysis 

XIII. Congressional Review Act 

I. Background 

PTS events are system transients in a 

PWR in which there is a rapid operating 

temperature cooldown that results in 

cold vessel temperatures with or 

without repressurization of the vessel. 

The rapid cooling of the inside surface 

of the reactor vessel causes thermal 

stresses. The thermal stresses can 

combine with stresses caused by high 

pressure. The aggregate effect of these 

stresses is an increase in the potential 

for fracture if a pre-existing flaw is 

present in a material susceptible to 

brittle failure. The ferritic, low alloy 

steel of the reactor vessel beltline 

adjacent to the core, where neutron 

radiation gradually embrittles the 

material over the lifetime of the plant, 

can be susceptible to brittle fracture. 

The current PTS rule, described in 

§ 50.61, ‘‘Fracture Toughness 

Requirements for Protection against 

Pressurized Thermal Shock Events,’’ 

adopted on July 23, 1985 (50 FR 29937), 

establishes screening criteria below 

which the potential for a reactor vessel 

to fail due to a PTS event is deemed to 

be acceptably low. These screening 

criteria effectively define a limiting 

level of embrittlement beyond which 

operation cannot continue without 

further plant-specific evaluation. 

A licensee may not continue to use a 

reactor vessel with materials predicted 

to exceed the screening criteria in 

§ 50.61 without implementing 

compensatory actions or additional 

plant-specific analyses unless the 

licensee receives an exemption from the 

requirements of the rule. Acceptable 

compensatory actions are neutron flux 

reduction, plant modifications to reduce 

the PTS event probability or severity, 

and reactor vessel annealing, which are 

addressed in §§ 50.61(b)(3), (b)(4), and 

(b)(7); and 50.66, ‘‘Requirements for 

Thermal Annealing of the Reactor 

Pressure Vessel.’’ 

Currently, no operating PWR vessel is 

projected to exceed the § 50.61 

screening criteria before the expiration 

of its 40 year operating license. 

However, several PWR vessels are 

approaching the screening criteria, 

while others are likely to exceed the 

screening criteria during the extended 

period of operation of their first license 

renewal. 

The NRC’s Office of Nuclear 

Regulatory Research (RES) developed a 

technical basis that supports updating 

the PTS regulations. This technical basis 

concluded that the risk of through-wall 

cracking due to a PTS event is much 

lower than previously estimated. This 

finding indicated that the screening 

criteria in § 50.61 are unnecessarily 

conservative and may impose an 

unnecessary burden on some licensees. 

Therefore, the NRC developed a 

proposed new rule, § 50.61a, ‘‘Alternate 

Fracture Requirements for Protection 

against Pressurized Thermal Shock 

Events,’’ providing alternate screening 

criteria and corresponding 

embrittlement correlations based on the 

updated technical basis. The NRC 

decided that providing a new section 

containing the updated screening 

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