This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

29680 

Vol. 75, No. 102 

Thursday, May 27, 2010 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 319 

[Docket No. APHIS-2008-0016] 

RIN 0579-AD15 

Importation of Mexican Hass 

Avocados; Additional Shipping 

Options 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Proposed rule. 

SUMMARY: We are proposing to amend 

our regulations for the importation of 

Hass avocados originating in 

Michoacan, Mexico, into the United 

States by adding the option to ship 

avocados to the United States in bulk 

shipping bins when safeguarding is 

maintained from the packinghouse to 

the port of first arrival in the United 

States and by making it clear that the 

avocados may be shipped by land, sea, 

or air. We are also proposing to allow 

avocados from multiple packinghouses 

that participate in the avocado export 

program to be combined into one 

consignment. We are proposing these 

actions in response to requests from the 

Government of Mexico and inquiries 

from a U.S. maritime port. These actions 

will allow additional options for 

shipping Hass avocados from Mexico to 

the United States and allow Mexican 

exporters to ship full container or truck 

loads from multiple packinghouses 

while continuing to provide an 

appropriate level of protection against 

the introduction of plant pests. 

DATES: We will consider all comments 

that we receive on or before July 26, 

2010. 

ADDRESSES: You may submit comments 

by either of the following methods: 

∑ Federal eRulemaking Portal: Go to 

(http://www.regulations.gov/

fdmspublic/component/main?main=

DocketDetail&d=APHIS-2008-0016) to 

submit or view comments and to view 

supporting and related materials 

available electronically. 

∑ Postal Mail/Commercial Delivery: 

Please send one copy of your comment 

to Docket No. APHIS-2008-0016, 

Regulatory Analysis and Development, 

PPD, APHIS, Station 3A-03.8, 4700 

River Road Unit 118, Riverdale, MD 

20737-1238. Please state that your 

comment refers to Docket No. APHIS2008-0016. 

Reading Room: You may read any 

comments that we receive on this 

docket in our reading room. The reading 

room is located in room 1141 of the 

USDA South Building, 14th Street and 

Independence Avenue SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 690-2817 before 

coming. 

Other Information: Additional 

information about APHIS and its 

programs is available on the Internet at 

(http://www.aphis.usda.gov). 

FOR FURTHER INFORMATION CONTACT: Mr. 

David B. Lamb, Import Specialist, 

Regulatory Coordination and 

Compliance, PPQ, APHIS, 4700 River 

Road Unit 133, Riverdale, MD 20737- 

1236; (301) 734-0627. 

SUPPLEMENTARY INFORMATION: 

Background 

The regulations in ‘‘Subpart–Fruits 

and Vegetables’’ (7 CFR 319.56-1 

through 319.56-50) 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, 

including fruit flies, that are new to or 

not widely distributed within the 

United States. 

Under the regulations in § 319.56-30 

(referred to below as the regulations), 

fresh Hass avocado fruit grown in 

approved orchards in approved 

municipalities in Michoacan, Mexico, 

may be imported into specified areas of 

the United States after meeting the 

requirements of a systems approach. 

The systems approach, which is 

described in the regulations, includes 

surveys for pathway pests in 

municipalities and orchards; 

municipality, orchard, and 

packinghouse certification; protection of 

harvested fruit from infestation; 

shipment in sealed, refrigerated trucks 

or containers; and the cutting and 

inspection of fruit in orchards, in 

packinghouses, and at ports of entry. 

The overlap of the phytosanitary 

measures helps ensure the effectiveness 

of the systems approach. 

This systems approach has been 

successful mitigating the pest risk of 

Hass avocados. Between 1997 and 2006, 

more than 28 million Hass avocados 

from Mexico were cut open and 

examined for pests. These included fruit 

from wild trees, backyards, and 

packinghouses and fruit selected at the 

border for inspection. During this time, 

only twice were pests associated with 

Mexican avocados detected. In both 

cases, a small avocado seed weevil, 

Contrachelus perseae, was found on 

backyard trees in avocados that were not 

of the Hass variety. Both municipalities 

where these avocados originated were 

suspended from the program until 

eradication actions were completed. 

Due largely to the success of the 

systems approach in mitigating the pest 

risk associated with Hass avocados, the 

Mexican Hass avocado import program 

has expanded from avocados being 

authorized for entry only during the 

months of November through February 

and only in 19 northeastern States and 

the District of Columbia to its current 

state, with avocados being allowed entry 

year-round to all 50 States. 

Given the long-term success and 

stability of the Mexican avocado import 

program, the national plant protection 

organization (NPPO) of Mexico has 

asked us to consider adjustments to the 

program to two aspects of the program 

in order to provide greater flexibility to 

packers and shippers. These requested 

adjustments, which are explained in 

detail below, would allow avocados to 

be shipped in bulk bins and in ship 

holds rather than only overland in 

boxes, and would enable shippers to 

place consignments from more than one 

packinghouse in a truck or shipping 

container. 

As a result of these requests, the 

Animal and Plant Health Inspection 

Service (APHIS) has reviewed the pest 

risks associated with the importation of 

Hass avocados originating in 

Michoacan, Mexico, in bulk shipping 

bins to maritime ports in the United 

States, and have prepared a risk 

management document summarizing 

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Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Proposed Rules 29681 

1The risk management document, titled 

‘‘Importation of Fresh Commercial Avocado (Persea 

americana Mill var. Hass) Fruit in Bulk Shipments 

from Mexico into the United States,’’ can be viewed 

on the Regulations.gov Web site (see ADDRESSES

above for instructions for accessing 

Regulations.gov) or in our reading room. A copy 

may also be obtained from the person listed under 

FOR FURTHER INFORMATION CONTACT. 

the findings of that review.1 In that 

document, we conclude that as long as 

proper screening or safeguarding of 

exposed bulk loads and consignments 

from multiple packinghouses is 

maintained and the remaining 

additional safeguards in the regulations 

are employed, there would be no 

additional pest risk involved. 

We therefore propose to amend the 

regulations governing the importation of 

Hass avocados originating in 

Michoacan, Mexico, into the United 

States to include an option for the 

avocados to be exported to the United 

States in bulk bins, and to allow 

consignments to be assembled from 

multiple packinghouses under certain 

conditions. The fruit would continue to 

have to meet all the requirements 

already set forth in the regulations. We 

would also amend the regulations to 

make it clear that the avocados may be 

shipped by land, sea, or air. 

Bulk Consignments 

The regulations in § 319.56- 

30(c)(3)(vii) require that the avocados be 

packed in clean, new boxes or clean 

plastic reusable crates. The boxes or 

crates must be clearly marked with the 

identity of the grower, packinghouse, 

and exporter. We established these 

requirements at the inception of the 

avocado import program because 

shipping in small, individually marked 

boxes allows greater capability for 

traceback in the event of a pest 

detection. This method of shipping is 

not efficient, however, and most fruits 

and vegetables are shipped in bulk 

shipping bins. The NPPO of Mexico has 

asked us to allow Hass avocados 

originating in Michoacan to be imported 

in bulk consignments packed in large 

boxes or cardboard bins. 

We would amend the regulations to 

add the option of packing the avocados 

in bulk shipping bins. The bins would 

have to be marked in the same way 

currently required for the boxes or 

crates. 

The regulations also require that 

boxes of avocados must be placed in a 

refrigerated truck or refrigerated 

container and remain in that truck or 

container while in transit through 

Mexico to the port of first arrival in the 

United States. This provision protects 

against the avocados becoming infested 

with fruit flies while in transit. 

However, because the bulk shipping 

containers are open-topped, we propose 

to amend the regulations to specify that 

the boxes, bins, or crates would have to 

be safeguarded from insects by covering 

with a lid, insect-proof mesh, or by 

some other barrier that prevents insects 

from entering the boxes or bins. Those 

safeguards would have to be intact at 

the time the consignment arrives in the 

United States. This will provide an 

additional layer of protection against 

insects of concern. 

The regulations also contain an 

outdated provision requiring that 

between January 31, 2005, and January 

31, 2007, the boxes or crates to be 

marked with a statement that the 

avocados are not for distribution in 

California, Florida, Hawaii, Puerto Rico, 

or U.S. Territories. We would remove 

that sentence. 

Multiple Packinghouses 

The regulations in § 319.56- 

30(c)(3)(viii) require that the boxes of 

avocados must be placed in a 

refrigerated truck or refrigerated 

shipping container and remain in that 

truck or container while in transit 

through Mexico to the port of first 

arrival in the United States. Before 

leaving the packinghouse, the truck or 

container must be secured by the 

Mexican NPPO with a seal that will be 

broken when the truck or container is 

opened. Once sealed, the truck or 

container must remain sealed until it 

reaches the port of first arrival in the 

United States. 

Because of this requirement that the 

truck or container be sealed at the 

packinghouse and not opened until the 

truck or container arrives in the United 

States, shippers are precluded from 

stopping at a second eligible 

packinghouse to ‘‘top off’’ trucks or 

containers that are only partially full at 

the time they leave the first 

packinghouse. The NPPO of Mexico has 

asked us to allow avocados from 

multiple packinghouses that participate 

in the avocado export program to be 

combined into one consignment. 

In response to this request, we 

propose to amend paragraph (c)(3)(viii) 

of § 319.56-30 to specify that the 

refrigerated truck or refrigerated 

container must be secured by the 

Mexican NPPO with a seal that will be 

broken by the Mexican NPPO if the 

truck or container is opened to have 

more avocados added from another 

participating packinghouse. The 

refrigerated truck or refrigerated 

container would then have to be 

resealed by the Mexican NPPO at each 

packinghouse that contributes to the 

shipment and then remain unopened 

until it reaches the port of first arrival 

in the United States or to the port of 

export for bulk shipments. 

Methods of Shipping 

The regulations do not specify any 

particular means of conveyance that 

must be used for transporting avocados 

from Mexico to the United States. When 

the regulations were originally 

established, they did refer to shipments 

moved by truck, rail, or air, but those 

references were in the context of 

provisions that specified where 

shipments could enter the United States 

and the transit corridors within the 

United States through which they could 

travel. Those provisions were necessary 

when the distribution of the avocados 

was limited to 19 northeastern States 

and the District of Columbia and have 

since been removed from the 

regulations. Officials at the maritime 

port of San Diego have expressed an 

interest in receiving consignments of 

Hass avocados from Mexico through 

that port. We have reviewed the 

regulations in light of those inquiries 

and have determined that, in order to 

make it clear that shipments may be 

moved by land, sea, or air, we should 

add references to the port of export in 

Mexico in paragraph (c)(3)(viii) of 

§ 319.56-30 of the regulations. That 

paragraph currently begins ‘‘The boxes 

must be placed in a refrigerated truck or 

refrigerated container and remain in that 

truck or container while in transit 

through Mexico to the port of first 

arrival in the United States.’’ We would 

amend that sentence to refer to ‘‘the port 

of export for consignments shipped by 

air or sea or the port of first arrival in 

the United States for consignments 

shipped by land.’’ We would make a 

similar change at the end of the 

paragraph in the sentence that currently 

refers to trucks and containers 

remaining unopened until they reach 

the port of first arrival in the United 

States. 

Miscellaneous Changes 

We are also proposing to remove 

paragraphs (f) and (g) of § 319.56-30 and 

to redesignate paragraphs (h) and (i) of 

that section as paragraphs (f) and (g). 

Paragraph (f), which specifies that 

avocados may enter the United States 

only through ports of entry located in a 

State where distribution of the fruit is 

authorized, is out of date. Paragraphs (g) 

and (h), which provide for inspection of 

avocados at the port of arrival, are 

duplicative. 

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29682 Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Proposed Rules 

2California Avocado Growers, Pounds and 

Dollars by Variety. (http://www.avocado.org/

growers/poundsdollars.php). 

3California Avocado Growers, Pounds and 

Dollars by Variety (http://www.avocado.org/

growers/poundsdollars.php). 

Executive Order 12866 and Regulatory 

Flexibility Act 

This proposed rule has been 

determined to be not significant for the 

purposes of Executive Order 12866 and, 

therefore, has not been reviewed by the 

Office of Management and Budget. 

This analysis examines impacts for 

U.S. small entities of a proposed rule 

that would allow fresh Hass avocado 

originating in Michoacan, Mexico, to be 

imported into the United States by 

palletized bulk consignments in ship 

holds and in consignments from 

multiple packinghouses when 

phytosanitary safeguarding is 

maintained from the packinghouse to 

the first maritime ports of entry in the 

United States. 

California produces nearly all Hass 

avocado grown in the United States.2 As 

shown in table 1, California’s fresh Hass 

avocado production has fluctuated in 

recent years, and was significantly 

higher in 2006, at about 257,000 metric 

tons (MT) valued at $1.6 billion. During 

this same period, both U.S. 

consumption and imports have trended 

upward, totaling about 443,000 MT and 

about 193,000 MT, respectively, in 

2006. U.S. per capita consumption of 

fresh avocado has shown strong growth, 

from 2.2 pounds in 2002 to nearly 3.3 

pounds in 2006. 

The United States is a large net 

importer of Hass avocado. Over the 5- 

year period 2002-2006, annual imports 

averaged about 172,000 MT, and exports 

averaged less than 3,000 MT. During 

this time, imports provided 44 percent 

of U.S. consumption. Almost all fresh 

Hass avocado imports come from 

Mexico and Chile. As described below, 

the data for the first 11 months of 2007 

show an exceptionally large increase in 

U.S. imports; they totaled nearly 

313,000 MT, an 85 percent increase over 

2006 total imports, with over 95 percent 

shipped from Mexico (64.6 percent) and 

Chile (30.7 percent). 

TABLE 1.—U.S. AVOCADO PRODUCTION, CONSUMPTION, PRICE, EXPORTS AND IMPORTS, 2002-2006, METRIC TONS

Year Production Consumption Price Exports Imports 

2002 169,523 286,686 $2,062 1,849 119,012 

2003 142,271 282,224 $2,494 1,199 141,152 

2004 182,604 326,308 $2,016 1,600 145,304 

2005 126,622 389,498 $2,072 1,331 264,207 

2006 256,858 442,960 $1,283 6,576 192,678 

5-year average 

(2002-2006) 

175,576 345,535 $1,985 2,511 172,470 

Note: Consumption is calculated by subtracting exports from production and adding imports. 

Sources: Production and price data are from California Avocado Growers, Pounds and Dollars by Variety (http://www.avocado.org/growers/

poundsdollars.php) ; export and import data are from the U.S. Census Bureau, as reported by Global Trade Information Services, Inc., Country 

Edition, August 2007. 

Currently, avocado that meets the 

requirements of a systems approach 

described in § 319.56-30, may be 

imported overland from Michoacan, 

Mexico, into all 50 States by truck. This 

proposal would amend the regulations 

for the importation of Hass avocado 

from Mexico into the United States by 

including the option to import avocado 

by palletized bulk consignments in ship 

holds and to combine consignments 

from multiple packinghouses when 

phytosanitary safeguarding is 

maintained from the packinghouse to 

the first maritime port of entry in the 

United States. 

Mexico is the largest producer of Hass 

avocado in the world (about 34 percent 

of world production). Recent data show 

Mexico’s production increasing from 

about 897,000 MT in 2002 to about 

1,072,000 MT in 2006, for an average of 

about 964,500 MT. Mexico is also the 

world’s largest consumer of avocado 

(about 32 percent), with per capita 

consumption averaging 15.6 pounds. 

Mexico’s exports increased from about 

94,000 MT in 2002 to about 208,000 MT 

in 2006, for an average of 152,000 MT. 

Exports to the United States over the 

same period ranged between about 

39,000 MT and about 119,000 MT, and 

averaged about 80,000 MT. 

Not all Hass avocado produced in 

Mexico is eligible to be exported to the 

United States. To be eligible, the 

avocado has to be produced in 

municipalities that are certified as pestfree by APHIS. Currently, APHIS has 

certified 40,266 hectares in 5,293 

avocado orchards for export to the 

United States. Based on an average yield 

of 10.36 MT per hectare, this bearing 

area would yield a total of 417,160 MT. 

This total is far above Mexico’s largest 

recorded exports of 229,095 MT in 2005. 

Mexico’s access to the U.S. Hass 

avocado market has expanded step-bystep over the past 11 years, based on 

successive pest risk assessments: From 

19 northeastern States, November 

through February; to 32 Eastern and 

Midwestern States, mid-October to midApril; to 47 States year-round (all except 

California, Florida and Hawaii). In 2007, 

Mexico’s Hass avocado exporters had 

year-round access to all 50 States for the 

first time. Mexico’s increased access has 

been matched by expanding consumer 

demand. Per-capita avocado 

consumption increased from 1.22 

pounds (total consumption of 325 

million pounds) in 1996, the year before 

the first major entry of Mexican 

avocado, to 3.26 pounds (total 

consumption of 976 million pounds) in 

2006. The strong demand for Hass 

avocado is reflected in the fact that, 

other than for 2006, there has been no 

noticeable decline in price during this 

time.3

As mentioned, total U.S. imports 

increased by about 85 percent during 

the first 11 months of 2007, compared to 

the 2006 total. This sharp increase can 

be attributed to the beginning in 

February 2007 of year-round market 

access to all 50 States for fresh Hass 

avocado from Mexico, a freeze in Chile, 

and a decline in domestic production 

because of wildfires in southern 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Proposed Rules 29683 

4United States Department of Agriculture/ 

Foreign Agricultural Service, Mexico Avocado 

Annual 2007, Global Agricultural Information 

Network Report Number MX7084. 

California. It is unknown whether 

Mexican exports will continue at this 

level when production in Chile and 

California is restored to pre-freeze and 

pre-wildfire levels, although Mexico’s 

exporters have the capacity to do so.4

Because Mexico’s Hass avocado 

exporters have year-around access to all 

50 States and there is no volume 

restriction, any impact of the proposed 

rule on U.S. entities will be determined 

by market forces of supply and demand 

and the extent to which the maritime 

consignments are in addition to rather 

than in place of consignments by truck. 

We welcome public comment that may 

help us to better understand possible 

effects of the rule for U.S. Hass avocado 

producers. 

Effects on Small Entities 

The Small Business Administration 

(SBA) has established guidelines for 

determining which firms are to be 

considered small under the Regulatory 

Flexibility Act. This rule could affect 

U.S. producers of fresh avocado (North 

American Industry Classification 

System [NAICS] 111339) and some 

importers of fresh avocado. Avocado 

growers are classified as small if their 

annual receipts are not more than 

$750,000. 

According to the 2002 Census of 

Agriculture (most recent data on farm 

sizes), there were 4,445 farms producing 

avocado in the United States. Overall, 

4,332 farms (97.5 percent) had a total of 

35,694 acres in avocado (about 60 

percent of the total planted area) and are 

considered small, with an average of 

about 8.2 acres and an average annual 

income of about $48,610 in 2002. The 

remaining 2.5 percent of producers 

planted a total of 23,568 acres (40 

percent) in avocado. They had an 

average of 209 acres and average annual 

income of about $1,230,470. As noted, 

Hass avocado exports from Michoacan, 

Mexico, are currently allowed to enter 

all 50 States throughout the year. Since 

there is no limit to the volume that may 

be shipped, market forces of supply and 

demand and the extent to which the 

maritime consignments are in addition 

to rather than in place of consignments 

by truck will determine the size of any 

market effects of the rule. APHIS 

welcomes public comment on the 

proposed rule’s possible impacts. 

Reporting, Recordkeeping and Other 

Compliance Requirements 

The proposed rule has no new 

mandatory reporting, recordkeeping, or 

other compliance requirements. U.S. 

entities that may be affected by the rule 

voluntarily engage in trade transactions. 

Any reporting or other requirements 

would be those normally associated 

with the regular transactions involved 

in doing business. 

Duplication, Overlap, and Conflict with 

Existing Rules and Regulations 

APHIS has not identified any 

duplication, overlap, or conflict of the 

proposed rule with other Federal rules. 

Alternatives 

No significant alternatives were 

identified that would meet the 

objectives of the proposed rule. 

Executive Order 12988 

This proposed rule would allow Hass 

avocados to be imported into the United 

States from Mexico in bulk 

consignments and in consignments from 

multiple packinghouses when 

phytosanitary safeguarding is 

maintained from the packinghouse to 

the first port of entry in the United 

States. If this proposed rule is adopted, 

State and local laws and regulations 

regarding Hass avocados imported 

under this rule would be preempted 

while the fruit is in foreign commerce. 

Fresh avocados are generally imported 

for immediate distribution and sale to 

the consuming public and would 

remain in foreign commerce until sold 

to the ultimate consumer. The question 

of when foreign commerce ceases in 

other cases must be addressed on a caseby-case basis. If this proposed rule is 

adopted, no retroactive effect will be 

given to this rule, and this rule will not 

require administrative proceedings 

before parties may file suit in court 

challenging this rule. 

Paperwork Reduction Act 

This proposed rule contains no new 

information collection or recordkeeping 

requirements under the Paperwork 

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

seq.). 

List of Subjects in 7 CFR Part 319 

Coffee, Cotton, Fruits, Imports, Logs, 

Nursery stock, Plant diseases and pests, 

Quarantine, Reporting and 

recordkeeping requirements, Rice, 

Vegetables. 

Accordingly, we propose to amend 7 

CFR part 319 as follows: 

PART 319—FOREIGN QUARANTINE 

NOTICES 

1. The authority citation for part 319 

continues to read as follows: 

Authority: 7 U.S.C. 450, 7701-7772, and 

7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 

2.22, 2.80, and 371.3. 

2. Section 319-56.30 is amended as 

follows: 

a. In paragraph (c)(3)(v), by removing 

the words ‘‘shipping boxes’’ and adding 

the words ‘‘containers in which they 

will be shipped’’ in their place. 

b. In paragraph (c)(3)(vi), by removing 

the words ‘‘in boxes’’ and adding the 

words ‘‘for shipping’’ in their place. 

c. By revising paragraphs (c)(3)(vii) 

and (c)(3)(viii) to read as set forth below. 

d. By removing paragraphs (f) and (g) 

and redesignating paragraphs (h) and (i) 

as paragraphs (f) and (g), respectively. 

e. In newly redesignated paragraph 

(g), by adding the words ‘‘, crates, or 

bulk shipping bins’’ after the words 

‘‘original shipping boxes’’ and by 

removing the words ‘‘new boxes’’ and 

adding the words ‘‘new packaging’’ in 

their place. 

§ 319.56-30 Hass avocados from 

Michoacan, Mexico. 

* * * * * 

(c) * * * 

(3) * * * 

(vii) The avocados must be packed in 

clean, new boxes or bulk shipping bins, 

or in clean plastic reusable crates. The 

boxes, bins, or crates must be clearly 

marked with the identity of the grower, 

packinghouse, and exporter, and with 

the statement ‘‘Not for importation or 

distribution in Puerto Rico or U.S. 

Territories.’’ The boxes, bins, or crates 

must be covered with a lid, insect-proof 

mesh, or other material to protect the 

avocados from fruit-fly infestation prior 

to leaving the packinghouse. Those 

safeguards must be intact at the time the 

consignment arrives in the United 

States. 

(viii) The packed avocados must be 

places in a refrigerated truck or 

refrigerated container and remain in that 

truck or container while in transit 

through Mexico to the port of export for 

consignments shipped by air or sea or 

the port of first arrival in the United 

States for consignments shipped by 

land. Prior to leaving the packinghouse, 

the truck or container must be secured 

by the Mexican NPPO with a seal that 

will be broken when the truck or 

container is opened. The seal may be 

broken and a new seal applied by the 

Mexican NPPO if the truck or container 

stops at another approved packinghouse 

for additional avocados meeting the 

requirements of this section to be placed 

in the truck or container. The seal on 

the refrigerated truck or refrigerated 

container must be intact at the time the 

truck or container reaches the port of 

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29684 Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Proposed Rules 

export in Mexico or the port of first 

arrival in the United States. 

* * * * * 

Done in Washington, DC, this 20th day 

of May 2010. 

Kevin Shea 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2010–12823 Filed 5–26–10: 8:45 am] 

BILLING CODE 3410–34–S 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Doc. No. AMS–FV–10–0029; FV10–930–2 

PR] 

Tart Cherries Grown in the States of 

Michigan, et al.; Increased Assessment 

Rate for the 2010–2011 Crop Year for 

Tart Cherries 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule would increase the 

assessment rate established for the 

Cherry Industry Administrative Board 

(Board) for the 2010–2011 fiscal period 

from $0.0066 to $0.0075 per pound of 

assessable tart cherries. The Board 

locally administers the marketing order 

which regulates the handling of tart 

cherries grown in Michigan, New York, 

Oregon, Pennsylvania, Utah, 

Washington, and Wisconsin. 

Assessments upon tart cherry handlers 

are used by the Board to fund 

reasonable and necessary expenses of 

the program. The 2010–2011 fiscal 

period year begins October 1, 2010. The 

assessment rate would remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Comments must be received by 

July 26, 2010. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments must be 

sent to the Docket Clerk, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; Fax: 

(202) 720–8938, or Internet: http:// 

www.regulations.gov. All comments 

should reference the document number 

and the date and page number of this 

issue of the Federal Register and will be 

available for public inspection in the 

Office of the Docket Clerk during regular 

business hours or can be viewed at: 

http://www.regulations.gov. All 

comments submitted in response to this 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth G. Johnson, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, Unit 

155, 4700 River Road, Riverdale, MD 

20737; telephone: (301) 734–5243, Fax: 

(301) 734–5275; E-mail: 

Kenneth.Johnson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Antoinette 

Carter, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; telephone: (202) 720– 

2491, Fax: (202) 720–8938, or E-mail: 

Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

and Order No. 930 (7 CFR part 930), 

regulating the handling of tart cherries 

produced in the States of Michigan, 

New York, Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin, hereinafter 

referred to as the ‘‘order.’’ The order is 

effective under the Agricultural 

Marketing Agreement Act of 1937, as 

amended (7 U.S.C. 601–674), hereinafter 

referred to as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order 

provisions now in effect, tart cherry 

handlers are subject to assessments. 

Funds to administer the order are 

derived from such assessments. It is 

intended that the assessment rate as 

proposed herein would be applicable to 

all assessable tart cherries beginning 

October 1, 2010, and continue until 

amended, suspended, or terminated. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempt therefrom. Such handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 

United States in any district in which 

the handler is an inhabitant, or has his 

or her principal place of business, has 

jurisdiction in equity to review USDA’s 

ruling on the petition, provided an 

action is filed not later than 20 days 

after the date of the entry of the ruling. 

This rule would increase the 

assessment rate established for the 

Board for the 2010–2011 and 

subsequent fiscal periods from $0.0066 

to $0.0075 per pound of assessable tart 

cherries. The 2010–2011 fiscal period 

begins on October 1, 2010, and ends on 

September 30, 2011. 

The tart cherry marketing order 

provides authority for the Board, with 

the approval of USDA, to formulate an 

annual budget of expenses and collect 

assessments from handlers to administer 

the program. The members of the Board 

are producers and handlers of tart 

cherries. They are familiar with the 

Board’s needs and with the costs for 

goods and services in their local area 

and are thus in a position to formulate 

an appropriate budget and assessment 

rate. The assessment rate is formulated 

and discussed in a public meeting. 

Thus, all directly affected persons have 

an opportunity to participate and 

provide input. 

Authority to fix the rate of assessment 

to be paid by each handler and for the 

Board to collect such assessments 

appears in § 930.41 of the order. That 

section also provides that each part of 

an assessment rate intended to cover 

administrative costs and research and 

promotional costs be identified. Section 

930.48 of the order provides that the 

Board, with the approval of the USDA, 

may establish or provide for the 

establishment of production research, 

market research and development, and/ 

or promotional activities designed to 

assist, improve, or promote the 

marketing, distribution, consumption, 

or efficient production of cherries. The 

expense of such projects is paid from 

funds collected pursuant to § 930.41 

(Assessments), or from such other funds 

as approved by the USDA. 

For the 2006–2007 fiscal year, the 

Board recommended, and USDA 

approved, an assessment rate of $0.0066 

per pound of tart cherries handled that 

would continue in effect from fiscal 

period to fiscal period unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Board or other 

information available to USDA. 

The Board met on January 26, 2010, 

and recommended 2010–2011 

expenditures of $1,665,000 and an 

assessment rate of $0.0075 per pound of 

tart cherries. The Board’s 

recommendation was unanimous. In 

comparison, last year’s budgeted 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS