[Federal Register Volume 87, Number 102 (Thursday, May 26, 2022)]
[Rules and Regulations]
[Pages 31937-31940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11367]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 87, No. 102 / Thursday, May 26, 2022 / Rules 
and Regulations

[[Page 31937]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2016-0099]


Decision To Authorize the Importation of Fresh Avocado Fruit From 
Continental Ecuador Into the Continental United States

AGENCY: Animal and Plant Health Inspection Service, Department of 
Agriculture (USDA).

ACTION: Final rulemaking action; notification of decision to import.

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SUMMARY: We are advising the public of our decision to authorize the 
importation of fresh avocado fruit from continental Ecuador into the 
continental United States. Based on the findings of a pest risk 
analysis, which we made available to the public for review and comment, 
we have determined that the application of one or more designated 
phytosanitary measures will be sufficient to mitigate the risks of 
introducing or disseminating plant pests or noxious weeds via the 
importation of fresh avocado fruit from continental Ecuador.

DATES: The articles covered by this notification may be authorized for 
importation after May 26, 2022.

FOR FURTHER INFORMATION CONTACT: Ms. Claudia Ferguson, Senior 
Regulatory Policy Specialist, Regulatory Coordination and Compliance, 
Imports, Regulations, and Manuals, PPQ, APHIS, 4700 River Road, Unit 
133, Riverdale, MD 20737-1231; (301) 851-2352.

SUPPLEMENTARY INFORMATION:

Background

    Under the regulations in ``Subpart L--Fruits and Vegetables'' (7 
CFR 319.56-1 through 319.56-12, referred to below as the regulations), 
the Animal and Plant Health Inspection Service (APHIS) of the United 
States Department of Agriculture (USDA) prohibits or restricts 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.
    Section 319.56-4 contains a performance-based process for approving 
the importation of fruits and vegetables that, based on the findings of 
a pest risk analysis, can be safely imported subject to one or more of 
the five designated phytosanitary measures listed in paragraph (b) of 
that section.
    On June 15, 2018, APHIS published in the Federal Register (83 FR 
27918-27922, Docket No. APHIS-2016-0099) a proposed rule \1\ to 
authorize the importation of fresh avocado from continental Ecuador 
into the continental United States.
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    \1\ To view the proposed rule, go to https://www.regulations.gov, and enter APHIS-2016-0099 in the Search field.
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    The proposed rule was based on a pest risk assessment (PRA) that 
found four quarantine pests to be candidates for pest risk management. 
The quarantine pests were the fruit flies Anastrepha fraterculus 
(Wiedemann), Anastrepha serpentina (Wiedemann), Anastrepha striata 
(Schiner), and Ceratitis capitata (Wiedemann). All avocado varieties 
except the Hass variety are hosts for these quarantine pests. 
Consequently, APHIS proposed to allow the importation of avocados from 
Ecuador into the United States under a systems approach that included 
phytosanitary measures to safeguard against these pests for all 
varieties of avocado except the Hass variety.
    During the public comment period, we received information from a 
commenter that led us to add the avocado seed pest, Stenoma catenifer, 
to a revised PRA. The revised PRA determined that Stenoma catenifer was 
a candidate for pest risk management for all varieties of avocado 
imported from continental Ecuador. In light of this change, we revised 
the risk management document (RMD) to include pest risk management 
measures for Stenoma catenifer for all avocado varieties. We made the 
revised PRA and the revised RMD available for public review and 
reopened the comment period until May 17, 2021, in a document published 
in the Federal Register on April 16, 2021 (86 FR 20037-20038, Docket 
No. APHIS-2016-0099).\2\
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    \2\ To view the PRA, RMD, and the comments that we received, go 
to https://www.regulations.gov, and enter APHIS-2016-0099 in the 
Search field.
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    We received 10 comments by the end of the original comment period 
on August 14, 2018, and 4 additional comments by the end of the 
reopened comment period on May 17, 2021. The comments were from two 
State departments of agriculture, Ecuador's national plant protection 
organization (NPPO), two trade associations, and private individuals.
    The issues raised by the commenters are addressed below.
    One commenter requested that the required buffer zone around pest-
free places of production for Stenoma catenifer be 500 meters instead 
of 1 kilometer. The commenter noted that, according to the cited 
literature, Stenoma catenifer can fly 67 meters per night, implying 
that adults could only move 469 meters during their lifespan.
    While it is true that the cited study found that males flew an 
average of 67 meters in one night, the study also noted that this is 
likely an underestimate of the distance that male moths are capable of 
flying in a single night. Therefore, it should not be assumed based on 
the study that 469 meters is the maximum distance a male moth could fly 
in its life. Stenoma catenifer is a significant pest of avocados and 
the buffer zone is a key component of the systems approach. 
Additionally, we require a buffer zone of 1 kilometer for the 
importation of avocados from Colombia under a systems approach and have 
found this measure to be effective. APHIS will continue to require a 
buffer zone of 1 kilometer around pest-free places of production for 
avocados imported from Ecuador.
    The commenter also asked that we replace the term ``place of 
production'' in the RMD with the term ``production site'' to better 
reflect the nature of the growing sites in Ecuador.
    The International Plant Protection Convention glossary defines a 
place of production as any premises or collection of fields operated as 
a single production or farming unit, and a production site as a defined 
part of a place of production, that is managed as a separate unit for 
phytosanitary

[[Page 31938]]

purposes.\3\ Substituting one term for the other does not substantively 
change the RMD. APHIS has made the requested change.
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    \3\ To view the glossary, go to https://assets.ippc.int/static/media/files/publication/en/2021/05/ISPM_05_2021_En_Glossary_2021-05-27_PostCPM-15_Fixed.pdf.
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    The same commenter, along with another commenter, also asked us to 
replace the term ``municipality'' with the term ``parroquia rural,'' or 
``rural parish,'' to reflect Ecuador's administrative divisions more 
accurately.
    We understand the commenters' concerns and have replaced the term 
``municipality'' with the term ``rural parish'' in the RMD.
    Two commenters stated that there should be more pest control 
measures for Hass avocados.
    Since Stenoma catenifer was added to the PRA, significant additions 
have been made to the pest mitigation measures outlined in the RMD, 
such as survey programs and pest-free sites of production. These 
measures apply to all avocado varieties, including Hass. Other 
requisite phytosanitary measures that apply to all avocado varieties 
include registered sites of production, regular inspections of sites of 
production and packinghouses, and the removal of fallen fruit.
    One commenter encouraged USDA to develop molecular diagnostics for 
the Anastrepha fraterculus group to better identify fruit fly larvae 
during inspections.
    In recent years, APHIS has invested significant resources in 
molecular diagnostic technology, which allows APHIS to identify almost 
any interception in commercial fruit commodities to the species level. 
However, if any Anastrepha spp. fruit flies are intercepted in a 
consignment and identification at the species level is not possible, 
the consignment will be refused entry into the United States 
regardless.
    One commenter stated that cold treatment is not an effective pest 
mitigation measure because fruit fly larvae can survive in untreated 
shipments.
    APHIS is not proposing to use cold treatment as a pest mitigation 
measure for avocado fruit from Ecuador. Rather, avocados from Ecuador 
will be imported under the systems approach outlined in the RMD.
    The commenter also claimed that Ecuador does not have a point-of-
origin protocol for fruit inspection.
    The systems approach requires the NPPO of Ecuador to conduct 
inspections of sites of production, packinghouses, and samples of 
avocado following post-harvest processing. Details of what these 
inspections must entail are included in the RMD, and the inspection 
protocol will be expanded upon further in the operational workplan the 
NPPO will enter into with APHIS.
    The same commenter expressed concern that internal feeders, 
including fruit flies, are difficult to detect during inspections at 
ports of entry.
    U.S. Customs and Border Protection inspects commercial fruit at 
U.S. ports of entry from all over the world and has significant 
experience in detecting pests, including fruit fly larvae. Moreover, 
most avocado varieties are poor fruit fly hosts, and Hass avocados are 
considered non-hosts by APHIS. The systems approach detailed in the RMD 
includes multiple mitigation measures in addition to inspections, 
including pest-free sites of production, trapping for fruit flies, 
removal of fallen fruit, and insect-exclusionary packinghouses. APHIS 
is confident that the systems approach is sufficient to mitigate any 
remaining risk of fruit flies following the pathway of avocados from 
Ecuador.
    The commenter also suggested that avocados should only be 
considered for importation into States that do not have climates 
conducive to the establishment of fruit flies.
    APHIS is confident that the systems approach outlined in the RMD is 
sufficient to mitigate risk of introducing pests to climates conducive 
to the establishment of fruit flies. The commenter did not provide any 
evidence suggesting that the mitigation measures are not effective. 
Therefore, we are not taking the action requested by the commenter.
    The same commenter requested access to trapping records to better 
assess the threat of fruit fly introduction, and access to quality 
control records from Ecuador to verify that traps are being baited and 
checked at appropriate intervals. The commenter also expressed a desire 
to participate in site visits.
    APHIS is committed to a transparent process and an inclusive role 
for stakeholders in our risk analysis process. To that end, we are 
currently considering ways to facilitate further stakeholder 
involvement during the initial stages of the development of PRAs and 
RMDs. However, at this time, APHIS does not routinely provide trapping 
records to stakeholders, nor does it involve stakeholders in site 
visits. APHIS based its PRA on scientific literature, port-of-entry 
pest interception data, and information from the Government of Ecuador. 
The methodology we used to assess the threat of pest introduction is 
summarized in the PRA.
    The systems approach outlined in the RMD includes multiple quality 
control measures to ensure that trapping is carried out appropriately. 
The NPPO of Ecuador must visit and inspect the production sites 
monthly, and the personnel conducting the trapping and pest surveys 
must be hired, trained, and supervised by the NPPO. APHIS will be 
directly involved with the NPPO in monitoring and auditing 
implementation of the systems approach. The commenter did not provide 
any evidence suggesting that the pest risk analysis is inaccurate or 
that trapping will not be carried out effectively.
    Another commenter asked for more mitigation measures for Linda, 
Bola, and Tonashe avocado varieties, stating that there is insufficient 
research regarding these varieties as potential fruit fly hosts.
    As noted earlier, APHIS expects that the mitigation measures in the 
systems approach will be sufficient to remove any fruit flies from the 
pathway of all varieties of avocado fruit from Ecuador. If APHIS finds 
that any avocados have fruit fly larvae, the places of production will 
be suspended pending investigation, and will remain suspended until the 
risk has been mitigated. APHIS will consider suspending varieties, 
places of production, and packinghouses, as well as modifying the 
systems approach, if there are fruit fly interceptions.
    The same commenter also suggested that the PRA should address the 
potential risk of introducing strains of the pest, Xylella fastidiosa, 
not currently found in the United States, such as the subspecies pauca.
    Phytosanitary surveillance conducted by the NPPO of Ecuador has 
found no evidence of Xylella fastidiosa in Ecuador, and the bacteria is 
officially declared absent from that country. Additionally, APHIS has 
no record of Xylella fastidiosa subspecies pauca affecting avocados. 
For these reasons, the bacteria was not included in the PRA, which only 
considers pests that are evidenced to be associated with avocado and 
present in Ecuador.
    Another commenter asked that, in lieu of the requirement that no 
fruit fly hosts be grown within 100 meters of the edge of the 
production site, growers should be able to control the fruit flies via 
methods such as the elimination of overripe fruit, burial of fallen 
fruits, and installation of bait stations.

[[Page 31939]]

    This requirement prevents the attraction of fruit flies to hosts 
adjacent to the avocado crop, creating a barrier that helps protect the 
avocados from pests. APHIS considers it a crucial part of the systems 
approach. Therefore, we are not removing this requirement.
    The commenter also appeared to state that the NPPO of Ecuador will 
not include details of the trapping program in the operational workplan 
they provide to APHIS because they will approve the production sites as 
pest free areas.
    APHIS is unclear on the commenter's reasoning. The operational 
workplan will need to include details of the trapping program for the 
fruit flies before importations of avocados from Ecuador into the 
United States can proceed under a systems approach. This is the case 
whether the trapping occurs under the auspices of a program to maintain 
a pest-free area for the fruit flies in question or not.
    Finally, a commenter expressed concern that imports of avocados 
from Ecuador would reduce imports from Michoac[aacute]n, Mexico, 
thereby harming that country's economy.
    As a signatory to the World Trade Organization's Agreement on 
Sanitary and Phytosanitary Measures (SPS Agreement), the United States 
has agreed that any prohibitions it places on the importation of fruits 
and vegetables will be based on scientific evidence related to 
phytosanitary measures and issues, and will not be maintained without 
sufficient scientific evidence. Prohibiting imports based on economic 
considerations such as those brought up by the commenter would not be 
in keeping with this agreement.
    That being said, we do not anticipate that this action will have a 
meaningful impact on the amount of avocados that Mexico exports to the 
United States. Mexico exports approximately 500,000 metric tons of 
avocados to the United States a year, while Ecuador is anticipated to 
export approximately 1 percent of that amount. Even if Ecuador avocados 
were to displace some Mexican exports of avocados to the United States, 
the disparity between the amounts exported by each country strongly 
suggests that any impact on Mexico would be negligible.
    Finally, we note that the proposed rule was issued prior to the 
October 15, 2018, effective date of a final rule \4\ that revised the 
regulations in Sec.  319.56-4 by broadening an existing performance 
standard to provide that all revisions to existing requirements for the 
importation of fruits and vegetables into the United States will use a 
notice-based process. That final rule also specified that region- or 
commodity-specific phytosanitary requirements for fruits and vegetables 
would no longer be found in the regulations, but instead in APHIS' 
Fruits and Vegetables Import Requirements database (FAVIR). With those 
changes to the regulations, we cannot issue the final regulations as 
contemplated in our June 2018 proposed rule and are therefore 
discontinuing that rulemaking without a final rule. Instead, it is 
necessary for us to finalize this action through the issuance of a 
notification.
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    \4\ 83 FR 46627 (September 14, 2018). To view the final rule, go 
to www.regulations.gov and enter APHIS-2010-0082 in the Search 
field.
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    Therefore, in accordance with the regulations in Sec.  319.56-
4(c)(3)(iii), we are announcing our decision to authorize the 
importation of commercial consignments of fresh avocado fruit from 
continental Ecuador into the continental United States subject to the 
following phytosanitary measures, which will be listed in FAVIR, 
available at https://epermits.aphis.usda.gov/manual.
    Phytosanitary measures for all varieties of Ecuador avocados:
    <bullet> The NPPO of Ecuador must provide an operational workplan 
to APHIS that details the activities that the NPPO of Ecuador will, 
subject to APHIS' approval of the workplan, carry out to meet the 
requirements of the systems approach.
    <bullet> Avocados must be grown in sites of production that are 
registered with the NPPO of Ecuador. The NPPO of Ecuador must visit and 
inspect registered sites of production monthly, starting at least 2 
months before harvest and continuing until the end of the shipping 
season.
    <bullet> The NPPO must register packinghouses that intend to export 
avocados to the United States, as well as inspect and monitor the 
operations of the packinghouses.
    <bullet> If the NPPO of Ecuador finds that a site of production or 
packinghouse is not complying with the requirements of the systems 
approach, no fruit from the production site or packinghouse will be 
eligible for export to the United States until APHIS and the NPPO of 
Ecuador conduct an investigation and appropriate remedial actions have 
been implemented.
    <bullet> The NPPO of Ecuador must review and maintain all forms and 
documents related to export program activities in sites of production 
and packinghouses for at least 1 year and, if requested, provide them 
to APHIS for review.
    <bullet> Avocados must be grown in pest-free sites of production 
for the avocado seed pest, Stenoma catenifer, established and 
maintained in accordance with international standards. APHIS must 
approve the survey protocol used by the NPPO of Ecuador to determine 
and maintain pest free status.
    <bullet> If the avocados are grown in a rural parish free of 
Stenoma catenifer, the rural parish must be surveyed every 6 months 
(twice a year) for the pest. Representative areas of the rural parish 
where there are avocado trees, including production sites and urban 
areas, must be sampled.
    <bullet> If the avocados are grown in a rural parish not completely 
free of Stenoma catenifer, the NPPO of Ecuador can certify individual 
sites of production as pest free. The surveys for pest-free sites of 
production must include representative areas from all parts of each 
registered site of production and a buffer zone of 1 kilometer. The 
sites of production and buffer zone must be surveyed monthly for 
Stenoma catenifer from 2 months before harvest until harvest is 
completed.
    <bullet> If one or more Stenoma catenifer are detected during a 
survey or during any other monitoring or inspection activity, the site 
of production will be prohibited from exporting avocados to the 
continental United States until APHIS and the NPPO of Ecuador jointly 
agree that the risk has been mitigated.
    <bullet> The NPPO of Ecuador must keep records of Stenoma catenifer 
detections for each site of production, and update the records each 
time the sites of production are surveyed. The records must be 
maintained for at least 1 year and provided for APHIS' review, if 
requested.
    <bullet> Avocado fruit that has fallen from the trees must be 
removed from the production site at least once every 7 days, starting 2 
months before harvest and continuing through the end of the harvest, 
and may not be included in field containers of fruit to be packed for 
export.
    <bullet> Harvested avocados must be placed in field cartons or 
containers that are marked to show the official registration number of 
the production site. The site 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 the packinghouse within 3 hours of harvest or must be 
protected from fruit fly infestation until moved.
    <bullet> Avocados must be packed within 24 hours of harvest in an 
insect-exclusionary packinghouse registered with the NPPO of Ecuador. 
The fruit must be safeguarded by an insect-proof screen or plastic 
tarpaulin while in

[[Page 31940]]

transit to the packinghouse and while awaiting packing. Fruit must be 
packed in insect-proof cartons or containers, or covered with insect-
proof mesh or a plastic tarpaulin for transport to the United States. 
During the time the packinghouse is in use for exporting avocado fruit 
to the United States, the packinghouse may only accept fruit from 
registered, approved production sites.
    <bullet> A sample of avocado fruit from each site of production 
must be inspected by the NPPO of Ecuador following any post-harvest 
processing.
    <bullet> Fruit presented for inspection at the port of entry to the 
United States must be identified in the shipping documents accompanying 
each lot of fruit to specify the production site or sites, in which the 
fruit was produced, and the packing shed or sheds, in which the fruit 
was processed.
    <bullet> Each consignment of avocados must be accompanied by a 
phytosanitary certificate issued by NPPO of Ecuador and providing an 
additional declaration stating that the fruit in the consignment has 
been produced in compliance with the requirements of the systems 
approach.
    Additional phytosanitary measures for varieties of Ecuador avocados 
other than Hass:
    <bullet> No other host of Anastrepha fraterculus, A, serpentina, A, 
striata, or Ceratitis capitata can be grown within 100 meters of the 
edge of the avocado site of production.
    <bullet> The registered production sites must conduct trapping for 
Anastrepha spp. and Ceratitis capitata fruit flies in accordance with 
the operational workplan.
    <bullet> The NPPO 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 upon request. The records must be 
maintained for at least 1 year.
    <bullet> If Anastrepha spp. or Ceratitis capitata fruit flies 
trapped at a registered production site go above the threshold 
specified in the operational workplan, the avocados may still be 
exported, but only with an APHIS-approved quarantine treatment. 
Irradiation treatment at 150 Gy (T105-a-1) is approved for all fruit 
flies.
    These conditions are described in further detail in the final RMD. 
In addition to these specific measures, fresh avocado fruit from 
continental Ecuador will be subject to the general requirements listed 
in Sec.  319.56-3 that are applicable to the importation of all fruits 
and vegetables.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the recordkeeping and burden requirements associated 
with this action are covered under the Office of Management and Budget 
control number 0579-0049, which is updated every 3 years during the 
required renewal period.

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 notice, please contact Mr. Joseph Moxey, 
APHIS' Paperwork Reduction Act Coordinator, at (301) 851-2483.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this action 
as not a major rule, as defined by 5 U.S.C. 804(2).

    Authority: 7 U.S.C. 1633, 7701-7772, and 7781-7786; 21 U.S.C. 
136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

    Done in Washington, DC, this 23rd day of May 2022.
Anthony Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2022-11367 Filed 5-25-22; 8:45 am]
BILLING CODE 3410-34-P