[Federal Register Volume 75, Number 102 (Thursday, May 27, 2010)]
[Proposed Rules]
[Pages 29680-29684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12823]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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

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

[[Page 29680]]



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.

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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:
    <bullet> 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.
    <bullet> 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. APHIS-2008-0016.
    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 Sec.  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

[[Page 29681]]

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.
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    \1\ The 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.
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    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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  
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.

[[Page 29682]]

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.
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    \2\ California Avocado Growers, Pounds and Dollars by Variety. 
(http://www.avocado.org/growers/poundsdollars.php).
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    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
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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 Sec.  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 pest-free 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-
by-step 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 mid-April; 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\
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    \3\ California Avocado Growers, Pounds and Dollars by Variety 
(http://www.avocado.org/growers/poundsdollars.php).
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    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

[[Page 29683]]

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\
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    \4\ United States Department of Agriculture/Foreign Agricultural 
Service, Mexico Avocado Annual 2007, Global Agricultural Information 
Network Report Number MX7084.
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    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 case-by-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.


Sec.  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

[[Page 29684]]

export in Mexico or the port of first arrival in the United States.
* * * * *
    Done in Washington, DC, this 20\th\ 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