[Federal Register Volume 74, Number 124 (Tuesday, June 30, 2009)]
[Rules and Regulations]
[Pages 31154-31160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15416]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 301 and 319

[Docket No. APHIS-2006-0189]
RIN 0579-AC67


Movement of Hass Avocados From Areas Where Mexican Fruit Fly or 
Sapote Fruit Fly Exist

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We are amending the regulations to relieve certain 
restrictions regarding the movement of Hass variety avocados. 
Specifically, we are amending our domestic quarantine regulations to 
provide for the interstate movement, with a certificate, of Hass 
avocados from areas in the United States quarantined for Mexican fruit 
fly or sapote fruit fly, provided that the fruit is safeguarded after 
harvest in accordance with specific measures. We are also amending our 
foreign quarantine regulations to remove trapping and bait spray 
treatment requirements related to Anastrepha spp. fruit flies for 
imported Hass avocados from Michoacan, Mexico. These actions are 
warranted in light of research demonstrating the limited host status of 
Hass avocados to various species of fruit flies in the genus 
Anastrepha, including Mexican fruit fly and sapote fruit fly. By 
amending both our domestic and foreign quarantine regulations, we are 
making them consistent with each other and relieving restrictions for 
Mexican Hass avocado producers. In addition, this action provides an 
alternative means for Hass avocados to be moved interstate if the 
avocados originate from a Mexican fruit fly or sapote fruit fly 
quarantined area in the United States.

DATES: Effective Date: July 30, 2009.

FOR FURTHER INFORMATION CONTACT: Regarding the interstate movement of 
Hass avocados from Mexican fruit fly and sapote fruit fly quarantined 
areas,

[[Page 31155]]

contact Mr. Wayne D. Burnett, Domestic Coordinator, Fruit Fly Exclusion 
and Detection, PPQ, APHIS, 4700 River Road, Unit 137, Riverdale, MD 
20737-1231; (301) 734-6553. Regarding import conditions for Hass 
avocados from Mexico, contact Mr. David B. Lamb, Import Specialist, 
Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road, 
Unit 133, Riverdale, MD 20737-1231; (301) 734-0627.

SUPPLEMENTARY INFORMATION:

Background

    The domestic fruit fly regulations, contained in 7 CFR 301.32 
through 301.32-10 (referred to below as the regulations), were 
established to prevent the spread of exotic fruit flies, including the 
Mexican fruit fly (Anastrepha ludens) and the sapote fruit fly 
(Anastrepha serpentina) into noninfested areas of the United States. 
The regulations designate soil and many fruits, nuts, vegetables, and 
berries as regulated articles and impose restrictions on the interstate 
movement of those regulated articles from quarantined areas.
    Avocado, Persea americana (including the variety Hass), is listed 
as a regulated article in the regulations in Sec.  301.32-2. Because 
avocados are listed as regulated articles, they may not be moved 
interstate from a quarantined area unless the movement is authorized by 
a certificate or a limited permit. In general, avocados may be eligible 
for a certificate if a bait spray is applied to the production site 
beginning prior to harvest and continuing through the end of harvest or 
if a post-harvest irradiation treatment is applied to the fruit. To be 
eligible for a limited permit, a regulated article must be moved to a 
specific destination for specialized handling, utilization or 
processing, or for treatment and meet all other applicable provisions 
of the regulations.
    Under the regulations in ``Subpart-Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-49), the Animal and Plant Health Inspection 
Service (APHIS) of the U.S. 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 plant pests from 
being introduced into the United States and spread within it. The 
requirements for importing Hass variety avocados into the United States 
from Michoacan, Mexico, are described in Sec.  319.56-30. Those 
requirements include pest surveys and pest risk-reducing practices, 
treatment, packinghouse procedures, inspection, and shipping 
procedures.
    On April 2, 2008, we published in the Federal Register (73 FR 
17930-17935, Docket No. APHIS-2006-0189) a proposal \1\ to amend our 
domestic quarantine regulations to provide for the interstate movement 
of Hass avocados from Mexican fruit fly and sapote fruit fly 
quarantined areas in the United States with a certificate if the fruit 
is safeguarded after harvest in accordance with specific measures. We 
also proposed to amend our foreign quarantine regulations to remove 
trapping and bait spray treatment requirements related to Anastrepha 
spp. fruit flies for imported Hass avocados from Michoacan, Mexico. 
These proposed actions were intended to make our domestic and foreign 
requirements for movement of Hass avocados consistent with each other, 
relieve restrictions for Mexican Hass avocado producers, and provide an 
alternative means for Hass avocados to be moved interstate if the 
avocados originate from a Mexican fruit fly or sapote fruit fly 
quarantined area in the United States.
---------------------------------------------------------------------------

    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0189.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
June 2, 2008. We reopened and extended the deadline for comments until 
June 26, 2008, in a document published in the Federal Register on June 
12, 2008 (73 FR 33333). We received eight comments by the close of the 
comment period. They were from domestic and foreign avocado producers, 
exporters, researchers, and representatives of State and foreign 
governments. They are discussed below by topic.
    A commenter stated that while the Hass avocado is resistant to 
infestation by the Mexican fruit fly while on the tree, it is subject 
to such infestation after harvest or if the fruit has been punctured. 
It was suggested that, although the interstate movement requirements 
contained in the April 2008 proposed rule required certification that 
fallen fruit not be harvested and that tree-harvested fruit not be 
exposed for excessive periods in the field, there may not be adequate 
regulatory oversight to ensure that these prohibited practices do not 
take place.
    APHIS, in cooperation with State plant health program officials, 
maintains sufficient oversight to ensure that its regulations are 
enforced. Procedures for handling, packing, processing, and moving Hass 
avocados interstate are monitored by APHIS and State cooperators under 
compliance agreements with domestic producers and shippers.
    Similar concerns were expressed by commenters regarding Hass 
avocados imported from Mexico. Two commenters stated that they could 
not find in the proposed rule a prohibition on the movement or 
importation of fruit that has punctures, cuts, or other breaks in the 
skin. Such fruit would be more susceptible to fruit fly infestation 
than would healthy fruit.
    Under a work plan agreement between APHIS and the Government of 
Mexico, 2007, Mexican packinghouses exporting avocados to the United 
States are required to be registered with the Jefatura del Programa de 
Sanidad Vegetal (PSV) and certified by both the Direccci[oacute]n 
General de Sanidad Vegetal (DGSV) and by APHIS. DGSV personnel are 
required to cull fruit that includes punctures, cuts, or breaks in the 
skin at the packinghouse. In addition, current Sec.  319.56-
30(c)(2)(iii) requires that avocado fruit that has fallen from the 
trees must be removed from the orchard at least once every 7 days and 
may not be included in the field boxes of fruit to be packed for 
export. That requirement will not be affected by this rulemaking.
    The same commenters also questioned the appropriateness of linking 
our proposed changes to the domestic regulations with our proposed 
changes to our import regulations, suggesting that the proposals should 
be treated separately under distinct rulemaking actions. It was stated 
that the domestic and Mexican fruit fly infestations differ because 
Mexico has a permanent endemic population of the Anastrepha species in 
question, while those flies are not established in California or 
elsewhere in the United States. The domestic and Mexican fruit fly 
population pressures are therefore different, according to the 
commenters, who opposed removing Anastrepha trapping requirements for 
Hass avocados imported from Michoacan.
    We agree with the commenters' statements regarding the differences 
in the nature of fruit fly infestations in the United States and 
Michoacan, Mexico, but do not believe that those differences 
necessitate any modification of the final rule. In conjunction with the 
April 2008 proposed rule, we made available to the public a risk 
management document, titled ``Removal of Anastrepha Fruit Fly Trapping 
Requirements from Mexican `Hass' Avocados for Importation into the 
United States,'' which evaluated the risk for the introduction of 
Anastrepha spp. from Mexican Hass avocados. Our evaluation of that risk 
was based in part on a peer-reviewed study by M. Aluja et al. (2004) of 
the status of Hass avocados

[[Page 31156]]

as hosts for Mexican fruit flies. The study was subsequently reviewed 
by the USDA's Agricultural Research Service (ARS) and by APHIS, and the 
results led us to conclude that commercially produced Hass avocados are 
a very poor host for the Mexican fruit fly. Our risk management 
document also noted that between 1997 and 2006, more than 27 million 
Hass avocados from Mexico were cut open and examined for fruit flies. 
The sample included fruit from wild trees, backyards, packinghouses, 
and border inspection stations. No fruit flies were found in the fruit 
that was sampled over that 9-year period. The results of the Aluja 
study and of our sampling led us to conclude that the removal of 
trapping requirements contained in Sec.  319.56-30 is warranted.
    The same commenters also suggested that a prohibition may be needed 
on the growing of prime fruit-fly hosts in association with Mexican 
avocado groves where avocados are grown that are destined for 
susceptible States such as California, Texas, and Florida. While 
expressing agreement with research demonstrating that Hass avocados are 
poor hosts for fruit flies, the commenters suggested that if there are 
prime host fruits grown adjacent to Hass avocado orchards, the danger 
of infestation of the avocados is increased. If the adjacent prime 
hosts are harvested, the fruit flies will seek nearby lesser hosts, 
such as avocados.
    There are currently no fruit-fly-host commodities that are being 
grown adjacent to the Hass avocado orchards in Michoacan, Mexico, that 
have been approved by APHIS to export their fruit to the United States. 
If any host commodities were being grown in the vicinity of an avocado 
orchard, we would require a buffer system to be in place to prevent the 
avocados from being infested.
    Several commenters discussed the potential susceptibility to fruit 
fly infestation of Hass avocados from weakened or stressed trees. It 
was suggested that conditions such as drought stress, root rot, poor 
nutrition, and ring neck, which are present in Michoacan avocado 
groves, may make avocados attached to the trees in those groves more 
susceptible to Mexican fruit fly infestation by causing a breakdown in 
host plant resistance. Such a phenomenon was observed in Sharwil 
avocados in Hawaii, which became infested with Oriental fruit fly when 
still attached to the trees. It was suggested that our risk management 
document should have considered the influences of drought stress, root 
rot, poor nutrition, and ring neck on the potential susceptibility of 
Hass avocados to Mexican fruit fly infestations.
    We do not believe the situations are analogous. Hass avocados and 
Sharwil avocados are different varieties. Oriental fruit fly 
(Bactrocera dorsalis) is a different pest species than the Anastrepha 
species found in Mexico. Oriental fruit fly was found to infest Sharwil 
avocados in Hawaii after 3,000 fruit were harvested and cut. As noted 
earlier, between 1997 and 2006, more than 27 million Hass avocados from 
Mexico were cut open and examined for fruit flies, and no fruit flies 
were found. This sampling took place in all types of weather 
conditions.
    Several commenters addressed issues having to do with trapping. 
Trapping methods were discussed, and reservations about our intention 
to amend the import regulations by removing trapping requirements for 
Hass avocados from Mexico were expressed. The issues raised by these 
commenters are discussed in greater detail in the paragraphs that 
follow.
    Some commenters questioned the adequacy of existing trapping 
methods for the Mexican fruit fly. It was suggested that, due to the 
inefficiencies of the McPhail trap, which is used in Michoacan, Mexico, 
it is likely that the fruit fly populations there are being 
underestimated. It was noted that no species-specific trap is available 
for Mexican fruit fly (only McPhail and Multilure traps) and that many 
areas of California contain good host plants for the highly polyphagous 
Mexican fruit fly that emerging adult females would seek out and 
oviposit in after mating. Infestations into the United States could 
therefore become widespread before detection, causing significant 
environmental and economic hardship. One commenter expressed a 
particular concern about Mexican fruit fly becoming established in 
Florida, which is especially vulnerable since citrus is a preferred 
host, because there currently exists no adequate attractant for early 
detection purposes.
    There have been no indications that Mexican fruit fly populations 
are being underestimated in Michoacan. Mexico's national fruit fly 
program, first implemented in 1992, is based on monitoring (trapping 
and fruit sampling) and control (bait spray, release of natural 
enemies, and sterile flies) and is mandated by Mexican regulations. The 
absence of fruit flies in our sample of more than 27 million Mexican 
Hass avocados is indicative of the efficacy of the Mexican national 
program.
    APHIS does, however, share the commenters' concerns about the 
establishment of Mexican fruit fly in noninfested parts of the United 
States. APHIS works cooperatively with State and territorial officials 
to maintain extensive exotic fruit fly surveillance, including 
surveillance for Mexican fruit fly, employing detection systems 
throughout 13 States and territories susceptible to exotic fruit fly 
outbreaks. Nationally and internationally accepted trap/lure 
combinations are utilized in each of these systems. To address concerns 
regarding the sensitivity of these exotic fruit fly detection systems 
toward species of Anastrepha spp., APHIS is currently working with 
State and territorial cooperators, ARS, and industry to explore new 
trap/lure systems to enhance the sensitivity of exotic fruit fly 
detection systems within the United States. We are regularly evaluating 
new trap/lure systems.
    A number of commenters opposed the removal of bait spray and 
trapping requirements for Hass avocado orchards in Mexico. Some 
commenters questioned how fruit fly populations in Mexican orchards 
that ship avocados to fruit-fly susceptible States such as California, 
Texas, and Florida would be assessed if trapping were not required. It 
was stated that a key component of any systems approach is detection of 
low, medium, or high levels of the pest in the area where export fruit 
are harvested. For fruit flies, this means trapping to monitor seasonal 
population fluctuations. It was suggested that we did not have adequate 
data to support the removal of trapping requirements for Anastrepha in 
Hass avocado orchards in Mexico. According to these commenters, 
multiple years of data from multiple sites were needed to justify such 
an action. A commenter who requested that the final rule be modified to 
require the continued monitoring of Anastrepha spp. fruit flies as a 
pre-condition for the shipment of Hass avocados from Mexico to the 
United States stated that monitoring could be accomplished as part of 
Mexico's national fruit fly trapping program, provided that traps are 
deployed in representative avocado groves, particularly at low 
elevations.
    We do not agree with these comments. Although this rulemaking 
eliminates the requirement for trapping specifically in the certified 
orchards for Anastrepha species associated with Mexican Hass avocado 
imports, trapping and suppression programs will remain in place under 
Mexico's National Program against Fruit Flies. Mexico implemented the 
program in 1992 for the purpose of controlling, suppressing, and 
eradicating four species of fruit flies: Anastrepha ludens,

[[Page 31157]]

A. obliqua, A. striata, and A. serpentina. The program is based on 
monitoring (trapping and fruit sampling) and control (bait spray, 
release of natural enemies and sterile flies) and is mandated by 
Mexican regulations. Also, as noted above, between 1997 and 2006, more 
than 27 million Hass avocados from Mexico were cut open and examined 
for fruit flies, and no fruit flies were found. Therefore, we believe 
the data demonstrate the efficacy of Mexico's National Program against 
Fruit Flies and support the removal from the regulations in Sec.  
319.56-30 of trapping and bait spray requirements related to Anastrepha 
spp. fruit flies for imported Hass avocados from Michoacan, Mexico. 
Finally, with regard to sampling at low elevations, the placement of 
traps in Mexican orchards in accordance with Mexico's National Program 
against Fruit Flies falls under the purview of the Mexican Government 
rather than APHIS.
    We received several comments pertaining to the risk management 
document that was made available to the public in conjunction with the 
April 2008 proposed rule.
    A commenter representing a Mexican producers' association, while in 
general agreement with the findings of the risk management document, 
critiqued certain aspects of it. It was suggested that one important 
point missing from the risk management document was its failure to 
mention the ongoing trapping for Anastrepha that will continue under 
the Mexican national program even after the elimination of the trapping 
requirements for Anastrepha in Sec.  319.56-30.
    We agree with this comment and will amend the risk management 
document to clarify that the general Mexican national fruit fly 
trapping program for all Tephritid fruit flies will continue in the 
avocado growing areas, and only the extra fruit fly trapping for 
Anastrepha required by the current certification program will be 
eliminated under this action.
    The same commenter also noted that while the risk management 
document indicates that APHIS agrees with findings showing that Mexican 
Hass avocadoes are not hosts for Anastrepha species, it does not 
explicitly refute the somewhat contradictory position of ARS that Hass 
avocados are ``very poor'' hosts for Mexican fruit flies. The commenter 
would have preferred that our risk management document contain a 
categorical statement that commercially produced Mexican Hass avocados 
are not hosts for Anastrepha species.
    APHIS' risk documentation is not intended to affirm or refute the 
conclusions of ARS' host susceptibility determinations but rather to 
recommend the appropriate phytosantary measures needed to maintain an 
acceptable pest risk level to prevent the spread of identified pests, 
such as Anastrepha species, to noninfested areas of the United States.
    A commenter who represented an association of domestic avocado 
producers, noting that our risk management document reached conclusions 
supporting those of the Aluja study, stated that that study, standing 
alone, does not provide conclusive evidence that Hass avocados are 
unlikely to support the growth and development of Anastrepha larvae. 
The commenter stated that sample sizes in the Aluja study were 
inadequate, the sampling plan was flawed, and data related to the 
effects of elevation and quarantine security were lacking. The 
commenter stated that the overwhelming majority of the adult flies 
captured in experimental orchards during the Aluja study were trapped 
in the municipality of Ziracuaretiro, which, in comparison to other 
locations in Mexico in which Hass avocados are grown, is relatively low 
in altitude. It was suggested by the commenter that further study is 
needed to better understand the species-host relationship at issue.
    The Aluja study was one piece of evidence that we used in making 
our determination. Of greater significance was our sampling, as noted 
above, of very large quantities of imported Hass avocados over an 
extended time period without any findings of the targeted pests. The 
results of our sampling, along with our review of the Aluja study, led 
us to conclude that the Hass avocado, when harvested and safeguarded 
according to the parameters of the systems approach contained in our 
regulations, is not a host to Anastrepha species fruit flies. We will 
continue to cut Hass avocado fruits as part of our importation program 
for this fruit, and if pests are intercepted, then we will take 
appropriate measures to mitigate the risk. Regarding the possible 
effects of elevation cited by the commenter, while fruit-fly population 
density may be higher at lower altitudes, there has been no evidence to 
suggest that Hass avocados grown at lower altitudes in Mexico have been 
more susceptible to infestation. Anastrepha prevalence measured by trap 
captures, as in Ziracuaretiro, does not speak to host susceptibility. 
If a fruit is not a host for a particular pest, then the fruit-fly 
population density at the altitude at which the fruit is grown is of no 
consequence.
    A commenter stated that the environmental assessment accompanying 
the April 2008 proposed rule was flawed because it failed to account 
for economic impacts on important California commodities such as citrus 
and many tree fruits (also non-Hass avocados), which are preferred 
hosts for Mexican fruit fly and would be faced with quarantines on 
shipment should Mexican fruit fly be found in California.
    The purpose of the environmental assessment was to evaluate the 
potential effects of this rulemaking on the human environment. 
Addressing possible economic impacts would have been beyond the scope 
of the environmental assessment.
    One commenter stated that identification and traceback provisions 
included under our proposed packinghouse requirements should apply to 
all fruit originating in an area under domestic quarantine for Mexican 
or sapote fruit fly. The packinghouse requirements in the April 2008 
proposed rule, according to the commenter, could be interpreted as 
applying only to packinghouses within a quarantined area, meaning that 
the requirement that the identity of avocados be maintained from field 
boxes or containers to shipping boxes in the packinghouse may not apply 
to avocados grown in an orchard in a quarantined area if the fruit is 
packed in a packinghouse outside the quarantined area.
    We agree with this comment. In this final rule, we have modified 
Sec.  301.32-(4)(d)(2) to clarify that those identification and 
traceback provisions apply to all Hass avocados originating in a 
quarantined area, regardless of whether or not the packinghouse in 
which they are packed is located in the quarantined area.
    A commenter suggested that the final rule should specify regulatory 
actions that will be taken by APHIS and DGSV if fruit fly larvae are 
discovered in a Hass avocado from an orchard certified under the 
Mexican avocado import program.
    The work plan agreement between APHIS and the Government of Mexico 
provides for necessary actions in cases of Anastrepha finds, including 
suspension of the export certification of Mexican orchards, 
municipalities, or packinghouses where appropriate. Since the issues 
involved may be complex and are subject to negotiation with Mexico, we 
believe that it is more appropriate to include enforcement actions that 
may be taken by APHIS and DGSV in the work

[[Page 31158]]

plan agreement rather than in the regulations.

Miscellaneous

    The April 2008 proposed rule contained, among other things, 
amendments to two separate subparts of the domestic regulations: 
``Subpart--Mexican Fruit Fly Quarantine and Regulations'' and 
``Subpart--Sapote Fruit Fly.'' Specifically, we proposed to add new 
Sec. Sec.  301.6411 and 301.99-11, both of which listed requirements 
for interstate movement of Hass avocados from quarantined areas. The 
proposed requirements contained in Sec. Sec.  301.64-11 and 301.99-11 
were identical.
    In a final rule published in the Federal Register on June 9, 2008 
(73 FR 32431-32439, Docket No. APHIS-2007-0084), however, we 
consolidated our domestic regulations pertaining to exotic fruit flies. 
Previously, those regulations had been divided into six separate 
subparts, each of which pertained to a particular species (Mexican 
fruit fly, Mediterranean fruit fly, Oriental fruit fly, melon fruit 
fly, West Indian fruit fly, and sapote fruit fly, respectively). The 
June 2008 final rule removed all six of those subparts from the 
regulations and consolidated the requirements they contained into one 
new subpart that covers all six species. That action was taken to 
prevent unnecessary duplication in our regulations and make them 
clearer and easier to use, since each of the six subparts contained 
sections that were substantially the same as the corresponding sections 
in the other five.
    ``Subpart--Fruit Flies,'' the new subpart created under the June 
2008 rulemaking, consists of Sec. Sec.  301.32 to 301.32-10. In this 
final rule, we are amending the regulations in Sec.  301.32-4, which 
contains interstate movement requirements for regulated articles from 
quarantined areas, and in Sec.  301.32-5, which pertains to the 
issuance and cancellation of certificates and limited permits. These 
amendments are, in substance, identical to those we had proposed to 
make to the regulations in April 2008 by adding new Sec. Sec.  301.64-
11 and 301.99-11 and new paragraph (a)(1)(iv) to Sec.  301.99-5.
    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.

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.
    This final rule amends our domestic quarantine regulations to 
provide for the interstate movement, with a certificate, of Hass 
avocados from areas in the United States quarantined for Mexican fruit 
fly and sapote fruit fly, provided that the fruit is safeguarded after 
harvest in accordance with specific measures. The rule also amends our 
foreign quarantine regulations to remove trapping and bait spray 
treatment requirements related to Anastrepha spp. fruit flies for 
imported Hass avocados from Michoacan, Mexico.
    In the 2006-2007 season, the United States produced 298 million 
pounds of avocados, valued at $208 million. Over 90 percent of the 
avocados grown in the United States are produced in California. Ninety-
five percent of California avocados are of the Hass variety.\2\ For the 
period 2006 to 2008, the United States imported an average of 
approximately 414 million pounds of Hass avocados from Mexico, valued 
at $374 million.\3\ This quantity represents almost 80 percent of U.S. 
Hass avocado imports.
---------------------------------------------------------------------------

    \2\ USDA Economic Research Service, Fruit and Tree Nuts 
Situation and Outlook October, 2007.
    \3\ World Trade Atlas--U.S. imports from Mexico.
---------------------------------------------------------------------------

    Entities potentially affected by this rule include domestic avocado 
producers and importers of Hass avocados from Mexico. Under the North 
American Industry Classification System (NAICS), potentially affected 
entities fall into the following categories: Other Noncitrus Fruit 
Farming (NAICS 111339), Fruit and Vegetable Markets (NAICS 445230), 
Wholesalers and Other Grocery Stores (NAICS 445110), and Fresh Fruit 
and Vegetable Wholesalers (NAICS 424480).
    The Regulatory Flexibility Act requires that agencies specifically 
consider the economic impact of their rules on small entities. The 
Small Business Administration (SBA) classifies entities in the above 
industry categories as small if they have annual receipts of not more 
than $750,000 (NAICS 111339), not more than $7 million (NAICS 445230), 
or not more than $27 million (NAICS 445110); or if their employees 
number not more than 100 (NAICS 424480).
    According to the 2007 Census of Agriculture, 95 percent of the 
farms involved in fruit tree farming had annual sales of $500,000 or 
less and would be considered small by SBA standards. We conclude, 
therefore, that avocado producers are predominantly small entities. In 
2002, about 95 percent (4,044 of 4,244) of fresh fruit and vegetable 
wholesalers in the United States were also small by SBA standards.\4\ 
Neither the Census of Agriculture nor the Economic Census contains 
annual revenue information for firms classified under NAICS 445110 or 
NAICS 445230. In addition, there are 41 U.S. importers of Hass avocados 
from Mexico that may be affected by this rule, but economic information 
is not available for these entities.
---------------------------------------------------------------------------

    \4\ 2002 Economic Census. Department of Commerce. U.S. Bureau of 
the Census. North American Industry Classification System (NAICS) 
Category--424480: Fresh fruit & Vegetable wholesalers.
---------------------------------------------------------------------------

    The only domestic avocado producers that will be directly affected 
by this rule are ones located within a Mexican fruit fly or sapote 
fruit fly quarantined area that move their product interstate. 
Currently, the Mexican fruit fly quarantined area in California is in 
Los Angeles County and contains only two avocado producers that farm a 
total of approximately 5 acres. In addition, Hidalgo and Cameron 
Counties in Texas are also under Mexican fruit fly quarantine. However, 
there is only one small avocado orchard in Hidalgo County and the 
avocados produced there are consumed within the county; the producer 
does not meet regulatory requirements that would allow movement of 
avocados to areas that are not quarantined for Mexican fruit fly. With 
this rule, fruit fly treatment restrictions on interstate movement 
would be removed, perhaps influencing the Hidalgo County producer's 
marketing decisions.
    As a result of this rulemaking, savings to U.S. producers that move 
Hass avocados interstate from a quarantined area are expected to amount 
to a fraction of 1 percent of production costs. We expect that the 
impact on costs of production for Hass avocados imported from Mexico 
will be similarly small. In addition, as noted above, there are at 
present only two avocado producers in California and one in Texas that 
may be affected by this rulemaking. Any effects for wholesalers, 
importers, and other avocado merchants will be secondary, and likely 
negligible, based on the expected cost savings for affected producers.
    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 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance

[[Page 31159]]

under No. 10.025 and is subject to Executive Order 12372, which 
requires intergovernmental consultation with State and local officials. 
(See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does 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 changes to the domestic 
and foreign quarantine regulations specified in this 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.\5\ 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.
---------------------------------------------------------------------------

    \5\ Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0189. The environmental 
assessment and finding of no significant impact will appear in the 
resulting list of documents.
---------------------------------------------------------------------------

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 0579-0336.

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 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

7 CFR Part 319

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

0
Accordingly, we are amending 7 CFR parts 301 and 319 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

    Authority:  7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.
    Section 301.75-15 issued under Sec. 204, Title II, Public Law 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 
(7 U.S.C. 1421 note).


0
2. Section 301.32-4 is amended by adding a new paragraph (d) and by 
revising the OMB citation at the end of the section to read as follows:


Sec.  301.32-4  Conditions governing the interstate movement of 
regulated articles from quarantined areas.

* * * * *
    (d) Hass avocados that are grown or packed in an area quarantined 
for Mexican or sapote fruit fly and that are moving interstate from 
such an area are subject to the following additional requirements:
    (1) Orchard sanitation and safeguarding requirements. (i) Hass 
avocado fruit that has fallen from the trees may not be included in 
field boxes of fruit to be packed for shipping.
    (ii) Harvested Hass avocados must be placed in field boxes or 
containers of field boxes that are marked to show the location of the 
orchard. The avocados must be moved from the orchard to the 
packinghouse within 3 hours of harvest or they must be protected from 
fruit fly infestation until moved.
    (iii) Hass avocados must be protected from fruit fly infestations 
during their movement from the orchard to the packinghouse and must be 
accompanied by a field record indicating the location of the orchard 
where the avocados originated.
    (2) Packinghouse requirements for Hass avocados packed within a 
quarantined area. (i) 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 insects from entering the 
packinghouse.
    (ii) 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.
    (iii) If the Hass avocados were grown in an orchard within the 
quarantined area, the identity of the avocados must be maintained from 
field boxes or containers to the shipping boxes in the packinghouse so 
that the avocados can be traced back to the orchard in which they were 
grown. The avocados must be packed in boxes or crates that are clearly 
marked with the identity of the grower and the packinghouse.
    (iv) Any boxes of Hass avocados packed in the quarantined area must 
be placed in a refrigerated truck or refrigerated container and remain 
in that truck or container while in transit through the quarantined 
area. Prior to leaving the packinghouse, the truck or container must be 
secured with a seal that will be broken when the truck or container is 
opened. Once sealed, the refrigerated truck or refrigerated container 
must remain unopened until it is outside the quarantined area.
    (v) Any avocados that have not been packed or loaded into a 
refrigerated truck or refrigerated container by the end of the workday 
must be kept inside the screened packinghouse.
    (3) Packinghouse requirements for Hass avocados packed outside a 
quarantined area but grown within a quarantined area. Hass avocados 
grown in an orchard within a quarantined area but packed in a 
packinghouse outside the quarantined area must meet the

[[Page 31160]]

requirements of paragraph (d)(2)(iii) of this section.

(Approved by the Office of Management and Budget under control 
numbers 0579-0088 and 0579-0336)


0
3. Section 301.32-5 is amended as follows:
0
a. In paragraph (a)(1)(iii), by removing the word ``and'' and adding 
the word ``or'' in its place.
0
b. By adding a new paragraph (a)(1)(iv) to read as set forth below.
0
c. By revising the OMB citation at the end of the section to read as 
set forth below.


Sec.  301.32-5  Issuance and cancellation of certificates and limited 
permits.

    (a) * * *
    (1) * * *
    (iv) The regulated articles are Hass variety avocados that have 
been harvested, safeguarded, and packed in accordance with the 
conditions in Sec.  301.32-4(d); and
* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0088 and 0579-0336)

PART 319--FOREIGN QUARANTINE NOTICES

0
4. 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.


Sec.  319.56-30  [Amended]

0
5. Section 319.56-30 is amended by removing paragraph (c)(2)(ii) and 
redesignating paragraphs (c)(2)(iii) through (c)(2)(vi) as paragraphs 
(c)(2)(ii) through (c)(2)(v), respectively.

    Done in Washington, DC, this 24th day of June 2009.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-15416 Filed 6-29-09; 8:45 am]
BILLING CODE 3410-34-P