31154 Federal Register / Vol. 74, No. 124 / Tuesday, June 30, 2009 / Rules and Regulations 

Worcester (except Blackstone and Millville) 

The following cities and towns in: 

Hampshire County: 

Amherst 

Belchertown 

Chesterfield 

Cummington 

Goshen 

Hatfield 

Huntington 

Middlefield 

Pelham 

Plainfield 

Southampton 

Ware 

Westhampton 

Williamsburg 

Worthington 

Hampden County: 

Blandford 

Brimfield 

Chester 

Granville 

Holland 

Montgomery 

Russell 

Tolland 

Wales 

Middlesex County: 

Ashby 

Shirley 

Townsend 

New Hampshire: 

Belknap 

Carroll 

Cheshire 

Grafton 

Hillsborough 

Merrimack 

Sullivan 

Vermont: 

Addison 

Bennington 

Caledonia 

Essex 

Lamoille 

Orange 

Orleans 

Rutland 

Washington 

Windham 

Windsor 

* * * * * 

Rhode Island 

Narragansett Bay 

Survey Area 

Rhode Island: 

Bristol 

Newport 

The following cities and towns: 

Kent County: 

Anthony 

Coventry 

East Greenwich 

Greene 

Warwick 

West Warwick 

Providence County: 

Ashton 

Burrillville 

Central Falls 

Cranston 

Cumberland 

Cumberland Hill 

East Providence 

Esmond 

Forestdale 

Greenville 

Harrisville 

Johnston 

Lincoln 

Manville 

Mapleville 

North Providence 

North Smithfield 

Oakland 

Pascoag 

Pawtucket 

Providence 

Saylesville 

Slatersville 

Smithfield 

Valley Falls 

Wallum Lake 

Woonsocket 

Washington County: 

Davisville 

Galilee 

Lafayette 

Narragansett 

North Kingstown 

Point Judith 

Quonset Point 

Saunderstown 

Slocum 

Massachusetts: 

The following cities and towns: 

Bristol County: 

Attleboro 

Fall River 

North Attleboro 

Rehoboth 

Seekonk 

Somerset 

Swansea 

Westport 

Norfolk County: 

Caryville 

Plainville 

South Bellingham 

Worcester County: 

Blackstone 

Millville 

Area of Application. Survey area plus: 

Rhode Island: 

The following cities and towns in: 

Kent County: 

West Greenwich 

Providence County: 

Foster 

Glocester 

Scituate 

Washington County: 

Charlestown 

Exeter 

Hopkinton 

New Shoreham 

Richmond 

South Kingstown 

Westerly 

Massachusetts: 

The following cities and towns in: 

Bristol County: 

Acushnet 

Berkley 

Dartmouth 

Dighton 

Fairhaven 

Freetown 

Mansfield 

New Bedford 

Norton 

Raynham 

Taunton 

* * * * * 

[FR Doc. E9–15474 Filed 6–29–09; 8:45 am] 

BILLING CODE 6325–39–P 

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, 


rmajette on PRODPC74 with RULES
Federal Register / Vol. 74, No. 124 / Tuesday, June 30, 2009 / Rules and Regulations 31155 

1To view the proposed rule and the comments 

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

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2006-0189. 

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 

§ 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 ‘‘SubpartFruits 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 § 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. 

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 

Direcccio ́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 

§ 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 


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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 § 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 precondition 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, 


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Federal Register / Vol. 74, No. 124 / Tuesday, June 30, 2009 / Rules and Regulations 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 § 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 

§ 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 nonHass 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 § 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 


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31158 Federal Register / Vol. 74, No. 124 / Tuesday, June 30, 2009 / Rules and Regulations 

2USDA Economic Research Service, Fruit and 

Tree Nuts Situation and Outlook October, 2007. 

3World Trade Atlas—U.S. imports from Mexico. 

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. 

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 §§ 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 §§ 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 §§ 301.32 to 

301.32–10. In this final rule, we are 

amending the regulations in § 301.32–4, 

which contains interstate movement 

requirements for regulated articles from 

quarantined areas, and in § 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 §§ 301.64–11 

and 301.99–11 and new paragraph 

(a)(1)(iv) to § 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. 

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. 

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 


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Federal Register / Vol. 74, No. 124 / Tuesday, June 30, 2009 / Rules and Regulations 31159 

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

component/main?main=DocketDetail&d=APHIS2006-0189. The environmental assessment and 

finding of no significant impact will appear in the 

resulting list of documents. 

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. 

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. 

■ Accordingly, we are amending 7 CFR 

parts 301 and 319 as follows: 

PART 301—DOMESTIC QUARANTINE 

NOTICES 

■ 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). 

■ 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: 

§ 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 


rmajette on PRODPC74 with RULES
31160 Federal Register / Vol. 74, No. 124 / Tuesday, June 30, 2009 / Rules and Regulations 

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) 

■ 3. Section 301.32–5 is amended as 

follows: 

■ a. In paragraph (a)(1)(iii), by removing 

the word ‘‘and’’ and adding the word 

‘‘or’’ in its place. 

■ b. By adding a new paragraph 

(a)(1)(iv) to read as set forth below. 

■ c. By revising the OMB citation at the 

end of the section to read as set forth 

below. 

§ 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 

§ 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 

■ 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. 

§ 319.56–30 [Amended] 

■ 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 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Part 3 

[Docket ID: OCC–2009–0007] 

RIN 1557–AD25 

FEDERAL RESERVE SYSTEM 

12 CFR Parts 208 and 225 

[Regulations H and Y; Docket No. R–1361] 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 325 

RIN 3064–AD42 

DEPARTMENT OF THE TREASURY 

Office of Thrift Supervision 

12 CFR Part 567 

[No. OTS–2009–0007] 

RIN 1550–AC34 

Risk-Based Capital Guidelines; Capital 

Adequacy Guidelines; Capital 

Maintenance; Capital—Residential 

Mortgage Loans Modified Pursuant to 

the Making Home Affordable Program 

AGENCIES: Office of the Comptroller of 

the Currency, Department of the 

Treasury; Board of Governors of the 

Federal Reserve System; Federal Deposit 

Insurance Corporation; and Office of 

Thrift Supervision, Department of the 

Treasury. 

ACTION: Interim final rule with request 

for public comment. 

SUMMARY: To support and facilitate the 

timely implementation and acceptance 

of the Making Home Affordable Program 

(Program) announced by the U.S. 

Department of the Treasury (Treasury) 

and to promote the stability of banks, 

savings associations, bank holding 

companies (collectively, banking 

organizations) and the financial system, 

the Office of the Comptroller of the 

Currency (OCC), Board of Governors of 

the Federal Reserve System (Board), 

Federal Deposit Insurance Corporation 

(FDIC), and the Office of Thrift 

Supervision (OTS) (collectively, the 

agencies) have adopted this interim 

final rule (interim final rule or rule). 

The rule provides that mortgage loans 

modified under the Program will retain 

the risk weight assigned to the loan 

prior to the modification, so long as the 

loan continues to meet other applicable 

prudential criteria. 

DATES: The interim final rule is effective 

June 30, 2009. Comments must be 

received by July 30, 2009. 

ADDRESSES: Comments should be 

directed to: 

OCC: Because paper mail in the 

Washington, DC area and at the agencies 

is subject to delay, commenters are 

encouraged to submit comments by the 

Federal eRulemaking Portal or e-mail, if 

possible. Please use the title ‘‘RiskBased Capital Guidelines—Residential 

Mortgage Loans Modified Pursuant to 

the Making Home Affordable Program’’ 

to facilitate the organization and 

distribution of the comments. You may 

submit comments by any of the 

following methods: 

• Federal eRulemaking Portal— 

‘‘Regulations.gov’’: Go to http:// 

www.regulations.gov. Under the ‘‘More 

Search Options’’ tab click next to the 

‘‘Advanced Docket Search’’ option 

where indicated, select ‘‘Comptroller of 

the Currency’’ from the agency dropdown menu, then click ‘‘Submit.’’ In the 

‘‘Docket ID’’ column, select ‘‘OCC– 

2009–0007’’ to submit or view public 

comments and to view supporting and 

related materials for this interim final 

rule. The ‘‘How to Use This Site’’ link 

on the Regulations.gov home page 

provides information on using 

Regulations.gov, including instructions 

for submitting or viewing public 

comments, viewing other supporting 

and related materials, and viewing the 

docket after the close of the comment 

period. 

• E-mail: 

regs.comments@occ.treas.gov. 

• Mail: Office of the Comptroller of 

the Currency, 250 E Street, SW., Mail 

Stop 2–3, Washington, DC 20219. 

• Fax: (202) 874–5274. 

• Hand Delivery/Courier: 250 E 

Street, SW., Mail Stop 2–3, Washington, 

DC 20219. 

Instructions: You must include 

‘‘OCC’’ as the agency name and ‘‘Docket 

Number OCC–2009–0007’’ in your 

comment. In general, the OCC will enter 

all comments received into the docket 

and publish them on the 

Regulations.gov Web site without 

change, including any business or 

personal information that you provide 

such as name and address information, 

e-mail addresses, or phone numbers. 

Comments received, including 

attachments and other supporting 

materials, are part of the public record 

and subject to public disclosure. Do not 

enclose any information in your 

comment or supporting materials that 

you consider confidential or 

inappropriate for public disclosure. 

You may review comments and other 

related materials that pertain to this 


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