[Federal Register Volume 82, Number 156 (Tuesday, August 15, 2017)]
[Rules and Regulations]
[Pages 38591-38594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17211]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

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

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

========================================================================


Federal Register / Vol. 82, No. 156 / Tuesday, August 15, 2017 / 
Rules and Regulations

[[Page 38591]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2016-0022]
RIN 0579-AE29


Importation of Hass Avocados From Colombia

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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

SUMMARY: We are amending the regulations to allow the importation of 
fresh Hass avocado fruit from Colombia into the continental United 
States. As a condition of entry, fresh Hass avocado fruit from Colombia 
will have to be produced in accordance with a systems approach that 
includes orchard and packinghouse requirements and port of entry 
inspection. The fruit will also be required to be imported in 
commercial consignments and accompanied by a phytosanitary certificate 
issued by the national plant protection organization of Colombia with 
an additional declaration stating that the fruit has been produced in 
accordance with the requirements. This action will allow for the 
importation of fresh Hass avocado fruit from Colombia while continuing 
to provide protection against the introduction of plant pests into the 
continental United States.

DATES: Effective September 14, 2017.

FOR FURTHER INFORMATION CONTACT: Mr. David B. Lamb, Senior Regulatory 
Policy Specialist, IRM, PPQ, APHIS, 4700 River Road Unit 133, 
Riverdale, MD 20737-1231; (301) 851-2103.

SUPPLEMENTARY INFORMATION: 

Background

    Under the regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-77, referred to below as the regulations or the 
fruits and vegetables regulations), the Animal and Plant Health 
Inspection Service (APHIS) of the United States Department of 
Agriculture (USDA) prohibits or restricts the importation of fruits and 
vegetables into the United States from certain parts of the world to 
prevent plant pests from being introduced into and spread within the 
United States.
    On October 27, 2016, we published in the Federal Register (81 FR 
74722-74727, Docket No. APHIS-2016-0022) a proposal \1\ to amend the 
regulations by allowing for the importation of commercially produced 
fresh Hass avocado (Persea americana) fruit from Colombia into the 
continental United States.
---------------------------------------------------------------------------

    \1\ To view the proposed rule, supporting documents, and the 
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2016-0022.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
December 27, 2016. We reopened and extended the deadline for comments 
until February 16, 2017, in a document published in the Federal 
Register on January 17, 2017 (82 FR 4798, Docket No. APHIS-2016-0022). 
We extended the reopened comment period until March 20, 2017, in a 
document published in the Federal Register on February 10, 2017 (82 FR 
10312, Docket No. APHIS-2016-0022). We received 43 comments by that 
date. They were from producers, exporters, industry groups, and 
representatives of State and foreign governments. Of these, 32 were 
fully supportive of the proposed action. The remaining 11 raised issues 
that are discussed below by topic.

General Comments

    One commenter suggested that APHIS focus on importing fresh Hass 
avocado fruit from Indonesia since Indonesia's production levels are 
much higher than Colombia's.
    APHIS's phytosanitary evaluation process only begins once a country 
has submitted a formal request for market access for a particular 
commodity. APHIS does not solicit such requests, nor do we control 
which countries submit requests. Were Indonesia to submit a market 
access request for avocados we would evaluate that request in the same 
way we do any other.
    The same commenter argued that we should direct our efforts towards 
keeping avocado fruit produced domestically within the United States, 
thus reducing the need to import fresh Hass avocado fruit. A second 
commenter urged APHIS to focus instead on bolstering domestic avocado 
growers. The commenter claimed that the number and size of U.S. avocado 
farms is decreasing as a result of competition from foreign growers.
    It is beyond APHIS' statutory authority to prohibit importation of 
a commodity for any reason other than to prevent the introduction or 
dissemination of a plant pest or noxious weed within the United States. 
Under the Plant Protection Act (PPA), APHIS may prohibit the 
importation of a fruit or vegetable into the United States only if we 
determine that the prohibition is necessary in order to prevent the 
introduction or dissemination of a plant pest or noxious weed within 
the United States. The second commenter's claim regarding a decrease in 
the number of domestic producers is incorrect. Nearly all domestic 
production of fresh Hass avocado fruit takes place in California and 
the number of avocado farms in that State increased by nearly 17 
percent between 2002 and 2012. While total acreage did decrease by 20 
percent during that period, largely as a result of urban growth and 
water shortages, higher yields have allowed producers to maintain 
steady overall production levels.
    Another commenter was supportive of the action, but only if the 
fresh Hass avocado fruit from Colombia was grown organically.
    While we do not stipulate that the fresh Hass avocado fruit must be 
grown to USDA organic standards, Colombian growers may choose to do so. 
The USDA Agricultural Marketing Service enforces the regulations 
governing domestic and imported organic agricultural commodities under 
the National Organic Program.
    Several commenters said that the phytosanitary risk represented by 
the importation of fresh Hass avocado fruit from Colombia outweighs any 
potential monetary gains associated with such importation.
    This action was predicated on the findings of several risk 
assessment documents that provide a scientific basis for potential 
importation of fresh Hass avocado fruit from Colombia. Without these 
risk assessment

[[Page 38592]]

documents, which have withstood several reviews and public comment 
periods, APHIS would not have proposed this action. Economic interests 
may stimulate consideration of the expansion of trade of agricultural 
commodities between countries, but all decisionmaking concerning 
phytosanitary restrictions on trade must be science-based. APHIS stands 
behind the risk assessment documents that support this rule, and 
believes they are based on sound science. The risk mitigations required 
by APHIS will remove any insect pests from the importation pathway.
    Another commenter expressed concerns that the national plant 
protection organization (NPPO) of Colombia may not adequately implement 
the required systems approach in the interests of cost-cutting.
    Our standard practice is to conduct site visits prior to the 
initiation of any import program. This is to ensure that all required 
mitigations are in place and the agreed upon operational workplan is 
being enforced. Subject matter experts inspect production sites and 
packinghouses and report their findings to APHIS. Furthermore, the 
operational workplan authorizes the regional APHIS International 
Services Director to conduct periodic audit visits of production sites. 
While it is true that the systems approach will be overseen thereafter 
by the NPPO of Colombia or its designee, APHIS will provide qualified 
personnel to work cooperatively with the NPPO of Colombia and all other 
program participants to review and evaluate operations in the field and 
packinghouses, quarantine pest management and control activities, and 
other safeguarding measures when such assistance is necessary as a 
result of noncompliance events or program audits conducted in 
accordance with APHIS' policy.

Comments on the Pest List

    The pest risk assessment (PRA) that accompanied the proposed rule 
identified four quarantine pests that could be introduced into the 
United States in consignments of fresh Hass avocado fruit from 
Colombia. A quarantine pest is defined in Sec.  319.56-2 as ``a pest of 
potential economic importance to the area endangered thereby and not 
yet present there, or present but not widely distributed and being 
officially controlled.'' The pests listed in the PRA are:
    <bullet> The avocado seed weevil, Heilipus lauri Boheman;
    <bullet> The avocado seed weevil, Heilipus trifasciatus;
    <bullet> Pink hibiscus mealybug, Maconellicoccus hirsutus (Green); 
and
    <bullet> Avocado seed moth, Stenoma catenifer.
    We later amended the PRA in order to remove pink hibiscus mealybug 
from the pest list after further examination revealed that growing 
conditions and standard packinghouse practices used in Colombia would 
effectively prevent pink hibiscus mealybug from following the pathway 
of importation into the United States. We have therefore removed 
references to that pest in the final regulatory text and supporting 
documents.
    One commenter argued that the larvae of the two avocado seed 
weevils and the avocado seed moth are internal feeders, unaffected by 
post-harvest processing and very likely to escape detection via visual 
inspection.
    The avocado seed weevil Heilipus lauri Boheman and the avocado seed 
moth are among the pests analyzed in connection with the importation of 
fresh Hass avocado fruit from Mexico and have been successfully 
mitigated for years using a similar systems approach. As long as post-
harvest practices are maintained as part of the overall systems 
approach, we are confident that the pests will not follow the pathway 
of importation. The avocado seed weevil Heilipus trifasciatus has 
behavior and biology very similar to Heilipus lauri and we are 
therefore similarly confident in the efficacy of the systems approach 
in connection with this pest. In addition, Heilipus trifasciatus is 
very uncommon in Colombia, which also decreases the chance of 
infestation.
    The same commenter observed that fresh avocado fruit are considered 
by APHIS to be conditional non-hosts for the South American fruit fly 
(Anastrepha fraterculus), the guava fruit fly (Anastrepha striata), and 
old world fruit flies (Ceratitis spp.) based on the scientific 
literature and pest interception data. The commenter stated that this 
status does not mean that fresh Hass avocado fruit is not a host and 
therefore risk of infestation is present.
    The commenter is correct that fresh Hass avocado fruit are 
considered by APHIS to be conditional non-hosts to fruit flies. The 
only time fresh Hass avocado fruit may become a fruit fly host is after 
the fruit has fallen from the tree or after harvesting. For that 
reason, we require that all fallen fruit be removed from production 
sites and destroyed weekly. Fallen fruit is also prohibited from 
entering the packinghouses. Harvested avocados are required to be 
safeguarded from fruit flies after harvest until the fruit is packed in 
pest-exclusionary packinghouses and shipped to the United States.

Comments on the Systems Approach

    Based on the findings of the PRA, we determined that measures 
beyond standard port-of-entry inspection will be needed to mitigate the 
risks posed by the pests listed above. These measures were identified 
in the risk mitigation document (RMD) and were used as the basis for 
the requirements of the systems approach.
    At various locations within the proposed regulations, PRA, and RMD, 
we referred to departments of Colombia, which are one of the 
administrative units of that country. The Colombian government 
requested that these references be replaced with the term 
``municipalities.'' Municipalities are smaller administrative units 
which comprise Colombian departments.
    We agree and have changed the language accordingly.
    One commenter requested that fresh Hass avocado fruit from Colombia 
not be allowed into the State of Florida given that the climate in that 
State is conducive to the establishment of the listed pests.
    We have determined, for the reasons described in the RMD that 
accompanied the proposed rule, that the measures specified in the RMD 
will effectively mitigate the risk associated with the importation of 
fresh Hass avocado fruit from Colombia. The commenter did not provide 
any evidence suggesting that the mitigations are not effective. 
Therefore, we are not taking the action requested by the commenter.
    We stipulated that Hass avocado fruit that has fallen from the 
trees would have to be removed from each place of production at least 
once every 7 days, starting 2 months before harvest and continuing to 
the end of harvest. One commenter suggested that we require fallen 
fruit to be removed at shorter intervals.
    The 7-day interval is consistent with the requirement we have 
successfully used for years in relation to the importation of fresh 
Hass avocado fruit from Mexico and Peru. We also note that the 
requirement sets out the 7-day interval as the maximum amount of time 
growers may allow to elapse between removing any fallen fruit. Growers 
may choose to remove fallen fruit at shorter intervals if they feel 
such action is warranted.
    We will require the fresh Hass avocado fruit to be packed in 
insect-proof packaging, or covered with insect-proof mesh or a plastic 
tarpaulin, for transport to the United States. These safeguards will 
have to remain intact

[[Page 38593]]

until arrival in the United States. One commenter asked that we remove 
this requirement for maritime shipments because those consignments are 
constantly protected in equivalent ways due to the nature of the 
transport.
    We are making no changes as a result of this comment since we 
consider the sealed maritime containers in which all maritime shipments 
are transported to represent an adequate safeguarding measure as 
required by the regulations.
    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 Orders 12866 and 13771 and Regulatory Flexibility Act

    This final 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. Further, because this rule is 
not significant, it is not a regulatory action under Executive Order 
13771.
    In accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this rule on small entities. Copies of the full 
analysis are available on the Regulations.gov Web site (see footnote 1 
in this document for a link to Regulations.gov) or by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT.
    Colombia has requested USDA authorization of market access for 
commercial shipments of fresh Hass avocado fruit into the continental 
United States under a systems approach. U.S. fresh Hass avocado fruit 
imports have increased significantly over the years. A growing U.S. 
population and growing Hispanic share of the population, greater 
awareness of the avocado's health benefits, year-round availability of 
fresh, affordable Hass avocado fruit, and greater disposable income 
have contributed to the increased demand.
    The increase in demand over the past decade has contributed to 
domestic producers being able to maintain production levels despite the 
large increase in avocado imports. Annual U.S. fresh avocado fruit 
production, 2011/12 to 2015/16, averaged 426 million pounds, of which 
California accounted for approximately 84 percent, or over 356 million 
pounds. Nearly all of California's production is of the Hass variety.
    Potential economic effects of this rule are estimated using a 
partial equilibrium model of the U.S. fresh Hass avocado fruit sector. 
Colombia is expected to export between 8,000 to 12,000 metric tons of 
fresh Hass avocado fruit, with 10,000 metric tons being most likely. If 
the United States were to import between 10,000 and 12,000 metric tons 
of fresh Hass avocado fruit considering a 20 percent displacement of 
fresh Hass avocado fruit imports from other sources, the decline in 
avocado prices may range from 1.0 percent to 1.5 percent. Consumer 
welfare gains of about $14 million to $22 million will outweigh 
producer welfare losses of about $4 million to $5 million, resulting in 
net welfare gains of about $11 million to $17 million. The lower-bound 
of 8,000 metric tons considers partial import displacement will occur, 
and price and welfare effects will be proportional to the net increase 
in U.S. fresh Hass avocado fruit imports if fresh Hass avocado fruit 
imported from Colombia were to displace fresh Hass avocado fruit 
imports from elsewhere (e.g., Chile, Peru, or Mexico).
    While APHIS does not have information on the size distribution of 
U.S. avocado producers, according to the Census of Agriculture, there 
were a total of 93,020 Fruit and Tree Nut farms (NAICS 1113) in the 
United States in 2012. The average value of agricultural products sold 
by these farms was less than $274,000, which is well below the Small 
Business Administration's small-entity standard of $750,000. It is 
reasonable to assume that most avocado farms qualify as small entities. 
Between 2002 and 2012, the number of avocado operations in California 
grew by approximately 17 percent, from 4,801 to 5,602 operations.

Executive Order 12988

    This final rule allows fresh Hass avocado fruit to be imported into 
the United States from Colombia. State and local laws and regulations 
regarding fresh Hass avocado fruit imported under this rule will be 
preempted while the fruit is in foreign commerce. Fresh fruits are 
generally imported for immediate distribution and sale to the consuming 
public, and 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. 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

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this final rule, which were 
filed under 0579-0459, have been submitted for approval to the Office 
of Management and Budget (OMB). When OMB notifies us of its decision, 
if approval is denied, we will publish a document in the Federal 
Register providing notice of what action we plan to take.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the EGovernment 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 Ms. Kimberly Hardy, 
APHIS' Information Collection Coordinator, at (301) 851-2483.

List of Subjects for 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 part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
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.

0
2. Section 319.56-78 is added to read as follows:


Sec.  319.56-78  Hass avocados from Colombia.

    Fresh Hass variety (Persea americana P. Mill) avocados may be 
imported into the continental United States from Colombia only under 
the conditions described in this section. These conditions are designed 
to prevent the introduction of the following quarantine pests: Heilipus 
lauri Boheman, avocado seed weevil; Heilipus trifasciatus, avocado seed 
weevil; and Stenoma catenifer, avocado seed moth.
    (a) General requirements--(1) Operational workplan. The national 
plant protection organization (NPPO) of Colombia must provide an 
operational workplan to APHIS that details the activities that the NPPO 
of Colombia and places of production and packinghouses registered with 
the NPPO of Colombia will, subject to APHIS' approval of the workplan, 
carry out to meet the requirements of this

[[Page 38594]]

section. The operational workplan must include and describe the 
specific requirements as set forth in this section. APHIS will be 
directly involved with the NPPO of Colombia in monitoring and auditing 
implementation of the regulatory requirements in this section, 
including implementation of the operational workplan.
    (2) Registered places of production. The fresh avocados considered 
for export to the continental United States must be grown by places of 
production that are registered with the NPPO of Colombia and that have 
been determined to be free from H. lauri, H. trifasciatus, and S. 
catenifer in accordance with this section.
    (3) Registered packinghouses. The avocados must be packed for 
export to the continental United States in pest-exclusionary 
packinghouses that are registered with the NPPO of Colombia.
    (4) Avocados may be imported in commercial consignments only.
    (b) Monitoring and oversight. (1) The NPPO of Colombia must visit 
and inspect registered places of production monthly, starting at least 
2 months before harvest and continuing until the end of the shipping 
season, to verify that the growers are complying with the grove 
sanitation requirements of this section and following pest control 
guidelines, when necessary, to reduce quarantine pest populations. Any 
personnel conducting trapping and pest surveys under this section at 
registered places of production must be hired, trained, and supervised 
by the NPPO of Colombia. APHIS may monitor the places of production if 
necessary.
    (2) In addition to conducting fruit inspections at the 
packinghouses, the NPPO of Colombia must monitor packinghouse 
operations to verify that the packinghouses are complying with the 
requirements of this section.
    (3) If the NPPO of Colombia finds that a place of production or 
packinghouse is not complying with the requirements of this section, no 
avocados from the place of production or packinghouse will be eligible 
for export to the United States until APHIS and the NPPO of Colombia 
conduct an investigation and agree that appropriate remedial actions 
have been implemented.
    (4) The NPPO of Colombia must retain all forms and documents 
related to export program activities in places of production and 
packinghouses for at least 1 year and, as requested, provide them to 
APHIS for review.
    (c) Grove sanitation. Avocado fruit that has fallen from the trees 
must be removed from each place of production at least once every 7 
days, starting 2 months before harvest and continuing to the end of 
harvest. Fallen avocado fruit may not be included in field containers 
of fruit brought to the packinghouse to be packed for export.
    (d) Mitigation measures for H. lauri, H. trifasciatus, and S. 
catenifer. Avocados must either be grown in places of production 
located in municipalities of Colombia that are designated as free of H. 
lauri, H. trifasciatus, and S. catenifer in accordance with Sec.  
319.56-5, or be grown in places of production that have been surveyed 
by the NPPO of Colombia and have been determined to be free of these 
pests. If the latter, the NPPO must maintain a buffer zone of 1 
kilometer around the perimeter of the place of production, and must 
survey representative areas of the place of production and buffer zone 
for H. lauri, H. trifasciatus, and S. catenifer monthly, beginning no 
more than 2 months before harvest, in accordance with a survey protocol 
approved by APHIS. If one or more H. lauri, H. trifasciatus, or S. 
catenifer is detected during a survey of the place of production or 
buffer zone, the place of production will be suspended from the export 
program for avocados to the continental United States until APHIS and 
the NPPO of Colombia conduct an investigation and agree that 
appropriate remedial actions to reestablish pest freedom have been 
implemented.
    (e) Harvesting requirements. Harvested avocados must be placed in 
field cartons or containers that are marked with the official 
registration number of the place of production. The place of production 
where the avocados were grown must remain identifiable when the fruit 
leaves the grove, at the packinghouse, and throughout the export 
process. The fruit must be moved to a registered packinghouse within 3 
hours of harvest or must be protected from fruit fly introduction until 
moved. The fruit must be safeguarded in accordance with the operational 
workplan while in transit to the packinghouse and while awaiting 
packing.
    (f) Packinghouse requirements. (1) During the time registered 
packinghouses are in use for packing avocados for export to the United 
States, the packinghouses may only accept avocados that are from 
registered places of production and that are produced in accordance 
with the requirements of this section.
    (2) Avocados must be packed within 24 hours of harvest in a pest-
exclusionary packinghouse. All openings to the outside of the 
packinghouse must be screened or covered by a barrier that prevents 
pests from entering, as specified within the operational workplan. 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.
    (3) Fruit must be packed in insect-proof packaging, or covered with 
insect-proof mesh or a plastic tarpaulin, for transport to the United 
States. These safeguards must remain intact until arrival in the United 
States.
    (4) Shipping documents accompanying consignments of avocados from 
Colombia that are exported to the United States must specify the place 
of production at which the avocados were grown as well as the packing 
shed or sheds in which the fruit was processed and packed. This 
identification must be maintained until the fruit is released for entry 
into the United States.
    (g) NPPO of Colombia inspection. Following any post-harvest 
processing, inspectors from the NPPO of Colombia must visually inspect 
a biometric sample of fruit from each place of production at a rate to 
be determined by APHIS. The inspectors must visually inspect for 
quarantine pests and must cut a portion of the fruit to inspect for H. 
lauri, H. trifasciatus, and S. catenifer. If a single quarantine pest 
is detected during this inspection protocol, the consignment from which 
the sample was taken is prohibited from being shipped to the United 
States. Additionally, if a single H. lauri, H. trifasciatus, or S. 
catenifer at any life stage is detected during this inspection, the 
place of production of the infested avocados will be suspended from the 
export program for avocados to the continental United States until 
APHIS and the NPPO of Colombia conduct an investigation and agree that 
appropriate remedial actions to reestablish pest freedom have been 
implemented.
    (h) Phytosanitary certificate. Each consignment of Hass avocados 
from Colombia must be accompanied by a phytosanitary certificate issued 
by the NPPO of Colombia with an additional declaration stating that the 
avocados in the consignment were produced in accordance with this 
section and the operational workplan.

(Approved by the Office of Management and Budget under control 
number 0579-0459)

    Done in Washington, DC, this 10th day of August 2017.
Michael C. Gregoire,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2017-17211 Filed 8-14-17; 8:45 am]
 BILLING CODE 3410-34-P