[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31893]


[Federal Register: December 28, 1994]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 318

[Docket No. 93-088-2]


Avocados From Hawaii

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations governing the interstate 
movement of Hawaiian fruits and vegetables to allow avocados to be 
moved from Hawaii into Alaska, accompanied by a limited permit and 
subject to certain conditions. This action is warranted because the 
climatic conditions in Alaska ensure that pests of avocados will not 
present a threat to agriculture in that State. This action relieves 
some restrictions on the interstate movement of avocados from Hawaii 
without presenting a significant risk of introducing injurious insects 
into the United States. We are also amending the regulations to clarify 
that limited permits may be issued by inspectors or by persons 
operating under compliance agreements, unless the regulations specify 
that the limited permit must be issued by an inspector.

EFFECTIVE DATE: December 28, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. Victor Harabin, Head, Permit Unit, 
Port Operations, Plant Protection and Quarantine, APHIS, USDA, room 
632, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782, (301) 
436-8645.

SUPPLEMENTARY INFORMATION:

Background

    The Hawaiian Fruits and Vegetables regulations (contained in 7 CFR 
318.13 through 318.13-17, and referred to below as the regulations) 
govern, among other things, the interstate movement from Hawaii of 
avocados in a raw or unprocessed state. Regulation is necessary to 
prevent the spread of the Mediterranean fruit fly (Ceratatis capitata 
(Wied.)), the melon fly (Dacus cucurbitae (Coq.)), and the Oriental 
fruit fly (Bactrocera dorsalis (Hendel)(Syn. Dacus dorsalis)). These 
types of fruit flies are collectively referred to as Trifly. The 
regulations have allowed avocados to be moved interstate from Hawaii to 
any destination in the United States only if, among other things, they 
have been treated in accordance with a treatment specified in either 
Sec. 318.13-4d or Sec. 318.13-4e of the regulations.
    On February 25, 1994, we published in the Federal Register (59 FR 
9136-9140, Docket No. 93-088-1) a proposal to amend the regulations by 
adding a new Sec. 318.13-4g to allow untreated avocados from Hawaii to 
be moved interstate to Alaska only, provided that certain conditions 
are met to help ensure that the avocados moved to Alaska are free from 
Trifly. We proposed these conditions, in addition to limiting movement 
only to Alaska, to minimize the risk to Alaskan apples and pears and to 
address the slight risk that some Hawaiian avocados might eventually 
move from Alaska to other States.
    We solicited comments concerning our proposal for 60 days ending 
April 26, 1994. We received seven comments by that date. They were from 
State departments of agriculture, fruit growers associations, an 
agricultural marketing and trade association, and fruit growers and 
shippers. One comment was in favor of the proposed rule, three comments 
requested specific revisions to the proposed rule, and three comments 
opposed the proposed rule. We carefully considered all of the comments 
we received. They are discussed below.
    One concern raised by commenters opposed to the proposed rule was 
that, although we proposed to allow avocados from Hawaii to be moved to 
Alaska only, there remains a risk that the avocados could be 
transshipped to the contiguous 48 States. These commenters cited, as an 
example of a case which demonstrated that transshipments can occur, an 
interim rule concerning Unshu oranges from Japan that we published in 
the Federal Register on September 3, 1985 (50 FR 35533, Docket No. 85-
354). Prior to this interim rule, Unshu oranges were allowed to be 
imported into the State of Alaska without restriction. The interim rule 
added restrictions because inspection found that Unshu oranges were 
being moved from Alaska to other places in the United States.
    While it is true that the illegal movement did occur, it should be 
explained that there were factors connected with the importation of 
Unshu oranges at that time that gave shippers incentive to violate the 
regulations by shipping their fruit to the contiguous 48 States. These 
factors would not be applicable to the interstate movement of avocados 
from Hawaii.
    For example, Unshu oranges were not then grown in the United 
States. Fresh Unshu oranges were allowed to be imported into the United 
States exclusively from Japan, and only into Alaska. They were, 
therefore, not readily available in all U.S. markets. Unshu oranges are 
an expensive specialty fruit, often given as a gift during winter 
holidays. The demand for these oranges may not have been met by the 
severe restrictions on their importation into the United States, 
providing incentives for transshipment. In contrast, avocados grown in 
the United States are readily available in U.S. markets and are 
relatively inexpensive, especially in the western and southeastern 
States where they are grown. Moving the avocados from Alaska to the 
contiguous 48 States would not benefit shippers economically, as that 
practice did for shippers of Unshu oranges. Reshipping would 
significantly increase the shippers' packaging and shipping costs, 
offsetting any price advantage over California growers; and, since the 
U.S. demand for avocados is already being met by California and Florida 
growers, there is no incentive for shippers to violate the regulations 
in this way.
    We have also considered the suggestion by some commenters that 
Hawaiian avocados may be moved inadvertently from Alaska to the 
contiguous 48 States by tourists or business travellers who would carry 
them in their luggage, pockets, or handbags. It is our belief that this 
is not likely to occur. Avocados are not generally eaten in travel, 
like an apple or banana, because they usually require some preparation, 
such as for use in a salad or dip. Also, avocados are expected to be 
more expensive in Alaska than in California or other southwestern 
States, so a business traveller would not likely buy his or her 
avocados in Alaska if he or she is returning to one of those States.
    A few commenters cited a previous program of the Animal and Plant 
Health Inspection Service (APHIS) that permitted the interstate 
movement of untreated avocados from Hawaii, and that was discontinued 
because a Trifly infestation was discovered in Hawaii. Commenters 
stated that this experience calls into question the reliability of even 
commercial shipments of Hawaiian avocados being pest-free.
    On February 25, 1992, fruit fly larvae were discovered in a 
Hawaiian avocado picked by an APHIS inspector from a tree in an orchard 
that shipped avocados to the contiguous 48 States. Soon after, a 
significant fruit fly infestation was discovered in the Kona area of 
Hawaii. This infestation affected some avocados that could have been 
shipped to the contiguous 48 States. For these reasons, the program 
referred to by commenters, which allowed the movement of untreated 
avocados from Hawaii to any destination in the United States, was 
suspended by APHIS on February 26, 1992, and was removed completely in 
an interim rule published in the Federal Register on July 15, 1992 (57 
FR 31306-31307, Docket No. 92-081-1).
    The situation presented risk to U.S. agriculture only because, at 
the time the infestation was discovered, APHIS was allowing avocados to 
move untreated to the mainland United States. It would not have 
presented any significant risk had the fruit been moving only to the 
State of Alaska, as we have proposed. Before APHIS implemented the 
program to allow Hawaiian avocados to move untreated to the mainland, 
Hawaiian avocados were permitted to move untreated to Alaska only. 
During that time, we had no evidence of any infestations of Trifly. 
However, even if an infestation had been present in Hawaii, Trifly 
would not have become established in Alaska because of Alaska's 
freezing winters. Again, the basis for our proposal to allow Hawaiian 
avocados into Alaska is that climatic conditions in Alaska would not 
allow for the establishment of pests of avocado in the United States. 
Because Hawaiian avocados will not be distributed in the contiguous 48 
States and will only move through specified ports under strict 
conditions en route to Alaska, our previous experience with Hawaiian 
avocados that were to be moved to the mainland does not alter our 
decision to allow avocados from Hawaii into Alaska.
    Some commenters are concerned that this rule will impose too many 
additional inspection responsibilities on the APHIS inspection staff in 
Alaska, as well as in Portland and Seattle. We believe, however, that 
APHIS' Plant Protection and Quarantine (PPQ) staffs at these ports are 
currently adequate to manage the additional inspections. We do not 
anticipate any difficulties in inspecting the small amount of Hawaiian 
avocados which we expect will be moving to Alaska.
    One commenter was concerned that fruit flies could escape during 
transloading of the avocados in Portland or Seattle, and that a 
population could survive in those States long enough to infest summer 
fruits and migrate to California before winter arrives. Our experience 
indicates it is highly unlikely this scenario will occur. We proposed 
to allow transloading only under very strict conditions and only under 
the supervision of an APHIS inspector. Large amounts of fruits and 
vegetables that are prohibited entry into any part of the continental 
United States are currently transshipped through Portland and Seattle, 
and are often transloaded at those ports under the same conditions that 
we proposed for Hawaiian avocados. There has never been any incidence 
of a pest escaping, establishing itself temporarily in Washington or 
Oregon, and then moving south to California.
    There were a few commenters who had suggestions to revise the 
proposed rule. One commenter requested that we add provisions to the 
proposed rule to allow the Hawaiian avocados destined for Alaska to be 
commingled in a single shipping container with other tropical fruits 
that are destined for either Portland or Seattle. We are making no 
changes based on this comment. The proposal states that ``(t)he 
avocados may not be commingled in the same sealed container with 
articles that are intended for entry and distribution in any part of 
the United States other than Alaska.'' We believe this provision is 
necessary because the avocados may carry Trifly and commingling with 
articles not destined for Alaska would pose a pest risk if those 
articles became infested with Trifly. In explaining the reason for the 
request, the commenter states that ``(o)ften shipping costs can be 
greatly reduced if only partial shipments of avocados are ordered, 
providing the shipment can be made with other fruit for the same 
destination.'' According to our proposal, as long as all articles in 
the sealed container are destined for entry and distribution in Alaska, 
the avocados may be commingled with other commodities. However, if the 
other articles in the sealed container are destined for Portland or 
Seattle with the intention of distributing them in any part of the 
United States other than Alaska, the shipment would be prohibited for 
the reasons given in the proposed rule.
    The same commenter also requested that APHIS allow Hawaiian 
avocados destined for Alaska to be commingled in a single shipping 
container with other tropical fruits moving to foreign destinations. 
The commenter asked that APHIS allow such shipments to be broken down 
in Portland or Seattle, with the avocados being sent on to Alaska and 
the other fruits being sent to their respective foreign destinations.
    Section 318.13-17 of the regulations governs the transit of fruits 
and vegetables from Hawaii into or through the continental United 
States en route to foreign destinations. Paragraph (d) of this section 
states that ``(f)ruits and vegetables shipped into or through the 
continental United States from Hawaii in accordance with this section 
may not be commingled in the same sealed container with articles that 
are intended for entry and distribution in the continental United 
States.'' ``Continental United States'' is defined in Sec. 318.13-1 to 
include the State of Alaska. Therefore, in accordance with Sec. 318.13-
17, Hawaiian avocados moved to Alaska could not be commingled in a 
single shipping container with Hawaiian produce transiting the United 
States en route to foreign destinations. To allow such a scenario would 
mean that produce moving under different regulations would be 
commingled in a single shipping container. It would be operationally 
difficult to monitor the breakdown and movement of such a shipment to 
ensure that the avocados are actually moved to Alaska only and that the 
other produce is moved properly through the United States to its 
foreign destination. To help ensure that all produce is moved safely 
and in accordance with the regulations, we believe it is necessary to 
maintain that the Hawaiian avocados may only be commingled in a single 
shipping container with produce that is also moving to Alaska only. We 
are, therefore, making no changes based on this comment.
    Another commenter suggested that we extend the proposed rule to 
allow avocados to be carried from Hawaii to Alaska by air passengers in 
their luggage under the following conditions: (1) In pit baggage on 
direct flights to Alaska only; (2) only during the months of October to 
March or April; (3) only ``green ripe'' avocados; and (4) only rough-
skinned varieties with the stems intact. We are making no changes based 
on this comment, for several reasons. The proposed rule includes many 
provisions and safeguards to help minimize the risk that the avocados 
will be infested with Trifly, and to help ensure that the avocados are 
not diverted from their final destination in Alaska. For example, the 
proposal allows only commercial shipments of avocados to be moved from 
Hawaii to Alaska, since wild or ``backyard'' avocados could present a 
higher pest risk than commercially produced avocados. APHIS inspectors 
would have no way of knowing whether or not an avocado carried by an 
individual air passenger is commercially produced. Further, we proposed 
that the avocado shipments be accompanied from Hawaii to Alaska by a 
limited permit, as a means of documenting the movement of the shipment 
and ensuring it arrives at its final destination in Alaska. We would 
have no way of confirming whether or not avocados carried in a 
passenger's luggage were diverted en route to Alaska because there 
would be no limited permit. We also proposed strict packing 
requirements and that the avocados be moved in sealed containers and be 
transloaded only under specified conditions. These provisions further 
minimize the risk that Trifly would be introduced in the continental 
United States, should the avocados be carrying Trifly. We believe these 
precautions are necessary, and none of these precautions would be 
possible for air passenger luggage.
    Finally, one commenter asked that we extend the proposal to allow 
all ``fruits and vegetables otherwise prohibited movement into or 
through the continental United States'' to be moved to Alaska under the 
same provisions as Hawaiian avocados. We are making no changes based on 
this comment. This rulemaking is only concerned with Hawaiian avocados. 
If, in the future, we determine that other fruits and vegetables 
prohibited movement into the continental United States can be safely 
moved to Alaska only, we will publish a separate proposed rule in the 
Federal Register.
    Therefore, based on the rationale set forth in the proposed rule 
and in this document, we are adopting the provisions of the proposal as 
a final rule.

Miscellaneous

    We are amending the phrase ``Approved by the Office of Management 
and Budget under control number 0579-0049'' that appears at the end of 
Sec. 318.13-4 by removing the number ``0579-0049'' and replacing it 
with the number ``0579-0088''. This change corrects a prior misprint.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register. Immediate 
implementation of this rule is necessary to provide relief to those 
persons who are adversely affected by restrictions we no longer find 
warranted. Therefore, the Administrator of the Animal and Plant Health 
Inspection Service has determined that this rule should be effective 
upon publication in the Federal Register.

Executive Order 12866 and Regulatory Flexibility Act

    This 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 rule will allow untreated avocados to be moved interstate from 
Hawaii to Alaska under certain conditions. Avocados are not presently 
shipped from Hawaii to Alaska because required treatments do not make 
it economically feasible.
    In 1992, the U.S. production of avocados, not including Hawaii, was 
approximately 290 million pounds. California produced approximately 86 
percent of this total, with the Hass variety accounting for about 85 
percent of California's production. The peak harvest season of the Hass 
variety is April through October. California supplied approximately 90 
percent of Alaska's 1992 avocado market.
    In 1992, Hawaii produced approximately 700,000 pounds of avocados. 
Thus, Hawaii's total production was less than 0.3 percent of the total 
U.S. avocado production for that year. There are about 100 farms in 
Hawaii that produce avocados. All of these farms would be considered 
small entities (defined as having sales of less than $500,000 
annually), as the total value in 1992 for Hawaiian avocados was only 
$322,000. The Sharwil variety accounts for about 75 percent of Hawaii's 
avocado production. The peak harvest season for Sharwil avocados is 
November through May.
    This rule change will positively affect Hawaiian avocado producers 
by providing an economically feasible place for them to ship avocados 
when there is a surplus in production. Although almost all of Alaska's 
avocados are supplied by California, the addition of a Hawaiian supply 
is unlikely to have a significant impact on Californian avocado 
producers. Before a suspension of shipments in 1992, the shipment of 
Hawaiian avocados to the contiguous 48 States peaked at only 100,000 
pounds. Further, Californian avocados (Hass variety) and Hawaiian 
avocados (Sharwil variety) have different peak production seasons. As a 
result, their importation will overlap very little. The shipment of 
Hawaiian avocados will allow Alaska to have a continuous and varied 
avocado supply.
    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 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 12778

    This rule has been reviewed under Executive Order 12778, 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.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1980 (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 0579-0088.

List of Subjects in 7 CFR Part 318

    Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and 
pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin 
Islands.

    Accordingly, 7 CFR part 318 is amended as follows:

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

    1. The authority citation for part 318 continues to read as 
follows:

    Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, 164a, 
167; 7 CFR 2.17, 2.51, and 371.2(c).


Sec. 318.13-1  [Amended]

    2. Section 318.13-1 is amended as follows:
    a. In the definition for Compliance agreement the reference 
``Sec. 318.13-4(e),'' and the reference ``and Sec. 318.13-4g'' are 
removed.
    b. A definition for Commercial shipment is added, in alphabetical 
order, to read as set forth below.
    c. In the definition for Limited permit, the introductory text is 
amended by adding the phrase ``or a person operating under a compliance 
agreement'' immediately following ``inspector'', and paragraph (1) is 
amended by removing the phrase ``, in conformity with a compliance 
agreement''.


Sec. 318.13-1  Definitions.

    Commercial shipment. Shipment containing fruits and vegetables that 
an inspector identifies as having been produced for sale or 
distribution in mass markets. Such identification will be based on a 
variety of indicators, including, but not limited to: Quantity of 
produce, type of packaging, identification of grower and packing house 
on the packaging, and documents consigning the shipment to a wholesaler 
or retailer.
* * * * *
    3. In Sec. 318.13-2, the regulatory text of paragraph (a) is 
redesignated as paragraph (a)(1) and a new paragraph (a)(2) is added to 
read as follows:


Sec. 318.13-2  Regulated articles.

    (a) * * *
    (2) Avocados which have been moved to Alaska in accordance with 
Sec. 318.13-4g are prohibited movement from Alaska into or through 
other places in the continental United States, Guam, the Northern 
Mariana Islands, Puerto Rico, and the Virgin Islands of the United 
States.
* * * * *
    4. In Sec. 318.13-3, the regulatory text of paragraph (b) is 
redesignated as paragraph (b)(1) and a new paragraph (b)(2) is added to 
read as follows:


Sec. 318.13-3  Conditions of movement.

* * * * *
    (b) * * *
    (2) Avocados may be moved interstate from Hawaii to Alaska if the 
provisions of Sec. 318.13-4g are met, and if they are accompanied by a 
limited permit issued by an APHIS inspector in accordance with 
Sec. 318.13-4(c).
* * * * *
    5. Section 318.13-4 is amended as follows:
    a. A new paragraph (c)(3) is added to read as set forth below.
    b. Paragraph (d) is amended by adding the phrase ``under paragraph 
(c)(3) of this section'' immediately following the words ``limited 
permit''.
    c. At the end of this section, the OMB control number ``0579-0049'' 
is removed and the number ``0579-0088'' is added in its place.


Sec. 318.13-4  Conditions governing the issuance of certificates or 
limited permits.

* * * * *
    (c) * * *
    (3) Except when the regulations specify an inspector must issue the 
limited permit, limited permits may be issued by a person operating 
under a compliance agreement.
* * * * *


Sec. 318.13-4f  [Amended]

    6. In Sec. 318.13-4f, paragraph (b)(2)(iii) is amended by removing 
the reference ``Sec. 318.13-4(e)'' and adding ``Sec. 318.13-4(d)'' in 
its place.
    7. Section 318.13-4g is added to read as follows:


Sec. 318.13-4g  Administrative instructions governing movement of 
avocados from Hawaii to Alaska.

    Avocados may be moved interstate from Hawaii to Alaska without 
being certified in accordance with Sec. 318.13-4 (a) or (b) only under 
the following conditions:
    (a) Distribution and marking requirements. The avocados may be 
moved interstate for distribution in Alaska only, the boxes of avocados 
must be clearly marked with the statement ``Distribution limited to the 
State of Alaska'', and the shipment must be identified in accordance 
with the requirements of Sec. 318.13-6.
    (b) Commercial shipments. The avocados may be moved in commercial 
shipments only.
    (c) Packing requirements. The avocados must have been sealed in the 
packing house in Hawaii in boxes with a seal that will break if the box 
is opened.
    (d) Ports. The avocados may enter the continental United States 
only at the following ports: Portland, Oregon; Seattle, Washington; or 
any port in Alaska.
    (e) Shipping requirements. The avocados must be moved either by air 
or ship and in a sealed container. The avocados may not be commingled 
in the same sealed container with articles that are intended for entry 
and distribution in any part of the United States other than Alaska. If 
the avocados arrive at either Portland, Oregon or Seattle, Washington, 
they may be transloaded only under the following conditions:
    (1) Shipments by sea. The avocados may be transloaded from one ship 
to another ship at the port of arrival, provided they remain in the 
original sealed container and that APHIS inspectors supervise the 
transloading. If the avocados are stored before reloading, they must be 
kept in the original sealed container and must be in an area that is 
either locked or guarded at all times the avocados are present.
    (2) Shipments by air. The avocados may be transloaded from one 
aircraft to another aircraft at the port of arrival, provided the 
following conditions are met:
    (i) The transloading is done into sealable containers;
    (ii) The transloading is carried out within the secure area of the 
airport--i.e., that area of the airport that is open only to personnel 
authorized by the airport security authorities;
    (iii) The area used for any storage of the shipment is within the 
secure area of the airport, and is either locked or guarded at all 
times the avocados are present. The avocados must be kept in a sealed 
container while stored in the continental United States en route to 
Alaska; and
    (iv) APHIS inspectors supervise the transloading.
    (3) Exceptions. No transloading other than that described in 
paragraphs (e) (1) and (2) of this section is allowed except under 
extenuating circumstances (such as equipment breakdown) and when 
authorized and supervised by an APHIS inspector.
    (f) Limited permit. Shipments of avocados must be accompanied by a 
limited permit issued by an APHIS inspector in accordance with 
Sec. 318.13-4(c) of this subpart. The limited permit will be issued 
only if the inspector examines the shipment and determines that the 
shipment has been prepared in compliance with the provisions of this 
section.

    Done in Washington, DC, this 20th day of December 1994.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 94-31893 Filed 12-27-94; 8:45 am]
BILLING CODE 3410-34-P