[Federal Register Volume 60, Number 127 (Monday, July 3, 1995)]
[Proposed Rules]
[Pages 34832-34842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16405]




[[Page 34831]]

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Part VIII





Department of Agriculture





_______________________________________________________________________



Animal and Plant Health Inspection Service



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7 CFR Part 319



Importation of Fresh Hass Avocado Fruit Grown in Michoacan, Mexico; 
Proposed Rule

  Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed 
Rules   

[[Page 34832]]


DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 94-116-3]


Importation of Fresh Hass Avocado Fruit Grown in Michoacan, 
Mexico

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule and notice of public hearings.

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SUMMARY: We are proposing to amend the regulations governing the 
importation of fruits and vegetables to allow fresh Hass avocado fruit 
grown in approved orchards in approved municipalities in Michoacan, 
Mexico, to be imported into certain areas of the United States, subject 
to certain conditions. We are proposing this action in response to a 
request from the Mexican Government and following a review of public 
comments received regarding that request. The conditions to which the 
proposed importation of fresh Hass avocado fruit would be subject, 
including pest surveys and pest risk-reducing cultural practices, 
packinghouse procedures, inspection and shipping procedures, and 
restrictions on the time of year shipments may enter the United States, 
would reduce the risk of pest introduction to an insignificant level. 
Furthermore, climatic conditions in those areas of the United States 
into which the avocados would be allowed would preclude the 
establishment in the United States of any of the plant pests known to 
attack avocados in Michoacan, Mexico.

DATES: Consideration will be given only to comments received on or 
before October 16, 1995. We also will consider comments made at five 
public hearings to be held between August 17, 1995, and August 31, 
1995. Hearings will be held in Washington, DC, on August 17 and 18, 
1995, and in southern California on August 30 and 31, 1995. A notice 
detailing the specific dates of the remaining hearings will be 
published in a future issue of the Federal Register.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 94-116-3, Regulatory Analysis and Development, PPD, APHIS, 
Suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please 
state that your comments refer to Docket No. 94-116-3. Comments 
received may be inspected 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 comments are requested to call ahead on (202) 690-2817 to 
facilitate entry into the comment reading room. The public hearings 
will be held in Washington, DC; southern Florida; New York, NY; 
Chicago, IL; and southern California. A notice detailing the specific 
location of each hearing will be published in a future issue of the 
Federal Register.

FOR FURTHER INFORMATION CONTACT: Mr. Victor Harabin, Head, Permit Unit, 
Port Operations, PPQ, APHIS, 4700 River Road Unit 136, Riverdale, MD 
20737-1236, (301) 734-8645, or FAX (301) 734-5786.

SUPPLEMENTARY INFORMATION:

Public Hearings

    Five public hearings will be held on this notice of proposed 
rulemaking. The Animal and Plant Health Inspection Service (APHIS) will 
hold one public hearing dedicated exclusively to the scientific basis 
for this proposed rule. The first hearing will be open to the public, 
but participation will be limited to experts in the fields of pest risk 
assessment and pest risk mitigation measures. Four additional hearings 
will be held to provide a full opportunity to all interested parties to 
address every aspect of the proposed rule.

The First Public Hearing--Presentations by Experts in Risk Assessment

    The first public hearing, on the scientific basis for this proposed 
rule, is scheduled to be held in Washington, DC, on August 17 and 18, 
1995. A notice will be published in a future issue of the Federal 
Register detailing the specific location of the Washington, DC, 
hearing. This hearing will focus exclusively on the APHIS pest risk 
assessment documents upon which the proposed rule is based, and will 
provide an opportunity for experts in relevant disciplines to present 
their views on those documents and the scientific issues raised by 
them.
    The APHIS pest risk assessment documents upon which this proposal 
is based identify the plant pest risks associated with the importation 
of Hass avocados grown in approved orchards in approved municipalities 
in Michoacan, Mexico, discuss the mitigation measures identified as 
reasonable and necessary to prevent the introduction of plant pests 
into the United States, and contain a quantitative risk analysis 
examining the likelihood of plant pest introduction into the United 
States if Hass avocados are allowed to be imported as proposed in this 
document.
    Participation in the Washington, DC, hearing will be limited to 
those who register and who identify themselves as having expertise in 
the areas of pest risk assessment and mitigation measures. Experts 
wishing to participate will be asked to furnish for the record their 
educational background and their expertise and qualifications relevant 
to pest risk assessment and mitigation measures. Such experts include 
scientists, technical experts, and academicians expert in entomology, 
plant health, plant pathology, risk assessment, and risk mitigation. 
Federal, State, and local officials, growers, and handlers who have 
experience with risk assessment, plant protection, quarantine, or risk 
mitigation measures will also be welcome to participate in this first 
public hearing.
    Presenters are welcome to register as a panel if they believe a 
panel of experts from several fields would foster a more complete 
discussion and evaluation of issues related to the pest risk assessment 
underlying this proposal.

Additional Public Hearings

    Four additional hearings will be held during the period between 
August 21, 1995, and August 31, 1995, to address all aspects of this 
proposed rule. These four public hearings are scheduled to be held in 
southern Florida; New York, NY; Chicago, IL; and southern California. 
The California hearing is scheduled to be held on August 30 and 31, 
1995; the exact dates of the other three hearings and the specific 
locations of all four hearings will be announced in a notice published 
in a future issue of the Federal Register.
    Any interested party may appear and be heard in person, or through 
an attorney or other representative. We are interested in obtaining the 
views of the public on all aspects of this proposed rule, including the 
APHIS pest risk assessment documents and the conclusions contained 
therein.
General Information Applicable to All Five Public Hearings

    The APHIS pest risk assessment documents upon which this proposal 
is based are available. Parties interested in receiving copies may 
obtain them by contacting APHIS' Legislative and Public Affairs Staff 
at (301) 734-3256 or by writing to Legislative and Public Affairs, 4700 
River Road Unit 51, Riverdale, Maryland 20737-1232. Copies of the risk 
assessment documents will be available at each of the scheduled public 
hearings. 

[[Page 34833]]

    Persons who wish to speak at the hearings will be asked to provide 
their names and their affiliations. Those who wish to form a panel to 
present their views will be asked to provide the name of each member of 
the panel and the organizations the panel members represent. Parties 
wishing to make oral presentations may register in advance by calling 
the Regulatory Analysis and Development voice mail at (301) 734-4346 
and leaving a message stating their name, telephone number, 
organization, and location of the hearing at which they wish to speak. 
If a party is registering for a panel, the party will also be asked to 
provide the name of each member of the panel and the organization each 
panel member represents.
    The hearings will begin at 9 a.m. and are scheduled to end at 5 
p.m. each day. The Washington, DC, and California hearings may conclude 
at any time on the second day if all persons who have registered to 
participate have been heard. Similarly, the other three hearings may 
conclude earlier than 5 p.m. if all persons who have registered have 
been heard. The presiding officer may extend the time of any hearing or 
limit the time for each presentation so that everyone is accommodated 
and all interested persons appearing on the scheduled dates have an 
opportunity to participate.
    Registration for each hearing may be accomplished in advance in 
accordance with the above-described instructions, or by registering 
with the presiding officer between 8:30 a.m. and 9 a.m. on any hearing 
day.
    A representative of APHIS will preside at each public hearing. 
Written statements are encouraged, but not required. Any written 
statement submitted will be made part of the record of the public 
hearing. Anyone who reads a written statement should provide two copies 
to the presiding officer at the hearing. A transcript will be made of 
each public hearing and the transcript will be placed in the rulemaking 
record and will be available for public inspection.
    The purpose of these public hearings is to give all interested 
parties an opportunity to present data, views, and information to the 
Department concerning this proposed rule. Questions about the content 
of the proposal may be part of a commenter's oral presentation. 
However, neither the presiding officer nor any other representative of 
the Department will respond to the comments at the hearing, except to 
clarify or explain the proposed rule and the documents upon which the 
proposal is based.

Background

    The Fruits and Vegetables regulations contained in 7 CFR 319.56 
through 319.56-8 (referred to below as the regulations) prohibit or 
restrict the importation of fruits and vegetables into the United 
States to prevent the introduction and dissemination of injurious 
insects that are new to or not widely distributed within and throughout 
the United States. The regulations do not provide for the importation 
of fresh avocado fruits grown in Mexico into the United States, except 
to Alaska under the conditions specified in Sec. 319.56-2bb.
    On November 15, 1994, we published an advance notice of proposed 
rulemaking in the Federal Register (59 FR 59070-59071, Docket No. 94-
116-1) announcing that APHIS had received a request from the Government 
of Mexico that we allow, under certain conditions, the importation of 
fresh Hass avocado fruit grown in approved orchards in approved 
municipalities in Michoacan, Mexico, into certain areas of the United 
States. The advance notice solicited public comment on the Mexican 
Government request and advised the public that two public meetings 
would be held to provide interested persons with an opportunity to 
present their views regarding the possible importation of fresh Hass 
avocado fruit grown in Mexico.
    We solicited comments concerning the Mexican Government request for 
28 days ending on December 13, 1994. During that period, we received 
over 100 comments (including those given at the hearings), several of 
which requested that we extend the comment period so that interested 
persons would have additional time to analyze the Mexican Government 
request before submitting comments. On December 19, 1994, we published 
a document in the Federal Register (59 FR 65280, Docket No. 94-116-2) 
informing the public that we had reopened the comment period and would 
continue to accept comments until January 3, 1995, including any 
comments received between December 13--the close of the original 
comment period--and December 19. By the close of the extended comment 
period, we had received over 300 comments.
    Twenty of the comments favored allowing the importation of fresh 
Hass avocado fruit grown in Mexico; the remainder objected. We 
carefully considered all of the comments during the formulation of this 
proposed rule and have included proposed phytosanitary requirements 
that we believe address many of the concerns expressed in the comments. 
Other issues raised in the comments that are not addressed by the 
proposed phytosanitary requirements are discussed below, following the 
explanation of our proposal.

Mexican Government Request

    In July 1994, Sanidad Vegetal, the plant protection branch of the 
Mexican Ministry of Agriculture and Water Resources, requested that 
APHIS consider allowing the importation of fresh Hass avocado fruit 
grown in approved orchards in approved municipalities in Michoacan, 
Mexico, into Connecticut, Delaware, Illinois, Indiana, Kentucky, Maine, 
Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, 
Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, West Virginia, and 
Wisconsin. A detailed plan that accompanied the request contained 
specific phytosanitary guidelines for mitigating the risk of plant pest 
introduction associated with the importation of Mexican avocados into 
the United States. The risk mitigation plan was based, in part, on 
research conducted in 1993 by Sanidad Vegetal to determine the 
susceptibility of Hass avocados to fruit fly infestation; it was also 
based on historical avocado pest survey data for Michoacan and recent 
Sanidad Vegetal surveys of Michoacan for pests specific to avocados.
    The insect pests of concern are three species of fruit flies 
(Anastrepha ludens, A. serpentina, and A. striata), four species of 
avocado weevils (Conotrachelus perseae, C. aguacatae, Heilipus lauri, 
and Copturus aguacatae), and one species of avocado seed moth (Stenoma 
catenifer). These pests would present a significant pest risk to U.S. 
crops if introduced, particularly in the southeastern and southwestern 
United States.
Risk Management Analysis and Pest Risk Analysis Documents

    This proposed rule is based in part on a document prepared by APHIS 
entitled ``Risk Management Analysis: A Systems Approach for Mexican 
Avocado,'' which assesses the pest risks and risk management options 
associated with the proposed importation of fresh Hass avocado fruit 
grown in Michoacan, Mexico. Risk mitigation measures discussed in that 
document are included in this proposed rule as requirements for the 
proposed importation. APHIS has also prepared a quantitative pest risk 
analysis for the proposed importation of fresh Hass avocado fruit grown 
in Michoacan, Mexico, that examines the likelihood of pest introduction 
into susceptible areas 

[[Page 34834]]
of the United States. Copies of those documents may be obtained by 
contacting APHIS' Legislative and Public Affairs staff at (301) 734-
3256 or by writing to Legislative and Public Affairs, Public Affairs, 
4700 River Road Unit 51, Riverdale, MD 20737-1232.

Systems Approaches

    Using systems approaches to phytosanitary security, APHIS 
establishes growing, packing, shipping, and other conditions whereby 
fruits and vegetables may be imported into the United States from 
countries that are not free of certain plant pests. APHIS has used 
systems approaches to establish conditions for the importation of 
several commodities, including Unshu oranges from Japan (7 CFR 319.28), 
tomatoes from Spain (7 CFR 3119.56-2dd), and peppers from Israel (7 CFR 
319.56-2u).
    For the Unshu oranges mentioned above, APHIS used a systems 
approach to establish growing, treatment, packing, and inspection 
requirements designed to prevent the introduction of citrus canker, 
which exists in Japan and can infect Unshu oranges. The rule requires 
Japanese growers and agricultural agencies to survey groves for citrus 
canker, undertake measures to exclude citrus canker from groves of 
Unshu oranges intended for export, and apply surface sanitary 
treatments to Unshu oranges being exported to the United States. For 
the tomatoes and peppers mentioned above, APHIS used a systems approach 
to develop measures to prevent the introduction of Mediterranean fruit 
fly (Medfly), which exists in Spain and Israel and can infest tomatoes 
and peppers. These rules require Spanish and Israeli agricultural 
agencies and growers to periodically survey growing areas for Medfly, 
undertake measures to exclude Medfly from growing and packing areas, 
and pack tomatoes and peppers in flyproof packaging to prevent 
infestation. Each of these programs has performed successfully.
    APHIS also uses systems approaches to establish growing, packing, 
shipping, and other conditions whereby domestic fruits and vegetables 
may be exported from areas in the United States that are not free of 
certain plant pests. Systems approaches are currently used to establish 
export conditions for certain citrus fruit from Florida and Texas, 
apples from Washington, and stonefruit from California. Each of these 
programs has performed successfully.
    In developing this proposal to allow the importation of fresh Hass 
avocado fruit grown in Michoacan, Mexico, APHIS again has used a 
systems approach to phytosanitary security. Using a systems approach, 
APHIS developed a series of complementary phytosanitary measures, 
including pest surveys and pest risk reducing cultural practices, 
packinghouse procedures, a limited shipping season, inspection and 
shipping procedures, and restrictions on distribution within the United 
States, all intended to prevent the introduction of avocado seed and 
stem weevils, an avocado seed moth, and three species of fruit flies 
that can infest avocados and other host fruits and vegetables.

Proposed Import Requirements for Hass Avocados Grown in Mexico

    We are proposing to allow fresh Hass variety avocados to be 
imported into the United States from Michoacan, Mexico, if they are 
grown, packed, and shipped under specified phytosanitary conditions 
designed to mitigate the risk of plant pest introduction. The 
conditions for importation would be set out in a new section of the 
regulations, Sec. 319.56-2ff. Some of our proposed requirements were 
originally suggested in the mitigation plan that accompanied the 
request submitted by the Mexican Government. Other proposed 
requirements go beyond those suggested in the plan and are based in 
part on comments we received in response to our November 1994 advance 
notice of proposed rulemaking, as we agree with many of the comments 
that some additional safeguards would be necessary to prevent the 
introduction of plant pests if Mexican avocados were imported into the 
United States.

Permit Required

    Section 319.56-3 of the regulations requires that a person who 
wishes to import fruits or vegetables under the regulations must first 
apply for a permit from APHIS' Plant Protection and Quarantine 
Programs. Section 319.56-4 states that, upon receipt of an application 
and approval by an inspector, a permit will be issued that specifies 
the conditions of entry and the port of entry. Therefore, our proposed 
regulations would require that the avocados be imported under a permit 
issued in accordance with Sec. 319.56-4.

Commercial Shipments

    We would allow only commercial shipments of Hass avocados to be 
imported from Michoacan into the United States. Wild or ``backyard'' 
avocados generally grow under very different conditions than commercial 
produce. Avocados growing in the wild or in backyard gardens usually 
grow among different varieties of plants and produce, with little or no 
pest control and a lack of sanitary controls during both growing and 
packing. Therefore, the importation of wild or backyard avocados would 
present a greater risk of pest introduction than would the importation 
of commercially produced avocados.

Seasonal Restrictions

    We would allow Hass avocados to be imported into the United States 
from Michoacan only from November through February. The risk of 
Anastrepha fruit flies infesting avocados and subsequently being 
introduced into the United States through importation is virtually 
eliminated by restricting avocado importation to these months. 
Anastrepha fruit flies reduce mating and oviposition activities when 
temperatures drop below 70  deg.F. Generally, temperatures in the 
growing areas in Michoacan are below 70  deg.F between November and 
February. Furthermore, any risk that fruit flies and other pests of 
avocados could become established in the United States during these 
months would be greatly reduced because of low temperatures and 
subsequent lack of host material in the areas proposed for 
distribution.

Distribution Within the United States

    Hass avocados imported from Michoacan could be distributed only in 
Connecticut, Delaware, the District of Columbia, Illinois, Indiana, 
Kentucky, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New 
Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, 
West Virginia, and Wisconsin. We do not believe that any of the pests 
of concern could become established if introduced into these States, 
due to the cold climate and a lack of suitable host material during the 
months imports would be allowed. As noted below, we would require that 
the boxes in which the avocados are shipped be marked with the 
statement ``Distribution limited to the following States: CT, DC, DE, 
IL, IN, KY, ME, MD, MA, MI, NH, NJ, NY, OH, PA, RI, VA, VT, WV, and 
WI.''
Trust Fund Agreement and APHIS Participation

    APHIS would be directly involved with Sanidad Vegetal in the 
monitoring and supervision of avocado exports to the United States. 
APHIS would not be involved in a preclearance program for the fruit in 
Mexico; rather, APHIS would monitor orchard surveys, trapping, harvest, 
and packinghouse operations to ensure that our export requirements are 
met. The costs of APHIS' involvement during each shipping season would 
be covered by a trust fund agreement between APHIS 

[[Page 34835]]
and an industry association representing Mexican avocado growers, 
packers, and exporters. Under the agreement, the Mexican industry 
association would pay in advance all estimated costs that APHIS 
expected to incur through its involvement in the required trapping, 
survey, harvest, and packinghouse operations prescribed in proposed 
Sec. 319.56-2ff(c). Those costs would include administrative expenses 
incurred in conducting the services and all salaries (including 
overtime and the Federal share of employee benefits), travel expenses 
(including per diem expenses), and other incidental expenses incurred 
by the inspectors in performing those services. The agreement would 
require the Mexican industry association to deposit a certified or 
cashier's check with APHIS for the amount of the costs, as estimated by 
APHIS. If the deposit was not sufficient to meet all costs incurred by 
APHIS, the agreement would further require the Mexican industry 
association to deposit another certified or cashier's check with APHIS 
for the amount of the remaining costs, as determined by APHIS, before 
APHIS' services would be completed. After a final audit at the 
conclusion of each shipping season, any overpayment of funds would be 
returned to the Mexican industry association or held on account until 
needed.

Safeguards in Mexico

    We are proposing to require that the avocados be grown in the 
Mexican State of Michoacan in an orchard located in a municipality that 
has been surveyed for certain pests and found to be free from those 
pests. A trapping program would also have to be in place in the 
municipality to detect the presence of certain fruit flies. We would 
require that Sanidad Vegetal submit an annual workplan to APHIS that 
detailed the activities Sanidad Vegetal would carry out to meet the 
surveying, trapping, and other phytosanitary requirements of the 
proposed regulations. Sanidad Vegetal would be required to supervise 
all of the trapping and pest surveys required of municipalities and 
orchards wishing to export Hass avocados to the United States. Although 
Hass avocado growers could pay for trapping and survey expenses, 
Sanidad Vegetal would be responsible for hiring, training, and 
supervision of all personnel involved in trapping and conducting the 
pest surveys. APHIS would be directly involved with Sanidad Vegetal in 
the monitoring and supervision of the trapping and surveying 
activities.

Municipality Requirements

    A municipality would have to be listed as an approved municipality 
in the annual work plan provided to APHIS by Sanidad Vegetal and would 
have to be determined to be free from the seed weevils Heilipus lauri, 
Conotrachelus perseae, and C. aguacatae, and the seed moth Stenoma 
catenifer before Hass avocados could be exported to the United States 
from orchards in that municipality. Sanidad Vegetal would determine the 
pest status of municipalities by conducting annual surveys during the 
growing season that would have to be completed before harvest. We would 
require that Sanidad Vegetal survey at least 300 hectares in any 
municipality with orchards wishing to export to the United States. 
Portions of each registered orchard would have to be included in these 
surveys. Also, areas with backyard and wild fruit would have to be 
included. We have determined that surveying 300 hectares within a 
municipality results in a 95 percent confidence level that an 
infestation of one percent or greater within the municipality would be 
detected. As stated above, APHIS would monitor these pest surveys.
    Also, APHIS would require Sanidad Vegetal to trap for Medfly at a 
rate of one trap per 1 to 4 square miles throughout each Michoacan 
municipality containing orchards growing avocados for export to the 
United States. Although Medfly outbreaks have occurred only in southern 
Mexico, we feel such trapping is necessary as a safeguard against the 
possible migration of the pest to Michoacan.

Sanidad Vegetal Avocado Export Program

    Only growers, orchards, and packinghouses participating in the 
avocado export program administered by Sanidad Vegetal could export 
Hass avocados to the United States. The Sanidad Vegetal avocado export 
program has been in place for more than 7 years to monitor the export 
of avocados to several European countries, Japan, and elsewhere. 
Sanidad Vegetal requires participants to comply with inspection, 
packing, and shipping practices to ensure that seed weevils and other 
pests are not present in avocados exported from Mexico.
    The Sanidad Vegetal avocado export program has been very successful 
in ensuring that only pest-free avocados are exported from Michoacan. 
For example, during the last 3 years, over 5 million kilograms of 
avocados were exported from Michoacan to Japan. Over this same period, 
the Japanese Ministry of Agriculture, Forestry, and Fisheries, which 
extensively samples and cuts avocados imported from Mexico, recorded no 
interceptions of any of the pests of concern (Anastrepha ludens, A. 
serpentina, A. striata, Conotrachelus perseae, C. aguacatae, Heilipus 
lauri, Copturus aguacatae, Stenoma catenifer).
    While our proposed regulations would place conditions on avocado 
growers, orchards, and packinghouses beyond those required by the 
Sanidad Vegetal program, we believe that requiring participation in the 
Sanidad Vegetal avocado export program would help minimize the risk 
that Hass avocados infested with weevils or other pests would be 
exported to the United States.

Orchard and Grower Requirements

    The orchard and the grower would have to be registered with the 
Sanidad Vegetal avocado export program discussed above and would have 
to be listed as an approved orchard or an approved grower in the annual 
work plan provided to APHIS by Sanidad Vegetal.
    We are proposing to require that Sanidad Vegetal conduct surveys, 
at least annually, for the avocado stem weevil Copturus aguacatae in 
each orchard wishing to export avocados to the United States and in all 
contiguous orchards and properties. These surveys would have to be 
conducted during the growing season and completed before harvest. 
Orchards would have to be free of this pest in order to be eligible to 
export avocados to the United States.
    To monitor the fruit fly population within avocado production 
areas, APHIS would require Sanidad Vegetal to conduct trapping 
throughout the year for the three Anastrepha fruit fly species of 
concern at a rate of one trap per 10 hectares within certified avocado 
orchards. If one fruit fly were captured within an orchard, export 
could continue, but 10 traps would have to be deployed in the 50-
hectare area immediately surrounding the find. If additional fruit 
flies were caught within 30 days within the 260-hectare area 
surrounding the first find, exports could continue only after malathion 
bait treatments of the orchards involved. The purpose of this pesticide 
treatment would be to lower fruit fly populations in avocado production 
areas, thus lessening the chances of infestation. APHIS uses similar 
procedures in citrus fruit production areas of Florida and Texas where 
Anastrepha fruit flies exist.
    Growers would be required to undertake regular field sanitation 

[[Page 34836]]
    measures. APHIS would require that fallen avocado fruit be removed from 
orchards prior to harvest and that the fallen fruit not be included in 
shipments of fruit to be packed for export. Fallen avocado fruit can be 
overripe or damaged, and such fruit is more likely to be infested by 
pests. Also, dead branches on avocado trees would have to be cut back 
periodically and the dead branches removed from the orchard. Pruning 
discourages stem weevil infestations. Both APHIS and Sanidad Vegetal 
would periodically inspect field sanitation in certified avocado 
orchards.
    APHIS would require harvested avocados to be moved from the orchard 
to the packinghouse within 3 hours of harvest; if more than 3 hours 
pass between the time the avocados are harvested and the time they are 
moved to the packinghouse, the avocados would have to be protected from 
fruit fly infestation while awaiting transport. For movement, the 
avocados would have to be placed in field boxes or containers marked 
with the Sanidad Vegetal registration number of the orchard of origin 
and, during their movement from the orchard to the packinghouse, the 
avocados would have to be protected from fruit fly infestation. 
Vehicles transporting the avocados would be required to carry a field 
record specifying that the fruit is from a certified orchard.

Packinghouse Requirements

    Under our proposed regulations, the packinghouse would have to be 
registered with the Sanidad Vegetal avocado export program and listed 
as an approved packinghouse in the annual work plan provided to APHIS 
by Sanidad Vegetal. Fruit from orchards that are not certified by 
Sanidad Vegetal for participation in the avocado export program would 
not be allowed on the premises of a packinghouse while avocados 
intended for export to the United States were being packed.
    All openings in the packinghouse would have to be covered by 
screening with openings of not more than 1.6 mm to prevent the entry of 
insects. Also, packinghouses would have to have double door systems at 
the entrances to the facility, as well as at the entrance to the 
packing area for avocados intended for export to the United States.
    Prior to the culling process, Sanidad Vegetal would have to select, 
cut, and inspect a sample of 250 avocados per shipment to detect the 
presence of weevils, fruit flies, or other pests (e.g., a shipment of 
500 boxes would have a fruit selected from every second box). We have 
determined that sampling 250 avocados in this manner would yield a 95 
percent confidence level of detecting one percent or greater 
infestation.
    The identity of the avocados would have to be maintained from the 
field boxes or containers, which would bear the Sanidad Vegetal 
registration of the orchard of origin, to the shipping boxes. The fruit 
would have to be packed in new, clean boxes, with the grower, packer, 
and exporter clearly identified on those boxes. Maintaining the 
identity of the avocados from the field boxes or containers to the 
shipping boxes would ensure that any infested fruit could be traced 
back to the orchard where it was grown. Also, the shipping boxes would 
have to be clearly labeled to indicate the restrictions on the 
distribution of the avocados in the United States.
    After being loaded into the boxes, the avocados would have to be 
placed into a refrigerated truck or refrigerated container for transit 
through Mexico to the port of first arrival in the United States. After 
the avocados had been inspected, packed, and loaded into a refrigerated 
truck or refrigerated container, Sanidad Vegetal personnel would be 
required to secure the refrigerated truck or refrigerated container 
with a seal before the truck or container left the packinghouse. Any 
avocados that had not been loaded into a refrigerated truck or 
refrigerated container by the end of the work day would have to be kept 
in the screened packing area.
    A phytosanitary certificate issued by Sanidad Vegetal certifying 
that all of these conditions have been met would have to accompany each 
shipment of avocados.

Avocado Pest Interception

    As discussed above, we are proposing that Hass avocado fruit be 
imported only from orchards located in municipalities in Michoacan 
certified free of the four seed pests Heilipus lauri, Conotrachelus 
perseae, C. aguacatae, and Stenoma catenifer, and only from orchards in 
Michoacan certified free of the stem weevil Copturus aguacatae. We are 
also proposing that Sanidad Vegetal undertake certain actions in the 
event any of these avocado pests are discovered during the required 
annual pest survey or during other monitoring or inspection activities 
in the orchards or packinghouses.
    Upon the discovery of any of the four avocado seed pests, Sanidad 
Vegetal would be required to immediately initiate an investigation and 
take measures to isolate and eradicate the pests. Sanidad Vegetal would 
also have to notify APHIS and provide information regarding the origin 
of the circumstances of the infestation and the pest risk mitigation 
measures taken. The municipality in which the infestation occurred 
would lose its pest-free certification, and avocado exports from that 
municipality would be suspended until APHIS and Sanidad Vegetal agreed 
that the pest eradication measures taken had been effective and that 
the pest risk within that municipality had been eliminated.
    If Sanidad Vegetal discovered the stem weevil Copturus aguacatae in 
an orchard during an orchard survey or other monitoring or inspection 
activity in the orchard, Sanidad Vegetal would have to provide APHIS 
with information regarding the circumstances of the infestation and the 
pest risk mitigation measures taken. Similarly, if the stem weevil 
Copturus aguacatae was discovered in fruit at a packinghouse, Sanidad 
Vegetal would have to investigate the origin of the infested fruit and 
provide APHIS with information regarding the circumstances of the 
infestation and the pest risk mitigation measures taken. In either 
instance, the orchard where the infested fruit originated would lose 
its export certification immediately for the entire shipping season of 
November through February.

Shipping Requirements and Restrictions

    Although the safeguards discussed above make it unlikely that 
avocados infested with seed pests or fruit flies would enter into the 
United States, we propose to require the following safeguards for 
movement of the avocados to the northeastern United States in order to 
prevent the escape and establishment of an insect pest outside of the 
northeast should any be present on the fruit.
    We propose to allow Hass avocados from Mexico to enter the United 
States at any port within the 20 northeastern States that would be 
allowed to receive Hass avocados from Michoacan. We are also proposing 
to allow Hass avocados from Michoacan to enter the United States at 
certain additional ports provided the avocados are moved within a 
specified transit corridor to the 20 northeastern States that would be 
allowed to receive the avocados. We would allow the avocados to enter 
at the ports of Galveston and Houston, TX, and the border ports at 
Nogales, AZ; Brownsville, Eagle Pass, El Paso, Hidalgo, and Laredo, TX, 
all of which are staffed by APHIS inspectors. These ports are among 
those currently listed for avocados from Mexico moved through the 
United States to destinations outside the United States under the plant 
quarantine safeguard 

[[Page 34837]]
regulations in 7 CFR 352.29, so the inspectors at these ports are 
experienced in dealing with avocado shipments. We would also allow the 
avocados to enter at other ports located within that area of the United 
States bordered by the proposed transit corridor discussed below.
    We also propose to establish boundaries restricting the corridor 
through which the avocados may transit the United States en route to 
the northeastern United States. Except as explained below for avocados 
entering the United States at Nogales, AZ, avocados moved by truck or 
rail car would be allowed to transit only that area of the United 
States bounded on the west by a line extending from El Paso, TX, to 
Denver, CO, and due north from Denver; and on the east and south by a 
line extending from Brownsville, TX, to Galveston, TX, to Kinder, LA, 
to Memphis, TN, to Knoxville, TN, following Interstate 40 to Raleigh, 
NC, and due east from Raleigh. All cities on these boundary lines would 
be included in this area. If the avocados are moved by air, the 
aircraft would not be allowed to land outside this area. Avocados that 
enter the United States at Nogales, AZ, would have to be moved to El 
Paso, TX, by the route specified on the permit, and would then have to 
remain within the shipping area described above. These proposed 
boundaries are similar to those currently in effect for Mexican 
avocados moved through the United States to destinations outside the 
United States (see 7 CFR 352.29(f)), but differ in two significant 
ways. First, because avocados imported under this proposed rule could 
be distributed only in the northeastern United States, the proposed 
western boundary would not provide for movement through the 
northwestern United States. Second, the southeastern boundary would be 
situated further to the south to give shippers access to the entire 
States of Kentucky, West Virginia, and Virginia, which are among the 
States in which the avocados could be distributed under this proposed 
rule; those States are not fully included in the transit corridor 
described in 7 CFR 352.29(f). These boundaries would provide protection 
to the western and southeastern regions of the United States, where 
avocados and other hosts of fruit flies and are grown, while allowing 
shippers to utilize the most direct interstate routes to the 
northeastern United States.
    Further, we propose that when moving within these boundaries to the 
northeastern United States, avocados would have to be moved either by 
air or in a refrigerated truck or refrigerated rail car or in 
refrigerated containers on a truck or rail car. If the avocados are 
moved in refrigerated containers on a truck or rail car, an APHIS 
inspector would have to seal the containers with a serially numbered 
seal at the port of first arrival in the United States. If the avocados 
are moved in a refrigerated truck or a refrigerated rail car, an APHIS 
inspector would have to seal the truck or rail car with a serially 
numbered seal at the port of first arrival in the United States. If the 
avocados are transferred to another vehicle or container in the United 
States, an APHIS inspector would have to be present to supervise the 
transfer and would have to apply a new serially numbered seal. The 
avocados would have to be moved through the United States under Customs 
bond. These safeguards are the same as those currently in effect for 
avocados from Mexico that are moved through the United States to 
destinations outside the United States (see 7 CFR 352.29(e)). Because 
this proposed rule and the avocado transit regulations in 7 CFR 352.29 
share a similar purpose (i.e., the avocados must move through areas of 
the United States considered to be low-risk areas for the establishment 
of tropical and subtropical fruit pests), we believe it is reasonable 
that the safeguards required by both regulations should be the same.

Inspection

    The avocados would be subject to APHIS inspection at the port of 
first arrival, at any stops in the United States en route to the 
Northeast, and upon arrival at the terminal market to ensure they are 
being moved in compliance with APHIS regulations. At the port of first 
arrival, APHIS would sample and cut avocado fruit to detect infestation 
by fruit flies, avocado seed and stem weevils, the avocado seed moth, 
and other pests. The number of avocados that the inspectors would 
sample and cut in any given shipment would depend upon the size of the 
shipment. Inspectors also would ensure that a valid phytosanitary 
certificate was present, that the limited distribution statement 
appeared on all boxes, and that the shipment was consigned to a State 
allowed to receive Hass avocados from Michoacan.
Responses to Comments

    As stated above, we received over 300 comments by the closing date 
of the comment period for the advance notice of proposed rulemaking. 
The comments were submitted by avocado growers, processors, packers, 
and importers; trade and grower associations; grocers; and State and 
local departments of agriculture. Twenty of the comments favored 
allowing the importation of Mexican avocados. The remainder raised 
objections, most of which are summarized, with our responses, below.
    Most of the comments assert that research conducted in 1993 by the 
Sanidad Vegetal concerning Hass avocado susceptibility to Anastrepha 
fruit flies was inconclusive and did not demonstrate that Hass avocados 
are non-hosts to the fruit flies. The comments contend that before 
APHIS considers any proposal to import Hass avocados from Mexico, 
Sanidad Vegetal should (1) replicate and expand laboratory and field 
research regarding host status of Hass avocados under fully controlled 
conditions and (2) undertake a multi-site, multi-year trapping program 
to establish the population and seasonal abundance of Anastrepha fruit 
flies in Michoacan. Only after examining the results of such research, 
according to the comments, could APHIS and Sanidad Vegetal develop 
effective measures for preventing the introduction of Anastrepha fruit 
flies into the United States through the importation of Hass avocados.
    We agree that the 1993 research was limited in scope and did not 
prove the Hass avocado to be a non-host for Anastrepha fruit flies. 
However, after considering the 1993 research and other available 
evidence, including interception data and past studies, we believe the 
Hass avocado to be a non-preferred host for Anastrepha fruit flies 
prior to harvest. Although we believe Hass avocados become better hosts 
for Anastrepha fruit flies shortly following harvest, we are confident 
that the phytosanitary requirements we would place on harvesting, 
packing, transport, and distribution, which are more extensive and 
redundant than those proposed by Sanidad Vegetal, would prevent 
infested Hass avocado fruit from being exported from Michoacan into the 
United States.
    Several comments specifically questioned the laboratory testing 
conducted in 1993 by Sanidad Vegetal to determine the susceptibility of 
Hass avocados to Anastrepha fruit flies. The comments claim that 
induced infestation tests both in the laboratory and under controlled 
field conditions were conducted improperly (e.g., allegedly, laboratory 
climatic conditions were not controlled, sample sizes of fruit were too 
small, inappropriate cages were used in field testing), thus 
invalidating any results of those tests. Furthermore, these comments 
maintain that because Anastrepha fruit flies did infest Hass avocados 
during these tests, the host status of Hass avocados is confirmed. 

[[Page 34838]]

    We agree that the induced infestation research was limited in scope 
and did not prove Hass avocado to be a non-host for Anastrepha fruit 
flies. However, we do not agree that the infestation that did occur 
during the testing proves Hass avocados to be preferred hosts. Under 
artificial laboratory conditions, females of some Anastrepha species, 
including A. ludens, will oviposit in almost any fruit available, or 
even in wax spheres (Norrbom, Allen L., and Ke Chung Kim, ``A List of 
the Reported Host Plants of the Species of Anastrepha (Diptera: 
Tephritidae),'' APHIS, 1988). Moreover, other evidence indicates that 
Hass avocados are non-preferred hosts while on the tree. In the cage 
studies conducted in the field by Sanidad Vegetal, which we feel were 
conducted properly, Hass avocados on the tree were shown to be non-
preferred hosts to Anastrepha. Also, APHIS records from interceptions 
of avocados smuggled into the United States from Mexico indicate that 
the Hass avocado is a non-preferred host to Anastrepha. In fact, 
according to APHIS and Agricultural Research Service records, 
Anastrepha fruit flies have never been found in Hass avocados outside 
of laboratory tests. We are confident that the phytosanitary measures 
we are proposing would prevent infested Hass avocado fruit from being 
exported from Michoacan into the United States.
    Several of the comments claim that the fruit fly trapping conducted 
in 1993 by Sanidad Vegetal was inadequate to accurately determine fruit 
fly populations in production areas in Michoacan and subsequently 
develop effective pest mitigation measures based on the population 
data. These comments maintain that:
     Traps were not moved frequently enough or maintained 
correctly;
     Trapping was conducted for too short a duration;
     Trapping density was too low, especially considering that 
the McPhail trap was used;
     Some trapping was conducted while trees were being sprayed 
with methyl parathion, thus distorting trapping results, as populations 
in sprayed areas would be unnaturally low; and
     No trapping was conducted with regard to wild or 
alternative commercial hosts.
    We agree that the trapping conducted by Sanidad Vegetal in 1993 was 
flawed in its execution; many traps were neither moved often enough nor 
maintained properly. Initial quality control problems occur in most 
trapping programs. If we allow the importation of Hass avocados from 
Michoacan, we will require trapping year-round. We would hold such 
trapping to a higher quality standard and monitor its execution. Also, 
we believe that the trapping conducted by Sanidad Vegetal, although it 
was conducted imperfectly and for a short duration, does provide 
valuable preliminary data regarding the population of Anastrepha fruit 
flies in avocado production areas in Michoacan.
    The density of the 1993 trapping--one McPhail trap per 10 
hectares--is standard for population monitoring and was approved by 
APHIS prior to the trapping. Trapping at this rate is currently 
required by APHIS in Sonora, Mexico, to maintain the fruit-fly free 
zone in that State. We are proposing that Sanidad Vegetal trap at the 
rate of 1 trap per 10 hectares throughout the year and that this 
trapping be monitored by APHIS.
    Some trapping was conducted while trees were being treated with 
pesticides. However, since this sort of pesticide treatment is routine 
in Michoacan, and since similar pesticide treatment would occur in 
orchards growing avocados for export to the United States, we believe 
that trapping conducted during or after pesticide treatment provided 
accurate population data.
    We agree that Sanidad Vegetal did not conduct trapping with regard 
to wild or alternative commercial hosts. However, our interest in the 
1993 Sanidad Vegetal study is to determine populations in the 
production areas, not in areas where wild or alternative hosts were 
being grown.
    Because of our reservations concerning Sanidad Vegetal's 1993 fruit 
fly trapping, we have proposed to allow the Hass avocados from 
Michoacan to be imported only between November and February, when 
temperatures in Michoacan significantly lower the level of fruit fly 
activity.
    Several comments expressed concerns that Sanidad Vegetal studies of 
the pests Heilipus lauri, Stenoma catenifer, Conotrachelus perseae, C. 
aguacatae, and Copturus aguacatae did not attempt to identify their 
seasonal abundance or geographical distribution in Michoacan. 
Furthermore, the comments claim that Sanidad Vegetal surveys for these 
pests in Hass avocado production areas in Michoacan were too limited to 
produce meaningful results, were not supervised by APHIS, and were not 
conducted carefully, that is, the surveys were not conducted in accord 
with scientific standards or in the context of pest biology. Finally, 
the comments maintain that the data reflect significant finds of these 
pests in production areas.
    We believe that the design of the 1993 pest surveys was appropriate 
for detecting infestation and that Sanidad Vegetal took pest biology 
into account while conducting the surveys. Data from these surveys is 
of varying quality, but we believe inconsistencies are indicative of 
authentic pest survey data. While we did not supervise the surveys, we 
did observe several as they were being conducted.
    It is important to remember that the phytosanitary requirements we 
propose to place on the avocado imports from Michoacan are not based 
solely upon the pest surveys and other studies conducted by Sanidad 
Vegetal in 1993. Much of their findings were of a limited quality and 
only supplement the data we have used in developing this proposal. If 
this proposal is finalized, we will monitor closely the pest surveys we 
are proposing to require for determining municipality and orchard 
freedom from the avocado pests.
    Several comments raised concerns that the Sanidad Vegetal studies 
did not address risks presented by Anastrepha distincta, A. leptozona, 
or A. obliqua, or several other possible pests of avocados known to 
inhabit Mexico. Avocado is not a host to these other pests (Norrbom, 
Allen L., and Ke Chung Kim, ``A List of the Reported Host Plants of the 
Species of Anastrepha [Diptera: Tephritidae],'' APHIS, 1988).
    Other comments argue that APHIS should not allow Hass avocado 
imports from Michoacan until Sanidad Vegetal can establish Michoacan as 
a pest-free zone.
    As explained above, APHIS uses systems approaches to phytosanitary 
security to allow fruits and vegetables to be imported safely into the 
United States from countries that are not free of certain plant pests. 
APHIS has successfully used systems approaches to establish conditions 
for the importation of several commodities, including Unshu oranges 
from Japan, tomatoes from Spain, and peppers from Israel. APHIS also 
uses systems approaches to establish conditions whereby domestic fruits 
and vegetables may be exported from areas in the United States that are 
not free of certain plant pests, such as citrus fruit from Florida and 
Texas, apples from Washington, and stonefruit from California. We now 
are proposing to use a systems approach to allow Hass avocado fruit to 
be imported into the northeastern United States from Michoacan, Mexico, 
an area where fruit flies and certain avocado pests are known to exist. 
We believe this systems approach would prevent the introduction of 
plant pests into the United States from Michoacan and that therefore, 
it is unnecessary to establish 

[[Page 34839]]
Michoacan as a pest-free zone prior to importing Hass avocados.
    Several comments maintain that prior to allowing the importation of 
Hass avocados from Mexico, APHIS should develop treatments able to 
eliminate all exotic pests from avocado fruit at a ``probit 9'' 
mortality level. (A treatment yielding a probit 9 mortality effects a 
99.9968 percent mortality in a population of live organisms, that is, a 
population of pests in fruit.)
    Currently, there is no effective treatment for eliminating 
Anastrepha fruit flies or any of the avocado pests of concern from Hass 
avocado fruit. We believe the multiple safeguards that we are proposing 
for the importation of Hass avocados from Michoacan, Mexico, into the 
northeastern United States would mitigate pest risk at a level 
equivalent to that provided by a treatment yielding a probit 9 
mortality. If a treatment for Hass avocado fruit from Michoacan were 
developed, APHIS would consider its use.
    One comment criticized the conclusion drawn by Sanidad Vegetal that 
a 1993-1994 orchard and packinghouse fruit sampling research study 
indicated that there was zero risk of live immature stages of fruit 
flies entering the United States in Hass avocados. We agree that such a 
conclusion is unsupported by statistical analysis, since it is 
statistically impossible to prove zero risk for any commodity. 
Accordingly, this proposed rule contains no provisions that are based 
on an assumption of zero risk regarding the possibility of live 
immature stages of fruit flies entering the United States in Hass 
avocados.
    One comment concluded that APHIS must prove Hass avocados to be 
non-hosts to Anastrepha fruit flies before we allow their importation 
from Michoacan.
    As stated above, we believe Hass avocados to be a non-preferred 
host to Anastrepha fruit flies while on the tree and better hosts 
following harvest. The phytosanitary requirements we are proposing, 
especially in light of the Hass avocado's poor host status, would 
prevent Anastrepha flies from being introduced into the United States 
through the importation of Hass avocados.
    One comment states that Sanidad Vegetal's conclusions regarding a 
correlation between maturity of Hass avocado fruit (measured by the 
percent of dry matter) and fruit immunity to Anastrepha fruit fly 
infestation are invalid.
    We agree that Sanidad Vegetal research did not prove that there is 
a correlation between dry matter content of Hass avocados and immunity 
to Anastrepha infestation. The APHIS avocado interception records and 
past research mentioned above do indicate, however, that the Hass 
avocado may have some natural physiological resistance to infestation 
by Anastrepha fruit flies. Further research must be conducted before 
any such conclusions can be applied to the quarantine status of Hass 
avocados from Michoacan.
    One comment expresses concerns that pests known to attack Hass 
avocados in Mexico could be introduced into the northeastern United 
States through importation from Michoacan, colonize the area, and 
damage fruit crops grown there.
    We are proposing to allow Hass avocados to be imported into the 
Northeastern United States only during the winter, from November 
through February. The cold temperatures during these months would 
preclude colonization by these tropical and subtropical pests, because 
they could not survive under the climatic conditions and/or because 
there would be no host material.
    Several comments state that avocado growers in Michoacan use 
pesticides not approved for use on avocados in the United States, such 
as methyl parathion, and that avocados imported from Michoacan 
containing residues of these pesticides would, therefore, be prohibited 
from importation.
    The United States Food and Drug Administration samples and tests 
imported fruits and vegetables for pesticide residues. If residue of a 
pesticide unapproved in the United States is found in a shipment of 
imported fruit or vegetables, the shipment is denied entry into the 
United States.
    Many of the comments argue that APHIS lacks the resources to 
enforce phytosanitary restrictions on Hass avocado imports from 
Michoacan, particularly restrictions on the distribution of Mexican 
Hass avocados within the United States.
    We agree that adequate resources and personnel, especially 
inspectors, would have to be devoted to prevent the introduction of 
avocado and other plant pests into the United States. Adjustments in 
the level of personnel and resources devoted to APHIS programs are a 
normal part of management in the agency. Duties and staffing levels 
would be adjusted, in Michoacan, at ports, and elsewhere, to satisfy 
the needs of a new avocado import program. While APHIS would assign 
some additional personnel to monitor trapping and surveys and 
compliance with phytosanitary requirements in Michoacan orchards and 
packinghouses, we believe much of the resources needed for this program 
are already in place, in the form of existing APHIS overseas and port 
personnel. Funding levels and agency personnel may vary from year to 
year. Import authorizations would not be provided if the level of 
resources decreases below the level needed to ensure that all imported 
regulated articles are subject to the level of inspection and 
monitoring necessary to prevent the introduction of plant pests into 
the United States. In terms of enforcing the restrictions on the 
distribution of Mexican Hass avocados within the United States, APHIS 
would be assisted by the Fruit and Vegetable Division of the 
Agricultural Marketing Service, which has agreed to notify us if 
Mexican avocado fruit, which they would grade, showed up at terminal 
markets in prohibited States.
    One comment criticizes the Sanidad Vegetal proposal to have growers 
hire the technical personnel involved in surveys and trapping, citing a 
conflict of interests.
    As explained above, we would not allow growers to hire or supervise 
the technical personnel involved in trapping or pest surveys, but they 
would be allowed to pay expenses.
    Several comments question Sanidad Vegetal's claim that Anastrepha 
fruit flies have never infested Hass avocados in Mexico and that 
Anastrepha fruit flies have never been intercepted in Hass avocados 
intended for export.
    According to APHIS and Agricultural Research Service records, 
Anastrepha fruit flies have never been found in Hass avocados outside 
of laboratory tests, in which infestation was artificially induced.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for purposes of 
Executive Order 12866, and, therefore, has not been reviewed by the 
Office of Management and Budget.
    In accordance with 5 U.S.C. 603, we have performed an Initial 
Regulatory Flexibility Analysis, which is set out below, regarding the 
impact of this rule on small entities. However, we do not currently 
have all the data necessary for a comprehensive analysis of the effects 
of this rule on small entities. Therefore, we are inviting comments 
concerning potential effects. In particular, we are interested in 
determining the number and kind of small entities that may 

[[Page 34840]]
incur benefits or costs from implementation of this proposed rule.
    Under the Plant Quarantine Act and the Federal Plant Pest Act (7 
U.S.C. 150dd, 150ee, 150ff, 151-167), the Secretary of Agriculture is 
authorized to regulate the importation of fruits and vegetables to 
prevent the introduction of injurious plant pests.
    We are proposing to amend the regulations governing the importation 
of fruits and vegetables to allow fresh Hass avocado fruit grown in 
approved orchards in approved municipalities in Michoacan, Mexico, to 
be imported into certain areas of the United States, subject to certain 
conditions.
    Mexico is the largest producer of avocados in the world, accounting 
for approximately 45 percent of total production. Mexican growers 
produced about 696,000 tons of avocados in 1990. Additionally, Mexico 
is the world's largest consumer of avocados; per capita consumption is 
close to 17 pounds. Because of this large domestic demand, exports 
remain small, at approximately 3 percent of production, or 20,880 tons.
    Most of the avocado production in Mexico occurs in the state of 
Michoacan, where approximately 77 percent of the total crop is grown. 
Ninety-five percent of the avocados grown in Michoacan are of the Hass 
variety. In 1990, therefore, the total export of Hass variety avocados 
from Michoacan was approximately 15,000 tons.
    In comparison, domestic growers produced 151,650 tons of avocados 
in 1993; California growers produced approximately 97 percent (147,000 
tons), Florida growers produced a little less than 3 percent (4,400 
tons), and Hawaiian growers produced less than 1 percent (250 tons) of 
the 1993 total. In Florida and Hawaii non-Hass varieties are 
predominant, while in California the Hass variety accounts for 
approximately 85 percent of the total production.
    Although Mexico has well established export markets in Europe, 
Japan, and Canada, shipping avocados to these markets involves 
traversing great distances, thus incurring high transportation costs. 
As in Mexico, a substantial proportion of U.S. production of avocados 
is consumed internally. In 1993 the United States exported 15,292 tons, 
while it imported 8,232 tons. However, the U.S. per capita consumption, 
which is approximately 1.36 pounds, is much smaller than the per capita 
consumption in Mexico. The demand for avocados in the United States is 
inelastic (-0.48). In other words, a reduction in the price of avocados 
would not result in a proportionate increase in the purchase of 
avocados. For example, a 10 percent decline in avocado price would 
likely induce only a 4.8 percent increase in avocado consumption. In 
the case of avocados, quality considerations might have greater impact 
on consumer purchase decisions than the price of the product.
    As the preceding paragraphs indicate, both California and Michoacan 
are large producers of Hass variety avocados. However, here the 
similarity between the two states ceases, with marked differences in 
avocado price, cost structure, and expansion capacity. The weighted 
average wholesale price for California production was $0.48 per pound 
between 1991 and 1993 while the Michoacan price was $0.28. Land and 
labor costs are much lower in Michoacan than in California. Development 
costs and costs of caring for avocado-bearing trees average $26,000 per 
acre in California, those same costs are only about $8,000 per acre in 
Michoacan. Furthermore, the labor share of production costs is 52 
percent in California, while the average labor share is only 35 percent 
in Michoacan. Finally, the two states differ in their capacity to 
expand production. California has little or no non-bearing acreage 
remaining while Michoacan has 30 percent non-bearing acreage.
    Michoacan producers face three additional costs in order to deliver 
their products to the U.S. border. These include the cost of 
transportation ($0.03 per pound), the border crossing cost ($0.027 per 
pound), and a tariff rate of $0.054 per pound. Taking these factors 
into consideration, the break-even point for California production is 
$0.48 (the average wholesale price per pound in California); Michoacan 
Hass avocados could be delivered to the U.S. border for $0.34 (the 
price of avocado sold domestically in Mexico ($0.23 per pound) plus the 
cost of placing Michoacan avocados at the U.S. border ($0.11 per 
pound). Thus, at the U.S. border the Mexican producers would have a 
cost advantage over U.S. Hass avocado producers. However, which of 
these two would gain the market for avocados in the 20 northeastern 
States would depend on their respective ability to deliver the best 
quality avocado in the most efficient way.
    Allowing the importation of fresh Hass avocado fruit from 
Michoacan, Mexico, would directly affect avocado growers, mainly in 
California. There were 7,300 avocado growers in the United States in 
1993, most of which were located in California. Of these, 6,729 are 
considered to be small entities. The importation of Hass avocados from 
Mexico would likely increase the U.S. supply of fresh avocados by about 
12 percent, reducing the average price for U.S. avocados to about $0.42 
per lb. The U.S. producers would thus be negatively affected. However, 
current Interstate Commerce Commission regulations forbid Mexican 
carriers from hauling the product beyond the border zone, so there 
would be some benefit to small U.S. specialized transport companies and 
brokerage houses. At present, the cost of transporting a truckload 
(40,000 lb) of avocados from Michoacan to the U.S. border at El Paso is 
$1,080. This includes the margin for truckers and brokerage houses. The 
number of these entities is difficult to determine at this time. The 
total impact would depend upon the volume of export from Michoacan to 
the United States. Finally, even with the low elasticity of demand for 
avocado, consumers could be positively affected by the increased 
competition and expanded choices that would be induced by this 
proposal.
    The alternative to this proposed rule was to make no changes in the 
fruits and vegetables regulations. After consideration, we rejected 
this alternative since there appeared to be no pest risk reason to 
maintain the prohibition on the avocados in light of the safeguards 
that would be applied to their importation.
    This proposed rule contains no paperwork or recordkeeping 
requirements.

Executive Order 12778

    This proposed rule would allow fresh Hass avocado fruit to be 
imported into the United States from the Mexican State of Michoacan. If 
this proposed rule is adopted, State and local laws and regulations 
regarding fresh Hass avocado fruit imported under this rule would be 
preempted while the fruit is in foreign commerce. Fresh avocados are 
generally imported for immediate distribution and sale to the consuming 
public, and would remain in foreign commerce until sold to the ultimate 
consumer. The question of when foreign commerce ceases in other cases 
must be addressed on a case-by-case basis. If this proposed rule is 
adopted, no retroactive effect will be given to this rule, and this 
rule will not require administrative proceedings before parties may 
file suit in court challenging this rule.
Paperwork Reduction Act

    This document contains no new information or recordkeeping 
requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 
et seq.). 

[[Page 34841]]


List of Subjects in 7 CFR Part 319

    Bees, Coffee, Cotton, Fruits, Honey, Imports, Nursery Stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.
    Accordingly, 7 CFR part 319 would be amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    1. The authority citation for part 319 would continue to read as 
follows:


    Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167; 7 CFR 2.17, 
2.51, and 371.2(c), unless otherwise noted.

    2. A new Sec. 319.56-2ff would be added to read as follows:


Sec. 319.56-2ff  Administrative instructions governing movement of Hass 
avocados from Mexico to the northeastern United States.

    Fresh Hass variety avocados (Persea americana) may be imported from 
Mexico into the United States for distribution in the northeastern 
United States only under a permit issued in accordance with 
Sec. 319.56-4, and only under the following conditions:
    (a) Shipping restrictions. (1) The avocados may be imported in 
commercial shipments only;
    (2) The avocados may be imported only during the months of 
November, December, January, and February; and
    (3) The avocados may be distributed only in the following 
northeastern States: Connecticut, Delaware, the District of Columbia, 
Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Michigan, 
New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, 
Vermont, Virginia, West Virginia, and Wisconsin.
    (b) Trust fund agreement. The avocados may be imported only if the 
Mexican avocado industry association representing Mexican avocado 
growers, packers, and exporters has entered into a trust fund agreement 
with APHIS for that shipping season. That agreement requires the 
Mexican avocado industry association to pay in advance all estimated 
costs that APHIS expects to incur through its involvement in the 
trapping, survey, harvest, and packinghouse operations prescribed in 
paragraph (c) of this section. These costs will include administrative 
expenses incurred in conducting the services and all salaries 
(including overtime and the Federal share of employee benefits), travel 
expenses (including per diem expenses), and other incidental expenses 
incurred by the inspectors in performing these services. The agreement 
requires the Mexican avocado industry association to deposit a 
certified or cashier's check with APHIS for the amount of those costs, 
as estimated by APHIS. If the deposit is not sufficient to meet all 
costs incurred by APHIS, the agreement further requires the Mexican 
avocado industry association to deposit with APHIS a certified or 
cashier's check for the amount of the remaining costs, as determined by 
APHIS, before the services will be completed. After a final audit at 
the conclusion of each shipping season, any overpayment of funds would 
be returned to the Mexican avocado industry association or held on 
account until needed.
    (c) Safeguards in Mexico. The avocados must have been grown in the 
Mexican State of Michoacan in an orchard located in a municipality that 
meets the requirements of paragraph (c)(1) of this section. The orchard 
in which the avocados are grown must meet the requirements of paragraph 
(c)(2) of this section. The avocados must be packed for export to the 
United States in a packinghouse that meets the requirements of 
paragraph (c)(3) of this section. Sanidad Vegetal must provide an 
annual work plan to APHIS that details the activities that Sanidad 
Vegetal will carry out to meet the requirements of this section; APHIS 
will be directly involved with Sanidad Vegetal in the monitoring and 
supervision of those activities. The personnel conducting the trapping 
and pest surveys must be hired, trained, and supervised by Sanidad 
Vegetal.
    (1) Municipality requirements. (i) The municipality must be listed 
as an approved municipality in the annual work plan provided to APHIS 
by Sanidad Vegetal.
    (ii) The municipality must be surveyed at least annually and found 
to be free from the large avocado seed weevil Heilipus lauri, the 
avocado seed moth Stenoma catenifer, and the small avocado seed weevils 
Conotrachelus persea and C. aguacatae. The survey must cover at least 
300 hectares in the municipality and include portions of each 
registered orchard and areas with wild or backyard avocado trees. The 
survey must be conducted during the growing season and completed prior 
to the harvest of the avocados.
    (iii) Trapping must be conducted in the municipality for 
Mediterranean fruit fly (Medfly) (Ceratitis capitata) at the rate of 1 
trap per 1 to 4 square miles. Any findings of Medfly must be reported 
to APHIS.
    (2) Orchard and grower requirements. The orchard and the grower 
must be registered with Sanidad Vegetal's avocado export program and 
must be listed as an approved orchard or an approved grower in the 
annual work plan provided to APHIS by Sanidad Vegetal. The operations 
of the orchard must meet the following conditions:
    (i) The orchard and all contiguous orchards and properties must be 
surveyed annually and found to be free from the avocado stem weevil 
Copturus aguacatae. The survey must be conducted during the growing 
season and completed prior to the harvest of the avocados.
    (ii) Trapping must be conducted in the orchard for the fruit flies 
Anastrepha ludens, A. serpentina, and A. striata at the rate of one 
trap per 10 hectares. If one fruit fly is trapped, at least 10 
additional traps must be deployed in a 50-hectare area immediately 
surrounding the trap in which the fruit fly was found. If within 30 
days of the first finding any additional fruit flies are trapped within 
the 260-hectare area surrounding the first finding, malathion bait 
treatments must be applied in the affected orchard in order for the 
orchard to remain eligible to export avocados.
    (iii) Avocado fruit that has fallen from the trees must be removed 
from the orchard prior to harvest and may not be included in field 
boxes of fruit to be packed for export.
    (iv) Dead branches on avocado trees in the orchard must be pruned 
and removed from the orchard.
    (v) Harvested avocados must be placed in field boxes or containers 
of field boxes that are marked to show the Sanidad Vegetal registration 
number 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.
    (vi) The avocados must be protected from fruit fly infestation 
during their movement from the orchard to the packinghouse and must be 
accompanied by a field record indicating that the avocados originated 
from a certified orchard.
    (3) Packinghouse requirements. The packinghouse must be registered 
with Sanidad Vegetal's avocado export program and must be listed as an 
approved packinghouse in the annual work plan provided to APHIS by 
Sanidad Vegetal. The operations of the packinghouse must meet the 
following conditions:
    (i) During the time the packinghouse is used to prepare avocados 
for export to the United States, the packinghouse may accept fruit only 
from orchards certified by Sanidad Vegetal for participation in the 
avocado export program. 

[[Page 34842]]

    (ii) All openings to the outside 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.
    (iii) 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.
    (iv) Prior to the culling process, a sample of 250 avocados per 
shipment must be selected, cut, and inspected by Sanidad Vegetal and 
found free from pests.
    (v) The identity of the avocados must be maintained from field 
boxes or containers to the shipping boxes so the avocados can be traced 
back to the orchard in which they were grown if pests are found at the 
packinghouse or the port of first arrival in the United States.
    (vi) The avocados must be packed in clean, new boxes. The boxes 
must be clearly marked with the identity of the grower, packinghouse, 
and exporter, and the statement ``Distribution limited to the following 
States: CT, DC, DE, IL, IN, KY, ME, MD, MA, MI, NH, NJ, NY, OH, PA, RI, 
VA, VT, WV, and WI.''
    (vii) The boxes must be placed in a refrigerated truck or 
refrigerated container and remain in that truck or container while in 
transit through Mexico to the port of first arrival in the United 
States. Prior to leaving the packinghouse, the truck or container must 
be secured by Sanidad Vegetal with a seal that will be broken when the 
truck or container is opened.
    (viii) Any avocados that have not been packed or loaded into a 
refrigerated truck or refrigerated container by the end of the work day 
must be kept in the screened packing area.
    (d) Certification. All shipments of avocados must be accompanied by 
a phytosanitary certificate issued by Sanidad Vegetal certifying that 
the conditions specified in this section have been met.
    (e) Pest detection. (1) If any of the avocado seed pests Heilipus 
lauri, Conotrachelus perseae, C. aguacatae, or Stenoma catenifer are 
discovered in a municipality during an annual pest survey, orchard 
survey, packinghouse inspection, or other monitoring or inspection 
activity in the municipality, Sanidad Vegetal must immediately initiate 
an investigation and take measures to isolate and eradicate the pests. 
Sanidad Vegetal must also provide APHIS with information regarding the 
circumstances of the infestation and the pest risk mitigation measures 
taken. The municipality in which the pests are discovered will lose its 
pest-free certification and avocado exports from that municipality will 
be suspended until APHIS and Sanidad Vegetal agree that the pest 
eradication measures taken have been effective and that the pest risk 
within that municipality have been eliminated.
    (2) If Sanidad Vegetal discovers the stem weevil Copturus aguacatae 
in an orchard during an orchard survey or other monitoring or 
inspection activity in the orchard, Sanidad Vegetal must provide APHIS 
with information regarding the circumstances of the infestation and the 
pest risk mitigation measures taken. The orchard in which the pest was 
found will lose its export certification immediately and will be denied 
export certification for the entire shipping season of November through 
February.
    (3) If Sanidad Vegetal discovers the stem weevil Copturus aguacatae 
in fruit at a packinghouse, Sanidad Vegetal must investigate the origin 
of the infested fruit and provide APHIS with information regarding the 
circumstances of the infestation and the pest risk mitigation measures 
taken. The orchard where the infested fruit originated will lose its 
export certification immediately and will be denied export 
certification for the entire shipping season of November through 
February.
    (f) Ports. The avocados may enter the United States at:
    (1) Any port located in the northeastern States specified in 
paragraph (a)(3) of this section;
    (2) The ports of Galveston or Houston, TX, or the border ports of 
Nogales, AZ, or Brownsville, Eagle Pass, El Paso, Hidalgo, or Laredo, 
TX; or
    (3) Other ports within that area of the United States specified in 
paragraph (g) of this section.
    (g) Shipping areas. Except as explained below for avocados that 
enter the United States at Nogales, AZ, avocados moved by truck or rail 
car may transit only that area of the United States bounded on the west 
by a line extending from El Paso, TX, to Denver, CO, and due north from 
Denver; and on the east and south by a line extending from Brownsville, 
TX, to Galveston, TX, to Kinder, LA, to Memphis, TN, to Knoxville, TN, 
following Interstate 40 to Raleigh, NC, and due east from Raleigh. All 
cities on these boundary lines are included in this area. If the 
avocados are moved by air, the aircraft may not land outside this area. 
Avocados that enter the United States at Nogales, AZ, must be moved to 
El Paso, TX, by the route specified on the permit, and then must remain 
within the shipping area described above.
    (h) Shipping requirements. The avocados must be moved through the 
United States either by air or in a refrigerated truck or refrigerated 
rail car or in refrigerated containers on a truck or rail car. If the 
avocados are moved in refrigerated containers on a truck or rail car, 
an inspector must seal the containers with a serially numbered seal at 
the port of first arrival in the United States. If the avocados are 
moved in a refrigerated truck or a refrigerated rail car, an inspector 
must seal the truck or rail car with a serially numbered seal at the 
port of first arrival in the United States. If the avocados are 
transferred to another vehicle or container in the United States, an 
inspector must be present to supervise the transfer and must apply a 
new serially numbered seal. The avocados must be moved through the 
United States under Customs bond.
    (i) Inspection. The avocados are subject to inspection by an 
inspector at the port of first arrival, at any stops in the United 
States en route to the northeastern States, and upon arrival at the 
terminal market in the northeastern States. At the port of first 
arrival, an inspector will sample and cut avocados from each shipment 
to detect pest infestation.


    Done in Washington, DC, this 29th day of June 1995.
Lonnie J. King,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 95-16405 Filed 6-30-95; 8:45 am]
BILLING CODE 3410-34-P