[Federal Register Volume 64, Number 122 (Friday, June 25, 1999)]
[Proposed Rules]
[Pages 34141-34144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16173]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 64, No. 122 / Friday, June 25, 1999 / 
Proposed Rules  

[[Page 34141]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 99-020-1]


Mexican Hass Avocado Import Program

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend our regulations governing the 
importation of Hass avocados from Mexico to require handlers and 
distributors to enter into compliance agreements with the Animal and 
Plant Health Inspection Service. We would also amend the stickering 
requirement for the avocados and add requirements regarding the 
repackaging of the avocados after their entry into the United States. 
These proposed amendments are necessary to ensure that distributors and 
handlers are familiar with the distribution restrictions and other 
requirements of the regulations and to strengthen the effectiveness of 
the marking requirements used to identify the avocados and allow them 
to be tracked back to their grove of origin. These proposed amendments 
would serve to reinforce the existing safeguards of the avocado import 
program.

DATES: We invite you to comment on this docket. We will consider all 
comments that we receive by August 24, 1999.

ADDRESSES: Please send your comment and three copies to: Docket No. 99-
020-1, Regulatory Analysis and Development, PPD, APHIS, Suite 3C03, 
4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that 
your comment refers to Docket No. 99-020-1.
    You may read any comments that we receive on this docket in our 
reading room. The reading room is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue, SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. to be sure someone is there to help you please 
call (202) 690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS rules, are available on the Internet at http://
www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Ms. Donna West, Import Specialist, 
Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road Unit 
140, Riverdale, MD 20737-1236; (301) 734-6799; e-mail: 
Donna.L.W[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (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 from certain parts of the world to prevent the introduction and 
dissemination of plant pests, including fruit flies, that are new to or 
not widely distributed within the United States.
    The regulations in Sec. 319.56-2ff 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. Those conditions, which include pest surveys and 
pest risk-reducing cultural practices, packinghouse procedures, 
inspection and shipping procedures, and restrictions on the time of 
year (November through February) that shipments may enter the United 
States, are designed to reduce the risk of pest introduction to a 
negligible level. Further, the regulations in Sec. 319.56-2ff limit the 
distribution of the avocados to 19 northeastern States and the District 
of Columbia, where climatic conditions preclude the establishment in 
the United States of any of the exotic plant pests that may attack 
avocados in Michoacan. Mexico. In this document, we are proposing to 
make several changes to the regulations.

Compliance Agreements

    The regulations in Sec. 319.56-2ff became effective in March 1997. 
During the first shipping season (November 1997 through February 1998), 
we found that one distributor had shipped Mexican Hass avocados to 
Georgia, Iowa, Missouri, North Carolina, South Carolina, and Tennessee, 
none of which are among the 19 approved States. In the second shipping 
season (November 1998 through February 1999), we found that five other 
distributors had allowed Mexican Hass avocados to be shipped those same 
six States as well as to the non-approved States of Florida, Minnesota, 
Mississippi, Nebraska, and South Dakota.
    In order to help prevent recurrences of such unauthorized shipments 
in future shipping seasons, we are proposing to amend the regulations 
to require all handlers and distributors of Mexican Hass avocados to 
enter into a compliance agreement with the Animal and Plant Health 
Inspection Service (APHIS). The compliance agreement would serve both 
as an educational tool to ensure that all handlers and distributors 
have been fully informed about the limitations that the regulations 
place on the movement of the avocados and as an enforcement tool that 
would provide a greater measure of accountability for handlers or 
distributors who may violate the distribution restrictions of the 
regulations. This proposed compliance agreement requirement would be 
added to the regulations in Sec. 319.56-2ff as a new paragraph (k), 
``Compliance agreements.''
    Specifically, proposed paragraph (k)(1) would state that any person 
other than the person who received a permit to import the avocados (the 
permittee) who moves or distributes Mexican Hass avocados following 
their importation into the United States must enter into a compliance 
agreement with APHIS. In that compliance agreement, the person moving 
or distributing the avocados would have to acknowledge, and agree to 
observe, the restrictions found in Sec. 319.56-2ff regarding the 
movement of the avocados in the United States. Those restrictions, a 
copy of which would be provided to the person entering into the 
compliance agreement, are found in Sec. 319.56-2ff in paragraph (a), 
``Shipping restrictions;'' paragraph (f), ``Ports;'' paragraph (g), 
``Shipping areas;''

[[Page 34142]]

paragraph (h), ``Shipping requirements;'' and paragraph (i), 
``Inspection;'' as well as in proposed new paragraph (j), 
``Repackaging'' (which is explained later in this document) and 
proposed paragraph (k), ``Compliance agreements.''
    By requiring handlers and distributors to sign a compliance 
agreement, we would be able to document that they have received a copy 
of the regulations and have had those regulations explained to them. 
This would effectively eliminate any uncertainty or misunderstanding 
that they may have regarding their responsibilities under the 
regulations. Paragraph (k)(1) would conclude by stating that compliance 
agreements forms are available free of charge, from local offices of 
Plant Protection and Quarantine, which are listed in local telephone 
directories.
    Proposed paragraph (k)(2) would state that the permittee would have 
to ensure that any person to whom he or she released the avocados for 
movement or distribution (i.e., a second-party handler) has entered 
into a compliance agreement with APHIS. While the importers themselves 
must acknowledge the requirements of the regulations before they 
receive a permit to import Mexican Hass avocados, it is possible that a 
second-party handler might fail to fully familiarize himself or herself 
with the distribution limitations and other restrictions associated 
with the Avocados. We believe requiring permittees to confirm that the 
person to whom they are releasing the avocados for distribution has 
entered into a compliance agreement with APHIS would ensure that 
second-party handlers are made aware of their responsibilities under 
the regulations. This proposed requirement would also be made a 
condition of the permit that the permittee must obtain prior to 
importing Mexican Hass avocados, and failure to observe the conditions 
of a permit is grounds for its revocation. Therefore, paragraph (k)(2) 
would also state that APHIS may revoke an import permit for the 
remainder of the current shipping season if the permittee failed to 
confirm that the second-party handler had entered into a compliance 
agreement.
    For the same reasons that we would address the transfer of avocados 
from the permittee to a second-party handler, as described in the 
previous paragraph, we are also proposing to require that any second-
party or subsequent handler who releases the avocados to another person 
for movement or distribution must ensure that the person receiving the 
avocados has entered into a compliance agreement with APHIS. This 
proposed requirement would be stated in paragraph (k)(3). Again, the 
compliance agreement would ensure that persons receiving the avocados 
from second-party or subsequent handlers are made aware of their 
responsibilities under the regulations. Further, the compliance 
agreement would serve to establish a chain of custody that would 
indicate at what point this proposed compliance agreement requirement 
was disregarded. Because a compliance agreement would be required for 
persons moving or distributing the avocados, paragraph (k)(3) would 
also state that APHIS may revoke a second-party or subsequent handler's 
compliance agreement for the remainder of the current shipping season 
if that second-party or subsequent handler failed to confirm that the 
person to whom he or she released the avocados had entered into a 
compliance agreement.
    Finally, in order to help prevent repeated violations of the 
proposed compliance agreement requirement, paragraph (k)(4) would 
provide that APHIS may deny an import permit application from, or 
refuse to enter into a compliance agreement with, a person who has had 
his or her import permit or compliance agreement revoked twice within 
any 5-year period. This would prevent permittees or handlers who 
repeatedly disregard or violate the compliance agreement requirement 
from receiving or moving shipments of Mexican Hass avocados.

Stickers

    The regulations in Sec. 319.56-2ff(c)(3)(vi) require, among other 
things, that prior to being packed in boxes at the packinghouse in 
Mexico, each avocado fruit must be labeled with a sticker that bears 
the Sanidad Vegetal registration number of the packinghouse. This 
requirement is intended to make it easier to identify Mexican-origin 
avocados at terminal markets and presents an additional obstacle to 
transshipment of the fruit to non-approved States.
    It has come to our attention that some packinghouses in Mexico may 
be using the same sticker required by the regulations for ``program 
fruit'' (i.e., avocados that meet the requirements of Sec. 319.56-2ff 
for export to the northeastern United States) on ``non-program fruit'' 
shipped to Canada or used for domestic consumption in Mexico. While 
using the sticker for non-program fruit is not currently prohibited by 
the regulations, we believe that such uses of the sticker dilute the 
effectiveness of the stickers as a tool for identifying Mexican 
avocados in the United States and for differentiating program fruit 
from non-program fruit that may have been smuggled into the United 
States.
    Therefore, we are proposing to amend Sec. 319.56-2ff(c)(3)(vi) to 
require that the stickers used for program fruit not only bear the 
Sanidad Vegetal registration number of the packinghouse, but that they 
also bear the letters ``M/US'' after that number, and that those 
stickers be used only for fruit produced in accordance with 
Sec. 319.56-2ff for export to the United States. These proposed 
amendments to the stickering requirement would ensure that the stickers 
will serve their intended purpose of making it easier to identify 
Mexican-origin avocados at terminal markets and would further allow us 
to differentiate between program fruit and non-program fruit that may 
have been smuggled into the United States.

Repackaging

    The regulations in Sec. 319.56-2ff(c)(3)(vii) require that, at the 
packinghouse in Mexico, the avocados must be packed in clean, new 
boxes, and 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.'' This requirement 
ensures that the avocados can be traced back to their grove of origin 
in the event that pests are detected at any time after the avocados are 
placed in boxes at the packinghouse.
    We acknowledge that there may be instances where the avocados may 
have to be packed in new boxes after their entry into the United States 
due to damage to the original shipping box or some other legitimate 
reason. It is also possible that a person may attempt to conceal the 
origin of the avocados by repackaging them into unmarked boxes or 
removing the stickers that are required by Sec. 319.56-2ff(c)(3)(vi). 
The regulations, however, currently do not address the removal of 
stickers or the repackaging of avocados after their arrival in the 
United States.
    Therefore, we are proposing to add a new paragraph (j) to 
Sec. 319.56-2ff that would clearly state that if any avocados are 
removed from their original shipping boxes and repackaged, the stickers 
may not be removed or obscured and the new boxes must be clearly marked 
with the same information that must be placed on the original boxes at 
the packinghouse. Adding these provisions to the regulations would help 
ensure these identifying measures would be

[[Page 34143]]

maintained in the event that repackaging became necessary, thus 
preserving the important information regarding the identity and origin 
of the avocados that those measures provide.

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 the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    This proposed rule would amend our regulations governing the 
importation of Hass avocados from Mexico to require handlers and 
distributors to enter into compliance agreements with APHIS. This 
proposed rule would also amend the stickering requirement for the 
avocados and add requirements regarding the repackaging of the avocados 
after their entry into the United States. These proposed amendments 
would ensure that distributors and handlers are familiar with the 
distribution restrictions and other requirements of the regulations and 
would strengthen the effectiveness of the marking requirements used to 
identify the avocados and allow them to be traced back to their grove 
of origin.
    During the first shipping season for Mexican Hass avocados 
(November 1997 through February 1998), Mexico exported 13.296 million 
pounds of fresh avocados to the northeastern United States (U.S. 
Department of Agriculture, Foreign Agricultural Service, GAIN Report 
No. MX8140, November 24, 1998). During the second shipping season 
(November 1998 through February 1999), Mexico exported approximately 22 
million pounds of fresh avocados to the northeastern United States.
    Although it was anticipated that the importation of fresh Hass 
avocados from Mexico into the northeastern United States would result 
in lower prices for consumers and losses for domestic avocado 
producers, there has, to date, been little or no price change. The 
average wholesale price for avocados in the approved 19 northeastern 
States and the District of Columbia before the first shipping season 
began in November 1997 was $1.47 per pound, while after the shipping 
season began, the average wholesale price was $1.60 per pound. For the 
non-approved States, the average wholesale prices were $1.46 before 
November 1997 and $1.57 after the first shipping season began. (The 
wholesale prices in the approved States are based on averages in 
Baltimore, Boston, Chicago, Detroit, New York, and Philadelphia; the 
wholesale prices for the non-approved States are based on averages in 
Atlanta, Dallas, Los Angeles, Miami, San Francisco, and Seattle.) There 
was no statistically significant difference between the wholesale 
prices in the approved States and the non-approved States before or 
after Mexican Hass avocados entered the domestic market. It should be 
noted that the average wholesale prices for fresh avocados in Mexico 
were only about $0.33 and $0.32 per pound in 1997 and 1998, 
respectively.
    As discussed in the background section of this proposed rule, 
compliance agreements are available from APHIS free of charge and the 
stickering of individual avocados in Mexico is already required under 
the regulations. Therefore, the only aspect of this proposed rule that 
could be expected to result in additional costs for any U.S. entities, 
large or small, would be the proposed requirement for the marking of 
new boxes in cases where the avocados are repackaged after their entry 
into the United States.
    According to industry sources, the cost of the current box marking 
and fruit stickering requirements of the regulations is approximately 
$0.06 per pound. This cost is borne at the Mexican production/export 
end of the Hass avocado export program. If 20 percent of all shipments 
had to be repackaged following their arrival in the United States due 
to damage to original shipping boxes or for other reasons, the proposed 
requirement for the marking of new boxes could result in additional 
costs to U.S. importers or distributors of approximately $160,000 to 
$264,000. This estimate was arrived at using 20 percent of the total 
volume of Mexican Hass avocados shipped to the northeastern United 
States during the two export seasons of 1997-1998 (13.296 million 
pounds  x  $0.06  x  0.2=$159,552) and 1998-1999 (22 million pounds  x  
$0.06  x 0.2=$264,000). However, because the $0.06 figure used includes 
the costs of stickering as well as box marking, it is likely that the 
costs to U.S. importers or distributors of marking new boxes in the 
United States would actually be less than that estimate. Since, as 
noted above, the price spread between domestic and Mexican wholesale 
prices is so large, U.S. importers and distributors may be able to 
absorb any additional costs resulting from the proposed requirement for 
marking new boxes without passing those costs on to consumers.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 99-020-1. 
Please send a copy of your comments to: (1) Docket No. 99-020-1, 
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River 
Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, 
OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., 
Washington, DC 20250. A comment to OMB is best assured of having its 
full effect if OMB receives it within 30 days of publication of this 
proposed rule.
    Our regulations currently allow fresh Hass avocado fruit grown in 
approved orchards in Michoacan, Mexico, to be imported into the United 
States under certain conditions. In this document, we are proposing to 
amend our regulations governing the importation of Hass avocados from 
Mexico to require handlers and distributors to enter into compliance 
agreements with APHIS. We are also proposing to amend the existing 
stickering requirement for the avocados and to add requirements 
regarding the marking of new boxes when avocados are repackaged after 
their entry into the United States.
    These proposed amendments would require the use of several 
information collection procedures, including a compliance agreement, 
enhanced product identification, and additional container marking 
requirements. We are asking OMB to approve our use of these information 
collections in connection with our efforts to ensure that fresh Hass 
avocados from Mexico pose a negligible risk of introducing exotic 
insect pests into the United States.

[[Page 34144]]

    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 1.195 hours per response.
    Respondents: Packinghouse owner/operators in Mexico and importers, 
shippers, distributors, and handlers of fresh Hass avocados imported 
into the United States.
    Estimated annual number of respondents: 210.
    Estimated annual number of responses per respondent: 1.195.
    Estimated annual number of responses: 210.
    Estimated total annual burden on respondents: 251 hours. (Due to 
rounding, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the average reporting 
burden per response.)
    Copies of this information collection can be obtained from: 
Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence 
Avenue, SW., Washington, DC 20250.

List of Subjects in 7 CFR Part 319

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

    Accordingly, we propose to amend 7 CFR part 319 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, 450, 2803, and 
2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).

    2. In Sec. 319.56-2ff, paragraph (c)(3)(vi) would be revised and 
new paragraphs (j) and (k) would be added to read as follows:


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

* * * * *
    (c) * * *
    (3) * * *
    (vi) Prior to being packed in boxes, each avocado fruit must be 
cleaned of all stems, leaves, and other portions of plants and labeled 
with a sticker that bears the Sanidad Vegetal registration number of 
the packinghouse followed by the letters ``M/US.'' The stickers may be 
used only for fruit produced in accordance with this section for export 
to the United States.
* * * * *
    (j) Repackaging. If any avocados are removed from their original 
shipping boxes and repackaged, the stickers required by paragraph 
(c)(3)(vi) of this section may not be removed or obscured and the new 
boxes must be clearly marked with all the information required by 
paragraph (c)(3)(vii) of this section.
    (k) Compliance agreements. (1) Any person other than the permittee 
(i.e., a second-party or subsequent handler) who moves or distributes 
the avocados following their importation into the United States must 
enter into a compliance agreement with APHIS. In the compliance 
agreement, the person must acknowledge, and agree to observe, the 
requirements of paragraph (a) and paragraphs (f) through (k) of this 
section. Compliance agreement forms are available, free of charge, from 
local offices of Plant Protection and Quarantine, which are listed in 
local telephone directories.
    (2) Before transferring the avocados to any person (i.e., a second-
party handler) for movement or distribution, the permittee must confirm 
that the second-party handler has entered into a compliance agreement 
with APHIS as required by paragraph (k)(1) of this section. If the 
permittee transfers the avocados to a second-party handler who has not 
entered into a compliance agreement, APHIS may revoke the permittee's 
import permit for the remainder of the current shipping season.
    (3) Any second-party or subsequent handler who transfers the 
avocados to another person for movement or distribution must confirm 
that the person receiving the avocados has entered into a compliance 
agreement with APHIS as required by paragraph (k)(1) of this section. 
If the second-party or subsequent handler transfers the avocados to a 
person who has not entered into a compliance agreement, APHIS may 
revoke the handler's compliance agreement for the remainder of the 
current shipping season.
    (4) Action on repeat violators. APHIS may deny an application for 
an import permit from, or refuse to enter into a compliance agreement 
with, any person who has had his or her import permit or compliance 
agreement revoked under paragraph (k)(2) or (k)(3) of this section 
twice within any 5-year period.

    Done in Washington, DC, this 21st day of June 1999.
Joan M. Arnoldi,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-16173 Filed 6-24-99; 8:45 am]
BILLING CODE 3410-34-M