[Federal Register Volume 66, Number 212 (Thursday, November 1, 2001)]
[Rules and Regulations]
[Pages 55530-55552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27485]



[[Page 55529]]

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Part V





Department of Agriculture





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Animal and Plant Health Inspection Service



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7 CFR Part 319



Mexican Hass Avocado Import Program; Final Rule

  Federal Register / Vol. 66, No. 212 / Thursday, November 1, 2001 / 
Rules and Regulations  

[[Page 55530]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 00-003-4]
RIN 0579-AB27


Mexican Hass Avocado Import Program

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations governing the importation of 
fruits and vegetables to increase the number of States in which fresh 
avocado fruit grown in approved orchards in approved municipalities in 
Michoacan, Mexico, may be distributed. We are also lengthening the 
shipping season during which the Mexican Hass avocados may be imported 
into the United States. We are taking this action in response to a 
request from the Government of Mexico and after determining that 
expanding the current Mexican avocado import program would present a 
negligible risk of introducing plant pests into the United States.

EFFECTIVE DATE: November 1, 2001.

FOR FURTHER INFORMATION CONTACT: Mr. Wayne D. Burnett, Senior Import 
Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 
River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 319.56 
through 319.56-8) 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.
    Under the regulations in 7 CFR 319.56-2ff (referred to below as the 
regulations), fresh Hass avocado fruit grown in approved orchards in 
approved municipalities in Michoacan, Mexico, may be imported into 
specified areas of the United States, subject to certain 
conditions.Those conditions 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. Further, the 
regulations limit the distribution of the avocados to 19 northeastern 
States (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) 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 September 1999, the Government of Mexico requested that the 
Animal and Plant Health Inspection Service (APHIS) amend the 
regulations to (1) increase the number of States into which the 
avocados may be imported and (2) to allow the shipping season to begin 
1 month earlier (October rather than November) and end 1 month later 
(March rather than February).
    On May 11, 2000, we published a notice in the Federal Register (65 
FR 30365-30366,Docket No. 00-003-1) in which we solicited comments on 
Mexico's request. In particular, we asked the public for comments and 
recommendations regarding the scope of our review of Mexico's request 
and requested interested persons to submit any data or information that 
may have a bearing on our review of the Mexican Government's request. 
We requested that comments focus on scientific, technical, or other 
issues that commenters believed should be considered during our review 
of the Mexican Government's request.
    We solicited comments on our request for 90 days, ending August 9, 
2000. By that date, we received 265 comments. In general, the majority 
of commenters supported expanding the area of distribution of Hass 
avocados and increasing the length of the shipping season during which 
Hass avocados may be imported into the United States.
    On July 13, 2001, we published in the Federal Register (64 FR 
36891-36905, Docket No.00-003-2) a proposal to expand the area of 
distribution for Hass avocados imported from Mexico to include 
Colorado, Idaho, Iowa, Kansas, Minnesota, Missouri, Montana, Nebraska, 
North Dakota, South Dakota, Utah, and Wyoming. We also proposed to 
lengthen the Mexican Hass avocado shipping season by 2 months, to 
include March and April. We proposed this action in response to the 
Mexican Government's request and after determining that expanding the 
current Mexican Hass avocado import program would present a negligible 
risk of introducing plant pests into the United States.

    Note: Under the Plant Protection Act (7 U.S.C. 7701-7772), The 
Secretary's decision as to whether it is necessary to prohibit or 
restrict the importation of plant products is contingent upon her 
determination that such a prohibition or such restrictions are 
necessary to prevent the introduction of plant pests into the United 
States. The Plant Protection Act does not require that the 
Secretary's decision be based on a numerical or quantitative 
measurement of risk. In our proposed rule, we described the risk 
associated with the importation of Hass avocados under the systems 
approach regulations as being ``negligible'', ``insignificant'', or 
``reduced to a negligible level.'' We used these terms in their 
qualitative, descriptive sense; i.e., according to their common 
usage. In this final rule we use only the term ``negligible'' for 
consistency.

    On July 27, 2001, we published a notice of public hearings in the 
Federal Register (66 FR 39121, Docket No. 00-003-3) that detailed the 
dates, times, and locations of four public hearings regarding the July 
2001 proposed rule.
    We solicited comments concerning our proposal for 60 days ending 
September 11, 2001. Because APHIS's main office in the Washington, 
D.C., area closed early and unexpectedly because of the attack on the 
nearby Pentagon on September 11, 2001, we accepted and considered any 
comments received by September 12, 2001. We received 71 comments by 
that date, including 35 comments made at the four public hearings. The 
comments were from officials of State departments of agriculture, 
officials of foreign governments, Members of Congress, scientists, 
representatives of associations such as farm bureaus, marketing 
associations, consumer groups, and trade associations, and growers, 
packers, and shippers of avocados. Thirty-seven of the commenters 
generally supported the rule, and 34 opposed it. The issues raised in 
the comments are discussed below, by topic.
    On October 12, 2001, APHIS received a petition from the California 
Avocado Commission requesting that the agency suspend further 
administrative steps related to this action until, among other things, 
APHIS conducts, publishes, and makes available for public comment 
additional risk information that complies with Harlan Land Co. et al. 
v. USDA, et al., a recent court decision related to the importation of 
citrus from Argentina. The plaintiffs in that case are four California 
citrus growers and a coalition of California citrus growers. In Harlan 
Land, the court ruled that APHIS exceeded its authority under the Plant

[[Page 55531]]

Quarantine Act to permit the importation of Argentine citrus because 
the agency did not define ``negligible risk.'' We are denying the 
California Avocado Commission's petition and we do not agree that the 
Harlan Land decision is applicable to the Mexican Hass avocado 
rulemaking. We disagree with much of the Harlan Land decision and 
believe that it was predicated on the unique facts of that case and 
should, therefore, be limited to the Argentine citrus regulations that 
were at issue in that litigation.
    Section 7 of the Plant Quarantine Act (7 U.S.C. 160) and section 
412 of the new Plant Protection Act (7 U.S.C. 7712) do not require that 
the Secretary set a numerical threshold of risk at which the Secretary 
must permit or forbid importation; rather, Congress entrusted to the 
Secretary's discretion the decision, regardless of any numerical 
limitation to permit or forbid importation. Nowhere in section 160 or 
412 is the Secretary required to make a finding of negligible risk. 
Further, sections 160 and 412 do not set forth specific factors that 
the Secretary must consider in making her decision. A numerical 
threshold would eliminate the Secretary's ability to exercise her 
Congressionally delegated discretion under the Plant Protection Act.

Status of Avocados as a Host for Fruit Flies

    Comment: Does APHIS consider Hass avocados to be a host for 
Anastrepha spp. fruit flies? Fruit flies are not known to infest Hass 
avocados under normal growing conditions, and no historical evidence 
exists that these pests attack Hass avocados under natural conditions, 
according to APHIS's 1995 Risk Management Analysis.
    Response: APHIS considers Hass avocados to be a possible non-host, 
or, at best, a poor host, for Anastrepha spp. fruit flies. No available 
scientific research has conclusively proven that(1) Hass avocados are a 
host for Anastrepha fruit flies under field conditions, or (2) that 
Hass avocados are not a host for Anastrepha fruit flies under field 
conditions. However, we are unaware of any reported detections of 
Anastrepha fruit flies infesting Hass avocados under field conditions. 
Some research using ripe fruit has shown that Anastrepha fruit flies 
can infest Hass avocados under forced laboratory conditions, but no 
research has shown that Hass avocados can be infested under natural 
conditions in the field.
    Comment: In laboratory tests aimed at ascertaining the 
susceptibility of several avocado varieties grown in California to 
infestation by the Mexican fruit fly (Anastrepha ludens), cultivars 
Anaheim and Hass proved uninfested while Nabal, Ryan, Fuerte, Zutano, 
Puebla, and several other unnamed varieties were infested under the 
highly artificial conditions of the study.
    Response: APHIS believes that the research mentioned above and 
other scientific evidence show that Hass avocados are resistant to 
infestation by Anastrepha spp. fruit flies. However, we are not certain 
to what degree they are resistant. As stated above, APHIS considers 
Hass avocados to be a possible non-host, or, at best, a poor host, for 
Anastrepha spp. fruit flies.
    Comment: One reason why fruit flies may lay eggs in Hass avocados 
is likely a result of ``egg load.'' Flies may lay eggs in avocados 
simply because they have built up an excess of eggs and need to release 
some. For lack of a better available host, they choose avocados, just 
as they might choose plastic wrap or wood, under forced conditions.
    Response: APHIS feels the commenter's supposition is entirely 
possible, since it is well known that fruit flies will lay eggs 
wherever they can if a preferred host is not available.
    Comment: No research exists to verify with certainty that Hass 
variety avocados are a host for Anastrepha spp. fruit flies. There is 
no evidence showing that Hass avocados have been infested with 
Anastrepha spp. under field conditions. Anastrepha fruit flies may be 
present in avocado orchards not because they are seeking avocados as 
hosts, but because the groves provide a good microclimate for the 
flies. Almost all flies are captured on the periphery of avocado 
groves, and most likely enter and leave due to lack of preferred host 
material, and it is likely that fruit flies do not breed in commercial 
avocado orchards. Therefore, fruit flies should not be considered a 
pest of Hass avocados, because they do not cause any economic damage to 
commercially grown fruit.
    Response: As stated above, APHIS agrees that no research or 
evidence exists that proves that Hass avocados are hosts for Anastrepha 
spp. under field conditions. Until such research is completed, APHIS 
will continue to consider Hass avocados hosts for fruit flies, albeit 
poor hosts.
    Comment: The underlying assumption of the regulations is that 
avocados are poor hosts for the Mexican fruit fly. We do not know that 
this is truly the case. We need a better understanding of the true host 
status of the Hass avocado for Mexican fruit fly. As was shown with 
Sharwil avocados in Hawaii, a presumed non-host can become a good host 
if conditions are correct.
    Response: As stated above, the host status of Hass avocados for 
Anastrepha spp. fruit flies has not yet been clearly defined, and until 
proven otherwise, APHIS will continue to consider Hass avocados as poor 
hosts for Anastrepha spp. fruit flies. However, while there is not 
sufficient research available to confirm that Hass avocados are not 
hosts of Anastrepha spp. fruit flies, no such fruit flies have ever 
been detected and reported in Hass avocados growing under field 
conditions.
    Comment: What role do decreasing seven carbon sugars in the peel 
and flesh of the fruit play in host resistance? What about changes in 
fatty acid composition? What about barrier infestation of the fruit and 
the peel? We know that the fruit skin thins considerably as it hangs on 
the tree.
    Response: Research aimed at determining the host status of Hass 
avocados has not shown the physiological reason why they appear to be 
resistant to fruit flies. Field cage tests previously conducted in 
Mexico were designed to test commercial avocados for resistance to 
fruit flies. The field cage tests found that, whatever their 
physiological condition, the fruits were resistant to fruit flies. (The 
nature of this resistance was not determined.)
    Regarding the thinning of the skin: In the field cage tests, fruit 
flies were able to penetrate the skin and lay eggs in the fruit, but 
the eggs failed to develop. In laboratory tests that involved fruit 
subjected to infestation immediately after harvest, fruit flies were 
also able to penetrate the skin and lay eggs in the fruit, but eggs 
failed to develop. Only when fruit was harvested, held for several 
days, and then subjected to oviposition under forced conditions were 
the eggs able to develop into larvae.
    Comment: APHIS relies on the total number of fruit cut and 
inspected without detection of fruit fly larvae during the operation of 
the Mexican Hass avocado import program as evidence of the poor host 
status of Hass avocados.
    Response: APHIS believes that the number of fruit cut and inspected 
without detection of fruit fly larvae during the operation of the 
Mexican Hass avocado import program provides evidence that the systems 
approach is working as designed and is effectively mitigating the risk 
of pest introduction into the United States. As stated in the proposed 
rule, nearly 5.5 million fruit have been cut and inspected in orchards, 
in packinghouses, and at the border, and none were found infested

[[Page 55532]]

with target pests. While it may be tempting to infer that, based on the 
number of fruit cut without detection of fruit fly larvae, Hass 
avocados growing in commercial groves in Michoacan, Mexico, are not 
hosts to Anastrepha spp. fruit flies, no scientific evidence is 
available that conclusively supports or denies that conclusion.
    Comment: An Agricultural Research Service (ARS) review of a 
research report from Mexico dated July 21, 1994, concluded, ``it 
appears that Hass avocado, while on the tree, may be resistant to fruit 
fly development but this needs to be systematically proven before 
``non-host'' status can be demonstrated.'' At the time, this prompted 
APHIS to write to Sanidad Vegetal: ``Because of their high 
susceptibility in the laboratory, we cannot yet consider Hass avocados 
as being nonhosts under field conditions without research to identify 
the resistance factors over time and under all ecological conditions.'' 
Has this research been done? Regardless, APHIS has apparently changed 
its position on the issue of the host resistance of Hass avocados. 
APHIS has emphatically stated, ``host resistance is real'' based on 
fruit cutting results generated by the Mexican Avocado Import Program, 
despite the fact that past research projects have not conclusively 
established that Hass avocados are physically or chemically resistant 
to attack by fruit flies. APHIS's position on host resistance lacks 
substance, flies in the face of scientific principles, and cannot be 
relied upon as a risk mitigation strategy (it is presently Step Four in 
APHIS's systems approach).
    Response: As stated earlier in this document, APHIS has not changed 
its position on the issue of host resistance, because no available 
scientific evidence conclusively proves that Hass avocados that are 
imported under the conditions of the systems approach are not hosts for 
fruit flies. APHIS did state in the June 1999 ``Review of the Systems 
Approach for Mexican Avocado'' that ``the evidence shows that this 
variety [Hass] is either not a host or a poor Anastrepha fruit fly host 
prior to harvest * * * The field and packinghouse fruit cutting 
(2,897,926 fruit for both seasons) indicates that the host resistance 
is real.''
    We do not believe our use of the word ``indicates'' represents the 
``emphatic statement'' suggested by the commenter. In fact, that 
sentence is the only time APHIS has gone on record with such a 
statement , and the June 1999 Review is not considered a risk 
assessment document, and does not, by itself, provide any basis for the 
expansion of the Mexican Hass avocado import program. As stated earlier 
in this document, APHIS does believe that the number of fruit cut and 
inspected without detection of fruit fly larvae during the operation of 
the Mexican Hass avocado import program provides evidence that the 
systems approach is working as designed and is effectively mitigating 
the risk of pest introduction into the United States.

Enforcement and Outreach

    Comment: Who is going to enforce the rules and regulations that 
APHIS has proposed? Is enforcement being paid for by U.S. taxpayers? Is 
it going to be self-policing?
    Response: APHIS's International Services (IS) maintains a presence 
in the avocado production areas in Michoacan. IS has an inspector 
stationed in Michoacan year-round to ensure that APHIS regulations and 
the conditions of the program workplan are being complied with in 
approved orchards and packinghouses. APHIS also employs seasonal 
inspectors who monitor compliance with the regulations during the 
orchard certification process and the avocado shipping season. These 
enforcement activities are paid for out of a trust fund account that is 
funded by an association of Mexican avocado growers in accordance with 
the regulations in Sec. 319.56-2ff(b).
    As has been the case for the first 4 years of the program, the 
regulations will be enforced in the United States by APHIS Plant 
Protection and Quarantine (PPQ) officers stationed at ports and offices 
in both approved and nonapproved States. Additional services will be 
provided by APHIS-PPQ's Smuggling Interdiction and Trade Compliance 
(SITC) program, which:
     Conducts smuggling interdiction efforts at air, land, and 
sea ports of entry.
     Carries out domestic market surveys for the presence of 
prohibited products.
     Conducts transit survey and smuggling interdiction efforts 
at truck weigh stations inside the country.
     Provides education and outreach to importers, market 
owners, transportation companies, retailers, and the public regarding 
regulatory compliance.
     Provides liaison and cooperative efforts with State 
departments of agriculture and other Federal agencies such as the U.S. 
Customs Service, U.S. Fish and Wildlife Service, U.S. Food and Drug 
Administration, and U.S. Department of Agriculture's (USDA's) Food 
Safety and Inspection Service.
     Works closely with APHIS's Investigative and Enforcement 
Services (IES) and USDA's Office of the Inspector General and Office of 
General Counsel to investigate potential regulatory violations and 
prosecute violators to the full extent of the law.
     Gathers information to identify and close down smuggling 
pathways for prohibited agricultural products.
    More information on the SITC program is available on the APHIS 
website at: http://www.aphis.usda.gov/ppq/trade/. PPQ and SITC 
enforcement activities are funded by Agricultural Quarantine and 
Inspection (AQI) user fees paid by persons who import commodities, 
including avocados, into the United States.
    Comment: What additional resources are going to be available to 
enforce the regulations, given the expansion of the program? There is 
legitimate concern that the Mexican Hass avocado import program cannot 
be effectively monitored under the current state of APHIS resources, 
particularly in the enforcement area. APHIS should review its resources 
prior to adopting any change to the program.
    Response: APHIS has reviewed its resources and believes it has 
adequate coverage across the United States to ensure compliance with 
its regulations, including the Mexican Hass avocado import program, as 
expanded by this rule.
    Comment: When avocados are moved into Utah, how is APHIS planning 
to guard the border to ensure that they do not move westward toward 
California?
    Response: There are no APHIS personnel who physically guard borders 
between U.S. States. However, all persons who move or distribute 
Mexican Hass avocados within the United States must enter into a 
compliance agreement with APHIS wherein they must acknowledge and agree 
to observe the regulations that restrict the movement of Mexican Hass 
avocados to certain States. Furthermore, persons who obtain permits to 
import Mexican Hass avocados may only transfer the avocados to persons 
who have entered into a compliance agreement with APHIS. Persons who 
violate these conditions may have their permits or compliance 
agreements revoked. Violators are also subject to penalties authorized 
under the Plant Protection Act (7 U.S.C. 7701-7772).
    APHIS-PPQ also has enforcement personnel in each U.S. State who are 
responsible for monitoring compliance with APHIS-PPQ regulations, 
including the Mexican Hass avocado import program. These personnel 
review shipping documents at either end of the

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shipping process to ensure that Mexican Hass avocados are distributed 
only to approved States.
    Comment: Are the distribution hubs of retail chains that operate in 
States inside and outside the approved distribution area going to be 
monitored? If so, by whom? Who will pay for the monitoring?
    Response: Distribution hubs of such retail operations will have to 
enter into the same compliance agreements just described, and will be 
subject to the same monitoring just described. As stated earlier in 
this document, monitoring is funded by receipts of AQI user fees paid 
by persons who import commodities, including avocados, into the United 
States.
    Comment: Will there be an educational outreach effort to educate 
trucking companies on the restrictions associated with the movement of 
imported avocados? If so, who will conduct the outreach, and who will 
pay for it?
    Response: APHIS will send letters to various trucking industry 
organizations and produce marketing organizations notifying them of the 
change in the regulations. Furthermore, the revised box marking 
requirement should be helpful in alerting shippers and retailers to the 
change in the regulations. All of APHIS's educational outreach 
activities, including outreach activities regarding Mexican Hass 
avocados, are paid for with funds appropriated by Congress.
    Comment: There is an economic incentive for consumers to smuggle 
fruit into prohibited areas. What kind of outreach is planned to 
educate the public on the legal ramifications of moving Mexican Hass 
avocados to nonappproved States? Who will fund the outreach activities?
    Response: There will always be some risk that commodities will be 
smuggled into one area from another area where they cost less. APHIS 
does not believe that expansion of the Mexican Hass avocado import 
program will increase the likelihood that smuggling will occur.Further, 
APHIS has not planned any outreach activities that are directed at 
consumers because it does not believe that smuggling of Mexican Hass 
avocados by consumers is a serious problem.Small quantities of Hass 
avocados that are moved into nonapproved areas do not present a major 
risk that pests could be introduced into, or become established in, 
those areas, especially given that Mexican Hass avocados have not been 
shown to be infested with any pests of concern.
    Comment: Controls should continue to be tightened to keep Mexican 
Hass avocados from being illegally shipped to Florida and other States 
with avocado pest host material. One shipment of avocados found in 
Florida did have scale, which is an actionable pest in Florida.
    Response: APHIS is pleased with statistics that suggest there has 
been over a 99 percent rate of compliance with the limited distribution 
requirements for shipments of Hass avocados from Mexico. This 
compliance rate is well within the estimates used for the risk 
assessment, and therefore, APHIS sees no need to further tighten 
restrictions on Mexican Hass avocado imports.The scale insect referred 
to above was not an exotic species that required quarantine action by 
APHIS.
    Comment: Interception statistics suggest that 1 out of every 1,000 
shipments of boxes of avocados ends up outside the approved 
distribution area. Is this an acceptable level of risk?
    Response: APHIS does not determine ``acceptable levels of risk'' 
for each node or potential risk event. Rather, estimates of the risk 
that specific events could occur are factored into the overall 
calculations of risk in the risk assessment. The risk assessment 
concludes that there is a negligible risk of pest introduction 
associated with Mexican Hass avocados imported under the various 
requirements of the systems approach.
    Comment: APHIS has been too slow in applying appropriate penalties 
to U.S. distributors who knowingly divert Mexican Hass avocados to 
nonapproved States.
    Response: APHIS makes every attempt to resolve cases as quickly as 
possible; however, all alleged violators of APHIS's regulations have 
rights, are afforded due process, and may request to present their case 
at a hearing. This process can take time due to the fact that violators 
often have the right to appeal their cases to higher courts.
    Comment: USDA-APHIS does not have a tracking system in place to 
monitor the movement of avocados to their final destination. Even 
though boxes of avocados are marked with destination restriction 
requirements, there is nothing to stop fruit from being repackaged and 
sent to nonapproved areas. The Florida Department of Agriculture is 
concerned that there is no mechanism in place to protect it from fraud 
by avocado shippers, packers, etc.
    Response: Shipments of Mexican Hass avocados may only be imported 
under limited permits granted by APHIS and are tracked to their initial 
destination in the United States. APHIS inspectors confirm that 
shipments arrive at their approved destination by reviewing shipping 
documents, and monitor shipments from distribution hubs to ensure that 
avocados are not shipped to nonapproved areas. Shippers of Mexican Hass 
avocados must retain their shipping records, which are subject to APHIS 
review.
    APHIS believes it is highly unlikely that Mexican Hass avocados 
would be repackaged and sent to nonapproved areas, especially given 
that each avocado must be identified with a sticker that bears the 
Sanidad Vegetal registration number of the packinghouse where they were 
packed in Mexico. An unscrupulous distributor who wished to illegally 
transship Mexican avocados would have to pay the costs associated with 
obtaining a shipment of imported Mexican avocados at wholesale prices 
from a terminal market in an approved State, moving that shipment to a 
secure location, unloading the boxes from the truck or container, 
removing all the avocados from their packing boxes, peeling the sticker 
from each piece of fruit, perhaps adding a new sticker to each piece of 
fruit, repacking the fruit in new boxes, loading the boxes back onto 
the truck or container, and driving the load of avocados across the 
country to one of the expected high-demand markets (south Florida, 
Texas, and California), all of which would limit the profitability of 
such an illegal enterprise. We believe that this limited profit 
potential, when combined with other factors such as the ready 
availability of domestic and imported avocados in areas outside the 
approved States and the fact that persons involved in such illegal 
transshipment are liable to legal action, incarceration, or fines, 
makes it unlikely that such ``commodity fraud'' will take place.
    Comment: Since the inception of the Mexican Hass avocado 
importation program, two avocado pests from Mexico, the avocado thrips 
(Oligonychus perseae) and the Mexican fruit fly(Anastrepha ludens) have 
caused significant damage to the agricultural industry in San Diego 
County, CA. The thrips were likely introduced into California as a 
result of illegal shipments of Mexican avocados, despite APHIS's 
contention that Mexican Hass avocados have not been diverted into 
California.
    Response: To clarify, the scientific name for the avocado thrips is 
Scirtothrips perseae, and the scientific name for the persea mite is 
Oligonychus perseae. Both of the these pests are established in the 
State of California, and both cause damage to avocado fruit. The 
avocado thrips was first noticed in California in July 1996, and the 
persea mite was first identified in California in

[[Page 55534]]

1990. Both pests were introduced into California prior to the beginning 
of the Mexican Hass avocado import program, and were not introduced 
into California via Mexican Hass avocados imported under the systems 
approach regulations. APHIS can only speculate as to how those pests 
were introduced into California, but believes it is possible that both 
could have been introduced via propagative material imported from 
Mexico in violation of APHIS regulations.
    The Sequeira, et al. study, which provides part of the basis for 
this final rule, identifies San Diego County as an area at high risk 
for fruit fly establishment. Given the poor host status of Hass 
avocados for Anastrepha spp. fruit flies, and given the limited 
distribution requirements of the regulations and all the APHIS 
enforcement activities that support those regulations, APHIS believes 
it is highly unlikely that imported Hass avocados from Mexico could 
serve as a pathway for the introduction of fruit flies into San Diego 
County. Outbreaks of Mexican fruit fly occurred periodically prior to 
the inception of the Mexican Hass avocado program. APHIS believes these 
infestations were likely triggered by small amounts of preferred host 
material smuggled within legitimate cargo or passenger baggage.
    Comment: APHIS's amendment of the regulations to require compliance 
agreements is appreciated. However, even after the new requirements, 
California continued to intercept Mexican avocado shipments, mostly at 
border stations, that were being moved in violation of the limited 
distribution and travel corridor requirements.
    Response: APHIS is unaware of any Hass avocados imported under the 
systems approach regulations that were intercepted at California border 
stations. APHIS is aware that in early 1999, several shipments of 
Mexican avocados intended for transit through the United States and 
exportation to another country were intercepted at California border 
stations. These shipments were not associated with the Mexican Hass 
avocado import program.

Inequity of Treatment Protocols

    Comment: In 1999, when APHIS declared a Mexican fruit fly 
quarantine covering an 81-square-mile area surrounding Fallbrook, CA, 
after finding two Mexican fruit flies, there was no debate about the 
host status of Hass avocados. APHIS did not classify Hass avocados as a 
secondary host, as did Sequeira, et al. In California, APHIS required 
the application of Malathion bait treatments for two life cycles of the 
Mexican fruit fly--a period of time covering 4 to 8 months--before Hass 
avocados could be harvested from groves within the quarantine zone. By 
contrast, under the regulations, if two fruit flies are detected within 
a 260-hectare area within the approved Hass avocado export area in 
Mexico, growers may continue to export fruit to the United States 
provided that malathion bait treatments are applied every 7 to 10 days. 
This APHIS policy unfairly favors foreign interests over domestic 
producers of avocados, and APHIS offers no explanation for this 
apparent double standard in the proposed rule or any of the supporting 
documents.
    Response: APHIS acknowledges that there are differences in the 
regulatory procedures for growers to certify the movement of Hass 
avocados from Mexican fruit fly regulated areas of Mexico and the 
United States. However, in both cases, the goal of the regulatory 
procedures is the same: To eliminate the potential for spread of fruit 
flies. In 1999 in Fallbrook, CA, APHIS quarantined an 81-square-mile 
area until such time as we could determine that there was not a 
reproducing fruit fly population in that area. To ship fruit out of the 
area, growers had to bait treat Hass avocado orchards at 6 to 10 day 
intervals for two fruit fly life cycles as estimated by the degree day 
model. Upon completion of bait spray treatments, Hass avocados from the 
regulated areas could be shipped anywhere in the United States, without 
any further restriction.
    In contrast, Hass avocados grown in approved orchards in Michoacan, 
Mexico, are always subject to the various conditions employed by the 
systems approach regulations, which are intended to protect the United 
States from the introduction of fruit flies and avocado-specific pests. 
While Hass avocados from Mexico may continue to be shipped to the 
United States if 2 fruit flies have been found in a 260-hectare area 
within the growing area, such avocados are still subject to all of the 
other risk-mitigating conditions of the systems approach. These 
conditions include, among other things, requirements that Hass avocados 
only be shipped to certain States during certain months of the year, 
that they originate in orchards that meet certain sanitation 
requirements, that they be packed in packinghouses under certain 
conditions, that the boxes and fruit be specially labeled, that certain 
numbers of fruit must be cut in orchards, in the packinghouse, and at 
the border, and that persons handling and shipping avocados enter into 
compliance agreements with APHIS. U.S. growers within an area under a 
fruit fly quarantine are not subject to any restrictions of this type, 
and may ship Hass avocados to all areas of the United States at any 
time of year after bait treatments have been completed.
    These issues aside, APHIS understands that avocado growers in 
California would like to be able to harvest and ship their fruit during 
a fruit fly quarantine in the event that one was to be declared in a 
domestic growing area. APHIS is currently evaluating protocols that 
would enable such movement.

Extension of Shipping Season and Expansion of Approved Distribution 
Area

    Comment: The regulations should list States where the distribution 
of Mexican Hass avocados is prohibited rather than States where such 
distribution is allowed.
    Response: APHIS agrees that the box markings for imported Mexican 
avocados should be revised. Therefore, in this final rule we are 
revising the box marking provisions to require that boxes of Hass 
avocados imported from Mexico be clearly marked with the statement``Not 
for distribution in AL, AK, AZ, AR, CA, FL, GA, HI, LA, MS, NV, NM, NC, 
OK, OR, SC,TN, TX, WA, Puerto Rico, or any other U.S. Territory.'' The 
requirements that avocados be packed in clean, new boxes clearly marked 
with the identity of the grower, packinghouse, and exporter are not 
affected by this change. Given that the number of approved States now 
exceeds the number of nonapproved States, this change will reduce the 
amount of text necessary for the box markings, making them easier to 
read.
    Comment: During the first year of the Mexican Hass avocado import 
program, six States were believed to have received illegal avocado 
shipments. To help protect the large California avocado industry from 
infestation, States such as Kansas and Utah should be removed from 
consideration. Utah is 200 miles from California, and Kansas is just 
across the Oklahoma panhandle from Texas.
    Response: APHIS is confident that monitoring activities conducted 
by PPQ, which are described in detail earlier in this document, are 
adequate to ensure that Hass avocados from Mexico are not diverted into 
nonapproved States. APHIS does, however, wish to restate that the risk 
estimates assume that, despite the regulations and APHIS's enforcement 
activities, a certain number of boxes of avocados might be diverted 
outside the approved distribution area. These risk estimates are 
factored into the overall calculations of risk in the

[[Page 55535]]

risk assessment, which provides that there is a negligible risk of pest 
introduction associated with the importation of Mexican Hass avocados. 
During the first 4 years of the program, 3881 boxes of fruit were 
diverted outside the approved distribution area. This number is 
substantially less than the number APHIS assumed might be diverted in 
calculating the overall pest risk associated with the importation of 
avocados. To change the overall risk estimate, the amount of diversion 
would have to be approximately 50 times the current level of diversion.
    Comment: APHIS-PPQ's industry alert dated October 2000 states that 
moving or shipping Mexican Hass avocados to other States poses a risk 
of introducing pests that could cause millions of dollars of damage to 
U.S. crops. Why does APHIS's proposed rule state the opposite of what 
was reported in the industry alert?
    Response: The October 2000 Industry Alert was based on information 
available to us at the time it was prepared. As stated in our proposed 
rule, APHIS proposed to expand the Mexican Hass avocado import program 
based on:
     Risk assessment documents on which the original import 
program was based, but that still provide a basis for expansion of the 
program.
     A study conducted by the North American Plant Protection 
Organization's (NAPPO's) Pest Risk Assessment Panel (referred to 
elsewhere in this document as ``Sequeira, et al.'') that provides 
evidence that Anastrepha fruit flies could not become established in 
the States proposed for expansion.
     Four shipping seasons (1997-2001) worth of shipping and 
inspection data and four years worth of fruit fly trapping data for the 
approved orchards in approved municipalities in Mexico.
    The content of these documents, and our analysis of their 
applicability to Mexico's request that we expand the Mexican Hass 
avocado import program is documented in APHIS's ``Information Memo for 
the Record'' (April 30, 2001).
    Comment: The Department appears to be sweeping aside one of the 
critical components to the systems approach, namely limiting the season 
of shipment. Under the proposal, fruit and pests can be shipped into 
the United States during times (April and May) when there certainly is 
host material present in the receiving States. Consequently, the rule 
should be appropriately modified to delete April as a shipping period. 
If the Department is intent on expanding the time period to cover a 6-
month shipping window, then a possible approach would be to start the 
program on October 15 and end it on April 15.
    Response: APHIS has reviewed the risk assessment documents on which 
this rule is based, and finds that they support the commenter's 
suggestion. We have reviewed anecdotal evidence regarding the marketing 
patterns of Mexican Hass avocados and have found that Hass avocados 
remain in the marketplace for 2 to 4 weeks after importation. 
Therefore, avocados imported on April 30 could be in the marketplace 
until late May, when fruit fly host material would be beginning to 
become available in some approved States. To further reduce the risk 
that fruit flies, if imported with Mexican Hass avocados, could find 
suitable host material in approved States, we are revising the dates 
that begin and end the shipping season. As suggested by the commenter, 
the shipping season will run from October 15 through April 15. This 
change will help to ensure that fruit flies, in the highly unlikely 
event that they are present in imported Hass avocados, are even less 
likely to be imported into areas with suitable host material that could 
support their survival.
    As stated in our proposed rule, the numbers of fruit flies trapped 
in approved municipalities in Michoacan are higher in October than in 
April. However, climatic conditions in the States proposed for 
expansion are less conducive to fruit fly survival in late October than 
in mid- to late May, when imported avocados could still be in the 
marketplace in the United States. Climatic conditions in October in the 
approved distribution area are such that even if fruit flies were 
present in shipments of avocados, the flies would find little or no 
host material on which to survive. Further, even if host material were 
present and conditions were suitable for fruit fly survival in late 
October, conditions in November would not suitable for fruit fly 
survival.
    Comment: Although trapping data indicate that fruit fly population 
levels in Michoacan are lower between the months of November and April, 
captures in May rise precipitously. For adults to be captured in May, 
ovipositing in host material had to occur in late March or early April, 
depending upon ambient weather conditions. Generally, temperatures 
between 20 and 30  deg.C considered optimal for the development of 
Anastrepha spp. fruit flies. According to the Joint Agricultural 
Weather Facility, operated by the World Agricultural Outlook Board of 
the USDA and the National Oceanic and Atmospheric Administration (NOAA) 
of the U.S.
    Department of Commerce, average temperatures in those 
municipalities in Michoacan, Mexico, approved for the export of Hass 
avocados were within this range between February 1 and April 30, 2001. 
This means that fruit fly eggs and larvae were present in host material 
in or around avocado groves at the time of the proposed harvest of Hass 
avocados for shipment to the United States.
    Response: As stated elsewhere in this document, APHIS has 
acknowledged that Anastrepha spp. fruit flies are present in Michoacan, 
which is why the systems approach regulations include safeguards to 
prevent the introduction of those pests. The requirements, such as 
surveillance trapping, increased trapping in response to a single fruit 
fly detection, Malathion bait treatments, covering of harvested 
avocados, fly-proof screens on packinghouses, and inspections, work 
together with the poor host status of Hass avocado fruit growing in 
commercial orchards in Michoacan to mitigate the risk posed by 
Anastrepha spp. fruit flies.
    Comment: To allow Hass avocados to pass through Florida for an 
extended period when the invasive pests associated with avocados are 
more prevalent would create a hardship for the Florida avocado industry 
and the larger Florida agricultural industry. Although identified pests 
of avocados would not likely become established in the approved States, 
they could become established in Florida. With the potential for 
transshipment, that is a distinct possibility.
    Response: Avocados imported under the systems approach regulations 
contained in Sec. 319.56-2ff are not eligible for movement into or 
through Florida at any time.

Pest Detection

    Comment: Without knowing the methodology used for fruit cutting and 
other visual survey activities, there is no way for reviewers to draw 
conclusions from the survey or other interpretive data provided.
    Response: There is no manual on methods for fruit cutting and other 
visual survey activities, per se. However, there is some discussion of 
such methodologies in the 1995 Risk Management Analysis and the 
workplan for the Mexican Hass avocado import program. Again, APHIS is 
confident that Mexican Hass avocados are properly cut and inspected in 
orchards, at packinghouses, and at the port of first arrival in the 
United States.
    Comment: The biology of potentially serious pests like thrips makes 
detection very difficult. Thrips eggs are extremely

[[Page 55536]]

small and are usually laid within the tissues of leaves or skin of 
fruit. The number of eggs laid within individual leaves and fruit in 
orchards infested with the avocado thrips in California can easily 
exceed 20. Plant material entering the United States, either legally or 
illegally, with this number of viable eggs provides a good-sized cohort 
that could establish a reproducing population in a permissive 
environment. Further, frequent introductions of small numbers of pests 
ultimately could lead to establishment when founding populations enter 
a permissive environment.
    Response: APHIS is confident that infestations of thrips in Hass 
avocados can be detected during inspections required under the systems 
approach, including inspections at the port of first arrival in the 
United States. Available literature suggests that most thrips feed on, 
and lay eggs in, other parts of plants besides fruit, and therefore, 
APHIS does not generally consider fruit a likely pathway for thrips. 
Furthermore, the lack of interceptions of thrips of quarantine 
significance in commercial shipments of avocados suggests that imported 
avocado fruits are not a good pathway into the United States for such 
pests.
    Comment: In the 2001 trip report, Dr. Cervantes states that ``the 
methods used for detecting pests that have been proposed in the USDA-
SAGAR workplan, if they are followed as specified, are adequate to 
detect the presence of the seed moth.'' What about the other pests?
    Response: Dr. Luis M. Cervantes Peredo was asked to review only the 
avocado seed moth detection activities associated with the Mexican Hass 
avocado import program. Dr. Cervantes is an expert on the avocado seed 
moth, and in his report found that the various pest detection measures 
used in the program are adequate to detect the presence of the avocado 
seed moth in approved avocado groves.
    Comment: Is there a prescribed protocol for certifying or otherwise 
validating laboratory standards and/or detection programs in the areas 
of origin? Who ensures that such protocols are enacted? Are there 
penalties for laboratories or detection facilities and programs that do 
not enact or conform to the prescribed protocols?
    Response: We are unsure of what the commenter means by ``laboratory 
standards,'' as the program involves no laboratories, per se. 
Regardless, as stated earlier in this document, APHIS's International 
Services (IS) maintains a presence in the avocado production areas in 
Michoacan. IS has an inspector stationed in Michoacan year-round to 
ensure that APHIS regulations and the conditions of the program 
workplan are being complied with in approved orchards and 
packinghouses. APHIS also employs seasonal inspectors who monitor 
compliance with the regulations during the avocado shipping seasons. 
Orchards that do not meet the criteria outlined in the regulations 
(including trapping, fruit cutting, orchard sanitation, and other 
requirements) are removed from the program. Essentially there should be 
minimal concern that APHIS standards are being met in Mexico because 
APHIS monitors all aspects of the import program.

Fruit Cutting

    Comment: A fruit fly egg is about 1.2 millimeters in length in the 
field and in the packinghouse where 99 percent of all fruit cutting for 
the program takes place. Weevil larvae feed just underneath the skin of 
avocado near the stem end and, unless fruit are examined closely, 
larvae would not be detected. Fruit that are cut should be examined for 
eggs of fruit flies, weevils, and thrips using hand lenses or 
dissecting microscopes. Non-detection under the current fruit cutting 
procedures does not indicate non-infestation.
    Response: APHIS inspectors are allowed to use their discretion in 
selecting a method of examination of imported Hass avocados. Each 
inspector has a hand lens that he or she may use if needed to aid in 
the detection of pests in Hass avocados. APHIS is aware that there is a 
remote possibility that pests could infest fruit and escape detection 
during fruit cutting. However, fruit cutting represents only one 
element of the systems approach, which uses a series of overlapping, 
redundant safeguards to mitigate the risk of pest infestation. In fact, 
Table 3 in the risk management analysis for the systems approach shows 
that fruit cutting is one of the least effective risk mitigating tools 
used in the systems approach. For convenience, the table is reproduced 
below.

                                                       Table 3.--Systems Approach: Mexican Avocado
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Reduction of potential pest risk
                                ------------------------------------------------------------------------------------------------------------------------
    Risk mitigation measures                          Small avocado seed     Avocado stem     Large avocado seed
                                     Fruit flies:          weevils:        weevil: Copturus    weevil: Heilipus   Avocado seed moth:    Hitchhikers and
                                   Anastrepha spp.    Conotrachelis spp.       aguacatae             lauri         Stenoma catenifer      other pests
--------------------------------------------------------------------------------------------------------------------------------------------------------
Field surveys..................  40% to 60%.........  95% to 99%........  80% to 95%........  95% to 99%........  95% to 99%........  40% to 75%
Trapping and field treatments..  55% to 75%.........  0.................  0.................  0.................  0.................  3% to 20%
Field sanitation...............  75% to 95%.........  15% to 35%........  70% to 90%........  15% to 35%........  15% to 35%........  20% to 40%
Host resistance................  95% to 99.9%.......  0.................  0.................  0.................  0.................  0
Post-harvest safeguards........  60% to 90%.........  0.................  0.................  0.................  0.................  40% to 60%
Winter shipping only...........  60% to 90%.........  0.................  0.................  0.................  0.................  50% to 75%
Packinghouse inspection and      25% to 40%.........  50% to 75%........  40% to 60%........  50% to 75%........  50% to 75%........  30% to 50%
 fruit cutting.
Port-of-arrival inspection.....  50% to 70%.........  50% to 70%........  50% to 70%........  50% to 75%........  50% to 75%........  60% to 80%
Limited U.S. distribution......  95% to 99%.........  95% to 99%........  90% to 99%........  95% to 99%........  95% to 99%........  75% to 95%
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As shown in the table, for each type of pest, there are at least 
two other mitigating measures that are believed to be more effective in 
reducing risk of infestation of avocados than fruit cutting. The most 
significant of these mitigating measures is the limited distribution 
measure, which provides that, even in the event that infested fruit 
escape detection at the port of first arrival, they are only eligible 
for importation into areas with a lack of suitable host material and 
climatic conditions that would inhibit their survival.
    Comment: In the field, fruit is cut in half or quartered, is 
inspected for seed damage or tunneling, and is then

[[Page 55537]]

discarded. In the packinghouse, fruit is cut in half and given a 
cursory glance and then brushed off the cutting table without 
examination. APHIS must work closely with Sanidad Vegetal to develop 
formal, documented methods for cutting fruit in the field, at 
packinghouses, and at the border. The objective of fruit cutting in the 
field should be detection of stem weevils, seed weevils, and the seed 
moth. Each inspector should be thoroughly trained in proper fruit 
cutting technique, and should be equipped with a hand lens.
    Response: In the past, APHIS observed improper fruit cutting 
techniques being employed at packinghouses, and took corrective action. 
We are confident that inspections and fruit cutting in the field and at 
the packinghouses are being conducted properly. APHIS inspectors are 
present any time that fruit is cut in a packinghouse in Mexico, and are 
trained to detect all of the pests of concern for Hass avocados. Each 
APHIS inspector has a hand lens available if its use is necessary, and 
the objective of fruit cutting is always detection of any and all 
pests. Though fruit cutting and inspection are not as effective for 
detecting fruit flies as they are for detecting stem weevils, seed 
weevils, and the seed moth, APHIS inspectors look for all pests during 
these procedures.
    Comment: If the fruit cutting technique is not standardized, and is 
not accompanied by proper detailed inspection of fruit, including use 
of hand lenses or microscopes, then the data generated regarding the 
number of uninfested cut fruit are meaningless and cannot serve as a 
basis to support a change in regulatory requirements.
    Response: As stated earlier in this document, we believe fruit 
cutting as it is currently practiced in the field and at packinghouses 
is adequate to detect pests in Hass avocado fruit. Furthermore, fruit 
cutting data suggest that the Mexican Hass avocado import program is 
working as designed.
    We did not propose to expand the program simply because of fruit 
cutting data. Rather, as stated in our proposed rule and elsewhere in 
this document, we proposed to expand the program because risk 
assessment documents and 4 seasons worth of shipping, inspection, and 
trapping data support expanding the rule. Indeed, fruit cutting data 
suggest that imported avocados are not infested with pests, but the 
findings of the Sequeira, et al. study suggest that even if avocados 
were infested with fruit flies, those flies would not survive in the 
approved distribution areas.
    Comment: APHIS has acknowledged that fruit cutting is not intended 
as a method for detecting fruit fly eggs or larvae. This is evident 
from the description of the procedure itself in the Work Plan, which 
states that ``all the fruit will be cut open to detect the presence of 
weevil eggs or larvae''.
    Response: APHIS has made a policy of not using inspection (and in 
this case, fruit cutting) as a means of mitigating the risk posed by 
fruit flies. As shown in Table 3 of the Risk Management Analysis 
(reprinted earlier in this document), packinghouse inspection and fruit 
cutting provide only a 25 to 40 percent reduction in the risk posed by 
fruit flies, while providing a 50 to 75 percent reduction in the risk 
posed by seed weevils and a 40 to 60 percent reduction in the risk 
posed by the avocado stem weevil. Despite this, we do still inspect 
fruit for all pests.
    Comment: Fruit cutting in the field should be supported by 
mandatory cutting of culled fruit in the packinghouse from each lot per 
day, in addition to cutting samples from packed fruit prior to 
shipping.
    Response: Under the regulations, 300 fruit per shipment must be cut 
at the packinghouse prior to culling and packaging. No cutting is done 
after culling, though fruit that would have been culled are part of the 
cutting sample.
    Comment: Fruit cutting should be based on a percentage of fruit at 
each inspection for each lot per pack date, not a set number of fruit 
per lot. Quantities of fruit per lot can vary considerably, with the 
possibility that large lots could be undersampled. As an example, a 
minimum of 1 percent of the boxes in each lot in the shipment should be 
visually inspected and 5 percent of the fruit within those boxes should 
be cut and carefully inspected for the presence of internal feeders.
    Response: Fruit cutting is based on a percentage of fruit per 
shipment. As stated above, under the regulations, 300 fruit must be cut 
and inspected per shipment to the packinghouse. A shipment of avocados 
is almost always the total amount that can fit in a standard shipping 
container. APHIS believes that such shipments, depending on the size of 
the fruit and the number of field boxes, can range in number between 
1,000 and 4,000 avocados. Hypergeometric tables indicate that the 
sample size needed to reach the 95 percent confidence level of 
detecting a 1 percent infestation in these shipments varies between 258 
and 288 fruit cut per shipment, assuming a maximum number of 4,000 
avocados per shipment. Therefore, we set the sample size at 300 fruit, 
and believe this sample size is sufficient to provide a high level of 
confidence that infested fruit will be detected, if present.
    Comment: Paragraph 4.4 under the Packinghouse section of the 1999 
workplan requires that fruits sampled at the packinghouse are to be cut 
into slices to inspect for fruit flies, seed pests, and stem weevils, 
but the 2001 trip report and program review pictures provided show a 
fruit cutting procedure that does not appear consistent with the work 
plan requirements.
    Response: It is difficult to determine from the pictures provided 
in the 2001 trip report whether the fruit have been sliced properly to 
detect stem weevils. Since such slices are thin, as evidenced in G.L. 
Kreitner's photo essay on damage caused by weevils in avocado fruit, 
and those slices are not readily discernable from the picture. 
Nonetheless, the APHIS personnel who were present during the pictured 
fruit cutting have assured APHIS that cutting at the top of avocados 
near the stem end for stem weevils was indeed performed. Additionally, 
the pictures do show evidence of deep cuts necessary to examine for 
seed damage cause by seed weevils and the seed moth.
    Comment: If fruit cutting is targeting seed-infesting insect 
larvae, yet the agency is using the same data to advance a finding of 
no fruit fly larvae, that conclusion should be a qualified one.
    Response: While absence of fruit fly detections from fruit cutting 
does not definitively prove absence of infestation, we do believe it 
provides some evidence that the Mexican Hass avocado import program is 
working as designed, as we have previously stated.

Pest Surveys

    Comment: APHIS claims that the starting point in the risk equation 
for fruit flies is virtually zero, and that the number of fruit fly 
captures in traps set out in Mexican avocado orchards from November 
through April is insignificant.
    Response: We have acknowledged that Anastrepha spp. fruit flies are 
present in Michoacan, which is why the regulations set forth safeguards 
to prevent the introduction of those pests. The requirements, such as 
surveillance trapping, increased trapping in response to a single fruit 
fly detection, Malathion bait treatments, covering of harvested 
avocados, fly-proof screens on packinghouses, and inspections, work 
together with the poor host status of Hass avocado fruit to mitigate 
the risk posed by Anastrepha spp. fruit flies.

[[Page 55538]]

    Comment: Single digit fruit fly captures in Mexico from November 
through April are not believable. There is no doubt that fly 
populations are on the rise in April in Mexican avocado groves, based 
on the dozens of adult flies captured in May. It would only take a warm 
spring--a 2-week shift in seasonal weather patterns--to precipitate 
explosive growth in fruit fly populations.
    Response: We have confidence that fruit fly trapping in Mexico is 
being conducted properly, based on observations by APHIS inspectors. 
From 1997 to 2000, a total of 68 fruit flies were trapped during the 
month of May in orchards certified for export to the United States.
    These data do suggest that fruit flies are being trapped in higher 
numbers in May than in November through April. However, as stated 
earlier in this document, the approved shipping season for Mexican Hass 
avocados will run from October 15 through April 15. We feel that this 
change will reduce the risk that fruit flies, in the highly unlikely 
event that they are present in imported Mexican Hass avocados, could be 
introduced into an area of the United States where adequate host 
material is available (mid- to late May in approved areas). 
Furthermore, there still remains no evidence to conclusively prove that 
the fruit flies in approved Mexican Hass avocado orchards are 
populating in those orchards and/or using Hass avocados as hosts.
    Comment: Four years of trapping results provide no guarantee that 
future fruit fly population levels will remain low, particularly during 
the month of April, because populations of flies in commercial orchards 
can exhibit strong fluctuations from year to year.
    Response: As stated in more detail earlier in this document, we are 
revising the approved shipping season for Hass avocados to run from 
October 15 through April 15. We believe that this change will further 
reduce the possibility that fruit flies, in the highly unlikely event 
that they are present in imported Hass avocados, could find suitable 
conditions and host material to support their survival in the approved 
distribution area.
    Comment: APHIS should replace the highly inefficient McPhail traps 
and liquid protein baits used in the Mexican Hass avocado import 
program with newly developed synthetic lure and cylindrical traps. 
Alternatively, the Department should consider using Nulure as an 
attractant in McPhail traps deployed in Mexican avocado groves until 
new technology is adopted by Mexico.
    Response: APHIS is aware of the availability of new traps that use 
Nulure as an attractant. APHIS is currently evaluating these traps and 
may elect to require their use in the Mexican Hass avocado import 
program at a later date.
    Comment: Fruit fly trap placement in Mexican growing areas is 
haphazard with respect to height and exposure to sunlight. Research has 
shown that the preferred placement of traps is within the tree canopy 
where traps are shaded. Industry observers have seen traps being 
inappropriately washed out with soapy water. They have seen trappers 
barely examine trapped specimens to determine if target pests were 
present. Servicing of traps must be conscientious, both with respect to 
cleaning and rebaiting of traps as well as detection and identification 
of target species.
    Response: Trapping is conducted in Michoacan by county-level 
officials of Mexico's Secretaria de Agricultura, Ganaderia, Desarrollo 
Rural, Pesca y Alimentacion (SAGARPA). These persons are trained by 
SAGARPA, and are monitored by APHIS-IS personnel. APHIS inspectors 
stationed in Mexico monitor the placement and servicing of traps; if an 
inspector determines that trapping is not being conducted properly, he 
or she orders corrective action.
    Comment: A weak or ineffective attractant, a misplaced trap, or a 
target species that was captured but undetected could significantly 
skew reported fruit fly trapping results. Data presented by APHIS do 
not accurately represent actual fruit fly activity levels in Mexican 
avocado orchards throughout the year, and the risk of infestation is 
significantly higher than levels calculated by APHIS.
    Response: APHIS must rely on trapping data as the only evidence of 
fruit fly activity in Michoacan, given the absence of fruit fly 
detections in the avocados themselves. APHIS is confident that traps in 
Michoacan are placed and tended similarly to traps placed in U.S. fruit 
fly host growing areas, and, based on its own inspections of the 
growing areas in Mexico, has no reason to suspect that the data have 
been corrupted by improper trapping techniques.
    Comment: Proper pest surveys of the avocado export area in Mexico 
still have not been done, particularly in the absence of broad-spectrum 
pesticide use that maintain pest species at relatively low levels such 
that it is almost impossible to predict what other pest problems, both 
arthropods and diseases, might arise. For instance, prior to its 
discovery in California, the avocado thrips was a species new to 
science. One wonders how this pest could be present in avocados in 
Mexico without being known as a pest in the scientific literature or 
having been described taxonomically.
    Response: As stated in the proposed rule, APHIS pest surveys 
include areas with backyard and feral avocado trees and groves. We 
believe that surveying such areas provides a context to examine the 
presence of pests in a limited pesticide use context. Furthermore, 
APHIS believes that thrips, which are external feeders, can be readily 
detected by inspection. We do not require treatment or other 
mitigations for thrips on most fruits for this reason.
    Comment: In 1997, APHIS surveys detected over 2,100 stem weevils in 
Mexican avocado groves. There is no indication that these numbers have 
decreased in the 4 years since. Given that APHIS conducts surveys for 
stem weevils at the wrong time of year, the numbers could be even 
higher.
    Response: APHIS has acknowledged that stem weevils are present in 
the State of Michoacan, and there is no existing program in Mexico that 
is intended to reduce their numbers. However, the systems approach is 
designed to mitigate the risk that stem weevils could infest imported 
Hass avocado fruit.
    Regarding inspections for stem weevils, the Junta Local de Sanidad 
Vegetal (JLSV) conducts monthly inspections of orchards certified under 
the Mexican export program.\1\ These inspections include inspections 
for stem weevils. In addition, the Director General de Sanidad Vegetal 
(DGSV) conducts one stem weevil survey per year (usually in the 
spring), and APHIS and DGSV conduct a joint survey in the fall prior to 
orchard certification. If stem weevils are detected during any of these 
surveys (including the monthly inspections by JLSV), those orchards are 
dropped from the Hass avocado export program.
---------------------------------------------------------------------------

    \1\ Under the regulations, orchards must be part of Mexico's 
export certification program, which is administered by SAGARPA. The 
monthly inspections by JLSV are required under the Mexican export 
program, not under APHIS regulations.
---------------------------------------------------------------------------

    Further, even in the event that imported Hass avocados are infested 
with stem weevils upon reaching their destination in the United States, 
there is a minimal chance that stem weevils could find suitable host 
material on which to survive and establish themselves, given that they 
are believed to be avocado-specific pests. The only U.S. States that 
commercially grow avocados are Florida, Texas, California,

[[Page 55539]]

and Hawaii, none of which are approved for distribution of Mexican Hass 
avocados.
    Comment: In 1998, 19 percent of wild/backyard orchards in Uruapan 
were found to harbor stem weevils. Two years later, APHIS's surveys 
indicated that 91 percent of wild/backyard sites were infested. No 
explanation is provided for this dramatic increase in stem weevil 
detections, but it is evident that populations of these insects remain 
unabated in the municipalities approved for export to the United 
States.
    Response: Again, APHIS is well aware that stem weevils are present 
in the State of Michoacan. However, as explained in more detail above, 
we believe that there is a negligible risk that Mexican Hass avocados 
imported under the systems approach would introduce plant pests, 
including stem weevils, into the United States.
    Comment: The timing of pest surveys by DGSV is a function of when a 
grower first petitions JLSV to participate in the export program and, 
later, the workload at DGSV. A review of a file for a grove eligible to 
export avocados to the United States shows that the grower initially 
signed up with the JLSV on November 13, 1997. Following the initial 
inspection and monthly grove visits by JLSV, DGSV conducted fruit, 
soil, and foliage sampling to pre-certify the grove for export to the 
United States. The DGSV surveys were conducted on March 3, 1999, and 
January 5, 2000. Neither survey was done at a time at when adult 
avocado pests were most likely to be present. APHIS's statement that 
surveys by DGSV are made ``in the spring'' simply is not true. Other 
grower records indicate that DGSV survey dates are random, and that 
they are most likely dictated by convenience, not pest biology. Based 
on this information, the reported number of pests as determined by 
APHIS and DGSV surveys is artificially low, and not representative of 
the risks posed by these injurious insects. APHIS should formalize an 
appropriate schedule for the survey of Mexican avocado groves to ensure 
that survey activities are conducted when adult stages of the pests of 
concern are most likely to be present. APHIS should develop this 
schedule jointly with DGSV and require the agency to adhere to the 
schedule by agreement under the work plan. Failure to adhere to the 
schedule should result in the non-certification of orchards until such 
time as APHIS is able to conduct survey activities with its own 
personnel.
    Response: APHIS believes that the records submitted by the 
commenter do not represent the complete file for that orchard. APHIS 
records show that the orchard in question was also surveyed for stem 
weevils and seed weevils on June 15, 1999, and June 21, 2000, when 
adult weevils would be likely to be present in orchards. We continue to 
believe that orchards in Mexico that export Hass avocados to the United 
States are properly surveyed for these pests at an appropriate time of 
year, and see no reason to develop a set schedule for surveys in the 
regulations or the workplan for the Mexican Hass avocado import 
program.

Inspection at the Border

    Comment: Cutting and inspection of only 64,560 fruit out of a total 
of 160,108,800 imported avocados at point of entry (0.04 percent) does 
not represent a valid inspection and detection program. Rather it 
implies that phytosanitary inspections at the border are simply window 
dressing and potential or possible detections are of no concern.
    Response: There are several other pest detection elements involved 
in the systems approach regulations that supplement fruit cutting and 
inspection at the port of first arrival. In fact, there are pest 
detection measures in place at every stage of the production process 
for Hass avocados from Mexico. There are pest survey requirements that 
must be met in orchards, including fruit fly trapping, and surveys for 
the avocado stem weevil, seed moth, and seed weevils. Fruit are also 
cut and inspected in orchards a total of 4,439,013 avocados during the 
first 4 years of the program. At the packinghouse, a total of 300 fruit 
per shipment must be cut and inspected in the presence of APHIS 
inspectors. APHIS has required these additional pest detection 
activities, in part, because it is aware that inspection at the port of 
first arrival in the United States alone would not be sufficient to 
detect pests in imported fruits.
    Inspection at the port of first arrival is intended to accomplish 
two goals. First, inspectors check the documents accompanying the 
shipment to ensure that the avocados are from an approved orchard and 
were processed in an approved packinghouse and are accompanied by a 
phytosanitary certificate. The inspectors also ensure that the limited 
distribution statement appears on all boxes, that a U.S. Customs 
Service bond has been secured for the shipment, and that the in-bond 
papers indicate that the shipment is consigned to an importer in an 
approved State. Second, the inspectors will select a sample of fruit 
from each shipment and carefully cut and inspect those avocados to 
verify their pest-free status. Inspection at the port of first arrival 
is essentially a redundant safeguard that serves to verify that all the 
regulatory requirements applicable to the importation of the avocados 
have been met.
    Comment: It is physically impossible for inspectors, no matter how 
diligent they are, and no matter how honest their intentions, to 
protect the United States from pest invasions and infestations given 
the volume of goods imported into the United States.
    Response: APHIS has stated in the past that if zero tolerance for 
pest risk were the standard applied to international trade in 
agricultural commodities, it is quite likely that no country would ever 
be able to export a fresh agricultural commodity to any other country. 
There will always be some degree of pest risk associated with the 
movement of agricultural products; APHIS's goal is to reduce that risk 
to a negligible level. In the case of Hass avocados from Mexico, we 
believe that the overlapping and redundant safeguards employed in the 
systems approach will achieve that goal.
    Comment: Inspectors at the border stations do not know how to look 
for a weevil in an avocado, nor do they have time to carefully inspect 
pieces of fruit under a dissecting microscope.
    Border personnel must be provided with specific instruction on the 
detection of stem weevil in Hass avocado fruit, and APHIS should update 
and reissue the photo essay guide prepared by G.L. Kreitner to PPQ 
offices at border ports of entry. Ports of entry should also be 
adequately staffed so that examination of fruit samples can be done in 
a meaningful way.
    Response: As stated earlier in this document, APHIS inspectors are 
trained to detect all types of pests in various types of commodities. 
APHIS is distributing the photo essay as suggested to all approved 
ports on the Mexican border where Hass avocados are imported prior to 
the 2001-2002 shipping season. The photo essay will be incorporated 
into an existing booklet of procedural guidelines on the Mexican Hass 
avocado import program that is used by port inspectors when they 
process and inspect shipments of imported avocados. We believe the 
photo essay, as originally published, is a valuable tool in describing 
where stem weevil infestations are typically found in avocado fruit, 
and do not see the need to update it. Furthermore, APHIS believes the 
level of inspection at border ports is appropriate, given the 
additional safeguards employed under the systems approach regulations, 
and is confident that border stations are

[[Page 55540]]

adequately staffed to provide agricultural quarantine and inspection 
services.

Pest Detection in the United States

    Comment: The proposed rule states that seven States (Arizona, 
California, Florida,Georgia, Louisiana, South Carolina, and Texas) in 
the continental United States are at risk for establishment of four 
fruit fly species. Do these States have pest detection programs that 
focus on the pests associated with Mexican Hass avocados?
    Response: Arizona, California, Florida, and Texas each have fruit 
fly detection programs that operate year-round. APHIS is not aware of 
any detection programs in these or the other three States that focus on 
avocado-specific pests, though it is possible that local surveillance 
programs in avocado-producing States may conduct surveys for avocado-
specific pests.
    Comment: Do the 12 additional States have pest detection programs 
that focus on fruit fly host crops and fruit fly pests?
    Response: The 12 States that we are adding to the Mexican Hass 
avocado import program do not conduct fruit fly or avocado-specific 
pest detection programs, likely because those States are not able to 
provide the combination of host material and climatic conditions 
necessary to support a reproducing, established fruit fly population, 
and because none of the 12States have climatic conditions suitable for 
the production of avocados.

Trade Issues

    Comment: Over 4 years ago, avocado growers in California requested 
market access to Northern Baja California, Mexico, for California 
avocados and asked the USDA to initiate the necessary steps to clear 
the way for exports into Mexico. There is a ready market for California 
avocados in northern Mexico, yet California growers are prohibited from 
shipping into Mexico. For 3 years, growers heard nothing in response to 
their request. In November of 2000, senior representatives from the 
USDA pledged that they would aggressively pursue access to the Mexican 
market. Those talks prompted Mexico to prepare a risk assessment for 
California avocados, which was recently forwarded to the USDA. The 
Mexican risk assessment stated that California avocados would not be 
allowed into Mexico until procedures were in place to protect the 
Mexican avocado growers from being infested by avocado seed moths and 
seed weevils that could be introduced from California. There is no 
existing credible scientific evidence showing that these pests are 
present in California. By contrast, these same quarantined pests in 
Mexico are well documented through the scientific literature. APHIS 
must reject Mexico's bid for expansion as long as the U.S. avocados are 
not permitted entry into Mexico.
    Response: APHIS agrees with the commenter that avocado seed moths 
and seed weevils are not present in California, and sent a letter to 
Sanidad Vegetal on September 6, 2001, asking that the Mexican risk 
assessment be revised and those pests removed from consideration. As of 
the drafting of this final rule, we have not received a response from 
Sanidad Vegetal.
    Comment: APHIS's primary role is to protect agriculture from the 
introduction of pests and diseases. This role is compromised by APHIS's 
new emphasis on promoting and expanding trade.
    Response: The Plant Protection Act authorizes the Secretary of 
Agriculture to regulate exports, imports, and interstate commerce when 
the Secretary determines such action is necessary to prevent the 
dissemination of plant pests. The Secretary of Agriculture has 
delegated this responsibility to APHIS.
    APHIS's primary responsibility with regard to international import 
trade is now, and has been for many years, to identify and manage the 
risks associated with importing commodities. Because, as we have 
already noted, there is no such thing as zero risk in international 
trade, reducing risk to a negligible level is the only realistic 
approach. If there is no practical way to mitigate a particular risk 
associated with a product, APHIS will prohibit that product's entry 
into the United States, as is our right under current international 
trade agreements; we have done so in the past and will continue to do 
so when warranted. However, when we determine that the risk associated 
with the importation of product is negligible, it is our responsibility 
under those same trade agreements to make provisions for the 
importation of that product.
    The systems approaches developed for citrus from Florida and Texas, 
apples from Washington, and stonefruit from California are examples of 
ways that we have found to answer the pest concerns of our trading 
partners in order to enable the exportation of domestically grown 
fruits and vegetables. Just as we seek to open foreign markets to our 
Washington apples or California stonefruit, however, we must also 
listen to the requests of other nations seeking to export their 
products to the United States.
    Comment: This rulemaking is not based on science. It is based on a 
political agreement made even before the scientific research/risk 
assessment was done, and before the proposed rule was written. This is 
about trade and politics, not science, and is about favoring foreign 
interests over those of the domestic producer.
    Response: This action was predicated on several risk assessment 
documents that provide a scientific basis for potential expansion of 
the Mexican Hass avocado import program. Without these risk assessment 
documents, which have withstood several reviews and public comment 
periods, APHIS would not have proposed this action. Political interests 
stimulate consideration of the expansion of trade of agricultural 
commodities between countries, but all decisionmaking concerning 
phytosanitary restrictions on trade must be science-based. APHIS stands 
behind the risk assessment documents that support this rule, and 
believes they are based on sound science.

Pest List

    Comment: The proposed rule accurately states that: ``the persea 
mite (Oligonychus perseae) and avocado thrips (Scirtothrips perseae) 
are currently established in the United States, and are not under 
official control, and therefore, do not meet the definition of a 
quarantine pest.'' At the time of their first detection by APHIS, 
however, the label of quarantine pest would have been appropriate. In 
both cases, APHIS failed to prevent the introduction and establishment 
of injurious pests known to infest Mexican Hass avocados.
    Response: The introductions of the persea mite and avocado thrip 
happened independently of the importation of Mexican Hass avocados, as 
described elsewhere in this document.
    Comment: Deficits in the knowledge on the taxonomy, ecology, and 
biology of the arthropod fauna on avocados in exporting countries may 
render any mitigation of the risk posed by unknown pests that could be 
present in growing areas ineffectual.
    Response: Avocados and pests of avocados have been studied in 
detail for many years, especially in Mexico, which is the world's 
largest producer and consumer of avocados. APHIS is confident that it 
has identified all pests of quarantine significance known to follow the 
avocado pathway. Nonetheless, APHIS inspectors are trained to inspect 
for all quarantine pests, and eight of the nine safeguards employed by 
the systems approach

[[Page 55541]]

provide reduction of the risk posed by hitchhikers and other (unknown) 
pests.
    Comment: One species of thrips, Neohydatothrips burungae (Hood), is 
as common as S. perseae on avocados in Mexico and is not known to be 
present in California. This pest has not been included in USDA's Pest 
Risk Assessment for Hass avocados from Mexico. Given the common 
occurrence of S. perseae in Mexico on avocados and its pestiferous 
nature in California, it is highly likely that N. burungae could also 
pose a threat to the California avocado industry.
    Response: When we conducted the Supplemental Pest Risk Assessment 
for the original Mexican Hass avocado import program in 1995, there was 
no literature available suggesting Neohydatothrips burungae (Hood) was 
associated with Hass avocados. N. burungae is now considered a 
quarantine pest by APHIS; however, to date, we have never intercepted 
this pest on avocado fruits at a port of entry, nor have we intercepted 
any thrips in commercial shipments of avocado fruits. We have 
intercepted other thrips, including species of the genera Scirtothrips 
and Thripidae, on avocado leaves imported in passenger baggage. 
Further, based on findings of thrips on other fruits, we are confident 
that we can detect thrips infesting Hass avocado fruits if they do 
indeed follow the avocado fruit pathway; however, evidence to date 
suggests they do not. For this reason, we are confident that N. 
burungae associated with Mexican Hass avocado fruit poses a negligible 
risk of being introduced into the United States.
    Comment: Researchers have catalogued potentially dangerous pests 
that do not appear in USDA's pest risk assessment. Johansen collected 
38 phytophagous thrips species from avocados in Mexico, identifying 
seven species, i.e. Frankliniella bruneri, F. chamulae, Heliothrips 
haemorrhoidalis, Pseudophilothrips perseae, Scirtothrips aguacatae, S. 
kupandae, and S. perseae, that could be transported via the avocado 
pathway. Also reported from avocado in Michoacan, Mexico, is 
Scirtothrips aceri (Moulton). Only one of these pests, Heliothrips 
haemorrhoidalis, is listed in USDA's pest risk assessment. It is 
important to note that the thrips species discussed above feed on or 
attack the avocado fruit, and thus, based on their biology, can be 
expected to follow the pathway of imported Mexican Hass avocados. 
Frankliniella bruneri, F. chamulae, Pseudophilothrips perseae, 
Scirtothrips aguacatae, S. kupandae, and Neohydatothrips burungae must 
be added to USDA's Mexican Action List. In each case, the species 
mentioned fall into the ``H'' or high category in the three criteria 
outlined USDA's Enhanced Hazard Pest Categorization methodology, 
indicating that quarantine action is required. Continuation of 
rulemaking without a revised pest risk assessment given the 
Department's own process of risk categorization for these species is 
inconsistent with, and a violation of, international plant health 
principles and the phytosanitary provisions of NAFTA.
    Response: There was no literature available suggesting any of the 
pests listed above are associated with Hass avocado fruits at the time 
the 1995 Supplemental Pest Risk Assessment was conducted. APHIS now 
considers Frankliniella bruneri and, as stated above, Neohydatothrips 
burungae, to be quarantine pests. However, for the same reasons 
described above for N. burungae, we believe that F. bruneri associated 
with Mexican Hass avocado fruit poses a negligible risk of being 
introduced into the United States. We are confident that both thrips 
are unlikely to be imported in fresh Hass avocado fruit because they 
prefer leaves and plants over fruit. For this reason, we believe they 
do not follow the avocado fruit pathway.
    Regarding the other thrips listed by the commenter (Frankliniella 
chamulae, Heliothrips haemorrhoidalis, Pseudophilothrips perseae, 
Scirtothrips aceri (Moulton), S. aguacatae, S. kupandae, and S. 
perseae):
     S. perseae exists in California, and does not meet the 
definition of a quarantine pest.
     H. haemorrhoidalis is listed in APHIS's 1995 Supplemental 
Pest Risk Assessment as a pest mainly associated with plant parts of 
avocado other than the fruit, and is considered by APHIS to be a non-
actionable pest if detected during port inspections.
     F. chamulae, P. perseae, S. aceri (Moulton), S. aguacatae, 
and S. kupandae have not been evaluated for consideration as quarantine 
pests, but have not been associated with avocados in any published 
scientific literature. APHIS has no reason to believe they follow the 
avocado fruit pathway.
    As requested by the commenter, APHIS is adding N. burungae, and F. 
bruneri to APHIS's Mexican Action List. We are also evaluating F. 
chamulae, P. perseae, S. aceri(Moulton), S. aguacatae, and S. kupandae 
using APHIS's Enhanced Hazard Pest Categorization methodology to 
determine whether they should be added to the Mexican Action List as 
well.
    Regarding whether revisions to the pest risk assessment are 
necessary, APHIS is unaware of any evidence that suggests any of the 
thrips species listed by the commenter follow the avocado fruit 
pathway. Until we find evidence as such in scientific literature, we 
will continue to consider these pests as unlikely to follow the avocado 
fruit pathway, regardless of their quarantine pest status.
    Comment: USDA's Supplemental Pest Risk Assessment states that the 
pest list for Mexican avocados was generated after a review of the 
AGRICOLA, CAB, and MELVYL databases, historical decision sheets 
covering importation of avocados, the U.S. catalogue of intercepted 
pests and interception records, CMI distribution maps, texts of plant 
diseases and pathogens, and APHIS files on pests not known to occur in 
the United States. No attempt has been made to collect information from 
the most obvious and important source, independent scientific 
researchers who have conducted field work on avocado pests in Mexico 
and the United States.
    Response: When gathering information on what pests to include in a 
pest list for a risk assessment, APHIS considers only information from 
published scientific literature. This is the only way to ensure that we 
cite only research that has been peer-reviewed. If independent 
scientific researchers have finalized and documented findings that 
would be relevant to APHIS risk assessments, we would expect that those 
findings would have been peer reviewed and published. APHIS does not 
contact researchers to solicit information on pests that may be 
relevant to particular risk assessments.

Systems Approach

    Comment: The use of restrictions on the distribution of avocados is 
meaningless. Once an avocado or any other product is legally imported 
into this country, there are no further restrictions on the fruit after 
importation. Unaware and unscrupulous importers are then free to 
transship the product anywhere in the United States. They are 
frequently found all over Florida and contain pests.
    Response: If the limited distribution requirement was the only 
means of risk mitigation available in the Mexican avocado import 
program, the open nature of the U.S. marketing and transportation 
systems would be a matter of concern. Limited distribution is, however, 
only one of a series of safeguards designed to prevent the introduction 
of pests into the United States through the importation of avocados 
from Mexico. We have not

[[Page 55542]]

expected limited distribution to be foolproof, but we also do not 
expect that infested avocados will be entering the United States 
through legally imported commercial shipments in the first place. 
Further, we anticipate that unscrupulous importers will be the 
exception, rather than the rule, so we believe that the restrictions on 
distribution of the avocados will be widely observed, rather than 
ignored. As to the finding of imported Hass avocados in Florida, APHIS 
is aware of only 2 cases where avocados were found in Florida. In both 
cases, one less-than-full box of avocados was found, and the scale 
insect contained therein is not a pest of quarantine significance.
    Comment: APHIS cannot say that the risk of pest introduction 
associated with increased Mexican Hass avocado imports is zero. The 
risk may be low, but the risk only applies to U.S. growers.
    Response: APHIS has not stated that the risk associated with 
expanding the Mexican Hass avocado program is zero. As stated earlier 
in this document, if zero tolerance for pest risk were the standard 
applied to international trade in agricultural commodities, it is quite 
likely that no country would ever be able to export a fresh 
agricultural commodity to any other country. APHIS has performed a risk 
analysis and has concluded that the risk of pest introduction is 
negligible. APHIS has deliberately not defined the point at which risk 
becomes negligible. The use of specific, numerical thresholds can have 
important consequences in international trade, as their reciprocal use 
by other countries could adversely affect the export of domestic 
products and hinder trade in commodities that can be safely exported to 
other countries. APHIS thus separately assesses individual risks for 
specific commodities and applies the professional judgement of its 
technical and scientific experts. This can result in different 
quantified risks being deemed negligible. This approach allows APHIS to 
protect domestic producers from risks which are not negligible while 
maintaining necessary flexibility for U.S. export markets.
    Comment: The risk assessment on which the avocado import program is 
based is flawed because it is based on, and begins with, estimated 
probabilities.
    Response: Risk assessments are intended to estimate the potential 
that future events can occur. Since risk assessments often are 
conducted to evaluate the use of systems that did not previously exist, 
there is no feasible way for risk assessors to begin the process with 
historical or other hard data relevant to the scenario or system being 
assessed. In the case of Hass avocados from Mexico, in the absence of 
hard data, estimates of the probability that certain events could occur 
were made by expert scientists to evaluate the risk mitigating measures 
used in the import program. Using this method enabled APHIS to account 
explicitly for the uncertainty associated with the various parameters 
of the Mexican Hass avocado risk model.
    Comment: When APHIS used Monte Carlo simulations to develop risk 
estimates for the Mexican Hass avocado import program, it based the 
simulations on two models; one model in which Mexican avocados are 
imported under no special restrictions, and the second model employing 
use of the systems approach. APHIS should have modeled the previously 
existing system., i.e., the quarantine that was in place for more than 
80 years.
    Response: APHIS acknowledges that we could have used Monte Carlo 
simulations to develop a risk assessment that considered the pre-1997 
status quo in which the importation of Hass avocados from Mexico was 
prohibited. However, such simulations would have simply been a paper 
exercise, given that the pre-1997 quarantine is no longer in place; 
given that the purpose of the risk assessment was to consider the risks 
associated with the 1997 proposed rule, such an exercise was not 
warranted.
    Comment: The proposed rule stated that an eradication program would 
be initiated if an introduced avocado pest became established. It 
should have said that an eradication program would be initiated if a 
pest is detected.
    Response: We did not make such a statement in the proposed rule; 
however, the environmental assessment for the proposed rule did have a 
typographical error that may have led the commenter to make this 
statement. In the environmental assessment, APHIS states that ``in the 
highly unlikely event that an avocado pest should be introduced into 
the United States established, appropriate eradication actions would 
likely be initiated.'' The word ``established'' should not have been 
included in that sentence and has been removed in the final draft. 
Regardless, a single detection of a pest would not warrant eradication, 
whereas introduction and establishment of a pest certainly would.

Peer Review/Cooperation

    Comment: A third party should evaluate the surveillance techniques 
associated with the Mexican Hass avocado import program, including 
fruit cutting and trapping.
    Response: APHIS has conducted two reviews of the Mexican Hass 
avocado import program in the 4 years since its inception. 
Representatives of domestic avocado growers (i.e., the California 
Avocado Commission) participated in both reviews, and the State of 
California participated in the second review. In fact, the 
representatives of domestic avocado growers helped to draft the 
workplan for the operation of the program, and has had many 
opportunities to participate in the development and review of the 
program. APHIS believes it has been very transparent with the public 
throughout the existence of the program, and has shared information 
whenever requested. APHIS sees no need for another third party to 
review the documents on which the program is based, especially given 
the success of the program thus far.
    Comment: APHIS should allow external peer review of the pest risk 
assessment for the Mexican Hass avocado import program. Peer review 
should not be conducted by another USDA agency.
    Response: APHIS believes that the pest risk assessment for the 
Mexican Hass avocado program has been subjected to significant peer 
review already. Each risk assessment document on which the program is 
based has been made available for public comment for at least 60 days, 
some of those documents more than once. APHIS has received and 
considered numerous written comments on the risk documents as well as 
oral comments made at public hearings and has made changes to documents 
when appropriate. APHIS sees no need for any additional peer review of 
its risk assessment documents, as ample opportunity has already been 
provided for the public to submit its opinions.

Risk to Host Material-Producing States

    Comment: The current Mexican Hass avocado import program places 
Florida and other southern States at risk for new pest introductions.
    Response: The systems approach regulations are designed to mitigate 
the risk that pests could be introduced into the United States via 
imported Mexican Hass avocados. Distribution of avocados is not allowed 
in Florida and several other southern States. As stated elsewhere in 
this document, the importation of commodities from foreign countries is 
not without some risk, but APHIS believes that the regulations render 
the risk of new pest introductions negligible.
    Comment: Data for San Diego County, CA, show that over half of the 
66 single fruit fly finds in San Diego County from

[[Page 55543]]

1991 to 2000 occurred during the proposed winter shipping period of 
November to April. There is a high risk that fruit flies could become 
established if introduced into California during those months.
    Response: The Sequeira, et al. study confirms that most of the 
State of California is at risk for establishment of Mexican fruit 
flies. However, the intent of the regulations is to ensure that (1) 
Hass avocados are not shipped to California, and, (2) even in the event 
that they are shipped to California, that the imported avocados do not 
contain pests.
    Comment: An increase in the volume of imported fruit will result in 
a proportional increase in the risk of a pest introduction.
    Response: Indeed, increased volume of imports can increase the risk 
that a pest could be introduced into the United States. The risk 
assessment documents on which this final rule is based indicate that 
even if imports increase as a result of this rule, the risk of pest 
introduction associated with the increased volume of imports is still 
negligible. As explained in the Information Memo for the Record, the 
1995 Supplemental Pest Risk Assessment (as well as the 1996 Addendum) 
estimated that between one and two million boxes of fruit would be 
imported under the systems approach program. The actual number of boxes 
imported fell short of the minimum in all but one of the four years 
that the program has been in place. During the first four years of its 
existence, the program averaged only 834,675 boxes per year. Because of 
this, we believe that the 1995 and 1996 assessments actually 
overestimated the risk. It also means that even if the addition of 12 
States to the program doubled the number of imported Hass avocados, the 
actual number of imported boxes would still fall within the range of 
estimates used in the 1995 and 1996 assessments, and their results 
would remain valid.

Treatment of Commodities

    Comment: Mexico uses chemicals and pesticides that have been 
outlawed in the United States since the early 1970's, DDT being one of 
them. The growers in the United States are not allowed to use the 
chemicals that Mexican growers can use.
    Response: The U.S. Food and Drug Administration (FDA) samples and 
tests imported fruits and vegetables for pesticide residues. The U.S. 
Government does not have any control over what pesticides are approved 
for use in foreign countries. The Environmental Protection Agency has 
regulations that address the exportation from the United States of 
pesticides that are not registered for use in this country and works 
with foreign environmental protection agencies and agricultural 
producers to promote safer pesticide use and food production practices. 
There is a variety of pesticides and other pest control measures 
available for use in the United States in the highly unlikely event 
that a plant pest is introduced into this country via Hass avocados 
imported from Mexico in accordance with the regulations.
    Comment: There is no post-harvest treatment available for 
Anastrepha spp. fruit flies in avocados. When fruit flies were found in 
Fallbrook, CA, in 1999, many avocado growers lost a great deal of fruit 
because they could not send fruit out of the quarantined area during 
the 9-month quarantine period. Commodity post-harvest treatments were 
available to growers of other fruits and vegetables. Has APHIS 
evaluated post-harvest treatment protocols, including irradiation, for 
fruit fly hosts in the seven at-risk States? These treatment options 
should have been reviewed and validated in the environmental assessment 
as required by NEPA. When will they become available to growers?
    Response: As stated earlier in this document, APHIS is evaluating 
protocols that would facilitate the interstate movement of Hass 
avocados from fruit fly quarantined areas in the United States. 
Currently, there is no available post-harvest treatment for Hass 
avocados. Research on various varieties of avocados has shown that 
treatment, including irradiation, has adverse effects on fruit quality. 
It is likely, given the quality-related issues involving post-harvest 
treatments, that regulatory approaches, perhaps modeled after the 
Mexican Hass avocado systems approach, could prove to be more practical 
for growers.
    The environmental assessment referred to above was prepared 
specifically to address the potential environmental impacts that could 
be associated with implementation of the proposed rule. APHIS does not 
agree that treatment options and a validation of prescribed treatment 
protocols related to a potential eradication program should be 
discussed in the environmental assessment for the Mexican Hass avocado 
import program.

Comments Related to the Study by Sequeira et al.

    Comment: Sequeira, et al. report that Mexican fruit flies do not 
attack young fruit, but no source is cited for this unsubstantiated 
conclusion. Although Sequeira notes that his approach is 
``conservative'' with respect to phenological windows, insufficient 
scientific evidence is presented to conclusively establish that young 
fruit is not subject to attack by Anastrepha spp. fruit flies.
    Response: Evidence for Sequeira, et al.'s observation that fruit 
flies do not prefer young fruit can be found in: Leyva-Vazquez, 
Browning, and Gilstrap. 1991 ``Development of Anastrepha ludens 
(Diptera: Tephritidae) in Several Host Fruit.'' Environmental 
Entomology 20(4): 1160-1165.
    Comment: Mexican Hass avocados should not be imported during the 
months of March and April because the temperature and climatic 
conditions could foster a mating population of fruit flies.
    Response: The findings of the Sequeira, et al. study indicate that 
many U.S. States are at risk for the establishment of Anastrepha 
ludens. These States include California and Florida, among others. All 
States proposed for expansion of the Mexican Hass avocado import 
program were found by Sequeira, et al. to be at low risk for 
establishment of Anastrepha ludens because they do not have the 
combination of hosts and climatic conditions needed to support an 
established population of fruit flies. Nonetheless, because fruit 
imported on April 30 could stay in the marketplace until late May (when 
host material could be beginning to become available in some approved 
States), APHIS is revising the approved shipping season for Hass 
avocados imported from Mexico, as stated earlier in this document. 
APHIS believes that revising the shipping season, which will run from 
October 15 through April 15, will reduce the risk that fruit flies, if 
present in imported Mexican Hass avocados, could be introduced into 
areas with conditions suitable for even a short period of survival.
    Comment: The mean maximum temperatures in Missouri and other States 
along the southern boundary of the proposed Hass avocado distribution 
area will promote fruit fly development in March. The 65  deg.F 
temperatures there are optimal for pest development, and host crops 
like apricots are well along in terms of development by April. These 
are facts confirmed with tree fruit specialists in every State along 
the southern boundary of the proposed shipping area.
    Response: An area's mean maximum temperature is only a partial 
indicator of the likelihood that fruit flies can become established 
there. In identifying areas in the United States that are susceptible 
for

[[Page 55544]]

the establishment of Anastrepha ludens, the Sequeira, et al. study 
found that a given area must have adequate temperatures (including mean 
maximum and mean minimum temperatures), adequate hosts (in a 
susceptible stage), and other environmental needs (including adequate 
moisture and low prevalence of predators and parasites) for fruit flies 
to become established there.\2\ Furthermore, research shows that 
optimal temperature for fruit fly development is not 65  deg.F but 
approximately 77 to 86  deg.F.\3\
---------------------------------------------------------------------------

    \2\ According to the following sources:
    Aluja, M., J. Guillen, P. Liedo, M. Cabrera. E. Rios. 1990. 
``Fruit infesting tephritids and associated parasitoids in Chiapas, 
Mexico.'' Entomophaga. 35(1): 39-48.
    Celedonio-Hurtado, H., Aluja, M., Liedo, P. 1995. ``Adult 
population fluctuations of Anastrepha species (Diptera: Tephritidae) 
in tropical orchard habitats of Chiapas, Mexico.'' Environmental 
Entomol. 24(4): 861-869.
    Levya-Vazquez, J.L. 1999. ``Control biologico de moscas de la 
fruta: uso de parasitoides.'' Vedalia. 6:15-21.
    Thomas, D.B. 1995. ``Predation on the soil inhabiting stages of 
the Mexican fruit fly.'' Southwestern Entomol. 20(1): 61-71.
    \3\ According to the following sources:
    Leyva-Vazquez et al. (1991),
    Leyva-Vazquez, J. 1988. ``Temperatura umbral y unidades de calor 
requeridos por los estados inmaduros de Anastrepha ludens (Loew) 
(Diptera: Tephritidae).'' Folia Entomologica Mexicana. No. 74: 189-
196.
    Thomas, D.B. 1997. ``Degree day accumulations and seasonal 
duration of the preimaginal stages of the Mexican fruit fly.'' 
Florida Entomol. 80(1): 71-80.
---------------------------------------------------------------------------

    APHIS does believe that States proposed for expansion of the 
Mexican Hass avocado import program do not have the combination of 
these elements needed to support the survival of fruit flies in March 
and April, as stated earlier in this document. We have revised the 
shipping season, as described earlier in this document, to reduce the 
possibility that imported avocados could remain in the marketplace 
until mid to late May, when suitable fruit fly host material is 
beginning to become available.
    Comment: Fruit that enters the United States on April 30th would 
stay in the marketplace pipeline until late May, when many of the 
commercial crops with early bloom dates would be bearing fruit that is 
unquestionably susceptible to attack by fruit flies. Climatic 
conditions at that time of year would also be more than sufficient to 
support fruit fly growth and development. Only two of the proposed 
States (Maine and North Dakota) have mean temperatures below 60  deg.F 
in May. Most of the other States have mean temperatures that range from 
60 to 70  deg.F or above, and according to scientific literature, the 
optimal temperature for survival of adult Mexican fruit flies is 59 
deg.F.
    Response: As stated in response to the previous comment, in this 
final rule, we have revised the shipping season to reduce the 
possibility that imported avocados could remain in the marketplace 
until mid to late May, when suitable fruit fly host material is 
beginning to become available. Furthermore, research shows that optimal 
temperature for fruit fly development is not 59  deg.F but 
approximately 77 to 86  deg.F.
    Comment: Mean maximum temperatures during April are more than 
sufficient to support fruit fly development. In May, when a piece of 
infested fruit might still be in the market, mean temperatures are 
favorable across many of the approved and proposed States. According to 
historical records, States with mean temperatures of between 60 to 
70 deg. F in May include: Utah,Kansas, Nebraska, Missouri, Iowa, 
Kentucky, Indiana, Virginia, West Virginia, Maryland,Delaware, New 
Jersey, Minnesota, South Dakota, Wisconsin, Illinois, Michigan, 
Ohio,Pennsylvania, New York, Massachusetts, Connecticut, Rhode Island, 
and Idaho. Over the same period, States with mean temperatures above 
70 deg. F during May include Kentucky, Illinois,Virginia, West 
Virginia, and Missouri. There are several States where host material is 
available and ambient air temperatures are optimal for survival and 
reproduction of adult fruit flies introduced via an infested container 
or piece of fruit that arrives during the first 3 weeks in May. 
Specifically, commercial production of cherries would be well underway 
in Colorado, Idaho,Kansas, Utah, and Virginia. In addition, commercial 
peach production would have progressed substantially in Colorado, 
Kansas, Missouri, and Virginia by this time of year. Other crops that 
would be vulnerable in May include plums and prunes in Idaho, apricots 
and native Prunus spp. in Kansas, and apricots and native cherries in 
Missouri. Mean temperatures in all of the States listed would be 
optimal for adult fruit flies.
    Response: The Sequeira, et al. study acknowledges that temperatures 
during late spring and summer in some of the States cited above are 
adequate for Mexican fruit fly development, but not establishment. 
APHIS believes it would be exceedingly unlikely that fruit flies would 
be introduced into approved States in commercial shipments of Mexican 
Hass avocados in such numbers that their populations would reach 
outbreak levels in a matter of a few months. Extended cold periods 
during the winter would destroy surviving stages and make establishment 
very unlikely. Note: The 60 to 70 deg.F temperatures cited by the 
commenter are not consistent with the reported optimal developmental 
temperatures for Mexican fruit flies, which are 77 to 86  deg.F.
    To further reduce the possibility that fruit flies could survive if 
introduced into approved States from mid- to late May, we have revised 
the approved avocado shipping season, as described earlier in this 
document.
    Comment: Colorado and Utah border high-risk States where commercial 
oranges, grapefruit, peaches, apricots, plums, and other hosts are 
grown. These States are at risk for establishment of fruit flies. Will 
APHIS adopt a buffer zone approach for fruit flies and not just 
avocado-specific pests?
    Response: APHIS stated in the proposed rule for this action that 
``we have not proposed to allow Mexican Hass avocados to be distributed 
in any State that borders California, Florida, and Texas, the only U.S. 
States that produce avocados.'' We did not intend for this to mean that 
we were adopting a ``buffer zone'' approach for avocados. In fact, we 
proposed to expand the Mexican Hass avocado import program to include 
Colorado, Idaho, Iowa, Kansas, Minnesota,Missouri, Montana, Nebraska, 
North Dakota, South Dakota, Utah, and Wyoming because the Sequeira, et 
al. study found that each of these States has climatological conditions 
that put them at low risk for fruit fly establishment.
    Comment: Given the maximum duration for the development of each 
life stage of fruit flies, as documented in the scientific literature, 
it appears reasonable to assume that under certain circumstances, the 
total preimaginal development time for the Mexican fruit fly could 
easily exceed 100 days. Climatic conditions and host availability in 
destination States are not only important at the time a shipment 
arrives, therefore, but also up to 100 days later. Fruit fly eggs or 
larvae in a piece of infested fruit that arrives in one of the proposed 
States in April would be capable of survival and, upon completion of 
their development into adults, they would emerge to find optimal 
climatic conditions and an ample food supply.
    Response: APHIS agrees that, hypothetically, the total preimaginal 
development time for the Mexican fruit fly could easily exceed 100 days 
based on maximum durations of each life stage. However, we believe it 
is highly unlikely that development could

[[Page 55545]]

actually occur across such a time span based on the simple fact that 
there are few hosts that would provide suitable host material for fruit 
fly life stages for 100 consecutive days.
    Preimaginal developmental periods of more than 3 months are 
unlikely to occur in the case of imported avocados because fruits are 
perishable and not held in storage or in the commercial pathway for 
extended periods. APHIS believes that fruit are typically present in 
the commercial pathway for no more than 30 days. However, even if the 
flies were to emerge after a prolonged preimaginal period, when they 
emerge they would likely find prolonged periods where suitable hosts 
are absent, along with prolonged freezing conditions during the winter-
time. We believe these facts make establishment of this tropical/sub 
tropical pest very unlikely.
    Comment: Experiences in San Jose, CA, in 1980-81 proved the 
conclusions from the Flitters and Messenger Medfly temperature and 
humidity study cited by Sequeira, et al. to be absolutely and totally 
incorrect. The conclusion by Flitters and Messenger that Mexflies could 
not establish and maintain populations in areas such as Sebastopol, CA, 
is highly suspect. The importance of avoiding a ``Medfly experience'' 
with Anastrepha fruit flies, based on faulty assumptions and data, 
strongly suggests that new temperature and humidity studies, using 
improved, modern technology for laboratory work and climatic data, be 
conducted by ARS scientists before any expansion of the avocado import 
program is permitted.
    Response: The research referred to above by the commenter refers to 
a different study by Flitters and Messenger involving Medflies that was 
not used as a reference by Sequeira, et al. It is noted in the comment 
that in the Medfly study, the areas of San Jose, CA, were considered 
low risk for Medfly establishment. In contrast to that study, the 
Sequeira, et al. study identifies most of northern California as a high 
risk area for the establishment of Anastrepha ludens.
    APHIS does not believe that the Sequeira et al. study is an 
extrapolation of Flitters and Messenger.\4\ Unlike Flitters and 
Messenger, Sequeira, et al. analyzed the likelihood of establishment 
based on the pest's requirements for survival. These requirements 
included: (1)Availability of hosts, (2) host presence in a susceptible 
condition (i.e., with susceptible fruit), (3) presence of temperatures 
that are above the minimum below which development does not occur, (4) 
absence of extended periods of freezing conditions (based on long-term 
climatological averages from National Oceanic and Atmospheric 
Administration data), and (5) other environmental needs (including 
adequate moisture and low prevalence of predators and parasites) for 
fruit flies to become established there. APHIS is confident that the 
findings of the study, which have been reviewed by our NAPPO 
counterparts in Canada and Mexico, are scientifically sound, and 
believes they provide adequate assurance that fruit flies could not 
become established in the States proposed for expansion.
---------------------------------------------------------------------------

    \4\ Flitters, N.E. ad P.S. Messenger. 1965. ``Effect of 
temperature and humidity on development and potential distribution 
of the Mexican fruit fly in the United States.'' Tech. Bull. No. 
1330. USDA-ARS. 35pp.
---------------------------------------------------------------------------

    Comment: USDA must recalculate the probability of detecting or 
failing to detect an infestation of Anastrepha spp. fruit flies along 
the Mexican avocado pathway, taking into consideration problems 
inherent in the fruit cutting and trapping data used as a basis for the 
proposed rule. This should also be done for the Sampling Analysis 
section of the Sequeira, et al. report, as well as for the Department's 
Supplemental Pest Risk Assessment. New Monte Carlo simulations should 
be run, and the resulting estimates of the frequency of a pest outbreak 
should be subjected to external peer review. USDA should also rerun the 
simulations and recalculate the possibility of an outbreak of stem 
weevils based upon deficiencies associated with fruit cutting conducted 
to detect these pests, and the documented evidence that confirms that 
stem weevils can be transported in fresh Hass avocados.
    Response: As stated earlier in this document, APHIS is confident 
that fruit cutting and fruit fly trapping associated with the Mexican 
Hass avocado import program are being conducted properly, and are 
adequate to detect pests as intended. Furthermore, APHIS has not 
proposed to expand the program based solely on the results of fruit 
cutting and trapping results. Our decision to propose to expand the 
program was based on a number of factors, including the results of the 
Sequeira, et al. study of areas in the United States that are 
susceptible to establishment of Anastrepha ludens.
    Comment: Consideration of fruit maturity is lacking from all the 
current risk assessment work pertaining to fruit flies and avocados. 
Fruit maturity is different than fruit ripeness. According to research 
by ARS and University of Hawaii researchers, papaya maturity is 
critical in determining the host susceptibility to fruit fly 
infestation.
    Response: In laboratory tests, avocado fruit of various stages of 
maturity and ripeness were subjected to forced exposure to fruit flies. 
In these tests, fruit flies were only able to lay viable eggs that 
developed and produced larvae in fruit that were removed from trees and 
held for several days. A large volume of research has been conducted on 
the susceptibility of avocados to infestation by fruit flies, but 
little evidence that is conclusive in regard to avocados' host status.
    None of this research suggests avocado maturity is more worthy of 
consideration than avocado ripeness in determining susceptibility to 
infestation with fruit flies.
    Comment: Why is the ``optima'' temperature for fruit fly activity 
used as the benchmark in establishing the threshold for establishment 
of fruit flies? Given the consequences of an infestation, it would be 
justified to use the more conservative benchmark that incorporates 
minimum temperatures.
    Response: The Sequeira, et al. study did not use temperature 
optima. Rather, it used a model that accounts for (1) slower rates of 
fruit fly development at cool temperatures down to the reported 
absolute minimum temperature (49  deg.F) at which development occurs, 
and (2) faster rates of development as the temperature increases. 
Temperatures below freezing are considered lethal for all stages. 
However, the Sequeira, et al. study used a conservative approach 
whereby only areas with prolonged temperatures below freezing were 
considered potentially lethal. Also, even though young fruit is not 
considered susceptible to damage, Sequeira, et al. used a conservative 
approach and considered the entire phenological period from bloom to 
last possible harvest as potentially susceptible. APHIS believes these 
approaches employ an even more conservative approach than that 
suggested by the commenter.
    Comment: Given the obvious flaws inherent in Sequeira's 
extrapolation of conclusions from Flitters and Messenger (1965), USDA 
should conduct new laboratory research on the effects of temperature 
and humidity on fruit fly development and survival. Studies should take 
advantage of major changes and improvements in quality control and 
rearing technology to ensure the vigor and competitiveness of 
laboratory flies. Data generated can be used to calibrate developmental 
parameters for the Department's degree-day model, which can then be 
used to properly characterize all areas of the United States into risk 
regions.

[[Page 55546]]

    Response: The Sequeira, et al. study did not extrapolate from 
Flitters and Messenger, although the findings of Sequeira, et al. agree 
with the results reported by Flitters and Messenger. More recent 
developmental studies (including Leyva-Vazquez et al. (1991), Leyva-
Vazquez (1988), and Thomas (1997), each referenced earlier in this 
document) are consistent with the reports of Flitters and Messenger 
regarding conditions under which Anastrepha ludens develops. Sequeira, 
et al. used life table analyses referred to earlier in this document as 
the basis for the developmental model. As stated above, the 
developmental model was one element in a study that also evaluated host 
distribution, availability, susceptibility, winter-time freezing 
conditions, as well as the avocado pathway.
    Comment: APHIS must focus on the ``introduction'' of Anastrepha 
spp. fruit flies, rather than ``establishment'' when characterizing 
risk. Fruit flies do not need to become established to become a 
quarantine risk, and a successfully introduced population can easily be 
transported to susceptible areas of commercial agricultural production.
    Response: As stated earlier in this document, APHIS believes it 
would be exceedingly unlikely that fruit flies would be introduced into 
approved States in commercial shipments of Mexican Hass avocados in 
such numbers that their populations would reach outbreak levels in a 
matter of a few months. Nonetheless, in response to a previous comment, 
we are revising the approved shipping season for imported Hass avocados 
to run from October 15 through April 15. We believe this change will 
further reduce the risk that fruit flies could survive in approved 
distribution areas in the highly unlikely event that they are present 
in imported Hass avocados.
    Comment: The Sequeira study should be subject to rigorous external 
peer review. APHIS has stated that the Sequeira study ``has undergone a 
sufficient internal review process to use as an aid in making a sound 
regulatory decision.'' Again, APHIS relied almost exclusively on its 
own APHIS-PPQ staff to critique a document potentially affecting 
thousands of stakeholders. The California Department of Food and 
Agriculture, citrus industry leaders in potentially affected States, 
researchers and entomologists in California and Florida, and many other 
experts were never sought out, nor were they aware of the existence of 
the study until a final version of it appeared on the internet.
    Response: The development of the Sequeira, et al. study included 
consultation with scientists outside of APHIS and with scientists 
associated with Mexican and American universities. Nonetheless, APHIS 
believes that the rulemaking process has subjected the Sequeira, et al. 
study to a very wide peer review. The process of soliciting and 
responding to public comments is not limited to internal USDA input, 
but seeks the widest possible range of comments and questions from all 
interested persons. Public comments are sought to help APHIS improve 
and enhance its decisionmaking and the resources on which decisions are 
based. If commenters submit information that suggests changes to APHIS 
documents are necessary,APHIS evaluates the information and may or may 
not make changes in response. In the past, many APHIS rules and the 
supporting documents for them have been reviewed and enhanced based on 
public comments.
    Comment: Where is the USDA analysis of the complete temperature 
model for fruit fly activity as it relates to the proposed rule change 
in the 12 additional States and as it relates to the 7 at-risk States?
    Response: The analysis of climatology contained in the Sequeira, et 
al. study was not limited to several States but included the entire 
continental United States.
    Comment: Statements in the Sequeira, et al. report regarding host 
phenology appear to be inconsistent with information shown in Figure 2.
    Response: Sequeira, et al.'s approach to estimating the periods 
when susceptible fruit were present (generally from post-bloom to last 
harvest) involved queries to all PPQ State Plant Health Directors as 
well as State Plant Regulatory Officials. In some cases, the 
information was not consistent, and when responses were not obtained, 
Sequeira, et al. used available literature (sources are noted in the 
document). Some inconsistent reports were due to changes in regional 
trends. For example, Plant Regulatory Officials in San Diego tended to 
provide State phenologies that were more appropriate to Southern 
California than elsewhere. However, in the final analysis, Sequeira, et 
al. were conservative given the reported variability. Their approach 
was to maximize the phenology period to reflect this. For example, 
Sequeira, et al. considered California to have fruit present year-round 
at all locations and that this fruit is always susceptible. That, in 
effect, is a conservative approach because clearly there are no fruit 
in parts of California for varying periods of time. We have reviewed 
the plant phenological information used in the study and are confident 
that it is accurate.

Economic Issues

    Comment: The economic analysis only looks at the Hass avocado 
market, and does not take into account the effects on consumers and 
producers of other varieties such as Fuerte,Pinkerton, etc. The entire 
U.S. avocado market would be affected by the proposed ruling and needs 
to be included in any analysis.
    Response: The analysis assumes that consumers do not readily 
substitute between Hass avocados and other varieties of avocado. For 
that reason, the other varieties are not included in the analysis. 
Significant differences in price suggest a lack of substitutability. 
For example, during the first 8 months of the current season, the 
average grower price for Hass avocados was$0.73 per pound, compared to 
an average price for Fuerte avocados of $0.24 per pound and a combined 
average price of $0.22 per pound for ``other'' varieties. If Hass and 
non-Hass avocados were close substitutes, then such large price 
differences would not exist. Including all domestically produced 
avocados in the analysis would increase the baseline, reducing the 
magnitude of the estimated impacts.
    Comment: The analysis is based on the 6-month period from November 
through April. However, avocados can be stored on trees. Therefore, 
harvesting can be shifted between time periods. The 60 percent of the 
crop that is currently shipped from May through October is an increase 
in the percentage that was shipped during this same time period before 
Mexico was granted partial access to the U.S. market. Therefore, the 
analysis should be done for the entire year.
    Response: We consider it appropriate to base the analysis on 
domestic avocado shipments for the November-April period. California 
producers may respond to increased imports from Mexico by postponing 
the harvesting of a portion of their production for shipment during the 
peak May-October season. However, inclusion in the analysis of possible 
seasonal marketing adjustments would not substantially change the 
results of the analysis. Analyzing increased imports from Mexico in 
terms of year-round domestic production would simply reduce the size of 
expected impacts. The percentage decline in price, gains to consumers/
merchandisers and losses to producers would all be smaller.
    Comment: Both the national and regional models are very short-run

[[Page 55547]]

models that assume that the supply of avocados is fixed and, therefore, 
it ignores supply adjustments to falling prices. In the short run, 
supply is responsive to changes in prices through decisions made during 
harvest and at the handler level. In the long run, producers would 
adjust to the changes in market prices by removing land in production, 
causing market prices to rise. The consequence of the exclusion of a 
supply response in the economic model means that both the gains to 
consumers and the losses to producers are overestimated. Costs to 
handlers as a result of lower production also cannot be calculated 
using the USDA model.
    Response: As noted by the commenter, relaxing the assumption of 
fixed supply would result in lower estimates of consumer/merchandiser 
gains and producer losses. However, the net impact of the rule would 
remain positive. A fixed supply is assumed in the analysis because 
avocado is a perennial tree crop. An avocado tree started as a nursery 
seedling takes 3 to 4 years to begin bearing fruit, and a tree grown 
from seed can take 5 to 13 years before yielding its first fruit. In 
the short term, producers can delay harvest in response to market 
conditions, although this may affect the tree's productivity in 
succeeding seasons. In the longer term, land may be removed from 
production in response to falling prices, but for other reasons as 
well. Bearing avocado acres in California decreased by more than 22 
percent between 1987/1988 and 1999/2000, and yet over this same period 
levels of production and producer prices showed no discernable pattern 
of decline. Handlers adjust to seasonal variations in supply.
    Comment: The analysis ignores the net effect of the proposed ruling 
to California. An analysis of Mexico's imports into the 19 northeastern 
States since 1997 shows that the net effect on consumer and producer 
welfare within California is negative, even though California consumers 
benefit. In addition, the decrease in producer surplus is about 10 
times larger in the short run and 6 times larger in the long run than 
the increase in consumer surplus.
    Response: During the 1999/2000 season, about 40 percent of 
California Hass avocado shipments remained within that State. As the 
commenter points out, when only California consumers/merchandisers are 
considered, their expected gains are outweighed by the expected losses 
of California's avocado producers. This consequence is predictable, 
given that essentially all domestically produced Hass avocados are 
grown in California. The Regulatory Impact Analysis examines impacts on 
approved and nonapproved States as defined in the rule. We do not 
believe a separate analysis of net impacts for California alone is 
appropriate.
    Comment: The analysis assumes that the proposed expansion would 
result in an increase in imports from Mexico of 16.87 million pounds. 
The assumption is that Mexico would displace California shipments to 
the additional approved regions. This seems to be a reasonable starting 
point, however it is impossible to know precisely what the increase in 
prices will be. Therefore, a sensitivity analysis based on higher and 
lower levels should also be included.
    Response: Whether more or less than the 16.87 million pounds of 
additional avocados assumed in the analysis are actually imported from 
Mexico, the pattern of impact remains the same: A decline in the price 
of avocado, with gains to consumers/merchandisers exceeding losses to 
domestic producers. Fewer additional imports would result in less of an 
effect on price, and smaller losses and gains; a larger increase in 
imports would mean a larger price effect, and larger losses and gains. 
Assuming the same price elasticities of supply and demand, the net 
impact is positive in all cases. For example, using the national model, 
additional imports of 10 million pounds would result in a price decline 
of 7 percent, with consumer/merchandiser gains of $16.1 million and 
producer losses of $10.6 million; additional imports of 40 million 
pounds would lead to a price decline of 28 percent, with consumer/
merchandiser gains of $70.0 million and producer losses of $42.5 
million.
    Comment: The elasticity of demand used in the Regulatory Impact 
Analysis is -0.86 for Hass avocados, a number similar to the one 
estimated by Carmen and Craft for the entire California avocado market. 
Using techniques developed by Armington, the elasticity of demand for 
only Hass avocados is estimated at -1.2. The analysis correctly states 
that if demand is more elastic, then the costs to producers will 
decrease. However, the gains to consumers will also decrease and that 
is missing from the analysis.
    Response: The magnitude of estimated impacts depends on the size of 
the elasticities. If a price elasticity of demand of -1.2 is assumed 
instead of -0.86, and the price elasticity of supply is kept at zero, 
the national model shows a price decline of 8.6 percent (compared to 12 
percent), producer losses of $12.8 million (compared to $17.9 million) 
and consumer/merchandiser gains of $19.8 million (compared to $27.6 
million), for a net benefit of $7.0 million (compared to $9.7 million). 
These results, as well as those for the regional model when assuming a 
price elasticity of -1.2, are shown in an addendum to the Regulatory 
Impact Analysis. Both merchandiser/consumer benefits and producer 
losses would be smaller, assuming a price elasticity of demand of -1.2 
rather than of -0.86, but the net impact remains positive.
    Comment: The analysis notes that average total shipments of 
California Hass avocados for the 1999-2000 season were 20 percent 
greater than shipments between the 1986 and 1994 seasons. However, 
average shipments between the 1997 and 2000 seasons were 12 percent 
lower than shipments between the 1994 and 1996 seasons, the period just 
prior to Mexican Hass avocado imports.
    Response: We do not have data for domestic shipments during the 
1994/1995 and 1995/1996 seasons. Quantities of avocados shipped during 
the 1999/2000 season to the approved and nonapproved States are the 
basis for the assumed level of additional avocado imports from Mexico. 
As indicated in response to other comments, whether a larger or smaller 
quantity of imports is assumed, the direction of the effects is the 
same: Price falls, with consumer/merchandiser gains and domestic 
producer losses resulting in a net positive impact. Shipment levels 
fluctuate from year to year, as do production levels and farm prices. 
Although California's avocado acreage has been in decline since the 
late 1980s, crop values (price times quantity produced) have trended 
upward. Crop values over the 4-year period 1996/97 through 1999/2000 
were higher than at any previous time.
    Comment: The analysis discusses the decrease in shipments of 
California Hass avocados and increase in prices since Hass avocado 
imports have begun. It does not mention the establishment of an exotic 
pest, avocado thrips, that has reduced marketable yields and increased 
costs of production during this same time period.
    Response: The purpose of the economic analysis, as required by 
Executive Order 12866, is to evaluate the impact of the rule on U.S. 
entities. The analysis should include factors affecting the rule or 
influenced by the rule. Establishment of avocado thrips in California 
occurred independently of avocado imports from Mexico. This pest's 
impact in California is not directly pertinent to the analysis. Effects 
of additional imports from Mexico are

[[Page 55548]]

estimated without reference to production costs or yields.
    Comment: The analysis lacks an estimate of the expected costs to 
consumers and producers should an exotic pest become established in the 
United States as a result of Mexican Hass avocado imports. An economic 
analysis of the effects of avocado thrips becoming established in 
California shows a decrease in avocado consumer and producer welfare 
since the 1997 season, even though increased imports from Mexico have 
benefitted consumers. While a risk analysis would be difficult at this 
time given that many avocado pests are undescribed or their impact 
unknown, the potential costs need to be addressed in some manner. This 
is especially important for the regional analysis. The regional 
analysis assumes the existence of a price discrepancy between the 
approved and non-approved regions. As the price discrepancy increases, 
the risk of non-compliance with APHIS regulations increases, increasing 
the risk of an exotic pest becoming established.
    Response: The Regulatory Impact Analysis estimates annual net 
benefits that can be expected to result from this rule. The cost of a 
possible pest introduction would depend upon its likelihood of 
occurrence, and upon the reduction in yields and increase in production 
costs that would ensue. The introduction of a pest or disease would 
adversely affect the economic health of the avocado industry. However, 
for the purposes of our analysis, the likelihood of such an event must 
be weighed against the certainty of the trade effects. As APHIS has 
concluded that the introduction of plant pests is extremely unlikely, 
we believe that consideration of the costs of pest introduction would 
not substantively change the findings of our analysis. APHIS conducts 
economic analyses for import-related rulemaking using the assumption 
that the importation of a particular plant/plant product (or animal/
animal product, for that matter) will not result in the introduction of 
pests or diseases; indeed, the prevention of such introductions is a 
primary goal of those rulemakings. APHIS does, however, routinely 
attempt to quantify, to the extent possible, the size (in dollar terms) 
of the domestic industry that stands to be affected by a rulemaking. In 
this instance, impacts on California avocado producers have been 
examined in terms of additional avocado imports from Mexico.
    Comment: USDA should establish a mechanism to compensate U.S. 
growers who suffer economic losses attributable to pests imported with 
Mexican Hass avocados. What mechanisms are planned, and how will they 
be funded?
    Response: The USDA's authority for the payment of compensation is 
found in Sec. 415 of the Plant Protection Act, which provides that the 
Secretary may pay compensation to any person for economic losses 
incurred by the person as a result of action taken by the Secretary 
pursuant to a declaration of extraordinary emergency. The Secretary may 
determine that an extraordinary emergency exists because of the 
presence of a plant pest or noxious weed that is new to or not known to 
be widely prevalent in or distributed within and throughout the United 
States and that the presence of the plant pest or noxious weed 
threatens plants or plant products of the United States.

Environmental Assessment

    Comment: The environmental assessment for the proposed rule does 
not address the fact that shippers have an economic incentive to 
develop mechanisms to smuggle avocados into areas outside the approved 
distribution area.
    Response: APHIS believes that the restrictions imposed under the 
systems approach regulations discourage the smuggling of avocados into 
nonapproved areas. As stated earlier in this document, the time and 
effort involved in repackaging and restickering Mexican Hass avocados 
would likely negate the incentive to smuggle them. Further, persons who 
move Hass avocados into nonapproved areas are subject to prosecution, 
and if convicted, face civil and criminal penalties. In addition, in 
the 4 years since the Mexican Hass avocado import program began, APHIS 
believes that only 0.11 percent of the boxes of imported Mexican 
avocados were shipped outside the approved distribution area.
    Based on these figures, APHIS believes that the chance that 
imported Mexican Hass avocados could be moved to nonapproved States is 
very remote. Further, even if imported Hass avocados were moved to 
nonapproved areas, it is even more unlikely that they would contain 
pests. The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321 et seq.) does not require consideration of remote and 
speculative risks in the development of an environmental assessment. 
Therefore, we see no need to revise our environmental assessment.
    Comment: San Diego County, CA, has the highest number of threatened 
or endangered species of any county in the United States. The county 
has a large number of growers who practice integrated pest management, 
and has in excess of 300 registered organic agricultural producers. The 
potential impact of increased pesticide use resulting from an 
eradication program in the county would be tremendous. The 
environmental assessment should take these impacts into consideration.
    Response: The concern of environmental impacts on threatened and 
endangered species was noted in the preparation of the environmental 
assessment as it applies to the proposed rule for the Mexican Hass 
avocado import program expansion and its limited distribution area. San 
Diego County is not listed as one of the distribution areas in the 
proposed rule and, therefore, was not considered in assessing 
environmental impacts to threatened and endangered species. If, in the 
future, APHIS proposes to include San Diego County, an environmental 
assessment or environmental impact statement (EIS) would be required to 
address all environmental issues, including threatened and endangered 
species.
    Comment: Executive Order 12898 requires that in complying with 
NEPA, agencies shall include an analysis of environmental effects, 
including health, economic, and social factors. APHIS's environmental 
assessment does not meet NEPA requirements in that it does not consider 
economic or social factors.
    Response: Section 1508.9(a) of NEPA states, in part, that an 
environmental assessment is a concise public document that serves to 
``(1) [b]riefly provide sufficient evidence for determining whether to 
prepare an environmental impact statement; (2) [a]id an agency's 
compliance with the [National Environmental Policy] Act when no 
environmental impact statement is necessary, and (3) [f]acilitate 
preparation of a statement when one is necessary.'' Because an 
environmental assessment is a concise document, it should not contain 
lengthy descriptions of information gathered for the environmental 
assessment. The analysis in the environmental assessment considered the 
potential for effects on the natural and physical environment from the 
proposed action and also, in accordance with Executive Order 12898, the 
potential for disproportionate human health effects on low-income 
populations and minority populations from the proposed action. The 
analysis concluded that the expansion of the distribution of Hass 
avocados will not result in adverse human health or environmental 
effects.
    Section 1508.14 of NEPA specifies ``when an environmental impact 
statement is prepared and economic or

[[Page 55549]]

social and natural and physical environmental effects are interrelated, 
then the environmental impact statement will discuss all of these 
effects on the human environment.'' Therefore, an environmental 
assessment is not required to discuss social and economic impacts of a 
proposed action; however if, after the analysis is completed for an 
environmental assessment, the decisionmaker cannot arrive at a finding 
of no significant impact, then it would be appropriate to consider 
social and economic factors, as they interrelate with the natural and 
physical environmental effects, in the EIS.
    Comment: The first environmental assessment for the Mexican Hass 
avocado import program provided for the establishment of the program 
based upon a scientific assessment of pest biology, host range, and 
climatic factors. The current assessment discounts the science of the 
initial environmental assessment and eliminates the no action 
alternative based on trade issues. Where does APHIS provide the 
information required by NEPA for discussing elimination of the no 
action alternative?
    Response: The environmental assessment considered three 
alternatives for the proposed action: (1) Change the Fruits and 
Vegetables regulations to add 12 States to the distribution area and 
extend the shipping season by 2 months (March and April),\5\ (2) no 
action, which would not change the current distribution area or months 
of distribution, and (3) change the Fruits and Vegetable regulations to 
expand the distribution to all 50 States and the District of Columbia 
and provide for year-round distribution. Alternative 3 was dismissed 
from further consideration because of the risks associated with 
possible establishment of quarantine pests, as determined by pest risk 
assessment. Alternative 2 (no action) was dismissed from further 
consideration because (1) pest risk assessment documents produced by 
APHIS found that the risk posed by expanded importation of Mexican Hass 
avocados is negligible, and (2) under international trade agreements, 
APHIS is obligated to allow the importation of commodities if their 
importation presents a negligible risk of pest introduction. This 
information is stated on page 3 of the environmental assessment.
---------------------------------------------------------------------------

    \5\ The environmental assessment has since been revised to 
reflect the change in the shipping season described earlier in this 
document.
---------------------------------------------------------------------------

    Comment: The consequences of introducing a new pest into the United 
States are not adequately addressed in the environmental assessment, 
and the assessment's conclusion that ``the risk to the quality of the 
human environment [under the program expansion] is insignificant'' is 
incorrect. A full environmental impact statement should be prepared.
    Response: The environmental assessment considers, refers to, and 
incorporates by reference the risk assessment and subsequent documents 
updating the assessment that were prepared specifically for the 
importation of Mexican Hass avocados and analysis of selected pathways. 
The environmental assessment also incorporates by reference the 
Sequeira, et al. study, which assesses the risk associated with the 
establishment of Anastrepha ludens fruit flies in the United States, 
especially in relation to these pests as they occur in U.S. avocado 
imports from Mexico. The study used the following approach factors to 
determine the pest risks: (1) Examine the resource at risk (commercial 
fruit production), (2) characterize host susceptibility (timing and 
location of susceptible fruit), and (3) characterize climatology for 
the purpose of studying pest reproduction potential as a function of 
the previous factors. The study also used the avocado pathway as a case 
study for the risks associated with fruit imports. In determining the 
probability that fruit flies are getting through undetected along the 
pathway, the case study used evidence from ongoing sampling and 
recorded information since the initiation of the avocado export 
program.
    Epidemiologically, the Sequeira, et al. study concludes that both 
the Hass avocado's status as a poor to inadequate host and marginal 
developmental conditions lead to low production area fruit fly 
densities. According to the statistical findings of the study, the 
probability that fruit fly infestations--even very low-level 
infestations--remain undetected in inspections under the current export 
program is close to zero.
    Based on the findings of these scientific assessments, increased 
imports of Hass avocados from Michoacan, Mexico, will not significantly 
impact the human environment; thus, the preparation of an EIS is not 
required for this proposed action.

Miscellaneous

    Under the regulations, imported Mexican Hass avocados must be 
packed in clean, new boxes that are clearly marked with the identity of 
the grower, packinghouse, and exporter, and a statement listing the 
States in which distribution of the avocados is prohibited. In this 
document, we are revising the regulations to allow imported Mexican 
Hass avocados to, alternatively, be packed in clean plastic reusable 
crates. The clean plastic reusable crates will be required to be marked 
with the same information as is required on clean new boxes. We are 
making this change because it could reduce unnecessary waste while 
continuing to provide that imported Mexican avocados are packaged in 
boxes that, in and of themselves, do not present a risk of introducing 
fruit flies or other plant pests into the United States.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register.
    We are taking this action in response to a request from the 
Government of Mexico and after determining that expanding the current 
Mexican avocado import program would present a negligible risk of 
introducing plant pests into the United States.
    Immediate implementation of this rule is necessary to provide 
relief to those persons who are adversely affected by restrictions we 
no longer find warranted. Under the regulations, the shipping season 
for Mexican Hass avocados begins October 15, 2001. Making this rule 
effective immediately will allow interested persons to begin shipping 
Hass avocados to certain areas of the United States as soon as possible 
after that date. Therefore, the Administrator of the Animal and Plant 
Health Inspection Service has determined that this rule should be 
effective less than 30 days after publication.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be significant for the purposes of Executive 
Order 12866 and, therefore, has been reviewed by the Office of 
Management and Budget.
    For this rule, we have prepared a regulatory impact analysis. The 
regulatory impact analysis also contains a final regulatory flexibility 
analysis, which considers the potential economic effects of this final 
rule on small

[[Page 55550]]

entities, as required under 5 U.S.C. 604. The regulatory impact 
analysis and regulatory flexibility analysis are summarized below. 
Copies of the full analysis are available by contacting the person 
listed under FOR FURTHER INFORMATION CONTACT, or on the Internet at 
http://www.aphis.usda.gov/ppq/avocados/.
    Under the Plant Protection Act (7 U.S.C. 7701-7772), the Secretary 
of Agriculture is authorized to regulate the importation of plants, 
plant products, and other articles to prevent the introduction of 
injurious plant pests.

Summary of Regulatory Impact Analysis

    Our analysis considers economic impacts on U.S. producers and 
consumers/ merchandisers of Hass avocados that could result from 
allowing fresh Hass avocados from Michoacan, Mexico, to be imported 
into additional areas of the United States and over a longer period 
each year than is currently allowed. Since the 1997/98 season, imports 
of avocados from approved orchards in Michoacan, Mexico, have been 
allowed to be imported into the United States and distributed 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 during the months of November through 
February. Under this final rule, distribution will be expanded to 
include the States of Colorado, Idaho, Iowa, Kansas, Minnesota, 
Missouri, Montana, Nebraska,North Dakota, South Dakota, Utah, and 
Wyoming. The shipping season will also be expanded to run from October 
15 through April 15.
    We are taking this action in response to a request from the 
government of Mexico, and after determining that this action would 
present a negligible risk of introducing plant pests into the United 
States.
    Impacts on U.S. producers and consumers/merchandisers will derive 
from the increased supply of Hass avocados from Mexico and concomitant 
price declines. Essentially all domestically produced Hass avocados are 
grown in California. U.S. producers and California producers are 
therefore used interchangeably in the analysis. The 1997 rule that 
first allowed for the importation of Mexican Hass avocados to 19 States 
and the District of Columbia resulted in a redistribution of 
California-grown Hass avocados from markets in the approved States 
during the months that imports are allowed from Mexico. This final rule 
is expected to have a similar effect. Anecdotal evidence suggests that 
benefits resulting from the previous regulations have been largely 
realized at the wholesale level, and discussion of consumer gains 
therefore includes explicit reference to merchandisers as well.
    In our analysis, we use two models to estimate impacts. The first 
is a nationwide model that does not distinguish between the approved 
and nonapproved States. The rationale underlying this model is that 
given sufficient time, a single price for avocados would obtain in the 
two regions. Although Mexico's supply is restricted to the approved 
States for specified months of the year, California and other foreign 
suppliers can move in and out of the two markets, and would do so in 
search of profits until prices in the approved and nonapproved States 
essentially equalize.
    The second model explicitly recognizes the approved and nonapproved 
States as two regions. Estimated economic losses include direct market 
loss for California producers in approved States, and losses related to 
increased supply in nonapproved States, as the diversion of California 
Hass avocados from approved to nonapproved States depresses prices. 
Consumers/merchandisers would be expected to gain in both approved and 
nonapproved States from the lower prices. A theoretical limitation of 
the regional model, in contrast to the national model, is the assumed 
maintenance of a price differential between the approved and 
nonapproved States.
    Both models use a partial equilibrium economic surplus framework to 
consider the benefits and costs of the final rule. Potential producer 
losses and consumer/merchandiser gains are quantified in terms of 
changes in producer and consumer surplus resulting from the increased 
imports expected from Mexico. To simplify the analysis, the demand 
curve is assumed to be of constant elasticity while U.S. supply is 
assumed to be fixed. The supply curve is assumed to be vertical at 
least in the short run, that is, supply is perfectly inelastic and does 
not respond to changes in price.
    In the national model, additional Hass avocado imports from Mexico 
totaling 16.87 million pounds are estimated to result in a 12 percent 
drop in the wholesale price, from $1.34 per pound to $1.18 per pound. 
Consumers/merchandisers would gain by $27.65 million per year and 
California Hass avocado producers would lose by $17.93 million per 
year, for a net benefit of $9.72 million per year.
    In the regional model, the same level of additional Mexican Hass 
avocado imports is assumed (16.87 million pounds), an amount equivalent 
to the maximum quantity assumed could be wholly diverted from approved 
to nonapproved States. Impacts are examined using three scenarios. In 
the first scenario, 70 percent of California Hass avocados that would 
otherwise be sold in the approved States are diverted to nonapproved 
States; in the second scenario, 85 percent are diverted; and in the 
third scenario, 100 percent are diverted. The 85 percent diversion 
scenario is considered representative of what is most likely to occur, 
given historic changes in quantities of California Hass avocados 
shipped to the existing approved States due to Mexican imports.
    The first scenario of the regional model (70 percent diversion) 
would mean 6.07 million pounds of California Hass avocados remain in 
the approved States, and 11.81 million pounds are diverted to the 
nonapproved States. The additional supply of Mexican Hass avocados 
results in a price decline that benefits consumers/merchandisers in the 
approved States by $10.12 million per year. California producers whose 
Hass avocados are sold in the approved States face a revenue loss of 
$17.15 million per year. The net loss in the approved States is $7.03 
million per year.
    In the nonapproved States, the 11.81 million pounds of California 
Hass avocados diverted from the approved States result in a price 
decline that causes a revenue loss of $0.35 million per year for 
California producers. Consumers/merchandisers in the nonapproved States 
benefit by $19.31 million per year, for a net benefit of $18.96 million 
per year.
    Net losses in the approved States ($7.03 million per year) and net 
gains in the nonapproved States ($18.96 million per year) yield an 
overall net gain of $11.94 million per year in the first scenario.
    The second scenario (85 percent diversion) yields producers losses 
and Consumer/merchandiser gains comparable to the first one. Net losses 
in the approved States ($13.93 million per year) and net benefits in 
the nonapproved States ($22.79 million per year) combine for an overall 
net gain estimated at $8.87 million per year.
    In the third scenario (100 percent diversion), 16.87 million pounds 
of California Hass avocados are diverted to the nonapproved States. Net 
losses in the approved States ($21.05 million per

[[Page 55551]]

year) and net gains in the nonapproved States ($26.54 million per year) 
yield a combined net benefit of $5.50 million per year.
    In sum, impacts of the final rule for U.S. producers and consumers/
merchandisers range from net benefits of $11.94 million per year for 
the 70 percent diversion scenario and $8.87 million per year for the 85 
percent diversion scenario, to $5.50 million per year for the 100 
percent diversion scenario. The net benefit estimated using the 
national model, $9.72 million per year, is contained within this range. 
The overall impact in all cases is minor. In the event the price 
elasticity of demand is larger than that used in this analysis (-0.86), 
losses to California producers will be less than those calculated, but 
the net impact remains positive. Another factor that could reduce 
losses to California producers would be activities to increase the 
demand for Hass avocados, that is, activities would increase sales at 
any given price.

Summary of Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act requires that impacts on small 
entities be taken into consideration in rulemaking, to ensure that such 
businesses are not disproportionately burdened. There are about 6,000 
producers and 100 handlers of Hass avocados in southwestern California 
that could be affected by this rule, as well as about 200 importers. 
APHIS has been unable to obtain information on the size distribution of 
affected avocado producers. For the purposes of our analysis, we assume 
that the size distribution of the 6,000 producers is the same as the 
size distribution of avocado farms reported in the 1997 Census of 
Agriculture; that is, 98 percent are small entities ($750,000 or less 
in annual receipts). Most avocado importers are reportedly also small 
entities (100 or fewer employees), while most Hass avocado handlers are 
large (more than $5 million in annual receipts). Given the declines in 
revenue that are described in the three scenarios of the regional 
model, average annual losses for small-entity California Hass avocado 
producers could range between $1,870 and $2,593. This impact could 
prove significant if producers rely upon Hass avocado production as 
their principal source of income.
    Two variations of the regional model are presented as examples of 
modifications to the rule that would mitigate adverse impacts on small-
entity California Hass avocado producers. Alternative A would extend 
the 4-month period of import by 2 months, March and April, but would 
not expand the number of approved States. Alternative B would maintain 
the current 4-month period of import, but would expand the number of 
approved States. For both alternatives, losses to California's Hass 
avocado producers would be less than were calculated for the proposed 
rule. Under the 85 percent diversion scenario, California producer 
losses would be $12.46 million per year and $2.50 million per year for 
alternatives A and B, respectively, compared to an annual producer loss 
of $20.55 million under the proposed rule. However, consumer/
merchandiser gains would also be reduced in both cases. Annual net 
benefits are estimated to be $6.52 million per year for alternative A 
and $3.67 million per year for alternative B, compared to $8.87 million 
per year for the proposed rule.
    There are no other rules that would overlap, duplicate, or conflict 
with this final rule.
    This final rule contains information collection requirements, which 
have been approved by the Office of Management and Budget (see 
``Paperwork Reduction Act'' below).

Executive Order 12988

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

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this final rule. The assessment provides a basis 
for the conclusion that the importation of Hass avocados from Mexico 
under the conditions specified in this rule will not present a risk of 
introducing or disseminating plant pests and will not have a 
significant impact on the quality of the human environment. Based on 
the finding of no significant impact, the Administrator of the Animal 
and Plant Health Inspection Service has determined that an 
environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS's NEPA 
Implementing Procedures (7 CFR part 372).
    Copies of the environmental assessment and finding of no 
significant impact are available for public inspection at USDA, room 
1141, South Building, 14th Street and Independence Avenue SW., 
Washington, DC between 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays. Persons wishing to inspect copies are requested to 
call ahead on (202) 690-2817 to facilitate entry into the reading room. 
In addition, copies may be obtained by writing to the individual listed 
under FOR FURTHER INFORMATION CONTACT, and on the Internet at: http://www.aphis.usda.gov/ppq/avocados/.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0129.

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 are amending 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

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

    Authority: 7 U.S.C. 166, 450, 7711-7714, 7718, 7731, 7732, and 
7751-7754; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

    2. Section 319.56-2ff is amended as follows:
    a. By revising the section heading, the introductory text, and 
paragraphs (a)(2), (a)(3), and (c)(3)(vii).
    b. In paragraphs (e)(2) and (e)(3), by removing the words 
``November through February'' each time they appear and adding the 
words ``October 15 through April 15'' in their place.

[[Page 55552]]

    c. By revising paragraphs (f)(1), (g), and (i).


Sec. 319.56-2ff  Administrative instructions governing movement of Hass 
avocados from Michoacan, Mexico, to approved States.

    Fresh Hass variety avocados (Persea americana) may be imported from 
Michoacan, Mexico, into the United States for distribution in approved 
States only under a permit issued in accordance with Sec. 319.56-4, and 
only under the following conditions:
    (a) * * *
    (2) The avocados may be imported only between October 15 and April 
15 of the following year; and
    (3) The avocados may be distributed only in the following States: 
Colorado, Connecticut, Delaware, the District of Columbia, Idaho, 
Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, 
Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New 
Hampshire, New Jersey, New York, North Dakota, Ohio, Pennsylvania, 
Rhode Island, South Dakota, Utah, Vermont, Virginia, West Virginia, 
Wisconsin, and Wyoming.
* * * * *
    (c) * * *
    (3) * * *
    (vii) The avocados must be packed in clean, new boxes, or clean 
plastic reusable crates. The boxes or crates must be clearly marked 
with the identity of the grower, packinghouse, and exporter, and the 
statement ``Not for distribution in AL, AK, AZ, AR, CA, FL, GA, HI, LA, 
MS, NV, NM, NC, OK, OR, SC, TN, TX, WA, Puerto Rico, and all other U.S. 
Territories.''
* * * * *
    (f) * * *
    (1) Any port located in a State specified in paragraph (a)(3) of 
this section;
* * * * *
    (g) Shipping areas. (1) Except as explained below in paragraph 
(g)(3) 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 as follows:
    (i) 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, and
    (ii) On the west by following Interstate 10 North from El Paso, TX, 
to Las Cruces, NM, and north following Interstate 25 to the Colorado 
border, then west along Colorado and Utah's southern borders, then 
north along Utah's western border, then west along Idaho's southern 
border and north along Idaho's western border to the border with 
Canada.
    (2) All cities on the boundary lines described in paragraph (g)(1) 
are included in this shipping area. If the avocados are moved by air, 
the aircraft may not land outside this shipping area.
    (3) Avocados that enter the United States at Nogales, AZ, must be 
moved to Las Cruces, NM, by the route specified on the permit, and then 
must remain within the shipping area described above in this paragraph.
* * * * *
    (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 an approved State, and upon arrival at the terminal 
market in the approved 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 October 2001.
James G. Butler,
Acting Under Secretary for Marketing and Regulatory Programs, USDA.
[FR Doc. 01-27485 Filed 10-31-01; 8:45 am]
BILLING CODE 3410-34-U