[Federal Register Volume 78, Number 177 (Thursday, September 12, 2013)]
[Rules and Regulations]
[Pages 56129-56132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22205]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 318

[Docket No. APHIS-2012-0008]
RIN 0579-AD70


Interstate Movement of Sharwil Avocados From Hawaii

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the Hawaii quarantine regulations to allow the 
interstate movement of untreated Sharwil avocados from Hawaii into the 
continental United States. As a condition of movement, Sharwil avocados 
from Hawaii will have to be produced in accordance with a systems 
approach that includes requirements for registration and monitoring of 
places of production and packinghouses, an orchard trapping program, 
grove sanitation, limits on harvest periods and distribution areas, and 
harvesting and packing requirements to ensure that only intact fruit 
that have been protected against infestation are shipped. This action 
will allow for the interstate movement of Sharwil avocados from Hawaii 
into other States while continuing to provide protection against the 
introduction of quarantine pests.

DATES: Effective Date: October 15, 2013.

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

SUPPLEMENTARY INFORMATION:

Background

    Under the regulations in 7 CFR part 318, ``State of Hawaii and 
Territories Quarantine Notices'' (referred to below as the 
regulations), the Animal and Plant Health Inspection Service (APHIS) of 
the U.S. Department of Agriculture (USDA or the Department) prohibits 
or restricts the interstate movement of fruits, vegetables, and other 
products from Hawaii, Puerto Rico, the U.S. Virgin Islands, and Guam to 
the continental United States to prevent the spread of plant pests that 
occur in Hawaii and the territories.
    Among other things, the regulations allow interstate movement of 
Sharwil avocados from Hawaii to the continental United States only if 
the avocados undergo fumigation, or combined fumigation and cold 
treatment for fruit flies. The treatments currently required for the 
movement of Sharwil avocados can have unacceptable adverse effects on 
the quality of the fruit.
    On February 7, 2013, we published in the Federal Register (78 FR 
8987-8992, Docket No. APHIS-2012-0008) a proposal \1\ to amend the 
regulations to allow the interstate movement of untreated Sharwil 
avocados from Hawaii into the continental United States under a systems 
approach. The proposed conditions included that Sharwil avocados from 
Hawaii would have to be produced in accordance with a systems approach 
that includes requirements for registration and monitoring of places of 
production and packinghouses, an orchard trapping program, grove 
sanitation, limits on harvest periods and distribution areas, and 
harvesting and packing requirements to ensure that only intact fruit 
that have been protected against infestation are shipped.
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    \1\ To view the proposed rule, supporting documents, and the 
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2012-0008.
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    We solicited comments concerning the proposed rule for 60 days 
ending April 8, 2013, and received 30 comments by that date. They were 
from avocado growers and grower associations, researchers, members of 
Congress, a State plant regulatory agency, and an organization 
representing State plant regulatory agencies. These comments are 
discussed below by topic.

Support for the Proposed Rule

    Many commenters stated that they were confident that Sharwil 
avocados could safely move to the mainland in accordance with the 
requirements of the proposed rule and that the strengthened mitigation 
measures would prevent shipment of any fruit with viable fruit fly 
larvae. Many commenters also stated that the proposed rule would 
benefit Hawaii avocado growers, the economy of Hawaii, and consumers on 
the mainland.

Trapping in Production Areas

    Two commenters addressed actions to be taken if traps find 
Bactrocera dorsalis, the Oriental fruit fly, in the production area. 
The proposed rule states ``Consistent with the recommendations of the 
RMD [risk management document], the compliance agreement would 
initially require bait sprays approved by APHIS to be used to control 
fruit flies in the orchard if B. dorsalis is detected by the trapping 
at a rate above 0.4 flies per trap per day.'' One commenter stated that 
a detection rate of 0.1 flies/trap/day should be used as the trigger 
for bait spray in place of the proposed 0.4 flies/trap/day.
    We are not making any change in response to this comment. B. 
dorsalis is known to exist in Hawaii's agricultural areas, and the 
purpose of the trapping requirement is only to demonstrate a low level 
of prevalence in the immediate vicinity of the Sharwil orchards. The 
suggested trapping rate of 0.1 flies/trap/day (based on the minimum of 
2 traps we proposed to require for small orchards) would trigger action 
if 2 or more flies are caught in a week. This trigger level is more 
suitable to pest free areas than to low prevalence areas. We believe 
the proposed trigger of 0.4 flies/trap/day, which equates to 6 flies/
week for small orchards, is a more realistic and practical trigger. The 
Sharwil avocado is considered an extremely poor host to B. dorsalis, 
and demonstrating that places of production have a low prevalence of B. 
dorsalis is an effective mitigation.
    This commenter also suggested that Mediterranean fruit fly (Medfly) 
population size should also be monitored through trapping, with the 
same bait spray triggers in place as for B. dorsalis. We are not making 
any change based on this comment. As noted in the proposed rule and the 
pest risk assessment, Sharwil avocado is not a host for Medfly and 
movement of Sharwil avocados is not a pathway for introduction of 
Medfly. Therefore, we have determined that restrictions associated with 
Medfly in this case are not necessary.
    Another commenter stated that, in addition to trapping and bait 
spray requirements for orchards, these requirements should also apply 
to surrounding buffer areas outside the orchard. The commenter also 
stated that, if trapping triggers a bait spray response, shipping from 
the orchard should be discontinued for 30 days and resume only after 
bait spray completion and subsequent negative trapping results.
    We are not making changes in response to these comments for the 
following reasons. Buffer zones are necessary in cases where articles 
are grown in a pest-free area, or when

[[Page 56130]]

articles are a good host to a pest prevalent in the area (such as late-
season citrus grown in areas infested with Caribbean fruit fly). 
Neither of these conditions applies in the case of Hawaii Sharwil 
avocados. Establishing buffer zones would also be impractical because 
many Sharwil orchards are small properties where the growers do not own 
the immediately surrounding land. With regard to actions to be taken 
when trapping results exceed the threshold, the proposal deliberately 
provided APHIS with discretion in this matter in Sec.  318.13-20(c)(2), 
which states ``If B. dorsalis is detected by the trapping at an 
actionable rate as specified in the compliance agreement, control 
actions required by the compliance agreement or ordered by an inspector 
must be taken.'' This would allow for a variety of responses depending 
on the situation at the particular orchard, including such actions as 
increased trapping or increasing the size of the biometric sample of 
cut and inspected fruit. If infested fruit are ever found, shipping 
from that orchard would be suspended not just for 30 days, but until 
APHIS conducts an investigation and appropriate remedial actions have 
been implemented.

Movement of Avocados From Place of Production to Packinghouse

    One commenter expressed concern that the proposed requirement that 
avocados ``must be safeguarded by an insect-proof screen or plastic 
tarpaulin while in transit to the packinghouse and while awaiting 
packing'' would not prevent infestation during that movement. Another 
commenter stated that the proposed requirement that avocados must be 
moved to a packinghouse within 12 hours of harvest allowed the avocados 
to sit in the harvest area for too long.
    A search of relevant data and journal articles revealed no instance 
where fruit awaiting packing was attacked and infested by fruit flies; 
however, APHIS is aware that this is a remote possibility, as evidenced 
by the proposed requirements. In response to these comments, we 
reviewed the practices in other relevant programs and are changing the 
allowed postharvest time period to 3 hours to be consistent with them. 
We are not changing the proposed requirement that avocados ``must be 
safeguarded by an insect-proof screen or plastic tarpaulin while in 
transit to the packinghouse and while awaiting packing,'' which is also 
the standard in the other programs and appears to be a clear and 
effective standard.

Fruit Box Labeling

    One commenter addressed the proposed labeling requirement, that 
fruit boxes must be marked ``Distribution limited to the following 
States: CO, CT, DE, DC, ID, IL, IN, IA, KS, KY, ME, MD, MA, MI, MN, MO, 
MT, NE, NH, NJ, NY, ND, OH, PA, RI, SD, UT, VT, VA, WA, WV, WI, and 
WY.'' He suggested that the marking should also state ``NOT FOR 
DISTRIBUTION TO [list of States that prohibit entry]'' to insure that 
the product is not moved into fruit fly habitat States such as Florida.
    APHIS believes that it would be redundant and possibly confusing to 
mark every box with a list of States where distribution is allowed and 
another list consisting of all remaining States. However, we agree that 
further emphasizing the importance of limited distribution may help 
with program implementation. Therefore, we have amended the relevant 
requirement in Sec.  318.13-20(e) to read: ``Fruit boxes must be 
clearly marked `Distribution limited to the following States: CO, CT, 
DE, DC, ID, IL, IN, IA, KS, KY, ME, MD, MA, MI, MN, MO, MT, NE, NH, NJ, 
NY, ND, OH, PA, RI, SD, UT, VT, VA, WA, WV, WI, and WY; DISTRIBUTION TO 
OTHER STATES PROHIBITED' and each consignment must be identified in 
accordance with the requirements of Sec.  318.13-3(g).''

Transit Shipments and Layovers

    Two commenters asked what the proposed rule would allow in terms of 
transit movement or layovers for shipments of Sharwil avocado to the 
mainland. For example, a plane carrying Sharwil avocados could stop in 
California first before making its way to Connecticut.
    APHIS agrees that such situations are not clearly addressed in the 
proposed rule. Therefore, we have amended the relevant requirement in 
Sec.  318.13-20(g) to read as follows: ``No Sharwil avocados moved 
under this program may be shipped to or distributed in locations in the 
continental United States other than Colorado, Connecticut, Delaware, 
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, 
Washington, West Virginia, Wisconsin, and Wyoming. If the means of 
conveyance carrying a shipment stops en route in any other State, the 
Sharwil avocados may not be unloaded in that State.''

Technical Corrections to Pest Risk Analysis

    We are making minor corrections to the pest risk assessment and 
risk management document that were suggested by commenters. In one case 
we are rewording a sentence that referred to water stress and 
nutritional deficiencies as factors in host status to clarify that the 
magnitude of these factors was not actually measured. We are also 
correcting an error in the citation to an article on systems approaches 
that supports the basis of the rule. These changes do not affect the 
proposed systems approach.

Comments Outside the Scope of the Proposal

    One commenter noted that the current regulations allow Sharwil 
avocados to be moved to the continental United States if they are 
subject to fumigation, or to combined fumigation and cold treatment. 
This commenter suggested that a cold treatment alone may be sufficient 
to eliminate pests of concern, suggested time-temperature combinations 
for such a treatment, and also suggested that heat shock pretreatment 
may improve fruit quality when such a treatment is used. APHIS did not 
make any changes in response to this comment because neither the 
proposed rule nor the requests that initiated it suggested allowing 
Sharwil avocados to be moved under such conditions, and we are not 
aware of industry interest in such movement.
    Two commenters suggested that the scope of the proposed rule be 
extended to apply to other thick-skinned varieties of avocado in 
addition to the Sharwil variety. We are taking no action on this 
comment because the request from the Hawaii Department of Agriculture 
that initiated this rule was specifically limited to Sharwil variety 
avocados.
    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.

Miscellaneous Changes

    We are also correcting two minor errors in Sec.  318.13-26, in 
which the word ``melon'' was omitted from the section heading and the 
Office of Management and Budget control number was omitted from the 
section.

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been determined to be not significant for the 
purposes of

[[Page 56131]]

Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities.
    This rule will allow the interstate movement of untreated Sharwil 
avocados from Hawaii into the continental United States if the avocados 
are produced in accordance with a systems approach to prevent the 
spread of B. dorsalis and other pests.
    The 2007 Census of Agriculture reported that there were a total of 
8,245 avocado farms in the United States, with about 76 percent in 
California, 13 percent in Hawaii, and 11 percent in Florida. Average 
gross receipts for California avocado producers for the 2007-08 season 
was about $52,700, compared to average receipts of about $12,700 for 
Florida's growers and about $750 for Hawaii's growers. The Small 
Business Administration's small-entity standard for avocado farms is 
annual receipts of not more than $750,000. While nearly all U.S. 
avocado operations are small entities, it is evident that there is 
significant variation among the three States in average farm size.
    We anticipate that Sharwil avocado consignments from Hawaii to the 
mainland will total about 180 metric tons per year, equivalent to about 
one-half of 1 percent of the U.S. supply of non-Hass avocados and to 
less than one-twentieth of 1 percent of the U.S. supply of all avocado 
varieties. They will be shipped between November and March, 
supplementing winter supplies.
    Hawaii avocado production is estimated at 1.0 million pounds for 
the 2008-09 season, and 660,000 pounds for the 2009-10 season. The 
decline appears to be associated with adverse weather conditions.
    Avocado production in the United States largely takes place in 
California, where nearly all of the fruit grown is of the small, dark-
colored, rough-skinned Hass variety. In Florida and Hawaii, varieties 
like the Sharwil, which is much larger and bright green in color, are 
predominant. Most avocado imports and exports by the United States are 
Hass. Given our limited understanding of the strength of consumers' 
preferences for the various avocado varieties (that is, their degree of 
substitutability), we consider potential effects of the rule for 
producers of non-Hass varieties as well as for all U.S. avocado 
farmers.
    While the rule should benefit Hawaii's avocado producers by 
allowing them to use a systems approach to mitigate pest risk, making 
the sale of Sharwil avocados to the continental United States more 
economically feasible, the quantity that is expected to be shipped 
would not significantly affect the mainland avocado market overall or 
the more limited market for non-Hass varieties. With imports providing 
one-third of the U.S. supply of non-Hass avocados and two-thirds of the 
U.S. supply of all avocados, any effects of the rule for U.S. mainland 
producers would be further muted. Moreover, the Sharwil avocados from 
Hawaii would be shipped between November and March, when there is 
increased reliance on foreign suppliers. Any market effects of the rule 
could be expected to be borne proportionately by avocados supplied from 
abroad during the winter months.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this final rule, which were 
filed under 0579-0403, have been submitted for approval to the Office 
of Management and Budget (OMB). When OMB notifies us of its decision, 
if approval is denied, we will publish a document in the Federal 
Register providing notice of what action we plan to take.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 851-2908.

Lists of Subjects in 7 CFR Part 318

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

    Accordingly, we are amending 7 CFR part 318 as follows:

PART 318--STATE OF HAWAII AND TERRITORIES QUARANTINE NOTICES

0
1. The authority citation for part 318 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.

0
2. A new Sec.  318.13-20 is added to read as follows:


Sec.  318.13-20  Sharwil avocados from Hawaii to the continental United 
States.

    Commercial shipments of Sharwil avocados may be moved interstate 
from Hawaii to the continental United States without treatment under 
the following conditions:
    (a) Registration. Persons wishing to move Sharwil avocados in 
accordance with this section must register the avocados' place of 
production and the packinghouse that packs the avocados. A registration 
form may be obtained from local APHIS offices in Hawaii. Persons 
registering places of production or packinghouses must agree to allow 
inspectors access to the places of production and packinghouses as 
necessary to monitor compliance with this section.
    (b) Grove sanitation. Avocado fruit that has fallen from the trees 
must be removed from each place of production at least once every 7 
days and in compliance with any schedule specified in the compliance 
agreement required in paragraph (h) of this section. Fallen avocado 
fruit may not be included in field containers of fruit brought to the 
packinghouse to be packed for interstate movement.
    (c) Trapping and orchard control. (1) Beginning at least 1 month 
before harvest, the place of production of the avocados must have a 
trapping system in place for B. dorsalis that complies with all 
conditions specified in the compliance agreement required in paragraph 
(h) of this section. APHIS-approved traps and APHIS-approved lures must 
be used, and the place of production or the packinghouse must retain, 
for at least 1 year, data regarding the number and location of the 
traps, as well as any fruit flies that have been caught, and make this 
information available to APHIS upon request.
    (2) If B. dorsalis is detected by the trapping at an actionable 
rate as specified in the compliance agreement,

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control actions required by the compliance agreement or ordered by an 
inspector must be taken.
    (d) Harvesting requirements. Avocados may only be harvested between 
November 1 and March 31. Avocados must be hard ripe fruit at the mature 
green stage with stems attached. Fruit must not indent with moderate 
finger pressure and no part of the fruit shall be soft. The fruit must 
be moved to a registered packinghouse within 3 hours of harvest or must 
be protected from fruit fly infestation until moved. The fruit must be 
safeguarded by an insect-proof screen or plastic tarpaulin while in 
transit to the packinghouse and while awaiting packing.
    (e) Packinghouse requirements. During the time registered 
packinghouses are in use for packing avocados for movement to the 
continental United States, the packinghouses may only accept avocados 
that are from registered places of production and that are produced in 
accordance with the requirements of this section and of the compliance 
agreement required in paragraph (h) of this section.
    (1) Avocados must be packed within 24 hours of harvest in an 
insect-exclusionary packinghouse. All openings to the outside of the 
packinghouse must be covered by screening with openings of not more 
than 1.6 mm or by some other barrier that prevents pests from entering.
    (2) Fruit must be packed in insect-proof packaging, or covered with 
insect-proof mesh or a plastic tarpaulin, for transport to the 
continental United States. These safeguards must remain intact until 
arrival in the continental United States.
    (3) Fruit boxes must be clearly marked ``Distribution limited to 
the following States: CO, CT, DE, DC, ID, IL, IN, IA, KS, KY, ME, MD, 
MA, MI, MN, MO, MT, NE, NH, NJ, NY, ND, OH, PA, RI, SD, UT, VT, VA, WA, 
WV, WI, and WY; DISTRIBUTION TO OTHER STATES PROHIBITED'' and each 
consignment must be identified in accordance with the requirements of 
Sec.  318.13-3(g).
    (f) Inspection. A biometric sample of a size determined by APHIS 
will be visually inspected for quarantine pests by an inspector, and a 
portion of the fruit will be cut open to detect internal pests, 
including B. dorsalis. If any quarantine pests are found, the entire 
consignment of avocados will be prohibited from interstate movement 
unless it is treated with an approved quarantine treatment monitored by 
APHIS. If any B. dorsalis are found, the entire consignment of avocados 
will be prohibited from interstate movement, and the place of 
production producing that fruit will be suspended from the interstate 
shipment program until APHIS conducts an investigation and appropriate 
remedial actions have been implemented.
    (g) Limited distribution. No Sharwil avocados moved under this 
program may be shipped to or distributed in locations in the 
continental United States other than Colorado, Connecticut, Delaware, 
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, 
Washington, West Virginia, Wisconsin, and Wyoming. If the means of 
conveyance carrying a shipment stops en route in any other State, the 
Sharwil avocados may not be unloaded in that State.
    (h) Compliance agreement. Persons wishing to move avocados in 
accordance with this section must sign a compliance agreement in 
accordance with Sec.  318.13-3(d) in which he or she agrees to comply 
with such conditions as may be required by the inspector in each 
specific case to prevent infestation.

(Approved by the Office of Management and Budget under control number 
0579-0403)

0
3. In Sec.  318.13-26, the section heading is revised and the OMB 
citation is added to the end of the section to read as follows:


Sec.  318.13-26  Breadfruit, jackfruit, fresh pods of cowpea, dragon 
fruit, mangosteen, melon, and moringa pods from Hawaii.

* * * * *
(Approved by the Office of Management and Budget under control 
number 0579-0331)

    Done in Washington, DC, this 5th day of September 2013.
Michael C. Gregoire,
 Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2013-22205 Filed 9-11-13; 8:45 am]
BILLING CODE 3410-34-P