[Federal Register Volume 81, Number 103 (Friday, May 27, 2016)]
[Rules and Regulations]
[Pages 33581-33588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12586]



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  Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules 
and Regulations  

[[Page 33581]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2014-0088]
RIN 0579-AE05


Mexican Hass Avocado Import Program

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: Commercial consignments of Hass avocado fruit are currently 
authorized entry into the continental United States, Hawaii, and Puerto 
Rico from the Mexican State of Michoac[aacute]n under a systems 
approach to mitigate against quarantine pests of concern. We are 
amending the regulations to allow the importation of fresh Hass avocado 
fruit into the continental United States, Hawaii, and Puerto Rico from 
all of Mexico, provided individual Mexican States meet the requirements 
set out in the regulations and the operational workplan. Initially, 
this action would only apply to the Mexican State of Jalisco. With the 
exception of a clarification of the language concerning when sealed, 
insect-proof containers would be required to be used in shipping and 
the removal of mandatory fruit cutting at land and maritime borders, 
the current systems approach will not change. The current systems 
approach, which includes requirements for orchard certification, 
traceback labeling, pre-harvest orchard surveys, orchard sanitation, 
post-harvest safeguards, fruit cutting and inspection at the 
packinghouse, port-of-arrival inspection, and clearance activities, 
will be required for importation of fresh Hass avocado fruit from all 
approved areas of Mexico. The fruit will also be required to be 
imported in commercial consignments and accompanied by a phytosanitary 
certificate issued by the national plant protection organization of 
Mexico with an additional declaration stating that the consignment was 
produced in accordance with the systems approach described in the 
operational workplan. This final rule will allow for the importation of 
fresh Hass avocado fruit from Mexico while continuing to provide 
protection against the introduction of plant pests into the continental 
United States, Hawaii, and Puerto Rico.

DATES: Effective June 27, 2016.

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

SUPPLEMENTARY INFORMATION:

Background

    Under the regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56 through 319.56-75), the Animal and Plant Health Inspection 
Service (APHIS) prohibits or restricts the importation of fruits and 
vegetables into the United States from certain parts of the world to 
prevent plant pests from being introduced into and spread within the 
United States. The current requirements for allowing importation of 
fresh Hass avocado fruit into the United States from Michoac[aacute]n, 
Mexico, are described in Sec.  319.56-30. No other Mexican States are 
currently allowed to export fresh Hass avocado fruit into the United 
States. Those current requirements include pest surveys and pest risk-
reducing practices, treatment, packinghouse procedures, inspection, and 
shipping procedures.
    On February 18, 2015, we published in the Federal Register (80 FR 
8561-8564, Docket No. APHIS-2014-0088) a proposed rule \1\ to amend the 
regulations to allow fresh Hass avocado fruit to be imported from all 
of Mexico into the continental United States, Hawaii, and Puerto Rico. 
Any Mexican State wishing to export fresh Hass avocado fruit to the 
continental United States, Hawaii, and Puerto Rico will be required to 
meet the requirements set out in the regulations for eligibility to 
ship fresh Hass avocado fruit into the continental United States, 
Hawaii, and Puerto Rico. Specifically, these requirements are found in 
Sec.  319.56-30(c) and include orchard certification, traceback 
labeling, pre-harvest orchard surveys, orchard sanitation, post-harvest 
safeguards, and fruit cutting and inspection at the packinghouse. Prior 
to shipments beginning from any Mexican States other than 
Michoac[aacute]n, APHIS will work with the national plant protection 
organization (NPPO) of Mexico to ensure that any other Mexican States 
that intend to export meet the requirements of Sec.  319.56-30(c).
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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-2014-0088.
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    Any changes to the review process for approving new Mexican States 
will be added to the operational workplan as mutually negotiated and 
agreed on between APHIS and the NPPO of Mexico. An operational workplan 
is an agreement between APHIS' Plant Protection and Quarantine program, 
officials of the NPPO of a foreign government, and, when necessary, 
foreign commercial entities, that specifies in detail the phytosanitary 
measures that will comply with our regulations governing the import or 
export of a specific commodity. Operational workplans apply only to the 
signatory parties and establish detailed procedures and guidance for 
the day-to-day operations of specific import/export programs. 
Operational workplans also establish how specific phytosanitary issues 
are dealt with in the exporting country and make clear who is 
responsible for dealing with those issues.
    In addition to the modifications to the current systems approach 
set out in the proposed rule, based on comments and our analysis, we 
are also changing the actions to be taken related to orchard pest 
detection requirements set forth in Sec.  319.56-30(e). Under the 
current systems approach, an orchard affected by a pest detection loses 
its export certification and avocado exports from that orchard are 
suspended until APHIS and the Mexican NPPO agree that the pest 
eradication measures taken by the affected orchard have been effective. 
We have found this remedial action to be overly stringent. In 
accordance with the commodity import evaluation document (CIED), we are 
revising paragraph (e) to state that loss of export certification and 
export suspension may occur. This change from the prior automatic,

[[Page 33582]]

definitive loss of export certification and export suspension, will 
allow APHIS the flexibility to determine the scope and nature of the 
pest detection in order to determine the best and most appropriate 
level of phytosanitary response required. Quarantine pests and their 
overall pest risk (as rated in the pest risk analysis (PRA)) will be 
listed in the operational workplan, along with the consequences of 
interception at the packinghouse, certified orchard, municipality, and 
port of entry.
    We solicited comments concerning our proposal for 60 days ending 
April 20, 2015. We received 34 comments by that date. They were from 
producers, trade associations, representatives of State and foreign 
governments, and individuals. Of those, 12 comments were supportive of 
APHIS' proposal and the remaining 22 were either supportive with 
additional points or opposed. The comments are discussed below by 
topic.

General Comments

    One commenter inquired how the proposed action would apply to the 
State of Alaska.
    Currently, continental United States is defined in Sec.  319.56-2 
of the regulations as ``The 48 contiguous States, Alaska, and the 
District of Columbia.'' The provisions of this rule therefore apply to 
Alaska.
    Another commenter said that harmful pesticides could harm both 
fresh Hass avocado fruit and avocado consumers.
    While the commenter did not provide any specific examples of 
pesticides of concern, any pesticide harmful to the fresh Hass avocado 
fruit itself would most likely produce effects visible to inspection 
either in Mexico or at the port of first arrival into the United 
States. As for the human health implications of pesticide usage, the 
U.S. Food and Drug Administration (FDA) samples and tests imported 
fruits and vegetables for pesticide residues. Yearly monitoring reports 
and information on the program may be found here: http://www.fda.gov/Food/FoodborneIllnessContaminants/Pesticides/UCM2006797.htm.
    Two commenters stated that APHIS should consider the effect that 
the importation of fresh Hass avocado fruit from distant regions of 
Mexico has on global climate change. The commenters said that both the 
carbon emissions generated by long-distance shipment as well as the 
precedent via the purchase availability of non-local produce should be 
assessed as part of the importation approval process.
    Another commenter said that the importation of fresh Hass avocado 
fruit from other regions in Mexico will affect the prices of avocados 
in the United States and, resultantly, affect consumer behavior. The 
commenter argued that the purchase price for fresh Hass avocados does 
not reflect the impact that the long distance shipping has on global 
climate change, and that an increased supply of fresh Hass avocado 
fruit from Mexico would lower the purchase price even further, allowing 
consumers to purchase greater quantities and thereby exacerbating the 
problem.
    APHIS' proposed action is the expansion of the importation program 
for fresh Hass avocado fruit from Mexico into the United States. The 
Country of Origin Labeling (COOL) law, which is administered by the 
U.S. Department of Agriculture's (USDA) Agricultural Marketing Service, 
requires retailers, such as full-time grocery stores, supermarkets, and 
club warehouse stores, to notify their customers with information 
regarding the source of certain food, including fruits and vegetables. 
Any fresh Hass avocado fruit imported from Mexico would be subject to 
such requirements, thus allowing consumers to make any origin-based 
purchasing choices they may wish.
    Another commenter observed that the proposed rule considers 
imported goods as foreign commerce until they reach the final consumer, 
thus preempting State and local laws.
    APHIS regulations in this part preempt those State and local laws 
that are inconsistent with the regulations, namely, while the fruit is 
in foreign commerce.

Comments on Alternatives to the Proposed Action

    One commenter stated that approval for the importation of fresh 
Hass avocado fruit should be made on a State-by-State basis. The 
commenter argued that this approach would allow local authorities to 
gain familiarity with the required phytosanitary measures and allow 
APHIS to thoroughly assess prospective exporters. The commenter 
concluded that such an approach would also allow domestic avocado 
producers to adjust to the increased supply.
    As stated in the proposed rule, we believe that Jalisco will be the 
first new Mexican State to meet the requirements set forth in this rule 
and therefore the first Mexican State apart from Michoac[aacute]n to be 
authorized to export fresh Hass avocado fruit to the continental United 
States, Hawaii, and Puerto Rico. Subsequent Mexican States would not 
necessarily be approved one at a time, but rather as each demonstrates 
its ability to meet the standards set out in the regulations. We are 
confident that we have the review and oversight capacity to approve 
requesting Mexican States on a simultaneous basis as needed.
    Currently, fresh Hass avocado fruit are required to be 
biometrically sampled and cut in the field, at the packinghouse, and by 
an inspector at the port of first arrival into the United States. We 
proposed to allow fruit to be cut at the discretion of the inspector. 
One commenter suggested that cutting the avocados would help monitor 
for illegal importation of narcotics and other illegal substances.
    Given the lack of quarantine pest interceptions in shipments of 
avocado fruit from Mexico at the ports of first arrival for the period 
from 1997 to 2014, we are amending the requirement in order to allow 
for operational flexibility. Inspections for narcotics in imported 
materials are also performed by U.S. Customs and Border Protection 
(CBP) inspectors.

Comments on the Pest List

    Specific pests of concern associated with fresh Hass avocado fruit 
for which mitigations are required are listed in paragraphs (c)(1)(ii), 
(c)(2)(i), and (e) of Sec.  319.56-30. They are:
     Conotrachelus aguacatae, a small avocado seed weevil;
     Conotrachelus perseae, a small avocado seed weevil;
     Copturus aguacatae, avocado stem weevil;
     Heilipus lauri, large avocado seed weevil; and
     Stenoma catenifer, avocado seed moth.
    We proposed removing these specific pests from the regulations. The 
pest list would instead be maintained in the operational workplan 
provided to APHIS for approval by the NPPO of Mexico.
    Additionally, based on the findings of the PRA, we proposed to add 
eight pests to the list of pests of concern to be maintained in the 
operational workplan. Those pests were:
     Avocado sunblotch viroid;
     Cryptaspasma perseana, a tortricid moth;
     Conotrachelus serpentinus, a weevil;
     Maconellicoccus hirsutus (Green), pink hibiscus mealybug;
     Pseudophilothrips perseae (Watson), a thrips;
     Scirtothrips aceri (Moulton), a thrips;
     Scirtothrips perseae Nakahara, a thrips; and
     Sphaceloma perseae Jenkins, avocado scab.

[[Page 33583]]

    Three commenters stated that these newly listed pests were not 
previously considered likely to follow the pathway of fresh Hass 
avocado fruit from Mexico. The commenters observed that the pests have 
never been intercepted or considered as pests of concern for which 
mitigations are required. The commenters observed that, as a signatory 
to the World Trade Organization's Agreement on Sanitary and 
Phytosanitary Measures (SPS Agreement), the United States has agreed 
that any prohibitions it places on the importation of fruits and 
vegetables will be based on scientific evidence related to 
phytosanitary measures and issues, and will not be maintained without 
sufficient scientific evidence and concluded that the addition of the 
eight pests is contrary to this agreement. The commenters said that 
these pests had not been previously designated as quarantine pests 
because they already occur in the United States and therefore, 
according to international standards, cannot be considered to be 
quarantine pests or pests of concern for which mitigations are required 
and concluded that avocado sunblotch viroid, Conotrachelus serpentinus, 
Scirtothrips aceri, Scirtothrips perseae, and Sphaceloma perseae should 
be removed as pests of concern for which regulatory action is required.
    Upon further consideration, we agree with the commenters' 
assessment regarding avocado sunblotch viroid, Conotrachelus 
serpentinus, and Sphaceloma perseae. These are non-actionable pests 
that already exist in certain areas of the United States, for which no 
domestic program exists. We also allow domestic shipments of 
susceptible species to travel interstate without restriction. Given 
that our import regulations cannot be more stringent than our domestic 
regulations, we have removed the pests from the pest list and adjusted 
the PRA accordingly.
    However, we disagree with the commenters' other points regarding, 
Scirtothrips aceri and Scirtothrips perseae. Scirtothrips aceri is 
considered actionable only for those shipments to Hawaii and/or Puerto 
Rico because that pest is not found in Hawaii and Puerto Rico. It is 
considered a non-actionable pest for shipments to the continental 
United States. Scirtothrips perseae was dismissed in previous PRAs 
developed by APHIS as a pest associated with plant parts other than 
avocado fruit or in rotting fruit on ground. However, the PRA developed 
in association with this rule \2\ cites more recent research indicating 
that avocado fruit is a host.
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    \2\ To view the PRA and other supporting documents, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0088.
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    The same commenters stated that thrips in general and 
Pseudophilothrips perseae in particular had already been examined by 
APHIS as part of a previous rulemaking and determined to be unlikely to 
be in the commercial import pathway because they are not generally 
associated with mature fruit or remain on mature, harvested fruit. The 
commenters concluded that regulating thrips does not seem to be 
supported by relevant science concerning the biology of these pests and 
the realities of the commercial packing process and requested that 
Pseudophilothrips perseae be removed from the pest list for fresh Hass 
avocado fruit from Mexico.
    As stated previously, recent research, which we consulted in 
preparing the PRA associated with this rule, indicates that fresh Hass 
avocado fruit is a potential host for the listed species of thrips. In 
addition, thrips of the families Phlaeothripidae and Thripidae have 
been intercepted with shipments of avocado fruit for consumption, both 
in commercial shipments and passenger baggage at U.S. ports of entry.
    The same commenters questioned the inclusion of Cryptaspasma 
perseana in the list of pests of concern, stating that the tests that 
supposedly proved the pest's association with avocado fruit on the tree 
were not performed outside of laboratory conditions. The commenters 
stated that forced infestation studies in the field, at varying 
altitudes and cultural conditions, should be conducted to support the 
conclusion that Cryptaspasma perseana is a pest of concern for fresh 
Hass avocado fruit from Mexico. The commenters concluded that listing 
this pest as a quarantine pest of commercially produced fresh Hass 
avocado fruit is premature.
    As indicated in the PRA, we determined that the likelihood of 
introduction for this species is negligible and that the mitigations 
already in place to provide phytosanitary protection against Stenoma 
catenifer are likely to also detect this species. However, the larvae 
of the two species can be easily confused and we therefore included 
Cryptaspasma perseana in the list of pests of concern in order to avoid 
any need for inspectors to distinguish between those larvae, 
misidentification of which could then lead to entry of Stenoma 
catenifer into the United States. The research cited by the commenters 
included the conclusion that it is more likely that Cryptaspasma 
perseana lays eggs in trees with the caveat that additional research is 
required. Without specific evidence that this species does not lay eggs 
only in trees or on fruit on the ground, no changes will be made at 
this time due to the potential damage caused by an infestation.
    Five commenters stated that Sphaceloma perseae is a very common 
cosmetic problem in Mexico as well as in other countries from which 
avocados are imported. The commenters observed that Sphaceloma perseae 
is present domestically, in both California and Florida. The commenters 
wanted to know why the proposed phytosanitary measures included 
mitigation against Sphaceloma perseae.
    As stated previously, Sphaceloma perseae has been removed from the 
list of pests of concern since it already exists in certain areas of 
the United States, domestic shipments of susceptible species are 
permitted travel interstate without restriction, and our import 
regulations cannot be more stringent than our domestic regulations.

Comments on Pest Risk

    Two commenters said that, as a result of the potential harm these 
pests represent, the importation of fruits and vegetables should be 
limited and tightly controlled. The commenters claimed that, due to the 
eventuality of human error, compliance with the required measures will 
not be complete and an exponential increase in the importation level of 
fresh Hass avocado fruit from Mexico therefore represents an 
exponential phytosanitary risk.
    Each organism carries its own risk of following the pathway, and 
APHIS has been very successful in assessing and mitigating the risks 
associated with new market access. We have 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. Our pest risk analysis process will identify and assign 
appropriate and effective mitigations for any identified pest risks. 
If, based on our PRA, we conclude that the available mitigation 
measures against identified pest risks are insufficient to provide an 
appropriate level of protection, then we will not authorize the 
importation of the particular commodity.
    Another commenter said that the studies cited in the proposal and 
in the PRA did not indicate whether all

[[Page 33584]]

Mexican States share the same pests as Michoac[aacute]n. The commenter 
questioned the conclusion of the CIED, saying that the import 
requirements have only been shown to mitigate the phytosanitary risk 
posed by fresh Hass avocado fruit from Michoac[aacute]n, Mexico, and 
does not take into account any unique pest situations that may exist in 
other Mexican States.
    The avocado pests assessed by the PRA were those present in all of 
Mexico. Pests associated with fresh Hass avocado fruit with a 
likelihood of introduction of medium or greater were evaluated. We then 
examined existing mitigation requirements for fresh Hass avocados from 
Michoac[aacute]n, Mexico to see if they would provide mitigation 
against pests from all of Mexico and found that they would provide 
adequate protection against the importation of the pests of concern.
    The same commenter and a second commenter suggested that those 
Mexican States that cannot meet the import requirements may trade with 
Mexican States that can. As such, the commenters argued that avocados 
from unapproved Mexican States could potentially enter the chain of 
export and thereby introduce pests into the United States.
    Paragraph 319.56-30(c)(2)(iv) requires that harvested Hass avocado 
fruit be placed in field boxes or containers of field boxes that are 
marked to show the official registration number of the orchard from 
which they were harvested. Paragraph 319.56-30(c)(3)(v) requires that 
the identity of the fresh Hass avocado fruit must be maintained from 
field boxes or containers to the containers in which they will be 
shipped so the avocados can be traced back to the orchard in which they 
were grown if pests are found at the packinghouse or the port of first 
arrival in the United States. These requirements are intended to 
prevent inclusion of fruit from unauthorized orchards or areas in 
shipments intended for export to the continental United States, Hawaii, 
and Puerto Rico.
    One commenter requested further information regarding population 
densities and any required mitigation measures for Conotrachelus 
aguacatae and Heilipus lauri from areas in Mexico not currently 
approved to export fresh Hass avocado fruit.
    A second commenter said that APHIS should gather and evaluate 
current pest population information and mitigation measures being 
implemented for the pests of concern in other production regions in 
Mexico prior to importation of fresh Hass avocado fruit into the 
continental United States, Hawaii, and Puerto Rico from those regions.
    Currently, all municipalities within Michoac[aacute]n are required 
to be surveyed twice a year and found free of Conotrachelus aguacatae, 
Conotrachelus perseae, Heilipus lauri, Stenoma catenifer, which are the 
pests capable of inflicting the most damage if they were allowed to 
become established. APHIS and the Mexican NPPO have agreed that before 
another Mexican State is eligible to participate in the export program, 
at least 2 years of survey data establishing that the avocado plant 
pests and diseases of concern are not present in that region will be 
provided to APHIS. Mitigation measures for the pests of concern in the 
remainder of Mexico will be the same as those currently required for 
fresh Hass avocados from Michoac[aacute]n, Mexico. Producers will have 
to demonstrate municipality and orchard freedom from these and other 
major pests of concern. Shipment of fresh Hass avocado fruit to the 
continental United States, Hawaii, and Puerto Rico from any additional 
Mexican areas will not be approved until APHIS and the Mexican NPPO 
have agreed that those new areas have met the requirements of the 
systems approach.
    Another commenter said that the required pest control measures were 
not specified in the proposed rule. The commenter asked if those 
measures will affect the quality of the fresh Hass avocado fruit or 
represent a threat to consumer health.
    As stated in the CIED that accompanied the proposed rule, if any of 
the avocado pests of concern are detected during the semiannual pest 
surveys in a packinghouse, certified orchard or areas outside of 
certified orchards, or via other monitoring or inspection activity in 
the municipality, the Mexican NPPO must immediately initiate an 
investigation and take measures to isolate and eradicate the pests. The 
Mexican NPPO must also provide APHIS with information regarding the 
circumstances of the infestation and the pest risk mitigation measures 
taken in response. In accordance with the operational workplan, 
depending upon the nature of the pest detection, affected orchards may 
lose their export certification, and avocado exports from that orchard 
may be suspended until APHIS and the Mexican NPPO agree that the pest 
eradication measures taken by the affected orchard have been effective. 
As for the human health implications of pesticide usage, as stated 
previously, the FDA samples and tests imported fruits and vegetables 
for pesticide residues that may be harmful to humans. Yearly monitoring 
reports and information on the program may be found here: http://www.fda.gov/Food/FoodborneIllnessContaminants/Pesticides/UCM2006797.htm.

Comments on the Systems Approach

    With the exception of a clarification of the language in Sec.  
319.56-30, paragraph (c)(3)(vii) concerning when sealed, insect-proof 
containers would be required to be used in shipping of the fruit and 
the removal of mandatory fruit cutting at land and maritime borders 
found in Sec.  319.56-30(f), we did not propose any changes to the 
systems approach required for the importation of fresh Hass avocado 
fruit from Michoac[aacute]n, Mexico, which will be required for the 
importation of fresh Hass avocado fruit from other approved areas in 
Mexico. Specifically, these requirements are found in Sec.  319.56-
30(c) and include orchard certification, traceback labeling, pre-
harvest orchard surveys, orchard sanitation, post-harvest safeguards, 
and fruit cutting and inspection at the packinghouse.
    One commenter stated that discretionary fruit cutting will rely 
more heavily on inspector expertise to determine whether to perform 
samplings. The commenter wanted to know whether APHIS or CBP will 
provide inspectors with training to decide when it is appropriate to 
perform a fruit cutting on a shipment of fresh Hass avocado fruit from 
Mexico. If so, the commenter wanted to know how this training would 
differ from current inspector training.
    The operational workplan requires any shipment that arrives with a 
broken seal to be inspected, which would include fruit cutting. 
Shipments may also be subject to random sampling as dictated by local 
CBP port procedures. We are confident that existing inspector training 
will continue to provide APHIS and CBP inspectors with the necessary 
expertise.
    APHIS is removing specific pest names from the regulations and 
replacing them with references to the ``avocado pests listed in the 
operational workplan.'' The same commenter asked what criteria will be 
considered in adding pests to or removing pests from the list in the 
operational workplan, whether proposed changes would be subject to 
public review and comment, and whether the operational workplan would 
be available to the public for review and, if so, where it would be 
located.
    Generally speaking, we do not list every possible quarantine pest 
associated with a particular commodity in the regulations, as this 
would require a lengthy and cumbersome rulemaking

[[Page 33585]]

process every time the pest list changed due to factors such as a new 
pest discovery or emerging research involving a given pest. The 
regulations governing the importation of fresh Hass avocado fruit from 
Michoac[aacute]n, Mexico, did contain the specific names of all pests 
of concern at the time, however that inclusion was not intended to 
serve as and was not an all-inclusive pest list. This is consistent 
with and is in line with our most recent policies to move specifics 
such as pest names from the regulations to the operational workplan, 
which provides a greater degree of flexibility in the face of any 
potential changes to the pest situation in any country. Changes to the 
list of quarantine pests in the operational workplan governing the 
importation of fresh Hass avocado fruit from Mexico will require a 
bilateral agreement between APHIS and the Mexican NPPO and will not 
involve publication of a Federal Register notice with regard to the 
updated pests. Operational workplans are and will continue to be 
available upon request.
    Another commenter said that mandatory sampling and cutting 
requirements at U.S. ports of entry should be maintained for a period 
of 2 years following the acceptance of fresh Hass Avocado fruit from 
any new Mexican State or production region in order to fully assess the 
efficacy of the systems approach in those areas.
    Since 2004, approximately 181,000 consignments totaling over 3.2 
million metric tons of fresh Hass avocado fruit from Michoac[aacute]n, 
Mexico, have been imported into the United States. None of the pests 
listed in the Mexican Hass avocado PRAs (1996, 2004, and 2014) as 
following the pathway of fresh Hass avocado fruit have ever been 
intercepted in any commercial consignment since Mexico was granted 
market access in 1997. This record demonstrates the efficacy of the 
required phytosanitary measures, which are largely identical to those 
that will be required to be met by any Mexican States approved after 
publication of this rule, particularly as the pests of concern for 
fresh Hass avocado fruit throughout Mexico are identical.
    One commenter recommended that a number of provisions specified in 
the 2011 operational workplan be included in the regulations. The 
commenter stated that it is not clear whether the conditions of the 
operational workplan would be required by the regulations. Finally, the 
commenter said that certain provisions in the 2011 operational workplan 
related to orchards and packinghouses should be modified.
    As stated previously, APHIS no longer includes highly specific, 
prescriptive phytosanitary measures in the regulations, but rather we 
utilize broader requirements. Operational workplans establish how 
specific phytosanitary issues are dealt with in the exporting country 
and make clear who is responsible for dealing with those issues. 
Paragraph 319.56-30(d) requires that all consignments of fresh Hass 
avocado fruit from Mexico be accompanied by a phytosanitary certificate 
issued by the Mexican NPPO with an additional declaration certifying 
that the conditions specified in the regulations have been met. The 
commenter's suggestions regarding amendments to the 2011 operational 
workplan are outside the scope of the current regulation as the 
contents of the operational workplan are agreed upon by APHIS and the 
NPPO of the exporting country.

Comments on Program Oversight

    Two commenters said that APHIS is dependent on local authorities in 
Mexico to enforce the requirements set forth in the regulations and the 
operational workplan. The commenters cited the Corruption Perceptions 
Index issued by Transparency International \3\ as proof that corruption 
within Mexico will most certainly occur in connection with the export 
of fresh Hass avocado fruit.
---------------------------------------------------------------------------

    \3\ The Corruption Perceptions Index may be viewed here: http://www.transparency.org/cpi2014/results.
---------------------------------------------------------------------------

    Like the United States, Mexico is a signatory to the SPS Agreement. 
As such, it has agreed to respect the phytosanitary measures the United 
States imposes on the importation of plants and plant products from 
Mexico when the United States demonstrates the need to impose these 
measures in order to protect plant health within the United States. The 
CIED that accompanied the proposed rule provided evidence of such a 
need. That being said, as we mentioned in the proposed rule, APHIS will 
monitor and audit Mexico's implementation of the systems approach for 
the importation of fresh Hass avocado fruit into the continental United 
States, Hawaii, and Puerto Rico. If we determine that the systems 
approach has not been fully implemented or maintained, we will take 
appropriate remedial action to ensure that the importation of fresh 
Hass avocado fruit from all of Mexico does not result in the 
dissemination of plant pests within the United States.
    One commenter suggested that APHIS require at least 2 years of 
survey data establishing that the avocado plant pests and diseases of 
concern are not present in any potential additional exporting Mexican 
States or areas. The commenter also suggested that potential additional 
exporting States or areas demonstrate their ability to successfully 
adhere to the requirements set out in the regulations via exporting 
fresh Hass avocado fruit to countries other than the United States for 
a period of at least 2 years under the those requirements.
    We will be requiring 2 years of survey data for the pests of 
concern from each Mexican area seeking approval to export fresh Hass 
avocado fruit to the continental United States, Hawaii, and Puerto 
Rico. The commenter's point about exports of fresh Hass avocado fruit 
to countries other than the United States under U.S. requirements is 
not feasible. Every country sets its own requirements for importation 
of a given commodity and exercises a level of phytosanitary protection 
at its borders that it deems appropriate. APHIS makes its phytosanitary 
decisions based on our own research, experience, and expertise.
    Two commenters said that adequate oversight of the current program 
is only possible because the export area was confined to the State of 
Michoac[aacute]n, and therefore easy to oversee. The commenters claimed 
that the entire country of Mexico will prove almost impossible to 
monitor for compliance with the regulations. The commenter concluded 
that this will be magnified by the fact that the whole of Mexico will 
be allowed to export fresh Hass avocado fruit upon the effective date 
of this final rule.
    As stated in the proposed rule, the whole of Mexico will not 
immediately begin shipment of fresh Hass avocado fruit to the 
continental United States, Hawaii, and Puerto Rico. Rather, Mexican 
States will likely be approved piecemeal as they meet the requirements 
established in the regulations. Currently, only the State of Jalisco is 
prepared to meet the requirements set out in the regulations for 
eligibility to ship fresh Hass avocado fruit into the continental 
United States, Hawaii, and Puerto Rico. APHIS will monitor and audit 
Mexico's implementation of the systems approach for the importation of 
fresh Hass avocado fruit from all of Mexico into the continental United 
States, Hawaii, and Puerto Rico. If we determine that the systems 
approach has not been fully implemented or maintained, we will take 
appropriate remedial action to ensure that the importation of fresh 
avocado fruit from Mexico does not result in the dissemination of plant 
pests within the United States. In

[[Page 33586]]

addition, APHIS has reviewed its resources and believes it has adequate 
coverage across the United States to ensure compliance with its 
regulations, including an expansion of the Mexican avocado import 
program, as established by this rule. APHIS has Pre-clearance and 
Offshore Program staff in Mexico monitoring many export programs, 
including the avocado program.

Comments on the Economic Analysis

    We prepared an initial regulatory flexibility analysis (IRFA) in 
connection with the proposed rule regarding the economic effects of the 
rule on small entities. We invited comments on any potential economic 
effects and received a number of comments.
    In the initial regulatory flexibility analysis we stated that, ``we 
do not currently have all the data necessary for a comprehensive 
analysis of the effects of this proposed rule.'' One commenter said 
that, since we do not know what the precise economic impact will be, 
the economic risk is unnecessary. The commenter argued that we do not 
know if the potential influx of fresh Hass avocado fruit from all of 
Mexico will prove disastrous for domestic growers.
    While it is true that precise, future price impacts of this rule 
are not known, the additional quantity of fresh Hass avocado fruit that 
will be imported from Mexico as a result of this rule is expected to be 
relatively small; price effects are therefore also likely to be small. 
Michoac[aacute]n, Mexico, from which all fresh Hass avocado fruit 
imports from Mexico currently originate, produces 85 percent of 
Mexico's fresh Hass avocado fruit. Jalisco, the only other Mexican 
State prepared to meet the phytosanitary requirements necessary to 
export fresh Hass avocado fruit to the United States, produces 3 
percent of Mexico's fresh Hass avocado fruit, and only a fraction of 
Jalisco's avocado production volume is expected to meet the rigorous 
phytosanitary requirements necessary for export to the United States.
    Another commenter stated that the initial regulatory flexibility 
analysis is based on the expected impact of a ``fraction'' of the 
90,000 pounds of fresh Hass avocado fruit available for immediate 
yearly importation from the State of Jalisco under the new rule. The 
commenter claimed that this assumption is unrealistic given that future 
approved Mexican States are likely to increase that yearly amount.
    Our economic analysis is near term, not long term. Even so, future 
effects of the rule will be limited since, as stated previously, only 
15 percent of Mexico's fresh Hass avocado fruit is grown outside of the 
State of Michoac[aacute]n (3 percent in Jalisco). Only a fraction of 
that 15 percent (3 percent in Jalisco) is expected to satisfy U.S. 
phytosanitary import requirements.
    The same commenter observed that the analysis assumes that the 
exponential increase for the demand of avocados in the United States 
seen over the last decade will continue indefinitely. The commenter 
found that assumption unlikely and noted that there are indicators that 
the rate of increased demand for avocados in the United States has 
begun, and will continue, to level off.
    Although future growth in the U.S. demand for avocado may not match 
that experienced during the past decade, the factors that contributed 
to the recent history of expanded consumption--a growing U.S. 
population generally and a growing Hispanic share of the population, 
greater awareness of the avocado's health benefits, restaurants 
incorporating avocados into their menu offerings, a year-round supply 
of affordable, fresh Hass avocado fruit, and increased disposable 
income remain the same. We are unaware of any indications that the 
consumer market for fresh Hass avocado fruit has plateaued and the 
commenter did not provide a reference for that statement.
    Several commenters said that, as pointed out in the IFRA, most of 
the 7,495 U.S. avocado growers are small entities and that these 
domestic growers produce roughly 230,000 metric tons of fresh Hass 
avocado fruit each year at a cost of $1.09 per pound, whereas the 
United States imports 462,000 metric tons each year from the Mexican 
State of Michoac[aacute]n at a cost of $0.87 per pound. The commenters 
stated that a slowing in the increase of U.S. demand for avocados or an 
increase in the availability of cheaper imports would reduce the 
ability of domestic growers to compete in the avocado market, and both 
occurring at the same time would devastate domestic growers. The 
commenters concluded that this devastation would be experienced most 
acutely by small entities, which are generally less able to cut costs 
than larger growers and asked why we did not consider such losses as a 
significant economic impact on small entities.
    As stated previously, the scale of additional imports makes it 
highly unlikely that any entities, large or small, will suffer 
significant economic hardship.
    Two commenters observed that, according to the USDA Economic 
Research Service, imports accounted for 71.1 percent of the domestic 
fresh avocado consumed in the United States during 2011, down from 72.4 
percent the previous year. The commenters argued that producers in 
California, Florida, Hawaii, and Puerto Rico could benefit via 
increased production if those import levels were curtailed, given that 
California, Florida, Hawaii, and Puerto Rico are areas where year-round 
avocado production may occur.
    APHIS' primary responsibility with regard to international import 
trade is to identify and manage the phytosanitary risks associated with 
importing commodities. When we determine that the risk associated with 
the importation of a commodity can be successfully mitigated, it is our 
responsibility under the trade agreements to which we are signatory to 
make provisions for the importation of that commodity.

Comments on General Economic Effects

    While specific comments on the initial regulatory flexibility 
analysis are addressed above and in the final regulatory flexibility 
analysis, we received a number of comments concerning the overall 
economic effect of the rule as it relates to U.S. trade policies 
concerning Mexico.
    Three commenters argued that allowing for the importation of fresh 
Hass avocado fruit from Mexico would lead to American job loss. The 
commenters said that inexpensive imports will drive down prices, 
decreasing profits for domestic producers, and thereby triggering 
layoffs. The commenters stated that domestic avocado production is 
already subject to such limiting factors as high labor costs and 
droughts and that allowing for importation of fresh Hass avocado fruit 
from all of Mexico will decrease domestic profits.
    Another commenter asked how prices for fresh Hass avocados could be 
regulated in order to allow domestic producers to fairly compete and 
thrive given the high volume of Mexican production.
    Such actions would be beyond the scope of APHIS' statutory 
authority under the Plant Protection Act, whereby APHIS may prohibit 
the importation of a fruit or vegetable into the United States only if 
we determine that the prohibition is necessary in order to prevent the 
introduction or dissemination of a plant pest or noxious weed within 
the United States. Additionally, as a signatory to the SPS Agreement, 
the United States has agreed that any prohibitions it places on the 
importation of fruits and vegetables will be based on scientific 
evidence related to phytosanitary measures and issues, and will not be 
maintained without sufficient scientific evidence. The price

[[Page 33587]]

regulation requested by the second commenter would not be in keeping 
with this agreement.
    We are making two miscellaneous changes to the regulations not 
mentioned in the proposed rule. Currently, paragraph (c)(2)(iv) 
requires that harvested fresh Hass avocado fruit be moved from the 
orchard to the packinghouse within 3 hours of harvest or they must be 
protected from fruit fly infestation until moved. Given that some 
production areas are more than 3 hours away from the nearest approved 
packinghouse, we are altering the language to state that the fresh Hass 
avocado fruit must be moved to the packinghouse the same day as they 
are harvested. Given that there have been no interceptions of fruit 
flies in connection with the current fresh Hass avocado export program 
and the current PRA states that uninjured, commercially produced fresh 
Hass avocado fruit do not serve as hosts for fruit flies, we are 
confident that this change will not impact the phytosanitary efficacy 
of the program.
    We also specify in the regulations that pest surveys must be 
performed at least semiannually. References to this requirement are 
found in Sec. Sec.  319.56-30(c)(1)(ii), 319.56-30(c)(2)(i), and 
319.56-30(e). We are amending this requirement slightly to specify that 
semiannual surveys must be conducted for at least 5 years. Thereafter, 
only one survey per year will be required provided no pests of concern 
are discovered during the 5 years of semiannual surveys. We are adding 
a time limit for the semiannual survey requirement based on the lack of 
pest discovery and interceptions associated with the importation of 
fresh Hass avocado fruit from Michoac[aacute]n, Mexico.
    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.

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.
    In accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this rule on small entities. Copies of the full 
analysis are available on the Regulations.gov Web site (see footnote 1 
in this document for a link to Regulations.gov) or by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT.
    Mexican officials have requested that additional States in Mexico 
be allowed to export fresh Hass avocado fruit to the United States 
under the same systems approach that currently applies to fresh Hass 
avocado fruit from approved municipalities in Michoac[aacute]n. Imports 
of fresh Hass avocado fruit from Mexico into the United States have 
increased significantly over the years, from 311 million pounds in 2003 
to over 1.1 billion pounds in 2013. A growing U.S. population and 
growing Hispanic share of the population, greater awareness of the 
avocado's health benefits, year-round availability of affordable fresh 
Hass avocado fruit, and greater disposable income have contributed to 
the increased demand.
    The dramatic increase in demand over the past decade has enabled 
domestic producers to maintain production levels despite the large 
increase in fresh Hass avocado fruit imports. Annual U.S. avocado 
production, 2002/03 to 2011/12, averaged 423 million pounds, of which 
California accounted for 87.5 percent or over 375 million pounds. 
Nearly all of California's production is of the Hass variety.
    Potential economic effects of this rule are estimated using a 
partial equilibrium model of the U.S. fresh Hass avocado fruit sector. 
There are 2,653 hectares in Jalisco that are registered in Mexico's 
SRRC (Contamination Risk Reduction System) as qualified to export fresh 
Hass avocado fruit to the United States. Avocados are expected to be 
shipped from one-half of these orchards (1,326.5 hectares) in the first 
year that this rule is implemented. Assuming an average yield of 10 
metric tons (MT) per hectare, we expect fresh Hass avocado fruit 
imports from Jalisco to total approximately 13,265 MT (29 million 
pounds) in the first year, and between 13,265 and 26,530 MT (29 to 58 
million pounds) in subsequent years.
    If the United States were to import between 13,265 and 26,530 MT of 
fresh Hass avocado fruit from Jalisco and there were no displacement of 
avocado imports from other sources, the decline in avocado prices may 
range from 1.7 percent to 3 percent. Consumer welfare gains of about 
$24 million to $45 million would outweigh producer welfare losses of 
about $6 million to $11 million, resulting in net welfare gains of 
about $18 million to $34 million.
    More reasonably, partial import displacement would occur, and price 
and welfare effects would be proportional to the net increase in U.S. 
fresh Hass avocado imports. If 20 percent of the 13,625 to 26,530 MT of 
fresh Hass avocado fruit imported from Jalisco were to displace avocado 
imports from elsewhere (e.g., Chile), including the State of 
Michoac[aacute]n in Mexico, then the price decline would be about 1.3 
to 2.5 percent; consumer welfare gains of $19 million to $36 million 
and producer welfare losses of $5 million to $9 million yield net 
welfare benefits of $14 million to $27 million.
    While APHIS does not have information on the size distribution of 
U.S. avocado producers, according to the Census of Agriculture, there 
were a total of 93,020 Fruit and Tree Nut farms in the United States in 
2012. The average value of agricultural products sold by these farms 
was less than $274,000, which is well below the Small Business 
Administration's small-entity standard of $750,000. It is reasonable to 
assume that most avocado farms qualify as small entities. Between 2002 
and 2012, the number of avocado operations in California grew by 
approximately 17 percent, from 4,801 to 5,602 operations.

Executive Order 12988

    This final rule allows fresh Hass avocado fruit to be imported into 
the United States from all of Mexico. State and local laws and 
regulations regarding fresh Hass avocado fruit imported under this rule 
will be preempted while the fruit is in foreign commerce. Fresh fruits 
and vegetables 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.

Paperwork Reduction Act

    This final rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 319

    Coffee, Cotton, Fruits, 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

0
1. The authority citation for part 319 continues to read as follows:


[[Page 33588]]


    Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 
and 136a; 7 CFR 2.22, 2.80, and 371.3.


0
2. Section 319.56-30 is amended as follows:
0
a. By revising the section heading.
0
b. In the introductory text, by removing the words ``Michoacan, 
Mexico,'' and adding the word ``Mexico'' in their place.
0
c. By revising paragraph (c), introductory text.
0
d. In paragraph (c)(1)(i), by removing the words ``bilateral work 
plan'' and adding the words ``operational workplan'' in their place.
0
e. By revising paragraph (c)(1)(ii).
0
f. In paragraph (c)(2), introductory text, by removing the words 
``annual work plan'' and adding the words ``operational workplan'' in 
their place.
0
g. By revising paragraph (c)(2)(i).
0
h. In paragraph (c)(2)(iv), by removing the words ``within 3 hours'' 
and adding the words ``the day'' in their place.
0
i. In paragraph (c)(3), introductory text, by removing the words 
``annual work plan'' and adding the words ``operational workplan'' in 
their place.
0
j. By revising paragraph (c)(3)(vii).
0
k. In paragraph (c)(3)(viii), by adding two sentences at the end of the 
paragraph.
0
l. By revising paragraph (e).
0
m. In paragraph (f), by removing the word ``will'' and adding the word 
``may'' in its place.
    The revisions and additions read as follows:


Sec.  319.56-30  Hass avocados from Mexico.

* * * * *
    (c) Safeguards in Mexico. The avocados must have been grown in an 
orchard located in a municipality that meets the requirements of 
paragraph (c)(1) of this section. The orchard in which the avocados are 
grown must meet the requirements of paragraph (c)(2) of this section. 
The avocados must be packed for export to the United States in a 
packinghouse that meets the requirements of paragraph (c)(3) of this 
section. The Mexican national plant protection organization (NPPO) must 
provide an annual operational workplan to APHIS that details the 
activities that the Mexican NPPO will, subject to APHIS' approval of 
the workplan, carry out to meet the requirements of this section. APHIS 
will be directly involved with the Mexican NPPO in the monitoring and 
supervision of those activities. The personnel conducting the trapping 
and pest surveys must be hired, trained, and supervised by the Mexican 
NPPO or by the State delegate of the Mexican NPPO.
    (1) * * *
    (ii) The municipality must be surveyed at least semiannually (once 
during the wet season and once during the dry season) for a period of 
at least 5 years and found to be free from the avocado pests listed in 
the operational workplan. Thereafter, the municipality must be surveyed 
at least once per year provided the municipality remains pest free.
    (2) * * *
    (i) The orchard and all contiguous orchards and properties must be 
surveyed semiannually for a period of at least 5 years and found to be 
free from the avocado pests listed in the operational workplan. 
Thereafter, the orchard and all contiguous orchards and properties must 
be surveyed at least once per year provided the orchard and all 
contiguous orchards and properties remain pest free.
* * * * *
    (3) * * *
    (vii) The avocados must be packed in clean, new boxes or bulk 
shipping bins, or in clean plastic reusable crates. The boxes, bins, or 
crates must be clearly marked with the identity of the grower, 
packinghouse, and exporter.
    (viii) * * * If, at the port of export for consignments shipped by 
air or sea, the packed avocados are transferred into a non-refrigerated 
container, the boxes, bins, or crates must be covered with a lid, 
insect-proof mesh, or other material to protect the avocados from 
fruit-fly infestation prior to leaving the packinghouse. Those 
safeguards must be intact at the time the consignment arrives in the 
United States.
* * * * *
    (e) Pest detection. If any of the avocado pests listed in the 
operational workplan are detected during the pest surveys in a 
packinghouse, certified orchard or areas outside of certified orchards, 
or other monitoring or inspection activity in the municipality, the 
Mexican NPPO must immediately initiate an investigation and take 
measures to isolate and eradicate the pests. The Mexican NPPO must also 
provide APHIS with information regarding the circumstances of the 
infestation and the pest risk mitigation measures taken. In accordance 
with the operational workplan, depending upon the nature of the pest 
detection, affected orchards may lose their export certification, and 
avocado exports from that orchard may be suspended until APHIS and the 
Mexican NPPO agree that the pest eradication measures taken have been 
effective.
* * * * *

    Done in Washington, DC, this 23rd day of May 2016.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2016-12586 Filed 5-26-16; 8:45 am]
BILLING CODE 3410-34-P