[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31893]
[Federal Register: December 28, 1994]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 318
[Docket No. 93-088-2]
Avocados From Hawaii
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the regulations governing the interstate
movement of Hawaiian fruits and vegetables to allow avocados to be
moved from Hawaii into Alaska, accompanied by a limited permit and
subject to certain conditions. This action is warranted because the
climatic conditions in Alaska ensure that pests of avocados will not
present a threat to agriculture in that State. This action relieves
some restrictions on the interstate movement of avocados from Hawaii
without presenting a significant risk of introducing injurious insects
into the United States. We are also amending the regulations to clarify
that limited permits may be issued by inspectors or by persons
operating under compliance agreements, unless the regulations specify
that the limited permit must be issued by an inspector.
EFFECTIVE DATE: December 28, 1994.
FOR FURTHER INFORMATION CONTACT: Mr. Victor Harabin, Head, Permit Unit,
Port Operations, Plant Protection and Quarantine, APHIS, USDA, room
632, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782, (301)
436-8645.
SUPPLEMENTARY INFORMATION:
Background
The Hawaiian Fruits and Vegetables regulations (contained in 7 CFR
318.13 through 318.13-17, and referred to below as the regulations)
govern, among other things, the interstate movement from Hawaii of
avocados in a raw or unprocessed state. Regulation is necessary to
prevent the spread of the Mediterranean fruit fly (Ceratatis capitata
(Wied.)), the melon fly (Dacus cucurbitae (Coq.)), and the Oriental
fruit fly (Bactrocera dorsalis (Hendel)(Syn. Dacus dorsalis)). These
types of fruit flies are collectively referred to as Trifly. The
regulations have allowed avocados to be moved interstate from Hawaii to
any destination in the United States only if, among other things, they
have been treated in accordance with a treatment specified in either
Sec. 318.13-4d or Sec. 318.13-4e of the regulations.
On February 25, 1994, we published in the Federal Register (59 FR
9136-9140, Docket No. 93-088-1) a proposal to amend the regulations by
adding a new Sec. 318.13-4g to allow untreated avocados from Hawaii to
be moved interstate to Alaska only, provided that certain conditions
are met to help ensure that the avocados moved to Alaska are free from
Trifly. We proposed these conditions, in addition to limiting movement
only to Alaska, to minimize the risk to Alaskan apples and pears and to
address the slight risk that some Hawaiian avocados might eventually
move from Alaska to other States.
We solicited comments concerning our proposal for 60 days ending
April 26, 1994. We received seven comments by that date. They were from
State departments of agriculture, fruit growers associations, an
agricultural marketing and trade association, and fruit growers and
shippers. One comment was in favor of the proposed rule, three comments
requested specific revisions to the proposed rule, and three comments
opposed the proposed rule. We carefully considered all of the comments
we received. They are discussed below.
One concern raised by commenters opposed to the proposed rule was
that, although we proposed to allow avocados from Hawaii to be moved to
Alaska only, there remains a risk that the avocados could be
transshipped to the contiguous 48 States. These commenters cited, as an
example of a case which demonstrated that transshipments can occur, an
interim rule concerning Unshu oranges from Japan that we published in
the Federal Register on September 3, 1985 (50 FR 35533, Docket No. 85-
354). Prior to this interim rule, Unshu oranges were allowed to be
imported into the State of Alaska without restriction. The interim rule
added restrictions because inspection found that Unshu oranges were
being moved from Alaska to other places in the United States.
While it is true that the illegal movement did occur, it should be
explained that there were factors connected with the importation of
Unshu oranges at that time that gave shippers incentive to violate the
regulations by shipping their fruit to the contiguous 48 States. These
factors would not be applicable to the interstate movement of avocados
from Hawaii.
For example, Unshu oranges were not then grown in the United
States. Fresh Unshu oranges were allowed to be imported into the United
States exclusively from Japan, and only into Alaska. They were,
therefore, not readily available in all U.S. markets. Unshu oranges are
an expensive specialty fruit, often given as a gift during winter
holidays. The demand for these oranges may not have been met by the
severe restrictions on their importation into the United States,
providing incentives for transshipment. In contrast, avocados grown in
the United States are readily available in U.S. markets and are
relatively inexpensive, especially in the western and southeastern
States where they are grown. Moving the avocados from Alaska to the
contiguous 48 States would not benefit shippers economically, as that
practice did for shippers of Unshu oranges. Reshipping would
significantly increase the shippers' packaging and shipping costs,
offsetting any price advantage over California growers; and, since the
U.S. demand for avocados is already being met by California and Florida
growers, there is no incentive for shippers to violate the regulations
in this way.
We have also considered the suggestion by some commenters that
Hawaiian avocados may be moved inadvertently from Alaska to the
contiguous 48 States by tourists or business travellers who would carry
them in their luggage, pockets, or handbags. It is our belief that this
is not likely to occur. Avocados are not generally eaten in travel,
like an apple or banana, because they usually require some preparation,
such as for use in a salad or dip. Also, avocados are expected to be
more expensive in Alaska than in California or other southwestern
States, so a business traveller would not likely buy his or her
avocados in Alaska if he or she is returning to one of those States.
A few commenters cited a previous program of the Animal and Plant
Health Inspection Service (APHIS) that permitted the interstate
movement of untreated avocados from Hawaii, and that was discontinued
because a Trifly infestation was discovered in Hawaii. Commenters
stated that this experience calls into question the reliability of even
commercial shipments of Hawaiian avocados being pest-free.
On February 25, 1992, fruit fly larvae were discovered in a
Hawaiian avocado picked by an APHIS inspector from a tree in an orchard
that shipped avocados to the contiguous 48 States. Soon after, a
significant fruit fly infestation was discovered in the Kona area of
Hawaii. This infestation affected some avocados that could have been
shipped to the contiguous 48 States. For these reasons, the program
referred to by commenters, which allowed the movement of untreated
avocados from Hawaii to any destination in the United States, was
suspended by APHIS on February 26, 1992, and was removed completely in
an interim rule published in the Federal Register on July 15, 1992 (57
FR 31306-31307, Docket No. 92-081-1).
The situation presented risk to U.S. agriculture only because, at
the time the infestation was discovered, APHIS was allowing avocados to
move untreated to the mainland United States. It would not have
presented any significant risk had the fruit been moving only to the
State of Alaska, as we have proposed. Before APHIS implemented the
program to allow Hawaiian avocados to move untreated to the mainland,
Hawaiian avocados were permitted to move untreated to Alaska only.
During that time, we had no evidence of any infestations of Trifly.
However, even if an infestation had been present in Hawaii, Trifly
would not have become established in Alaska because of Alaska's
freezing winters. Again, the basis for our proposal to allow Hawaiian
avocados into Alaska is that climatic conditions in Alaska would not
allow for the establishment of pests of avocado in the United States.
Because Hawaiian avocados will not be distributed in the contiguous 48
States and will only move through specified ports under strict
conditions en route to Alaska, our previous experience with Hawaiian
avocados that were to be moved to the mainland does not alter our
decision to allow avocados from Hawaii into Alaska.
Some commenters are concerned that this rule will impose too many
additional inspection responsibilities on the APHIS inspection staff in
Alaska, as well as in Portland and Seattle. We believe, however, that
APHIS' Plant Protection and Quarantine (PPQ) staffs at these ports are
currently adequate to manage the additional inspections. We do not
anticipate any difficulties in inspecting the small amount of Hawaiian
avocados which we expect will be moving to Alaska.
One commenter was concerned that fruit flies could escape during
transloading of the avocados in Portland or Seattle, and that a
population could survive in those States long enough to infest summer
fruits and migrate to California before winter arrives. Our experience
indicates it is highly unlikely this scenario will occur. We proposed
to allow transloading only under very strict conditions and only under
the supervision of an APHIS inspector. Large amounts of fruits and
vegetables that are prohibited entry into any part of the continental
United States are currently transshipped through Portland and Seattle,
and are often transloaded at those ports under the same conditions that
we proposed for Hawaiian avocados. There has never been any incidence
of a pest escaping, establishing itself temporarily in Washington or
Oregon, and then moving south to California.
There were a few commenters who had suggestions to revise the
proposed rule. One commenter requested that we add provisions to the
proposed rule to allow the Hawaiian avocados destined for Alaska to be
commingled in a single shipping container with other tropical fruits
that are destined for either Portland or Seattle. We are making no
changes based on this comment. The proposal states that ``(t)he
avocados may not be commingled in the same sealed container with
articles that are intended for entry and distribution in any part of
the United States other than Alaska.'' We believe this provision is
necessary because the avocados may carry Trifly and commingling with
articles not destined for Alaska would pose a pest risk if those
articles became infested with Trifly. In explaining the reason for the
request, the commenter states that ``(o)ften shipping costs can be
greatly reduced if only partial shipments of avocados are ordered,
providing the shipment can be made with other fruit for the same
destination.'' According to our proposal, as long as all articles in
the sealed container are destined for entry and distribution in Alaska,
the avocados may be commingled with other commodities. However, if the
other articles in the sealed container are destined for Portland or
Seattle with the intention of distributing them in any part of the
United States other than Alaska, the shipment would be prohibited for
the reasons given in the proposed rule.
The same commenter also requested that APHIS allow Hawaiian
avocados destined for Alaska to be commingled in a single shipping
container with other tropical fruits moving to foreign destinations.
The commenter asked that APHIS allow such shipments to be broken down
in Portland or Seattle, with the avocados being sent on to Alaska and
the other fruits being sent to their respective foreign destinations.
Section 318.13-17 of the regulations governs the transit of fruits
and vegetables from Hawaii into or through the continental United
States en route to foreign destinations. Paragraph (d) of this section
states that ``(f)ruits and vegetables shipped into or through the
continental United States from Hawaii in accordance with this section
may not be commingled in the same sealed container with articles that
are intended for entry and distribution in the continental United
States.'' ``Continental United States'' is defined in Sec. 318.13-1 to
include the State of Alaska. Therefore, in accordance with Sec. 318.13-
17, Hawaiian avocados moved to Alaska could not be commingled in a
single shipping container with Hawaiian produce transiting the United
States en route to foreign destinations. To allow such a scenario would
mean that produce moving under different regulations would be
commingled in a single shipping container. It would be operationally
difficult to monitor the breakdown and movement of such a shipment to
ensure that the avocados are actually moved to Alaska only and that the
other produce is moved properly through the United States to its
foreign destination. To help ensure that all produce is moved safely
and in accordance with the regulations, we believe it is necessary to
maintain that the Hawaiian avocados may only be commingled in a single
shipping container with produce that is also moving to Alaska only. We
are, therefore, making no changes based on this comment.
Another commenter suggested that we extend the proposed rule to
allow avocados to be carried from Hawaii to Alaska by air passengers in
their luggage under the following conditions: (1) In pit baggage on
direct flights to Alaska only; (2) only during the months of October to
March or April; (3) only ``green ripe'' avocados; and (4) only rough-
skinned varieties with the stems intact. We are making no changes based
on this comment, for several reasons. The proposed rule includes many
provisions and safeguards to help minimize the risk that the avocados
will be infested with Trifly, and to help ensure that the avocados are
not diverted from their final destination in Alaska. For example, the
proposal allows only commercial shipments of avocados to be moved from
Hawaii to Alaska, since wild or ``backyard'' avocados could present a
higher pest risk than commercially produced avocados. APHIS inspectors
would have no way of knowing whether or not an avocado carried by an
individual air passenger is commercially produced. Further, we proposed
that the avocado shipments be accompanied from Hawaii to Alaska by a
limited permit, as a means of documenting the movement of the shipment
and ensuring it arrives at its final destination in Alaska. We would
have no way of confirming whether or not avocados carried in a
passenger's luggage were diverted en route to Alaska because there
would be no limited permit. We also proposed strict packing
requirements and that the avocados be moved in sealed containers and be
transloaded only under specified conditions. These provisions further
minimize the risk that Trifly would be introduced in the continental
United States, should the avocados be carrying Trifly. We believe these
precautions are necessary, and none of these precautions would be
possible for air passenger luggage.
Finally, one commenter asked that we extend the proposal to allow
all ``fruits and vegetables otherwise prohibited movement into or
through the continental United States'' to be moved to Alaska under the
same provisions as Hawaiian avocados. We are making no changes based on
this comment. This rulemaking is only concerned with Hawaiian avocados.
If, in the future, we determine that other fruits and vegetables
prohibited movement into the continental United States can be safely
moved to Alaska only, we will publish a separate proposed rule in the
Federal Register.
Therefore, based on the rationale set forth in the proposed rule
and in this document, we are adopting the provisions of the proposal as
a final rule.
Miscellaneous
We are amending the phrase ``Approved by the Office of Management
and Budget under control number 0579-0049'' that appears at the end of
Sec. 318.13-4 by removing the number ``0579-0049'' and replacing it
with the number ``0579-0088''. This change corrects a prior misprint.
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. Immediate
implementation of this rule is necessary to provide relief to those
persons who are adversely affected by restrictions we no longer find
warranted. Therefore, the Administrator of the Animal and Plant Health
Inspection Service has determined that this rule should be effective
upon publication in the Federal Register.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
This rule will allow untreated avocados to be moved interstate from
Hawaii to Alaska under certain conditions. Avocados are not presently
shipped from Hawaii to Alaska because required treatments do not make
it economically feasible.
In 1992, the U.S. production of avocados, not including Hawaii, was
approximately 290 million pounds. California produced approximately 86
percent of this total, with the Hass variety accounting for about 85
percent of California's production. The peak harvest season of the Hass
variety is April through October. California supplied approximately 90
percent of Alaska's 1992 avocado market.
In 1992, Hawaii produced approximately 700,000 pounds of avocados.
Thus, Hawaii's total production was less than 0.3 percent of the total
U.S. avocado production for that year. There are about 100 farms in
Hawaii that produce avocados. All of these farms would be considered
small entities (defined as having sales of less than $500,000
annually), as the total value in 1992 for Hawaiian avocados was only
$322,000. The Sharwil variety accounts for about 75 percent of Hawaii's
avocado production. The peak harvest season for Sharwil avocados is
November through May.
This rule change will positively affect Hawaiian avocado producers
by providing an economically feasible place for them to ship avocados
when there is a surplus in production. Although almost all of Alaska's
avocados are supplied by California, the addition of a Hawaiian supply
is unlikely to have a significant impact on Californian avocado
producers. Before a suspension of shipments in 1992, the shipment of
Hawaiian avocados to the contiguous 48 States peaked at only 100,000
pounds. Further, Californian avocados (Hass variety) and Hawaiian
avocados (Sharwil variety) have different peak production seasons. As a
result, their importation will overlap very little. The shipment of
Hawaiian avocados will allow Alaska to have a continuous and varied
avocado supply.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12778
This rule has been reviewed under Executive Order 12778, 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 the Paperwork Reduction Act of 1980 (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 0579-0088.
List of Subjects in 7 CFR Part 318
Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and
pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin
Islands.
Accordingly, 7 CFR part 318 is amended as follows:
PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES
1. The authority citation for part 318 continues to read as
follows:
Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, 164a,
167; 7 CFR 2.17, 2.51, and 371.2(c).
Sec. 318.13-1 [Amended]
2. Section 318.13-1 is amended as follows:
a. In the definition for Compliance agreement the reference
``Sec. 318.13-4(e),'' and the reference ``and Sec. 318.13-4g'' are
removed.
b. A definition for Commercial shipment is added, in alphabetical
order, to read as set forth below.
c. In the definition for Limited permit, the introductory text is
amended by adding the phrase ``or a person operating under a compliance
agreement'' immediately following ``inspector'', and paragraph (1) is
amended by removing the phrase ``, in conformity with a compliance
agreement''.
Sec. 318.13-1 Definitions.
Commercial shipment. Shipment containing fruits and vegetables that
an inspector identifies as having been produced for sale or
distribution in mass markets. Such identification will be based on a
variety of indicators, including, but not limited to: Quantity of
produce, type of packaging, identification of grower and packing house
on the packaging, and documents consigning the shipment to a wholesaler
or retailer.
* * * * *
3. In Sec. 318.13-2, the regulatory text of paragraph (a) is
redesignated as paragraph (a)(1) and a new paragraph (a)(2) is added to
read as follows:
Sec. 318.13-2 Regulated articles.
(a) * * *
(2) Avocados which have been moved to Alaska in accordance with
Sec. 318.13-4g are prohibited movement from Alaska into or through
other places in the continental United States, Guam, the Northern
Mariana Islands, Puerto Rico, and the Virgin Islands of the United
States.
* * * * *
4. In Sec. 318.13-3, the regulatory text of paragraph (b) is
redesignated as paragraph (b)(1) and a new paragraph (b)(2) is added to
read as follows:
Sec. 318.13-3 Conditions of movement.
* * * * *
(b) * * *
(2) Avocados may be moved interstate from Hawaii to Alaska if the
provisions of Sec. 318.13-4g are met, and if they are accompanied by a
limited permit issued by an APHIS inspector in accordance with
Sec. 318.13-4(c).
* * * * *
5. Section 318.13-4 is amended as follows:
a. A new paragraph (c)(3) is added to read as set forth below.
b. Paragraph (d) is amended by adding the phrase ``under paragraph
(c)(3) of this section'' immediately following the words ``limited
permit''.
c. At the end of this section, the OMB control number ``0579-0049''
is removed and the number ``0579-0088'' is added in its place.
Sec. 318.13-4 Conditions governing the issuance of certificates or
limited permits.
* * * * *
(c) * * *
(3) Except when the regulations specify an inspector must issue the
limited permit, limited permits may be issued by a person operating
under a compliance agreement.
* * * * *
Sec. 318.13-4f [Amended]
6. In Sec. 318.13-4f, paragraph (b)(2)(iii) is amended by removing
the reference ``Sec. 318.13-4(e)'' and adding ``Sec. 318.13-4(d)'' in
its place.
7. Section 318.13-4g is added to read as follows:
Sec. 318.13-4g Administrative instructions governing movement of
avocados from Hawaii to Alaska.
Avocados may be moved interstate from Hawaii to Alaska without
being certified in accordance with Sec. 318.13-4 (a) or (b) only under
the following conditions:
(a) Distribution and marking requirements. The avocados may be
moved interstate for distribution in Alaska only, the boxes of avocados
must be clearly marked with the statement ``Distribution limited to the
State of Alaska'', and the shipment must be identified in accordance
with the requirements of Sec. 318.13-6.
(b) Commercial shipments. The avocados may be moved in commercial
shipments only.
(c) Packing requirements. The avocados must have been sealed in the
packing house in Hawaii in boxes with a seal that will break if the box
is opened.
(d) Ports. The avocados may enter the continental United States
only at the following ports: Portland, Oregon; Seattle, Washington; or
any port in Alaska.
(e) Shipping requirements. The avocados must be moved either by air
or ship and in a sealed container. The avocados may not be commingled
in the same sealed container with articles that are intended for entry
and distribution in any part of the United States other than Alaska. If
the avocados arrive at either Portland, Oregon or Seattle, Washington,
they may be transloaded only under the following conditions:
(1) Shipments by sea. The avocados may be transloaded from one ship
to another ship at the port of arrival, provided they remain in the
original sealed container and that APHIS inspectors supervise the
transloading. If the avocados are stored before reloading, they must be
kept in the original sealed container and must be in an area that is
either locked or guarded at all times the avocados are present.
(2) Shipments by air. The avocados may be transloaded from one
aircraft to another aircraft at the port of arrival, provided the
following conditions are met:
(i) The transloading is done into sealable containers;
(ii) The transloading is carried out within the secure area of the
airport--i.e., that area of the airport that is open only to personnel
authorized by the airport security authorities;
(iii) The area used for any storage of the shipment is within the
secure area of the airport, and is either locked or guarded at all
times the avocados are present. The avocados must be kept in a sealed
container while stored in the continental United States en route to
Alaska; and
(iv) APHIS inspectors supervise the transloading.
(3) Exceptions. No transloading other than that described in
paragraphs (e) (1) and (2) of this section is allowed except under
extenuating circumstances (such as equipment breakdown) and when
authorized and supervised by an APHIS inspector.
(f) Limited permit. Shipments of avocados must be accompanied by a
limited permit issued by an APHIS inspector in accordance with
Sec. 318.13-4(c) of this subpart. The limited permit will be issued
only if the inspector examines the shipment and determines that the
shipment has been prepared in compliance with the provisions of this
section.
Done in Washington, DC, this 20th day of December 1994.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 94-31893 Filed 12-27-94; 8:45 am]
BILLING CODE 3410-34-P
