[Federal Register Volume 62, Number 24 (Wednesday, February 5, 1997)]
[Rules and Regulations]
[Pages 5293-5315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2825]
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Rules and Regulations
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Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 /
Rules and Regulations
[[Page 5293]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 94-116-5]
RIN 0579-AA84
Importation of Fresh Hass Avocado Fruit Grown in Michoacan,
Mexico
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the regulations governing the importation of
fruits and vegetables to allow fresh Hass avocado fruit grown in
approved orchards in approved municipalities in Michoacan, Mexico, to
be imported into certain areas of the United States, subject to certain
conditions. We are taking this action in response to a request from the
Mexican Government and after reviewing public comments regarding that
request and conducting a pest risk assessment. The conditions to which
the importation of fresh Hass avocado fruit will be subject, including
pest surveys and pest risk-reducing cultural practices, packinghouse
procedures, inspection and shipping procedures, and restrictions on the
time of year shipments may enter the United States, will reduce the
risk of pest introduction to an insignificant level. Furthermore,
climatic conditions in those areas of the United States into which the
avocados will be allowed will preclude the establishment in the United
States of any of the exotic plant pests that may attack avocados in
Michoacan, Mexico.
EFFECTIVE DATE: March 7, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. Ronald C. Campbell, Staff Officer,
Port Operations, PPQ, APHIS, 4700 River Road Unit 139, Riverdale, MD
20737-1236, (301) 734-6799; E-mail: rcampbell@aphis.usda.gov.
SUPPLEMENTARY INFORMATION:
Background
The Fruits and Vegetables regulations contained in 7 CFR 319.56
through 319.56-8 (referred to below as the regulations) prohibit or
restrict the importation of fruits and vegetables into the United
States to prevent the introduction and dissemination of injurious
insects that are new to or not widely distributed within and throughout
the United States. The regulations do not provide for the importation
of fresh avocado fruits grown in Mexico into the United States, except
to Alaska under the conditions specified in Sec. 319.56-2bb.
On November 15, 1994, we published an advance notice of proposed
rulemaking (ANPR) in the Federal Register (59 FR 59070-59071, Docket
No. 94-116-1) announcing that the Animal and Plant Health Inspection
Service (APHIS) had received a request from the Government of Mexico to
allow, under certain conditions, the importation of fresh Hass avocado
fruit grown in approved orchards in approved municipalities in
Michoacan, Mexico, into certain areas of the United States. We
solicited comments concerning the Mexican Government request for 28
days ending on December 13, 1994, and two public hearings were held in
late November 1994 concerning issues raised in the ANPR. On December
19, 1994, we published a document in the Federal Register (59 FR 65280,
Docket No. 94-116-2) informing the public that we had reopened the
comment period and would continue to accept comments until January 3,
1995, including any comments received between December 13--the close of
the original comment period--and December 19. By the close of the
extended comment period, we had received over 300 comments concerning
the ANPR.
On July 3, 1995, we published in the Federal Register (60 FR 34831-
34842, Docket No. 94-116-3) a proposed rule to allow fresh Hass avocado
fruit grown in approved orchards in approved municipalities in
Michoacan, Mexico, to be imported into certain areas of the United
States, subject to certain conditions. The proposed rule, which was
published in response to the Mexican Government request mentioned
above, included additional proposed phytosanitary requirements that we
believe addressed many of the concerns expressed in the comments
received in response to our November 1994 ANPR. The proposed rule also
announced the availability of two documents that examined the risks
associated with the proposed importation program: ``Risk Management
Analysis: A Systems Approach for Mexican Avocado,'' which is referred
to below as the risk management analysis, and ``Importation of Avocado
Fruit (Persea americana) from Mexico: Supplemental Pest Risk
Assessment,'' referred to below as the supplemental pest risk
assessment.
On August 4, 1995, we published a notice of public hearings in the
Federal Register (60 FR 39889-39890, Docket No. 94-116-4) that detailed
the dates, times, and locations of five public hearings regarding the
July 1995 proposed rule.
We solicited comments concerning the July 3, 1995, proposed rule
for 105 days ending on October 16, 1995. We received 2,080 comments by
that date, including 211 oral comments delivered at the five public
hearings. Slightly more than 60 percent of the commenters--1,254
commenters out of 2,080--identified themselves as working in the
domestic avocado industry, either directly as growers, packers, and
shippers, or indirectly as part of their work in associated fields
(agricultural consultants, pest control advisors, nurserymen, etc.).
The remaining commenters included representatives of other agricultural
interests, such as apple and citrus growers, packers, and shippers;
members of Congress; representatives of State, local, and foreign
governments; university researchers and professors; owners and
employees of produce markets and retail operations; consultants;
customs brokers; and representatives of numerous associations such as
chambers of commerce, farm bureaus, marketing associations, consumer
groups, and trade associations. Three hundred and ten of the commenters
supported the proposed rule; 1,751 opposed it. Twenty-three of those
comments opposing the proposal were petitions signed by a total of 958
individuals. Nineteen of the comments neither supported nor opposed the
[[Page 5294]]
proposal; 8 of those comments were postcards containing only a name and
address, and the remaining 11 comments argued both sides of the issue,
asked only that we use science as the sole criterion for making a
decision, or discussed risk assessment methodology in general terms.
Those commenters who supported the proposed rule generally
expressed their faith in the ability of the proposed systems approach
to allow for the safe importation of Hass avocados from Mexico. Many of
those commenters supporting the proposed rule also cited the need for
the United States to lead the way in the elimination of non-tariff
trade barriers.
The comments of those who opposed the proposed rule generally fell
into one of three categories: (1) Dissatisfaction with the quantity or
quality of the pest trapping and surveys conducted in Mexico and APHIS'
supporting documentation, (2) skepticism with regard to how closely the
proposed safeguards would be followed in Mexico, and (3) skepticism
regarding APHIS' ability to effectively monitor and enforce the
safeguards contained in the systems approach. These concerns were also
raised in a study prepared by the University of California at
Riverside's Center for Exotic Pest Research titled ``Risks of Exotic
Pest Introductions from Importation of Fresh Mexican Hass Avocados into
the United States.'' This study was submitted as a comment on the
proposed rule and, as such, has been carefully reviewed by APHIS and is
addressed in this final rule. The specific comments pertaining to the
proposed rule are discussed in detail, by subject, below.
Risk Management Analysis and Supplemental Pest Risk Assessment
Documents
Comment: The proposed rule states that Anastrepha spp. fruit flies
have never been found in Hass avocados outside of laboratory tests, but
APHIS itself said in a 1987 Federal Register document (52 FR 27669-
27672, Docket No. 87-101, July 23, 1987) that its records showed over
200 Anastrepha finds in avocados intercepted at the U.S./Mexican border
from smugglers.
Response: The proposed rule stated that ``according to APHIS and
Agricultural Research Service records, Anastrepha fruit flies have
never been found in Hass avocados outside of laboratory tests.'' In
their interception records, APHIS inspectors do not normally record the
variety of the fruit involved in a pest interception, so these written
records are silent as to whether any Hass avocados were involved in
those pest detections reported in the 1987 Federal Register document.
However, APHIS Plant Protection and Quarantine officers at the El Paso,
TX, border crossing report that they have cut thousands of confiscated
Hass variety avocados without intercepting any fruit fly larvae.
Similarly, Japanese plant health officials report that they have not
detected any fruit fly larvae in more than 5 million kilograms of
Mexican Hass avocados that have been imported into Japan since 1992.
Comment: APHIS' risk management analysis declares: ``There is a
small possibility that part of or a whole shipment could be
periodically diverted to southern States. Since California Hass would
be out of season, detection would be fairly easy.'' Similarly, the
supplemental pest risk assessment states, with regard to Florida and
California, that ``* * * it would be relatively easy to detect
smuggling or intentional diversion of shipments because Hass avocado
fruit are not otherwise generally available in those areas during the
winter months.'' To the contrary, the Avocado Market Research and
Information Center of the California Avocado Commission (CAC) reports
that during the 1991 to 1994 marketing years, movement of California
Hass avocados to destination markets averaged 8,533,212 pounds for the
month of November; 10,636,068 pounds for December; 18,108,162 pounds
for January; and 19,530,637 pounds for February. To claim that domestic
Hass avocados are out of season during the months of November through
February is simply incorrect; that assertion, therefore, cannot be used
to support APHIS' argument that the seasonal unavailability of domestic
Hass avocados will make it easy to detect Mexican Hass avocados in
prohibited States. It follows that the risk reduction estimate of 95 to
99 percent attributed to limited U.S. distribution is insupportable
because it will be more difficult than originally thought to detect
transshipment. APHIS must reevaluate this supposed mitigation measure
in view of factual realities.
Response: We agree that the characterization of domestic avocados
as ``out of season'' and ``not * * * generally available'' between
November and February was inaccurate. Domestic production is lower
during that period--especially during November and December--but not as
low as those statements in the supplemental pest risk assessment and
the risk management analysis suggest. The availability of domestic
avocados in larger numbers than originally recognized does not,
however, have a significant impact on our risk reduction estimates. The
risk management analysis indicates that the 95 to 99 percent risk
reduction estimate noted by the commenter is the reduction realized by
limiting distribution versus allowing distribution throughout the
United States. Our ability to detect Mexican avocados in markets
outside the approved distribution area does play a role in the estimate
of risk reduction, but the risk reduction estimate is based more on our
expectation that the vast majority of the imported avocados will remain
in the approved States. The supplemental pest risk assessment
considered the possibility that as much as 5 percent of the imported
fruit could be transported to a habitat suitable for pest establishment
(which is a subset of all non-approved States) and still concluded that
the risk of a pest outbreak would be insignificant. Another factor to
consider is our decision to include in this final rule a requirement
for all Mexican avocados imported into the United States to be
individually labeled with a sticker that identifies the packinghouse in
which the avocados were packed for shipment to the United States. (The
new stickering requirement is in response to a separate comment that is
discussed later in this document.) The stickering requirement will work
to both discourage transshipment and facilitate identification of
Mexican-origin avocados.
Comment: The persea mite, which is now devastating groves in
California, is believed to have originated in Mexico or Central
America. Why was the persea mite not considered in the supplemental
pest risk assessment?
Response: During the risk assessment process, APHIS collected
information on the persea mite (Oligonychus persea, also known as the
avocado mite) and considered the risk posed by this pest.
Unfortunately, this species was mistakenly not included on the list of
potential arthropod quarantine pests in table 3 of the supplemental
pest risk assessment. However, the persea mite is currently established
in the United States and is not considered a quarantine pest. Pests
that do not satisfy internationally accepted criteria of a quarantine
pest are not analyzed in detail in risk assessments because non-
quarantine pests are not candidates for risk mitigation. Although O.
persea should have been listed on the pest list, its inclusion would
not have changed the supplemental pest risk assessment beyond the pests
listed in table 3. Listing of O. persea in table 3 would not have
changed the findings of the risk assessment and would not have altered
[[Page 5295]]
the proposed mitigation program, which focuses on quarantine pests.
Comment: The leaf spotter, a pest identified in ``Australian
literature'' that lays its eggs on immature fruit and eventually covers
the fruit in pustules, occurs in Mexico and was not addressed in the
supplemental pest risk assessment.
Response: We are not aware of an avocado pest referred to as the
``leaf spotter.'' Nonetheless, we reexamined the scientific literature
and believe that the commenter may have been referring to one of two
insect pests. Homona spargotis (Lepidoptera: Tortricidae) was first
detected in the Australian State of Queensland in 1980 and since then a
few papers discussing this pest have appeared in the Australian
literature. One common name associated with this pest is ``avocado
leafroller'' but one paper reports that ``serious damage also results
from superficial scarring of the fruit.'' Amblypelta nitida (Hemiptera:
Coreidae) also occurs in Queensland and is listed as a pest of
macadamia and avocado. This true bug is sometimes referred to as the
``fruit spotting bug.'' However, we could find no evidence linking
either of these pests with Mexican avocados. According to the
scientific literature, all available pest data bases, and taxonomic
specialists on these insect groups, neither of these pests have ever
been detected in Mexico.
Comment: Too little is known about the basic taxonomy, biology, and
ecology of the avocado seed pests and stem weevils that attack the
avocados in Michoacan. Similarly, it is not known which species of
Anastrepha attacks avocado fruit. Overall, there is a dearth of survey
data and other reliable information on the population levels of all the
pests of concern in Michoacan. More information must be gathered
through additional precertification trapping and surveys before APHIS
can construct a scientifically valid systems approach for the
importation of Hass avocados from Michoacan, Mexico.
Response: On the contrary, we believe that there is sufficient
information available regarding all of the pests of concern. By way of
illustration, our risk management analysis and its attachments together
contain over six pages of literature citations that back up the
information and conclusions found in that document. Similarly, the
supplemental pest risk assessment lists nearly four pages of citations.
Avocados and pests of avocados have been studied in detail for many
years, especially in Mexico, which is the world's largest producer and
consumer of avocados. We believe that the information contained in the
existing literature, along with ongoing studies, surveys, and trapping,
provides a rational, reasonable, and scientifically valid basis for the
safeguards contained in this final rule, safeguards that we believe
will allow for the safe importation of Hass avocados from Michoacan,
Mexico.
Comment: Mexican avocados should be prohibited entry into the
United States until zero pest risk can be guaranteed.
Response: If zero tolerance for pest risk were the standard applied
to international trade in agricultural commodities, it is quite likely
that no country would ever be able to export a fresh agricultural
commodity to any other country. There will always be some degree of
pest risk associated with the movement of agricultural products; APHIS'
goal is to reduce that risk to an insignificant level. In the case of
Hass avocados from Mexico, we believe that the overlapping and
redundant safeguards contained in this final rule will reduce the pest
risk associated with their importation to an insignificant level.
Comment: The State of Michoacan in general and the four
municipalities listed in the proposed rule in particular are extremely
diverse in terms of elevation and environment. Temperature data have
not been provided to support the claim that temperatures are
``generally'' below 70 deg.F throughout the area during the months of
November through February, and it seems likely that in some locations--
especially at lower elevations--temperatures would be over 70 deg.F
for parts of some days during the export period. Has APHIS taken into
account these differences in elevation, temperature, and likely levels
of pest activity in Michoacan? In addition, APHIS' statement that
Anastrepha spp. will not oviposit below 70 deg.F is erroneous.
Response: The proposed rule stated that fruit flies reduce mating
and oviposition when temperatures fall below 70 deg.F, not that they
stop such activities. Our data show that although daytime temperatures
may rise above 70 deg.F, which happens on some days, usually for a
short time in the late afternoon, the average temperature in the region
during November through February is between 62 and 64 deg.F, with
nighttime lows in the 40's. Studies conducted by the Agricultural
Research Service (ARS) of the U.S. Department of Agriculture (USDA)
have shown that the Mexican fruit fly is less active, and oviposits
less at temperatures below 70 deg.F, so the climate is not favorable
to fruit fly activity during the proposed shipping season. The
unfavorable climate, combined with the Hass avocado's non-preferred
host status, make it likely that the infestation threat posed to the
avocados by Anastrepha spp. fruit flies will be insignificant.
Comment: The trapping data provided in support of the proposed rule
indicates that Anastrepha spp. fruit flies were trapped at 17 percent
of the trapping sites. This indicates that Mexican fruit fly and other
Anastrepha spp. fruit flies are present in the Michoacan avocado
groves.
Response: We have acknowledged that Anastrepha spp. fruit flies are
present in Michoacan, which is why the regulations in this final rule
set forth safeguards to prevent the introduction of those pests. The
requirements, such as surveillance trapping, increased trapping in
response to a single fruit fly detection, Malathion bait treatments,
covering of harvested avocados, fly-proof screens on packinghouses, and
inspections, work together with the non-preferred host status of Hass
avocado fruit attached to the tree to eliminate any significant risk
from Anastrepha.
Comment: No rational basis is given for a number of the probability
and confidence estimates used in the supplemental pest risk assessment.
For example, the estimate for P6 (probability of infested fruit
introduced into a suitable habitat leading to an outbreak) is very
weakly supported. As used in the supplemental pest risk assessment,
these estimates are inappropriate, misleading, and create a false sense
of security. A transparent, thoroughly documented, and replicable risk
analysis should be prepared and submitted to peer review.
Response: As stated in the supplemental pest risk assessment (p.
26), and in accordance with internationally accepted guidelines for
pest risk assessment, when specific data were not available to provide
precise estimates for a particular probability, estimates were based on
available data and expert judgment. Estimates based largely on expert
judgment typically have a degree of uncertainty associated with them.
We accounted for the uncertainty of our estimates by characterizing
them as a distribution of potential probabilities (i.e., as probability
density functions) instead of point estimates. Some commenters
indicated that APHIS underestimated the probabilities while others
indicated that APHIS has overestimated the risk of importing Mexican
avocado fruit. However, APHIS did not receive any information (e.g.,
biological, regulatory, statistical, or methodological) that could be
interpreted as evidence that the
[[Page 5296]]
probability estimates were incorrect, or that they should be changed.
Comment: The supplemental pest risk assessment was conducted
improperly and fails the test of peer review. Thus, its results must be
rejected and provide no basis for accepting the proposed rule.
Response: The methods used by APHIS have been subjected to
extensive internal and external peer review and have been accepted
within the United States and internationally. Some commenters on this
issue, including two individuals identified as risk assessment experts,
commented that APHIS' risk assessment constituted correct and
appropriate use of risk assessment tools. A variety of official
commenters and peer reviewers, including risk assessment experts,
commended APHIS' risk assessment, commented that the methods had been
applied appropriately, and considered the conclusions to be justified
and believable.
Comment: The APHIS supplemental pest risk assessment and risk
management analysis documents were not prepared in accordance with
North American Plant Protection Organization (NAPPO) and the United
Nations' Food and Agriculture Organization (FAO) risk assessment
guidelines.
Response: All of the components of plant pest risk analysis as
described by FAO (1995) and NAPPO (1995) are present in either the risk
management analysis or the supplemental pest risk assessment. Despite
the fact that the FAO and NAPPO documents are only in draft form, and
despite the fact that these documents are guidelines and not standards,
APHIS satisfied the requirements of each step suggested by the FAO and
NAPPO documents. It is true, however, that the order in which the
information is presented in the two APHIS documents is not along the
general theoretical lines of: (1) Initiate risk analysis because of a
new request for importation; (2) assess the base risk; (3) develop a
risk mitigation program; and (4) conduct and monitor the risk
mitigation program. The situation with Mexican avocado fruit is more
complex because over the past few decades APHIS has considered
repeatedly the risks of importing Mexican avocado fruit. The two APHIS
documents cover risk assessment and risk management, but the various
components of these two documents do not represent a simple
chronological progression of events. The supplemental pest risk
assessment includes a more complete assessment of the baseline risks
than was presented in previous risk assessments (e.g., see attachments
1 (entomology risk assessment) and 2 (pathology risk assessment) in the
risk management analysis). APHIS' risk analysis work started long
before FAO prepared the first draft of its guidelines. APHIS has
offered for public consideration a number of documents prepared on this
issue over the years. Although the chronology of these documents does
not match the order given in the FAO guidelines, all of the components
of a complete pest risk analysis as recommended by FAO are available in
the documents prepared by APHIS.
Comment: The criteria for the assignment of risk estimates found
within the supplemental pest risk assessment are explained well, but
the rationale for the risk estimate assigned to each of the quarantine
pests is essentially absent. The summary conclusions are appropriate
but should be explained clearly so that the reasoning and logic used to
estimate risk can be easily and fully understood.
Response: Most of the estimates were based to some extent on expert
judgment. APHIS did not elaborate on the components of the professional
judgment used by team members because such elaboration would be a
statement regarding the background and experiences of the scientists
involved. The summary conclusions are not explained in detail, but we
believe that our final assessment of the plant pest risk regarding each
category of pest is well represented in tables 9 and 10 of the
supplemental pest risk assessment.
Comment: The only Mexican avocado pest survey data made available
in support of the proposed rule were 1993-1994 data from 129 groves in
the Michoacan municipalities of Periban, Salvador Escalante, Tancitaro,
and Uruapan. Current pest management practices in Michoacan avocado
orchards emphasize prophylactic treatments with broad-spectrum
pesticides (typically 12 treatments per year in export groves). No
specifics were provided regarding what pesticides were used, how they
were applied, and when treatments were applied in relation to the
survey data. Given this, it is impossible to determine what impacts the
pesticide treatments may have had on the data and what effect future
alterations in pesticide use patterns may have on pest populations in
the growing areas.
Response: As we noted in the proposed rule, some trapping was
conducted while trees were being treated with pesticides. Clearly, such
treatments will have an effect on pest populations, and that effect
would have been reflected in the survey data. This sort of pesticide
treatment is routine in Michoacan, and similar pesticide treatment will
occur in orchards growing avocados for export to the United States, so
we believe that trapping conducted during or after pesticide treatment
provided accurate population data. This final rule requires that annual
surveys and routine trapping be conducted in the production area as
part of the avocado export program, so future alterations in pesticide
use patterns would also be reflected in the pest population data
gathered from those activities.
Comment: The key hypothesis that Hass variety avocados have a high
level of natural resistance to Anastrepha spp. fruit flies is supported
only by weak data and inference. The hypothesis is readily testable and
should be thoroughly evaluated using proper scientific protocol before
it is factored into the analysis. If sound data are collected to
support the hypothesis of Anastrepha resistance, then the physiological
basis for that resistance should be determined. Otherwise, changes in
environmental or other factors (e.g., drought, tree stress, etc.) that
affect fruit physiology could negate the resistance, as was the case
with Sharwil avocados in Hawaii.
Response: APHIS' use of presumed host resistance in its systems
approach is based on studies conducted in Mexico and Central America,
some of which were conducted by the ARS, that have repeatedly shown
avocados to be poor hosts of fruit flies and that have never pointed to
Hass avocados as an Anastrepha fruit fly host. These studies are backed
in practical terms by the experience of APHIS personnel at the U.S./
Mexican border who have been cutting confiscated avocados, including
Hass variety avocados.
Mexico is the world's largest producer and consumer of avocados;
there are over 80,000 hectares of avocados planted in the State of
Michoacan alone. The avocado is a large, economically significant crop
in Mexico around which has developed an industry dedicated to the
growing and marketing of avocados. Industry and university researchers
in Mexico have prepared numerous publications regarding the
identification and control of pests of avocados, yet there are no
publications on the control of Anastrepha spp. fruit flies in Hass
variety avocados. APHIS' own interception records over the past several
years confirm that no Anastrepha spp. fruit flies have been found
infesting Hass avocados. We believe, therefore, that the conditions set
forth in the proposed rule and in this final rule adequately address
the pest concerns associated with the importation of Hass avocados from
[[Page 5297]]
Mexico and would detect a problem if one were to exist.
Comment: Compliance is assumed in many aspects of APHIS' risk
assessment process, failing to take into account human behavior (e.g.,
greed leading one to repack and transship Mexican avocados out of the
approved area).
Response: Human error and purposeful deceit were considered
continuously during the risk assessment process and during estimation
of each of the probabilities. Some probability estimates were based
almost exclusively on our consideration of human error and deceit. For
example, in the supplemental pest risk assessment, P5, the probability
that fruit would be transported to an area with suitable hosts and
climate (i.e., transshipment to areas outside the approved States),
ranged from 0.5 percent to 5 percent under the proposed program. Such
transshipment could occur only as a result of human error or purposeful
deceit, so our estimate of risk resulted directly from our
consideration of the possibility of human error and the incentive for
purposeful deceit.
Comment: APHIS should include the risk of infestation due to
vehicle accidents in warm southern States and transshipment as part of
its risk analysis.
Response: Scenarios such as accidents during transport and
transshipment were included in the supplemental pest risk assessment
and were considered as part of P5, the probability that fruit would be
transported to an area with suitable hosts and climate, and P6, the
probability that infested fruit in a suitable habitat leads to
outbreak.
Comment: APHIS should convene an independent scientific panel to
review the APHIS risk assessment plan and determine if the plan is in
accord with accepted scientific principles. Until then, the proposal
should be withdrawn.
Response: We heard the call for an independent scientific review of
the proposed systems approach and risk reduction plans even before the
proposed rule was published on July 3, 1995. In the proposed rule, we
announced that 2 days of hearings would be held to focus exclusively on
the APHIS risk assessment documents upon which the proposed rule was
based in order to provide an opportunity for experts in relevant
disciplines to present their views on those documents and the
scientific issues raised by them. Those hearings, which were conducted
on August 17 and 18, 1995, produced testimony from 25 speakers. In
addition to that oral testimony, we received written comments from
interested experts in various disciplines during the comment period. We
believe, therefore, that scientists and independent scientific panels
had ample opportunity during the 105-day comment period to present
their opinions on the APHIS risk assessment plan.
Comment: The only realistic protection for the United States is to
insist on ``certified infestation-free zones.'' APHIS should insist on
additional studies, at least 3 years in duration, before proceeding
with any change in the policy. This would be consistent with the NAPPO
guidelines for the establishment of a pest-free zone. If APHIS is truly
interested in maintaining the integrity of phytosanitary standards, it
will demand further study resulting in the establishment of these pest-
free zones.
Response: As we explained in the proposed rule and in this final
rule, APHIS uses systems approaches to phytosanitary security to allow
fruits and vegetables to be imported safely into the United States from
countries that are not free of certain plant pests. Our experience with
systems approaches for the importation of commodities and systems
approaches for domestic commodities has demonstrated that such
approaches can be used safely and successfully to allow for the
importation or exportation of fruits and vegetables from countries or
areas that are not free from pests. In this instance, we believe that
the systems approach to phytosanitary security found in this final rule
will prevent the introduction of plant pests into the United States
from Michoacan. Therefore, we do not believe that it is necessary to
establish Michoacan as a pest-free zone prior to importing Hass
avocados.
Comment: The supporting documentation for the proposed rule
mentions that large-scale fruit cutting was conducted in Mexico to
determine pest prevalence in Michoacan's export avocado groves, but no
data were offered to back up those claims. The data regarding fruit
cutting should be made available to the public.
Response: This information may be obtained by contacting the person
listed under FOR FURTHER INFORMATION CONTACT, as several individuals
did following the publication of the proposed rule. The cutting data
are available in at least summary form for the period 1985 to 1991, and
detailed information is available for groves and packinghouses for
certain of those years.
Comment: A university researcher reported that she discovered
immature avocado stem weevil larvae in an export grove in Michoacan
during a 1994 trip to the region. APHIS' risk documents, however, state
that none have been found.
Response: The researcher mentioned in the comment traveled to
Michoacan as part of a joint APHIS/CAC team that went to Mexico on an
information-gathering trip to look at orchards infested with stem
weevils and seed weevils. The team visited a grove that appeared to be
poorly managed and, within 5 minutes, found the avocado stem weevil to
be present in trees within the orchard. The orchard was not certified
for Sanidad Vegetal's export program. Later that day, however, a pest
management consultant who had not visited the orchard in question
speculated that it had once been an export orchard. It was that
encounter with the consultant that led the researcher to conclude that
she detected avocado stem weevils in an export grove.
Prior to APHIS' interest in the stem weevil, Sanidad Vegetal was
not certifying export orchards as being free of stem weevils, so it is
possible that some orchards that had previously been certified for the
export program did have stem weevil infestations. In 1994, however,
Sanidad Vegetal instituted surveys for the stem weevil, and all
orchards certified for the U.S. export program will be required to be
free from the pest. Sanidad Vegetal inspectors know how to survey for
stem weevils, and the experience of the APHIS/CAC team illustrates that
the pest is not difficult to detect.
Comment: The Monte Carlo model used in the supplemental pest risk
assessment was unnecessary in the first place and only provides a veil
of analytical objectivity; the model predicts what was initially
assumed. The data upon which parameters for the model were estimated
are either nonexistent or are not adequately documented. The results of
the model cannot be accepted with any level of confidence.
Response: Monte Carlo simulation is a well-established and
scientifically based tool of risk assessment. One of the primary
utilities of this method is its ability to account for uncertainty in
risk predictions. APHIS used Monte Carlo simulations because
uncertainty existed with regard to the true value of some of the
component probabilities. Monte Carlo simulations provided estimates of
risk in the desired format, i.e., risk expressed as a range of values,
each with an associated probability. Data are available that affect
each of the estimates made in the risk assessment. Much of the
information used by APHIS
[[Page 5298]]
to estimate risk can be found in the scientific sources listed in
section IV of the supplemental pest risk assessment. Section IV of that
document lists 58 separate sources of information, 53 of which are
scientific references; the remaining 5 can be considered ``regulatory''
references. APHIS is confident that its characterization of risk is
accurate. Although some commenters disagreed with our assessment of the
risk, no specific evidence was provided that indicated that the risk
assessment model should be changed or that the associated probability
estimates should be reconsidered.
Systems Approaches
Comment: The term ``systems approach'' should be defined in the
regulations.
Response: There is no need to define the term in the regulations
because the term is not used in the regulations. The term ``systems
approach'' is used in the preamble portion of the proposed rule and
this final rule, as well as in the two risk documents, to describe an
overlapping, redundant series of safeguards that, in this case, will be
applied to the importation of avocados from Mexico. The safeguards
themselves are set forth in the final regulations, but the term used to
describe those safeguards collectively is not.
Comment: APHIS compares its proposed systems approach for Mexican
avocados to the systems approaches used for the importation of Unshu
oranges from Japan, peppers from Israel, and tomatoes from Spain.
However, APHIS fails to mention that the Unshu oranges must be grown
and packed in isolated, canker-free export orchards surrounded by
disease-free buffer zones, or that the Spanish tomatoes and Israeli
peppers must be grown in insect-proof plastic screenhouses. Measures
such as orchard/buffer zone freedom from pests and enclosed growing
areas vastly reduce the pest risks presented by those commodities;
there is no equivalent degree of protection built into the proposed
system for Mexican avocados.
Response: In the proposed rule, we explained that APHIS uses
systems approaches to establish conditions whereby fruits and
vegetables may be imported into the United States from countries that
are not free of certain plant pests. There is no ``one size fits all''
systems approach; specific measures are necessary to address specific
pest risks, so different commodity/pest combinations will require
different approaches. Just as the systems approaches for Unshu oranges,
Spanish tomatoes, and Israeli peppers lower the pest risks associated
with each commodity to an acceptable level, we believe that the
required safeguards in this final rule will allow Hass avocados to be
safely imported into the United States by lowering the risk of pest
introduction to an acceptable level.
Comment: The proposed rule cites the systems approaches used for
Unshu oranges from Japan, peppers from Israel, tomatoes from Spain,
citrus from Florida and Texas, apples from Washington, and stonefruit
from California. These systems were put into place after multiple years
of data collection and analysis. The approach found in the proposed
rule, on the other hand, is based on barely a year's worth of data that
is flawed and generally incomplete; the systems approach is being
offered as a substitute for obtainable knowledge. APHIS holds its
domestic growers and trapping programs to a high standard of quality;
it is certainly reasonable to expect that an import program of this
magnitude be based on solid, supportable, long-term data.
Response: To characterize the systems approach for avocados as
being the product of ``barely a year's worth of data'' in contrast to
other programs that were put in place after multiple years of data
collection and analysis is inaccurate. Mexican government and industry
officials have been actively seeking permission to export avocados to
the United States since the early 1970's; the importation program
established by this final rule is based on data collected during those
years, as well as on information gathered by APHIS through its own
activities and research. We believe that the Mexican data, supplemented
by our own data collected over those years, is of sufficient quality
and quantity to provide the foundation upon which to base the
safeguards found in this final rule.
Comment: Much is made about the fact that the nine mitigating
measures are designed to ``individually and cumulatively reduce the
risk of pests.'' However, four of the nine measures (trapping and field
treatments, host resistance, post-harvest safeguards, and winter
shipment) are specifically designed to control fruit flies. The
remaining five safeguards do not act cumulatively to adequately address
the threats posed by the seed weevil and other avocado-specific pests.
Response: First, we believe that winter shipment is a mitigating
measure that has an effect on pests other than fruit flies because the
avocado stem and seed pests, like the fruit flies, would not survive
winter temperatures in the northeastern United States. More
importantly, however, we disagree with the commenter's assertion that
the safeguards do not have a cumulative effect on reducing the risk of
the avocado seed and stem pests. Those safeguards determine whether the
pests are present (field surveys), deny the pests opportunities to
establish a presence (field sanitation), ensure that pests have not
infested the avocado fruit (packinghouse inspection and fruit cutting,
port-of-arrival inspection), and deny the pests the opportunity to
become established in the United States should they somehow get in
(limited U.S. distribution, winter shipping). Those six safeguards are
each an individual means of detecting or preventing the presence of
pests; together, we believe they will reduce the risk of pest
introduction to an insignificant level.
Comment: A verification process for the systems approach must be
put in place so we can tell if the program is being followed and if the
program is effective.
Response: We believe that the necessary checks are already built
into the process to allow us to determine whether the program is being
followed. Throughout the growing, packing, and shipping processes,
APHIS personnel will be on hand to monitor compliance with the
regulations and to conduct sufficient inspections to determine the
phytosanitary condition of the fruit. That monitoring and inspection
will allow us to tell if the program is being followed and is
effective.
Comment: APHIS' experience with the failed program to import
Sharwil avocados from Hawaii should show APHIS that reliance on the
assumed non-host status of a commodity and on systems approaches can
result in little to no actual phytosanitary security.
Response: The Hawaiian Sharwil avocado program might be considered
to have been a failure from a commercial perspective if one was
interested only in moving Sharwil avocados from Hawaii to the mainland,
since the program was canceled following the detection of pests on the
avocados. From a quarantine perspective, however, the program could
accurately be described as a success because the safeguards built into
the program allowed us to detect the presence of pests and terminate
the program before those pests could be disseminated into the
continental United States. In terms of the pest/commodity interaction,
the situation in Hawaii differs from the situation in Michoacan. The
primary pest of concern for the Sharwil program was the Oriental fruit
fly, which is present at very high levels in Hawaii's avocado
[[Page 5299]]
production area. Oriental fruit fly utilizes a variety of host fruits
and will attack almost anything that is available due to its high
population density. The situation in Michoacan is not comparable
because Anastrepha spp. fruit flies are not present at high population
levels in the export orchards and, when compared to Oriental fruit fly,
Anastrepha spp. fruit flies have a restricted host range.
Comment: The risk management analysis describes the proposed
program as a systems approach consisting of nine mitigation measures
used to bring the identified pest risk to an acceptable level. However,
only the required field sanitation and fruit fly treatments actually
qualify as mitigation measures; the remaining components--trapping,
fruit cutting, visual inspection, etc.--are in actuality monitoring
tools. The proposed approach, therefore, would be more accurately (and
more credibly) described as a process for monitoring the efficacy of
cultivation, sanitation, and treatment procedures to allow for and
attest to the movement of uninfested fruit only. Such an approach is
not invalid, but it should be properly characterized in the final
report.
Response: Although field sanitation and fruit fly treatments are
the only two components of the systems approach that have a direct
effect on the field populations of pests, we believe that all nine
components can appropriately be characterized as mitigating measures
because what is being mitigated is the risk that an infested shipment
of avocados will enter the United States and result in pests becoming
established in this country. That risk can be mitigated by monitoring
the efficacy of cultivation, sanitation, and treatment procedures to
allow for and attest to the movement of uninfested fruit as well as
through field sanitation and fruit fly treatments.
Commercial Shipments
Comment: The proposed rule would require the avocados to be
imported in commercial shipments only, but fails to define the term
``commercial shipment.''
Response: The background information of the proposed rule draws a
distinction between commercial shipments and wild or ``backyard''
avocados, explaining that the two categories of produce are grown under
very different conditions. The term is not defined in the proposed
rule, however, largely because a definition for the term is already
present in the regulations. Specifically, the following definition of
the term commercial shipment appears in Sec. 319.56-1 of the
regulations (and thus applies to the regulations set forth in this
final rule): ``A shipment containing fruits and vegetables that an
inspector identifies as having been produced for sale and 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 or packing house on the packaging,
and documents consigning the shipment to a wholesaler or retailer.''
Comment: The proposal requires that trucks transporting avocados
from the packinghouse be sealed, but no mention is made as to where or
by whom the seal may be broken. It appears, then, that a truck could be
loaded with 500 boxes of avocados at a certified packing house, sealed,
then be driven to a mango packinghouse, reopened, and the rest of the
truck loaded with mangos or some other produce item. The truck then
could be driven to the border crossing at Nogales, AZ, for avocado
inspection. From Nogales, the mangos could be shipped to California or
some other southwestern State and the avocados shipped under U.S.
Customs bond on to the northeast. If the avocados contained any pests,
they could easily transfer to the other product and be shipped
anywhere.
Response: We intend that the refrigerated truck or refrigerated
container in which the avocados are transported be sealed at the
packinghouse and not opened until it reaches the United States. Mixed
loads such as those envisioned by the commenter will not be permitted.
The language in the regulations is not, as the commenter noted, clear
on those points, so in this final rule we have added language to
Sec. 319.56-2ff(c)(3)(viii) to make it clear that the truck or
container must remain unopened until it reaches the U.S. port of first
arrival.
Seasonal Restrictions
Comment: The proposed rule states that the avocados may be imported
from November through the month of February. Under proper storage
conditions, wholesalers and distributors can hold avocados for several
weeks past the end of February. Will businesses be required to dispose
of their Mexican avocado inventory come March 1st?
Response: The November through February restriction applies to the
importation of Mexican avocados, not to their distribution in the
approved States. Under the provisions of the proposed rule, for
example, a truckload of avocados could cross the border on the last day
of February, take several days to arrive at a market in an approved
State, and be first offered for sale by a wholesaler or distributor in
early March. Therefore, businesses will not be required to dispose of
their Mexican avocado inventory on March 1st of each year.
Comment: With controlled-atmosphere storage, Mexican avocados
imported at the end of February could theoretically be sold into the
month of April, when temperatures in some of the approved States could
be high enough to enable pests to become established. Therefore,
imports should be allowed only until mid-January to ensure that the
temperatures in the approved States at the end of the retail sales
period--not just the end of the importation window--are low enough to
preclude the survival and establishment of the pests of concern.
Response: Even with some type of controlled-atmosphere storage, we
do not believe it is likely that the shelf life of the Mexican-origin
avocados could extend into the month of April. Even if one of the pests
of concern were to infest the fruit, avoid detection, survive shipment,
and finally escape into the environment during a period of mild
weather, there would be no host material available to sustain a pest
population.
Distribution Within the United States
Comment: The proposed requirement for boxes in which the avocados
are shipped to be marked ``Distribution limited to the following
States: * * *'' will be meaningless as a deterrent to transshipment;
persons wishing to transship the avocados can easily repack the fruit
in other boxes. At the very least, APHIS should require that each
individual Mexican-origin avocado be marked with an indelible dye or
bear a sticker denoting its origin.
Response: We agree with the numerous commenters who made this point
and have added a stickering requirement to this final rule.
Specifically, we will require that each avocado fruit be labeled with a
sticker bearing the Sanidad Vegetal registration number of the
packinghouse in which the avocado was prepared for shipment to the
United States. We believe this stickering requirement will make it
easier to identify Mexican-origin avocados at terminal markets and
present an additional obstacle to transshipment of the fruit to non-
approved States.
Comment: The limited distribution scheme is an unrealistic concept,
given the open nature of the U.S. marketing and transportation systems.
The restrictions will be ignored because of high consumer demand for
avocados in
[[Page 5300]]
areas outside the approved States and the price disparity between
California and Mexican avocados. The price disparity will be even
greater when the $0.054 per-pound tariff cited in the proposed rule is
eliminated.
Response: If the limited distribution requirement was the only
means of risk mitigation available in the Mexican avocado import
program, the open nature of the U.S. marketing and transportation
systems would be a matter of concern. Limited distribution is, however,
only one of a series of safeguards designed to prevent the introduction
of pests into the United States through the importation of avocados
from Mexico. We do not expect limited distribution to be foolproof, but
we also do not expect that infested avocados will be entering the
United States through legally imported commercial shipments in the
first place. Further, we anticipate that unscrupulous distributors will
be the exception, rather than the rule, so we believe that the
restrictions on distribution of the avocados will be widely observed,
rather than ignored. As an earlier commenter pointed out, domestically
grown avocados are certainly available during the period when Mexican
avocados will be imported, so the high consumer demand anticipated by
the commenter in non-approved States could be met by domestic supply
and by those avocados that are already being imported to all regions of
the United States from Chile, the Dominican Republic, and the Bahamas.
With regard to the expected price differential between imported
Mexican-origin avocados and domestic avocados, the commenter is correct
in noting that the $0.054 per pound tariff will be eventually
eliminated. Under the North American Free Trade Agreement, all fees and
tariff rates on Schedule C commodities, including avocados, are to be
eliminated within 10 years, with a gradual decline of 10 percent per
year. Whether or not the price differential will give rise to a black
market for avocados or lead established distributors to knowingly
violate the law for the sake of profit is another matter. An
unscrupulous distributor who wished to illegally transship Mexican
avocados would have to pay the costs associated with obtaining a
shipment of imported Mexican avocados at wholesale prices from a
terminal market in an approved State, moving that shipment to a secure
location, unloading the boxes from the truck or container, removing all
the avocados from their packing boxes, peeling the sticker from each
piece of fruit, perhaps adding a new sticker to each piece of fruit,
repacking the fruit in new boxes, loading the boxes back onto the truck
or container, and driving the load of avocados across the country to
one of the expected high-demand markets (south Florida, Texas, and
California), all of which would limit the profitability of such an
illegal enterprise. We believe that this limited profit potential, when
combined with other factors such as the ready availability of domestic
and imported avocados in areas outside the approved States and the fact
that persons involved in such illegal transshipment are liable to legal
action, incarceration, or fines, makes it unlikely that large-scale
transshipment will take place.
Comment: In the risk documents and the proposed rule, APHIS asserts
that the Fruit and Vegetable Division of the Agricultural Marketing
Service (AMS) would notify APHIS if Mexican-origin avocados showed up
at terminal markets in non-approved States. The AMS would be in no
position to render such assistance because their responsibility is to
grade fruits and vegetables for export.
Response: The AMS does grade domestically marketed fruit, as well
as fruit intended for export, so AMS personnel will indeed be present
at terminal markets in non-approved States and will thus be in a
position to assist APHIS in identifying misdirected avocados.
Comment: In the risk documents and the proposed rule, APHIS asserts
that the AMS would notify APHIS if Mexican-origin avocados showed up at
terminal markets in prohibited States. How will AMS personnel--or APHIS
inspectors--be able to tell the difference between Mexican-origin Hass
avocados and Hass avocados that originated in domestic groves or were
imported from Chile?
Response: Domestically grown Hass avocados and Hass avocados
imported from Chile will be clearly labeled and readily identifiable,
since there is no reason for a distributor or other person to disguise
their origin. Similarly, the Mexican avocados will be packaged and
individually labeled to indicate that they originated in Mexico, so a
person wishing to sell transshipped Mexican avocados in a terminal
market in a non-approved State would have to go to some lengths to
disguise the origin of the fruit. As discussed in the response to a
previous comment, we do not believe that the level of profit that might
be expected from selling transshipped Mexican avocados would be great
enough to entice a significant number of people to engage in such
illegal activity.
Comment: The commissioner of agriculture in one State and the
governor of another have noted that consumers, processors, and
distributors in their States have expressed interest in the
availability of Hass avocados from Mexico and would like to see the
list of approved States expanded to include their respective States.
Response: The placement of additional States on the list of
approved States would have to be part of a subsequent rulemaking. The
public must be given an opportunity to comment on the inclusion of
additional States, and importations into the non-approved States were
not considered in the supplemental pest risk assessment and risk
management analysis prepared for July 1995 proposed rule, so we do not
have sufficient information regarding the potential plant pest risk
associated with importing Mexican avocados into other States. New
States may be added in the future if APHIS receives a request to do so
and the agency determines that avocados can be imported into that State
without presenting a significant pest risk; if such a determination is
made, a proposed rule to add the State would be published in the
Federal Register.
Comment: Part of the rationale behind APHIS' limited distribution
safeguard is the contention that there is no suitable host material to
sustain the pests of concern, especially the avocado-specific pests.
There is, however, the possibility that the avocado seed weevils and
the avocado seed moth could become established in the northeastern
United States by using red bay (Persea borbonia), a relative of avocado
(Persea americana), as a host. Red bay is a host of Heilipus apiatus,
which is closely related to the large avocado seed weevil Heilipus
lauri.
Response: Although H. apiatus is related to H. lauri, H. apiatus is
a stem borer, not a seed pest. It is very unlikely that H. lauri,
Conotrachelus aguacatae and C. perseae could survive by feeding on the
small seeds of red bay (fruit size 1-2 cm.). In addition, the seed moth
is found only at lower elevations in the tropics, even though the host
is grown commonly at higher elevations. In fact, all of the pests of
concern become rare or are completely absent at the higher elevations.
Although specific temperature threshold information for these pests may
be scarce or absent, there is no reason to believe that these tropical
or subtropical pests could survive the winters in the approved States.
[[Page 5301]]
Trust Fund Agreement and APHIS Participation
Comment: APHIS and Mexico need to recognize that APHIS is neither
adequately staffed nor funded to properly deal with this proposed
importation program. This limitation could be waived if all APHIS
incurred costs were borne by Mexico.
Response: The proposed rule clearly stated that all costs
associated with APHIS' participation in the program would be paid by
the Mexican avocado industry association through a trust fund agreement
with APHIS. Paragraph (b) of proposed Sec. 319.56-2ff stated, in part,
that the Mexican avocado industry association would be required to
``pay in advance all costs that APHIS expects to incur through its
involvement in the trapping, survey, harvest, and packinghouse
operations * * *'' Those provisions are the same in this final rule.
The costs of inspecting imported agricultural commodities at the port
of first arrival are recovered, when applicable, by user fees.
Comment: The Mexican avocado growers should be required to post a
bond or to somehow insure or indemnify their product, so that in the
event of a pest infestation, domestic avocado growers would receive
some financial compensation for their losses.
Response: We believe that requiring Mexican growers to somehow
indemnify their product would be unnecessary and ill-advised, largely
because no country in the world requires the indemnification of
agricultural products offered for importation; if the United States
were to set a precedent and require such indemnification, it would be
only a matter of time before our domestic agricultural producers would
be required to indemnify their products offered for export. Any grower
or farmer has little control over his or her produce once it has left
the grove or farm, let alone once it has been exported to another
nation. To ask that grower or farmer to insure his or her produce from
the farm gate to the end consumer would be unfair at best, especially
in this instance, given that the regulations prohibit the distribution
of Mexican Hass avocados in U.S. avocado-growing States. Finally,
requiring such indemnification would run counter to our obligations
under current international trade agreements and would certainly be
subject to challenge by Mexico and other potentially affected trading
partners.
Safeguards in Mexico
Comment: Why does Sanidad Vegetal, an agency of the Mexican
national government, have to hire, train, and supervise the personnel
who will be involved in trapping and conducting the pest surveys?
Mexico does not require the USDA to hire, train, and supervise the
personnel engaged in similar activities in California or Washington,
for example. Mexico accepts the results provided by State-level
personnel, as should APHIS.
Response: The commenter is correct in pointing out that Mexico--and
many other countries as well--accepts the plant-health-related work
performed in the United States by State personnel. We have, therefore,
modified the regulations in this final rule to allow the personnel who
conduct the trapping and pest surveys in Michoacan to be hired,
trained, and supervised either by Sanidad Vegetal, as was proposed, or
by the Michoacan State delegate of the Secretaria de Agricultura,
Ganaderia y Desarrollo Rural (Secretariat of Agriculture, Livestock,
and Rural Development), who holds a position that is roughly equivalent
to that of a State agriculture commissioner in the United States.
Comment: The supplementary pest risk assessment states that ``any
proposed program would include * * * field surveys for specific avocado
pests at the State, municipality, and grove levels,'' but the area
surveys called for in the proposed rule appear to be only at the
municipality and grove levels.
Response: The reference to State-level surveys in the supplementary
pest risk assessment was an error. State-level surveys were not part of
the Mexican work plan, nor were they considered in the risk management
analysis or the proposed rule. More importantly, however, no estimates
of risk or risk reduction were based on the expectation that State-
level surveys would be conducted. We believe that the required
municipality- and grove-level surveys, which focus on detecting pests
in the production areas, will provide us the necessary pest population
information.
Comment: The supplemental pest risk assessment states that one
factor in the assessment that affects risk management is the assumption
that all traces of stems and other plant material would be removed from
the avocados before packing. The proposed regulations, however, do not
mention removing stems.
Response: The statement to which the commenter is referring can be
found on page 8 of the supplemental pest risk assessment. Freedom from
stems and other kinds of plant material is one of the ``Quarantine 56
conditions'' that the risk assessment assumes will be in effect, which
is indeed the case. Paragraph (a) of Sec. 319.56-2 requires that ``all
importations of fruits and vegetables must be free from plants or
portions of plants, as defined in Sec. 319.56-1.'' Plants or portions
of plants is defined as ``leaves, twigs, or other portions of plants,
or plant litter or rubbish as distinguished from clean fruits and
vegetables, or other commercial articles.'' We have added language to
the packinghouse requirements in Sec. 319.56-2ff(c)(3) to make it clear
that stems, leaves, and other portions of plant must be removed from
the avocado fruit.
Comment: The proposed rule calls for dead branches to be pruned and
removed from the orchards, but provides no set schedule for those
actions to occur. Without a more precise schedule, the practice may not
effectively prevent stem weevil infestations. Tree pruning should be
timed to remove dead or dying branches before adult stem weevil
emergence in the spring or the fall. Spring removal and destruction of
dead or dying branches would help to break the reproductive cycle and
reduce the population level of any adult stem weevils that may be
present in those orchards.
Response: No prescribed schedule was included because we intend for
the removal of dead branches to be a continuing part of an orchard's
management and upkeep. The regulations in this final rule require, as
was proposed, that ``[d]ead branches on avocado trees in the orchard
must be pruned and removed from the orchard.'' That requirement is one
of the conditions under which any approved orchard must operate.
Comment: The proposed rule calls for avocado fruit that has fallen
from the trees to be removed from the orchards prior to harvest. Given
the fact that such fruit is more likely to be infested by pests,
removal of fallen fruit should be part of a regular field sanitation
routine, not merely be a pre-harvest event.
Response: We agree that removing fallen fruit as a regular practice
would lower the risk of fruit fly attraction within an orchard and
would thereby lower the overall fruit fly population in an orchard.
Therefore, we have changed Sec. 319.56-2ff(c)(2)(iii) in this final
rule to require that fallen fruit be removed from export orchards at
least once a week.
Comment: It will be all but impossible for the registered growers
in Michoacan to patrol their approved orchards often enough to remove
all the avocado fruit
[[Page 5302]]
that has fallen from the trees prior to harvest, and it is unrealistic
to expect that pickers who are paid by the bin or by the pound will not
place fruit from the ground into their field boxes during the harvest,
thus increasing the risk that infested avocados will be exported to the
United States. How will APHIS enforce these requirements?
Response: Although it is unlikely that any orchard could ever be
kept completely free of fallen fruit, we believe that it is possible
for a grower to keep up with most of the fallen fruit by following
sound field sanitation practices. As noted in the response to the
previous comment, we will require that fallen fruit be removed from the
orchard on a weekly basis, rather than just before harvest. Because a
finding of infested fruit will result in the suspension or withdrawal
of an orchard's export certification, it is in a grower's best economic
interests to prevent fallen fruit from being intermingled with
harvested fruit. Inspections at the packinghouse prior to and during
the culling process, along with subsequent inspections in the United
States, are expected to alert us to the presence of pests, and frequent
checks by APHIS and Sanidad Vegetal inspectors will help ensure that
the requirements of the regulations are being observed.
Comment: It is highly unlikely that avocados in the approved
orchards could be harvested by pickers, dumped into bins or other
containers, loaded onto trucks, and covered in less than 3 hours after
being picked. It is more likely that the fruit will be exposed for
longer periods of time and thus exposed to potential fruit fly
infestation. How will APHIS be able to supervise these requirements?
Response: We acknowledge that a grower may not be able to transport
all his avocados to the packinghouse within 3 hours of harvesting them,
so there are provisions for protecting the fruit until it is moved.
Specifically, the regulations in this final rule require, as was
proposed, harvested avocados to be ``moved from the orchard to the
packinghouse within 3 hours of harvest or they must be protected from
fruit fly infestation until moved.'' APHIS inspectors and Sanidad
Vegetal personnel will be monitoring the export groves during harvest
and will ensure that these and all the other requirements of the
regulations are met.
Comment: The Mediterranean fruit fly (Medfly) has been found at
high levels in the Mexican State of Chiapas, which is close to the
State of Michoacan. In order to monitor potential Medfly movement into
the Michoacan region, monitoring for Medfly at a higher trap density
than called for in the proposed rule is needed.
Response: Given the history of Medfly's spread and the spread of
other fruit flies, we believe that Medfly is unlikely to migrate the
650 miles from Chiapas to Michoacan. The trapping densities and trap
types required in this final rule for Medfly monitoring in Mexico are
the same as those used to monitor for Medfly in California, where much
of the State's fruit production area lies within 650 miles of the
recent Los Angeles Basin infestation.
Comment: Field surveys are defined by APHIS as the most effective
safeguard for protection against avocado-specific pests, but these
surveys rely almost exclusively on programs under the direction of
Sanidad Vegetal. If this is to be the most effective line of defense
against the introduction of the seed weevil, APHIS should be directly
involved in implementing this program and not merely monitoring the
process.
Response: With regard to the required safeguards, including field
surveys, the regulations in Sec. 319.56-2ff(c) clearly state that
``APHIS will be directly involved with Sanidad Vegetal in the
monitoring and supervision of those activities.'' APHIS personnel will
be present in Michoacan in a supervisory and monitoring capacity to
ensure that the required safeguards are being observed, not to conduct
field surveys for the Mexican avocado industry.
Municipality Requirements
Comment: A survey should be required for the avocado seed moth, and
sex lure or food bait traps should be used to monitor for the avocado
seed moth.
Response: In this final rule, as in the proposed rule, the
regulations in Sec. 319.56-2ff(c)(1)(ii) require that each municipality
be surveyed at least annually for the avocado seed moth and the other
avocado seed pests. A sex lure or food bait is not available for use in
trapping for the avocado seed moth, but we continue to believe that the
annual survey required by the regulations will serve to alert us to the
presence of this and other pests in the municipalities, and that the
other safeguards in the regulations will ensure that shipments of
avocados will be free of the pests of concern.
Comment: The proposed regulations call for at least 300 hectares of
each municipality to be surveyed for seed weevils and seed moths at
least annually. While the proposal states that ``portions'' of each
registered orchard and areas with wild or backyard avocado trees must
be included in the survey, the term ``portions'' is not defined and is,
thus, open to interpretation. Additionally, there is no explanation of
how a 300-hectare survey per municipality will yield a 95 percent
confidence level of detection. How can a single annual survey of 300
hectares serve as the basis for calling a municipality free of seed
weevils and seed moths?
Response: We did not specify a minimum size for the ``portions'' to
be surveyed because the survey must include portions of each registered
orchard and areas with wild or backyard avocado trees, and the number
of those areas will vary between municipalities. However, the work plan
in which Sanidad Vegetal will set forth the details of the survey
activity will have to be approved by APHIS, and APHIS personnel will be
supervising the surveys, so we will be able to ensure that Sanidad
Vegetal continues its current practice of reflecting the size of an
orchard in the size of the surveyed area, i.e., surveying larger
orchards more widely than smaller orchards. The overall survey size of
300 hectares per municipality was selected to ensure that there would
be a 95 percent or greater confidence level, independent of the size of
the municipality, that the survey would detect the pests if they occur
in 1 percent or more of the commercial growing areas within the
municipality. The only way to approach a 100 percent confidence level
would be to survey every tree, which is not practical. It should be
noted that the municipality must be found free of the avocado seed
pests--i.e., none found during the entire 300-hectare survey--and that
the survey must be conducted during the growing season and prior to the
harvest of the avocados. The nature and timing of this annual survey
offers a high degree of assurance that the avocados exported to the
United States will be free from avocado seed pests.
Comment: Field survey is a critical element. The survey protocol is
set up to have a 95 percent confidence level of finding 1 percent
infestation; this assumes an evenly distributed infestation, not the
more likely scenario of certain groves being more likely infested than
others and a spotty distribution of weevils within an infested grove.
Response: We believe that the field surveys required by the
regulations, which will be supervised by APHIS, are already designed to
address the uneven distribution thought likely by the commenter. The
required surveys will include each registered orchard, so every grove
from which avocados will
[[Page 5303]]
be exported to the United States will be inspected; areas with wild or
backyard avocado trees will be surveyed as well. Within each registered
orchard, the APHIS personnel supervising the surveys will ensure that
the survey sites are randomly selected to provide a reliable means of
detecting uniform or spotty distributions of pests within each orchard.
(To make that requirement clear, we have added the words ``randomly
selected'' to Sec. 319.56-2ff(c)(1)(ii) in this final rule to describe
the selection of survey sites within each orchard.)
Comment: The proposed regulations call for at least 300 hectares of
each municipality to be surveyed for seed weevils and seed moths at
least annually. Have any of those surveys been conducted yet? APHIS
should have conducted its own survey to determine the municipalities to
be free of the avocado seed pests and fruit flies before publishing the
proposed rule.
Response: Seed pest surveys have been conducted routinely by
Sanidad Vegetal for its own programs over the past several years, but
the surveys called for by the regulations have not been conducted yet
because Sanidad Vegetal and APHIS do not know which municipalities and
orchards will register to participate in the avocado export program.
When the work plan is submitted and the participating municipalities
and groves are identified, APHIS will be directly involved with Sanidad
Vegetal in the monitoring and supervision of the surveys.
Sanidad Vegetal Avocado Export Program
Comment: APHIS claims in the proposed rule that over 5 million
kilograms of avocados have been exported to Japan during the last 3
years under the Sanidad Vegetal Avocado Export Program with no recorded
interceptions of the 8 pests of concern. APHIS failed to mention,
however, that one quarter of all Mexican avocado shipments to Japan
were fumigated after live pests were discovered. In addition, the
Japanese inspectors do not routinely cut fruit as part of their
inspection process. Finally, Japan and the other countries to which
Mexican avocados are exported do not have domestic avocado industries,
so there is significantly less risk for those countries from the start.
Response: It is Japanese plant protection policy to fumigate an
imported commodity from any country when any live organism is found--
regardless of the organism's quarantine or pest status--so it is not
accurate to characterize the fumigation of Mexican avocados by Japan as
being solely in response to the detection of live pests. What is of
primary importance is the fact that the Japanese have not detected the
presence of any of the eight pests of concern to APHIS. APHIS did not
claim that Japanese plant protection officials cut fruit as part of
their routine inspection. The Japanese have sampled and carefully
examined approximately 50,000 avocados over the last 3 years, cutting
the fruit if external signs of pests indicate the need to do so.
Finally, there is less risk posed to a country without a domestic
avocado industry, but only in terms of avocado-specific pests; such a
country would still seek to identify and mitigate, as necessary, the
risks presented by other pests such as Anastrepha spp. fruit flies.
Orchard and Grower Requirements
Comment: Under the proposed regulations, APHIS would allow an
orchard to continue shipping even after more than one Anastrepha spp.
fruit fly is discovered during a 30-day period, provided malathion bait
sprays were applied. The proposed rule states that this protocol is
similar to those used in Texas and Florida; however, Florida orchards
are eliminated from their export program if two Caribbean fruit flies
are discovered in an orchard. Why is there a disparity?
Response: In the proposed rule, we stated that the procedures for
fruit fly trapping, increased trapping in response to a fruit fly
detection, and pesticide treatments in response to additional
detections in the Mexican avocado program were similar to the
procedures used by APHIS in citrus fruit production areas of Florida
and Texas where Anastrepha spp. fruit flies exist. The similarities can
only carry so far, however, when there are differences in the pest of
concern, the susceptibility of the commodity to infestation, or both.
Accordingly, the program response to the capture of Caribbean fruit
flies (Anastrepha suspensa) in a Florida citrus grove differs from the
program response for the capture of Anastrepha ludens, A. serpentina,
or A. striata in a Mexican avocado grove. APHIS believes that the
systems approach used in each case, although different, adequately
reduces the risk to an insignificant level in their respective pest
situations.
Comment: The proposed regulations would require trapping for
Anastrepha spp. fruit flies throughout the year in production areas.
Research shows that Hass avocados are not fruit fly hosts; therefore,
trapping for fruit flies should not be required in avocado production
areas. If the requirement is maintained, Mexican avocados should be
allowed entry into the United States without seasonal or geographic
restrictions.
Response: We disagree with the commenter's contention that fruit
fly trapping is unnecessary. Although we do believe that Hass avocados
still on the tree are non-preferred hosts for Anastrepha spp. fruit
flies, we nonetheless believe that it is prudent to require trapping in
the production areas to allow us to monitor the population levels of
the fruit flies. Significant increases in fruit fly populations in the
production areas would increase pest pressure on the avocados, which
would necessitate a reassessment or adjustment of the program's fruit
fly risk mitigation measures. We continue to believe that the fruit fly
trapping, along with the seasonal and geographic restrictions and the
other elements of the program, are necessary to provide for the safe
importation of avocados from Mexico.
Comment: The Anastrepha spp. trap density of 1 trap per 10 hectares
is too low for effective monitoring. The biological reality is that
adult fruit flies would move between various hosts in the region as
different hosts become more or less attractive for oviposition. A
proper regional trapping program should be established that includes
buffer areas around orchards. Also, the attraction range of McPhail
traps is small--a few feet or meters--compared to other trap types.
Relying on traps of this type and trap densities at this low a level
could allow fruit fly population levels to increase significantly
without detection.
Response: The Anastrepha spp. fruit fly trapping is intended to
indicate whether fruit fly populations are present in production areas,
rather than in areas where wild or alternative host material may be
grown, which is why the trapping is to be conducted in the orchards. We
believe that the required trap density of 1 trap per 10 hectares will
be sufficient to indicate the presence of fruit fly populations in the
orchards. In the United States, the national detection protocol for
Anastrepha ranges from 1 trap per 10 square miles to 5 traps per square
mile; the Rio Grande Valley and Florida citrus protocol for Anastrepha
ranges from 5 to 15 traps per square mile. The density required in the
Mexican orchards--1 trap per 10 hectares--works out to approximately 25
traps per square mile, which is the same density required to maintain
the fruit-fly-free zone in the Mexican State of Sonora. With regard to
the type of traps used, we believe that some of the other traps
currently available may be comparable to the McPhail trap, but none are
better for monitoring for Anastrepha fruit flies.
[[Page 5304]]
Comment: Field trapping data can, and likely will, be modified to
get the ``right'' answer.
Response: APHIS will be directly involved with Sanidad Vegetal in
the monitoring and supervision of all required activities in Mexico,
including the trapping. We believe this routine supervision and
monitoring will discourage any tampering with trapping data, especially
considering that an orchard or even an entire municipality could be
subject to suspension or expulsion from the export program if caught
falsifying trapping data. Further, trained APHIS personnel will be
present in the municipalities, orchards, and packinghouses throughout
the growing season and harvest and would thus be in a position to
notice the discrepancies between falsified data and actual conditions.
Comment: The proposed regulations call for certain actions to be
taken if a fruit fly is trapped in an orchard, but the protocol for the
number of malathion treatments to be used and when export shipments
could be resumed in relation to fruit fly finds is unclear.
Additionally, nothing is said with regard to actions that would be
taken in the event of fruit fly larvae being found in avocado fruit.
Response: As stated in the proposed rule and in this final rule,
the trapping of a single fruit fly in an export orchard will require
the deployment of at least 10 additional traps in the 50-hectare area
surrounding the trap in which the fruit fly was found, and any
additional finds within 30 days in the 260-hectare area surrounding the
first find will necessitate the application of malathion bait
treatments in the affected orchard in order for the orchard to remain
eligible to export avocados to the United States. Exports from the
orchard would not be suspended based on fruit fly finds alone, so the
resumption of export shipments in relation to fruit fly finds is not
addressed in the regulations. If, however, the grower failed to apply
malathion bait treatments when required, the orchard would lose its
export certification and the grower would have to requalify for that
certification before exports from the orchard could resume. The
specific protocol for the number of malathion treatments that would
have to be applied in the orchard is not spelled out in the
regulations; rather, the applicable protocols would be detailed in the
annual work plan prepared by Sanidad Vegetal and approved by APHIS that
details the activities that Sanidad Vegetal will carry out to meet the
requirements of the regulations. The detection of fruit fly larvae in
avocado shipments at the packinghouse or during subsequent inspections
will automatically result in the rejection of the infested shipment
based on its failure to meet the requirement for freedom from pests and
will trigger an evaluation of the export program.
Comment: Under the proposed regulations, APHIS would allow an
orchard to continue shipping even after more than one Anastrepha spp.
fruit fly is discovered during a 30-day period, provided malathion bait
sprays were applied. The discovery of additional flies found within 1
month, or preferably one life cycle, should require, in addition to
malathion and bait treatments, the suspension of any exports until 30
days or, again, preferably one life cycle, has passed with no new
detections. This would help assure that any fruits that might contain
fruit fly eggs or larvae are not shipped.
Response: We believe that the poor Anastrepha host status of Hass
avocados, along with the application of malathion bait treatments,
increased trapping, lower wintertime fruit fly activity, and the
required post-harvest safeguards makes it unnecessary to suspend
exports from a grove based on the trapping of more than one fruit fly
within a 260-hectare area centered within the grove.
Packinghouse Requirements
Comment: The proposed rule would require 250 avocados per shipment
to be selected, cut, and inspected at the packinghouse prior to the
culling process. To reach a 95 percent confidence level of detecting a
1 percent infestation rate, at least 300 avocados should be inspected.
Response: We agree with the commenter. Depending on the size of the
fruit and the number of field boxes, the size of a shipment could range
between 1,000 and 4,000 avocados; hypergeometric tables indicate that
the sample size needed to reach the 95 percent confidence level of
detecting a 1 percent infestation would vary between 258 and 288 fruit.
Therefore, we have changed the required sample size in Sec. 319.56-
2ff(c)(3)(iv) to 300 fruit.
Comment: No size is given for a ``shipment,'' yet the proposed
regulations say to cut 250 fruit per shipment in the packinghouse prior
to the culling process. With a large shipment, cutting 250 fruit could
yield a near-zero confidence level of detecting 1 percent or greater
infestation. Sample size must bear some relationship to the total lot
size.
Response: As noted in the previous response, the size of a shipment
could vary between 1,000 and 4,000 avocados, and hypergeometric tables
indicate that a sample size of 288 avocados would be sufficient to
detect a 1 percent infestation in a shipment of 4,000 avocados with 95
percent confidence. Because we will require 300 avocados to be sampled
from each shipment, and because increasing the sample size above that
level will not significantly increase the statistical probability of
detecting a 1 percent infestation, we have not made any changes in
response to that comment.
Comment: It is not unreasonable to expect that some growers in
Mexico will take avocados from non-certified groves to a certified
grove or an export packinghouse and attempt to pass the avocados off as
having been grown in a certified grove. What safeguards will be in
place to prevent this from happening?
Response: As stated in the proposed rule and in this final rule, a
finding of any of the avocado seed pests Heilipus lauri, Conotrachelus
aguacatae, C. perseae, or Stenoma catenifer in a municipality during an
annual pest survey, orchard survey, packinghouse inspection, or other
monitoring or inspection activity will result in the municipality's
loss of its pest-free certification and the suspension of avocado
exports from that municipality until APHIS and Sanidad Vegetal agree
that the pest eradication measures taken have been effective and that
the pest risk within that municipality has been eliminated. Similarly,
a finding of the stem weevil Copturus aquacatae during an orchard
survey or in a packinghouse will result in an orchard losing its export
certification for the entire shipping season of November through
February. Because avocado fruit from non-certified groves presents a
greater pest risk than does fruit grown in certified groves, we believe
that it is unlikely that the growers and packers in an approved
municipality would allow their entire export operation to be
jeopardized by allowing potentially infested fruit from non-certified
orchards to be commingled with their export-quality fruit. In addition
to that purely economic disincentive, APHIS and Sanidad Vegetal
inspectors will also be present in the municipalities, orchards, and
packinghouses during the shipping season to ensure that all
requirements of the regulations are being observed.
Comment: It will be difficult for inspectors in packinghouses or at
the border to detect the presence of stem weevils in avocados once the
fruit has been washed because washing removes the white residue or
``sugaring'' that is
[[Page 5305]]
found on the fruit when stem weevils are present.
Response: Under the inspection system contained in the proposal and
in this final rule, packinghouse inspection would occur after the fruit
has been removed from the field boxes and before the fruit has been
washed, so any white residue would still be visible. However, detecting
the presence of stem weevils after washing is also possible with proper
training, as is evidenced by the hundreds of instances in which APHIS
inspectors at the El Paso, TX, border crossing have detected the pest
in avocados confiscated from smugglers.
Shipping Requirements and Restrictions
Comment: Illinois should be eliminated from the list of approved
States because of the large number of terminal markets in Chicago that
regularly ship produce to unapproved States. It would be too difficult
to prevent Mexican avocados from being shipped to unapproved States
from Chicago.
Response: The fact that a distributor in one State may deal with a
distributor in another State was not a significant consideration in the
compilation of the list of approved States. Certainly, any distributor
in any State who was determined to transport avocados outside of the
approved States could likely do so, be he in Maine or Illinois.
Illinois and the other approved States were requested as markets by
Mexico because the cold winter climate and general unsuitability to
tropical pest infestation of those States offered an additional
safeguard for the proposed export program, reasoning with which APHIS
agreed. Distributors in States on the southern and western periphery of
the approved area are likely to deal with customers in neighboring
States; if those States were eliminated from the list of approved
States, we would simply be left with another group of States that
border on non-approved States.
Comment: Ports of entry in Texas should not be limited to those
listed in the proposed rule; rather, APHIS should issue permits that
would be valid for multiple ports in order to preserve competition.
Response: The Texas ports of entry were selected because they are
staffed by APHIS inspectors who are experienced with dealing with
avocado shipments. We believe that the seven Texas ports of entry
listed in the regulations will be adequate to meet the needs of
importers who wish to receive their products through Texas. If there is
a demonstrated need for additional ports of entry in Texas or
circumstances otherwise warrant the addition of new ports of entry for
Mexican avocados, such an addition to the list of ports would have to
be proposed as part of a future rulemaking.
Comment: The proposed rule would require the avocados to be moved
through the United States by air or in a refrigerated truck or rail
car, as temperature is critical to the suppression of these known
pests. I would think a temperature recording device showing that the
avocados have been held under refrigeration at 40 degrees through the
transporting period would be mandatory. I see no reason for a
refrigeration requirement without a temperature and temperature
recording requirement.
Response: The cooler temperatures in Michoacan and the cold
temperatures in the approved States played a role in our assessment of
pest risk, but the requirement for refrigerated trucks, containers, or
rail cars was not specifically identified as a mitigating measure in
the supplemental pest risk assessment or in the risk management
analysis. By the time the avocados have entered the United States,
keeping the temperature of the fruit low during transport contributes
as much to maintaining fruit quality as it does to suppressing possible
pest activity. The importer of the fruit would certainly expect that
the fruit would be in the best possible condition upon its arrival in
an approved State, and the person transporting the fruit would seek to
meet that expectation. Therefore, we do not believe it is necessary for
APHIS to require that temperature logs be maintained by the person
transporting avocados imported into the United States from Mexico.
Comment: How will APHIS ensure that shipments of avocados are not
diverted to non-approved States during transit?
Response: The avocados will be required to travel under a bond
posted by the importer with the U.S. Customs Service. The bond serves
to guarantee that the shipment will be delivered intact to the
destination listed on the permit issued for its importation; if the
shipment does not arrive at its destination, the fact that the in-bond
papers have not been closed out will serve to notify Customs and APHIS
that the permit requirements have been violated. Persons violating the
conditions of the permit and the in-bond agreement are liable to
forfeiture of the bond and significant civil and criminal penalties.
Comment: The shipping corridor should not extend as far to the
north as was proposed; there are too many routes leading west in the
northern area of the corridor.
Response: We believe that the routes that lead north and east from
El Paso, TX, would likely be used by shippers, especially those with
destinations in the western portion of the approved States. As noted in
the response to the previous comment, significant penalties can be
assessed on shippers who fail to observe the conditions of the permit.
Comment: Nogales, AZ, and El Paso, TX, should be eliminated as
ports of entry for Mexican avocados bound for the northeastern United
States. These ports are so far west that diversion of shipments to the
high-demand California markets would be likely.
Response: Nogales and El Paso are each situated at the northern end
of a major north-south Mexican highway and are significant hubs for
U.S./Mexican trade. These ports are staffed with APHIS personnel
experienced with handling avocado shipments and are currently used as
ports of entry for avocados and other restricted products such as
citrus fruit and mangoes that are moving through the United States to
destinations outside the United States under the plant quarantine
safeguard regulations in 7 CFR part 352. The permit and bond agreement
under which the avocados will be shipped will clearly delineate the
areas through which the avocados may be moved and, as noted in the
responses to the previous two comments, significant penalties can be
assessed on shippers who fail to observe the conditions of the permit.
Inspection
Comment: Inspection at the port of first arrival is a weak link in
the systems approach. Given the risk presented, an inspection scheme of
closer to 100 percent would be more appropriate than the current plan.
Response: Inspection at the port of first arrival is intended to
accomplish two goals. First, inspectors check the documents
accompanying the shipment to ensure that the avocados are from an
approved orchard and were processed in an approved packinghouse and are
accompanied by a phytosanitary certificate. The inspectors also ensure
that the limited distribution statement appears on all boxes, that a
U.S. Customs Service bond has been secured for the shipment, and that
the in-bond papers indicate that the shipment is consigned to an
importer in an approved State. Second, the inspectors will select a
sample of fruit from each shipment and carefully cut and inspect those
avocados to verify their pest-free status. Inspection at the port of
first
[[Page 5306]]
arrival is essentially a redundant safeguard that serves to verify that
all the regulatory requirements applicable to the importation of the
avocados have been met.
Comment: Inspections are likely to be negatively impacted by the
numbers of boxes coming through.
Response: Given the number of ports of entry and the expected
volume of imported Mexican avocados, we do not believe that APHIS
inspectors at the ports of entry will be faced with an overwhelmingly
large number of shipments. In all cases, shipments of avocados being
offered for entry into the United States will be inspected in
accordance with the regulations.
Comment: The proposed regulations state that the avocados, upon
arrival at the terminal market in the northeastern States, are subject
to inspection. I would think an inspection would be mandatory and
should reflect temperature and fruit condition on arrival.
Response: As noted in the response to the previous comment, we will
inspect all shipments of avocados offered for importation into the
United States from Mexico. APHIS personnel are not routinely assigned
to terminal markets, so we cannot require that an additional inspection
be conducted when the avocados arrive at their destination. Under the
Federal Plant Pest Act (FPPA), APHIS does have the authority to inspect
the avocados at the port of first arrival, at any stops in the United
States en route to the northeastern States, and upon arrival at the
terminal market in the northeastern States; the regulations in
Sec. 319.56-2ff(i) reflect that authority.
Other Comments
Comment: The proposed rule is silent with regard to issues of
liability, which is a matter that could affect many businesses. For
example, a distributer cannot police the product once it has been sold,
but there are distributors in the approved States who routinely do
business with customers who operate both inside and outside of the
approved States. To the extent that there is potential enforcement
action against wholesalers, brokers, and distributors, it should be
clear as to the penalties for violating the regulations.
Response: Just as is the case with all apparent violations of APHIS
regulations, the Agency's Regulatory Enforcement staff would examine
the case and conduct an investigation to ascertain the facts of the
case. Subsequent actions could range from warnings to civil penalties
to recommendations for criminal prosecution, depending on the facts of
each particular case.
Comment: There is a basic conflict of interest between APHIS' new
mandate to facilitate international (import) trade and its historical
mandate to prevent the introduction and establishment of exotic pests.
The proposed rule is biased toward promoting trade to the detriment of
pest exclusion and is a clear departure from established APHIS
protocols for pests with major potential impact such as Anastrepha spp.
fruit flies.
Response: APHIS' primary responsibility with regard to
international import trade is now, and has been for many years, to
identify and manage the risks associated with importing commodities.
Because, as we have already noted, there is no such thing as zero risk
in international trade, reducing risk to an insignificant level is the
only realistic approach. If there is no practical way to mitigate a
particular risk associated with a product, APHIS will prohibit that
product's entry into the United States, as is our right under current
international trade agreements; we have done so in the past and will
continue to do so when warranted. However, when we determine that the
risk can be reduced to an insignificant level, it is our responsibility
under those same trade agreements to make provisions for the
importation of that product. In terms of facilitating trade, APHIS'
role is solely in the area of exports, i.e., working to eliminate
obstacles to the exportation of commodities produced in the United
States. The systems approaches for citrus from Florida and Texas,
apples from Washington, and stonefruit from California that we cited in
the proposed rule are examples of ways that we have found to answer the
pest concerns of our trading partners in order to enable the
exportation of domestically grown fruits and vegetables. Just as we
seek to open foreign markets to our Washington apples or California
stonefruit, however, we must also listen to the requests of other
nations seeking to export their products to the United States.
Comment: Will APHIS provide for monitoring and trapping in the
United States for the fruit flies and seed pests once Mexican avocados
are allowed into the country? Are there procedures for such monitoring?
Response: APHIS already has an established national fruit fly
monitoring program in place, and monitoring for certain other exotic
pests is conducted by Federal and State agencies participating in the
Cooperative Agricultural Pest Survey (CAPS) program. In addition to
these formal programs, the day-to-day observations of homeowners,
growers, and cooperative extension service agents also play a role in
the detection of pests across the country.
Comment: What actions will the Federal government take if pests are
introduced into the United States through the importation of avocados
from Mexico? Will the Federal government pay for pest eradication if
the introduced pests become established? Are there quarantine
treatments available for use in the United States to qualify affected
commodities for interstate movement and export if the introduced pests
become established?
Response: APHIS' Domestic and Emergency Operations staff has
prepared a draft emergency action plan that addresses the Federal
response in the unlikely event that a pest outbreak occurs. As with any
pest outbreak, APHIS would cooperate with any affected States in
assessing the extent of an outbreak, applying mitigative measures to
eliminate the pest if appropriate, and providing for continued
agricultural trade from the area affected by the pest outbreak.
Comment: Due to government-wide budget cuts and frozen or reduced
staffing levels, APHIS will be unable to enforce the proposed
restrictions from the grove in Mexico to the final U.S. consumer. APHIS
states that it would make ``resource adjustments'' to accommodate the
proposed avocado import program, but APHIS officials have acknowledged
that the agency is finding it difficult to meet its current program
demands. Before the proposed rule can go forward, APHIS must
demonstrate that it has sufficient resources to execute its
responsibilities under the proposed system.
Response: As was stated in the proposed rule, import authorizations
will not be provided for Mexican avocados if the level of resources
decreases below the level needed to ensure that all imported regulated
articles are subject to the level of inspection and monitoring
necessary to prevent the introduction of plant pests into the United
States. At the present time, it is difficult to provide the details on
APHIS monitoring and supervision because we do not yet know the number
and total acreage of orchards and the number of packinghouses in
Michoacan that will be participating in the avocado export program. We
can say, however, that APHIS personnel will be present during the
harvest, shipping season, and during critical orchard survey and
trapping activities to ensure that the
[[Page 5307]]
requirements of the regulations are being met.
Comment: I want to have confidence that if this proposal as written
is not followed that immediate corrective action will be taken in
Mexico and the United States. How can domestic growers have confidence
that each element of this complex proposal will be stringently enforced
in Mexico and in the United States? What penalties will be enacted for
failure to adhere to the requirements?
Response: The introductory text of the regulations in Sec. 319.56-
2ff clearly states that fresh Hass avocados may be imported from Mexico
into the northeastern United States only if the importation is
authorized by a permit and only under the conditions set forth in the
regulations; if those conditions are not met, the avocados may not be
imported into the United States.
The growers, packers, and shippers in Michoacan have, at the very
least, a financial interest in meeting the conditions of the
regulations; failure to do so can result in the loss of their ability
to export avocados to the United States for an entire shipping season.
Beyond that, Sanidad Vegetal personnel will be in the production areas
and packinghouses conducting surveys, trapping, and inspections to
ensure that the requirements of the regulations are being met. Finally,
APHIS inspectors will be present in Mexico and will be directly
involved with Sanidad Vegetal in the monitoring and supervision of the
required safeguards.
In terms of penalties that would apply for violations committed in
the United States, the FPPA and the Plant Quarantine Act provide for a
penalty of not more than $5,000 and imprisonment for not more than 1
year for any person who knowingly violates regulations promulgated
under those acts, which is the case with the regulations in this final
rule. Civil penalties of up to $1,000 per violation can be assessed for
other violations of the regulations. In addition, the FPPA gives an
APHIS inspector the authority to seize, quarantine, treat, apply other
remedial measures to, destroy, or otherwise dispose of, in such manner
as he deems appropriate, any product or article moving into or through
the United States in violation of regulations promulgated under the
FPPA.
Comment: Mexico allows the use of pesticides that are not allowed
or strictly controlled in the United States, the residues of which will
be harmful to U.S. consumers.
Response: As we noted in the proposed rule, the U.S. Food and Drug
Administration (FDA) samples and tests imported fruits and vegetables
for pesticide residues. If residue of a pesticide unapproved in the
United States is found in a shipment of imported fruit or vegetables,
the shipment is denied entry into the United States by the FDA.
Comment: APHIS should require that the avocados receive quarantine
treatments such as fumigation, heat or cold treatments, or irradiation
to eliminate the pests of concern while the avocados are still in
Mexico.
Response: There are currently no approved quarantine treatments
available for avocados to eliminate the pests of concern. There is no
established protocol for the irradiation of avocados, and fumigation is
not effective against all the pests, especially the seed weevils.
Procedures such as cold treatment, hot water treatment, or hot forced
air treatment cannot eliminate those seed pests without significantly
degrading the quality of the fruit.
Comment: To comply with the National Environmental Policy Act
(NEPA), APHIS should prepare an environmental impact report that takes
into account the likelihood of pest establishment in growing areas in
California and Florida and the effects that such an infestation will
have, such as increased pesticide usage and the burning of infested
avocado groves. What will the Federal government do to mitigate the
negative impacts of those considerations?
Response: For the proposed rule, those issues were addressed in the
supplemental pest risk assessment (e.g., the likelihood of pest
establishment on pages 23-35 and environmental impacts on page 22). An
environmental assessment and a finding of no significant impact have
been prepared for this final rule.
Response to Petitions
On March 15, 1996, the USDA received a petition from the CAC asking
that the Department: (1) Reopen the administrative record for the
proposed rule for the purpose of receiving newly discovered evidence
obtained by the CAC; (2) hold an additional public hearing to explore
the newly discovered evidence; and (3) stay further administrative
action on the proposed rule pending the outcome of an investigation of
the conduct of a foreign agent of the Michoacan Avocado Commission
(MAC). On April 12, 1996, the CAC notified USDA that it had obtained
additional pest information that would form the basis for a
supplemental petition that would be submitted to USDA after CAC had
completed its analysis of the pest information.
In a letter dated April 17, 1996, the USDA asked the CAC to submit
any substantive information supporting its petition; on April 29, 1996,
the CAC complied with that request by delivering a copy of the pest
survey information on which the March 15 petition was based. In a
letter accompanying the April 29 submission of information, the CAC
notified the USDA that a supplemental petition would be delivered to
the Department the following week. The supplemental petition was
delivered to USDA on May 3, 1996. In that supplemental petition, the
CAC reiterated its request that the Department reopen the
administrative record to receive new pest evidence and to hold an
additional public hearing to explore the new evidence and asked that
the Department require APHIS to prepare a new quantitative pest risk
assessment based on all available data, including the new data
submitted with the supplemental petition. In its May 3 supplemental
petition, the CAC also stated that it would continue to seek additional
data and that any significant new information would be used as the
basis for a new filing to further supplement its petition.
On May 16, 1996, the CAC submitted a new filing in the form of a
letter containing additional information intended to support and
further supplement those first two requests that the USDA reopen the
administrative record, conduct a new quantitative pest risk assessment
based on all available data, and hold an additional public hearing on
the proposed rule. In that May 16 letter, the CAC made the following
additional claims: (1) Chemical treatment programs have failed to
eliminate stem weevils in Uruapan, Michoacan, Mexico, and that orchards
once found free are being reinfested; (2) local agricultural agencies
in Michoacan in charge of field sanitation have not yet complied with
procedures set forth by Mexico's Secretaria de Agricultura, Ganadaria y
Desarollo Rural (SAGDR); and (3) certain packinghouses have been
identified as candidates for handling avocados destined for export to
the United States despite the fact that they are located in areas where
pests are known to be present at high levels.
The CAC filed a third supplement to the March 15 petition on
December 20, 1996, once again requesting that the USDA reopen the
administrative record, conduct a new quantitative pest risk assessment
based on all available data, and hold an additional public hearing on
the proposed rule. This third filing
[[Page 5308]]
contained claims that: (1) Recent surveys show that orchards in
Michoacan--including orchards in Sanidad Vegetal's export program--
contain stem weevils and (2) Mexican avocado growers are withdrawing
from government plant health programs and the regional association of
avocado growers has withdrawn from the MAC.
In its March 15 petition and the May 3, May 16, and December 20,
1996, supplemental filings to that petition, the CAC presented
information pertaining to three areas: The prevalence of pests in
Michoacan; the activities of local, State, and national agricultural
officials in Mexico; and the integrity of the rulemaking process. After
carefully reviewing the petition and supplemental filings, we have
concluded that the evidence offered by the CAC does not warrant our
reopening the administrative record, holding additional hearings,
delaying further administrative action on the proposed rule, or
preparing a new quantitative pest risk assessment. Therefore, we are
denying the CAC petition for the reasons explained below.
First, the CAC stated that the pest survey data it had obtained
show that the fruit fly and weevil populations in Michoacan are
substantially higher than indicated in earlier prevalence data supplied
to USDA by the Mexican government. It follows, the CAC argues, that the
USDA's supplemental pest risk assessment, risk management analysis, and
the safeguards found in the proposed rule are inadequate because they
were primarily based on incomplete pest data that understated the true
level of quarantine pests in Mexico.
The CAC claims in its March 15 petition that results of surveys
conducted between February 1995 and February 1996 contradict APHIS''
conclusion that certain municipalities within the State of Michoacan
qualify as areas of low pest prevalence for the purposes of lifting the
quarantine on Mexican avocados. (Copies of official Sanidad Vegetal
records of the results of those surveys constitute the majority of the
supporting information provided to USDA by the CAC on April 26, 1996.)
The March 15 petition claims that the survey results reflect positive
detection of stem weevils (Copturas aguacatae) in orchards currently
enrolled in the avocado export program administered by Sanidad Vegetal
and that detections occurred in orchards sampled during the November-
December 1995 survey period. The December 20 supplemental filing
repeats those claims based on surveys conducted between June and
November 1996 that reportedly reflect stem weevil detections in export
orchards and orchards that had previously been declared free from that
pest. Similarly, in its May 3 supplemental filing, the CAC offers
copies of official Sanidad Vegetal seed weevil survey records as
evidence that heavy seed weevil infestations exist near Uruapan, which
is one of the municipalities that Mexico has indicated will likely be
offered for consideration as an approved municipality under the avocado
export program described in the proposed rule. Uruapan itself is
threatened with seed weevil infestation, the CAC claims, because
avocados from the infested area are transported without restrictions or
safeguards to packinghouses located in Uruapan. That pest survey
information, the CAC claims, indicates that pest levels in Michoacan
are higher than previously thought and USDA should, therefore, suspend
further action on the proposed rule until new pest risk assessments and
risk management analyses can be conducted. In its May 16 letter, the
CAC further claims that chemical treatment programs have failed to
eliminate stem weevils in Uruapan, Michoacan, thus leaving open the
possibility that stem weevil populations will spread throughout the
orchards of that municipality.
The proposed rule and its supporting documentation were not
predicated on the absence or near-absence of pests throughout the
entire State of Michoacan. APHIS acknowledges that the two small seed
weevils and the stem weevil are known to exist in Michoacan, which is
why the proposed rule contained weevil-specific safeguards to ensure
that any avocados exported to the United States would not be infested
with those pests. Under the program described in the proposed rule, the
detection of a single stem weevil in an orchard would render that
orchard ineligible to export avocados to the United States; the
detection of any one of the seed weevils would render the entire
municipality ineligible. If the seed and stem weevils are present in
the growing areas of Michoacan in ``readily detectable numbers,'' as
described in the petition, we are confident that surveys conducted or
supervised by APHIS employees would detect those pests and prevent
infested orchards and municipalities from being eligible to export
avocados to the United States. Moreover, the export eligibility granted
to orchards and municipalities must be renewed each year, and that
eligibility may be withdrawn at any point during the November through
February shipping season based on the detection of a stem weevil, in
the case of an orchard, or a seed weevil, in the case of an entire
municipality.
In its May 16 letter, the CAC asserts that 4 of the 15
packinghouses identified by SAGDR as ``candidates'' for packing and
exporting avocados to the United States are located in areas where
quarantine pests are present, and another 3 of the candidate
packinghouses are located in an area where pest population levels are
unknown due to operational problems within the local agricultural
agency. As noted above, the proposed rule did not assume pest freedom
or near-freedom in Michoacan; the system described in the proposed
rule, therefore, contains several layers of protection to prevent the
potential infestation of harvested fruit during its movement to and
handling in packinghouses. Under the program described in the proposed
rule, an export packinghouse must be listed on the annual work plan
prepared by Sanidad Vegetal and approved by APHIS, so if we had any
concerns about the location, condition, or operation of a particular
packinghouse we could resolve those concerns as part of the approval
process for the work plan. In order to prevent pests from entering the
work areas where fruit is inspected, sorted, cleaned, and prepared for
shipment, an export packinghouse would have to meet specific conditions
regarding its construction and operation and would be prohibited from
handling fruit from anywhere but a certified export orchard. The
avocados themselves, when being moved from the export orchard to the
packinghouse, would have to be protected from fruit fly infestation. It
is important to note that the packinghouses identified by SAGDR are
``candidates'' for participation in the avocado export program; any
packinghouse that failed to meet all of the requirements of the program
would not qualify for participation in the program.
The CAC reports in its March 15 petition that it had obtained
extensive and recent fruit fly trapping records from Tancitaro, Mexico,
from trapping conducted between September 1995 and February 1996; the
CAC did submit official Sanidad Vegetal fruit fly trapping records as
supporting information for that petition. The petition notes that much
of that trapping occurred during months that the proposed rule would
allow avocados to be imported into the United States. The petition
further maintains that fruit flies were found in each of the 33
orchards that were monitored, even though the orchards were extensively
treated to control fruit flies.
[[Page 5309]]
The CAC is inaccurate in its claims that the fruit fly finds
reflected in the data ``occurred despite a rigorous and documented
program of chemical treatment to control fly infestations.'' Mexican
agricultural officials have long claimed that the Hass avocado is not a
fruit fly host, so there is no ``rigorous * * * program of chemical
treatment'' to eliminate fruit flies in avocado groves in Michoacan.
Although APHIS does not accept the Mexican claim that Hass avocados are
not attacked by fruit flies, we do believe that the Hass avocado is a
non-preferred host while still on the tree. Throughout this rulemaking,
we have acknowledged that Anastrepha spp. fruit flies are present in
Michoacan and could attack harvested Hass avocados and fruit that has
fallen from the trees, which is why the proposed rule contained
safeguards to reduce the risk presented by those pests. The proposed
requirements, such as surveillance trapping, increased trapping in
response to a single fruit fly detection, malathion bait treatments,
covering of harvested avocados, fly-proof screens on packinghouses, and
inspections, work together with the non-preferred host status of Hass
avocado fruit attached to the tree to eliminate any significant risk
from Anastrepha. The repeated fruit fly finds portrayed in the CAC's
March 15 petition would not occur under the program described in the
proposed rule, which requires trapping density to be increased if a
single Anastrepha spp. fruit fly is trapped in an orchard and further
requires malathion bait sprays to be applied if a second Anastrepha
spp. fruit fly is trapped within 30 days and 260 hectares of the first
finding.
In its petition, the CAC correctly points out that importation of
Hass avocados from Mexico is possible only if the area of origin can be
certified pest free for the three species of seed weevil and the seed
moth and can be shown to be an area of low pest prevalence for the stem
weevil and fruit flies. The CAC then asserts that its newly obtained
data indicate that two of the municipalities in Michoacan cannot
properly be characterized as areas of low pest prevalence for fruit
flies or the stem weevil. As noted above, a municipality or orchard
could gain approval to export avocados to the United States under the
program described in the proposed rule only after extensive field
surveys conducted or supervised by USDA employees demonstrate
municipality freedom from the three species of seed weevils and the
seed moth and orchard freedom from the stem weevil. That being the
case, some municipalities and orchards in Michoacan may well be
ineligible for participation in the program due to the presence of some
or all of those pests. That potentiality does not, however, invalidate
the entire program, as the CAC seems to suggest. The field surveys are
intended to demonstrate that an area is free of certain pests; if that
freedom cannot be demonstrated, the importation of avocados from that
area will continue to be prohibited.
The second area discussed in the petition and the supplemental
filings is the activities of local, State, and national agricultural
officials in Mexico. One aspect of this is the CAC's claim that APHIS
may be relying on incomplete pest data that understate the true level
of quarantine pests in Michoacan. In its March 15 petition, the CAC
claims that the pest survey and trapping data that the Mexican
government supplied to APHIS are incomplete because the Mexican
government decided to withhold one or more positive pest survey reports
from the data provided to the USDA due to pressure applied by a ``well-
connected grower.'' Judging from the information related in the CAC's
March 15 petition and an accompanying declaration, however, the claim
that information was withheld to mollify a powerful grower appears to
be a mischaracterization of the nature of the incident. The information
submitted by CAC shows that a state-level inspector detected weevils
(it appears the petition is referring to stem weevils, although the
species is not identified) in a grove, the grower sought to have the
pest finding overturned or suppressed, but Sanidad Vegetal determined
that an infestation did exist and should be documented. The petition
hints that there is something unscrupulous about Sanidad Vegetal's
subsequent decision not to forward the records for that orchard to the
USDA for the purposes of precertifying the orchard for the proposed
export program. However, if the records show that the orchard contains
stem weevils that would render it ineligible for participation in the
proposed export program, it would serve no purpose to pass those
records on to the USDA with a request that the orchard be approved for
participation in the proposed export program. Obviously, the orchard
would not qualify for the program.
In its May 3 supplemental petition, the CAC claims that Mexico made
a ``conscious decision to withhold damaging pest survey findings from
the USDA.'' The CAC bases that claim on its interpretation of
correspondence between APHIS and Sanidad Vegetal, particularly an
August 19, 1994, request for data from APHIS and Sanidad Vegetal's
September 23, October 10, and October 11, 1994, responses to that
request. Once again, the CAC points out that Sanidad Vegetal did not
forward all available survey results and other pest data from areas in
which seed weevils, stem weevils, or fruit flies had been detected and
portrays that lack of data as a deliberate deception on the part of
Sanidad Vegetal. APHIS is well aware that those pests are present in
Michoacan, and Sanidad Vegetal has not attempted to portray the
situation otherwise; in fact, Sanidad Vegetal officials have taken
visiting APHIS representatives into infested avocado groves in
Michoacan to demonstrate methods of detecting seed weevils and stem
weevils. In the August 1994 letter cited by the CAC, APHIS was seeking
additional information to help it determine whether an export program
based on the freedom of certain orchards and municipalities from seed
and stem weevils would be feasible, and the data supplied by Sanidad
Vegetal were responsive to that request.
In its May 16 letter, the CAC contends that operational problems
``plague'' SAGDR's local field sanitation agencies. To support that
contention, CAC points to a letter from a SAGDR district chief to one
of his district's local plant health boards. The letter, dated April
24, 1996, admonishes the local board for failing to submit any monthly
activity reports since the board's formation on September 19, 1995, and
informs the board that it faces the risk of being dissolved unless the
reports are submitted promptly. The CAC claims that the letter, coupled
with what is described by a CAC contact in Mexico as grower mistrust of
government agencies, casts doubt on Mexico's ability to oversee the
pest survey, trapping, and registration activities described in the
proposed rule. Under this final rule, the personnel conducting the
trapping and pest surveys must be hired, trained, and supervised by
Sanidad Vegetal or by the Michoacan State delegate of SAGDR, and APHIS
will be directly involved with Sanidad Vegetal in the monitoring and
supervision of those activities. The trapping and pest surveys are
integral aspects of the avocado export program; if the scope and
conduct of those activities in a particular municipality did not meet
with APHIS' approval, the municipality, and all the orchards within
that municipality, would be ineligible for participation in the
program.
In its December 20 supplemental filing, the CAC contends that
substantial numbers of Mexican avocado growers
[[Page 5310]]
are abandoning the Mexican government's plant health programs and that
the regional association of avocado growers in Michoacan has withdrawn
from the MAC. These developments, the CAC claims, provides evidence
that the plant health infrastructure in Mexico is weakening at all
levels, which will result in major problems that will threaten U.S.
agriculture if the importation of Mexican avocados is authorized. We
certainly agree that grower participation in government plant health
programs is an important element in the control and prevention of plant
pest problems in the avocado-producing municipalities of Michoacan,
which is why the regulations in this final rule require that each
orchard and grower wishing to export avocados to the United States must
be registered with Sanidad Vegetal's avocado export program and must be
listed as an approved orchard or an approved grower in the annual work
plan provided to APHIS by Sanidad Vegetal. Therefore, any Michoacan
growers who abandon the Mexican government's plant health programs will
simply not be eligible to export avocados to the United States.
Similarly, the regulations also clearly state that avocados may be
imported only if the Mexican avocado industry association representing
Mexican avocado growers, packers, and exporters--i.e., the MAC--has
entered into a trust fund agreement with APHIS to pay in advance all
estimated costs that APHIS expects to incur through its involvement in
the trapping, survey, harvest, and packinghouse operations required as
safeguards in Mexico. A document submitted by the CAC with its December
20 filing appears to indicate that dissension within the MAC has led a
regional growers group to temporarily withdraw from the MAC. If that is
indeed the case, it appears that some accommodation would have to be
reached within the MAC for that organization to remain a viable entity
capable of executing a trust fund agreement with APHIS. Without a trust
fund agreement, avocados may not be exported under the regulations in
this final rule.
Report language attached to the Department's 1997 appropriations
bill directed the Secretary of Agriculture to review recent evidence of
pest infestation in Mexico--i.e., the pest-related information
submitted to APHIS by the CAC in its petition and supplemental
filings--and determine whether the original data that APHIS relied upon
is sound and complete. As discussed above, we have thoroughly examined
all of the information submitted by the CAC and have determined that
the original data upon which APHIS relied is sound and complete and
serves as a reliable basis for this rule and the risk-mitigating
safeguards it contains. Further, the pest surveys and fruit fly
trapping required by this rule as a prerequisite to the approval of
municipalities and orchards for participation in the avocado export
program will provide the ongoing APHIS-supervised pest monitoring
mentioned in the report language.
The third and final area, which is discussed only in the March 15
petition, is the CAC's claim that there is evidence to suggest that a
foreign agent for the MAC engaged in activities that violated Federal
conflict-of-interest laws and Federal lobbying laws. The petition also
states that the same agent had substantive ex parte communications with
USDA personnel prior to and after the Department's decision to issue
the proposed rule. The petition contends that the illegal activities of
the agent and USDA's apparent practice of permitting substantive ex
parte communication between USDA and the supporters, but not the
opponents, of the proposed rule have ``irreparably tainted the
integrity and propriety'' of the rulemaking proceeding.
APHIS believes that the allegations in the petition regarding the
agent's employment with the MAC and the nature of a contractual
arrangement the agent may have had with the MAC do not bear upon on the
integrity of this rulemaking proceeding. APHIS acknowledges that if the
allegations are shown to be supported and it is determined that the
agent violated conflict-of-interest laws or contracted for a ``success
fee'' for lobbying on the behalf of a foreign client in violation of
lobbying laws, those actions may indeed have serious ramifications for
the agent. It does not follow, however, that the alleged activities of
a single interested party would affect the manner in which USDA has
conducted this rulemaking proceeding. Indeed, USDA was unaware of the
alleged contractual and other arrangements until the allegations were
made in the petition. The fact of the matter is that the alleged
arrangements had absolutely no effect on the rulemaking proceeding or
the decisions reached by APHIS with regard to this final rule.
A review of the calendars and daily activity logs of Department
officials indicates that the petitioner's contention that USDA engaged
in prohibited ex parte communication with the agent while denying
requests for meetings from opponents of the proposed rule is incorrect.
Those records indicate that courtesy visits were paid to USDA officials
by both opponents and supporters of the proposed rule following the
proposed rule's publication. Any written materials given to USDA
officials during those visits were placed in the public rulemaking
record, and those officials report that substantive issues pertaining
to the proposed rule were not discussed.
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 with the changes discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be significant for purposes of Executive Order
12866, and, therefore, has 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 set out below, regarding the
impact of this rule on small entities.
This rule will allow fresh Hass avocado fruit grown in approved
orchards in approved municipalities in Michoacan, Mexico, to be
imported into the United States under certain conditions designed to
prevent the introduction and dissemination of plant pests. In the July
1995 proposed rule, we invited comments concerning the potential
effects on small entities of the proposed Mexican avocado importation
program and noted that we were particularly interested in determining
the number and kind of small entities that may incur benefits or costs
from implementation of the program. Some commenters--mostly owners and
employees of produce markets or retail operations, customs brokers, and
representatives of other agricultural interests such as apple and
citrus growers, packers, and shippers--stated that they expected to
benefit from the proposed avocado import program through increased
business or expanded export opportunities for other U.S. agricultural
products.
Many other commenters took the opposite view, however. Slightly
more than 60 percent of the 2,080 individuals who commented on the
proposed rule identified themselves as working in the domestic avocado
industry, either directly as growers, packers, and shippers, or
indirectly as part of their work in associated fields (agricultural
consultants, pest control advisors, nurserymen, etc.). Many of those
commenters believed that they would be
[[Page 5311]]
negatively affected by the proposed avocado import program because of
the wide price disparity between domestically produced avocados and the
less expensive Mexican-origin avocados. Those commenters stated that
they would be unable to compete in the approved States during the
import period and that the low price of the Mexican product would
encourage illegal transshipment of the Mexican avocados to areas
outside the approved States. Several commenters criticized the initial
regulatory flexibility analysis for failing to pay sufficient attention
to Florida avocado production.
The initial regulatory flexibility analysis published in the
proposed rule noted that we did not at that time have all the data
necessary for a comprehensive analysis of economic effects, and thus
invited comments concerning potential effects. The initial regulatory
flexibility analysis was based on data available to us at the time it
was written, and came to some broad conclusions about approximate
effects based on a simple model employing some basic data about supply
and price gleaned from the overall U.S. and Mexican avocado markets.
Among the preliminary conclusions was a likely increase in the
availability of fresh avocados to U.S. consumers by about 12 percent,
reducing the average at-the-farm price for U.S. avocados to about $0.42
per pound. However, as several commenters pointed out, the marketing of
avocados in the United States is very complex, with effects arising
from established practices in the food marketing sector and the
patterns of the wholesale and retail distribution structure. Commenters
also pointed out that an accurate analysis should focus on price and
supply data that are specific to the months when Hass avocados would be
allowed entry, and should be based on the average values for those
months over a multi-year period.
We have taken these and other comments into account and employed
additional data supplied by commenters. We have obtained data on
Mexican and U.S. production and exports covering a 5-year period (1990-
1994). As a result, this final regulatory flexibility analysis examines
more complex economic scenarios than the initial regulatory flexibility
analysis and provides a more detailed analysis. By using improved
models with more extensive, multi-year data, we have examined effects
in both approved and non-approved States that take into consideration
several possible reactions by both U.S. and Mexican businesses. We have
provided analyses based on a range of U.S. imports of Mexican avocados.
We have also examined several different possible responses by U.S.
producers, ranging from partial to complete redirection of their
product away from approved States during months when Hass avocados from
Michoacan would be allowed entry.
This rule will directly affect avocado growers, particularly
growers of Hass variety avocados, so its impact will be felt mainly in
California. The United States produced an average of 189,244 tons
1 of avocados per year between 1990 and 1994; of this amount,
California accounted for 91.4 percent, Florida 8.4 percent, and Hawaii
the remaining 0.2 percent. The farm value of U.S. production ranged
from $118 million to $255 million, of which 98 percent was for the
fresh market. There were 7,203 avocado growers in the United States in
1992 (1 in Arizona, 5,973 in California, 604 in Florida, 610 in Hawaii,
and 15 in Texas); 98.5 percent of these operations are considered to be
small entities. (According to the standard set by the Small Business
Administration for agricultural producers, a producer with less than
$0.5 million annually in sales qualifies as a small entity.) California
avocado producers, including small entities, derive a substantial
degree of income from off-farm employment. According to a 1994 report
by the Economic Research Service, 55 percent of operators of California
avocado farms reported working off the farm at least 100 days a year.
Approximately 44 percent reported working off the farm at least 200
days a year.
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\1\ All tons in this analysis are short tons (2,000 pounds).
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Florida is less likely to be affected because fewer growers there
produce Hass variety avocados; most produce a lower-cost greenskin
variety. In general, if two commodities are substitutable, a change in
the price of one, ceteris paribus, causes a change in the same
direction in the quantity purchased of the other. If the two
commodities have comparable quality and are considered substitutable,
then the differences between their prices would not be large (the
degree of substitutability depends on the cross elasticities of demand
between the two commodities). However, the data show that the prices
received by farmers and the wholesale prices of greenskin variety
avocados, which is the dominant variety grown in Florida, are
substantially lower than prices received for Hass variety avocados. For
example, the price received by avocado growers in California was $0.79
per pound in 1994, while the price received by Florida growers during
the same year was $0.31 per pound. Similarly, the average wholesale
market price for California Hass avocados was $1.72 per pound (average
for Boston, Chicago, Los Angeles, New York, and Philadelphia) during
the third week of December 1995, while the average wholesale price for
the greenskin variety was $0.44 per pound. If the price differential
was the only market signal of preference for the two products, then the
Hass variety would be driven out of the market, but this is not the
case. The wholesale price of the California Hass avocado is $1.96 per
pound in Miami, while the price of the Florida greenskin variety is
only $0.42 per pound.
U.S. exports averaged 11,583 tons between 1990 and 1994, while
imports were about 19,119 tons. Over this period, about 94 percent of
the U.S. production of avocados was consumed domestically. The largest
importer of U.S. avocados is Canada. The other major markets for U.S.
avocados include France, Japan, and the United Kingdom. The largest
suppliers of imports to the United States are Chile and the Dominican
Republic.
Mexico is the largest producer of avocados in the world, accounting
for approximately 40 percent of world production. An average of 807,000
tons per year was produced between 1990 and 1994. Most of the avocado
production in Mexico occurs in the State of Michoacan, accounting for
approximately 77 percent of the total. The Hass variety accounts for 95
percent of the avocado production in Michoacan. Mexico is also one of
the world's largest exporters of fresh avocados. Exports averaged
22,000 tons per year between 1990 and 1994. The average rate of export
between 1990 and 1994 was about 2.75 percent of production, with the
rest being consumed domestically.
Avocados are shipped from U.S. domestic sources throughout the
year. Florida's peak marketing season is between July and December,
while California's is between March and August. The 19 northeastern
States and the District of Columbia (the approved States) receive
between 12 and 18 percent of the shipments of California avocados
annually. California shipments to the approved States during the period
allowed in this final rule (November through February) account for only
2.3 to 4.6 percent (or about 3,900 to 4,850 tons) of total annual
California avocado shipments. Imports account for about 42 percent of
the supply in the approved States during those months; California
avocados
[[Page 5312]]
account for about 36 percent of the supply in the approved States
during that same period. The remainder, about 22 percent of the supply,
comes from Florida.
Mexican avocados could be sold at substantially lower prices than
California avocados. However, consumer purchases may not be
proportional to price changes, should they occur. Additionally, since
many grocery stores and supermarkets are likely to be carrying avocados
from only one source at any given time, consumers may not have the
option of comparing price and quality of avocados from different areas.
The retail price differentials might not be representative of the
actual cost differences between avocados from the two sources, as
retailers may not mark the exact price differential. This is evidenced
by the small difference in wholesale prices between California Hass and
Chilean Hass avocados. While the import price of Chilean Hass avocados
was only $0.67 per pound, the wholesale price in the six major
northeastern cities was about $1.46 per pound during the third week of
December 1995. The average wholesale price of the California Hass
avocado was $1.72 per pound during the same period. If a similar price
pattern would hold for Mexican Hass avocados, wholesale prices will not
differ as widely between Mexican avocados and others available on the
domestic market as expected by some. The costs associated with illegal
transshipment (e.g., relabeling the product and illegally transporting
it outside the approved States) make it unlikely that price differences
between domestic and Mexican-origin Hass avocados will be great enough
to lead to transshipment of Hass avocados imported under this final
rule.
Allowing importation of Hass avocados from Mexico is expected to
have a variable impact upon domestic entities. The magnitude of the
impact would depend upon the size of the pre-import supply, pre-import
avocado price, and the elasticities of demand. In this final regulatory
flexibility analysis, which was developed, in part, using price and
production data submitted by commenters, two scenarios in which
affected entities may be impacted by various levels of Mexican avocado
imports are examined. In one scenario, California Hass avocado growers,
in reaction to the entry of Mexican imports, redirect a percentage of
the avocados they otherwise ship to markets in the approved States to
markets in non-approved States (Table 1); in the other scenario, we
examine the unlikely situation in which there is a complete redirection
of California Hass avocados from markets in the approved States to
markets in the non-approved States.
Based on data from 1990 through 1994, the average wholesale price
in the approved States during the months of November through February--
the 4 months that avocados can be imported into the approved States
under this rule--was about $1.56 per pound and the available quantity
was about 10,500 tons. The wholesale price and supply were $1.47 per
pound and 26,500 tons, respectively, in the non-approved States. Price
changes in the two scenarios are measured against their average levels.
The level of Hass avocado exports from Michoacan, Mexico, during
November through February is currently about 9,400 tons. The import
levels in the top row of Table 1 reflect a 10, 20, 30, 40, and 50
percent diversion of current Michoacan Hass avocado exports from other
markets to markets in the approved areas of the United States.
Table 1.--The Importation of Hass Avocados From Michoacan, Mexico, to Approved States: Impact in the United
States With a Partial Redirection of U.S. Grown Hass Avocados From Markets in Approved States to Markets in Non-
Approved States (Price Elasticity is -1.07).
----------------------------------------------------------------------------------------------------------------
Percentage of current Michoacan exports diverted to the U.S. market
---------------------------------------------------------------------
10 20 30 40 50
----------------------------------------------------------------------------------------------------------------
Imports (tons)............................ 940 1,880 2,820 3,760 4,700
California Hass avocados diverted to non-
approved States (tons)................... 153 306 459 612 765
Percent change in price:
In the approved States................ (8) (16) (25) (33) (41)
In non-approved States................ (1) (1) (2) (2) (3)
Change in producer surplus (millions of
dollars)................................. (1.37) (2.70) (3.99) (5.24) (6.44)
Change in consumer surplus (millions of
dollars)................................. 3.31 6.86 10.66 14.71 18.98
Total surplus (millions of dollars). 1.94 4.16 6.67 9.47 12.54
----------------------------------------------------------------------------------------------------------------
Table 1 summarizes the estimated economic impacts in the United
States, based on a price elasticity of -1.07, which was estimated using
data provided in comments by the California Avocado Commission.2
The estimated economic impacts result from the entry of imported
Mexican Hass avocados into markets in the approved States and from the
estimated producer losses and consumer gains that would result from a
partial redirection of U.S. grown Hass avocados from markets in the
approved States to non-approved States. For example, a 10 percent
diversion of present Michoacan exports from markets in other countries
to the United States results in a price decrease of 8 percent in the
approved States and a price decrease of 1 percent in the non-approved
States. California producers would lose about $1.37 million, while
consumers would gain about $3.31 million. The net benefit in this
scenario would be about $1.94 million. If a 50 percent diversion of
present Michoacan exports from other markets to the United States were
to occur, there would be a resulting price decrease of about 41 percent
in the approved States and about 3 percent in the non-approved States.
Producers would lose about $6.44 million and consumers would gain about
$18.98 million, resulting in a net benefit of about $12.54 million.
---------------------------------------------------------------------------
\2\ Garoyan, Leon, ``Proposed Rule for the Importation of Fresh
Hass Avocado Fruit Grown in Michoacan, Mexico: An Analysis of the
Impact on California's Avocado Industry,'' Management Research
Associates, August 22, 1995. (Prepared for the California Avocado
Commission (CAC) and attached as Exhibit 30 to the CAC's October 13,
1995, comments on the proposed rule.) The price elasticity of -1.07
was estimated using data from Appendix Table 1 of that report
covering North East and East Central regions of the United States
for the months of November to February between 1986 and 1994.
---------------------------------------------------------------------------
In sum, as a result of the importation of Mexican avocados to the
approved States and partial redirection of domestically grown avocados,
California Hass avocado producers would lose between $1.37 million and
$6.44 million, i.e., about 0.5 percent to 5.4
[[Page 5313]]
percent of their crop's farm value, while consumers in the approved and
non-approved States would gain between $3.31 million and $19 million.
Consumer gains are larger than producer losses in all cases.
In the unlikely scenario where complete redirection would occur,
U.S. producers would abdicate the markets in the approved States to
Mexican imports during the approved import period and would redirect
their supply to markets in non-approved States. In this case, imports
from Mexico would replace California Hass avocados in the approved
States so that the actual supply in those markets would not change, and
thus no impact would be expected in the approved States. The only
impacts would be those in non-approved States. The extent of any actual
decrease in prices would depend to a great degree upon the size of the
price elasticity of demand and magnitude of the change in supply. For
an elasticity of -1.07 and with a 10-percent diversion of present
Michoacan exports from other countries to the United States, the
resulting price decrease is 3 percent in the non-approved States.
California producers would lose $2.31 million and consumers would gain
$2.63 million. The net benefit in this case would be $0.32 million. A
50-percent diversion of present Michoacan exports from other countries
to the United States results in a price decrease of 17 percent.
Producers could lose $11.14 million and consumers could gain $14.03
million in the non-approved States. The net benefit in this case would
be $2.89 million. For lower price elasticities, both losses and gains
are higher. Thus, in the unlikely event of total redirection of
domestically grown Hass avocado from approved States to non-approved
States, California Hass avocado producers could lose between $2.31
million and $11.14 million, i.e. about 0.9 percent to 9.4 percent of
their crop's farm value, while consumers in non-approved States could
gain between $2.63 million and $14.03 million. In all cases, consumer
gains outweigh grower losses.
The only significant alternative to this rule is to make no changes
in the fruits and vegetables regulations, i.e., to continue to prohibit
the importation of fresh avocados from Mexico. Prior to the publication
of the proposed rule that preceded this rule, we had rejected that
alternative because there appeared to be no pest risk reason to
maintain the prohibition on the avocados in light of the safeguards
that would be applied to their importation. In the course of this
rulemaking, we have found no new evidence indicating that the
importation of fresh Hass avocados under the conditions set forth in
this rule will present a significant risk of plant pest introduction.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule will allow fresh Hass avocado fruit to be
imported into the United States from the Mexican State of Michoacan.
State and local laws and regulations regarding fresh Hass avocado fruit
imported under this rule will be preempted while the avocados are in
foreign commerce. Fresh avocados are generally imported for immediate
distribution and sale to the 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. This rule has no retroactive effect and does not require
administrative proceedings before parties may file suit in court.
National Environmental Policy Act
An environmental assessment and finding of no significant impact
have been prepared for this rule. The assessment provides a basis for
the conclusion that the importation of fresh Hass avocados from
Michoacan, Mexico, under the conditions specified in this rule will not
present a significant risk of introducing or disseminating plant pests
and would not have a significant impact on the quality of the human
environment. Based on the finding of no significant impact, the
Administrator of the Animal and Plant Health Inspection Service has
determined that an environmental impact statement need not be prepared.
The environmental assessment and finding of no significant impact
were prepared in accordance with: (1) The National Environmental Policy
Act of 1969, as amended (NEPA) (42 U.S.C. 4321 et seq.), (2)
Regulations of the Council on Environmental Quality for implementing
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA
Implementing Procedures (7 CFR part 372).
Copies of the environmental assessment and finding of no
significant impact are available for public inspection at USDA, room
1141, South Building, 14th Street and Independence Avenue SW.,
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday,
except holidays. Persons wishing to inspect copies are requested to
call ahead on (202) 690-2817 to facilitate entry into the reading room.
In addition, copies may be obtained by writing to the individual listed
under FOR FURTHER INFORMATION CONTACT.
Paperwork Reduction Act
This final rule contains an information collection requirement that
was not included in the proposed rule. Specifically, this final rule
requires that fruit be labeled with a sticker that bears the Sanidad
Vegetal registration number of the packing house. In accordance with
section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.), this information collection requirement has been submitted
for approval to the Office of Management and Budget (OMB). When OMB
notifies us of its decision, we will publish a document in the Federal
Register providing notice of the assigned OMB control number or, if
approval is denied, providing notice of what action we plan to take.
List of Subjects in 7 CFR Part 319
Bees, Coffee, Cotton, Fruits, Honey, Imports, Nursery Stock, Plant
diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Rice, Vegetables.
Accordingly, 7 CFR part 319 is amended as follows:
PART 319--FOREIGN QUARANTINE NOTICES
1. The authority citation for part 319 continues to read as
follows:
Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and
2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).
2. A new Sec. 319.56-2ff is added to read as follows:
Sec. 319.56-2ff Administrative instructions governing movement of Hass
avocados from Mexico to the northeastern United States.
Fresh Hass variety avocados (Persea americana) may be imported from
Mexico into the United States for distribution in the northeastern
United States only under a permit issued in accordance with
Sec. 319.56-4, and only under the following conditions:
(a) Shipping restrictions. (1) The avocados may be imported in
commercial shipments only;
(2) The avocados may be imported only during the months of
November, December, January, and February; and
(3) The avocados may be distributed only in the following
northeastern States: Connecticut, Delaware, the District of Columbia,
Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Michigan,
New Hampshire, New Jersey, New York,
[[Page 5314]]
Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, West Virginia, and
Wisconsin.
(b) Trust fund agreement. The avocados may be imported only if the
Mexican avocado industry association representing Mexican avocado
growers, packers, and exporters has entered into a trust fund agreement
with the Animal and Plant Health Inspection Service (APHIS) for that
shipping season. That agreement requires the Mexican avocado industry
association to pay in advance all estimated costs that APHIS expects to
incur through its involvement in the trapping, survey, harvest, and
packinghouse operations prescribed in paragraph (c) of this section.
These costs will include administrative expenses incurred in conducting
the services and all salaries (including overtime and the Federal share
of employee benefits), travel expenses (including per diem expenses),
and other incidental expenses incurred by the inspectors in performing
these services. The agreement requires the Mexican avocado industry
association to deposit a certified or cashier's check with APHIS for
the amount of those costs, as estimated by APHIS. If the deposit is not
sufficient to meet all costs incurred by APHIS, the agreement further
requires the Mexican avocado industry association to deposit with APHIS
a certified or cashier's check for the amount of the remaining costs,
as determined by APHIS, before the services will be completed. After a
final audit at the conclusion of each shipping season, any overpayment
of funds would be returned to the Mexican avocado industry association
or held on account until needed.
(c) Safeguards in Mexico. The avocados must have been grown in the
Mexican State of Michoacan 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. Sanidad Vegetal must provide an
annual work plan to APHIS that details the activities that Sanidad
Vegetal will, subject to APHIS' approval of the work plan, carry out to
meet the requirements of this section; APHIS will be directly involved
with Sanidad Vegetal in the monitoring and supervision of those
activities. The personnel conducting the trapping and pest surveys must
be hired, trained, and supervised by Sanidad Vegetal or by the
Michoacan State delegate of the Secretaria de Agricultura, Ganaderia y
Desarrollo Rural (SAGDR).
(1) Municipality requirements. (i) The municipality must be listed
as an approved municipality in the annual work plan provided to APHIS
by Sanidad Vegetal.
(ii) The municipality must be surveyed at least annually and found
to be free from the large avocado seed weevil Heilipus lauri, the
avocado seed moth Stenoma catenifer, and the small avocado seed weevils
Conotrachelus aguacatae and C. perseae. The survey must cover at least
300 hectares in the municipality and include randomly selected portions
of each registered orchard and areas with wild or backyard avocado
trees. The survey must be conducted during the growing season and
completed prior to the harvest of the avocados.
(iii) Trapping must be conducted in the municipality for
Mediterranean fruit fly (Medfly) (Ceratitis capitata) at the rate of 1
trap per 1 to 4 square miles. Any findings of Medfly must be reported
to APHIS.
(2) Orchard and grower requirements. The orchard and the grower
must be registered with Sanidad Vegetal's avocado export program and
must be listed as an approved orchard or an approved grower in the
annual work plan provided to APHIS by Sanidad Vegetal. The operations
of the orchard must meet the following conditions:
(i) The orchard and all contiguous orchards and properties must be
surveyed annually and found to be free from the avocado stem weevil
Copturus aguacatae. The survey must be conducted during the growing
season and completed prior to the harvest of the avocados.
(ii) Trapping must be conducted in the orchard for the fruit flies
Anastrepha ludens, A. serpentina, and A. striata at the rate of one
trap per 10 hectares. If one of those fruit flies is trapped, at least
10 additional traps must be deployed in a 50-hectare area immediately
surrounding the trap in which the fruit fly was found. If within 30
days of the first finding any additional fruit flies are trapped within
the 260-hectare area surrounding the first finding, malathion bait
treatments must be applied in the affected orchard in order for the
orchard to remain eligible to export avocados.
(iii) Avocado fruit that has fallen from the trees must be removed
from the orchard at least once every 7 days and may not be included in
field boxes of fruit to be packed for export.
(iv) Dead branches on avocado trees in the orchard must be pruned
and removed from the orchard.
(v) Harvested avocados must be placed in field boxes or containers
of field boxes that are marked to show the Sanidad Vegetal registration
number of the orchard. The avocados must be moved from the orchard to
the packinghouse within 3 hours of harvest or they must be protected
from fruit fly infestation until moved.
(vi) The avocados must be protected from fruit fly infestation
during their movement from the orchard to the packinghouse and must be
accompanied by a field record indicating that the avocados originated
from a certified orchard.
(3) Packinghouse requirements. The packinghouse must be registered
with Sanidad Vegetal's avocado export program and must be listed as an
approved packinghouse in the annual work plan provided to APHIS by
Sanidad Vegetal. The operations of the packinghouse must meet the
following conditions:
(i) During the time the packinghouse is used to prepare avocados
for export to the United States, the packinghouse may accept fruit only
from orchards certified by Sanidad Vegetal for participation in the
avocado export program.
(ii) All openings to the outside must be covered by screening with
openings of not more than 1.6 mm or by some other barrier that prevents
insects from entering the packinghouse.
(iii) The packinghouse must have double doors at the entrance to
the facility and at the interior entrance to the area where the
avocados are packed.
(iv) Prior to the culling process, a sample of 300 avocados per
shipment must be selected, cut, and inspected by Sanidad Vegetal and
found free from pests.
(v) The identity of the avocados must be maintained from field
boxes or containers to the shipping boxes 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.
(vi) Prior to being packed in boxes, each avocado fruit must be
cleaned of all stems, leaves, and other portions of plants and labeled
with a sticker that bears the Sanidad Vegetal registration number of
the packinghouse.
(vii) The avocados must be packed in clean, new boxes. The boxes
must be clearly marked with the identity of the grower, packinghouse,
and exporter, and the statement ``Distribution limited to the following
States: CT, DC, DE, IL, IN, KY, ME, MD, MA, MI, NH, NJ, NY, OH, PA, RI,
VA, VT, WV, and WI.''
[[Page 5315]]
(viii) The boxes must be placed in a refrigerated truck or
refrigerated container and remain in that truck or container while in
transit through Mexico to the port of first arrival in the United
States. Prior to leaving the packinghouse, the truck or container must
be secured by Sanidad Vegetal with a seal that will be broken when the
truck or container is opened. Once sealed, the refrigerated truck or
refrigerated container must remain unopened until it reaches the port
of first arrival in the United States.
(ix) Any avocados that have not been packed or loaded into a
refrigerated truck or refrigerated container by the end of the work day
must be kept in the screened packing area.
(d) Certification. All shipments of avocados must be accompanied by
a phytosanitary certificate issued by Sanidad Vegetal certifying that
the conditions specified in this section have been met.
(e) Pest detection. (1) If any of the avocado seed pests Heilipus
lauri, Conotrachelus aquacatae, C. perseae, or Stenoma catenifer are
discovered in a municipality during an annual pest survey, orchard
survey, packinghouse inspection, or other monitoring or inspection
activity in the municipality, Sanidad Vegetal must immediately initiate
an investigation and take measures to isolate and eradicate the pests.
Sanidad Vegetal must also provide APHIS with information regarding the
circumstances of the infestation and the pest risk mitigation measures
taken. The municipality in which the pests are discovered will lose its
pest-free certification and avocado exports from that municipality will
be suspended until APHIS and Sanidad Vegetal agree that the pest
eradication measures taken have been effective and that the pest risk
within that municipality has been eliminated.
(2) If Sanidad Vegetal discovers the stem weevil Copturus aguacatae
in an orchard during an orchard survey or other monitoring or
inspection activity in the orchard, Sanidad Vegetal must provide APHIS
with information regarding the circumstances of the infestation and the
pest risk mitigation measures taken. The orchard in which the pest was
found will lose its export certification immediately and will be denied
export certification for the entire shipping season of November through
February.
(3) If Sanidad Vegetal discovers the stem weevil Copturus aguacatae
in fruit at a packinghouse, Sanidad Vegetal must investigate the origin
of the infested fruit and provide APHIS with information regarding the
circumstances of the infestation and the pest risk mitigation measures
taken. The orchard where the infested fruit originated will lose its
export certification immediately and will be denied export
certification for the entire shipping season of November through
February.
(f) Ports. The avocados may enter the United States at:
(1) Any port located in the northeastern States specified in
paragraph (a)(3) of this section;
(2) The ports of Galveston or Houston, TX, or the border ports of
Nogales, AZ, or Brownsville, Eagle Pass, El Paso, Hidalgo, or Laredo,
TX; or
(3) Other ports within that area of the United States specified in
paragraph (g) of this section.
(g) Shipping areas. Except as explained below in this paragraph for
avocados that enter the United States at Nogales, AZ, avocados moved by
truck or rail car may transit only that area of the United States
bounded on the west by a line extending from El Paso, TX, to Denver,
CO, and due north from Denver; and on the east and south by a line
extending from Brownsville, TX, to Galveston, TX, to Kinder, LA, to
Memphis, TN, to Knoxville, TN, following Interstate 40 to Raleigh, NC,
and due east from Raleigh. All cities on these boundary lines are
included in this area. If the avocados are moved by air, the aircraft
may not land outside this area. Avocados that enter the United States
at Nogales, AZ, must be moved to El Paso, TX, by the route specified on
the permit, and then must remain within the shipping area described
above in this paragraph.
(h) Shipping requirements. The avocados must be moved through the
United States either by air or in a refrigerated truck or refrigerated
rail car or in a refrigerated container on a truck or rail car. If the
avocados are moved in a refrigerated container on a truck or rail car,
an inspector must seal the container with a serially numbered seal at
the port of first arrival in the United States. If the avocados are
moved in a refrigerated truck or a refrigerated rail car, an inspector
must seal the truck or rail car with a serially numbered seal at the
port of first arrival in the United States. If the avocados are
transferred to another vehicle or container in the United States, an
inspector must be present to supervise the transfer and must apply a
new serially numbered seal. The avocados must be moved through the
United States under Customs bond.
(i) Inspection. The avocados are subject to inspection by an
inspector at the port of first arrival, at any stops in the United
States en route to the northeastern States, and upon arrival at the
terminal market in the northeastern States. At the port of first
arrival, an inspector will sample and cut avocados from each shipment
to detect pest infestation.
Done in Washington, DC, this 31st day of January 1997.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 97-2825 Filed 2-4-97; 8:45 am]
BILLING CODE 3410-34-P
