99-16173. Mexican Hass Avocado Import Program  

  • [Federal Register Volume 64, Number 122 (Friday, June 25, 1999)]
    [Proposed Rules]
    [Pages 34141-34144]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-16173]
    
    
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    Proposed Rules
                                                    Federal Register
    ________________________________________________________________________
    
    This section of the FEDERAL REGISTER contains notices to the public of 
    the proposed issuance of rules and regulations. The purpose of these 
    notices is to give interested persons an opportunity to participate in 
    the rule making prior to the adoption of the final rules.
    
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    Federal Register / Vol. 64, No. 122 / Friday, June 25, 1999 / 
    Proposed Rules
    
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    DEPARTMENT OF AGRICULTURE
    
    Animal and Plant Health Inspection Service
    
    7 CFR Part 319
    
    [Docket No. 99-020-1]
    
    
    Mexican Hass Avocado Import Program
    
    AGENCY: Animal and Plant Health Inspection Service, USDA.
    
    ACTION: Proposed rule.
    
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    SUMMARY: We are proposing to amend our regulations governing the 
    importation of Hass avocados from Mexico to require handlers and 
    distributors to enter into compliance agreements with the Animal and 
    Plant Health Inspection Service. We would also amend the stickering 
    requirement for the avocados and add requirements regarding the 
    repackaging of the avocados after their entry into the United States. 
    These proposed amendments are necessary to ensure that distributors and 
    handlers are familiar with the distribution restrictions and other 
    requirements of the regulations and to strengthen the effectiveness of 
    the marking requirements used to identify the avocados and allow them 
    to be tracked back to their grove of origin. These proposed amendments 
    would serve to reinforce the existing safeguards of the avocado import 
    program.
    
    DATES: We invite you to comment on this docket. We will consider all 
    comments that we receive by August 24, 1999.
    
    ADDRESSES: Please send your comment and three copies to: Docket No. 99-
    020-1, Regulatory Analysis and Development, PPD, APHIS, Suite 3C03, 
    4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that 
    your comment refers to Docket No. 99-020-1.
        You may read any comments that we receive on this docket in our 
    reading room. The reading room is located in room 1141 of the USDA 
    South Building, 14th Street and Independence Avenue, SW., Washington, 
    DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
    Friday, except holidays. to be sure someone is there to help you please 
    call (202) 690-2817 before coming.
        APHIS documents published in the Federal Register, and related 
    information, including the names of organizations and individuals who 
    have commented on APHIS rules, are available on the Internet at http://
    www.aphis.usda.gov/ppd/rad/webrepor.html.
    
    FOR FURTHER INFORMATION CONTACT: Ms. Donna West, Import Specialist, 
    Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road Unit 
    140, Riverdale, MD 20737-1236; (301) 734-6799; e-mail: 
    Donna.L.West@usda.gov.
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        The regulations in ``Subpart--Fruits and Vegetables'' (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 from certain parts of the world to prevent the introduction and 
    dissemination of plant pests, including fruit flies, that are new to or 
    not widely distributed within the United States.
        The regulations in Sec. 319.56-2ff 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. Those conditions, which include pest surveys and 
    pest risk-reducing cultural practices, packinghouse procedures, 
    inspection and shipping procedures, and restrictions on the time of 
    year (November through February) that shipments may enter the United 
    States, are designed to reduce the risk of pest introduction to a 
    negligible level. Further, the regulations in Sec. 319.56-2ff limit the 
    distribution of the avocados to 19 northeastern States and the District 
    of Columbia, where climatic conditions preclude the establishment in 
    the United States of any of the exotic plant pests that may attack 
    avocados in Michoacan. Mexico. In this document, we are proposing to 
    make several changes to the regulations.
    
    Compliance Agreements
    
        The regulations in Sec. 319.56-2ff became effective in March 1997. 
    During the first shipping season (November 1997 through February 1998), 
    we found that one distributor had shipped Mexican Hass avocados to 
    Georgia, Iowa, Missouri, North Carolina, South Carolina, and Tennessee, 
    none of which are among the 19 approved States. In the second shipping 
    season (November 1998 through February 1999), we found that five other 
    distributors had allowed Mexican Hass avocados to be shipped those same 
    six States as well as to the non-approved States of Florida, Minnesota, 
    Mississippi, Nebraska, and South Dakota.
        In order to help prevent recurrences of such unauthorized shipments 
    in future shipping seasons, we are proposing to amend the regulations 
    to require all handlers and distributors of Mexican Hass avocados to 
    enter into a compliance agreement with the Animal and Plant Health 
    Inspection Service (APHIS). The compliance agreement would serve both 
    as an educational tool to ensure that all handlers and distributors 
    have been fully informed about the limitations that the regulations 
    place on the movement of the avocados and as an enforcement tool that 
    would provide a greater measure of accountability for handlers or 
    distributors who may violate the distribution restrictions of the 
    regulations. This proposed compliance agreement requirement would be 
    added to the regulations in Sec. 319.56-2ff as a new paragraph (k), 
    ``Compliance agreements.''
        Specifically, proposed paragraph (k)(1) would state that any person 
    other than the person who received a permit to import the avocados (the 
    permittee) who moves or distributes Mexican Hass avocados following 
    their importation into the United States must enter into a compliance 
    agreement with APHIS. In that compliance agreement, the person moving 
    or distributing the avocados would have to acknowledge, and agree to 
    observe, the restrictions found in Sec. 319.56-2ff regarding the 
    movement of the avocados in the United States. Those restrictions, a 
    copy of which would be provided to the person entering into the 
    compliance agreement, are found in Sec. 319.56-2ff in paragraph (a), 
    ``Shipping restrictions;'' paragraph (f), ``Ports;'' paragraph (g), 
    ``Shipping areas;''
    
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    paragraph (h), ``Shipping requirements;'' and paragraph (i), 
    ``Inspection;'' as well as in proposed new paragraph (j), 
    ``Repackaging'' (which is explained later in this document) and 
    proposed paragraph (k), ``Compliance agreements.''
        By requiring handlers and distributors to sign a compliance 
    agreement, we would be able to document that they have received a copy 
    of the regulations and have had those regulations explained to them. 
    This would effectively eliminate any uncertainty or misunderstanding 
    that they may have regarding their responsibilities under the 
    regulations. Paragraph (k)(1) would conclude by stating that compliance 
    agreements forms are available free of charge, from local offices of 
    Plant Protection and Quarantine, which are listed in local telephone 
    directories.
        Proposed paragraph (k)(2) would state that the permittee would have 
    to ensure that any person to whom he or she released the avocados for 
    movement or distribution (i.e., a second-party handler) has entered 
    into a compliance agreement with APHIS. While the importers themselves 
    must acknowledge the requirements of the regulations before they 
    receive a permit to import Mexican Hass avocados, it is possible that a 
    second-party handler might fail to fully familiarize himself or herself 
    with the distribution limitations and other restrictions associated 
    with the Avocados. We believe requiring permittees to confirm that the 
    person to whom they are releasing the avocados for distribution has 
    entered into a compliance agreement with APHIS would ensure that 
    second-party handlers are made aware of their responsibilities under 
    the regulations. This proposed requirement would also be made a 
    condition of the permit that the permittee must obtain prior to 
    importing Mexican Hass avocados, and failure to observe the conditions 
    of a permit is grounds for its revocation. Therefore, paragraph (k)(2) 
    would also state that APHIS may revoke an import permit for the 
    remainder of the current shipping season if the permittee failed to 
    confirm that the second-party handler had entered into a compliance 
    agreement.
        For the same reasons that we would address the transfer of avocados 
    from the permittee to a second-party handler, as described in the 
    previous paragraph, we are also proposing to require that any second-
    party or subsequent handler who releases the avocados to another person 
    for movement or distribution must ensure that the person receiving the 
    avocados has entered into a compliance agreement with APHIS. This 
    proposed requirement would be stated in paragraph (k)(3). Again, the 
    compliance agreement would ensure that persons receiving the avocados 
    from second-party or subsequent handlers are made aware of their 
    responsibilities under the regulations. Further, the compliance 
    agreement would serve to establish a chain of custody that would 
    indicate at what point this proposed compliance agreement requirement 
    was disregarded. Because a compliance agreement would be required for 
    persons moving or distributing the avocados, paragraph (k)(3) would 
    also state that APHIS may revoke a second-party or subsequent handler's 
    compliance agreement for the remainder of the current shipping season 
    if that second-party or subsequent handler failed to confirm that the 
    person to whom he or she released the avocados had entered into a 
    compliance agreement.
        Finally, in order to help prevent repeated violations of the 
    proposed compliance agreement requirement, paragraph (k)(4) would 
    provide that APHIS may deny an import permit application from, or 
    refuse to enter into a compliance agreement with, a person who has had 
    his or her import permit or compliance agreement revoked twice within 
    any 5-year period. This would prevent permittees or handlers who 
    repeatedly disregard or violate the compliance agreement requirement 
    from receiving or moving shipments of Mexican Hass avocados.
    
    Stickers
    
        The regulations in Sec. 319.56-2ff(c)(3)(vi) require, among other 
    things, that prior to being packed in boxes at the packinghouse in 
    Mexico, each avocado fruit must be labeled with a sticker that bears 
    the Sanidad Vegetal registration number of the packinghouse. This 
    requirement is intended to make it easier to identify Mexican-origin 
    avocados at terminal markets and presents an additional obstacle to 
    transshipment of the fruit to non-approved States.
        It has come to our attention that some packinghouses in Mexico may 
    be using the same sticker required by the regulations for ``program 
    fruit'' (i.e., avocados that meet the requirements of Sec. 319.56-2ff 
    for export to the northeastern United States) on ``non-program fruit'' 
    shipped to Canada or used for domestic consumption in Mexico. While 
    using the sticker for non-program fruit is not currently prohibited by 
    the regulations, we believe that such uses of the sticker dilute the 
    effectiveness of the stickers as a tool for identifying Mexican 
    avocados in the United States and for differentiating program fruit 
    from non-program fruit that may have been smuggled into the United 
    States.
        Therefore, we are proposing to amend Sec. 319.56-2ff(c)(3)(vi) to 
    require that the stickers used for program fruit not only bear the 
    Sanidad Vegetal registration number of the packinghouse, but that they 
    also bear the letters ``M/US'' after that number, and that those 
    stickers be used only for fruit produced in accordance with 
    Sec. 319.56-2ff for export to the United States. These proposed 
    amendments to the stickering requirement would ensure that the stickers 
    will serve their intended purpose of making it easier to identify 
    Mexican-origin avocados at terminal markets and would further allow us 
    to differentiate between program fruit and non-program fruit that may 
    have been smuggled into the United States.
    
    Repackaging
    
        The regulations in Sec. 319.56-2ff(c)(3)(vii) require that, at the 
    packinghouse in Mexico, the avocados must be packed in clean, new 
    boxes, and 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.'' This requirement 
    ensures that the avocados can be traced back to their grove of origin 
    in the event that pests are detected at any time after the avocados are 
    placed in boxes at the packinghouse.
        We acknowledge that there may be instances where the avocados may 
    have to be packed in new boxes after their entry into the United States 
    due to damage to the original shipping box or some other legitimate 
    reason. It is also possible that a person may attempt to conceal the 
    origin of the avocados by repackaging them into unmarked boxes or 
    removing the stickers that are required by Sec. 319.56-2ff(c)(3)(vi). 
    The regulations, however, currently do not address the removal of 
    stickers or the repackaging of avocados after their arrival in the 
    United States.
        Therefore, we are proposing to add a new paragraph (j) to 
    Sec. 319.56-2ff that would clearly state that if any avocados are 
    removed from their original shipping boxes and repackaged, the stickers 
    may not be removed or obscured and the new boxes must be clearly marked 
    with the same information that must be placed on the original boxes at 
    the packinghouse. Adding these provisions to the regulations would help 
    ensure these identifying measures would be
    
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    maintained in the event that repackaging became necessary, thus 
    preserving the important information regarding the identity and origin 
    of the avocados that those measures provide.
    
    Executive Order 12866 and Regulatory Flexibility Act
    
        This proposed rule has been reviewed under Executive Order 12866. 
    The rule has been determined to be not significant for the purposes of 
    Executive Order 12866 and, therefore, has not been reviewed by the 
    Office of Management and Budget.
        This proposed rule would amend our regulations governing the 
    importation of Hass avocados from Mexico to require handlers and 
    distributors to enter into compliance agreements with APHIS. This 
    proposed rule would also amend the stickering requirement for the 
    avocados and add requirements regarding the repackaging of the avocados 
    after their entry into the United States. These proposed amendments 
    would ensure that distributors and handlers are familiar with the 
    distribution restrictions and other requirements of the regulations and 
    would strengthen the effectiveness of the marking requirements used to 
    identify the avocados and allow them to be traced back to their grove 
    of origin.
        During the first shipping season for Mexican Hass avocados 
    (November 1997 through February 1998), Mexico exported 13.296 million 
    pounds of fresh avocados to the northeastern United States (U.S. 
    Department of Agriculture, Foreign Agricultural Service, GAIN Report 
    No. MX8140, November 24, 1998). During the second shipping season 
    (November 1998 through February 1999), Mexico exported approximately 22 
    million pounds of fresh avocados to the northeastern United States.
        Although it was anticipated that the importation of fresh Hass 
    avocados from Mexico into the northeastern United States would result 
    in lower prices for consumers and losses for domestic avocado 
    producers, there has, to date, been little or no price change. The 
    average wholesale price for avocados in the approved 19 northeastern 
    States and the District of Columbia before the first shipping season 
    began in November 1997 was $1.47 per pound, while after the shipping 
    season began, the average wholesale price was $1.60 per pound. For the 
    non-approved States, the average wholesale prices were $1.46 before 
    November 1997 and $1.57 after the first shipping season began. (The 
    wholesale prices in the approved States are based on averages in 
    Baltimore, Boston, Chicago, Detroit, New York, and Philadelphia; the 
    wholesale prices for the non-approved States are based on averages in 
    Atlanta, Dallas, Los Angeles, Miami, San Francisco, and Seattle.) There 
    was no statistically significant difference between the wholesale 
    prices in the approved States and the non-approved States before or 
    after Mexican Hass avocados entered the domestic market. It should be 
    noted that the average wholesale prices for fresh avocados in Mexico 
    were only about $0.33 and $0.32 per pound in 1997 and 1998, 
    respectively.
        As discussed in the background section of this proposed rule, 
    compliance agreements are available from APHIS free of charge and the 
    stickering of individual avocados in Mexico is already required under 
    the regulations. Therefore, the only aspect of this proposed rule that 
    could be expected to result in additional costs for any U.S. entities, 
    large or small, would be the proposed requirement for the marking of 
    new boxes in cases where the avocados are repackaged after their entry 
    into the United States.
        According to industry sources, the cost of the current box marking 
    and fruit stickering requirements of the regulations is approximately 
    $0.06 per pound. This cost is borne at the Mexican production/export 
    end of the Hass avocado export program. If 20 percent of all shipments 
    had to be repackaged following their arrival in the United States due 
    to damage to original shipping boxes or for other reasons, the proposed 
    requirement for the marking of new boxes could result in additional 
    costs to U.S. importers or distributors of approximately $160,000 to 
    $264,000. This estimate was arrived at using 20 percent of the total 
    volume of Mexican Hass avocados shipped to the northeastern United 
    States during the two export seasons of 1997-1998 (13.296 million 
    pounds  x  $0.06  x  0.2=$159,552) and 1998-1999 (22 million pounds  x  
    $0.06  x 0.2=$264,000). However, because the $0.06 figure used includes 
    the costs of stickering as well as box marking, it is likely that the 
    costs to U.S. importers or distributors of marking new boxes in the 
    United States would actually be less than that estimate. Since, as 
    noted above, the price spread between domestic and Mexican wholesale 
    prices is so large, U.S. importers and distributors may be able to 
    absorb any additional costs resulting from the proposed requirement for 
    marking new boxes without passing those costs on to consumers.
        Under these circumstances, the Administrator of the Animal and 
    Plant Health Inspection Service has determined that this action would 
    not have a significant economic impact on a substantial number of small 
    entities.
    
    Executive Order 12988
    
        This proposed rule has been reviewed under Executive Order 12988, 
    Civil Justice Reform. If this proposed rule is adopted: (1) All State 
    and local laws and regulations that are inconsistent with this rule 
    will be preempted; (2) no retroactive effect will be given to this 
    rule; and (3) administrative proceedings will not be required before 
    parties may file suit in court challenging this rule.
    
    Paperwork Reduction Act
    
        In accordance with section 3507(d) of the Paperwork Reduction Act 
    of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
    recordkeeping requirements included in this proposed rule have been 
    submitted for approval to the Office of Management and Budget (OMB). 
    Please send written comments to the Office of Information and 
    Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
    DC 20503. Please state that your comments refer to Docket No. 99-020-1. 
    Please send a copy of your comments to: (1) Docket No. 99-020-1, 
    Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River 
    Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, 
    OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., 
    Washington, DC 20250. A comment to OMB is best assured of having its 
    full effect if OMB receives it within 30 days of publication of this 
    proposed rule.
        Our regulations currently allow fresh Hass avocado fruit grown in 
    approved orchards in Michoacan, Mexico, to be imported into the United 
    States under certain conditions. In this document, we are proposing to 
    amend our regulations governing the importation of Hass avocados from 
    Mexico to require handlers and distributors to enter into compliance 
    agreements with APHIS. We are also proposing to amend the existing 
    stickering requirement for the avocados and to add requirements 
    regarding the marking of new boxes when avocados are repackaged after 
    their entry into the United States.
        These proposed amendments would require the use of several 
    information collection procedures, including a compliance agreement, 
    enhanced product identification, and additional container marking 
    requirements. We are asking OMB to approve our use of these information 
    collections in connection with our efforts to ensure that fresh Hass 
    avocados from Mexico pose a negligible risk of introducing exotic 
    insect pests into the United States.
    
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        We are soliciting comments from the public (as well as affected 
    agencies) concerning our proposed information collection and 
    recordkeeping requirements. These comments will help us:
        (1) Evaluate whether the proposed information collection is 
    necessary for the proper performance of our agency's functions, 
    including whether the information will have practical utility;
        (2) Evaluate the accuracy of our estimate of the burden of the 
    proposed information collection, including the validity of the 
    methodology and assumptions used;
        (3) Enhance the quality, utility, and clarity of the information to 
    be collected; and
        (4) Minimize the burden of the information collection on those who 
    are to respond (such as through the use of appropriate automated, 
    electronic, mechanical, or other technological collection techniques or 
    other forms of information technology, e.g., permitting electronic 
    submission of responses).
        Estimate of burden: Public reporting burden for this collection of 
    information is estimated to average 1.195 hours per response.
        Respondents: Packinghouse owner/operators in Mexico and importers, 
    shippers, distributors, and handlers of fresh Hass avocados imported 
    into the United States.
        Estimated annual number of respondents: 210.
        Estimated annual number of responses per respondent: 1.195.
        Estimated annual number of responses: 210.
        Estimated total annual burden on respondents: 251 hours. (Due to 
    rounding, the total annual burden hours may not equal the product of 
    the annual number of responses multiplied by the average reporting 
    burden per response.)
        Copies of this information collection can be obtained from: 
    Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence 
    Avenue, SW., Washington, DC 20250.
    
    List of Subjects in 7 CFR Part 319
    
        Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery Stock, 
    Plant diseases and pests, Quarantine, Reporting and recordkeeping 
    requirements, Rice, Vegetables.
    
        Accordingly, we propose to amend 7 CFR part 319 as follows:
    
    PART 319--FOREIGN QUARANTINE NOTICES
    
        1. The authority citation for part 319 would continue 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. In Sec. 319.56-2ff, paragraph (c)(3)(vi) would be revised and 
    new paragraphs (j) and (k) would be added to read as follows:
    
    
    Sec. 319.56-ff  Administrative instructions governing movement of Hass 
    avocados from Mexico to the Northeastern United States.
    
    * * * * *
        (c) * * *
        (3) * * *
        (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 followed by the letters ``M/US.'' The stickers may be 
    used only for fruit produced in accordance with this section for export 
    to the United States.
    * * * * *
        (j) Repackaging. If any avocados are removed from their original 
    shipping boxes and repackaged, the stickers required by paragraph 
    (c)(3)(vi) of this section may not be removed or obscured and the new 
    boxes must be clearly marked with all the information required by 
    paragraph (c)(3)(vii) of this section.
        (k) Compliance agreements. (1) Any person other than the permittee 
    (i.e., a second-party or subsequent handler) who moves or distributes 
    the avocados following their importation into the United States must 
    enter into a compliance agreement with APHIS. In the compliance 
    agreement, the person must acknowledge, and agree to observe, the 
    requirements of paragraph (a) and paragraphs (f) through (k) of this 
    section. Compliance agreement forms are available, free of charge, from 
    local offices of Plant Protection and Quarantine, which are listed in 
    local telephone directories.
        (2) Before transferring the avocados to any person (i.e., a second-
    party handler) for movement or distribution, the permittee must confirm 
    that the second-party handler has entered into a compliance agreement 
    with APHIS as required by paragraph (k)(1) of this section. If the 
    permittee transfers the avocados to a second-party handler who has not 
    entered into a compliance agreement, APHIS may revoke the permittee's 
    import permit for the remainder of the current shipping season.
        (3) Any second-party or subsequent handler who transfers the 
    avocados to another person for movement or distribution must confirm 
    that the person receiving the avocados has entered into a compliance 
    agreement with APHIS as required by paragraph (k)(1) of this section. 
    If the second-party or subsequent handler transfers the avocados to a 
    person who has not entered into a compliance agreement, APHIS may 
    revoke the handler's compliance agreement for the remainder of the 
    current shipping season.
        (4) Action on repeat violators. APHIS may deny an application for 
    an import permit from, or refuse to enter into a compliance agreement 
    with, any person who has had his or her import permit or compliance 
    agreement revoked under paragraph (k)(2) or (k)(3) of this section 
    twice within any 5-year period.
    
        Done in Washington, DC, this 21st day of June 1999.
    Joan M. Arnoldi,
    Acting Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 99-16173 Filed 6-24-99; 8:45 am]
    BILLING CODE 3410-34-M
    
    
    

Document Information

Published:
06/25/1999
Department:
Animal and Plant Health Inspection Service
Entry Type:
Proposed Rule
Action:
Proposed rule.
Document Number:
99-16173
Dates:
We invite you to comment on this docket. We will consider all comments that we receive by August 24, 1999.
Pages:
34141-34144 (4 pages)
Docket Numbers:
Docket No. 99-020-1
PDF File:
99-16173.pdf
CFR: (2)
7 CFR 319.56-ff
7 CFR 319.56-2ff