Avocados from Hawaii

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 318

[Docket No. 93-088-1]

Avocados from Hawaii

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations governing the

interstate movement of Hawaiian fruits and vegetables to allow avocados

to be moved from Hawaii into Alaska, accompanied by a limited permit

and subject to certain conditions. We believe this action is warranted

because the climatic conditions in Alaska ensure that pests of avocados

would not present a threat to agriculture in that State. This action

would relieve some restrictions on the interstate movement of avocados

from Hawaii without presenting a significant risk of introducing

injurious insects into the United States. We are also proposing to

amend the regulations to clarify that limited permits may be issued by

inspectors or by persons operating under compliance agreements unless

the regulations specify that the limited permit must be issued by an

inspector.

DATES: Consideration will be given only to comments received on or

before April 26, 1994.

ADDRESSES: Please send an original and three copies of your comments to

Chief, Regulatory Analysis and Development, PPD, APHIS, USDA, room 804,

Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782. Please

state that your comments refer to Docket No. 93-088-1. Comments

received may be inspected 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 comments are encouraged to call ahead on (202) 690-2817 to

facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Victor Harabin, Head, Permit Unit,

Port Operations, Plant Protection and Quarantine, APHIS, USDA, room

632, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782, (301)

436-8645.

SUPPLEMENTARY INFORMATION:

Background

The Hawaiian Fruits and Vegetables regulations (contained in 7 CFR

318.13 through 318.13-17, and referred to below as the regulations)

govern, among other things, the interstate movement from Hawaii of

avocados in a raw or unprocessed state. Regulation is necessary to

prevent the spread of the Mediterranean fruit fly (Ceratitis capitata

(Wied.)), the melon fly (Dacus cucurbitae (Coq.)), and the Oriental

fruit fly (Bactrocera dorsalis (Hendel)(Syn. Dacus dorsalis)). These

types of fruit flies are collectively referred to as Trifly.

The regulations allow avocados to be moved interstate from Hawaii

to any destination in the United States only if, among other things,

they have been treated in accordance with a treatment specified in

either Sec. 318.13-4d or Sec. 318.13-4e of the regulations. We are

proposing to amend the regulations to allow avocados to be moved from

Hawaii to Alaska without treatment, but subject to certain other

conditions.

Based on host tolerance studies, we have determined that the

treatments specified in Secs. 318.13-4d and 318.13-4e are not

commercially feasible for use on avocados. Section 318.13-4d provides

for treatment of avocados by fumigation with methyl bromide at normal

atmospheric pressure at the rate of 2 pounds per 1,000 cubic feet for 4

hours at 70 deg.F. or above under certain conditions. This treatment

causes pitting and internal and external discoloration, and reduces the

shelf life of the avocado by 2-4 days, all of which adversely affect

the marketability of the avocados. Section 318.13-4e provides for

treatment of mature green avocados under conditions which include

fumigation with methyl bromide at normal atmospheric pressure at the

rate of 2 pounds per 1,000 cubic feet for 2\1/2\ hours at 70 deg.F. or

above, followed by refrigeration for 7 days at fruit pulp temperature

of 45 deg.F. or below. This treatment cannot be feasibly used because,

after avocados are refrigerated for 7 days, there would not be a

sufficient shelf life remaining for marketing them. For these reasons,

avocados from Hawaii are not being treated and shipped interstate from

Hawaii.

Although two hosts of Trifly are grown in Alaska (apples and

pears), these pests of avocados could not become established in Alaska

because the pests could not survive that State's cold winters. We are

therefore proposing to add a new Sec. 318.13-4g to allow untreated

avocados from Hawaii to be moved interstate to Alaska only, provided

that certain conditions are met to help ensure that the avocados moved

to Alaska are free from Trifly. We consider these conditions necessary,

in addition to limiting movement only to Alaska, to minimize the risk

to Alaskan apples and pears and to address the slight risk that some

Hawaiian avocados might eventually move from Alaska to other States.

The conditions we propose to require are discussed below.

Marking Requirements

The avocados would have to be packed in boxes clearly marked with

the statement ``Distribution limited to the State of Alaska.'' This

requirement would dissuade shippers and brokers from diverting cargo,

and would alert cargo handlers and others who might not be familiar

with the restrictions of the regulations that the avocados are to be

distributed only in Alaska.

Commercial Shipments

We believe that allowing only commercial shipments of avocados to

be moved interstate from Hawaii to Alaska would be an added precaution

to minimize the risk of introducing Trifly into the continental United

States. Wild or ``backyard'' produce is generally grown under very

different conditions than commercially produced produce (e.g. wild or

backyard produce usually involves different varieties of produce and

different cultivation techniques, little or no pest control, and a lack

of sanitary controls during growing and packing). As a result, there is

reason to believe that wild or backyard avocados would present a

greater pest risk than commercially produced avocados. For these

reasons, we propose that only commercial shipments of avocados be

eligible for movement to Alaska. The term commercial shipment would be

added to Sec. 318.13-1, ``Definitions,'' to read as follows:

``Commercial shipment. Shipment containing fruits and vegetables

that an inspector identifies as having been produced for sale or

distribution in mass markets. Such identification will be based on a

variety of indicators, including, but not limited to: Quantity of

produce, type of packaging, identification of grower and packing house

on the packaging, and documents consigning the shipment to a wholesaler

or retailer.''

This definition is the same as the definition for commercial

shipment that appears in 7 CFR 319.56-1, which pertains to the

importation of fruits and vegetables from foreign countries.

Packing Requirements

We propose to require that the avocados be sealed in the packing

house in Hawaii in boxes with a seal that will break when the box is

opened. Such sealing would ensure that no avocados are removed from the

boxes before they reach their final destination in Alaska. Animal and

Plant Health Inspection Service (APHIS) inspectors would not allow any

boxes with broken seals to be moved into or through the continental

United States en route to Alaska.

Limited Ports

We propose to allow Hawaiian avocados to enter the continental

United States only at the following ports: Portland, OR; Seattle, WA;

or any port in Alaska. These ports would be convenient to shippers, but

would be sufficiently distant from warmer areas of the continental

United States more hospitable to Trifly. These ports are staffed by

APHIS inspectors, who would inspect permits for movement, inspect the

boxes of avocados to make sure that the boxes are intact and the seals

are not broken, and supervise transloading of shipments.

Shipping Requirements

We propose to allow the avocados to be moved from Hawaii to Alaska

only by air or ship and only if the boxes of avocados are in a sealed

container. As defined in Sec. 318.13-1 of the regulations, a sealed

container is ``[a] completely enclosed container designed for the

storage and/or transportation of commercial air, sea, rail, or truck

cargo, and constructed of metal or fiberglass, or other similarly

sturdy or impenetrable material, providing an enclosure accessed

through doors that are closed and secured with a lock or seal. Sealed

(sealable) containers used for sea shipments are distinct and separable

from the means of conveyance carrying them when arriving in and in

transit through the continental United States. Sealed (sealable)

containers used for air shipments are distinct and separable from the

means of conveyance carrying them before any transloading in the

continental United States. Sealed (sealable) containers used for air

shipments after transloading in the continental United States or for

overland shipments in the continental United States may either be

distinct and separable from the means of conveyance carrying them, or

be the means of conveyance itself.''

The avocados would not be permitted to be commingled in the same

sealed container with articles intended for entry and distribution in

parts of the United States other than Alaska. This precaution would be

necessary because the avocados may carry Trifly and commingling with

articles not destined for Alaska would pose a pest risk.

It may be necessary for a shipper to transload shipments arriving

at the ports of Portland, OR, or Seattle, WA. We are proposing to allow

transloading only under certain conditions to help ensure that the

shipments of avocados are not diverted en route to Alaska.

For shipments by sea, we would allow the avocados to be transloaded

from one ship to another ship at the port of arrival, provided they

remain in the original sealed container and that APHIS inspectors

supervise the transloading. If the avocados must be stored before

reloading, they must be kept in the original sealed container and must

be in an area that is either locked or guarded at all times the

avocados are present.

For shipments by air, we would allow the avocados to be transloaded

from one aircraft to another aircraft. Containers for air shipments,

unlike sea containers, often cannot practically be transferred to other

aircraft either because of their size or configuration. This means that

avocados shipped by air may have to be transloaded from the original

shipping container into another container or directly into the hold of

another aircraft. To accommodate this need, while at the same time

providing adequate safeguards and supervision against diversion of the

avocados, we are proposing that transloading of air shipments would be

authorized only if the following conditions are met: (1) The

transloading is done into sealable containers; (2) the transloading is

carried out within the secure area of the airport--i.e., that area of

the airport that is open only to personnel authorized by the airport

security authorities; (3) the area used for any storage of the shipment

is within the secure area of the airport, and is either locked or

guarded at all times the avocados are present. The avocados must be

kept in a sealed container while stored in the continental United

States en route to Alaska; and (4) APHIS inspectors supervise the

transloading.

We are not proposing a requirement for sea shipments parallel to

the requirement that the transloading and storage of air shipments must

be carried out in the ``secure area'' of the airport. Airports have

secure areas to protect against problems peculiar to airports (for

example, hijackings). Sea ports do not normally have a secure area.

Also, sealed containers for air shipments are usually made of a

relatively flimsy material such as aluminum, while sealed containers

for sea shipments are made of sturdier metal and are virtually tamper-

proof. Therefore, we do not believe that the extra precaution would be

necessary for sea shipments.

No transloading other than that described above would be allowed

except under extenuating circumstances (such as equipment breakdown)

and when authorized and supervised by an APHIS inspector. Because,

practically speaking, landing facilities for aircraft are not located

close enough to shipping docks to allow for direct transloading from an

aircraft to a ship or from a ship to an aircraft, we are not including

these options. Likewise, because of the distance between Portland or

Seattle and Alaska, it would not be practical to ship the avocados to

Alaska by truck or railcar. Therefore, we are not including the option

that shipments may be transloaded from an aircraft or ship to a truck

or railcar.

Limited Permit

We are proposing to require that shipments of avocados be

accompanied from Hawaii to Alaska by a limited permit issued by an

APHIS inspector in accordance with Sec. 318.13-4(c) of the regulations.

The limited permit would be issued only if the inspector examines the

shipment and determines that the shipment has been prepared in

compliance with the provisions we are proposing (for example, the boxes

must be properly marked and sealed). A limited permit would provide a

means of documenting the movement of the shipment following issuance of

the limited permit. We believe this would be necessary to ensure that

the avocados move in compliance with the regulations and to allow for

documentation of violations.

A limited permit would be withdrawn by an APHIS inspector if the

inspector determines that the holder of the permit has not complied

with all the conditions under the regulations for the use of the

limited permit. Provisions concerning removal of limited permits are

located in Sec. 318.13-16 of the regulations.

Currently, as a condition of issuance of a limited permit, persons

wishing to move articles regulated under Sec. 318.13 must sign an

agreement to, among other things, comply with the regulations for the

movement of the regulated articles (stipulations of the compliance

agreement are located in Sec. 318.13-4(d) of the regulations). The

primary purpose of requiring a compliance agreement is to allow persons

operating under compliance agreements to be issued a block of limited

permits or a limited permit stamp that they may apply to shipments

themselves without having to wait for an inspector to examine every

shipment. If a person violates any of the terms of the compliance

agreement, the agreement will be withdrawn and an inspector will issue

all limited permits individually for movement of regulated articles by

that person.

As stated above, our proposal for the movement of avocados from

Hawaii to Alaska would require the limited permit to be issued by an

APHIS inspector after the inspector has examined the shipment and

determined that the shipment has been prepared in compliance with the

proposed provisions. We believe that direct supervision by an inspector

would be an added precaution to ensure that the shipments of avocados

are properly marked, sealed, and shipped in accordance with the

regulations. Since this proposal would not allow shippers to be issued

limited permits in blocks or a limited permit stamp, it does not appear

necessary to require them to sign a compliance agreement.

Therefore, we are proposing several revisions to the current

regulations in Sec. 318.13 regarding limited permits and compliance

agreements to make the role of compliance agreements clear. We would

amend Sec. 318.13-4(c) by adding a new paragraph (c)(3) to state that

limited permits may be issued by a person operating under a compliance

agreement, except when the regulations specify that an inspector must

issue the limited permit. Section 318.13-4(d), ``Compliance

agreements,'' currently states: ``As a condition of issuance of a

limited permit, or a certificate under paragraph (b) of this section

for the movement of regulated articles for which a compliance agreement

is required, the person applying for the permit or certificate must

sign a compliance agreement stipulating that * * *''. We would amend

Sec. 318.13-4(d) by adding the phrase ``under paragraph (c)(3) of this

section'' after ``limited permit.'' The addition of the phrase would

clarify that not all limited permits are issued under compliance

agreements and would reference readers to the paragraph regarding

issuance of a limited permit for which a compliance agreement is

required.

In the definition of compliance agreement, we would remove the

references ``Sec. 318.13-4(e)'' and ``Sec. 318.13-4g'' because the

proposed regulations in Sec. 318.13-4g would not require a compliance

agreement and Sec. 318.13-4(e) no longer exists in the regulations. The

definition for limited permit currently reads: ``A document issued by

an inspector for the interstate movement of regulated articles to a

specified destination for: (1) Consumption, limited utilization or

processing, or treatment in conformity with a compliance agreement; or

(2) Movement into or through the continental United States in

conformity with a transit permit.'' We would revise this definition by

adding ``or a person operating under a compliance agreement''

immediately after ``inspector'', and by removing the phrase ``in

conformity with a compliance agreement'' from paragraph (1). These

revisions would allow limited permits to be issued either by a person

operating under a compliance agreement or by an inspector, according to

the requirements for each regulated article.

Additional Revisions

We are proposing to make two additional revisions to the

regulations to reflect the provisions of proposed Sec. 318.13-4g. We

are proposing to add a paragraph to Sec. 318.13-2, ``Prohibited

movement,'' to state that avocados which have been moved to Alaska in

accordance with proposed Sec. 318.13-4g are prohibited movement from

Alaska into or through other places in the continental United States,

Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands

of the United States. We are also proposing to add a paragraph to

Sec. 318.13-3, ``Conditions for movement,'' to stipulate that avocados

may be moved interstate from Hawaii to Alaska if the provisions of

Sec. 318.13-4g are met, and if they are accompanied by a limited permit

issued by an APHIS inspector in accordance with Sec. 318.13-4(c).

Finally, we are proposing to make a miscellaneous correction to the

regulations in Sec. 318.13-4f, which concern approval of irradiation

treatments as a condition for certification of papayas for movement

from Hawaii. Paragraph (b)(2)(iii) states that, in order to be

approved, irradiation treatment facilities must complete a compliance

agreement with APHIS as provided in Sec. 318.13-4(e). However, the

regulations regarding compliance agreements are now found in

Sec. 318.13-4(d). We would correct the reference in paragraph

(b)(2)(iii) to reflect this change.

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been reviewed under Executive Order 12866.

This proposed rule would allow untreated avocados to be moved

interstate from Hawaii to Alaska. Avocados are not presently shipped

from Hawaii to Alaska because required treatments do not make it

economically feasible.

In 1992, the U.S. production of avocados, not including Hawaii, was

approximately 290 million pounds. California produced approximately 86

percent of this total, with the Hass variety accounting for about 85

percent of California's production. The peak harvest season of the Hass

variety is April through October. California supplied approximately 90

percent of Alaska's 1992 avocado market.

In 1992, Hawaii produced approximately 700,000 pounds of avocados.

Thus, Hawaii's total production was less than 0.3 percent of the total

U.S. avocado production for that year. There are about 100 farms in

Hawaii that produce avocados. All of these would be considered small

entities (defined as having sales of less than $500,000 annually), as

the total value in 1992 for Hawaiian avocados was only $322,000. The

Sharwil variety accounts for about 75 percent of Hawaii's avocado

production. The peak harvest season for Sharwil avocados is November

through May.

The proposed rule change would positively affect Hawaiian avocado

producers by providing an economically feasible place for them to ship

avocados when there is a surplus in production. Although almost all of

Alaska's avocados are supplied by California, the addition of a

Hawaiian supply is unlikely to have a significant impact on Californian

avocado producers. Before a suspension of shipments in 1992, the

shipment of Hawaiian avocados to the mainland United States peaked at

only 100,000 pounds. Further, Californian avocados (Hass variety) and

Hawaiian avocados (Sharwil variety) have different peak production

seasons. As a result, their importation would overlap very little. The

shipment of Hawaiian avocados would allow Alaska to have a continuous

and varied avocado supply.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action would

not have a significant economic impact on a substantial number of small

entities.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic

Assistance under No. 10.025 and is subject to Executive Order 12372,

which requires intergovernmental consultation with State and local

officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12778

This proposed rule has been reviewed under Executive Order 12778,

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 the Paperwork Reduction Act of 1980 (44 U.S.C.

3501 et seq.), the information collection or recordkeeping requirements

included in this proposed rule have been approved by the Office of

Management and Budget (OMB) under OMB control number 0579-0088.

List of Subjects in 7 CFR Part 318

Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and

pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin

Islands.

Accordingly, 7 CFR part 318 would be amended as follows:

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

1. The authority citation for part 318 would continue to read as

follows:

Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, 164a,

167; 7 CFR 2.17, 2.51, and 371.2(c).

Sec. 318.13-1 [Amended]

2. Section 318.13-1 would be amended as follows:

a. In the definition for Compliance agreement the phrase

``Sec. 318.13-4(e),'' and the phrase ``and Sec. 318.13-4g'' would be

removed.

b. A definition for Commercial shipment would be added, in

alphabetical order, as set forth below.

c. The definition for Limited permit would be revised by adding the

phrase ``or a person operating under a compliance agreement''

immediately following ``inspector'', and by removing the phrase ``, in

conformity with a compliance agreement'' from paragraph (1).

Sec. 318.13-1 Definitions.

* * * * *

Commercial shipment. Shipment containing fruits and vegetables that

an inspector identifies as having been produced for sale or

distribution in mass markets. Such identification will be based on a

variety of indicators, including, but not limited to: Quantity of

produce, type of packaging, identification of grower and packing house

on the packaging, and documents consigning the shipment to a wholesaler

or retailer.

* * * * *

3. In Sec. 318.13-2, the regulatory text of paragraph (a) would be

redesignated as paragraph (a)(1) and a new paragraph (a)(2) would be

added to read as follows:

Sec. 318.13-2 Regulated articles.

(a) Prohibited movement.

(1) * * *

(2) Avocados which have been moved to Alaska in accordance with

Sec. 318.13-4g are prohibited movement from Alaska into or through

other places in the continental United States, Guam, the Northern

Mariana Islands, Puerto Rico, and the Virgin Islands of the United

States.

* * * * *

4. In Sec. 318.13-3, the text of paragraph (b) would be

redesignated as paragraph (b)(1) and a new paragraph (b)(2) would be

added to read as follows:

Sec. 318.13-3 Conditions of movement.

* * * * *

(b) To restricted destinations.

(1) * * *

(2) Avocados may be moved interstate from Hawaii to Alaska if the

provisions of Sec. 318.13-4g are met, and if they are accompanied by a

limited permit issued by an APHIS inspector in accordance with

Sec. 318.13-4(c).

* * * * *

Sec. 318.13-4 [Amended]

5. Section 318.13-4 would be amended as follows:

a. A new paragraph (c)(3) would be added to read as set forth

below.

b. Paragraph (d) would be amended by adding the phrase ``under

paragraph (c)(3) of this section'' immediately following the words

``limited permit''. Sec. 318.13-4 Conditions governing the issuance of

certificates or limited permits.

* * * * *

(c) Limited permits.

(1) * * *

(2) * * *

(3) Except when the regulations specify an inspector must issue the

limited permit, limited permits may be issued by a person operating

under a compliance agreement.

* * * * *

6. In Sec. 318.13-4f, paragraph (b)(2)(iii) would be amended by

removing the phrase ``Sec. 318.13-4(e)'' and replacing it with

``Sec. 318.13-4(d)''.

7. A new Sec. 318.13-4g would be added to read as follows:

Sec. 318.13-4g Administrative instructions governing movement of

avocados from Hawaii to Alaska.

Avocados may be moved interstate from Hawaii to Alaska without

being certified in accordance with Sec. 318.13-4 (a) or (b) only under

the following conditions:

(a) Distribution and marking requirements. The avocados may be

moved interstate for distribution in Alaska only, the boxes of avocados

must be clearly marked with the statement ``Distribution limited to the

State of Alaska'', and the shipment must be identified in accordance

with the requirements of Sec. 318.13-6.

(b) Commercial shipments. The avocados may be moved in commercial

shipments only.

(c) Packing requirements. The avocados must have been sealed in the

packing house in Hawaii in boxes with a seal that will break if the box

is opened.

(d) Ports. The avocados may enter the continental United States

only at the following ports: Portland, Oregon; Seattle, Washington; or

any port in Alaska.

(e) Shipping requirements. The avocados must be moved either by air

or ship and in a sealed container. The avocados may not be commingled

in the same sealed container with articles that are intended for entry

and distribution in any part of the United States other than Alaska. If

the avocados arrive at either Portland, Oregon or Seattle, Washington,

they may be transloaded only under the following conditions:

(1) Shipments by sea. The avocados may be transloaded from one ship

to another ship at the port of arrival, provided they remain in the

original sealed container and that APHIS inspectors supervise the

transloading. If the avocados are stored before reloading, they must be

kept in the original sealed container and must be in an area that is

either locked or guarded at all times the avocados are present.

(2) Shipments by air. The avocados may be transloaded from one

aircraft to another aircraft at the port of arrival, provided the

following conditions are met:

(i) The transloading is done into sealable containers;

(ii) The transloading is carried out within the secure area of the

airport--i.e., that area of the airport that is open only to personnel

authorized by the airport security authorities;

(iii) The area used for any storage of the shipment is within the

secure area of the airport, and is either locked or guarded at all

times the avocados are present. The avocados must be kept in a sealed

container while stored in the continental United States en route to

Alaska; and

(iv) APHIS inspectors supervise the transloading.

(3) Exceptions. No transloading other than that described in

paragraphs (e) (1) and (2) of this section is allowed except under

extenuating circumstances (such as equipment breakdown) and when

authorized and supervised by an APHIS inspector.

(f) Limited permit. Shipments of avocados must be accompanied by a

limited permit issued by an APHIS inspector in accordance with

Sec. 318.13-4(c) of this subpart. The limited permit will be issued

only if the inspector examines the shipment and determines that the

shipment has been prepared in compliance with the provisions of this

section.

Done in Washington, DC, this 18th day of February 1994.

Patricia Jensen,

Acting Assistant Secretary, Marketing and Inspection Services.

[FR Doc. 94-4327 Filed 2-24-94; 8:45 am]

BILLING CODE 4310-34-P