Importation of Fresh Hass Avocado Fruit Grown in Michoacan, Mexico

SUMMARY: We are proposing to amend 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 proposing this action in response to a

request from the Mexican Government and following a review of public

comments received regarding that request. The conditions to which the

proposed importation of fresh Hass avocado fruit would 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,

would reduce the risk of pest introduction to an insignificant level.

Furthermore, climatic conditions in those areas of the United States

into which the avocados would be allowed would preclude the

establishment in the United States of any of the plant pests known to

attack avocados in Michoacan, Mexico.

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

before October 16, 1995. We also will consider comments made at five

public hearings to be held between August 17, 1995, and August 31,

1995. Hearings will be held in Washington, DC, on August 17 and 18,

1995, and in southern California on August 30 and 31, 1995. A notice

detailing the specific dates of the remaining hearings will be

published in a future issue of the Federal Register.

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

Docket No. 94-116-3, Regulatory Analysis and Development, PPD, APHIS,

Suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please

state that your comments refer to Docket No. 94-116-3. 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 requested to call ahead on (202) 690-2817 to

facilitate entry into the comment reading room. The public hearings

will be held in Washington, DC; southern Florida; New York, NY;

Chicago, IL; and southern California. A notice detailing the specific

location of each hearing will be published in a future issue of the

Federal Register.

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

Port Operations, PPQ, APHIS, 4700 River Road Unit 136, Riverdale, MD

20737-1236, (301) 734-8645, or FAX (301) 734-5786.

SUPPLEMENTARY INFORMATION:

Public Hearings

Five public hearings will be held on this notice of proposed

rulemaking. The Animal and Plant Health Inspection Service (APHIS) will

hold one public hearing dedicated exclusively to the scientific basis

for this proposed rule. The first hearing will be open to the public,

but participation will be limited to experts in the fields of pest risk

assessment and pest risk mitigation measures. Four additional hearings

will be held to provide a full opportunity to all interested parties to

address every aspect of the proposed rule.

The First Public Hearing--Presentations by Experts in Risk Assessment

The first public hearing, on the scientific basis for this proposed

rule, is scheduled to be held in Washington, DC, on August 17 and 18,

1995. A notice will be published in a future issue of the Federal

Register detailing the specific location of the Washington, DC,

hearing. This hearing will focus exclusively on the APHIS pest risk

assessment documents upon which the proposed rule is based, and will

provide an opportunity for experts in relevant disciplines to present

their views on those documents and the scientific issues raised by

them.

The APHIS pest risk assessment documents upon which this proposal

is based identify the plant pest risks associated with the importation

of Hass avocados grown in approved orchards in approved municipalities

in Michoacan, Mexico, discuss the mitigation measures identified as

reasonable and necessary to prevent the introduction of plant pests

into the United States, and contain a quantitative risk analysis

examining the likelihood of plant pest introduction into the United

States if Hass avocados are allowed to be imported as proposed in this

document.

Participation in the Washington, DC, hearing will be limited to

those who register and who identify themselves as having expertise in

the areas of pest risk assessment and mitigation measures. Experts

wishing to participate will be asked to furnish for the record their

educational background and their expertise and qualifications relevant

to pest risk assessment and mitigation measures. Such experts include

scientists, technical experts, and academicians expert in entomology,

plant health, plant pathology, risk assessment, and risk mitigation.

Federal, State, and local officials, growers, and handlers who have

experience with risk assessment, plant protection, quarantine, or risk

mitigation measures will also be welcome to participate in this first

public hearing.

Presenters are welcome to register as a panel if they believe a

panel of experts from several fields would foster a more complete

discussion and evaluation of issues related to the pest risk assessment

underlying this proposal.

Additional Public Hearings

Four additional hearings will be held during the period between

August 21, 1995, and August 31, 1995, to address all aspects of this

proposed rule. These four public hearings are scheduled to be held in

southern Florida; New York, NY; Chicago, IL; and southern California.

The California hearing is scheduled to be held on August 30 and 31,

1995; the exact dates of the other three hearings and the specific

locations of all four hearings will be announced in a notice published

in a future issue of the Federal Register.

Any interested party may appear and be heard in person, or through

an attorney or other representative. We are interested in obtaining the

views of the public on all aspects of this proposed rule, including the

APHIS pest risk assessment documents and the conclusions contained

therein.

General Information Applicable to All Five Public Hearings

The APHIS pest risk assessment documents upon which this proposal

is based are available. Parties interested in receiving copies may

obtain them by contacting APHIS' Legislative and Public Affairs Staff

at (301) 734-3256 or by writing to Legislative and Public Affairs, 4700

River Road Unit 51, Riverdale, Maryland 20737-1232. Copies of the risk

assessment documents will be available at each of the scheduled public

hearings.

[[Page 34833]]

Persons who wish to speak at the hearings will be asked to provide

their names and their affiliations. Those who wish to form a panel to

present their views will be asked to provide the name of each member of

the panel and the organizations the panel members represent. Parties

wishing to make oral presentations may register in advance by calling

the Regulatory Analysis and Development voice mail at (301) 734-4346

and leaving a message stating their name, telephone number,

organization, and location of the hearing at which they wish to speak.

If a party is registering for a panel, the party will also be asked to

provide the name of each member of the panel and the organization each

panel member represents.

The hearings will begin at 9 a.m. and are scheduled to end at 5

p.m. each day. The Washington, DC, and California hearings may conclude

at any time on the second day if all persons who have registered to

participate have been heard. Similarly, the other three hearings may

conclude earlier than 5 p.m. if all persons who have registered have

been heard. The presiding officer may extend the time of any hearing or

limit the time for each presentation so that everyone is accommodated

and all interested persons appearing on the scheduled dates have an

opportunity to participate.

Registration for each hearing may be accomplished in advance in

accordance with the above-described instructions, or by registering

with the presiding officer between 8:30 a.m. and 9 a.m. on any hearing

day.

A representative of APHIS will preside at each public hearing.

Written statements are encouraged, but not required. Any written

statement submitted will be made part of the record of the public

hearing. Anyone who reads a written statement should provide two copies

to the presiding officer at the hearing. A transcript will be made of

each public hearing and the transcript will be placed in the rulemaking

record and will be available for public inspection.

The purpose of these public hearings is to give all interested

parties an opportunity to present data, views, and information to the

Department concerning this proposed rule. Questions about the content

of the proposal may be part of a commenter's oral presentation.

However, neither the presiding officer nor any other representative of

the Department will respond to the comments at the hearing, except to

clarify or explain the proposed rule and the documents upon which the

proposal is based.

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 in the Federal Register (59 FR 59070-59071, Docket No. 94-

116-1) announcing that APHIS had received a request from the Government

of Mexico that we 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. The advance notice solicited public comment on the Mexican

Government request and advised the public that two public meetings

would be held to provide interested persons with an opportunity to

present their views regarding the possible importation of fresh Hass

avocado fruit grown in Mexico.

We solicited comments concerning the Mexican Government request for

28 days ending on December 13, 1994. During that period, we received

over 100 comments (including those given at the hearings), several of

which requested that we extend the comment period so that interested

persons would have additional time to analyze the Mexican Government

request before submitting comments. 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.

Twenty of the comments favored allowing the importation of fresh

Hass avocado fruit grown in Mexico; the remainder objected. We

carefully considered all of the comments during the formulation of this

proposed rule and have included proposed phytosanitary requirements

that we believe address many of the concerns expressed in the comments.

Other issues raised in the comments that are not addressed by the

proposed phytosanitary requirements are discussed below, following the

explanation of our proposal.

Mexican Government Request

In July 1994, Sanidad Vegetal, the plant protection branch of the

Mexican Ministry of Agriculture and Water Resources, requested that

APHIS consider allowing the importation of fresh Hass avocado fruit

grown in approved orchards in approved municipalities in Michoacan,

Mexico, into Connecticut, Delaware, Illinois, Indiana, Kentucky, Maine,

Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York,

Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, West Virginia, and

Wisconsin. A detailed plan that accompanied the request contained

specific phytosanitary guidelines for mitigating the risk of plant pest

introduction associated with the importation of Mexican avocados into

the United States. The risk mitigation plan was based, in part, on

research conducted in 1993 by Sanidad Vegetal to determine the

susceptibility of Hass avocados to fruit fly infestation; it was also

based on historical avocado pest survey data for Michoacan and recent

Sanidad Vegetal surveys of Michoacan for pests specific to avocados.

The insect pests of concern are three species of fruit flies

(Anastrepha ludens, A. serpentina, and A. striata), four species of

avocado weevils (Conotrachelus perseae, C. aguacatae, Heilipus lauri,

and Copturus aguacatae), and one species of avocado seed moth (Stenoma

catenifer). These pests would present a significant pest risk to U.S.

crops if introduced, particularly in the southeastern and southwestern

United States.

Risk Management Analysis and Pest Risk Analysis Documents

This proposed rule is based in part on a document prepared by APHIS

entitled ``Risk Management Analysis: A Systems Approach for Mexican

Avocado,'' which assesses the pest risks and risk management options

associated with the proposed importation of fresh Hass avocado fruit

grown in Michoacan, Mexico. Risk mitigation measures discussed in that

document are included in this proposed rule as requirements for the

proposed importation. APHIS has also prepared a quantitative pest risk

analysis for the proposed importation of fresh Hass avocado fruit grown

in Michoacan, Mexico, that examines the likelihood of pest introduction

into susceptible areas

[[Page 34834]]

of the United States. Copies of those documents may be obtained by

contacting APHIS' Legislative and Public Affairs staff at (301) 734-

3256 or by writing to Legislative and Public Affairs, Public Affairs,

4700 River Road Unit 51, Riverdale, MD 20737-1232.

Systems Approaches

Using systems approaches to phytosanitary security, APHIS

establishes growing, packing, shipping, and other conditions whereby

fruits and vegetables may be imported into the United States from

countries that are not free of certain plant pests. APHIS has used

systems approaches to establish conditions for the importation of

several commodities, including Unshu oranges from Japan (7 CFR 319.28),

tomatoes from Spain (7 CFR 3119.56-2dd), and peppers from Israel (7 CFR

319.56-2u).

For the Unshu oranges mentioned above, APHIS used a systems

approach to establish growing, treatment, packing, and inspection

requirements designed to prevent the introduction of citrus canker,

which exists in Japan and can infect Unshu oranges. The rule requires

Japanese growers and agricultural agencies to survey groves for citrus

canker, undertake measures to exclude citrus canker from groves of

Unshu oranges intended for export, and apply surface sanitary

treatments to Unshu oranges being exported to the United States. For

the tomatoes and peppers mentioned above, APHIS used a systems approach

to develop measures to prevent the introduction of Mediterranean fruit

fly (Medfly), which exists in Spain and Israel and can infest tomatoes

and peppers. These rules require Spanish and Israeli agricultural

agencies and growers to periodically survey growing areas for Medfly,

undertake measures to exclude Medfly from growing and packing areas,

and pack tomatoes and peppers in flyproof packaging to prevent

infestation. Each of these programs has performed successfully.

APHIS also uses systems approaches to establish growing, packing,

shipping, and other conditions whereby domestic fruits and vegetables

may be exported from areas in the United States that are not free of

certain plant pests. Systems approaches are currently used to establish

export conditions for certain citrus fruit from Florida and Texas,

apples from Washington, and stonefruit from California. Each of these

programs has performed successfully.

In developing this proposal to allow the importation of fresh Hass

avocado fruit grown in Michoacan, Mexico, APHIS again has used a

systems approach to phytosanitary security. Using a systems approach,

APHIS developed a series of complementary phytosanitary measures,

including pest surveys and pest risk reducing cultural practices,

packinghouse procedures, a limited shipping season, inspection and

shipping procedures, and restrictions on distribution within the United

States, all intended to prevent the introduction of avocado seed and

stem weevils, an avocado seed moth, and three species of fruit flies

that can infest avocados and other host fruits and vegetables.

Proposed Import Requirements for Hass Avocados Grown in Mexico

We are proposing to allow fresh Hass variety avocados to be

imported into the United States from Michoacan, Mexico, if they are

grown, packed, and shipped under specified phytosanitary conditions

designed to mitigate the risk of plant pest introduction. The

conditions for importation would be set out in a new section of the

regulations, Sec. 319.56-2ff. Some of our proposed requirements were

originally suggested in the mitigation plan that accompanied the

request submitted by the Mexican Government. Other proposed

requirements go beyond those suggested in the plan and are based in

part on comments we received in response to our November 1994 advance

notice of proposed rulemaking, as we agree with many of the comments

that some additional safeguards would be necessary to prevent the

introduction of plant pests if Mexican avocados were imported into the

United States.

Permit Required

Section 319.56-3 of the regulations requires that a person who

wishes to import fruits or vegetables under the regulations must first

apply for a permit from APHIS' Plant Protection and Quarantine

Programs. Section 319.56-4 states that, upon receipt of an application

and approval by an inspector, a permit will be issued that specifies

the conditions of entry and the port of entry. Therefore, our proposed

regulations would require that the avocados be imported under a permit

issued in accordance with Sec. 319.56-4.

Commercial Shipments

We would allow only commercial shipments of Hass avocados to be

imported from Michoacan into the United States. Wild or ``backyard''

avocados generally grow under very different conditions than commercial

produce. Avocados growing in the wild or in backyard gardens usually

grow among different varieties of plants and produce, with little or no

pest control and a lack of sanitary controls during both growing and

packing. Therefore, the importation of wild or backyard avocados would

present a greater risk of pest introduction than would the importation

of commercially produced avocados.

Seasonal Restrictions

We would allow Hass avocados to be imported into the United States

from Michoacan only from November through February. The risk of

Anastrepha fruit flies infesting avocados and subsequently being

introduced into the United States through importation is virtually

eliminated by restricting avocado importation to these months.

Anastrepha fruit flies reduce mating and oviposition activities when

temperatures drop below 70 deg.F. Generally, temperatures in the

growing areas in Michoacan are below 70 deg.F between November and

February. Furthermore, any risk that fruit flies and other pests of

avocados could become established in the United States during these

months would be greatly reduced because of low temperatures and

subsequent lack of host material in the areas proposed for

distribution.

Distribution Within the United States

Hass avocados imported from Michoacan could be distributed only in

Connecticut, Delaware, the District of Columbia, Illinois, Indiana,

Kentucky, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New

Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia,

West Virginia, and Wisconsin. We do not believe that any of the pests

of concern could become established if introduced into these States,

due to the cold climate and a lack of suitable host material during the

months imports would be allowed. As noted below, we would require that

the boxes in which the avocados are shipped be marked with 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.''

Trust Fund Agreement and APHIS Participation

APHIS would be directly involved with Sanidad Vegetal in the

monitoring and supervision of avocado exports to the United States.

APHIS would not be involved in a preclearance program for the fruit in

Mexico; rather, APHIS would monitor orchard surveys, trapping, harvest,

and packinghouse operations to ensure that our export requirements are

met. The costs of APHIS' involvement during each shipping season would

be covered by a trust fund agreement between APHIS

[[Page 34835]]

and an industry association representing Mexican avocado growers,

packers, and exporters. Under the agreement, the Mexican industry

association would pay in advance all estimated costs that APHIS

expected to incur through its involvement in the required trapping,

survey, harvest, and packinghouse operations prescribed in proposed

Sec. 319.56-2ff(c). Those costs would 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 those services. The agreement would

require the Mexican industry association to deposit a certified or

cashier's check with APHIS for the amount of the costs, as estimated by

APHIS. If the deposit was not sufficient to meet all costs incurred by

APHIS, the agreement would further require the Mexican industry

association to deposit another certified or cashier's check with APHIS

for the amount of the remaining costs, as determined by APHIS, before

APHIS' services would be completed. After a final audit at the

conclusion of each shipping season, any overpayment of funds would be

returned to the Mexican industry association or held on account until

needed.

Safeguards in Mexico

We are proposing to require that the avocados be grown in the

Mexican State of Michoacan in an orchard located in a municipality that

has been surveyed for certain pests and found to be free from those

pests. A trapping program would also have to be in place in the

municipality to detect the presence of certain fruit flies. We would

require that Sanidad Vegetal submit an annual workplan to APHIS that

detailed the activities Sanidad Vegetal would carry out to meet the

surveying, trapping, and other phytosanitary requirements of the

proposed regulations. Sanidad Vegetal would be required to supervise

all of the trapping and pest surveys required of municipalities and

orchards wishing to export Hass avocados to the United States. Although

Hass avocado growers could pay for trapping and survey expenses,

Sanidad Vegetal would be responsible for hiring, training, and

supervision of all personnel involved in trapping and conducting the

pest surveys. APHIS would be directly involved with Sanidad Vegetal in

the monitoring and supervision of the trapping and surveying

activities.

Municipality Requirements

A municipality would have to be listed as an approved municipality

in the annual work plan provided to APHIS by Sanidad Vegetal and would

have to be determined to be free from the seed weevils Heilipus lauri,

Conotrachelus perseae, and C. aguacatae, and the seed moth Stenoma

catenifer before Hass avocados could be exported to the United States

from orchards in that municipality. Sanidad Vegetal would determine the

pest status of municipalities by conducting annual surveys during the

growing season that would have to be completed before harvest. We would

require that Sanidad Vegetal survey at least 300 hectares in any

municipality with orchards wishing to export to the United States.

Portions of each registered orchard would have to be included in these

surveys. Also, areas with backyard and wild fruit would have to be

included. We have determined that surveying 300 hectares within a

municipality results in a 95 percent confidence level that an

infestation of one percent or greater within the municipality would be

detected. As stated above, APHIS would monitor these pest surveys.

Also, APHIS would require Sanidad Vegetal to trap for Medfly at a

rate of one trap per 1 to 4 square miles throughout each Michoacan

municipality containing orchards growing avocados for export to the

United States. Although Medfly outbreaks have occurred only in southern

Mexico, we feel such trapping is necessary as a safeguard against the

possible migration of the pest to Michoacan.

Sanidad Vegetal Avocado Export Program

Only growers, orchards, and packinghouses participating in the

avocado export program administered by Sanidad Vegetal could export

Hass avocados to the United States. The Sanidad Vegetal avocado export

program has been in place for more than 7 years to monitor the export

of avocados to several European countries, Japan, and elsewhere.

Sanidad Vegetal requires participants to comply with inspection,

packing, and shipping practices to ensure that seed weevils and other

pests are not present in avocados exported from Mexico.

The Sanidad Vegetal avocado export program has been very successful

in ensuring that only pest-free avocados are exported from Michoacan.

For example, during the last 3 years, over 5 million kilograms of

avocados were exported from Michoacan to Japan. Over this same period,

the Japanese Ministry of Agriculture, Forestry, and Fisheries, which

extensively samples and cuts avocados imported from Mexico, recorded no

interceptions of any of the pests of concern (Anastrepha ludens, A.

serpentina, A. striata, Conotrachelus perseae, C. aguacatae, Heilipus

lauri, Copturus aguacatae, Stenoma catenifer).

While our proposed regulations would place conditions on avocado

growers, orchards, and packinghouses beyond those required by the

Sanidad Vegetal program, we believe that requiring participation in the

Sanidad Vegetal avocado export program would help minimize the risk

that Hass avocados infested with weevils or other pests would be

exported to the United States.

Orchard and Grower Requirements

The orchard and the grower would have to be registered with the

Sanidad Vegetal avocado export program discussed above and would have

to be listed as an approved orchard or an approved grower in the annual

work plan provided to APHIS by Sanidad Vegetal.

We are proposing to require that Sanidad Vegetal conduct surveys,

at least annually, for the avocado stem weevil Copturus aguacatae in

each orchard wishing to export avocados to the United States and in all

contiguous orchards and properties. These surveys would have to be

conducted during the growing season and completed before harvest.

Orchards would have to be free of this pest in order to be eligible to

export avocados to the United States.

To monitor the fruit fly population within avocado production

areas, APHIS would require Sanidad Vegetal to conduct trapping

throughout the year for the three Anastrepha fruit fly species of

concern at a rate of one trap per 10 hectares within certified avocado

orchards. If one fruit fly were captured within an orchard, export

could continue, but 10 traps would have to be deployed in the 50-

hectare area immediately surrounding the find. If additional fruit

flies were caught within 30 days within the 260-hectare area

surrounding the first find, exports could continue only after malathion

bait treatments of the orchards involved. The purpose of this pesticide

treatment would be to lower fruit fly populations in avocado production

areas, thus lessening the chances of infestation. APHIS uses similar

procedures in citrus fruit production areas of Florida and Texas where

Anastrepha fruit flies exist.

Growers would be required to undertake regular field sanitation

[[Page 34836]]

measures. APHIS would require that fallen avocado fruit be removed from

orchards prior to harvest and that the fallen fruit not be included in

shipments of fruit to be packed for export. Fallen avocado fruit can be

overripe or damaged, and such fruit is more likely to be infested by

pests. Also, dead branches on avocado trees would have to be cut back

periodically and the dead branches removed from the orchard. Pruning

discourages stem weevil infestations. Both APHIS and Sanidad Vegetal

would periodically inspect field sanitation in certified avocado

orchards.

APHIS would require harvested avocados to be moved from the orchard

to the packinghouse within 3 hours of harvest; if more than 3 hours

pass between the time the avocados are harvested and the time they are

moved to the packinghouse, the avocados would have to be protected from

fruit fly infestation while awaiting transport. For movement, the

avocados would have to be placed in field boxes or containers marked

with the Sanidad Vegetal registration number of the orchard of origin

and, during their movement from the orchard to the packinghouse, the

avocados would have to be protected from fruit fly infestation.

Vehicles transporting the avocados would be required to carry a field

record specifying that the fruit is from a certified orchard.

Packinghouse Requirements

Under our proposed regulations, the packinghouse would have to be

registered with the Sanidad Vegetal avocado export program and listed

as an approved packinghouse in the annual work plan provided to APHIS

by Sanidad Vegetal. Fruit from orchards that are not certified by

Sanidad Vegetal for participation in the avocado export program would

not be allowed on the premises of a packinghouse while avocados

intended for export to the United States were being packed.

All openings in the packinghouse would have to be covered by

screening with openings of not more than 1.6 mm to prevent the entry of

insects. Also, packinghouses would have to have double door systems at

the entrances to the facility, as well as at the entrance to the

packing area for avocados intended for export to the United States.

Prior to the culling process, Sanidad Vegetal would have to select,

cut, and inspect a sample of 250 avocados per shipment to detect the

presence of weevils, fruit flies, or other pests (e.g., a shipment of

500 boxes would have a fruit selected from every second box). We have

determined that sampling 250 avocados in this manner would yield a 95

percent confidence level of detecting one percent or greater

infestation.

The identity of the avocados would have to be maintained from the

field boxes or containers, which would bear the Sanidad Vegetal

registration of the orchard of origin, to the shipping boxes. The fruit

would have to be packed in new, clean boxes, with the grower, packer,

and exporter clearly identified on those boxes. Maintaining the

identity of the avocados from the field boxes or containers to the

shipping boxes would ensure that any infested fruit could be traced

back to the orchard where it was grown. Also, the shipping boxes would

have to be clearly labeled to indicate the restrictions on the

distribution of the avocados in the United States.

After being loaded into the boxes, the avocados would have to be

placed into a refrigerated truck or refrigerated container for transit

through Mexico to the port of first arrival in the United States. After

the avocados had been inspected, packed, and loaded into a refrigerated

truck or refrigerated container, Sanidad Vegetal personnel would be

required to secure the refrigerated truck or refrigerated container

with a seal before the truck or container left the packinghouse. Any

avocados that had not been loaded into a refrigerated truck or

refrigerated container by the end of the work day would have to be kept

in the screened packing area.

A phytosanitary certificate issued by Sanidad Vegetal certifying

that all of these conditions have been met would have to accompany each

shipment of avocados.

Avocado Pest Interception

As discussed above, we are proposing that Hass avocado fruit be

imported only from orchards located in municipalities in Michoacan

certified free of the four seed pests Heilipus lauri, Conotrachelus

perseae, C. aguacatae, and Stenoma catenifer, and only from orchards in

Michoacan certified free of the stem weevil Copturus aguacatae. We are

also proposing that Sanidad Vegetal undertake certain actions in the

event any of these avocado pests are discovered during the required

annual pest survey or during other monitoring or inspection activities

in the orchards or packinghouses.

Upon the discovery of any of the four avocado seed pests, Sanidad

Vegetal would be required to immediately initiate an investigation and

take measures to isolate and eradicate the pests. Sanidad Vegetal would

also have to notify APHIS and provide information regarding the origin

of the circumstances of the infestation and the pest risk mitigation

measures taken. The municipality in which the infestation occurred

would lose its pest-free certification, and avocado exports from that

municipality would be suspended until APHIS and Sanidad Vegetal agreed

that the pest eradication measures taken had been effective and that

the pest risk within that municipality had been eliminated.

If Sanidad Vegetal discovered the stem weevil Copturus aguacatae in

an orchard during an orchard survey or other monitoring or inspection

activity in the orchard, Sanidad Vegetal would have to provide APHIS

with information regarding the circumstances of the infestation and the

pest risk mitigation measures taken. Similarly, if the stem weevil

Copturus aguacatae was discovered in fruit at a packinghouse, Sanidad

Vegetal would have to 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. In either

instance, the orchard where the infested fruit originated would lose

its export certification immediately for the entire shipping season of

November through February.

Shipping Requirements and Restrictions

Although the safeguards discussed above make it unlikely that

avocados infested with seed pests or fruit flies would enter into the

United States, we propose to require the following safeguards for

movement of the avocados to the northeastern United States in order to

prevent the escape and establishment of an insect pest outside of the

northeast should any be present on the fruit.

We propose to allow Hass avocados from Mexico to enter the United

States at any port within the 20 northeastern States that would be

allowed to receive Hass avocados from Michoacan. We are also proposing

to allow Hass avocados from Michoacan to enter the United States at

certain additional ports provided the avocados are moved within a

specified transit corridor to the 20 northeastern States that would be

allowed to receive the avocados. We would allow the avocados to enter

at the ports of Galveston and Houston, TX, and the border ports at

Nogales, AZ; Brownsville, Eagle Pass, El Paso, Hidalgo, and Laredo, TX,

all of which are staffed by APHIS inspectors. These ports are among

those currently listed for avocados from Mexico moved through the

United States to destinations outside the United States under the plant

quarantine safeguard

[[Page 34837]]

regulations in 7 CFR 352.29, so the inspectors at these ports are

experienced in dealing with avocado shipments. We would also allow the

avocados to enter at other ports located within that area of the United

States bordered by the proposed transit corridor discussed below.

We also propose to establish boundaries restricting the corridor

through which the avocados may transit the United States en route to

the northeastern United States. Except as explained below for avocados

entering the United States at Nogales, AZ, avocados moved by truck or

rail car would be allowed to 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 would

be included in this area. If the avocados are moved by air, the

aircraft would not be allowed to land outside this area. Avocados that

enter the United States at Nogales, AZ, would have to be moved to El

Paso, TX, by the route specified on the permit, and would then have to

remain within the shipping area described above. These proposed

boundaries are similar to those currently in effect for Mexican

avocados moved through the United States to destinations outside the

United States (see 7 CFR 352.29(f)), but differ in two significant

ways. First, because avocados imported under this proposed rule could

be distributed only in the northeastern United States, the proposed

western boundary would not provide for movement through the

northwestern United States. Second, the southeastern boundary would be

situated further to the south to give shippers access to the entire

States of Kentucky, West Virginia, and Virginia, which are among the

States in which the avocados could be distributed under this proposed

rule; those States are not fully included in the transit corridor

described in 7 CFR 352.29(f). These boundaries would provide protection

to the western and southeastern regions of the United States, where

avocados and other hosts of fruit flies and are grown, while allowing

shippers to utilize the most direct interstate routes to the

northeastern United States.

Further, we propose that when moving within these boundaries to the

northeastern United States, avocados would have to be moved either by

air or in a refrigerated truck or refrigerated rail car or in

refrigerated containers on a truck or rail car. If the avocados are

moved in refrigerated containers on a truck or rail car, an APHIS

inspector would have to seal the containers 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 APHIS

inspector would have to 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 APHIS inspector would have to be present to supervise the

transfer and would have to apply a new serially numbered seal. The

avocados would have to be moved through the United States under Customs

bond. These safeguards are the same as those currently in effect for

avocados from Mexico that are moved through the United States to

destinations outside the United States (see 7 CFR 352.29(e)). Because

this proposed rule and the avocado transit regulations in 7 CFR 352.29

share a similar purpose (i.e., the avocados must move through areas of

the United States considered to be low-risk areas for the establishment

of tropical and subtropical fruit pests), we believe it is reasonable

that the safeguards required by both regulations should be the same.

Inspection

The avocados would be subject to APHIS inspection at the port of

first arrival, at any stops in the United States en route to the

Northeast, and upon arrival at the terminal market to ensure they are

being moved in compliance with APHIS regulations. At the port of first

arrival, APHIS would sample and cut avocado fruit to detect infestation

by fruit flies, avocado seed and stem weevils, the avocado seed moth,

and other pests. The number of avocados that the inspectors would

sample and cut in any given shipment would depend upon the size of the

shipment. Inspectors also would ensure that a valid phytosanitary

certificate was present, that the limited distribution statement

appeared on all boxes, and that the shipment was consigned to a State

allowed to receive Hass avocados from Michoacan.

Responses to Comments

As stated above, we received over 300 comments by the closing date

of the comment period for the advance notice of proposed rulemaking.

The comments were submitted by avocado growers, processors, packers,

and importers; trade and grower associations; grocers; and State and

local departments of agriculture. Twenty of the comments favored

allowing the importation of Mexican avocados. The remainder raised

objections, most of which are summarized, with our responses, below.

Most of the comments assert that research conducted in 1993 by the

Sanidad Vegetal concerning Hass avocado susceptibility to Anastrepha

fruit flies was inconclusive and did not demonstrate that Hass avocados

are non-hosts to the fruit flies. The comments contend that before

APHIS considers any proposal to import Hass avocados from Mexico,

Sanidad Vegetal should (1) replicate and expand laboratory and field

research regarding host status of Hass avocados under fully controlled

conditions and (2) undertake a multi-site, multi-year trapping program

to establish the population and seasonal abundance of Anastrepha fruit

flies in Michoacan. Only after examining the results of such research,

according to the comments, could APHIS and Sanidad Vegetal develop

effective measures for preventing the introduction of Anastrepha fruit

flies into the United States through the importation of Hass avocados.

We agree that the 1993 research was limited in scope and did not

prove the Hass avocado to be a non-host for Anastrepha fruit flies.

However, after considering the 1993 research and other available

evidence, including interception data and past studies, we believe the

Hass avocado to be a non-preferred host for Anastrepha fruit flies

prior to harvest. Although we believe Hass avocados become better hosts

for Anastrepha fruit flies shortly following harvest, we are confident

that the phytosanitary requirements we would place on harvesting,

packing, transport, and distribution, which are more extensive and

redundant than those proposed by Sanidad Vegetal, would prevent

infested Hass avocado fruit from being exported from Michoacan into the

United States.

Several comments specifically questioned the laboratory testing

conducted in 1993 by Sanidad Vegetal to determine the susceptibility of

Hass avocados to Anastrepha fruit flies. The comments claim that

induced infestation tests both in the laboratory and under controlled

field conditions were conducted improperly (e.g., allegedly, laboratory

climatic conditions were not controlled, sample sizes of fruit were too

small, inappropriate cages were used in field testing), thus

invalidating any results of those tests. Furthermore, these comments

maintain that because Anastrepha fruit flies did infest Hass avocados

during these tests, the host status of Hass avocados is confirmed.

[[Page 34838]]

We agree that the induced infestation research was limited in scope

and did not prove Hass avocado to be a non-host for Anastrepha fruit

flies. However, we do not agree that the infestation that did occur

during the testing proves Hass avocados to be preferred hosts. Under

artificial laboratory conditions, females of some Anastrepha species,

including A. ludens, will oviposit in almost any fruit available, or

even in wax spheres (Norrbom, Allen L., and Ke Chung Kim, ``A List of

the Reported Host Plants of the Species of Anastrepha (Diptera:

Tephritidae),'' APHIS, 1988). Moreover, other evidence indicates that

Hass avocados are non-preferred hosts while on the tree. In the cage

studies conducted in the field by Sanidad Vegetal, which we feel were

conducted properly, Hass avocados on the tree were shown to be non-

preferred hosts to Anastrepha. Also, APHIS records from interceptions

of avocados smuggled into the United States from Mexico indicate that

the Hass avocado is a non-preferred host to Anastrepha. In fact,

according to APHIS and Agricultural Research Service records,

Anastrepha fruit flies have never been found in Hass avocados outside

of laboratory tests. We are confident that the phytosanitary measures

we are proposing would prevent infested Hass avocado fruit from being

exported from Michoacan into the United States.

Several of the comments claim that the fruit fly trapping conducted

in 1993 by Sanidad Vegetal was inadequate to accurately determine fruit

fly populations in production areas in Michoacan and subsequently

develop effective pest mitigation measures based on the population

data. These comments maintain that:

Traps were not moved frequently enough or maintained

correctly;

Trapping was conducted for too short a duration;

Trapping density was too low, especially considering that

the McPhail trap was used;

Some trapping was conducted while trees were being sprayed

with methyl parathion, thus distorting trapping results, as populations

in sprayed areas would be unnaturally low; and

No trapping was conducted with regard to wild or

alternative commercial hosts.

We agree that the trapping conducted by Sanidad Vegetal in 1993 was

flawed in its execution; many traps were neither moved often enough nor

maintained properly. Initial quality control problems occur in most

trapping programs. If we allow the importation of Hass avocados from

Michoacan, we will require trapping year-round. We would hold such

trapping to a higher quality standard and monitor its execution. Also,

we believe that the trapping conducted by Sanidad Vegetal, although it

was conducted imperfectly and for a short duration, does provide

valuable preliminary data regarding the population of Anastrepha fruit

flies in avocado production areas in Michoacan.

The density of the 1993 trapping--one McPhail trap per 10

hectares--is standard for population monitoring and was approved by

APHIS prior to the trapping. Trapping at this rate is currently

required by APHIS in Sonora, Mexico, to maintain the fruit-fly free

zone in that State. We are proposing that Sanidad Vegetal trap at the

rate of 1 trap per 10 hectares throughout the year and that this

trapping be monitored by APHIS.

Some trapping was conducted while trees were being treated with

pesticides. However, since this sort of pesticide treatment is routine

in Michoacan, and since similar pesticide treatment would occur in

orchards growing avocados for export to the United States, we believe

that trapping conducted during or after pesticide treatment provided

accurate population data.

We agree that Sanidad Vegetal did not conduct trapping with regard

to wild or alternative commercial hosts. However, our interest in the

1993 Sanidad Vegetal study is to determine populations in the

production areas, not in areas where wild or alternative hosts were

being grown.

Because of our reservations concerning Sanidad Vegetal's 1993 fruit

fly trapping, we have proposed to allow the Hass avocados from

Michoacan to be imported only between November and February, when

temperatures in Michoacan significantly lower the level of fruit fly

activity.

Several comments expressed concerns that Sanidad Vegetal studies of

the pests Heilipus lauri, Stenoma catenifer, Conotrachelus perseae, C.

aguacatae, and Copturus aguacatae did not attempt to identify their

seasonal abundance or geographical distribution in Michoacan.

Furthermore, the comments claim that Sanidad Vegetal surveys for these

pests in Hass avocado production areas in Michoacan were too limited to

produce meaningful results, were not supervised by APHIS, and were not

conducted carefully, that is, the surveys were not conducted in accord

with scientific standards or in the context of pest biology. Finally,

the comments maintain that the data reflect significant finds of these

pests in production areas.

We believe that the design of the 1993 pest surveys was appropriate

for detecting infestation and that Sanidad Vegetal took pest biology

into account while conducting the surveys. Data from these surveys is

of varying quality, but we believe inconsistencies are indicative of

authentic pest survey data. While we did not supervise the surveys, we

did observe several as they were being conducted.

It is important to remember that the phytosanitary requirements we

propose to place on the avocado imports from Michoacan are not based

solely upon the pest surveys and other studies conducted by Sanidad

Vegetal in 1993. Much of their findings were of a limited quality and

only supplement the data we have used in developing this proposal. If

this proposal is finalized, we will monitor closely the pest surveys we

are proposing to require for determining municipality and orchard

freedom from the avocado pests.

Several comments raised concerns that the Sanidad Vegetal studies

did not address risks presented by Anastrepha distincta, A. leptozona,

or A. obliqua, or several other possible pests of avocados known to

inhabit Mexico. Avocado is not a host to these other pests (Norrbom,

Allen L., and Ke Chung Kim, ``A List of the Reported Host Plants of the

Species of Anastrepha [Diptera: Tephritidae],'' APHIS, 1988).

Other comments argue that APHIS should not allow Hass avocado

imports from Michoacan until Sanidad Vegetal can establish Michoacan as

a pest-free zone.

As explained above, 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.

APHIS has successfully used systems approaches to establish conditions

for the importation of several commodities, including Unshu oranges

from Japan, tomatoes from Spain, and peppers from Israel. APHIS also

uses systems approaches to establish conditions whereby domestic fruits

and vegetables may be exported from areas in the United States that are

not free of certain plant pests, such as citrus fruit from Florida and

Texas, apples from Washington, and stonefruit from California. We now

are proposing to use a systems approach to allow Hass avocado fruit to

be imported into the northeastern United States from Michoacan, Mexico,

an area where fruit flies and certain avocado pests are known to exist.

We believe this systems approach would prevent the introduction of

plant pests into the United States from Michoacan and that therefore,

it is unnecessary to establish

[[Page 34839]]

Michoacan as a pest-free zone prior to importing Hass avocados.

Several comments maintain that prior to allowing the importation of

Hass avocados from Mexico, APHIS should develop treatments able to

eliminate all exotic pests from avocado fruit at a ``probit 9''

mortality level. (A treatment yielding a probit 9 mortality effects a

99.9968 percent mortality in a population of live organisms, that is, a

population of pests in fruit.)

Currently, there is no effective treatment for eliminating

Anastrepha fruit flies or any of the avocado pests of concern from Hass

avocado fruit. We believe the multiple safeguards that we are proposing

for the importation of Hass avocados from Michoacan, Mexico, into the

northeastern United States would mitigate pest risk at a level

equivalent to that provided by a treatment yielding a probit 9

mortality. If a treatment for Hass avocado fruit from Michoacan were

developed, APHIS would consider its use.

One comment criticized the conclusion drawn by Sanidad Vegetal that

a 1993-1994 orchard and packinghouse fruit sampling research study

indicated that there was zero risk of live immature stages of fruit

flies entering the United States in Hass avocados. We agree that such a

conclusion is unsupported by statistical analysis, since it is

statistically impossible to prove zero risk for any commodity.

Accordingly, this proposed rule contains no provisions that are based

on an assumption of zero risk regarding the possibility of live

immature stages of fruit flies entering the United States in Hass

avocados.

One comment concluded that APHIS must prove Hass avocados to be

non-hosts to Anastrepha fruit flies before we allow their importation

from Michoacan.

As stated above, we believe Hass avocados to be a non-preferred

host to Anastrepha fruit flies while on the tree and better hosts

following harvest. The phytosanitary requirements we are proposing,

especially in light of the Hass avocado's poor host status, would

prevent Anastrepha flies from being introduced into the United States

through the importation of Hass avocados.

One comment states that Sanidad Vegetal's conclusions regarding a

correlation between maturity of Hass avocado fruit (measured by the

percent of dry matter) and fruit immunity to Anastrepha fruit fly

infestation are invalid.

We agree that Sanidad Vegetal research did not prove that there is

a correlation between dry matter content of Hass avocados and immunity

to Anastrepha infestation. The APHIS avocado interception records and

past research mentioned above do indicate, however, that the Hass

avocado may have some natural physiological resistance to infestation

by Anastrepha fruit flies. Further research must be conducted before

any such conclusions can be applied to the quarantine status of Hass

avocados from Michoacan.

One comment expresses concerns that pests known to attack Hass

avocados in Mexico could be introduced into the northeastern United

States through importation from Michoacan, colonize the area, and

damage fruit crops grown there.

We are proposing to allow Hass avocados to be imported into the

Northeastern United States only during the winter, from November

through February. The cold temperatures during these months would

preclude colonization by these tropical and subtropical pests, because

they could not survive under the climatic conditions and/or because

there would be no host material.

Several comments state that avocado growers in Michoacan use

pesticides not approved for use on avocados in the United States, such

as methyl parathion, and that avocados imported from Michoacan

containing residues of these pesticides would, therefore, be prohibited

from importation.

The United States Food and Drug Administration 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.

Many of the comments argue that APHIS lacks the resources to

enforce phytosanitary restrictions on Hass avocado imports from

Michoacan, particularly restrictions on the distribution of Mexican

Hass avocados within the United States.

We agree that adequate resources and personnel, especially

inspectors, would have to be devoted to prevent the introduction of

avocado and other plant pests into the United States. Adjustments in

the level of personnel and resources devoted to APHIS programs are a

normal part of management in the agency. Duties and staffing levels

would be adjusted, in Michoacan, at ports, and elsewhere, to satisfy

the needs of a new avocado import program. While APHIS would assign

some additional personnel to monitor trapping and surveys and

compliance with phytosanitary requirements in Michoacan orchards and

packinghouses, we believe much of the resources needed for this program

are already in place, in the form of existing APHIS overseas and port

personnel. Funding levels and agency personnel may vary from year to

year. Import authorizations would not be provided 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. In terms of enforcing the restrictions on the

distribution of Mexican Hass avocados within the United States, APHIS

would be assisted by the Fruit and Vegetable Division of the

Agricultural Marketing Service, which has agreed to notify us if

Mexican avocado fruit, which they would grade, showed up at terminal

markets in prohibited States.

One comment criticizes the Sanidad Vegetal proposal to have growers

hire the technical personnel involved in surveys and trapping, citing a

conflict of interests.

As explained above, we would not allow growers to hire or supervise

the technical personnel involved in trapping or pest surveys, but they

would be allowed to pay expenses.

Several comments question Sanidad Vegetal's claim that Anastrepha

fruit flies have never infested Hass avocados in Mexico and that

Anastrepha fruit flies have never been intercepted in Hass avocados

intended for export.

According to APHIS and Agricultural Research Service records,

Anastrepha fruit flies have never been found in Hass avocados outside

of laboratory tests, in which infestation was artificially induced.

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 purposes of

Executive Order 12866, and, therefore, has not been reviewed by the

Office of Management and Budget.

In accordance with 5 U.S.C. 603, we have performed an Initial

Regulatory Flexibility Analysis, which is set out below, regarding the

impact of this rule on small entities. However, we do not currently

have all the data necessary for a comprehensive analysis of the effects

of this rule on small entities. Therefore, we are inviting comments

concerning potential effects. In particular, we are interested in

determining the number and kind of small entities that may

[[Page 34840]]

incur benefits or costs from implementation of this proposed rule.

Under the Plant Quarantine Act and the Federal Plant Pest Act (7

U.S.C. 150dd, 150ee, 150ff, 151-167), the Secretary of Agriculture is

authorized to regulate the importation of fruits and vegetables to

prevent the introduction of injurious plant pests.

We are proposing to amend 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.

Mexico is the largest producer of avocados in the world, accounting

for approximately 45 percent of total production. Mexican growers

produced about 696,000 tons of avocados in 1990. Additionally, Mexico

is the world's largest consumer of avocados; per capita consumption is

close to 17 pounds. Because of this large domestic demand, exports

remain small, at approximately 3 percent of production, or 20,880 tons.

Most of the avocado production in Mexico occurs in the state of

Michoacan, where approximately 77 percent of the total crop is grown.

Ninety-five percent of the avocados grown in Michoacan are of the Hass

variety. In 1990, therefore, the total export of Hass variety avocados

from Michoacan was approximately 15,000 tons.

In comparison, domestic growers produced 151,650 tons of avocados

in 1993; California growers produced approximately 97 percent (147,000

tons), Florida growers produced a little less than 3 percent (4,400

tons), and Hawaiian growers produced less than 1 percent (250 tons) of

the 1993 total. In Florida and Hawaii non-Hass varieties are

predominant, while in California the Hass variety accounts for

approximately 85 percent of the total production.

Although Mexico has well established export markets in Europe,

Japan, and Canada, shipping avocados to these markets involves

traversing great distances, thus incurring high transportation costs.

As in Mexico, a substantial proportion of U.S. production of avocados

is consumed internally. In 1993 the United States exported 15,292 tons,

while it imported 8,232 tons. However, the U.S. per capita consumption,

which is approximately 1.36 pounds, is much smaller than the per capita

consumption in Mexico. The demand for avocados in the United States is

inelastic (-0.48). In other words, a reduction in the price of avocados

would not result in a proportionate increase in the purchase of

avocados. For example, a 10 percent decline in avocado price would

likely induce only a 4.8 percent increase in avocado consumption. In

the case of avocados, quality considerations might have greater impact

on consumer purchase decisions than the price of the product.

As the preceding paragraphs indicate, both California and Michoacan

are large producers of Hass variety avocados. However, here the

similarity between the two states ceases, with marked differences in

avocado price, cost structure, and expansion capacity. The weighted

average wholesale price for California production was $0.48 per pound

between 1991 and 1993 while the Michoacan price was $0.28. Land and

labor costs are much lower in Michoacan than in California. Development

costs and costs of caring for avocado-bearing trees average $26,000 per

acre in California, those same costs are only about $8,000 per acre in

Michoacan. Furthermore, the labor share of production costs is 52

percent in California, while the average labor share is only 35 percent

in Michoacan. Finally, the two states differ in their capacity to

expand production. California has little or no non-bearing acreage

remaining while Michoacan has 30 percent non-bearing acreage.

Michoacan producers face three additional costs in order to deliver

their products to the U.S. border. These include the cost of

transportation ($0.03 per pound), the border crossing cost ($0.027 per

pound), and a tariff rate of $0.054 per pound. Taking these factors

into consideration, the break-even point for California production is

$0.48 (the average wholesale price per pound in California); Michoacan

Hass avocados could be delivered to the U.S. border for $0.34 (the

price of avocado sold domestically in Mexico ($0.23 per pound) plus the

cost of placing Michoacan avocados at the U.S. border ($0.11 per

pound). Thus, at the U.S. border the Mexican producers would have a

cost advantage over U.S. Hass avocado producers. However, which of

these two would gain the market for avocados in the 20 northeastern

States would depend on their respective ability to deliver the best

quality avocado in the most efficient way.

Allowing the importation of fresh Hass avocado fruit from

Michoacan, Mexico, would directly affect avocado growers, mainly in

California. There were 7,300 avocado growers in the United States in

1993, most of which were located in California. Of these, 6,729 are

considered to be small entities. The importation of Hass avocados from

Mexico would likely increase the U.S. supply of fresh avocados by about

12 percent, reducing the average price for U.S. avocados to about $0.42

per lb. The U.S. producers would thus be negatively affected. However,

current Interstate Commerce Commission regulations forbid Mexican

carriers from hauling the product beyond the border zone, so there

would be some benefit to small U.S. specialized transport companies and

brokerage houses. At present, the cost of transporting a truckload

(40,000 lb) of avocados from Michoacan to the U.S. border at El Paso is

$1,080. This includes the margin for truckers and brokerage houses. The

number of these entities is difficult to determine at this time. The

total impact would depend upon the volume of export from Michoacan to

the United States. Finally, even with the low elasticity of demand for

avocado, consumers could be positively affected by the increased

competition and expanded choices that would be induced by this

proposal.

The alternative to this proposed rule was to make no changes in the

fruits and vegetables regulations. After consideration, we rejected

this alternative since 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.

This proposed rule contains no paperwork or recordkeeping

requirements.

Executive Order 12778

This proposed rule would allow fresh Hass avocado fruit to be

imported into the United States from the Mexican State of Michoacan. If

this proposed rule is adopted, State and local laws and regulations

regarding fresh Hass avocado fruit imported under this rule would be

preempted while the fruit is in foreign commerce. Fresh avocados are

generally imported for immediate distribution and sale to the consuming

public, and would 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. If this proposed rule is

adopted, no retroactive effect will be given to this rule, and this

rule will not require administrative proceedings before parties may

file suit in court challenging this rule.

Paperwork Reduction Act

This document contains no new information or recordkeeping

requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501

et seq.).

[[Page 34841]]

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 would be amended 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; 7 CFR 2.17,

2.51, and 371.2(c), unless otherwise noted.

2. A new Sec. 319.56-2ff would be 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, 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 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 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.

(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 persea and C. aguacatae. The survey must cover at least

300 hectares in the municipality and include 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 fruit fly 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 prior to harvest 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.

[[Page 34842]]

(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 250 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) 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.''

(vii) 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.

(viii) 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 perseae, C. aguacatae, 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 have 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 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.

(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 refrigerated containers on a truck or rail car. If the

avocados are moved in refrigerated containers on a truck or rail car,

an inspector must seal the containers 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 29th day of June 1995.

Lonnie J. King,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 95-16405 Filed 6-30-95; 8:45 am]

BILLING CODE 3410-34-P