Importation of Fresh Hass Avocado Fruit Grown in Michoacan, Mexico

SUMMARY: We are amending the regulations governing the importation of

fruits and vegetables to allow fresh Hass avocado fruit grown in

approved orchards in approved municipalities in Michoacan, Mexico, to

be imported into certain areas of the United States, subject to certain

conditions. We are taking this action in response to a request from the

Mexican Government and after reviewing public comments regarding that

request and conducting a pest risk assessment. The conditions to which

the importation of fresh Hass avocado fruit will be subject, including

pest surveys and pest risk-reducing cultural practices, packinghouse

procedures, inspection and shipping procedures, and restrictions on the

time of year shipments may enter the United States, will reduce the

risk of pest introduction to an insignificant level. Furthermore,

climatic conditions in those areas of the United States into which the

avocados will be allowed will preclude the establishment in the United

States of any of the exotic plant pests that may attack avocados in

Michoacan, Mexico.

EFFECTIVE DATE: March 7, 1997.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald C. Campbell, Staff Officer,

Port Operations, PPQ, APHIS, 4700 River Road Unit 139, Riverdale, MD

20737-1236, (301) 734-6799; E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Background

The Fruits and Vegetables regulations contained in 7 CFR 319.56

through 319.56-8 (referred to below as the regulations) prohibit or

restrict the importation of fruits and vegetables into the United

States to prevent the introduction and dissemination of injurious

insects that are new to or not widely distributed within and throughout

the United States. The regulations do not provide for the importation

of fresh avocado fruits grown in Mexico into the United States, except

to Alaska under the conditions specified in Sec. 319.56-2bb.

On November 15, 1994, we published an advance notice of proposed

rulemaking (ANPR) in the Federal Register (59 FR 59070-59071, Docket

No. 94-116-1) announcing that the Animal and Plant Health Inspection

Service (APHIS) had received a request from the Government of Mexico to

allow, under certain conditions, the importation of fresh Hass avocado

fruit grown in approved orchards in approved municipalities in

Michoacan, Mexico, into certain areas of the United States. We

solicited comments concerning the Mexican Government request for 28

days ending on December 13, 1994, and two public hearings were held in

late November 1994 concerning issues raised in the ANPR. On December

19, 1994, we published a document in the Federal Register (59 FR 65280,

Docket No. 94-116-2) informing the public that we had reopened the

comment period and would continue to accept comments until January 3,

1995, including any comments received between December 13--the close of

the original comment period--and December 19. By the close of the

extended comment period, we had received over 300 comments concerning

the ANPR.

On July 3, 1995, we published in the Federal Register (60 FR 34831-

34842, Docket No. 94-116-3) a proposed rule to allow fresh Hass avocado

fruit grown in approved orchards in approved municipalities in

Michoacan, Mexico, to be imported into certain areas of the United

States, subject to certain conditions. The proposed rule, which was

published in response to the Mexican Government request mentioned

above, included additional proposed phytosanitary requirements that we

believe addressed many of the concerns expressed in the comments

received in response to our November 1994 ANPR. The proposed rule also

announced the availability of two documents that examined the risks

associated with the proposed importation program: ``Risk Management

Analysis: A Systems Approach for Mexican Avocado,'' which is referred

to below as the risk management analysis, and ``Importation of Avocado

Fruit (Persea americana) from Mexico: Supplemental Pest Risk

Assessment,'' referred to below as the supplemental pest risk

assessment.

On August 4, 1995, we published a notice of public hearings in the

Federal Register (60 FR 39889-39890, Docket No. 94-116-4) that detailed

the dates, times, and locations of five public hearings regarding the

July 1995 proposed rule.

We solicited comments concerning the July 3, 1995, proposed rule

for 105 days ending on October 16, 1995. We received 2,080 comments by

that date, including 211 oral comments delivered at the five public

hearings. Slightly more than 60 percent of the commenters--1,254

commenters out of 2,080--identified themselves as working in the

domestic avocado industry, either directly as growers, packers, and

shippers, or indirectly as part of their work in associated fields

(agricultural consultants, pest control advisors, nurserymen, etc.).

The remaining commenters included representatives of other agricultural

interests, such as apple and citrus growers, packers, and shippers;

members of Congress; representatives of State, local, and foreign

governments; university researchers and professors; owners and

employees of produce markets and retail operations; consultants;

customs brokers; and representatives of numerous associations such as

chambers of commerce, farm bureaus, marketing associations, consumer

groups, and trade associations. Three hundred and ten of the commenters

supported the proposed rule; 1,751 opposed it. Twenty-three of those

comments opposing the proposal were petitions signed by a total of 958

individuals. Nineteen of the comments neither supported nor opposed the

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proposal; 8 of those comments were postcards containing only a name and

address, and the remaining 11 comments argued both sides of the issue,

asked only that we use science as the sole criterion for making a

decision, or discussed risk assessment methodology in general terms.

Those commenters who supported the proposed rule generally

expressed their faith in the ability of the proposed systems approach

to allow for the safe importation of Hass avocados from Mexico. Many of

those commenters supporting the proposed rule also cited the need for

the United States to lead the way in the elimination of non-tariff

trade barriers.

The comments of those who opposed the proposed rule generally fell

into one of three categories: (1) Dissatisfaction with the quantity or

quality of the pest trapping and surveys conducted in Mexico and APHIS'

supporting documentation, (2) skepticism with regard to how closely the

proposed safeguards would be followed in Mexico, and (3) skepticism

regarding APHIS' ability to effectively monitor and enforce the

safeguards contained in the systems approach. These concerns were also

raised in a study prepared by the University of California at

Riverside's Center for Exotic Pest Research titled ``Risks of Exotic

Pest Introductions from Importation of Fresh Mexican Hass Avocados into

the United States.'' This study was submitted as a comment on the

proposed rule and, as such, has been carefully reviewed by APHIS and is

addressed in this final rule. The specific comments pertaining to the

proposed rule are discussed in detail, by subject, below.

Risk Management Analysis and Supplemental Pest Risk Assessment

Documents

Comment: The proposed rule states that Anastrepha spp. fruit flies

have never been found in Hass avocados outside of laboratory tests, but

APHIS itself said in a 1987 Federal Register document (52 FR 27669-

27672, Docket No. 87-101, July 23, 1987) that its records showed over

200 Anastrepha finds in avocados intercepted at the U.S./Mexican border

from smugglers.

Response: The proposed rule stated that ``according to APHIS and

Agricultural Research Service records, Anastrepha fruit flies have

never been found in Hass avocados outside of laboratory tests.'' In

their interception records, APHIS inspectors do not normally record the

variety of the fruit involved in a pest interception, so these written

records are silent as to whether any Hass avocados were involved in

those pest detections reported in the 1987 Federal Register document.

However, APHIS Plant Protection and Quarantine officers at the El Paso,

TX, border crossing report that they have cut thousands of confiscated

Hass variety avocados without intercepting any fruit fly larvae.

Similarly, Japanese plant health officials report that they have not

detected any fruit fly larvae in more than 5 million kilograms of

Mexican Hass avocados that have been imported into Japan since 1992.

Comment: APHIS' risk management analysis declares: ``There is a

small possibility that part of or a whole shipment could be

periodically diverted to southern States. Since California Hass would

be out of season, detection would be fairly easy.'' Similarly, the

supplemental pest risk assessment states, with regard to Florida and

California, that ``* * * it would be relatively easy to detect

smuggling or intentional diversion of shipments because Hass avocado

fruit are not otherwise generally available in those areas during the

winter months.'' To the contrary, the Avocado Market Research and

Information Center of the California Avocado Commission (CAC) reports

that during the 1991 to 1994 marketing years, movement of California

Hass avocados to destination markets averaged 8,533,212 pounds for the

month of November; 10,636,068 pounds for December; 18,108,162 pounds

for January; and 19,530,637 pounds for February. To claim that domestic

Hass avocados are out of season during the months of November through

February is simply incorrect; that assertion, therefore, cannot be used

to support APHIS' argument that the seasonal unavailability of domestic

Hass avocados will make it easy to detect Mexican Hass avocados in

prohibited States. It follows that the risk reduction estimate of 95 to

99 percent attributed to limited U.S. distribution is insupportable

because it will be more difficult than originally thought to detect

transshipment. APHIS must reevaluate this supposed mitigation measure

in view of factual realities.

Response: We agree that the characterization of domestic avocados

as ``out of season'' and ``not * * * generally available'' between

November and February was inaccurate. Domestic production is lower

during that period--especially during November and December--but not as

low as those statements in the supplemental pest risk assessment and

the risk management analysis suggest. The availability of domestic

avocados in larger numbers than originally recognized does not,

however, have a significant impact on our risk reduction estimates. The

risk management analysis indicates that the 95 to 99 percent risk

reduction estimate noted by the commenter is the reduction realized by

limiting distribution versus allowing distribution throughout the

United States. Our ability to detect Mexican avocados in markets

outside the approved distribution area does play a role in the estimate

of risk reduction, but the risk reduction estimate is based more on our

expectation that the vast majority of the imported avocados will remain

in the approved States. The supplemental pest risk assessment

considered the possibility that as much as 5 percent of the imported

fruit could be transported to a habitat suitable for pest establishment

(which is a subset of all non-approved States) and still concluded that

the risk of a pest outbreak would be insignificant. Another factor to

consider is our decision to include in this final rule a requirement

for all Mexican avocados imported into the United States to be

individually labeled with a sticker that identifies the packinghouse in

which the avocados were packed for shipment to the United States. (The

new stickering requirement is in response to a separate comment that is

discussed later in this document.) The stickering requirement will work

to both discourage transshipment and facilitate identification of

Mexican-origin avocados.

Comment: The persea mite, which is now devastating groves in

California, is believed to have originated in Mexico or Central

America. Why was the persea mite not considered in the supplemental

pest risk assessment?

Response: During the risk assessment process, APHIS collected

information on the persea mite (Oligonychus persea, also known as the

avocado mite) and considered the risk posed by this pest.

Unfortunately, this species was mistakenly not included on the list of

potential arthropod quarantine pests in table 3 of the supplemental

pest risk assessment. However, the persea mite is currently established

in the United States and is not considered a quarantine pest. Pests

that do not satisfy internationally accepted criteria of a quarantine

pest are not analyzed in detail in risk assessments because non-

quarantine pests are not candidates for risk mitigation. Although O.

persea should have been listed on the pest list, its inclusion would

not have changed the supplemental pest risk assessment beyond the pests

listed in table 3. Listing of O. persea in table 3 would not have

changed the findings of the risk assessment and would not have altered

[[Page 5295]]

the proposed mitigation program, which focuses on quarantine pests.

Comment: The leaf spotter, a pest identified in ``Australian

literature'' that lays its eggs on immature fruit and eventually covers

the fruit in pustules, occurs in Mexico and was not addressed in the

supplemental pest risk assessment.

Response: We are not aware of an avocado pest referred to as the

``leaf spotter.'' Nonetheless, we reexamined the scientific literature

and believe that the commenter may have been referring to one of two

insect pests. Homona spargotis (Lepidoptera: Tortricidae) was first

detected in the Australian State of Queensland in 1980 and since then a

few papers discussing this pest have appeared in the Australian

literature. One common name associated with this pest is ``avocado

leafroller'' but one paper reports that ``serious damage also results

from superficial scarring of the fruit.'' Amblypelta nitida (Hemiptera:

Coreidae) also occurs in Queensland and is listed as a pest of

macadamia and avocado. This true bug is sometimes referred to as the

``fruit spotting bug.'' However, we could find no evidence linking

either of these pests with Mexican avocados. According to the

scientific literature, all available pest data bases, and taxonomic

specialists on these insect groups, neither of these pests have ever

been detected in Mexico.

Comment: Too little is known about the basic taxonomy, biology, and

ecology of the avocado seed pests and stem weevils that attack the

avocados in Michoacan. Similarly, it is not known which species of

Anastrepha attacks avocado fruit. Overall, there is a dearth of survey

data and other reliable information on the population levels of all the

pests of concern in Michoacan. More information must be gathered

through additional precertification trapping and surveys before APHIS

can construct a scientifically valid systems approach for the

importation of Hass avocados from Michoacan, Mexico.

Response: On the contrary, we believe that there is sufficient

information available regarding all of the pests of concern. By way of

illustration, our risk management analysis and its attachments together

contain over six pages of literature citations that back up the

information and conclusions found in that document. Similarly, the

supplemental pest risk assessment lists nearly four pages of citations.

Avocados and pests of avocados have been studied in detail for many

years, especially in Mexico, which is the world's largest producer and

consumer of avocados. We believe that the information contained in the

existing literature, along with ongoing studies, surveys, and trapping,

provides a rational, reasonable, and scientifically valid basis for the

safeguards contained in this final rule, safeguards that we believe

will allow for the safe importation of Hass avocados from Michoacan,

Mexico.

Comment: Mexican avocados should be prohibited entry into the

United States until zero pest risk can be guaranteed.

Response: If zero tolerance for pest risk were the standard applied

to international trade in agricultural commodities, it is quite likely

that no country would ever be able to export a fresh agricultural

commodity to any other country. There will always be some degree of

pest risk associated with the movement of agricultural products; APHIS'

goal is to reduce that risk to an insignificant level. In the case of

Hass avocados from Mexico, we believe that the overlapping and

redundant safeguards contained in this final rule will reduce the pest

risk associated with their importation to an insignificant level.

Comment: The State of Michoacan in general and the four

municipalities listed in the proposed rule in particular are extremely

diverse in terms of elevation and environment. Temperature data have

not been provided to support the claim that temperatures are

``generally'' below 70 deg.F throughout the area during the months of

November through February, and it seems likely that in some locations--

especially at lower elevations--temperatures would be over 70 deg.F

for parts of some days during the export period. Has APHIS taken into

account these differences in elevation, temperature, and likely levels

of pest activity in Michoacan? In addition, APHIS' statement that

Anastrepha spp. will not oviposit below 70 deg.F is erroneous.

Response: The proposed rule stated that fruit flies reduce mating

and oviposition when temperatures fall below 70 deg.F, not that they

stop such activities. Our data show that although daytime temperatures

may rise above 70 deg.F, which happens on some days, usually for a

short time in the late afternoon, the average temperature in the region

during November through February is between 62 and 64 deg.F, with

nighttime lows in the 40's. Studies conducted by the Agricultural

Research Service (ARS) of the U.S. Department of Agriculture (USDA)

have shown that the Mexican fruit fly is less active, and oviposits

less at temperatures below 70 deg.F, so the climate is not favorable

to fruit fly activity during the proposed shipping season. The

unfavorable climate, combined with the Hass avocado's non-preferred

host status, make it likely that the infestation threat posed to the

avocados by Anastrepha spp. fruit flies will be insignificant.

Comment: The trapping data provided in support of the proposed rule

indicates that Anastrepha spp. fruit flies were trapped at 17 percent

of the trapping sites. This indicates that Mexican fruit fly and other

Anastrepha spp. fruit flies are present in the Michoacan avocado

groves.

Response: We have acknowledged that Anastrepha spp. fruit flies are

present in Michoacan, which is why the regulations in this final rule

set forth safeguards to prevent the introduction of those pests. The

requirements, such as surveillance trapping, increased trapping in

response to a single fruit fly detection, Malathion bait treatments,

covering of harvested avocados, fly-proof screens on packinghouses, and

inspections, work together with the non-preferred host status of Hass

avocado fruit attached to the tree to eliminate any significant risk

from Anastrepha.

Comment: No rational basis is given for a number of the probability

and confidence estimates used in the supplemental pest risk assessment.

For example, the estimate for P6 (probability of infested fruit

introduced into a suitable habitat leading to an outbreak) is very

weakly supported. As used in the supplemental pest risk assessment,

these estimates are inappropriate, misleading, and create a false sense

of security. A transparent, thoroughly documented, and replicable risk

analysis should be prepared and submitted to peer review.

Response: As stated in the supplemental pest risk assessment (p.

26), and in accordance with internationally accepted guidelines for

pest risk assessment, when specific data were not available to provide

precise estimates for a particular probability, estimates were based on

available data and expert judgment. Estimates based largely on expert

judgment typically have a degree of uncertainty associated with them.

We accounted for the uncertainty of our estimates by characterizing

them as a distribution of potential probabilities (i.e., as probability

density functions) instead of point estimates. Some commenters

indicated that APHIS underestimated the probabilities while others

indicated that APHIS has overestimated the risk of importing Mexican

avocado fruit. However, APHIS did not receive any information (e.g.,

biological, regulatory, statistical, or methodological) that could be

interpreted as evidence that the

[[Page 5296]]

probability estimates were incorrect, or that they should be changed.

Comment: The supplemental pest risk assessment was conducted

improperly and fails the test of peer review. Thus, its results must be

rejected and provide no basis for accepting the proposed rule.

Response: The methods used by APHIS have been subjected to

extensive internal and external peer review and have been accepted

within the United States and internationally. Some commenters on this

issue, including two individuals identified as risk assessment experts,

commented that APHIS' risk assessment constituted correct and

appropriate use of risk assessment tools. A variety of official

commenters and peer reviewers, including risk assessment experts,

commended APHIS' risk assessment, commented that the methods had been

applied appropriately, and considered the conclusions to be justified

and believable.

Comment: The APHIS supplemental pest risk assessment and risk

management analysis documents were not prepared in accordance with

North American Plant Protection Organization (NAPPO) and the United

Nations' Food and Agriculture Organization (FAO) risk assessment

guidelines.

Response: All of the components of plant pest risk analysis as

described by FAO (1995) and NAPPO (1995) are present in either the risk

management analysis or the supplemental pest risk assessment. Despite

the fact that the FAO and NAPPO documents are only in draft form, and

despite the fact that these documents are guidelines and not standards,

APHIS satisfied the requirements of each step suggested by the FAO and

NAPPO documents. It is true, however, that the order in which the

information is presented in the two APHIS documents is not along the

general theoretical lines of: (1) Initiate risk analysis because of a

new request for importation; (2) assess the base risk; (3) develop a

risk mitigation program; and (4) conduct and monitor the risk

mitigation program. The situation with Mexican avocado fruit is more

complex because over the past few decades APHIS has considered

repeatedly the risks of importing Mexican avocado fruit. The two APHIS

documents cover risk assessment and risk management, but the various

components of these two documents do not represent a simple

chronological progression of events. The supplemental pest risk

assessment includes a more complete assessment of the baseline risks

than was presented in previous risk assessments (e.g., see attachments

1 (entomology risk assessment) and 2 (pathology risk assessment) in the

risk management analysis). APHIS' risk analysis work started long

before FAO prepared the first draft of its guidelines. APHIS has

offered for public consideration a number of documents prepared on this

issue over the years. Although the chronology of these documents does

not match the order given in the FAO guidelines, all of the components

of a complete pest risk analysis as recommended by FAO are available in

the documents prepared by APHIS.

Comment: The criteria for the assignment of risk estimates found

within the supplemental pest risk assessment are explained well, but

the rationale for the risk estimate assigned to each of the quarantine

pests is essentially absent. The summary conclusions are appropriate

but should be explained clearly so that the reasoning and logic used to

estimate risk can be easily and fully understood.

Response: Most of the estimates were based to some extent on expert

judgment. APHIS did not elaborate on the components of the professional

judgment used by team members because such elaboration would be a

statement regarding the background and experiences of the scientists

involved. The summary conclusions are not explained in detail, but we

believe that our final assessment of the plant pest risk regarding each

category of pest is well represented in tables 9 and 10 of the

supplemental pest risk assessment.

Comment: The only Mexican avocado pest survey data made available

in support of the proposed rule were 1993-1994 data from 129 groves in

the Michoacan municipalities of Periban, Salvador Escalante, Tancitaro,

and Uruapan. Current pest management practices in Michoacan avocado

orchards emphasize prophylactic treatments with broad-spectrum

pesticides (typically 12 treatments per year in export groves). No

specifics were provided regarding what pesticides were used, how they

were applied, and when treatments were applied in relation to the

survey data. Given this, it is impossible to determine what impacts the

pesticide treatments may have had on the data and what effect future

alterations in pesticide use patterns may have on pest populations in

the growing areas.

Response: As we noted in the proposed rule, some trapping was

conducted while trees were being treated with pesticides. Clearly, such

treatments will have an effect on pest populations, and that effect

would have been reflected in the survey data. This sort of pesticide

treatment is routine in Michoacan, and similar pesticide treatment will

occur in orchards growing avocados for export to the United States, so

we believe that trapping conducted during or after pesticide treatment

provided accurate population data. This final rule requires that annual

surveys and routine trapping be conducted in the production area as

part of the avocado export program, so future alterations in pesticide

use patterns would also be reflected in the pest population data

gathered from those activities.

Comment: The key hypothesis that Hass variety avocados have a high

level of natural resistance to Anastrepha spp. fruit flies is supported

only by weak data and inference. The hypothesis is readily testable and

should be thoroughly evaluated using proper scientific protocol before

it is factored into the analysis. If sound data are collected to

support the hypothesis of Anastrepha resistance, then the physiological

basis for that resistance should be determined. Otherwise, changes in

environmental or other factors (e.g., drought, tree stress, etc.) that

affect fruit physiology could negate the resistance, as was the case

with Sharwil avocados in Hawaii.

Response: APHIS' use of presumed host resistance in its systems

approach is based on studies conducted in Mexico and Central America,

some of which were conducted by the ARS, that have repeatedly shown

avocados to be poor hosts of fruit flies and that have never pointed to

Hass avocados as an Anastrepha fruit fly host. These studies are backed

in practical terms by the experience of APHIS personnel at the U.S./

Mexican border who have been cutting confiscated avocados, including

Hass variety avocados.

Mexico is the world's largest producer and consumer of avocados;

there are over 80,000 hectares of avocados planted in the State of

Michoacan alone. The avocado is a large, economically significant crop

in Mexico around which has developed an industry dedicated to the

growing and marketing of avocados. Industry and university researchers

in Mexico have prepared numerous publications regarding the

identification and control of pests of avocados, yet there are no

publications on the control of Anastrepha spp. fruit flies in Hass

variety avocados. APHIS' own interception records over the past several

years confirm that no Anastrepha spp. fruit flies have been found

infesting Hass avocados. We believe, therefore, that the conditions set

forth in the proposed rule and in this final rule adequately address

the pest concerns associated with the importation of Hass avocados from

[[Page 5297]]

Mexico and would detect a problem if one were to exist.

Comment: Compliance is assumed in many aspects of APHIS' risk

assessment process, failing to take into account human behavior (e.g.,

greed leading one to repack and transship Mexican avocados out of the

approved area).

Response: Human error and purposeful deceit were considered

continuously during the risk assessment process and during estimation

of each of the probabilities. Some probability estimates were based

almost exclusively on our consideration of human error and deceit. For

example, in the supplemental pest risk assessment, P5, the probability

that fruit would be transported to an area with suitable hosts and

climate (i.e., transshipment to areas outside the approved States),

ranged from 0.5 percent to 5 percent under the proposed program. Such

transshipment could occur only as a result of human error or purposeful

deceit, so our estimate of risk resulted directly from our

consideration of the possibility of human error and the incentive for

purposeful deceit.

Comment: APHIS should include the risk of infestation due to

vehicle accidents in warm southern States and transshipment as part of

its risk analysis.

Response: Scenarios such as accidents during transport and

transshipment were included in the supplemental pest risk assessment

and were considered as part of P5, the probability that fruit would be

transported to an area with suitable hosts and climate, and P6, the

probability that infested fruit in a suitable habitat leads to

outbreak.

Comment: APHIS should convene an independent scientific panel to

review the APHIS risk assessment plan and determine if the plan is in

accord with accepted scientific principles. Until then, the proposal

should be withdrawn.

Response: We heard the call for an independent scientific review of

the proposed systems approach and risk reduction plans even before the

proposed rule was published on July 3, 1995. In the proposed rule, we

announced that 2 days of hearings would be held to focus exclusively on

the APHIS risk assessment documents upon which the proposed rule was

based in order to provide an opportunity for experts in relevant

disciplines to present their views on those documents and the

scientific issues raised by them. Those hearings, which were conducted

on August 17 and 18, 1995, produced testimony from 25 speakers. In

addition to that oral testimony, we received written comments from

interested experts in various disciplines during the comment period. We

believe, therefore, that scientists and independent scientific panels

had ample opportunity during the 105-day comment period to present

their opinions on the APHIS risk assessment plan.

Comment: The only realistic protection for the United States is to

insist on ``certified infestation-free zones.'' APHIS should insist on

additional studies, at least 3 years in duration, before proceeding

with any change in the policy. This would be consistent with the NAPPO

guidelines for the establishment of a pest-free zone. If APHIS is truly

interested in maintaining the integrity of phytosanitary standards, it

will demand further study resulting in the establishment of these pest-

free zones.

Response: As we explained in the proposed rule and in this final

rule, APHIS uses systems approaches to phytosanitary security to allow

fruits and vegetables to be imported safely into the United States from

countries that are not free of certain plant pests. Our experience with

systems approaches for the importation of commodities and systems

approaches for domestic commodities has demonstrated that such

approaches can be used safely and successfully to allow for the

importation or exportation of fruits and vegetables from countries or

areas that are not free from pests. In this instance, we believe that

the systems approach to phytosanitary security found in this final rule

will prevent the introduction of plant pests into the United States

from Michoacan. Therefore, we do not believe that it is necessary to

establish Michoacan as a pest-free zone prior to importing Hass

avocados.

Comment: The supporting documentation for the proposed rule

mentions that large-scale fruit cutting was conducted in Mexico to

determine pest prevalence in Michoacan's export avocado groves, but no

data were offered to back up those claims. The data regarding fruit

cutting should be made available to the public.

Response: This information may be obtained by contacting the person

listed under FOR FURTHER INFORMATION CONTACT, as several individuals

did following the publication of the proposed rule. The cutting data

are available in at least summary form for the period 1985 to 1991, and

detailed information is available for groves and packinghouses for

certain of those years.

Comment: A university researcher reported that she discovered

immature avocado stem weevil larvae in an export grove in Michoacan

during a 1994 trip to the region. APHIS' risk documents, however, state

that none have been found.

Response: The researcher mentioned in the comment traveled to

Michoacan as part of a joint APHIS/CAC team that went to Mexico on an

information-gathering trip to look at orchards infested with stem

weevils and seed weevils. The team visited a grove that appeared to be

poorly managed and, within 5 minutes, found the avocado stem weevil to

be present in trees within the orchard. The orchard was not certified

for Sanidad Vegetal's export program. Later that day, however, a pest

management consultant who had not visited the orchard in question

speculated that it had once been an export orchard. It was that

encounter with the consultant that led the researcher to conclude that

she detected avocado stem weevils in an export grove.

Prior to APHIS' interest in the stem weevil, Sanidad Vegetal was

not certifying export orchards as being free of stem weevils, so it is

possible that some orchards that had previously been certified for the

export program did have stem weevil infestations. In 1994, however,

Sanidad Vegetal instituted surveys for the stem weevil, and all

orchards certified for the U.S. export program will be required to be

free from the pest. Sanidad Vegetal inspectors know how to survey for

stem weevils, and the experience of the APHIS/CAC team illustrates that

the pest is not difficult to detect.

Comment: The Monte Carlo model used in the supplemental pest risk

assessment was unnecessary in the first place and only provides a veil

of analytical objectivity; the model predicts what was initially

assumed. The data upon which parameters for the model were estimated

are either nonexistent or are not adequately documented. The results of

the model cannot be accepted with any level of confidence.

Response: Monte Carlo simulation is a well-established and

scientifically based tool of risk assessment. One of the primary

utilities of this method is its ability to account for uncertainty in

risk predictions. APHIS used Monte Carlo simulations because

uncertainty existed with regard to the true value of some of the

component probabilities. Monte Carlo simulations provided estimates of

risk in the desired format, i.e., risk expressed as a range of values,

each with an associated probability. Data are available that affect

each of the estimates made in the risk assessment. Much of the

information used by APHIS

[[Page 5298]]

to estimate risk can be found in the scientific sources listed in

section IV of the supplemental pest risk assessment. Section IV of that

document lists 58 separate sources of information, 53 of which are

scientific references; the remaining 5 can be considered ``regulatory''

references. APHIS is confident that its characterization of risk is

accurate. Although some commenters disagreed with our assessment of the

risk, no specific evidence was provided that indicated that the risk

assessment model should be changed or that the associated probability

estimates should be reconsidered.

Systems Approaches

Comment: The term ``systems approach'' should be defined in the

regulations.

Response: There is no need to define the term in the regulations

because the term is not used in the regulations. The term ``systems

approach'' is used in the preamble portion of the proposed rule and

this final rule, as well as in the two risk documents, to describe an

overlapping, redundant series of safeguards that, in this case, will be

applied to the importation of avocados from Mexico. The safeguards

themselves are set forth in the final regulations, but the term used to

describe those safeguards collectively is not.

Comment: APHIS compares its proposed systems approach for Mexican

avocados to the systems approaches used for the importation of Unshu

oranges from Japan, peppers from Israel, and tomatoes from Spain.

However, APHIS fails to mention that the Unshu oranges must be grown

and packed in isolated, canker-free export orchards surrounded by

disease-free buffer zones, or that the Spanish tomatoes and Israeli

peppers must be grown in insect-proof plastic screenhouses. Measures

such as orchard/buffer zone freedom from pests and enclosed growing

areas vastly reduce the pest risks presented by those commodities;

there is no equivalent degree of protection built into the proposed

system for Mexican avocados.

Response: In the proposed rule, we explained that APHIS uses

systems approaches to establish conditions whereby fruits and

vegetables may be imported into the United States from countries that

are not free of certain plant pests. There is no ``one size fits all''

systems approach; specific measures are necessary to address specific

pest risks, so different commodity/pest combinations will require

different approaches. Just as the systems approaches for Unshu oranges,

Spanish tomatoes, and Israeli peppers lower the pest risks associated

with each commodity to an acceptable level, we believe that the

required safeguards in this final rule will allow Hass avocados to be

safely imported into the United States by lowering the risk of pest

introduction to an acceptable level.

Comment: The proposed rule cites the systems approaches used for

Unshu oranges from Japan, peppers from Israel, tomatoes from Spain,

citrus from Florida and Texas, apples from Washington, and stonefruit

from California. These systems were put into place after multiple years

of data collection and analysis. The approach found in the proposed

rule, on the other hand, is based on barely a year's worth of data that

is flawed and generally incomplete; the systems approach is being

offered as a substitute for obtainable knowledge. APHIS holds its

domestic growers and trapping programs to a high standard of quality;

it is certainly reasonable to expect that an import program of this

magnitude be based on solid, supportable, long-term data.

Response: To characterize the systems approach for avocados as

being the product of ``barely a year's worth of data'' in contrast to

other programs that were put in place after multiple years of data

collection and analysis is inaccurate. Mexican government and industry

officials have been actively seeking permission to export avocados to

the United States since the early 1970's; the importation program

established by this final rule is based on data collected during those

years, as well as on information gathered by APHIS through its own

activities and research. We believe that the Mexican data, supplemented

by our own data collected over those years, is of sufficient quality

and quantity to provide the foundation upon which to base the

safeguards found in this final rule.

Comment: Much is made about the fact that the nine mitigating

measures are designed to ``individually and cumulatively reduce the

risk of pests.'' However, four of the nine measures (trapping and field

treatments, host resistance, post-harvest safeguards, and winter

shipment) are specifically designed to control fruit flies. The

remaining five safeguards do not act cumulatively to adequately address

the threats posed by the seed weevil and other avocado-specific pests.

Response: First, we believe that winter shipment is a mitigating

measure that has an effect on pests other than fruit flies because the

avocado stem and seed pests, like the fruit flies, would not survive

winter temperatures in the northeastern United States. More

importantly, however, we disagree with the commenter's assertion that

the safeguards do not have a cumulative effect on reducing the risk of

the avocado seed and stem pests. Those safeguards determine whether the

pests are present (field surveys), deny the pests opportunities to

establish a presence (field sanitation), ensure that pests have not

infested the avocado fruit (packinghouse inspection and fruit cutting,

port-of-arrival inspection), and deny the pests the opportunity to

become established in the United States should they somehow get in

(limited U.S. distribution, winter shipping). Those six safeguards are

each an individual means of detecting or preventing the presence of

pests; together, we believe they will reduce the risk of pest

introduction to an insignificant level.

Comment: A verification process for the systems approach must be

put in place so we can tell if the program is being followed and if the

program is effective.

Response: We believe that the necessary checks are already built

into the process to allow us to determine whether the program is being

followed. Throughout the growing, packing, and shipping processes,

APHIS personnel will be on hand to monitor compliance with the

regulations and to conduct sufficient inspections to determine the

phytosanitary condition of the fruit. That monitoring and inspection

will allow us to tell if the program is being followed and is

effective.

Comment: APHIS' experience with the failed program to import

Sharwil avocados from Hawaii should show APHIS that reliance on the

assumed non-host status of a commodity and on systems approaches can

result in little to no actual phytosanitary security.

Response: The Hawaiian Sharwil avocado program might be considered

to have been a failure from a commercial perspective if one was

interested only in moving Sharwil avocados from Hawaii to the mainland,

since the program was canceled following the detection of pests on the

avocados. From a quarantine perspective, however, the program could

accurately be described as a success because the safeguards built into

the program allowed us to detect the presence of pests and terminate

the program before those pests could be disseminated into the

continental United States. In terms of the pest/commodity interaction,

the situation in Hawaii differs from the situation in Michoacan. The

primary pest of concern for the Sharwil program was the Oriental fruit

fly, which is present at very high levels in Hawaii's avocado

[[Page 5299]]

production area. Oriental fruit fly utilizes a variety of host fruits

and will attack almost anything that is available due to its high

population density. The situation in Michoacan is not comparable

because Anastrepha spp. fruit flies are not present at high population

levels in the export orchards and, when compared to Oriental fruit fly,

Anastrepha spp. fruit flies have a restricted host range.

Comment: The risk management analysis describes the proposed

program as a systems approach consisting of nine mitigation measures

used to bring the identified pest risk to an acceptable level. However,

only the required field sanitation and fruit fly treatments actually

qualify as mitigation measures; the remaining components--trapping,

fruit cutting, visual inspection, etc.--are in actuality monitoring

tools. The proposed approach, therefore, would be more accurately (and

more credibly) described as a process for monitoring the efficacy of

cultivation, sanitation, and treatment procedures to allow for and

attest to the movement of uninfested fruit only. Such an approach is

not invalid, but it should be properly characterized in the final

report.

Response: Although field sanitation and fruit fly treatments are

the only two components of the systems approach that have a direct

effect on the field populations of pests, we believe that all nine

components can appropriately be characterized as mitigating measures

because what is being mitigated is the risk that an infested shipment

of avocados will enter the United States and result in pests becoming

established in this country. That risk can be mitigated by monitoring

the efficacy of cultivation, sanitation, and treatment procedures to

allow for and attest to the movement of uninfested fruit as well as

through field sanitation and fruit fly treatments.

Commercial Shipments

Comment: The proposed rule would require the avocados to be

imported in commercial shipments only, but fails to define the term

``commercial shipment.''

Response: The background information of the proposed rule draws a

distinction between commercial shipments and wild or ``backyard''

avocados, explaining that the two categories of produce are grown under

very different conditions. The term is not defined in the proposed

rule, however, largely because a definition for the term is already

present in the regulations. Specifically, the following definition of

the term commercial shipment appears in Sec. 319.56-1 of the

regulations (and thus applies to the regulations set forth in this

final rule): ``A shipment containing fruits and vegetables that an

inspector identifies as having been produced for sale and distribution

in mass markets. Such identification will be based on a variety of

indicators, including, but not limited to: quantity of produce, type of

packaging, identification of grower or packing house on the packaging,

and documents consigning the shipment to a wholesaler or retailer.''

Comment: The proposal requires that trucks transporting avocados

from the packinghouse be sealed, but no mention is made as to where or

by whom the seal may be broken. It appears, then, that a truck could be

loaded with 500 boxes of avocados at a certified packing house, sealed,

then be driven to a mango packinghouse, reopened, and the rest of the

truck loaded with mangos or some other produce item. The truck then

could be driven to the border crossing at Nogales, AZ, for avocado

inspection. From Nogales, the mangos could be shipped to California or

some other southwestern State and the avocados shipped under U.S.

Customs bond on to the northeast. If the avocados contained any pests,

they could easily transfer to the other product and be shipped

anywhere.

Response: We intend that the refrigerated truck or refrigerated

container in which the avocados are transported be sealed at the

packinghouse and not opened until it reaches the United States. Mixed

loads such as those envisioned by the commenter will not be permitted.

The language in the regulations is not, as the commenter noted, clear

on those points, so in this final rule we have added language to

Sec. 319.56-2ff(c)(3)(viii) to make it clear that the truck or

container must remain unopened until it reaches the U.S. port of first

arrival.

Seasonal Restrictions

Comment: The proposed rule states that the avocados may be imported

from November through the month of February. Under proper storage

conditions, wholesalers and distributors can hold avocados for several

weeks past the end of February. Will businesses be required to dispose

of their Mexican avocado inventory come March 1st?

Response: The November through February restriction applies to the

importation of Mexican avocados, not to their distribution in the

approved States. Under the provisions of the proposed rule, for

example, a truckload of avocados could cross the border on the last day

of February, take several days to arrive at a market in an approved

State, and be first offered for sale by a wholesaler or distributor in

early March. Therefore, businesses will not be required to dispose of

their Mexican avocado inventory on March 1st of each year.

Comment: With controlled-atmosphere storage, Mexican avocados

imported at the end of February could theoretically be sold into the

month of April, when temperatures in some of the approved States could

be high enough to enable pests to become established. Therefore,

imports should be allowed only until mid-January to ensure that the

temperatures in the approved States at the end of the retail sales

period--not just the end of the importation window--are low enough to

preclude the survival and establishment of the pests of concern.

Response: Even with some type of controlled-atmosphere storage, we

do not believe it is likely that the shelf life of the Mexican-origin

avocados could extend into the month of April. Even if one of the pests

of concern were to infest the fruit, avoid detection, survive shipment,

and finally escape into the environment during a period of mild

weather, there would be no host material available to sustain a pest

population.

Distribution Within the United States

Comment: The proposed requirement for boxes in which the avocados

are shipped to be marked ``Distribution limited to the following

States: * * *'' will be meaningless as a deterrent to transshipment;

persons wishing to transship the avocados can easily repack the fruit

in other boxes. At the very least, APHIS should require that each

individual Mexican-origin avocado be marked with an indelible dye or

bear a sticker denoting its origin.

Response: We agree with the numerous commenters who made this point

and have added a stickering requirement to this final rule.

Specifically, we will require that each avocado fruit be labeled with a

sticker bearing the Sanidad Vegetal registration number of the

packinghouse in which the avocado was prepared for shipment to the

United States. We believe this stickering requirement will make it

easier to identify Mexican-origin avocados at terminal markets and

present an additional obstacle to transshipment of the fruit to non-

approved States.

Comment: The limited distribution scheme is an unrealistic concept,

given the open nature of the U.S. marketing and transportation systems.

The restrictions will be ignored because of high consumer demand for

avocados in

[[Page 5300]]

areas outside the approved States and the price disparity between

California and Mexican avocados. The price disparity will be even

greater when the $0.054 per-pound tariff cited in the proposed rule is

eliminated.

Response: If the limited distribution requirement was the only

means of risk mitigation available in the Mexican avocado import

program, the open nature of the U.S. marketing and transportation

systems would be a matter of concern. Limited distribution is, however,

only one of a series of safeguards designed to prevent the introduction

of pests into the United States through the importation of avocados

from Mexico. We do not expect limited distribution to be foolproof, but

we also do not expect that infested avocados will be entering the

United States through legally imported commercial shipments in the

first place. Further, we anticipate that unscrupulous distributors will

be the exception, rather than the rule, so we believe that the

restrictions on distribution of the avocados will be widely observed,

rather than ignored. As an earlier commenter pointed out, domestically

grown avocados are certainly available during the period when Mexican

avocados will be imported, so the high consumer demand anticipated by

the commenter in non-approved States could be met by domestic supply

and by those avocados that are already being imported to all regions of

the United States from Chile, the Dominican Republic, and the Bahamas.

With regard to the expected price differential between imported

Mexican-origin avocados and domestic avocados, the commenter is correct

in noting that the $0.054 per pound tariff will be eventually

eliminated. Under the North American Free Trade Agreement, all fees and

tariff rates on Schedule C commodities, including avocados, are to be

eliminated within 10 years, with a gradual decline of 10 percent per

year. Whether or not the price differential will give rise to a black

market for avocados or lead established distributors to knowingly

violate the law for the sake of profit is another matter. An

unscrupulous distributor who wished to illegally transship Mexican

avocados would have to pay the costs associated with obtaining a

shipment of imported Mexican avocados at wholesale prices from a

terminal market in an approved State, moving that shipment to a secure

location, unloading the boxes from the truck or container, removing all

the avocados from their packing boxes, peeling the sticker from each

piece of fruit, perhaps adding a new sticker to each piece of fruit,

repacking the fruit in new boxes, loading the boxes back onto the truck

or container, and driving the load of avocados across the country to

one of the expected high-demand markets (south Florida, Texas, and

California), all of which would limit the profitability of such an

illegal enterprise. We believe that this limited profit potential, when

combined with other factors such as the ready availability of domestic

and imported avocados in areas outside the approved States and the fact

that persons involved in such illegal transshipment are liable to legal

action, incarceration, or fines, makes it unlikely that large-scale

transshipment will take place.

Comment: In the risk documents and the proposed rule, APHIS asserts

that the Fruit and Vegetable Division of the Agricultural Marketing

Service (AMS) would notify APHIS if Mexican-origin avocados showed up

at terminal markets in non-approved States. The AMS would be in no

position to render such assistance because their responsibility is to

grade fruits and vegetables for export.

Response: The AMS does grade domestically marketed fruit, as well

as fruit intended for export, so AMS personnel will indeed be present

at terminal markets in non-approved States and will thus be in a

position to assist APHIS in identifying misdirected avocados.

Comment: In the risk documents and the proposed rule, APHIS asserts

that the AMS would notify APHIS if Mexican-origin avocados showed up at

terminal markets in prohibited States. How will AMS personnel--or APHIS

inspectors--be able to tell the difference between Mexican-origin Hass

avocados and Hass avocados that originated in domestic groves or were

imported from Chile?

Response: Domestically grown Hass avocados and Hass avocados

imported from Chile will be clearly labeled and readily identifiable,

since there is no reason for a distributor or other person to disguise

their origin. Similarly, the Mexican avocados will be packaged and

individually labeled to indicate that they originated in Mexico, so a

person wishing to sell transshipped Mexican avocados in a terminal

market in a non-approved State would have to go to some lengths to

disguise the origin of the fruit. As discussed in the response to a

previous comment, we do not believe that the level of profit that might

be expected from selling transshipped Mexican avocados would be great

enough to entice a significant number of people to engage in such

illegal activity.

Comment: The commissioner of agriculture in one State and the

governor of another have noted that consumers, processors, and

distributors in their States have expressed interest in the

availability of Hass avocados from Mexico and would like to see the

list of approved States expanded to include their respective States.

Response: The placement of additional States on the list of

approved States would have to be part of a subsequent rulemaking. The

public must be given an opportunity to comment on the inclusion of

additional States, and importations into the non-approved States were

not considered in the supplemental pest risk assessment and risk

management analysis prepared for July 1995 proposed rule, so we do not

have sufficient information regarding the potential plant pest risk

associated with importing Mexican avocados into other States. New

States may be added in the future if APHIS receives a request to do so

and the agency determines that avocados can be imported into that State

without presenting a significant pest risk; if such a determination is

made, a proposed rule to add the State would be published in the

Federal Register.

Comment: Part of the rationale behind APHIS' limited distribution

safeguard is the contention that there is no suitable host material to

sustain the pests of concern, especially the avocado-specific pests.

There is, however, the possibility that the avocado seed weevils and

the avocado seed moth could become established in the northeastern

United States by using red bay (Persea borbonia), a relative of avocado

(Persea americana), as a host. Red bay is a host of Heilipus apiatus,

which is closely related to the large avocado seed weevil Heilipus

lauri.

Response: Although H. apiatus is related to H. lauri, H. apiatus is

a stem borer, not a seed pest. It is very unlikely that H. lauri,

Conotrachelus aguacatae and C. perseae could survive by feeding on the

small seeds of red bay (fruit size 1-2 cm.). In addition, the seed moth

is found only at lower elevations in the tropics, even though the host

is grown commonly at higher elevations. In fact, all of the pests of

concern become rare or are completely absent at the higher elevations.

Although specific temperature threshold information for these pests may

be scarce or absent, there is no reason to believe that these tropical

or subtropical pests could survive the winters in the approved States.

[[Page 5301]]

Trust Fund Agreement and APHIS Participation

Comment: APHIS and Mexico need to recognize that APHIS is neither

adequately staffed nor funded to properly deal with this proposed

importation program. This limitation could be waived if all APHIS

incurred costs were borne by Mexico.

Response: The proposed rule clearly stated that all costs

associated with APHIS' participation in the program would be paid by

the Mexican avocado industry association through a trust fund agreement

with APHIS. Paragraph (b) of proposed Sec. 319.56-2ff stated, in part,

that the Mexican avocado industry association would be required to

``pay in advance all costs that APHIS expects to incur through its

involvement in the trapping, survey, harvest, and packinghouse

operations * * *'' Those provisions are the same in this final rule.

The costs of inspecting imported agricultural commodities at the port

of first arrival are recovered, when applicable, by user fees.

Comment: The Mexican avocado growers should be required to post a

bond or to somehow insure or indemnify their product, so that in the

event of a pest infestation, domestic avocado growers would receive

some financial compensation for their losses.

Response: We believe that requiring Mexican growers to somehow

indemnify their product would be unnecessary and ill-advised, largely

because no country in the world requires the indemnification of

agricultural products offered for importation; if the United States

were to set a precedent and require such indemnification, it would be

only a matter of time before our domestic agricultural producers would

be required to indemnify their products offered for export. Any grower

or farmer has little control over his or her produce once it has left

the grove or farm, let alone once it has been exported to another

nation. To ask that grower or farmer to insure his or her produce from

the farm gate to the end consumer would be unfair at best, especially

in this instance, given that the regulations prohibit the distribution

of Mexican Hass avocados in U.S. avocado-growing States. Finally,

requiring such indemnification would run counter to our obligations

under current international trade agreements and would certainly be

subject to challenge by Mexico and other potentially affected trading

partners.

Safeguards in Mexico

Comment: Why does Sanidad Vegetal, an agency of the Mexican

national government, have to hire, train, and supervise the personnel

who will be involved in trapping and conducting the pest surveys?

Mexico does not require the USDA to hire, train, and supervise the

personnel engaged in similar activities in California or Washington,

for example. Mexico accepts the results provided by State-level

personnel, as should APHIS.

Response: The commenter is correct in pointing out that Mexico--and

many other countries as well--accepts the plant-health-related work

performed in the United States by State personnel. We have, therefore,

modified the regulations in this final rule to allow the personnel who

conduct the trapping and pest surveys in Michoacan to be hired,

trained, and supervised either by Sanidad Vegetal, as was proposed, or

by the Michoacan State delegate of the Secretaria de Agricultura,

Ganaderia y Desarrollo Rural (Secretariat of Agriculture, Livestock,

and Rural Development), who holds a position that is roughly equivalent

to that of a State agriculture commissioner in the United States.

Comment: The supplementary pest risk assessment states that ``any

proposed program would include * * * field surveys for specific avocado

pests at the State, municipality, and grove levels,'' but the area

surveys called for in the proposed rule appear to be only at the

municipality and grove levels.

Response: The reference to State-level surveys in the supplementary

pest risk assessment was an error. State-level surveys were not part of

the Mexican work plan, nor were they considered in the risk management

analysis or the proposed rule. More importantly, however, no estimates

of risk or risk reduction were based on the expectation that State-

level surveys would be conducted. We believe that the required

municipality- and grove-level surveys, which focus on detecting pests

in the production areas, will provide us the necessary pest population

information.

Comment: The supplemental pest risk assessment states that one

factor in the assessment that affects risk management is the assumption

that all traces of stems and other plant material would be removed from

the avocados before packing. The proposed regulations, however, do not

mention removing stems.

Response: The statement to which the commenter is referring can be

found on page 8 of the supplemental pest risk assessment. Freedom from

stems and other kinds of plant material is one of the ``Quarantine 56

conditions'' that the risk assessment assumes will be in effect, which

is indeed the case. Paragraph (a) of Sec. 319.56-2 requires that ``all

importations of fruits and vegetables must be free from plants or

portions of plants, as defined in Sec. 319.56-1.'' Plants or portions

of plants is defined as ``leaves, twigs, or other portions of plants,

or plant litter or rubbish as distinguished from clean fruits and

vegetables, or other commercial articles.'' We have added language to

the packinghouse requirements in Sec. 319.56-2ff(c)(3) to make it clear

that stems, leaves, and other portions of plant must be removed from

the avocado fruit.

Comment: The proposed rule calls for dead branches to be pruned and

removed from the orchards, but provides no set schedule for those

actions to occur. Without a more precise schedule, the practice may not

effectively prevent stem weevil infestations. Tree pruning should be

timed to remove dead or dying branches before adult stem weevil

emergence in the spring or the fall. Spring removal and destruction of

dead or dying branches would help to break the reproductive cycle and

reduce the population level of any adult stem weevils that may be

present in those orchards.

Response: No prescribed schedule was included because we intend for

the removal of dead branches to be a continuing part of an orchard's

management and upkeep. The regulations in this final rule require, as

was proposed, that ``[d]ead branches on avocado trees in the orchard

must be pruned and removed from the orchard.'' That requirement is one

of the conditions under which any approved orchard must operate.

Comment: The proposed rule calls for avocado fruit that has fallen

from the trees to be removed from the orchards prior to harvest. Given

the fact that such fruit is more likely to be infested by pests,

removal of fallen fruit should be part of a regular field sanitation

routine, not merely be a pre-harvest event.

Response: We agree that removing fallen fruit as a regular practice

would lower the risk of fruit fly attraction within an orchard and

would thereby lower the overall fruit fly population in an orchard.

Therefore, we have changed Sec. 319.56-2ff(c)(2)(iii) in this final

rule to require that fallen fruit be removed from export orchards at

least once a week.

Comment: It will be all but impossible for the registered growers

in Michoacan to patrol their approved orchards often enough to remove

all the avocado fruit

[[Page 5302]]

that has fallen from the trees prior to harvest, and it is unrealistic

to expect that pickers who are paid by the bin or by the pound will not

place fruit from the ground into their field boxes during the harvest,

thus increasing the risk that infested avocados will be exported to the

United States. How will APHIS enforce these requirements?

Response: Although it is unlikely that any orchard could ever be

kept completely free of fallen fruit, we believe that it is possible

for a grower to keep up with most of the fallen fruit by following

sound field sanitation practices. As noted in the response to the

previous comment, we will require that fallen fruit be removed from the

orchard on a weekly basis, rather than just before harvest. Because a

finding of infested fruit will result in the suspension or withdrawal

of an orchard's export certification, it is in a grower's best economic

interests to prevent fallen fruit from being intermingled with

harvested fruit. Inspections at the packinghouse prior to and during

the culling process, along with subsequent inspections in the United

States, are expected to alert us to the presence of pests, and frequent

checks by APHIS and Sanidad Vegetal inspectors will help ensure that

the requirements of the regulations are being observed.

Comment: It is highly unlikely that avocados in the approved

orchards could be harvested by pickers, dumped into bins or other

containers, loaded onto trucks, and covered in less than 3 hours after

being picked. It is more likely that the fruit will be exposed for

longer periods of time and thus exposed to potential fruit fly

infestation. How will APHIS be able to supervise these requirements?

Response: We acknowledge that a grower may not be able to transport

all his avocados to the packinghouse within 3 hours of harvesting them,

so there are provisions for protecting the fruit until it is moved.

Specifically, the regulations in this final rule require, as was

proposed, harvested avocados to be ``moved from the orchard to the

packinghouse within 3 hours of harvest or they must be protected from

fruit fly infestation until moved.'' APHIS inspectors and Sanidad

Vegetal personnel will be monitoring the export groves during harvest

and will ensure that these and all the other requirements of the

regulations are met.

Comment: The Mediterranean fruit fly (Medfly) has been found at

high levels in the Mexican State of Chiapas, which is close to the

State of Michoacan. In order to monitor potential Medfly movement into

the Michoacan region, monitoring for Medfly at a higher trap density

than called for in the proposed rule is needed.

Response: Given the history of Medfly's spread and the spread of

other fruit flies, we believe that Medfly is unlikely to migrate the

650 miles from Chiapas to Michoacan. The trapping densities and trap

types required in this final rule for Medfly monitoring in Mexico are

the same as those used to monitor for Medfly in California, where much

of the State's fruit production area lies within 650 miles of the

recent Los Angeles Basin infestation.

Comment: Field surveys are defined by APHIS as the most effective

safeguard for protection against avocado-specific pests, but these

surveys rely almost exclusively on programs under the direction of

Sanidad Vegetal. If this is to be the most effective line of defense

against the introduction of the seed weevil, APHIS should be directly

involved in implementing this program and not merely monitoring the

process.

Response: With regard to the required safeguards, including field

surveys, the regulations in Sec. 319.56-2ff(c) clearly state that

``APHIS will be directly involved with Sanidad Vegetal in the

monitoring and supervision of those activities.'' APHIS personnel will

be present in Michoacan in a supervisory and monitoring capacity to

ensure that the required safeguards are being observed, not to conduct

field surveys for the Mexican avocado industry.

Municipality Requirements

Comment: A survey should be required for the avocado seed moth, and

sex lure or food bait traps should be used to monitor for the avocado

seed moth.

Response: In this final rule, as in the proposed rule, the

regulations in Sec. 319.56-2ff(c)(1)(ii) require that each municipality

be surveyed at least annually for the avocado seed moth and the other

avocado seed pests. A sex lure or food bait is not available for use in

trapping for the avocado seed moth, but we continue to believe that the

annual survey required by the regulations will serve to alert us to the

presence of this and other pests in the municipalities, and that the

other safeguards in the regulations will ensure that shipments of

avocados will be free of the pests of concern.

Comment: The proposed regulations call for at least 300 hectares of

each municipality to be surveyed for seed weevils and seed moths at

least annually. While the proposal states that ``portions'' of each

registered orchard and areas with wild or backyard avocado trees must

be included in the survey, the term ``portions'' is not defined and is,

thus, open to interpretation. Additionally, there is no explanation of

how a 300-hectare survey per municipality will yield a 95 percent

confidence level of detection. How can a single annual survey of 300

hectares serve as the basis for calling a municipality free of seed

weevils and seed moths?

Response: We did not specify a minimum size for the ``portions'' to

be surveyed because the survey must include portions of each registered

orchard and areas with wild or backyard avocado trees, and the number

of those areas will vary between municipalities. However, the work plan

in which Sanidad Vegetal will set forth the details of the survey

activity will have to be approved by APHIS, and APHIS personnel will be

supervising the surveys, so we will be able to ensure that Sanidad

Vegetal continues its current practice of reflecting the size of an

orchard in the size of the surveyed area, i.e., surveying larger

orchards more widely than smaller orchards. The overall survey size of

300 hectares per municipality was selected to ensure that there would

be a 95 percent or greater confidence level, independent of the size of

the municipality, that the survey would detect the pests if they occur

in 1 percent or more of the commercial growing areas within the

municipality. The only way to approach a 100 percent confidence level

would be to survey every tree, which is not practical. It should be

noted that the municipality must be found free of the avocado seed

pests--i.e., none found during the entire 300-hectare survey--and that

the survey must be conducted during the growing season and prior to the

harvest of the avocados. The nature and timing of this annual survey

offers a high degree of assurance that the avocados exported to the

United States will be free from avocado seed pests.

Comment: Field survey is a critical element. The survey protocol is

set up to have a 95 percent confidence level of finding 1 percent

infestation; this assumes an evenly distributed infestation, not the

more likely scenario of certain groves being more likely infested than

others and a spotty distribution of weevils within an infested grove.

Response: We believe that the field surveys required by the

regulations, which will be supervised by APHIS, are already designed to

address the uneven distribution thought likely by the commenter. The

required surveys will include each registered orchard, so every grove

from which avocados will

[[Page 5303]]

be exported to the United States will be inspected; areas with wild or

backyard avocado trees will be surveyed as well. Within each registered

orchard, the APHIS personnel supervising the surveys will ensure that

the survey sites are randomly selected to provide a reliable means of

detecting uniform or spotty distributions of pests within each orchard.

(To make that requirement clear, we have added the words ``randomly

selected'' to Sec. 319.56-2ff(c)(1)(ii) in this final rule to describe

the selection of survey sites within each orchard.)

Comment: The proposed regulations call for at least 300 hectares of

each municipality to be surveyed for seed weevils and seed moths at

least annually. Have any of those surveys been conducted yet? APHIS

should have conducted its own survey to determine the municipalities to

be free of the avocado seed pests and fruit flies before publishing the

proposed rule.

Response: Seed pest surveys have been conducted routinely by

Sanidad Vegetal for its own programs over the past several years, but

the surveys called for by the regulations have not been conducted yet

because Sanidad Vegetal and APHIS do not know which municipalities and

orchards will register to participate in the avocado export program.

When the work plan is submitted and the participating municipalities

and groves are identified, APHIS will be directly involved with Sanidad

Vegetal in the monitoring and supervision of the surveys.

Sanidad Vegetal Avocado Export Program

Comment: APHIS claims in the proposed rule that over 5 million

kilograms of avocados have been exported to Japan during the last 3

years under the Sanidad Vegetal Avocado Export Program with no recorded

interceptions of the 8 pests of concern. APHIS failed to mention,

however, that one quarter of all Mexican avocado shipments to Japan

were fumigated after live pests were discovered. In addition, the

Japanese inspectors do not routinely cut fruit as part of their

inspection process. Finally, Japan and the other countries to which

Mexican avocados are exported do not have domestic avocado industries,

so there is significantly less risk for those countries from the start.

Response: It is Japanese plant protection policy to fumigate an

imported commodity from any country when any live organism is found--

regardless of the organism's quarantine or pest status--so it is not

accurate to characterize the fumigation of Mexican avocados by Japan as

being solely in response to the detection of live pests. What is of

primary importance is the fact that the Japanese have not detected the

presence of any of the eight pests of concern to APHIS. APHIS did not

claim that Japanese plant protection officials cut fruit as part of

their routine inspection. The Japanese have sampled and carefully

examined approximately 50,000 avocados over the last 3 years, cutting

the fruit if external signs of pests indicate the need to do so.

Finally, there is less risk posed to a country without a domestic

avocado industry, but only in terms of avocado-specific pests; such a

country would still seek to identify and mitigate, as necessary, the

risks presented by other pests such as Anastrepha spp. fruit flies.

Orchard and Grower Requirements

Comment: Under the proposed regulations, APHIS would allow an

orchard to continue shipping even after more than one Anastrepha spp.

fruit fly is discovered during a 30-day period, provided malathion bait

sprays were applied. The proposed rule states that this protocol is

similar to those used in Texas and Florida; however, Florida orchards

are eliminated from their export program if two Caribbean fruit flies

are discovered in an orchard. Why is there a disparity?

Response: In the proposed rule, we stated that the procedures for

fruit fly trapping, increased trapping in response to a fruit fly

detection, and pesticide treatments in response to additional

detections in the Mexican avocado program were similar to the

procedures used by APHIS in citrus fruit production areas of Florida

and Texas where Anastrepha spp. fruit flies exist. The similarities can

only carry so far, however, when there are differences in the pest of

concern, the susceptibility of the commodity to infestation, or both.

Accordingly, the program response to the capture of Caribbean fruit

flies (Anastrepha suspensa) in a Florida citrus grove differs from the

program response for the capture of Anastrepha ludens, A. serpentina,

or A. striata in a Mexican avocado grove. APHIS believes that the

systems approach used in each case, although different, adequately

reduces the risk to an insignificant level in their respective pest

situations.

Comment: The proposed regulations would require trapping for

Anastrepha spp. fruit flies throughout the year in production areas.

Research shows that Hass avocados are not fruit fly hosts; therefore,

trapping for fruit flies should not be required in avocado production

areas. If the requirement is maintained, Mexican avocados should be

allowed entry into the United States without seasonal or geographic

restrictions.

Response: We disagree with the commenter's contention that fruit

fly trapping is unnecessary. Although we do believe that Hass avocados

still on the tree are non-preferred hosts for Anastrepha spp. fruit

flies, we nonetheless believe that it is prudent to require trapping in

the production areas to allow us to monitor the population levels of

the fruit flies. Significant increases in fruit fly populations in the

production areas would increase pest pressure on the avocados, which

would necessitate a reassessment or adjustment of the program's fruit

fly risk mitigation measures. We continue to believe that the fruit fly

trapping, along with the seasonal and geographic restrictions and the

other elements of the program, are necessary to provide for the safe

importation of avocados from Mexico.

Comment: The Anastrepha spp. trap density of 1 trap per 10 hectares

is too low for effective monitoring. The biological reality is that

adult fruit flies would move between various hosts in the region as

different hosts become more or less attractive for oviposition. A

proper regional trapping program should be established that includes

buffer areas around orchards. Also, the attraction range of McPhail

traps is small--a few feet or meters--compared to other trap types.

Relying on traps of this type and trap densities at this low a level

could allow fruit fly population levels to increase significantly

without detection.

Response: The Anastrepha spp. fruit fly trapping is intended to

indicate whether fruit fly populations are present in production areas,

rather than in areas where wild or alternative host material may be

grown, which is why the trapping is to be conducted in the orchards. We

believe that the required trap density of 1 trap per 10 hectares will

be sufficient to indicate the presence of fruit fly populations in the

orchards. In the United States, the national detection protocol for

Anastrepha ranges from 1 trap per 10 square miles to 5 traps per square

mile; the Rio Grande Valley and Florida citrus protocol for Anastrepha

ranges from 5 to 15 traps per square mile. The density required in the

Mexican orchards--1 trap per 10 hectares--works out to approximately 25

traps per square mile, which is the same density required to maintain

the fruit-fly-free zone in the Mexican State of Sonora. With regard to

the type of traps used, we believe that some of the other traps

currently available may be comparable to the McPhail trap, but none are

better for monitoring for Anastrepha fruit flies.

[[Page 5304]]

Comment: Field trapping data can, and likely will, be modified to

get the ``right'' answer.

Response: APHIS will be directly involved with Sanidad Vegetal in

the monitoring and supervision of all required activities in Mexico,

including the trapping. We believe this routine supervision and

monitoring will discourage any tampering with trapping data, especially

considering that an orchard or even an entire municipality could be

subject to suspension or expulsion from the export program if caught

falsifying trapping data. Further, trained APHIS personnel will be

present in the municipalities, orchards, and packinghouses throughout

the growing season and harvest and would thus be in a position to

notice the discrepancies between falsified data and actual conditions.

Comment: The proposed regulations call for certain actions to be

taken if a fruit fly is trapped in an orchard, but the protocol for the

number of malathion treatments to be used and when export shipments

could be resumed in relation to fruit fly finds is unclear.

Additionally, nothing is said with regard to actions that would be

taken in the event of fruit fly larvae being found in avocado fruit.

Response: As stated in the proposed rule and in this final rule,

the trapping of a single fruit fly in an export orchard will require

the deployment of at least 10 additional traps in the 50-hectare area

surrounding the trap in which the fruit fly was found, and any

additional finds within 30 days in the 260-hectare area surrounding the

first find will necessitate the application of malathion bait

treatments in the affected orchard in order for the orchard to remain

eligible to export avocados to the United States. Exports from the

orchard would not be suspended based on fruit fly finds alone, so the

resumption of export shipments in relation to fruit fly finds is not

addressed in the regulations. If, however, the grower failed to apply

malathion bait treatments when required, the orchard would lose its

export certification and the grower would have to requalify for that

certification before exports from the orchard could resume. The

specific protocol for the number of malathion treatments that would

have to be applied in the orchard is not spelled out in the

regulations; rather, the applicable protocols would be detailed in the

annual work plan prepared by Sanidad Vegetal and approved by APHIS that

details the activities that Sanidad Vegetal will carry out to meet the

requirements of the regulations. The detection of fruit fly larvae in

avocado shipments at the packinghouse or during subsequent inspections

will automatically result in the rejection of the infested shipment

based on its failure to meet the requirement for freedom from pests and

will trigger an evaluation of the export program.

Comment: Under the proposed regulations, APHIS would allow an

orchard to continue shipping even after more than one Anastrepha spp.

fruit fly is discovered during a 30-day period, provided malathion bait

sprays were applied. The discovery of additional flies found within 1

month, or preferably one life cycle, should require, in addition to

malathion and bait treatments, the suspension of any exports until 30

days or, again, preferably one life cycle, has passed with no new

detections. This would help assure that any fruits that might contain

fruit fly eggs or larvae are not shipped.

Response: We believe that the poor Anastrepha host status of Hass

avocados, along with the application of malathion bait treatments,

increased trapping, lower wintertime fruit fly activity, and the

required post-harvest safeguards makes it unnecessary to suspend

exports from a grove based on the trapping of more than one fruit fly

within a 260-hectare area centered within the grove.

Packinghouse Requirements

Comment: The proposed rule would require 250 avocados per shipment

to be selected, cut, and inspected at the packinghouse prior to the

culling process. To reach a 95 percent confidence level of detecting a

1 percent infestation rate, at least 300 avocados should be inspected.

Response: We agree with the commenter. Depending on the size of the

fruit and the number of field boxes, the size of a shipment could range

between 1,000 and 4,000 avocados; hypergeometric tables indicate that

the sample size needed to reach the 95 percent confidence level of

detecting a 1 percent infestation would vary between 258 and 288 fruit.

Therefore, we have changed the required sample size in Sec. 319.56-

2ff(c)(3)(iv) to 300 fruit.

Comment: No size is given for a ``shipment,'' yet the proposed

regulations say to cut 250 fruit per shipment in the packinghouse prior

to the culling process. With a large shipment, cutting 250 fruit could

yield a near-zero confidence level of detecting 1 percent or greater

infestation. Sample size must bear some relationship to the total lot

size.

Response: As noted in the previous response, the size of a shipment

could vary between 1,000 and 4,000 avocados, and hypergeometric tables

indicate that a sample size of 288 avocados would be sufficient to

detect a 1 percent infestation in a shipment of 4,000 avocados with 95

percent confidence. Because we will require 300 avocados to be sampled

from each shipment, and because increasing the sample size above that

level will not significantly increase the statistical probability of

detecting a 1 percent infestation, we have not made any changes in

response to that comment.

Comment: It is not unreasonable to expect that some growers in

Mexico will take avocados from non-certified groves to a certified

grove or an export packinghouse and attempt to pass the avocados off as

having been grown in a certified grove. What safeguards will be in

place to prevent this from happening?

Response: As stated in the proposed rule and in this final rule, a

finding of any of the avocado seed pests Heilipus lauri, Conotrachelus

aguacatae, C. perseae, or Stenoma catenifer in a municipality during an

annual pest survey, orchard survey, packinghouse inspection, or other

monitoring or inspection activity will result in the municipality's

loss of its pest-free certification and the suspension of avocado

exports from that municipality until APHIS and Sanidad Vegetal agree

that the pest eradication measures taken have been effective and that

the pest risk within that municipality has been eliminated. Similarly,

a finding of the stem weevil Copturus aquacatae during an orchard

survey or in a packinghouse will result in an orchard losing its export

certification for the entire shipping season of November through

February. Because avocado fruit from non-certified groves presents a

greater pest risk than does fruit grown in certified groves, we believe

that it is unlikely that the growers and packers in an approved

municipality would allow their entire export operation to be

jeopardized by allowing potentially infested fruit from non-certified

orchards to be commingled with their export-quality fruit. In addition

to that purely economic disincentive, APHIS and Sanidad Vegetal

inspectors will also be present in the municipalities, orchards, and

packinghouses during the shipping season to ensure that all

requirements of the regulations are being observed.

Comment: It will be difficult for inspectors in packinghouses or at

the border to detect the presence of stem weevils in avocados once the

fruit has been washed because washing removes the white residue or

``sugaring'' that is

[[Page 5305]]

found on the fruit when stem weevils are present.

Response: Under the inspection system contained in the proposal and

in this final rule, packinghouse inspection would occur after the fruit

has been removed from the field boxes and before the fruit has been

washed, so any white residue would still be visible. However, detecting

the presence of stem weevils after washing is also possible with proper

training, as is evidenced by the hundreds of instances in which APHIS

inspectors at the El Paso, TX, border crossing have detected the pest

in avocados confiscated from smugglers.

Shipping Requirements and Restrictions

Comment: Illinois should be eliminated from the list of approved

States because of the large number of terminal markets in Chicago that

regularly ship produce to unapproved States. It would be too difficult

to prevent Mexican avocados from being shipped to unapproved States

from Chicago.

Response: The fact that a distributor in one State may deal with a

distributor in another State was not a significant consideration in the

compilation of the list of approved States. Certainly, any distributor

in any State who was determined to transport avocados outside of the

approved States could likely do so, be he in Maine or Illinois.

Illinois and the other approved States were requested as markets by

Mexico because the cold winter climate and general unsuitability to

tropical pest infestation of those States offered an additional

safeguard for the proposed export program, reasoning with which APHIS

agreed. Distributors in States on the southern and western periphery of

the approved area are likely to deal with customers in neighboring

States; if those States were eliminated from the list of approved

States, we would simply be left with another group of States that

border on non-approved States.

Comment: Ports of entry in Texas should not be limited to those

listed in the proposed rule; rather, APHIS should issue permits that

would be valid for multiple ports in order to preserve competition.

Response: The Texas ports of entry were selected because they are

staffed by APHIS inspectors who are experienced with dealing with

avocado shipments. We believe that the seven Texas ports of entry

listed in the regulations will be adequate to meet the needs of

importers who wish to receive their products through Texas. If there is

a demonstrated need for additional ports of entry in Texas or

circumstances otherwise warrant the addition of new ports of entry for

Mexican avocados, such an addition to the list of ports would have to

be proposed as part of a future rulemaking.

Comment: The proposed rule would require the avocados to be moved

through the United States by air or in a refrigerated truck or rail

car, as temperature is critical to the suppression of these known

pests. I would think a temperature recording device showing that the

avocados have been held under refrigeration at 40 degrees through the

transporting period would be mandatory. I see no reason for a

refrigeration requirement without a temperature and temperature

recording requirement.

Response: The cooler temperatures in Michoacan and the cold

temperatures in the approved States played a role in our assessment of

pest risk, but the requirement for refrigerated trucks, containers, or

rail cars was not specifically identified as a mitigating measure in

the supplemental pest risk assessment or in the risk management

analysis. By the time the avocados have entered the United States,

keeping the temperature of the fruit low during transport contributes

as much to maintaining fruit quality as it does to suppressing possible

pest activity. The importer of the fruit would certainly expect that

the fruit would be in the best possible condition upon its arrival in

an approved State, and the person transporting the fruit would seek to

meet that expectation. Therefore, we do not believe it is necessary for

APHIS to require that temperature logs be maintained by the person

transporting avocados imported into the United States from Mexico.

Comment: How will APHIS ensure that shipments of avocados are not

diverted to non-approved States during transit?

Response: The avocados will be required to travel under a bond

posted by the importer with the U.S. Customs Service. The bond serves

to guarantee that the shipment will be delivered intact to the

destination listed on the permit issued for its importation; if the

shipment does not arrive at its destination, the fact that the in-bond

papers have not been closed out will serve to notify Customs and APHIS

that the permit requirements have been violated. Persons violating the

conditions of the permit and the in-bond agreement are liable to

forfeiture of the bond and significant civil and criminal penalties.

Comment: The shipping corridor should not extend as far to the

north as was proposed; there are too many routes leading west in the

northern area of the corridor.

Response: We believe that the routes that lead north and east from

El Paso, TX, would likely be used by shippers, especially those with

destinations in the western portion of the approved States. As noted in

the response to the previous comment, significant penalties can be

assessed on shippers who fail to observe the conditions of the permit.

Comment: Nogales, AZ, and El Paso, TX, should be eliminated as

ports of entry for Mexican avocados bound for the northeastern United

States. These ports are so far west that diversion of shipments to the

high-demand California markets would be likely.

Response: Nogales and El Paso are each situated at the northern end

of a major north-south Mexican highway and are significant hubs for

U.S./Mexican trade. These ports are staffed with APHIS personnel

experienced with handling avocado shipments and are currently used as

ports of entry for avocados and other restricted products such as

citrus fruit and mangoes that are moving through the United States to

destinations outside the United States under the plant quarantine

safeguard regulations in 7 CFR part 352. The permit and bond agreement

under which the avocados will be shipped will clearly delineate the

areas through which the avocados may be moved and, as noted in the

responses to the previous two comments, significant penalties can be

assessed on shippers who fail to observe the conditions of the permit.

Inspection

Comment: Inspection at the port of first arrival is a weak link in

the systems approach. Given the risk presented, an inspection scheme of

closer to 100 percent would be more appropriate than the current plan.

Response: Inspection at the port of first arrival is intended to

accomplish two goals. First, inspectors check the documents

accompanying the shipment to ensure that the avocados are from an

approved orchard and were processed in an approved packinghouse and are

accompanied by a phytosanitary certificate. The inspectors also ensure

that the limited distribution statement appears on all boxes, that a

U.S. Customs Service bond has been secured for the shipment, and that

the in-bond papers indicate that the shipment is consigned to an

importer in an approved State. Second, the inspectors will select a

sample of fruit from each shipment and carefully cut and inspect those

avocados to verify their pest-free status. Inspection at the port of

first

[[Page 5306]]

arrival is essentially a redundant safeguard that serves to verify that

all the regulatory requirements applicable to the importation of the

avocados have been met.

Comment: Inspections are likely to be negatively impacted by the

numbers of boxes coming through.

Response: Given the number of ports of entry and the expected

volume of imported Mexican avocados, we do not believe that APHIS

inspectors at the ports of entry will be faced with an overwhelmingly

large number of shipments. In all cases, shipments of avocados being

offered for entry into the United States will be inspected in

accordance with the regulations.

Comment: The proposed regulations state that the avocados, upon

arrival at the terminal market in the northeastern States, are subject

to inspection. I would think an inspection would be mandatory and

should reflect temperature and fruit condition on arrival.

Response: As noted in the response to the previous comment, we will

inspect all shipments of avocados offered for importation into the

United States from Mexico. APHIS personnel are not routinely assigned

to terminal markets, so we cannot require that an additional inspection

be conducted when the avocados arrive at their destination. Under the

Federal Plant Pest Act (FPPA), APHIS does have the authority to inspect

the avocados at the port of first arrival, at any stops in the United

States en route to the northeastern States, and upon arrival at the

terminal market in the northeastern States; the regulations in

Sec. 319.56-2ff(i) reflect that authority.

Other Comments

Comment: The proposed rule is silent with regard to issues of

liability, which is a matter that could affect many businesses. For

example, a distributer cannot police the product once it has been sold,

but there are distributors in the approved States who routinely do

business with customers who operate both inside and outside of the

approved States. To the extent that there is potential enforcement

action against wholesalers, brokers, and distributors, it should be

clear as to the penalties for violating the regulations.

Response: Just as is the case with all apparent violations of APHIS

regulations, the Agency's Regulatory Enforcement staff would examine

the case and conduct an investigation to ascertain the facts of the

case. Subsequent actions could range from warnings to civil penalties

to recommendations for criminal prosecution, depending on the facts of

each particular case.

Comment: There is a basic conflict of interest between APHIS' new

mandate to facilitate international (import) trade and its historical

mandate to prevent the introduction and establishment of exotic pests.

The proposed rule is biased toward promoting trade to the detriment of

pest exclusion and is a clear departure from established APHIS

protocols for pests with major potential impact such as Anastrepha spp.

fruit flies.

Response: APHIS' primary responsibility with regard to

international import trade is now, and has been for many years, to

identify and manage the risks associated with importing commodities.

Because, as we have already noted, there is no such thing as zero risk

in international trade, reducing risk to an insignificant level is the

only realistic approach. If there is no practical way to mitigate a

particular risk associated with a product, APHIS will prohibit that

product's entry into the United States, as is our right under current

international trade agreements; we have done so in the past and will

continue to do so when warranted. However, when we determine that the

risk can be reduced to an insignificant level, it is our responsibility

under those same trade agreements to make provisions for the

importation of that product. In terms of facilitating trade, APHIS'

role is solely in the area of exports, i.e., working to eliminate

obstacles to the exportation of commodities produced in the United

States. The systems approaches for citrus from Florida and Texas,

apples from Washington, and stonefruit from California that we cited in

the proposed rule are examples of ways that we have found to answer the

pest concerns of our trading partners in order to enable the

exportation of domestically grown fruits and vegetables. Just as we

seek to open foreign markets to our Washington apples or California

stonefruit, however, we must also listen to the requests of other

nations seeking to export their products to the United States.

Comment: Will APHIS provide for monitoring and trapping in the

United States for the fruit flies and seed pests once Mexican avocados

are allowed into the country? Are there procedures for such monitoring?

Response: APHIS already has an established national fruit fly

monitoring program in place, and monitoring for certain other exotic

pests is conducted by Federal and State agencies participating in the

Cooperative Agricultural Pest Survey (CAPS) program. In addition to

these formal programs, the day-to-day observations of homeowners,

growers, and cooperative extension service agents also play a role in

the detection of pests across the country.

Comment: What actions will the Federal government take if pests are

introduced into the United States through the importation of avocados

from Mexico? Will the Federal government pay for pest eradication if

the introduced pests become established? Are there quarantine

treatments available for use in the United States to qualify affected

commodities for interstate movement and export if the introduced pests

become established?

Response: APHIS' Domestic and Emergency Operations staff has

prepared a draft emergency action plan that addresses the Federal

response in the unlikely event that a pest outbreak occurs. As with any

pest outbreak, APHIS would cooperate with any affected States in

assessing the extent of an outbreak, applying mitigative measures to

eliminate the pest if appropriate, and providing for continued

agricultural trade from the area affected by the pest outbreak.

Comment: Due to government-wide budget cuts and frozen or reduced

staffing levels, APHIS will be unable to enforce the proposed

restrictions from the grove in Mexico to the final U.S. consumer. APHIS

states that it would make ``resource adjustments'' to accommodate the

proposed avocado import program, but APHIS officials have acknowledged

that the agency is finding it difficult to meet its current program

demands. Before the proposed rule can go forward, APHIS must

demonstrate that it has sufficient resources to execute its

responsibilities under the proposed system.

Response: As was stated in the proposed rule, import authorizations

will not be provided for Mexican avocados if the level of resources

decreases below the level needed to ensure that all imported regulated

articles are subject to the level of inspection and monitoring

necessary to prevent the introduction of plant pests into the United

States. At the present time, it is difficult to provide the details on

APHIS monitoring and supervision because we do not yet know the number

and total acreage of orchards and the number of packinghouses in

Michoacan that will be participating in the avocado export program. We

can say, however, that APHIS personnel will be present during the

harvest, shipping season, and during critical orchard survey and

trapping activities to ensure that the

[[Page 5307]]

requirements of the regulations are being met.

Comment: I want to have confidence that if this proposal as written

is not followed that immediate corrective action will be taken in

Mexico and the United States. How can domestic growers have confidence

that each element of this complex proposal will be stringently enforced

in Mexico and in the United States? What penalties will be enacted for

failure to adhere to the requirements?

Response: The introductory text of the regulations in Sec. 319.56-

2ff clearly states that fresh Hass avocados may be imported from Mexico

into the northeastern United States only if the importation is

authorized by a permit and only under the conditions set forth in the

regulations; if those conditions are not met, the avocados may not be

imported into the United States.

The growers, packers, and shippers in Michoacan have, at the very

least, a financial interest in meeting the conditions of the

regulations; failure to do so can result in the loss of their ability

to export avocados to the United States for an entire shipping season.

Beyond that, Sanidad Vegetal personnel will be in the production areas

and packinghouses conducting surveys, trapping, and inspections to

ensure that the requirements of the regulations are being met. Finally,

APHIS inspectors will be present in Mexico and will be directly

involved with Sanidad Vegetal in the monitoring and supervision of the

required safeguards.

In terms of penalties that would apply for violations committed in

the United States, the FPPA and the Plant Quarantine Act provide for a

penalty of not more than $5,000 and imprisonment for not more than 1

year for any person who knowingly violates regulations promulgated

under those acts, which is the case with the regulations in this final

rule. Civil penalties of up to $1,000 per violation can be assessed for

other violations of the regulations. In addition, the FPPA gives an

APHIS inspector the authority to seize, quarantine, treat, apply other

remedial measures to, destroy, or otherwise dispose of, in such manner

as he deems appropriate, any product or article moving into or through

the United States in violation of regulations promulgated under the

FPPA.

Comment: Mexico allows the use of pesticides that are not allowed

or strictly controlled in the United States, the residues of which will

be harmful to U.S. consumers.

Response: As we noted in the proposed rule, the U.S. Food and Drug

Administration (FDA) samples and tests imported fruits and vegetables

for pesticide residues. If residue of a pesticide unapproved in the

United States is found in a shipment of imported fruit or vegetables,

the shipment is denied entry into the United States by the FDA.

Comment: APHIS should require that the avocados receive quarantine

treatments such as fumigation, heat or cold treatments, or irradiation

to eliminate the pests of concern while the avocados are still in

Mexico.

Response: There are currently no approved quarantine treatments

available for avocados to eliminate the pests of concern. There is no

established protocol for the irradiation of avocados, and fumigation is

not effective against all the pests, especially the seed weevils.

Procedures such as cold treatment, hot water treatment, or hot forced

air treatment cannot eliminate those seed pests without significantly

degrading the quality of the fruit.

Comment: To comply with the National Environmental Policy Act

(NEPA), APHIS should prepare an environmental impact report that takes

into account the likelihood of pest establishment in growing areas in

California and Florida and the effects that such an infestation will

have, such as increased pesticide usage and the burning of infested

avocado groves. What will the Federal government do to mitigate the

negative impacts of those considerations?

Response: For the proposed rule, those issues were addressed in the

supplemental pest risk assessment (e.g., the likelihood of pest

establishment on pages 23-35 and environmental impacts on page 22). An

environmental assessment and a finding of no significant impact have

been prepared for this final rule.

Response to Petitions

On March 15, 1996, the USDA received a petition from the CAC asking

that the Department: (1) Reopen the administrative record for the

proposed rule for the purpose of receiving newly discovered evidence

obtained by the CAC; (2) hold an additional public hearing to explore

the newly discovered evidence; and (3) stay further administrative

action on the proposed rule pending the outcome of an investigation of

the conduct of a foreign agent of the Michoacan Avocado Commission

(MAC). On April 12, 1996, the CAC notified USDA that it had obtained

additional pest information that would form the basis for a

supplemental petition that would be submitted to USDA after CAC had

completed its analysis of the pest information.

In a letter dated April 17, 1996, the USDA asked the CAC to submit

any substantive information supporting its petition; on April 29, 1996,

the CAC complied with that request by delivering a copy of the pest

survey information on which the March 15 petition was based. In a

letter accompanying the April 29 submission of information, the CAC

notified the USDA that a supplemental petition would be delivered to

the Department the following week. The supplemental petition was

delivered to USDA on May 3, 1996. In that supplemental petition, the

CAC reiterated its request that the Department reopen the

administrative record to receive new pest evidence and to hold an

additional public hearing to explore the new evidence and asked that

the Department require APHIS to prepare a new quantitative pest risk

assessment based on all available data, including the new data

submitted with the supplemental petition. In its May 3 supplemental

petition, the CAC also stated that it would continue to seek additional

data and that any significant new information would be used as the

basis for a new filing to further supplement its petition.

On May 16, 1996, the CAC submitted a new filing in the form of a

letter containing additional information intended to support and

further supplement those first two requests that the USDA reopen the

administrative record, conduct a new quantitative pest risk assessment

based on all available data, and hold an additional public hearing on

the proposed rule. In that May 16 letter, the CAC made the following

additional claims: (1) Chemical treatment programs have failed to

eliminate stem weevils in Uruapan, Michoacan, Mexico, and that orchards

once found free are being reinfested; (2) local agricultural agencies

in Michoacan in charge of field sanitation have not yet complied with

procedures set forth by Mexico's Secretaria de Agricultura, Ganadaria y

Desarollo Rural (SAGDR); and (3) certain packinghouses have been

identified as candidates for handling avocados destined for export to

the United States despite the fact that they are located in areas where

pests are known to be present at high levels.

The CAC filed a third supplement to the March 15 petition on

December 20, 1996, once again requesting that the USDA reopen the

administrative record, conduct a new quantitative pest risk assessment

based on all available data, and hold an additional public hearing on

the proposed rule. This third filing

[[Page 5308]]

contained claims that: (1) Recent surveys show that orchards in

Michoacan--including orchards in Sanidad Vegetal's export program--

contain stem weevils and (2) Mexican avocado growers are withdrawing

from government plant health programs and the regional association of

avocado growers has withdrawn from the MAC.

In its March 15 petition and the May 3, May 16, and December 20,

1996, supplemental filings to that petition, the CAC presented

information pertaining to three areas: The prevalence of pests in

Michoacan; the activities of local, State, and national agricultural

officials in Mexico; and the integrity of the rulemaking process. After

carefully reviewing the petition and supplemental filings, we have

concluded that the evidence offered by the CAC does not warrant our

reopening the administrative record, holding additional hearings,

delaying further administrative action on the proposed rule, or

preparing a new quantitative pest risk assessment. Therefore, we are

denying the CAC petition for the reasons explained below.

First, the CAC stated that the pest survey data it had obtained

show that the fruit fly and weevil populations in Michoacan are

substantially higher than indicated in earlier prevalence data supplied

to USDA by the Mexican government. It follows, the CAC argues, that the

USDA's supplemental pest risk assessment, risk management analysis, and

the safeguards found in the proposed rule are inadequate because they

were primarily based on incomplete pest data that understated the true

level of quarantine pests in Mexico.

The CAC claims in its March 15 petition that results of surveys

conducted between February 1995 and February 1996 contradict APHIS''

conclusion that certain municipalities within the State of Michoacan

qualify as areas of low pest prevalence for the purposes of lifting the

quarantine on Mexican avocados. (Copies of official Sanidad Vegetal

records of the results of those surveys constitute the majority of the

supporting information provided to USDA by the CAC on April 26, 1996.)

The March 15 petition claims that the survey results reflect positive

detection of stem weevils (Copturas aguacatae) in orchards currently

enrolled in the avocado export program administered by Sanidad Vegetal

and that detections occurred in orchards sampled during the November-

December 1995 survey period. The December 20 supplemental filing

repeats those claims based on surveys conducted between June and

November 1996 that reportedly reflect stem weevil detections in export

orchards and orchards that had previously been declared free from that

pest. Similarly, in its May 3 supplemental filing, the CAC offers

copies of official Sanidad Vegetal seed weevil survey records as

evidence that heavy seed weevil infestations exist near Uruapan, which

is one of the municipalities that Mexico has indicated will likely be

offered for consideration as an approved municipality under the avocado

export program described in the proposed rule. Uruapan itself is

threatened with seed weevil infestation, the CAC claims, because

avocados from the infested area are transported without restrictions or

safeguards to packinghouses located in Uruapan. That pest survey

information, the CAC claims, indicates that pest levels in Michoacan

are higher than previously thought and USDA should, therefore, suspend

further action on the proposed rule until new pest risk assessments and

risk management analyses can be conducted. In its May 16 letter, the

CAC further claims that chemical treatment programs have failed to

eliminate stem weevils in Uruapan, Michoacan, thus leaving open the

possibility that stem weevil populations will spread throughout the

orchards of that municipality.

The proposed rule and its supporting documentation were not

predicated on the absence or near-absence of pests throughout the

entire State of Michoacan. APHIS acknowledges that the two small seed

weevils and the stem weevil are known to exist in Michoacan, which is

why the proposed rule contained weevil-specific safeguards to ensure

that any avocados exported to the United States would not be infested

with those pests. Under the program described in the proposed rule, the

detection of a single stem weevil in an orchard would render that

orchard ineligible to export avocados to the United States; the

detection of any one of the seed weevils would render the entire

municipality ineligible. If the seed and stem weevils are present in

the growing areas of Michoacan in ``readily detectable numbers,'' as

described in the petition, we are confident that surveys conducted or

supervised by APHIS employees would detect those pests and prevent

infested orchards and municipalities from being eligible to export

avocados to the United States. Moreover, the export eligibility granted

to orchards and municipalities must be renewed each year, and that

eligibility may be withdrawn at any point during the November through

February shipping season based on the detection of a stem weevil, in

the case of an orchard, or a seed weevil, in the case of an entire

municipality.

In its May 16 letter, the CAC asserts that 4 of the 15

packinghouses identified by SAGDR as ``candidates'' for packing and

exporting avocados to the United States are located in areas where

quarantine pests are present, and another 3 of the candidate

packinghouses are located in an area where pest population levels are

unknown due to operational problems within the local agricultural

agency. As noted above, the proposed rule did not assume pest freedom

or near-freedom in Michoacan; the system described in the proposed

rule, therefore, contains several layers of protection to prevent the

potential infestation of harvested fruit during its movement to and

handling in packinghouses. Under the program described in the proposed

rule, an export packinghouse must be listed on the annual work plan

prepared by Sanidad Vegetal and approved by APHIS, so if we had any

concerns about the location, condition, or operation of a particular

packinghouse we could resolve those concerns as part of the approval

process for the work plan. In order to prevent pests from entering the

work areas where fruit is inspected, sorted, cleaned, and prepared for

shipment, an export packinghouse would have to meet specific conditions

regarding its construction and operation and would be prohibited from

handling fruit from anywhere but a certified export orchard. The

avocados themselves, when being moved from the export orchard to the

packinghouse, would have to be protected from fruit fly infestation. It

is important to note that the packinghouses identified by SAGDR are

``candidates'' for participation in the avocado export program; any

packinghouse that failed to meet all of the requirements of the program

would not qualify for participation in the program.

The CAC reports in its March 15 petition that it had obtained

extensive and recent fruit fly trapping records from Tancitaro, Mexico,

from trapping conducted between September 1995 and February 1996; the

CAC did submit official Sanidad Vegetal fruit fly trapping records as

supporting information for that petition. The petition notes that much

of that trapping occurred during months that the proposed rule would

allow avocados to be imported into the United States. The petition

further maintains that fruit flies were found in each of the 33

orchards that were monitored, even though the orchards were extensively

treated to control fruit flies.

[[Page 5309]]

The CAC is inaccurate in its claims that the fruit fly finds

reflected in the data ``occurred despite a rigorous and documented

program of chemical treatment to control fly infestations.'' Mexican

agricultural officials have long claimed that the Hass avocado is not a

fruit fly host, so there is no ``rigorous * * * program of chemical

treatment'' to eliminate fruit flies in avocado groves in Michoacan.

Although APHIS does not accept the Mexican claim that Hass avocados are

not attacked by fruit flies, we do believe that the Hass avocado is a

non-preferred host while still on the tree. Throughout this rulemaking,

we have acknowledged that Anastrepha spp. fruit flies are present in

Michoacan and could attack harvested Hass avocados and fruit that has

fallen from the trees, which is why the proposed rule contained

safeguards to reduce the risk presented by those pests. The proposed

requirements, such as surveillance trapping, increased trapping in

response to a single fruit fly detection, malathion bait treatments,

covering of harvested avocados, fly-proof screens on packinghouses, and

inspections, work together with the non-preferred host status of Hass

avocado fruit attached to the tree to eliminate any significant risk

from Anastrepha. The repeated fruit fly finds portrayed in the CAC's

March 15 petition would not occur under the program described in the

proposed rule, which requires trapping density to be increased if a

single Anastrepha spp. fruit fly is trapped in an orchard and further

requires malathion bait sprays to be applied if a second Anastrepha

spp. fruit fly is trapped within 30 days and 260 hectares of the first

finding.

In its petition, the CAC correctly points out that importation of

Hass avocados from Mexico is possible only if the area of origin can be

certified pest free for the three species of seed weevil and the seed

moth and can be shown to be an area of low pest prevalence for the stem

weevil and fruit flies. The CAC then asserts that its newly obtained

data indicate that two of the municipalities in Michoacan cannot

properly be characterized as areas of low pest prevalence for fruit

flies or the stem weevil. As noted above, a municipality or orchard

could gain approval to export avocados to the United States under the

program described in the proposed rule only after extensive field

surveys conducted or supervised by USDA employees demonstrate

municipality freedom from the three species of seed weevils and the

seed moth and orchard freedom from the stem weevil. That being the

case, some municipalities and orchards in Michoacan may well be

ineligible for participation in the program due to the presence of some

or all of those pests. That potentiality does not, however, invalidate

the entire program, as the CAC seems to suggest. The field surveys are

intended to demonstrate that an area is free of certain pests; if that

freedom cannot be demonstrated, the importation of avocados from that

area will continue to be prohibited.

The second area discussed in the petition and the supplemental

filings is the activities of local, State, and national agricultural

officials in Mexico. One aspect of this is the CAC's claim that APHIS

may be relying on incomplete pest data that understate the true level

of quarantine pests in Michoacan. In its March 15 petition, the CAC

claims that the pest survey and trapping data that the Mexican

government supplied to APHIS are incomplete because the Mexican

government decided to withhold one or more positive pest survey reports

from the data provided to the USDA due to pressure applied by a ``well-

connected grower.'' Judging from the information related in the CAC's

March 15 petition and an accompanying declaration, however, the claim

that information was withheld to mollify a powerful grower appears to

be a mischaracterization of the nature of the incident. The information

submitted by CAC shows that a state-level inspector detected weevils

(it appears the petition is referring to stem weevils, although the

species is not identified) in a grove, the grower sought to have the

pest finding overturned or suppressed, but Sanidad Vegetal determined

that an infestation did exist and should be documented. The petition

hints that there is something unscrupulous about Sanidad Vegetal's

subsequent decision not to forward the records for that orchard to the

USDA for the purposes of precertifying the orchard for the proposed

export program. However, if the records show that the orchard contains

stem weevils that would render it ineligible for participation in the

proposed export program, it would serve no purpose to pass those

records on to the USDA with a request that the orchard be approved for

participation in the proposed export program. Obviously, the orchard

would not qualify for the program.

In its May 3 supplemental petition, the CAC claims that Mexico made

a ``conscious decision to withhold damaging pest survey findings from

the USDA.'' The CAC bases that claim on its interpretation of

correspondence between APHIS and Sanidad Vegetal, particularly an

August 19, 1994, request for data from APHIS and Sanidad Vegetal's

September 23, October 10, and October 11, 1994, responses to that

request. Once again, the CAC points out that Sanidad Vegetal did not

forward all available survey results and other pest data from areas in

which seed weevils, stem weevils, or fruit flies had been detected and

portrays that lack of data as a deliberate deception on the part of

Sanidad Vegetal. APHIS is well aware that those pests are present in

Michoacan, and Sanidad Vegetal has not attempted to portray the

situation otherwise; in fact, Sanidad Vegetal officials have taken

visiting APHIS representatives into infested avocado groves in

Michoacan to demonstrate methods of detecting seed weevils and stem

weevils. In the August 1994 letter cited by the CAC, APHIS was seeking

additional information to help it determine whether an export program

based on the freedom of certain orchards and municipalities from seed

and stem weevils would be feasible, and the data supplied by Sanidad

Vegetal were responsive to that request.

In its May 16 letter, the CAC contends that operational problems

``plague'' SAGDR's local field sanitation agencies. To support that

contention, CAC points to a letter from a SAGDR district chief to one

of his district's local plant health boards. The letter, dated April

24, 1996, admonishes the local board for failing to submit any monthly

activity reports since the board's formation on September 19, 1995, and

informs the board that it faces the risk of being dissolved unless the

reports are submitted promptly. The CAC claims that the letter, coupled

with what is described by a CAC contact in Mexico as grower mistrust of

government agencies, casts doubt on Mexico's ability to oversee the

pest survey, trapping, and registration activities described in the

proposed rule. Under this final rule, the personnel conducting the

trapping and pest surveys must be hired, trained, and supervised by

Sanidad Vegetal or by the Michoacan State delegate of SAGDR, and APHIS

will be directly involved with Sanidad Vegetal in the monitoring and

supervision of those activities. The trapping and pest surveys are

integral aspects of the avocado export program; if the scope and

conduct of those activities in a particular municipality did not meet

with APHIS' approval, the municipality, and all the orchards within

that municipality, would be ineligible for participation in the

program.

In its December 20 supplemental filing, the CAC contends that

substantial numbers of Mexican avocado growers

[[Page 5310]]

are abandoning the Mexican government's plant health programs and that

the regional association of avocado growers in Michoacan has withdrawn

from the MAC. These developments, the CAC claims, provides evidence

that the plant health infrastructure in Mexico is weakening at all

levels, which will result in major problems that will threaten U.S.

agriculture if the importation of Mexican avocados is authorized. We

certainly agree that grower participation in government plant health

programs is an important element in the control and prevention of plant

pest problems in the avocado-producing municipalities of Michoacan,

which is why the regulations in this final rule require that each

orchard and grower wishing to export avocados to the United States must

be registered with Sanidad Vegetal's avocado export program and must be

listed as an approved orchard or an approved grower in the annual work

plan provided to APHIS by Sanidad Vegetal. Therefore, any Michoacan

growers who abandon the Mexican government's plant health programs will

simply not be eligible to export avocados to the United States.

Similarly, the regulations also clearly state that avocados may be

imported only if the Mexican avocado industry association representing

Mexican avocado growers, packers, and exporters--i.e., the MAC--has

entered into a trust fund agreement with APHIS to pay in advance all

estimated costs that APHIS expects to incur through its involvement in

the trapping, survey, harvest, and packinghouse operations required as

safeguards in Mexico. A document submitted by the CAC with its December

20 filing appears to indicate that dissension within the MAC has led a

regional growers group to temporarily withdraw from the MAC. If that is

indeed the case, it appears that some accommodation would have to be

reached within the MAC for that organization to remain a viable entity

capable of executing a trust fund agreement with APHIS. Without a trust

fund agreement, avocados may not be exported under the regulations in

this final rule.

Report language attached to the Department's 1997 appropriations

bill directed the Secretary of Agriculture to review recent evidence of

pest infestation in Mexico--i.e., the pest-related information

submitted to APHIS by the CAC in its petition and supplemental

filings--and determine whether the original data that APHIS relied upon

is sound and complete. As discussed above, we have thoroughly examined

all of the information submitted by the CAC and have determined that

the original data upon which APHIS relied is sound and complete and

serves as a reliable basis for this rule and the risk-mitigating

safeguards it contains. Further, the pest surveys and fruit fly

trapping required by this rule as a prerequisite to the approval of

municipalities and orchards for participation in the avocado export

program will provide the ongoing APHIS-supervised pest monitoring

mentioned in the report language.

The third and final area, which is discussed only in the March 15

petition, is the CAC's claim that there is evidence to suggest that a

foreign agent for the MAC engaged in activities that violated Federal

conflict-of-interest laws and Federal lobbying laws. The petition also

states that the same agent had substantive ex parte communications with

USDA personnel prior to and after the Department's decision to issue

the proposed rule. The petition contends that the illegal activities of

the agent and USDA's apparent practice of permitting substantive ex

parte communication between USDA and the supporters, but not the

opponents, of the proposed rule have ``irreparably tainted the

integrity and propriety'' of the rulemaking proceeding.

APHIS believes that the allegations in the petition regarding the

agent's employment with the MAC and the nature of a contractual

arrangement the agent may have had with the MAC do not bear upon on the

integrity of this rulemaking proceeding. APHIS acknowledges that if the

allegations are shown to be supported and it is determined that the

agent violated conflict-of-interest laws or contracted for a ``success

fee'' for lobbying on the behalf of a foreign client in violation of

lobbying laws, those actions may indeed have serious ramifications for

the agent. It does not follow, however, that the alleged activities of

a single interested party would affect the manner in which USDA has

conducted this rulemaking proceeding. Indeed, USDA was unaware of the

alleged contractual and other arrangements until the allegations were

made in the petition. The fact of the matter is that the alleged

arrangements had absolutely no effect on the rulemaking proceeding or

the decisions reached by APHIS with regard to this final rule.

A review of the calendars and daily activity logs of Department

officials indicates that the petitioner's contention that USDA engaged

in prohibited ex parte communication with the agent while denying

requests for meetings from opponents of the proposed rule is incorrect.

Those records indicate that courtesy visits were paid to USDA officials

by both opponents and supporters of the proposed rule following the

proposed rule's publication. Any written materials given to USDA

officials during those visits were placed in the public rulemaking

record, and those officials report that substantive issues pertaining

to the proposed rule were not discussed.

Therefore, based on the rationale set forth in the proposed rule

and in this document, we are adopting the provisions of the proposal as

a final rule with the changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The rule

has been determined to be significant for purposes of Executive Order

12866, and, therefore, has been reviewed by the Office of Management

and Budget.

In accordance with 5 U.S.C. 604, we have performed a Final

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

impact of this rule on small entities.

This rule will allow fresh Hass avocado fruit grown in approved

orchards in approved municipalities in Michoacan, Mexico, to be

imported into the United States under certain conditions designed to

prevent the introduction and dissemination of plant pests. In the July

1995 proposed rule, we invited comments concerning the potential

effects on small entities of the proposed Mexican avocado importation

program and noted that we were particularly interested in determining

the number and kind of small entities that may incur benefits or costs

from implementation of the program. Some commenters--mostly owners and

employees of produce markets or retail operations, customs brokers, and

representatives of other agricultural interests such as apple and

citrus growers, packers, and shippers--stated that they expected to

benefit from the proposed avocado import program through increased

business or expanded export opportunities for other U.S. agricultural

products.

Many other commenters took the opposite view, however. Slightly

more than 60 percent of the 2,080 individuals who commented on the

proposed rule identified themselves as working in the domestic avocado

industry, either directly as growers, packers, and shippers, or

indirectly as part of their work in associated fields (agricultural

consultants, pest control advisors, nurserymen, etc.). Many of those

commenters believed that they would be

[[Page 5311]]

negatively affected by the proposed avocado import program because of

the wide price disparity between domestically produced avocados and the

less expensive Mexican-origin avocados. Those commenters stated that

they would be unable to compete in the approved States during the

import period and that the low price of the Mexican product would

encourage illegal transshipment of the Mexican avocados to areas

outside the approved States. Several commenters criticized the initial

regulatory flexibility analysis for failing to pay sufficient attention

to Florida avocado production.

The initial regulatory flexibility analysis published in the

proposed rule noted that we did not at that time have all the data

necessary for a comprehensive analysis of economic effects, and thus

invited comments concerning potential effects. The initial regulatory

flexibility analysis was based on data available to us at the time it

was written, and came to some broad conclusions about approximate

effects based on a simple model employing some basic data about supply

and price gleaned from the overall U.S. and Mexican avocado markets.

Among the preliminary conclusions was a likely increase in the

availability of fresh avocados to U.S. consumers by about 12 percent,

reducing the average at-the-farm price for U.S. avocados to about $0.42

per pound. However, as several commenters pointed out, the marketing of

avocados in the United States is very complex, with effects arising

from established practices in the food marketing sector and the

patterns of the wholesale and retail distribution structure. Commenters

also pointed out that an accurate analysis should focus on price and

supply data that are specific to the months when Hass avocados would be

allowed entry, and should be based on the average values for those

months over a multi-year period.

We have taken these and other comments into account and employed

additional data supplied by commenters. We have obtained data on

Mexican and U.S. production and exports covering a 5-year period (1990-

1994). As a result, this final regulatory flexibility analysis examines

more complex economic scenarios than the initial regulatory flexibility

analysis and provides a more detailed analysis. By using improved

models with more extensive, multi-year data, we have examined effects

in both approved and non-approved States that take into consideration

several possible reactions by both U.S. and Mexican businesses. We have

provided analyses based on a range of U.S. imports of Mexican avocados.

We have also examined several different possible responses by U.S.

producers, ranging from partial to complete redirection of their

product away from approved States during months when Hass avocados from

Michoacan would be allowed entry.

This rule will directly affect avocado growers, particularly

growers of Hass variety avocados, so its impact will be felt mainly in

California. The United States produced an average of 189,244 tons

1 of avocados per year between 1990 and 1994; of this amount,

California accounted for 91.4 percent, Florida 8.4 percent, and Hawaii

the remaining 0.2 percent. The farm value of U.S. production ranged

from $118 million to $255 million, of which 98 percent was for the

fresh market. There were 7,203 avocado growers in the United States in

1992 (1 in Arizona, 5,973 in California, 604 in Florida, 610 in Hawaii,

and 15 in Texas); 98.5 percent of these operations are considered to be

small entities. (According to the standard set by the Small Business

Administration for agricultural producers, a producer with less than

$0.5 million annually in sales qualifies as a small entity.) California

avocado producers, including small entities, derive a substantial

degree of income from off-farm employment. According to a 1994 report

by the Economic Research Service, 55 percent of operators of California

avocado farms reported working off the farm at least 100 days a year.

Approximately 44 percent reported working off the farm at least 200

days a year.

---------------------------------------------------------------------------

\1\ All tons in this analysis are short tons (2,000 pounds).

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Florida is less likely to be affected because fewer growers there

produce Hass variety avocados; most produce a lower-cost greenskin

variety. In general, if two commodities are substitutable, a change in

the price of one, ceteris paribus, causes a change in the same

direction in the quantity purchased of the other. If the two

commodities have comparable quality and are considered substitutable,

then the differences between their prices would not be large (the

degree of substitutability depends on the cross elasticities of demand

between the two commodities). However, the data show that the prices

received by farmers and the wholesale prices of greenskin variety

avocados, which is the dominant variety grown in Florida, are

substantially lower than prices received for Hass variety avocados. For

example, the price received by avocado growers in California was $0.79

per pound in 1994, while the price received by Florida growers during

the same year was $0.31 per pound. Similarly, the average wholesale

market price for California Hass avocados was $1.72 per pound (average

for Boston, Chicago, Los Angeles, New York, and Philadelphia) during

the third week of December 1995, while the average wholesale price for

the greenskin variety was $0.44 per pound. If the price differential

was the only market signal of preference for the two products, then the

Hass variety would be driven out of the market, but this is not the

case. The wholesale price of the California Hass avocado is $1.96 per

pound in Miami, while the price of the Florida greenskin variety is

only $0.42 per pound.

U.S. exports averaged 11,583 tons between 1990 and 1994, while

imports were about 19,119 tons. Over this period, about 94 percent of

the U.S. production of avocados was consumed domestically. The largest

importer of U.S. avocados is Canada. The other major markets for U.S.

avocados include France, Japan, and the United Kingdom. The largest

suppliers of imports to the United States are Chile and the Dominican

Republic.

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

for approximately 40 percent of world production. An average of 807,000

tons per year was produced between 1990 and 1994. Most of the avocado

production in Mexico occurs in the State of Michoacan, accounting for

approximately 77 percent of the total. The Hass variety accounts for 95

percent of the avocado production in Michoacan. Mexico is also one of

the world's largest exporters of fresh avocados. Exports averaged

22,000 tons per year between 1990 and 1994. The average rate of export

between 1990 and 1994 was about 2.75 percent of production, with the

rest being consumed domestically.

Avocados are shipped from U.S. domestic sources throughout the

year. Florida's peak marketing season is between July and December,

while California's is between March and August. The 19 northeastern

States and the District of Columbia (the approved States) receive

between 12 and 18 percent of the shipments of California avocados

annually. California shipments to the approved States during the period

allowed in this final rule (November through February) account for only

2.3 to 4.6 percent (or about 3,900 to 4,850 tons) of total annual

California avocado shipments. Imports account for about 42 percent of

the supply in the approved States during those months; California

avocados

[[Page 5312]]

account for about 36 percent of the supply in the approved States

during that same period. The remainder, about 22 percent of the supply,

comes from Florida.

Mexican avocados could be sold at substantially lower prices than

California avocados. However, consumer purchases may not be

proportional to price changes, should they occur. Additionally, since

many grocery stores and supermarkets are likely to be carrying avocados

from only one source at any given time, consumers may not have the

option of comparing price and quality of avocados from different areas.

The retail price differentials might not be representative of the

actual cost differences between avocados from the two sources, as

retailers may not mark the exact price differential. This is evidenced

by the small difference in wholesale prices between California Hass and

Chilean Hass avocados. While the import price of Chilean Hass avocados

was only $0.67 per pound, the wholesale price in the six major

northeastern cities was about $1.46 per pound during the third week of

December 1995. The average wholesale price of the California Hass

avocado was $1.72 per pound during the same period. If a similar price

pattern would hold for Mexican Hass avocados, wholesale prices will not

differ as widely between Mexican avocados and others available on the

domestic market as expected by some. The costs associated with illegal

transshipment (e.g., relabeling the product and illegally transporting

it outside the approved States) make it unlikely that price differences

between domestic and Mexican-origin Hass avocados will be great enough

to lead to transshipment of Hass avocados imported under this final

rule.

Allowing importation of Hass avocados from Mexico is expected to

have a variable impact upon domestic entities. The magnitude of the

impact would depend upon the size of the pre-import supply, pre-import

avocado price, and the elasticities of demand. In this final regulatory

flexibility analysis, which was developed, in part, using price and

production data submitted by commenters, two scenarios in which

affected entities may be impacted by various levels of Mexican avocado

imports are examined. In one scenario, California Hass avocado growers,

in reaction to the entry of Mexican imports, redirect a percentage of

the avocados they otherwise ship to markets in the approved States to

markets in non-approved States (Table 1); in the other scenario, we

examine the unlikely situation in which there is a complete redirection

of California Hass avocados from markets in the approved States to

markets in the non-approved States.

Based on data from 1990 through 1994, the average wholesale price

in the approved States during the months of November through February--

the 4 months that avocados can be imported into the approved States

under this rule--was about $1.56 per pound and the available quantity

was about 10,500 tons. The wholesale price and supply were $1.47 per

pound and 26,500 tons, respectively, in the non-approved States. Price

changes in the two scenarios are measured against their average levels.

The level of Hass avocado exports from Michoacan, Mexico, during

November through February is currently about 9,400 tons. The import

levels in the top row of Table 1 reflect a 10, 20, 30, 40, and 50

percent diversion of current Michoacan Hass avocado exports from other

markets to markets in the approved areas of the United States.

Table 1.--The Importation of Hass Avocados From Michoacan, Mexico, to Approved States: Impact in the United

States With a Partial Redirection of U.S. Grown Hass Avocados From Markets in Approved States to Markets in Non-

Approved States (Price Elasticity is -1.07).

----------------------------------------------------------------------------------------------------------------

Percentage of current Michoacan exports diverted to the U.S. market

---------------------------------------------------------------------

10 20 30 40 50

----------------------------------------------------------------------------------------------------------------

Imports (tons)............................ 940 1,880 2,820 3,760 4,700

California Hass avocados diverted to non-

approved States (tons)................... 153 306 459 612 765

Percent change in price:

In the approved States................ (8) (16) (25) (33) (41)

In non-approved States................ (1) (1) (2) (2) (3)

Change in producer surplus (millions of

dollars)................................. (1.37) (2.70) (3.99) (5.24) (6.44)

Change in consumer surplus (millions of

dollars)................................. 3.31 6.86 10.66 14.71 18.98

Total surplus (millions of dollars). 1.94 4.16 6.67 9.47 12.54

----------------------------------------------------------------------------------------------------------------

Table 1 summarizes the estimated economic impacts in the United

States, based on a price elasticity of -1.07, which was estimated using

data provided in comments by the California Avocado Commission.2

The estimated economic impacts result from the entry of imported

Mexican Hass avocados into markets in the approved States and from the

estimated producer losses and consumer gains that would result from a

partial redirection of U.S. grown Hass avocados from markets in the

approved States to non-approved States. For example, a 10 percent

diversion of present Michoacan exports from markets in other countries

to the United States results in a price decrease of 8 percent in the

approved States and a price decrease of 1 percent in the non-approved

States. California producers would lose about $1.37 million, while

consumers would gain about $3.31 million. The net benefit in this

scenario would be about $1.94 million. If a 50 percent diversion of

present Michoacan exports from other markets to the United States were

to occur, there would be a resulting price decrease of about 41 percent

in the approved States and about 3 percent in the non-approved States.

Producers would lose about $6.44 million and consumers would gain about

$18.98 million, resulting in a net benefit of about $12.54 million.

---------------------------------------------------------------------------

\2\ Garoyan, Leon, ``Proposed Rule for the Importation of Fresh

Hass Avocado Fruit Grown in Michoacan, Mexico: An Analysis of the

Impact on California's Avocado Industry,'' Management Research

Associates, August 22, 1995. (Prepared for the California Avocado

Commission (CAC) and attached as Exhibit 30 to the CAC's October 13,

1995, comments on the proposed rule.) The price elasticity of -1.07

was estimated using data from Appendix Table 1 of that report

covering North East and East Central regions of the United States

for the months of November to February between 1986 and 1994.

---------------------------------------------------------------------------

In sum, as a result of the importation of Mexican avocados to the

approved States and partial redirection of domestically grown avocados,

California Hass avocado producers would lose between $1.37 million and

$6.44 million, i.e., about 0.5 percent to 5.4

[[Page 5313]]

percent of their crop's farm value, while consumers in the approved and

non-approved States would gain between $3.31 million and $19 million.

Consumer gains are larger than producer losses in all cases.

In the unlikely scenario where complete redirection would occur,

U.S. producers would abdicate the markets in the approved States to

Mexican imports during the approved import period and would redirect

their supply to markets in non-approved States. In this case, imports

from Mexico would replace California Hass avocados in the approved

States so that the actual supply in those markets would not change, and

thus no impact would be expected in the approved States. The only

impacts would be those in non-approved States. The extent of any actual

decrease in prices would depend to a great degree upon the size of the

price elasticity of demand and magnitude of the change in supply. For

an elasticity of -1.07 and with a 10-percent diversion of present

Michoacan exports from other countries to the United States, the

resulting price decrease is 3 percent in the non-approved States.

California producers would lose $2.31 million and consumers would gain

$2.63 million. The net benefit in this case would be $0.32 million. A

50-percent diversion of present Michoacan exports from other countries

to the United States results in a price decrease of 17 percent.

Producers could lose $11.14 million and consumers could gain $14.03

million in the non-approved States. The net benefit in this case would

be $2.89 million. For lower price elasticities, both losses and gains

are higher. Thus, in the unlikely event of total redirection of

domestically grown Hass avocado from approved States to non-approved

States, California Hass avocado producers could lose between $2.31

million and $11.14 million, i.e. about 0.9 percent to 9.4 percent of

their crop's farm value, while consumers in non-approved States could

gain between $2.63 million and $14.03 million. In all cases, consumer

gains outweigh grower losses.

The only significant alternative to this rule is to make no changes

in the fruits and vegetables regulations, i.e., to continue to prohibit

the importation of fresh avocados from Mexico. Prior to the publication

of the proposed rule that preceded this rule, we had rejected that

alternative because there appeared to be no pest risk reason to

maintain the prohibition on the avocados in light of the safeguards

that would be applied to their importation. In the course of this

rulemaking, we have found no new evidence indicating that the

importation of fresh Hass avocados under the conditions set forth in

this rule will present a significant risk of plant pest introduction.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil

Justice Reform. This rule will allow fresh Hass avocado fruit to be

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

State and local laws and regulations regarding fresh Hass avocado fruit

imported under this rule will be preempted while the avocados are in

foreign commerce. Fresh avocados are generally imported for immediate

distribution and sale to the public, and remain in foreign commerce

until sold to the ultimate consumer. The question of when foreign

commerce ceases in other cases must be addressed on a case-by-case

basis. This rule has no retroactive effect and does not require

administrative proceedings before parties may file suit in court.

National Environmental Policy Act

An environmental assessment and finding of no significant impact

have been prepared for this rule. The assessment provides a basis for

the conclusion that the importation of fresh Hass avocados from

Michoacan, Mexico, under the conditions specified in this rule will not

present a significant risk of introducing or disseminating plant pests

and would not have a significant impact on the quality of the human

environment. Based on the finding of no significant impact, the

Administrator of the Animal and Plant Health Inspection Service has

determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact

were prepared in accordance with: (1) The National Environmental Policy

Act of 1969, as amended (NEPA) (42 U.S.C. 4321 et seq.), (2)

Regulations of the Council on Environmental Quality for implementing

the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA

regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA

Implementing Procedures (7 CFR part 372).

Copies of the environmental assessment and finding of no

significant impact are available for public inspection at USDA, room

1141, South Building, 14th Street and Independence Avenue SW.,

Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday,

except holidays. Persons wishing to inspect copies are requested to

call ahead on (202) 690-2817 to facilitate entry into the reading room.

In addition, copies may be obtained by writing to the individual listed

under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

This final rule contains an information collection requirement that

was not included in the proposed rule. Specifically, this final rule

requires that fruit be labeled with a sticker that bears the Sanidad

Vegetal registration number of the packing house. In accordance with

section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501

et seq.), this information collection requirement has been submitted

for approval to the Office of Management and Budget (OMB). When OMB

notifies us of its decision, we will publish a document in the Federal

Register providing notice of the assigned OMB control number or, if

approval is denied, providing notice of what action we plan to take.

List of Subjects in 7 CFR Part 319

Bees, Coffee, Cotton, Fruits, Honey, Imports, Nursery Stock, Plant

diseases and pests, Quarantine, Reporting and recordkeeping

requirements, Rice, Vegetables.

Accordingly, 7 CFR part 319 is amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

1. The authority citation for part 319 continues to read as

follows:

Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and

2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).

2. A new Sec. 319.56-2ff is added to read as follows:

Sec. 319.56-2ff Administrative instructions governing movement of Hass

avocados from Mexico to the northeastern United States.

Fresh Hass variety avocados (Persea americana) may be imported from

Mexico into the United States for distribution in the northeastern

United States only under a permit issued in accordance with

Sec. 319.56-4, and only under the following conditions:

(a) Shipping restrictions. (1) The avocados may be imported in

commercial shipments only;

(2) The avocados may be imported only during the months of

November, December, January, and February; and

(3) The avocados may be distributed only in the following

northeastern States: Connecticut, Delaware, the District of Columbia,

Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Michigan,

New Hampshire, New Jersey, New York,

[[Page 5314]]

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

Wisconsin.

(b) Trust fund agreement. The avocados may be imported only if the

Mexican avocado industry association representing Mexican avocado

growers, packers, and exporters has entered into a trust fund agreement

with the Animal and Plant Health Inspection Service (APHIS) for that

shipping season. That agreement requires the Mexican avocado industry

association to pay in advance all estimated costs that APHIS expects to

incur through its involvement in the trapping, survey, harvest, and

packinghouse operations prescribed in paragraph (c) of this section.

These costs will include administrative expenses incurred in conducting

the services and all salaries (including overtime and the Federal share

of employee benefits), travel expenses (including per diem expenses),

and other incidental expenses incurred by the inspectors in performing

these services. The agreement requires the Mexican avocado industry

association to deposit a certified or cashier's check with APHIS for

the amount of those costs, as estimated by APHIS. If the deposit is not

sufficient to meet all costs incurred by APHIS, the agreement further

requires the Mexican avocado industry association to deposit with APHIS

a certified or cashier's check for the amount of the remaining costs,

as determined by APHIS, before the services will be completed. After a

final audit at the conclusion of each shipping season, any overpayment

of funds would be returned to the Mexican avocado industry association

or held on account until needed.

(c) Safeguards in Mexico. The avocados must have been grown in the

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

meets the requirements of paragraph (c)(1) of this section. The orchard

in which the avocados are grown must meet the requirements of paragraph

(c)(2) of this section. The avocados must be packed for export to the

United States in a packinghouse that meets the requirements of

paragraph (c)(3) of this section. Sanidad Vegetal must provide an

annual work plan to APHIS that details the activities that Sanidad

Vegetal will, subject to APHIS' approval of the work plan, carry out to

meet the requirements of this section; APHIS will be directly involved

with Sanidad Vegetal in the monitoring and supervision of those

activities. The personnel conducting the trapping and pest surveys must

be hired, trained, and supervised by Sanidad Vegetal or by the

Michoacan State delegate of the Secretaria de Agricultura, Ganaderia y

Desarrollo Rural (SAGDR).

(1) Municipality requirements. (i) The municipality must be listed

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

by Sanidad Vegetal.

(ii) The municipality must be surveyed at least annually and found

to be free from the large avocado seed weevil Heilipus lauri, the

avocado seed moth Stenoma catenifer, and the small avocado seed weevils

Conotrachelus aguacatae and C. perseae. The survey must cover at least

300 hectares in the municipality and include randomly selected portions

of each registered orchard and areas with wild or backyard avocado

trees. The survey must be conducted during the growing season and

completed prior to the harvest of the avocados.

(iii) Trapping must be conducted in the municipality for

Mediterranean fruit fly (Medfly) (Ceratitis capitata) at the rate of 1

trap per 1 to 4 square miles. Any findings of Medfly must be reported

to APHIS.

(2) Orchard and grower requirements. The orchard and the grower

must be registered with Sanidad Vegetal's avocado export program and

must be listed as an approved orchard or an approved grower in the

annual work plan provided to APHIS by Sanidad Vegetal. The operations

of the orchard must meet the following conditions:

(i) The orchard and all contiguous orchards and properties must be

surveyed annually and found to be free from the avocado stem weevil

Copturus aguacatae. The survey must be conducted during the growing

season and completed prior to the harvest of the avocados.

(ii) Trapping must be conducted in the orchard for the fruit flies

Anastrepha l

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