[Federal Register Volume 75, Number 1 (Monday, January 4, 2010)]
[Rules and Regulations]
[Pages 1-13]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-31182]



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Federal Register / Vol. 75, No. 1 / Monday, January 4, 2010 / Rules 
and Regulations

[[Page 1]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 305 and 319

[Docket No. APHIS-2008-0126]
RIN 0579-AC93


Importation of Hass Avocados From Peru

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the fruits and vegetables regulations to allow 
the importation of Hass avocados from Peru into the continental United 
States. As a condition of entry, Hass avocados from Peru will have to 
be produced in accordance with a systems approach that includes 
requirements for importation in commercial consignments; registration 
and monitoring of places of production and packinghouses; grove 
sanitation; pest-free areas or trapping for the South American fruit 
fly; pest-free areas or treatment for the Mediterranean fruit fly; 
surveys for the avocado seed moth; and inspection for quarantine pests 
by the national plant protection organization of Peru. Hass avocados 
from Peru will also be required to be accompanied by a phytosanitary 
certificate with an additional declaration stating that the avocados 
were grown, packed, and inspected and found to be free of pests in 
accordance with these requirements. This action will allow the 
importation of Hass avocados from Peru into the United States while 
continuing to provide protection against the introduction of quarantine 
pests.

DATES: Effective Date: February 3, 2010.

FOR FURTHER INFORMATION CONTACT: Ms. Charisse Cleare, Regulatory 
Coordination Specialist, Regulations, Permits, and Manuals, PPQ, APHIS, 
4700 River Road Unit 136, Riverdale, MD 20737-1236; (301) 734-0773.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-49, referred to below as the regulations) 
prohibit or restrict the importation of fruits and vegetables into the 
United States from certain parts of the world to prevent the 
introduction and dissemination of plant pests that are new to or not 
widely distributed within the United States.
    On January 7, 2009, we published in the Federal Register (74 FR 
651-664, Docket No. APHIS-2008-0126) a proposal \1\ to amend the 
regulations to allow the importation of Hass avocados from Peru into 
the continental United States. As a condition of entry, we proposed to 
require Hass avocados from Peru to be produced in accordance with a 
systems approach that included requirements for importation in 
commercial consignments; registration and monitoring of places of 
production and packinghouses; grove sanitation; pest-free areas, 
trapping, or treatment for fruit flies; surveys for the avocado seed 
moth; and inspection for quarantine pests by the national plant 
protection organization (NPPO) of Peru. We also proposed to require 
Hass avocados from Peru to be accompanied by a phytosanitary 
certificate with an additional declaration stating that the avocados 
were grown, packed, and inspected and found to be free of pests in 
accordance with the proposed requirements. We proposed to add the 
systems approach to the regulations in a new Sec.  319.56-49.\2\
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    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0126.
    \2\ In this final rule, the provisions of the systems approach 
are added as Sec.  319.56-50. We discuss the comments in terms of 
provisions of proposed Sec.  319.56-49 so that the reader can follow 
along with the proposal.
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    We solicited comments concerning our proposal for 60 days ending 
March 9, 2009. We received 30 comments by that date. They were from 
private citizens, producers, importers, exporters, and representatives 
of State and foreign governments. Twenty of the commenters supported 
the proposed rule. The issues raised by the remaining commenters are 
discussed below by topic.

General Comments

    Two commenters expressed general concerns about the proposed rule. 
One stated that scientists say that not enough time has passed to study 
the pests associated with the importation of Hass avocados from Peru 
and the potential threat those pests pose. This commenter stated that, 
without substantial inquiry into the effects of the pests, allowing the 
importation of avocados from Peru would be unsafe, with very serious 
consequences for California avocado growers. Another commenter stated 
that California avocado growers have experienced pest introductions due 
to the inadequate inspection of Hass avocados imported from Mexico, and 
further stated that there is no reason to expect that inspection of 
Hass avocados from Peru will provide any better protection.
    We prepared a pest risk assessment (PRA) and risk management 
document (RMD) as part of our evaluation of the request from the NPPO 
of Peru to export Hass avocados to the United States. Based on the 
evidence and discussion presented in the PRA and RMD, we have concluded 
that the mitigations we proposed, with some changes as discussed later 
in this document, will be effective at preventing the quarantine pests 
identified in the PRA from being introduced into the United States via 
the importation of avocados from Peru.
    The first commenter did not provide any specific citations 
supporting the assertion that scientists say not enough time has passed 
to study the pests associated with the importation of Hass avocados 
from Peru, nor did the commenter indicate that the evidence presented 
in the PRA and RMD was inadequate.
    With regard to the second commenter's concern about pests being 
introduced via the importation of Hass avocados from Mexico, it should 
be noted that, in 9 years of fruit cutting and inspection of Hass 
avocados imported from Mexico, over 28 million fruit were examined 
(20.2 million in the orchards, 7.2 million in packinghouses, and 
602,490 at border inspection ports) for pests. Twice, the quarantine 
pest Contrachelus perseae was found, both times in backyard avocados 
that would not have been eligible to be exported to

[[Page 2]]

the United States. Both outbreaks of this pest were eradicated. All 
other avocados from this export program have been found to be free of 
quarantine pests. There is no evidence that the importation of Hass 
avocados from Mexico has resulted in the introduction of quarantine 
pests into the United States.

Comments on the PRA

    We prepared a draft PRA titled ``Importation of `Hass' Avocado 
(Persea americana) Fruit from Peru into the Continental United States'' 
(May 2006). The draft PRA evaluated the risks associated with the 
importation of Hass avocados into the continental United States (the 
lower 48 States and Alaska) from Peru. We published a notice \3\ in the 
Federal Register on May 25, 2006 (71 FR 30113, Docket No. APHIS-2006-
0072), in which we advised the public of the availability of the draft 
PRA and solicited comments on it for 60 days ending July 24, 2006. We 
also conducted a peer review of the draft PRA. We made changes to the 
May 2006 PRA in response to public comments and peer review comments 
and prepared a revised PRA, dated December 2008, for the January 2009 
proposal. We accepted comments on the revised PRA during the comment 
period for the proposed rule.
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    \3\ To view the notice, the draft PRA, and the comments we 
received, go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0072.
---------------------------------------------------------------------------

    One commenter provided a comment on the May 2006 PRA recommending 
that mirids of the genus Dagbertus be added to the list of quarantine 
pests associated with Hass avocados from Peru. We stated in the 
December 2008 PRA that we had not found any evidence that Dagbertus 
spp. were pests of avocados in Peru. Addressing this statement, the 
commenter provided an unpublished study that the commenter believed 
supported the addition of Dagbertus spp. to the list of quarantine 
pests of avocados in Peru. The commenter also consulted an 
entomologist, who stated that he had not tested whether Dagbertus spp. 
can oviposit in hard mature avocado fruit and added, with respect to 
the pests' ability to travel the commercial pathway, ``I can't 
guarantee it won't happen.'' The commenter urged APHIS to further 
evaluate the quarantine pest status of Dagbertus spp. to determine 
whether risk mitigation measures are warranted.
    We appreciate the opportunity to clarify our earlier statement. 
While Dagbertus spp. are pests of avocados in Peru, they are highly 
unlikely to travel the pathway of commercial avocado fruit exported 
from Peru. According to Wysocki et al. (2002), pests of the family 
Miridae, which includes the Dagbertus genus, ``feed and insert their 
eggs on opening buds, leaves, flowers and small fruit. Attacks seem to 
especially affect flowers and recently set fruit, causing them to 
drop.'' Fallen immature fruit would not be marketable and thus would 
typically not be exported for commercial sale. The other plant parts 
mentioned would not be allowed to be included in shipments of avocados 
intended for export.
    The information in Wysocki et al. (2002) is corroborated by the 
fact that, since 1985, Dagbertus spp. have been intercepted at U.S. 
ports of entry only 26 times from anywhere in the world, on any 
commodity, including flowers and other plant parts in addition to 
fruit.
    The paper the commenter submitted does not identify a specific 
species of Dagbertus spp. as a pest. Additionally, none of the 
information we have about Dagbertus spp. indicates that we should 
further analyze any specific species within the genus. In the PRA 
accompanying this final rule, we have added Dagbertus spp. to the list 
of plant pests potentially affecting Hass avocados in Peru, but we have 
indicated in that list that these species will not follow the pathway 
of commercial fruit. We continue to consider Dagbertus spp. not to be 
quarantine pests.
    One commenter examined the references in the PRA regarding the 
quarantine pest Stenoma catenifer, the avocado seed moth, and stated 
that we should have considered the work of Dr. Mark Hoddle and Dr. C.L. 
Hohmann in assessing the risk posed by that pest. The commenter stated 
that the omission of the work of these authors called into question 
whether the risk mitigation strategy we proposed for the avocado seed 
moth would be effective.
    The avocado seed moth was rated as a high-risk pest, meaning that 
the references we consulted were sufficient to establish that the pest 
risk rating was the highest available. The work of Dr. Hoddle indicates 
that the avocado seed moths can cause extensive damage to Hass avocado 
crops, meaning that it supports our rating of the pest risk of the 
avocado seed moth as high. It also describes the seasonality of this 
pest, which is not relevant for Peru; avocados are only produced in one 
season in Peru, unlike Guatemala, the site of Dr. Hoddle's research, 
where avocados are produced year-round.
    The two papers by Dr. Hohmann that the commenter cited discuss 
pesticide treatment and avocado seed moth infestation levels in 
avocados grown in Brazil (Hohmann et al., 2000) and the placement of 
avocado seed moth eggs laid within the tree and in the avocados 
(Hohmann et al., 2003). This work does not directly address the 
question of the appropriate pest risk rating for avocado seed moth. As 
appropriate, it will inform our operational workplan, which is required 
under the systems approach, and specifically the provisions of the 
workplan that deal with specific details of fruit cutting and sampling.
    One commenter stated that Ferrisia malvastra, a mealybug, should 
not have been identified in the PRA as a quarantine pest. The commenter 
stated that the NPPO of Peru does not have records indicating that F. 
malvastra is present in Peru and that the reference (Ben-Dov et al., 
2003) that the PRA cites as evidence of the pest's presence in Peru 
also indicates that the pest is present in the United States.
    The genus Ferrisia is comprised of several species which may be 
difficult to differentiate from one another (Gullan et al., 2003). Soon 
after being described, Heliococcus malvastrus, a parthenogenic mealybug 
first described by McDaniel in 1962, was synonymized with F. virgata 
(McKenzie, 1967). The species was then separated, redescribed, and 
named F. consobrina (Williams and Watson, 1988), a name that was the 
junior synonym to F. malvastra (Ben-Dov, 2005). Hence, the observation 
noted in Williams & Granara (1992) records the presence of what is now 
considered F. malvastra in Peru.
    The PRA notes that F. malvastra is present in the United States and 
further indicates that this pest is on the actionable pest list 
maintained by the Plant Protection and Quarantine program's National 
Identification Service. Our regulatory practice is to treat such pests 
as quarantine pests. We are making no changes to the quarantine pest 
status of F. malvastra in response to this comment.
    One commenter stated that, between 2001 and 2005, the NPPO of Peru 
sampled a total of 12,505 Hass avocados attached to trees, finding no 
fruit infested with fruit flies. The commenter asserted that these data 
indicate that Hass avocados attached to trees are not hosts for the 
fruit flies identified in the PRA as quarantine pests: Anastrepha 
fraterculus, the South American fruit fly; A. striata, the guava fruit 
fly; and Ceratitis capitata, the Mediterranean fruit fly or Medfly.
    While these data are not inconsistent with the assertion made by 
the commenter, the data are not sufficient to prove that assertion. 
(For example,

[[Page 3]]

research would need to be done to determine the host status of avocados 
off the tree.) APHIS has developed a protocol for surveys and sampling 
to demonstrate that a fruit or vegetable is not a host of a specific 
pest. If the NPPO of Peru wishes to establish that Hass avocados in 
Peru are not hosts of these fruit flies, it can follow the APHIS 
protocol for doing so.
    However, one of these fruit flies, A. striata, has been 
demonstrated not to infest Hass avocados, in Aluja et al. (2004). We do 
not currently consider Hass avocados to be a host of this pest; in a 
final rule published in the Federal Register on June 30, 2009 (74 FR 
31154-31160, Docket No. APHIS-2006-0189), and effective on July 30, 
2009, we removed restrictions related to the movement of Hass avocados 
from areas where certain Anastrepha spp. fruit flies (including A. 
striata) are present. Accordingly, we have removed A. striata from the 
pest list in the PRA that accompanies this final rule. It should be 
noted that A. fraterculus is still on the pest list, meaning that 
avocados from Peru will still need to be grown in places of production 
that have a low prevalence of A. fraterculus, as demonstrated by 
trapping, or that are free of that pest, as described in further detail 
later in this document.

Monitoring and Oversight

    Two commenters addressed APHIS monitoring and oversight of the 
systems approach generally. One asked what the level of APHIS oversight 
would be in Peru, what level of expertise and resources would be 
dedicated to the systems approach by the NPPO of Peru, and whether 
periodic site visits were planned to verify program compliance. The 
second commenter, noting the RMD's statement that ``APHIS will be 
directly involved with SENASA [the NPPO of Peru] in monitoring and 
auditing implementation of the systems approach,'' stated that APHIS 
should provide on-site monitoring of all aspects of the systems 
approach throughout the harvest period and that a requirement for such 
APHIS monitoring should be included in the regulations.
    The NPPO of Peru is obligated to fulfill its responsibilities under 
the systems approach as a signatory to the International Plant 
Protection Convention (IPPC). We have determined that it is not 
necessary for us to monitor program activities on site unless we have 
reason to believe that such activities may not be adequately mitigating 
pest risks. Thus, we do not plan to make periodic site visits. This is 
consistent with our practice in other import programs. We have 
conducted site visits as part of developing the systems approach; we 
found the NPPO of Peru to have the necessary resources and capacity to 
implement the systems approach. In addition, APHIS inspection of Hass 
avocados from Peru at the port of entry will serve as a check on the 
effectiveness of the systems approach.

Grove Sanitation

    Paragraph (c) of proposed Sec.  319.56-49 contained grove 
sanitation requirements. We proposed to require avocado fruit that has 
fallen from the trees to be removed from each place of production at 
least once every 7 days, starting 2 months before harvest and 
continuing to the end of harvest.
    One commenter stated that we should require grove sanitation to 
occur only during the harvest season, rather than beginning 2 months 
before harvest, and that we should require removal of fallen fruit 
every 15 days, rather than every 7 days. The commenter provided the 
following reasons:
     Hass avocados on the ground are poor hosts for fruit 
flies, and fruit attached to trees are not hosts for fruit flies.
     The avocado seed moth does not occur in the coast of Peru, 
where most avocado production in Peru is expected to occur.
     Hass avocado fruit fall to the ground because of a normal 
physiological characteristic of the avocado crop, not due to pest 
attacks.
    We disagree with this commenter. Avocado fruit do, in fact, fall 
from trees due to pest attacks; indeed, unusual fruit drop is often a 
symptom of pest infestation. In addition, fallen avocado fruit are 
typically damaged and thus provide good host material for pests of 
avocados, including fruit flies; for this reason, we proposed to 
prohibit fallen avocado fruit from being included in field containers 
of fruit brought to the packinghouse to be packed for export. The 
occurrence of the avocado seed moth in only one area in Peru is not 
relevant to this provision of the systems approach, which targets all 
the quarantine pests.
    The 7-day interval for removal of fallen fruit that we proposed is 
consistent with our regulations for the importation of Hass avocados 
from Mexico in Sec.  319.56-30; the requirement to begin grove 
sanitation 2 months before harvest is consistent with other import 
programs that contain grove sanitation requirements (although not the 
Mexican program, since Hass avocados are exported from Mexico year-
round). We have determined that this sanitation period and interval are 
necessary to provide appropriate protection against the introduction of 
quarantine pests via Hass avocados imported from Peru.

Mitigation Measures for A. fraterculus

    In paragraph (d) of proposed Sec.  319.56-49, we proposed to 
provide two options for mitigating the risk associated with the fruit 
flies A. fraterculus, the South American fruit fly, and A. striata, the 
guava fruit fly, in avocados from Peru: Establishment of an area free 
of A. fraterculus and A. striata, in accordance with our pest-free area 
regulations in Sec.  319.56-5, or trapping to demonstrate that places 
of production have a low prevalence of A. fraterculus and A. striata.
    Although the January 2009 PRA identified both A. fraterculus and A. 
striata as potential pests of Hass avocados from Peru, Hass avocados 
are known to be poor hosts for Anastrepha spp. fruit flies in general. 
However, the risk that these fruit flies will infest Hass avocados 
increases if their population is high in areas where avocados are 
produced. Trapping to demonstrate an area of low pest prevalence was 
proposed as an appropriate mitigation for these two fruit flies.
    As noted above, we have removed A. striata from the pest list in 
the PRA accompanying this final rule, meaning that these requirements 
apply only with regard to A. fraterculus in this final rule.
    One commenter stated that allowing the NPPO of Peru to define areas 
of low pest prevalence without direct APHIS oversight would not be 
prudent. Perhaps, the commenter stated, the NPPO of Peru could define 
areas of low pest prevalence after several years of program 
implementation without incident, but without a proven track record, the 
risks would be too great to place an untried systems approach in the 
hands of government officials in the exporting country. The commenter 
recommended that the final rule include provisions for mandatory 
monitoring of fruit fly trapping by APHIS.
    The commenter did not identify a specific risk associated with 
oversight of the fruit fly trapping by the NPPO of Peru. In import 
programs that involve fruit fly trapping, we do not typically require 
APHIS oversight of the trapping itself. Instead, we require in the 
regulations that records of the fruit fly trapping be kept and made 
available to APHIS. We included in the proposed rule requirements for 
the NPPO of Peru to keep records of fruit fly detections for each trap, 
update the records each time the traps are checked, and make the 
records available to APHIS inspectors upon request. Fruit fly trapping 
itself is

[[Page 4]]

conducted in accordance with the International Atomic Energy Agency 
(IAEA) guidelines for fruit fly trapping, which are internationally 
recognized and well-understood. By auditing the fruit fly trapping 
records, we can determine whether the trapping is being conducted 
consistent with the IAEA guidelines. Records of finds of fruit flies in 
the trapping would also indicate whether the trapping procedures needed 
to be adjusted. As noted earlier, we have conducted site visits as part 
of developing the systems approach; we found the NPPO of Peru to have 
the necessary resources and capacity to implement the systems approach, 
including fruit fly trapping. We are making no changes to the proposed 
rule in response to this comment.
    This commenter also asserted that the proposed rule did not provide 
adequate mitigations for the risk associated with A. fraterculus and A. 
striata, stating that we should add to the final rule provisions 
prohibiting the distribution of Hass avocados from Peru to areas of the 
United States where fruit flies could become established. The commenter 
stated that A. fraterculus is considered the most important fruit fly 
pest in South America, with a very wide range of hosts ranging from 
tropical to temperate species. A. fraterculus exhibits greater 
morphological variation than related species, and there is strong 
evidence that a complex of cryptic species is included in the nominal 
species A. fraterculus, of which the South American variety may be more 
aggressive and dangerous.
    The commenter stated that provisions prohibiting the distribution 
of Hass avocados from Mexico to certain areas of the United States were 
only removed when research was completed establishing that Hass 
avocados were not hosts of the Anastrepha species present in Mexico, 
but that A. fraterculus was not included in this research, in part 
because of evidence that the Mexican morphotype differs significantly 
from the South American morphotype. The commenter stated that, until 
and unless field research in Peru demonstrates the non-susceptibility 
of Hass avocados to attack by A. fraterculus and A. striata, provisions 
limiting the distribution of Hass avocados from Peru should be imposed.
    We agree with the commenter that A. fraterculus is likely composed 
of ``sibling species,'' as discussed in the PRA, and we also agree that 
the host status of Hass avocados for A. fraterculus is uncertain. 
However, the commenter did not provide any evidence that we did not 
consider in the PRA when discussing the host status of Hass avocados 
for A. fraterculus, nor did the commenter point out any evidence 
suggesting that some species of A. fraterculus exhibit a greater 
preference for Hass avocados than others. As stated in the PRA, a 
review of the current literature suggests that under most 
circumstances, Hass avocados do not serve as hosts for Anastrepha spp. 
The PRA ultimately concluded that, given the available evidence, A. 
fraterculus could be considered a pest of avocado in Peru. This is 
consistent with allowing the importation of Hass avocados from Peru 
that originate in an area of low pest prevalence for A. fraterculus and 
requiring that Hass avocados be inspected for A. fraterculus before 
being exported to the United States.
    The research to demonstrate the non-susceptibility of Hass avocados 
to attack by A. fraterculus that the commenter recommends would be 
necessary if we had proposed to require no mitigations for A. 
fraterculus; instead, we proposed to require Hass avocados from Peru to 
come from areas that are free of A. fraterculus or areas that have been 
demonstrated by trapping to have a low prevalence of A. fraterculus.
    As noted earlier, we have determined that A. striata is not a pest 
of Hass avocados, based on research to which the commenter alludes.
    The commenter also recommended that we require the storing of 
``voucher specimens'' of A. fraterculus in 95 percent alcohol, to 
facilitate genetic analyses conducted later in time and aimed at 
differentiating sibling/cryptic species, some of which may exhibit a 
stronger preference for avocados.
    If a sibling or cryptic species of A. fraterculus that has a 
stronger preference for Hass avocados were to emerge in Peru, we would 
become aware of it through fruit fly trapping, fruit inspection, and 
general monitoring, and we would impose additional restrictions on the 
importation of Hass avocados from Peru as appropriate. Therefore, it is 
not necessary to require the specimen storage that the commenter 
suggests.

Mitigation Measures for Medfly

    Paragraph (e) of proposed Sec.  319.56-49 provided three options 
for mitigating the risk associated with Medfly in avocados from Peru: 
Establishment of an area free of Medfly, trapping to demonstrate that 
places of production are free of Medfly, or treatment. With regard to 
trapping, we proposed to require that, when traps are serviced, if any 
Medfly are found, 10 additional traps be deployed in a 0.5-km\2\ area 
immediately surrounding all traps where Medfly was found to determine 
whether a reproducing population is established. If any additional 
Medfly are found within 30 days of the first detection, the affected 
place of production would be ineligible to export avocados without 
treatment for Medfly until the source of the infestation is identified 
and the infestation is eradicated. APHIS would have to concur with the 
determination that the infestation has been eradicated.
    One commenter expressed concern about using trapping to demonstrate 
place of production freedom from Medfly, noting that allowing pest-free 
places of production would be unprecedented unless all of the export 
groves in Peru are greater than 0.5 km\2\ and are surrounded by buffer 
zones. The commenter stated that international standards for area 
freedom from Medfly should continue to be used.
    We agree with the commenter's concern. Peru's places of production 
do not all meet the conditions noted by the commenter, thus making 
determining place of production freedom from Medfly operationally 
difficult. Therefore, this final rule does not include trapping to 
establish a pest-free place of production as a mitigation option for 
Medfly. We are providing only for the establishment of pest-free areas 
and treatment as mitigation options in paragraph (e). We are also 
making several changes elsewhere in the proposed regulatory text to 
remove references to pest-free places of production as a mitigation 
option for Medfly.

Surveys for the Avocado Seed Moth

    In paragraph (f) of proposed Sec.  319.56-49, we proposed to 
require surveys to demonstrate that registered places of production are 
free of the avocado seed moth. Specifically, we proposed to require 
Peruvian departamentos \4\ in which avocados are grown for export to 
the United States to be surveyed by the NPPO of Peru at least once 
annually, no more than 2 months before harvest begins, and found to be 
free from infestation by the avocado seed moth. We stated that an 
annual survey is appropriate for the avocado seed moth because the pest 
has limited mobility; the results of a survey conducted no more than 2 
months before harvest would indicate freedom from the

[[Page 5]]

avocado seed moth for the entire harvest period.
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    \4\ In Peru, the departamento is the first level of political 
subdivision within the country, similar to the U.S. State. However, 
because Peru is about five-sixths of the size of Alaska and there 
are 25 departamentos, a typical departamento is smaller than most 
States.
---------------------------------------------------------------------------

    Two commenters addressed the fact that we proposed to require an 
annual rather than a semiannual survey for the avocado seed moth, 
noting that the regulations for the importation of Hass avocados from 
Mexico in Sec.  319.56-30 require semiannual surveys for the avocado 
seed moth (and other seed pests), once during the wet season and once 
during the dry season. One commenter noted that, while the moth does 
have limited mobility, other factors may have greater bearing on the 
timing of surveys. The commenter cited field work by Dr. Mark Hoddle in 
Guatemala in which it was observed that seasonal transitions from humid 
to dry climatic conditions are accompanied by an increase in the 
detection of the avocado seed moth in avocado fruit. This commenter 
recommended that we require semiannual surveys for the avocado seed 
moth to provide a more accurate picture of the risk posed by that pest.
    We have determined that semiannual surveys for the avocado seed 
moth are not necessary because the climatic shifts from wet to dry 
seasons that occur in Guatemala and Mexico do not occur in Peru's 
avocado production areas; rather, Peru's avocado production areas 
remain arid throughout the year. Additionally, Peru's avocado 
production areas are separated by desert, further inhibiting the spread 
of the moth between places of production. These factors indicate that 
an annual survey is adequate to detect the avocado seed moth.
    As part of the departamento surveys, we proposed to require the 
NPPO of Peru to cut and inspect a biometric sample of fruit at a rate 
determined by APHIS. We stated that we expect the biometric sample to 
include about 300 fruit from each place of production.
    One commenter recommended that we include more specificity in the 
regulations with regard to fruit cutting, stating that the NPPO of Peru 
should not be in a position to negotiate with APHIS on a fruit cutting 
sampling plan given the importance of the avocado seed moth as a pest. 
The commenter stated that the fact that no specific sample size would 
be included in the regulations provides little assurance that the 
survey will protect against the introduction of the avocado seed moth.
    As stated in the proposal, the rate at which the fruit will be 
sampled will be determined by APHIS; it will not be subject to 
negotiation, other than the sharing of data that informs all 
determinations of appropriate biometric sample rates. The sample rate 
will detect a pest prevalence with a confidence level that is 
consistent with other import programs in which surveys and inspection 
are used to detect high-risk pests. APHIS can adjust the rate if 
necessary to provide further security against pest risks. The number of 
fruit to be sampled will be determined based on this biometric sample 
rate and will be contained in the workplan developed by the NPPO of 
Peru and approved by APHIS; the workplan is required under the systems 
approach. Given this, it is not necessary to include a specific number 
of fruit to be sampled in the regulations.
    If one or more avocado seed moths was detected in the annual 
survey, we proposed to require the affected place of production to be 
immediately suspended from the export program until appropriate 
measures to reestablish pest freedom, agreed upon by the NPPO of Peru 
and APHIS, have been taken. These measures could include further 
delimiting surveys, appropriate pesticide treatments, or removal of 
infested host material.
    One commenter noted that we proposed to require surveys for the 
avocado seed moth to be conducted at the departamento level, but to 
suspend places of production when an avocado seed moth is found. This 
commenter stated that we should require suspension of the affected 
departamento for at least the remainder of the export season during 
which the avocado seed moth is detected, similar to the requirements in 
the regulations for the importation of Hass avocados from Mexico in 
Sec.  319.56-30. The commenter also recommended that we amend the 
regulations to indicate that finding the avocado seed moth during any 
monitoring or inspection activity, not just the annual survey, would 
result in the suspension of the affected departamento.
    Another commenter praised the approach in the proposed rule of 
suspending only the affected place of production, rather than the 
entire departamento, upon detection of the avocado seed moth. This 
commenter recommended that we change the regulations for the 
importation of Hass avocados from Mexico to match the approach 
described in the proposed rule.
    The NPPO of Peru conducts its surveys for avocado seed moth at the 
departamento level; we proposed to recognize this survey methodology by 
requiring the survey to be at the departamento level. As noted earlier, 
the limited mobility of the pest, combined with the continual arid 
climate of Peru's avocado production areas and their separation by 
desert, mean that the avocado seed moth will not move very far under 
its own power and is unlikely to move between places of production. In 
addition, if the pest is present in places of production close to a 
place of production in which the avocado seed moth has been found, the 
surveys would find it in those nearby places of production, and we 
would suspend those places of production as well. Given this 
information, it is appropriate to suspend from the export program only 
the places of production in which the avocado seed moth has been found, 
rather than the entire departamento.
    We agree with the first commenter that any detection of an avocado 
seed moth, including detections during monitoring and inspection other 
than the annual survey, should result in suspension of the affected 
place of production. We have amended the regulatory text in this final 
rule to include detections during any monitoring or inspection activity 
as a reason for suspension.
    We have evaluated the similar provisions of the regulations for the 
importation of Hass avocados from Mexico and have determined that it is 
not necessary to suspend the entire municipality in which an avocado 
seed pest has been found. We are preparing a proposed rule that would 
amend those regulations accordingly.
    One commenter recommended two additional mitigations for the risk 
posed by the avocado seed moth. One, which the commenter presented as 
an additional, precautionary step until the incidence of avocado seed 
moth in the production areas of Peru is better understood, was to hold 
a random sample of fruit (perhaps 300 per departamento) under 
controlled conditions to test for emergence of adult moths. Although 
this would not prevent potentially infested fruit picked at the same 
time from entering the commercial pathway, the commenter stated that 
the observance of adult moths could still be used to suspend shipments 
once an infestation became evident, thereby reducing overall risk.
    The other mitigation the commenter suggested was to prohibit the 
importation or distribution of Hass avocados from Peru to the State of 
California, to offset what the commenter characterized as the poor 
reliability of fruit cutting to detect larval infestations of the 
avocado seed moth.
    The NPPO of Peru has been conducting surveys for the avocado seed 
moth for years, and we have visited Peru's avocado production areas to 
better understand the pest conditions there. We therefore disagree with 
the

[[Page 6]]

commenter's suggestion that the incidence of avocado seed moth in the 
growing areas of Peru is not well understood. We also disagree with the 
commenter's assertion that fruit cutting is an unreliable means of 
detecting larval infestations of avocado seed moth. Surveying and 
cutting techniques can be designed to reduce uncertainties, and our 
selection of a biometric sampling rate will take any remaining 
uncertainties into account. Fruit cutting has been successful at 
preventing the introduction of avocado seed pests from Mexico into the 
United States through the importation of Hass avocados. Therefore, we 
have determined that the additional mitigations suggested by the 
commenter are not necessary to prevent the introduction of avocado seed 
moth into the United States via the importation of Hass avocados from 
Peru.

Sealing Containers

    Paragraph (h) of proposed Sec.  319.56-49 contained packinghouse 
requirements. To safeguard consignments of avocados to be exported from 
Peru to the United States, proposed paragraph (h)(4) would have 
required the fruit to be packed in insect-proof packaging, or covered 
with insect-proof mesh or a plastic tarpaulin, for transport to the 
United States. These safeguards would have had to remain intact until 
arrival in the United States.
    Two commenters noted that the proposed rule did not include a 
requirement to seal containers while in transit to the United States. 
One of these commenters encouraged us to require the use of cargo seals 
to enhance the phytosanitary integrity of consignments during transit, 
to provide evidence of any container breaches, and to prevent cross-
contamination from boxes of uncertified avocados or other potentially 
infested fruit. The other commenter also noted that the proposed rule 
did not include repackaging requirements for containers of Hass 
avocados from Peru.
    We agree with the commenters that seals are useful to ensure the 
phytosanitary integrity of consignments. We typically require the use 
of such seals in the bilateral workplan that provides specific details 
on how the export program will be implemented in the exporting country. 
We will do so for avocados from Peru. Similarly, we will include 
repackaging requirements in the bilateral workplan.

Identification of Shipments

    Proposed paragraph (h)(5) provided that shipping documents 
accompanying consignments of avocados from Peru that are exported to 
the United States would have to include the official registration 
number of the place of production at which the avocados were grown and 
would have to identify the packing shed or sheds in which the fruit was 
processed and packed, and that this identification would have to be 
maintained until the fruit is released for entry into the United 
States.
    Two commenters recommended that we additionally require individual 
cartons of avocados to be labeled with this information. (One of these 
commenters also recommended that we require individual avocado fruit to 
be so labeled as well.) The commenters stated that this information 
would allow for traceback to and suspension of individual places of 
production and packinghouses in the event that a pest is discovered in 
the United States, rather than having to suspend all avocado exports 
from Peru. The commenters stated that this requirement would thereby 
isolate the problem without unnecessarily disrupting the flow of trade.
    We agree with these commenters that labeling cartons and fruit with 
place of production and packinghouse registration numbers would allow 
for traceback to specific places of production or packinghouses and 
would thus help to continue the flow of trade if a pest is discovered. 
We typically require in the bilateral workplan that such information be 
included on individual cartons. We will do so for avocados from Peru. 
As the commenters noted, an exporting country has an incentive to 
provide this information in order to minimize unnecessary trade 
disruptions in the event of a pest detection.

Inspection

    Paragraph (i) of proposed Sec.  319.56-49 provided for inspection 
of a biometric sample of fruit from each place of production by the 
NPPO of Peru at a rate to be determined by APHIS.
    One commenter stated that the regulations should limit the amount 
of discretion granted to the NPPO of Peru in this most critical aspect 
of the systems approach, providing a specific sampling plan. Another 
commenter stated that the regulations for the importation of Hass 
avocados from Mexico require specific numbers of fruit to be cut for 
inspection prior to export and at the port of first arrival in the 
United States; this commenter praised the approach in the proposal and 
asked that the specific fruit cutting requirements be removed from the 
Mexican Hass avocado regulations.
    As we proposed, the sampling rate for this inspection will be 
determined by APHIS. The general sampling plan will be contained in the 
bilateral workplan, which APHIS must approve in order for Peru to be 
able to export avocados. Therefore, the NPPO of Peru will not have sole 
discretion in setting a biometric sample rate or developing a sampling 
plan. The regulations provide mechanisms by which APHIS will direct 
this activity.
    In fact, with respect to the Mexican Hass avocado import program, 
the requirement to cut specific numbers of fruit for inspection prior 
to export and at the port of first arrival is contained in the 
bilateral workplan required to be developed under paragraph (c) of 
Sec.  319.56-30. Paragraph (c)(3)(iv) of Sec.  319.56-30, which 
contains the pre-export inspection requirement for Hass avocados from 
Mexico, refers to a biometric sample, at a rate determined by APHIS. 
Paragraph (h) of that section, which contains the requirement for 
inspection at the port of first arrival, does not refer to any specific 
sampling mechanism. We will use the workplan in a similar manner in the 
import program for Hass avocados from Peru.
    In addition, it should be noted that Hass avocados from Peru will 
be inspected at the port of entry into the United States, providing a 
check on the efficacy of the inspection in Peru.
    One commenter noted that systems approaches, such as the one we 
proposed for the importation of Hass avocados from Peru, are more 
complex in nature than post-harvest treatments and require a higher 
level of expertise and oversight. This commenter asked whether there 
would be a higher level of inspection than normal of avocados from Peru 
at ports of entry to verify that the avocados are free of pests.
    We do not plan to inspect at a higher level than our usual level, 
unless evidence indicates that there may be a problem with the 
implementation of the systems approach. As noted earlier, we have found 
the NPPO of Peru to have the necessary resources and capacity to 
implement the systems approach.

Inconsistencies With the Regulations for Importing Hass Avocados From 
Mexico in Sec.  319.56-30

    Four commenters noted that the provisions of the proposed rule and 
the regulations for importing Hass avocados from Mexico in Sec.  
319.56-30 were inconsistent in various ways. Some of these comments 
have been addressed earlier in this document. The remaining comments 
are addressed here.
    One commenter stated that it was only over a period of years that 
APHIS relinquished oversight of Hass avocado growers in Mexico to the 
Mexican NPPO, and recommended that APHIS

[[Page 7]]

take a similar path with the NPPO of Peru. In contrast, two commenters 
stated generally that the phytosanitary track record of the Mexican 
Hass avocado import program over the past 11 years warrants at least no 
more burdensome treatment than APHIS proposed to provide for Hass 
avocados imported from Peru. One commenter recommended that several 
specific provisions of the regulations for the importation of Hass 
avocados from Mexico be changed to be consistent with similar 
provisions in the proposed rule.
    Since the establishment of the Mexican Hass avocado import program, 
APHIS has accumulated experience with how large-scale systems approach 
programs such as the Mexican program work, which in turn has given us 
better information on the appropriate level of oversight for such 
programs. As stated earlier, we have found the NPPO of Peru to have the 
necessary resources and capacity to implement the systems approach, 
and, as a signatory to the IPPC, the NPPO of Peru is obligated to 
fulfill its responsibilities under the systems approach.
    The specific differences between the proposed rule and the Mexican 
Hass avocado regulations brought up by the last commenter are addressed 
below.
    The commenter stated that, because area freedom is not required, 
APHIS seems inclined to accept that the Hass avocado is a poor host for 
A. fraterculus and Medfly without any supporting documentation. The 
commenter stated that APHIS should remove fruit fly-related 
restrictions for Mexican Hass avocados before allowing the same 
commodity into the United States from another country under fewer 
restrictions.
    Our analysis establishing that Hass avocado is a poor host for A. 
fraterculus is documented in the PRA; the commenter did not provide any 
comments specific to that analysis. With regard to fruit flies, as 
noted earlier, we published a June 2009 final rule removing 
restrictions related to the movement of Hass avocados from areas where 
certain Anastrepha spp. fruit flies (including A. striata) are present, 
including Mexico. The PRA did not determine that Hass avocados are a 
poor host for Medfly; as discussed earlier, this final rule requires 
Hass avocados from Peru to be produced in an area that the 
Administrator has determined to be free of Medfly or to be treated for 
Medfly.
    The commenter noted that we proposed to allow the whole country of 
Peru to export avocados to the United States, but exports from Mexico 
are limited to approved municipalities in only one State, Michoacan.
    Other States in Mexico have different pests and different pest 
densities than Michoacan, which is less warm and humid than surrounding 
avocado production areas in Mexico. Mitigating the pest risk associated 
with Hass avocados produced in States other than Michoacan would 
require the development of a different systems approach. We have not 
received a formal request from the Government of Mexico to do so.
    The commenter noted that we did not propose to require personnel 
conducting trapping and pest surveys to be hired by the NPPO of Peru. 
Instead, we proposed to require any personnel conducting trapping and 
pest surveys to be trained and supervised by the NPPO of Peru. The 
commenter requested that we remove the requirement that the Mexican 
NPPO hire its personnel conducting trapping and pest surveys, which is 
contained in Sec.  319.56-30(c).
    We have evaluated this provision of the regulations for the 
importation of Hass avocados from Mexico and have determined that it is 
not necessary for such personnel to be hired by the Mexican NPPO. We 
are preparing a proposed rule that would amend those regulations 
accordingly.
    The Mexican Hass avocado import regulations require APHIS to be 
directly involved with the Mexican NPPO in the monitoring and 
supervision of its activities. We did not propose to require direct 
monitoring and supervision for Hass avocados from Peru. The commenter 
stated that the strong record of success of the Mexican Hass avocado 
import program provides ample reason to remove the requirement for 
direct monitoring and supervision from that program.
    We acknowledge the success of the Mexican Hass avocado import 
program, as noted earlier in this document. We plan to reevaluate this 
provision of the regulations and, if warranted, issue a proposal to 
change it.
    The commenter noted that there is no specific requirement for 
inspection of Hass avocados imported from Peru.
    Under the general fruits and vegetables regulations in Sec.  
319.56-3, APHIS is authorized to inspect all fruits and vegetables 
imported into the United States. It is thus not necessary to include 
specific provisions for port-of-entry inspection for Hass avocados from 
Peru.

Economic Issues and Comments on the Economic Analysis

    Four commenters opposed the proposed rule for economic reasons, 
stating that domestic avocado farm profit margins are already low due 
to adverse weather and other foreign competition. They cited specific 
concerns. One commenter stated that the vast majority of California 
avocado growers operate small family farms, with 5- to 20-acre groves, 
and would be adversely affected by the proposal. One commenter stated 
that imports should be limited to things or specialties that cannot be 
produced in the United States, as buying close to home helps to improve 
the U.S. economy and reduces carbon emissions associated with global 
climate change while providing better-tasting fruit to the consumer.
    Another commenter mentioned that the recent economic downturn had 
affected domestic avocado farmers' personal wealth and access to 
credit. This commenter also noted that Peru's avocado growing season is 
from May to September, meaning that the effects on the domestic market 
would be seasonal, and stated that the proposal should not be finalized 
in order to promote sustainable, long-term, non-seasonal employment. 
Finally, this commenter stated that the American Recovery and 
Reinvestment Act of 2009 exhibits protectionism of U.S. products and 
employment as a policy to aid the U.S. economy, and stated that the 
proposed rule should reflect this policy.
    The Plant Protection Act (7 U.S.C. 7701 et seq.), the authorizing 
statute for APHIS' plant-health-related activities, authorizes the 
Secretary of Agriculture to prohibit or restrict the importation of any 
plant product if the Secretary determines that the prohibition or 
restriction is necessary to prevent the introduction of a plant pest or 
noxious weed into the United States. We have determined that the 
measures in the systems approach we proposed, amended as described 
earlier, are sufficient to prevent the introduction of any plant pests. 
The factors cited by the commenters are not within our decisionmaking 
authority under the Act.
    The initial regulatory flexibility analysis (IRFA) we prepared for 
the proposed rule acknowledged that the majority of U.S. producers and 
packers of fresh avocados are considered to be small entities as 
defined by Small Business Association size standards. However, we have 
estimated that U.S. consumption (demand) is more than double U.S. 
production of avocados, indicating that consuming only U.S. avocados 
would create a shortage of avocados on the U.S. market. Projected 
imports of avocados from Peru would likely decrease the U.S. avocado 
price by a maximum of 4 percent, assuming no displacement of other 
imports.

[[Page 8]]

Furthermore, we have concluded that it is likely that at least a 
portion of the projected imports from Peru would displace imports from 
other foreign sources when fresh avocado supplies are low and demand is 
high, meaning that price effects would likely be smaller than 4 
percent.
    The Office of Management and Budget designated the proposed rule as 
not significant under Executive Order 12866. One commenter stated that 
this rule should not have been designated not significant, saying that 
the rule runs counter to the interests of U.S. avocado growers and does 
little to assure the health and safety of U.S. consumers.
    Executive Order 12866 provides specific criteria for the Office of 
Management and Budget to use in determining the appropriate designation 
of a rule. This commenter did not provide any reasons why the rule 
should have been designated significant under Executive Order 12866. In 
addition, the commenter did not specify how the proposed rule should be 
changed to assure the health and safety of U.S. consumers. This final 
rule will allow the importation of Hass avocados from Peru into the 
United States while continuing to provide protection against the 
introduction of quarantine pests.
    One commenter stated that allowing the importation of Hass avocados 
from Peru could only adversely affect producer prices while having a 
negligible effect on the consumer price.
    As indicated in the IRFA prepared for the proposed rule, we have 
determined that estimated price effects and welfare impacts are highly 
sensitive to displacement and import levels; however, given the 
conservative assumption of zero displacement, imports from Peru at an 
estimated 50 percent more than current projections (28,500 metric 
tons), and short-run supply and demand elasticities, we have concluded 
that the overall net changes in welfare of allowing the importation of 
fresh Hass avocados from Peru under the specified systems approach are 
likely to be positive. This indicates that any decline in producer 
welfare would be exceeded by a gain in consumer welfare, primarily in 
the form of lower prices.
    One commenter stated that the demand and supply elasticities used 
in calculating changes in producer and consumer welfare in the IRFA 
accompanying the proposed rule should be modified based on more recent 
data that reflect the current state of the U.S. economy. This commenter 
noted that our elasticity projections originated from a 2003 
publication that used data from 1998 and stated that demand for 
avocados, a product with no substitutes that is a relative mainstay in 
the diet of many Americans, will be inherently inelastic, meaning that 
price changes have relatively less effect on the amount demanded. 
However, the commenter stated, a new supplier of lower-priced avocados, 
coupled with American consumers' heightened awareness to price changes 
for relatively common produce (due to the poor economic climate), will 
cause the demand for avocados to become much more elastic and 
responsive to price changes than reflected in the elasticities used in 
the IRFA. Accordingly, the commenter recommended that we use a greater 
elasticity of demand value for projecting net welfare gains and that we 
use these elasticities to measure the effects on suppliers.
    There is no published evidence to suggest that avocados have 
emerged as a ``mainstay'' of the U.S. diet. Rather, APHIS believes that 
avocados remain a specialty item that has become more popular in 
American culture over the last two decades. Furthermore, the state of 
the economy is not a major determinant of the price elasticity of 
demand for a good or service; however, consumers in a recession are 
more likely to reevaluate goods and services in terms of necessity or 
luxury. Goods and services deemed to be necessities are typically less 
elastic while goods determined to be luxuries are typically more 
elastic. A change in the price of fresh avocados may cause a consumer 
to reconsider purchasing avocados in times of economic downturn. The 
price elasticity of demand of -1.2 that we used in the IRFA is a 
relatively elastic price elasticity of demand that reflects that 
consumers are relatively sensitive to changes in prices of fresh 
avocados.
    It should be noted that, for the analysis, we used two sets of 
supply elasticities to measure both short-term and long-term welfare 
effects on producers as a result of the projected increase in imports 
of fresh avocados to fully capture potential changes in the market.
    One commenter noted that several commenters who supported the rule 
stated that U.S. consumption of avocados will increase by 15 to 20 
percent in 2009 and stated that such a rise in consumption is likely an 
overstatement based on data not reflecting the current financial 
condition of U.S. consumers.
    Domestic consumption of fresh avocados has nearly doubled over the 
last decade, with an overall average increase in 10 percent per season. 
Although demand has been estimated to be price-elastic and domestic 
consumption has declined over one season, the overall trend indicates 
that market demand is likely to experience long-term growth. In any 
case, our analysis is not dependent on such projections.
    One commenter stated that, while the IRFA accompanying the proposed 
rule framed displacement around how imports from Peru will displace 
Mexican and Chilean imports, the more appropriate question is how much 
of the domestic supply will be displaced. The commenter asserted that 
more of the domestic supply will be displaced than the imports from 
Mexico and Chile, meaning a negative impact on an already depressed 
market of domestic suppliers.
    The commenter provided no data to support this assertion, and 
published data \5\ support our analysis. Domestic consumption of fresh 
avocados declined by 10 percent during the 2007-2008 season, while 
fresh domestic production increased by 25 percent and U.S. exports of 
fresh avocados increased by 47 percent. During this same season, 
imports from foreign sources decreased by nearly 24 percent over the 
previous season, suggesting that some displacement of foreign sources 
occurred during this period.
---------------------------------------------------------------------------

    \5\ From the Foreign Agriculture Service's Production, Supply, 
and Distribution online database.
---------------------------------------------------------------------------

Miscellaneous Changes

    In this final rule, we are correcting an error in proposed 
paragraph (b), which referred incorrectly to the NPPO of Peru verifying 
that growers are complying with the requirements of paragraphs (c) and 
(f) of Sec.  319.56-49. Paragraph (f) contains the requirements for 
surveys for the avocado seed moth; we had intended to refer to 
paragraph (g), which contains harvesting requirements, and we have 
corrected the error in this final rule.
    In addition, the proposed requirement in paragraph (b)(4) referred 
to ``groves,'' rather than places of production, which was the term 
used in the rest of the proposed regulations. We are changing proposed 
paragraph (b)(4) to refer to places of production in this final rule.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

References

Aluja, M., Diaz-Fleischer, F., and J. Arredondo, J. 2004. Nonhost 
status of commercial Persea americana ``Hass'' to Anastrepha ludens, 
Anastrepha obliqua, Anastrepha serpentina, and Anastrepha

[[Page 9]]

striata (Diptera: Tephritidae) in Mexico. J. Econ. Entomol. 97 (2): 
293-309.
Ben-Dov, Y. 2005. The Malvastrum mealybug Ferrisia malvastra 
(Hemiptera: Coccoidea: Pseudococcidae): Distribution, host plants, 
and pest status in Israel. Phytoparasitica 33(2): 154-156.
Ben-Dov, Y., D.R. Miller, and G.A.P. Gibson. 2003. ScaleNet. http://www.sel.barc.usda.gov/scalenet/scalenet.htm.
Gullan, P.J., D.A. Downie, and S.A. Steffan. 2003. A new pest 
species of the mealybug genus Ferrisia Fullaway (Hemiptera: 
Pseudococcidae) from the United States. Annals of the Entomological 
Society of America 96(6): 723-737.
Hohmann, C.L., Dos Santos, W.J., Menegium, A.M. 2000. 
Avalia[ccedil][atilde]o de t[eacute]cnicas de manejo para o controle 
de broca-do-abacate, Stenoma catenifer (Wals) (Lepidoptera: 
Oecophoridae). Rev. Bras. Frutic. Jaboticabal 22: 359-363.
Hohmann, C.L., Meneguim, A.M., Andrade, E.A., Novaes, T.C., and 
Zandon[aacute] C. 2003. The avocado fruit borer Stenoma catenifer 
(Wals.) (Lepidoptera: Elachistidae): Egg and damage distribution and 
parasitism. Revista Brasileria de Frutic. Jaboticaba1 25: 432-435.
McKenzie, H.L. 1967. Mealybugs of California with taxonomy, biology, 
and control of North American species (Homoptera: Coccoidae: 
Pseudococcidae). University of California Press, California. 524 pp.
Williams, D.J., and M.C. Granara de Willink. 1992. Mealybugs of 
Central and South America. CAB International, Wallingford, UK. 635 
pp.
Williams, D.J., and G.W. Watson. 1988. The Scale Insects of the 
Tropical South Pacific Region: Part 2: The mealybugs 
(Pseudococcidae). CAB International, Wallingford, Oxon, UK. 260 pp.
Wysoki, M., M.A. Van den Berg, G. Ish-Am, S. Gazit, J.E. 
Pe[ntilde]a, and G.K. Waite. 2002. Pests and Pollinators of Avocado, 
pp. 223-294. In: J.E. Pe[ntilde]a, J.L. Sharp, and M. Wysoki [Eds]. 
Tropical Fruit Pests and Pollinators: Biology, Economic Importance, 
Natural Enemies and Control. CABI Publishing. 430 pp.

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been reviewed under Executive Order 12866. The 
rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities.
    The NPPO of Peru requested market access for commercial shipments 
of fresh Hass avocados into the continental United States for domestic 
consumption. APHIS is finalizing a proposed rule that was published on 
January 7, 2009, to grant this request provided Peru produces its Hass 
avocados in accordance with a systems approach that will include 
registration and monitoring of places of production and packinghouses; 
grove sanitation; pest-free areas or trapping for the South American 
fruit fly; pest-free areas or treatment for Medfly; surveys for the 
avocado seed moth; and inspection for quarantine pests by Peru's NPPO. 
Hass avocados from Peru will also be required to be accompanied by a 
phytosanitary certificate with an additional declaration stating that 
the avocados have been inspected for quarantine pests and were grown 
and packed in accordance with the requirements of this final rule. 
These mitigations will allow for the importation of Hass avocados from 
Peru into the United States while providing protection against the 
introduction of quarantine pests. Application of the mitigation 
measures in granting Peru's request is consistent with World Trade 
Organization agreements that sanitary and phytosanitary regulatory 
restrictions should be based on scientific evidence and applied only to 
the extent necessary to protect human, animal, and plant health.
    The Regulatory Flexibility Act of 1980 requires agencies to 
evaluate the potential effects of proposed and final rules on small 
businesses, small organizations, and small governmental jurisdictions. 
Section 605 of the Act allows an agency to certify a rule if the 
proposed rulemaking will not have a significant economic impact on a 
substantial number of small entities. APHIS has determined this to be 
the case for this final rulemaking, and this analysis provides the 
factual basis for such certification in this case.
    The United States is the world's leading importer of all fresh Hass 
avocados, with imports between 60 and 75 percent of total world exports 
annually. Japan and Canada rank a distant second and third with 
combined imports of 18 to 20 percent annually. Mexico and Chile account 
for approximately 50 and 30 percent, respectively, of U.S. imports of 
Hass avocados.\6\ The United States exports less than 1.5 percent of 
its production, whereas U.S. consumption is more than double 
production. While the final rule is consistent with World Trade 
Organization agreements that sanitary and phytosanitary regulatory 
restrictions should be based on scientific evidence and applied only to 
the extent necessary to protect human, animal, and plant health, it 
will have the added benefit in meeting an average annual increase in 
domestic market demand for Hass avocados.
---------------------------------------------------------------------------

    \6\ Global Trade Atlas data.
---------------------------------------------------------------------------

    APHIS received several comments based on the findings of the 
initial regulatory flexibility analysis (IRFA) prepared for the 
proposed rule; however, after careful consideration none was found to 
contain significant issues that would require a reevaluation of the 
proposed regulations. We address these comments in detail in the 
Background section of this document.

Impact on Small Entities

    The final rule may directly affect U.S. domestic producers of Hass 
avocados, as well as firms responsible for packing and shipping these 
commodities for domestic and foreign markets. We find that a 
substantial number of these businesses are small entities, according to 
Small Business Administration (SBA) guidelines and based on 2002 Census 
of Agriculture data. SBA classifies producers within the category Other 
Non-Citrus Fruit Farming (NAICS 111339) having annual sales of not more 
than $750,000 as small entities. California is the largest U.S. 
producer of avocados, accounting for approximately 86 percent of all 
production and nearly all Hass avocado production. According to the 
2002 Census of Agriculture Summary and State Data report, there were a 
total of 6,251 avocado farms in the United States in 2002, with 
California farms representing approximately 85 percent (or 4,801 farms) 
of this total.\7\ Of the remaining farms, 839 are located in Florida, 
601 are located in Hawaii, and 10 are located in Texas.
---------------------------------------------------------------------------

    \7\ National Agricultural Statistics Service (NASS), United 
States Department of Agriculture (USDA), ``United States: Summary 
and State Data, Volume 1,'' 2002 Census of Agriculture, issued June 
2004.
---------------------------------------------------------------------------

    APHIS does not have information on the size distribution of the 
total U.S. avocado producers, but according to the 2002 Census of 
Agriculture, there were a total of 95,680 Fruit and Tree Nut farms 
(NAICS 1113) in the United States in 2002.\8\ Of this number, nearly 99 
percent had annual sales in 2002 of less than $500,000, which is well 
below the SBA's small-entity threshold of $750,000.\9\ While cash 
receipts by size for avocado farms were not reported in the 2002 Census 
of Agriculture, it is reasonable to assume that most of the 6,251 
domestic avocado farms currently in operation qualify as small 
entities.
---------------------------------------------------------------------------

    \8\ This number includes farms producing fruit and tree nut 
varieties and those specifically producing avocados.
    \9\ Source: SBA and 2002 Census of Agriculture.

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[[Page 10]]

    Avocado packing and shipping establishments, those engaged in 
postharvest crop activities (NAICS 115114), are also expected to be 
small according to SBA guidelines. The small-entity standard for 
packinghouses is $6.5 million or less in annual receipts. In 2004, the 
California Avocado Commission reported that 51 companies were active 
handlers of California avocados at the end of October 2003. Of this 
number, 18 companies had first sales of avocados of under $10,000; 8 
companies had avocado sales of between $10,000 and $49,999; 5 companies 
had sales from $50,000 to $99,999; 5 companies had sales from $100,000 
to $499,999; 2 companies had sales from $500,000 to $999,999; 2 
companies had sales from $1 million to $4,999,999; 1 company had sales 
from $5 million to $9,999,999; 2 companies had sales from $10 million 
to $19,999,999; 6 companies had sales from $20 million to $49,999,999; 
and 2 companies sold over $50 million worth of California avocados. 
This information indicates that 40 of the 51 firms are small entities. 
We conclude that the majority of the handlers that will be affected by 
the rule are small entities.
    According to the Peru Avocado Growers Association, exporters expect 
to ship approximately 19,000 metric tons of fresh Hass avocados per 
year from Peru to the United States. The projected imports are roughly 
5 percent of U.S. fresh avocado consumption and 11 percent of U.S. 
fresh avocado production. It is highly likely, however, that at least a 
portion of the projected imports from Peru will displace imports from 
other foreign sources when fresh avocado supplies are low and demand is 
high. If no displacement were to occur, projected fresh avocado imports 
from Peru will represent an increase in fresh avocado imports of 9 
percent. The extent to which displacement occurs is a critical factor 
affecting the size of potential impacts of this final rule, but, even 
under the conservative estimate of zero displacement, overall net 
benefits are expected to be positive. In the analysis of expected price 
and welfare impacts of the IRFA, we examined effects of the projected 
level of fresh avocado imports from Peru if none, 11 percent, or 24 
percent of the imports were to displace fresh avocado imports from 
other countries. We compared the price and welfare effects for two sets 
of demand and supply elasticities and quantified the welfare effects. 
The higher the level of displacement of imports from other countries, 
the smaller the price decline, and the smaller the welfare losses for 
producers and welfare gains for consumers. In all cases, the model 
results showed positive net benefits overall.
    In addition to considering the effects for three possible levels of 
displacement of fresh avocado imports from other sources, we analyzed 
the sensitivity of the results to different quantities of fresh Hass 
avocados imported from Peru. We calculated the price and welfare 
effects assuming the avocado imports to be 50 percent less or 50 
percent greater than the 19,000 metric tons projected by Peru. Given 
the linearity of the model used to assess welfare impacts, this 
sensitivity analysis yielded changes in welfare that are proportional 
to the assumed levels of imports. Reasonably, some portion of the 
imports from Peru will likely displace existing imports, and price and 
welfare effects of the rule for U.S. entities will be thereby 
moderated. The results of the sensitivity analysis indicate that 
consumers may be positively affected and U.S. producers may be 
negatively affected by a decline in market prices ranging between 1 
percent and 6 percent, depending on the price elasticities of demand 
and supply and displacement ranging from 11 to 24 percent of fresh 
avocado imports from Peru. Net welfare gains for these same levels of 
displacement range from $2.9 million to $17.8 million. In all of the 
modeled scenarios, consumer gains resulting from the final rule were 
found to exceed U.S. producer losses. Nevertheless, producer prices are 
estimated to continue to decline in the long run, which may continue to 
negatively impact producer revenues. As producer receipts decline, so 
shall revenues for avocado handlers. As domestic demand experiences an 
average annual increase for this specialty product, the modeled results 
for all scenarios in the long run showed positive net benefits overall.
    We conclude that, while small producing entities will be affected 
by the final rule, the overall net changes in welfare of allowing the 
importation of fresh Hass avocados from Peru under the specified 
systems approach are likely to be positive given the sizable domestic 
demand for Hass avocados given the available domestic supply.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This final rule allows Hass avocados to be imported into the United 
States from Peru. State and local laws and regulations regarding 
avocados imported under this rule will be preempted while the fruit is 
in foreign commerce. Fresh avocados are generally imported for 
immediate distribution and sale to the consuming 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. No retroactive effect will be given to this rule, 
and this rule will not require administrative proceedings before 
parties may file suit in court challenging this rule.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this final rule. The environmental assessment 
provides a basis for the conclusion that the importation of Hass 
avocados from Peru under the systems approach required by this final 
rule will 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 (NEPA), as amended (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).
    The environmental assessment and finding of no significant impact 
may be viewed on the Regulations.gov Web site.\10\ Copies of the 
environmental assessment and finding of no significant impact are also 
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.
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    \10\ Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0126. The environmental 
assessment and finding of no significant impact will appear in the 
resulting list of documents.

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[[Page 11]]

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0355.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 851-2908.

List of Subjects

7 CFR Part 305

    Irradiation, Phytosanitary treatment, Plant diseases and pests, 
Quarantine, Reporting and recordkeeping requirements.

7 CFR Part 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

0
Accordingly, we are amending 7 CFR parts 305 and 319 as follows:

PART 305--PHYTOSANITARY TREATMENTS

0
1. The authority citation for part 305 continues to read as follows:

    Authority:  7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 
136a; 7 CFR 2.22, 2.80, and 371.3.


0
2. In Sec.  305.2, the table in paragraph (h)(2)(i) is amended by 
adding in alphabetical order, under Peru, a new entry for ``Avocado'' 
to read as follows:


Sec.  305.2  Approved treatments.

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *

----------------------------------------------------------------------------------------------------------------
              Location                      Commodity                 Pest                Treatment schedule
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Peru...............................
 
                                                  * * * * * * *
                                     Avocado...............  Ceratitis capitata....  MB T101-c-1, MB&CT T108-a-
                                                                                      1, MB&CT T108-a-2, MB&CT
                                                                                      T108-a-3, CT T107-a.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 319--FOREIGN QUARANTINE NOTICES

0
3. The authority citation for part 319 continues to read as follows:

    Authority:  7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 
136 and 136a; 7 CFR 2.22, 2.80, and 371.3.


0
4. A new Sec.  319.56-50 is added to read as follows:


Sec.  319.56-50  Hass avocados from Peru.

    Fresh Hass variety avocados (Persea americana P. Mill.) may be 
imported into the continental United States from Peru only under the 
conditions described in this section. These conditions are designed to 
prevent the introduction of the following quarantine pests: Anastrepha 
fraterculus (Wiedemann), the South American fruit fly; Ceratitis 
capitata (Wiedemann), the Mediterranean fruit fly; Coccus viridis 
(Green), the green scale; Ferrisia malvastra (McDaniel), a mealybug; 
and Stenoma catenifer Walsingham, the avocado seed moth.
    (a) General requirements. (1) The national plant protection 
organization (NPPO) of Peru must provide a workplan to APHIS that 
details the activities that the NPPO of Peru will, subject to APHIS' 
approval of the workplan, carry out to meet the requirements of this 
section. The NPPO of Peru must also establish a trust fund in 
accordance with Sec.  319.56-6.
    (2) The avocados must be grown at places of production that are 
registered with the NPPO of Peru and that meet the requirements of this 
section.
    (3) The avocados must be packed for export to the United States in 
packinghouses that are registered with the NPPO of Peru and that meet 
the requirements of this section.
    (4) Avocados from Peru may be imported in commercial consignments 
only.
    (b) Monitoring and oversight. (1) The NPPO of Peru must visit and 
inspect registered places of production monthly, starting at least 2 
months before harvest and continuing until the end of the shipping 
season, to verify that the growers are complying with the requirements 
of paragraphs (c) and (g) of this section and follow pest control 
guidelines, when necessary, to reduce quarantine pest populations. If 
trapping is conducted under paragraph (d)(2) of this section, the NPPO 
of Peru must also verify that the growers are complying with the 
requirements in those paragraphs and must certify that each place of 
production has effective fruit fly trapping programs. Any personnel 
conducting trapping and pest surveys under paragraphs (d)(2) or (f) of 
this section must be trained and supervised by the NPPO of Peru. APHIS 
may monitor the places of production if necessary.
    (2) In addition to conducting fruit inspections at the 
packinghouses, the NPPO of Peru must monitor packinghouse operations to 
verify that the packinghouses are complying with the requirements of 
paragraph (h) of this section.
    (3) If the NPPO of Peru finds that a place of production or 
packinghouse is not complying with the requirements of this section, no 
fruit from the place of production or packinghouse will be eligible for 
export to the United States until APHIS and the NPPO of Peru conduct an 
investigation and appropriate remedial actions have been implemented.
    (4) The NPPO of Peru must retain all forms and documents related to 
export program activities in places of production and packinghouses for 
at least 1 year and, as requested, provide them to APHIS for review.
    (c) Grove sanitation. Avocado fruit that has fallen from the trees 
must be removed from each place of production at least once every 7 
days, starting 2 months before harvest and continuing to the end of 
harvest. Fallen avocado fruit may not be included in field containers

[[Page 12]]

of fruit brought to the packinghouse to be packed for export.
    (d) Mitigation measures for A. fraterculus. Places of production 
must meet one of the following requirements for A. fraterculus:
    (1) Pest-free area. The avocados must be produced in a place of 
production located in an area that is designated as free of A. 
fraterculus in accordance with Sec.  319.56-5.
    (2) Place of production with low pest prevalence. (i) Beginning at 
least 1 year before harvest begins and continuing through the end of 
the harvest, trapping must be conducted in registered places of 
production with at least 1 trap per 0.2 square kilometers (km\2\) to 
demonstrate that the places of production have a low prevalence of A. 
fraterculus. APHIS-approved traps baited with APHIS-approved plugs must 
be used and serviced at least once every 2 weeks.
    (ii) During the trapping, when traps are serviced, if A. 
fraterculus are trapped at a particular place of production at 
cumulative levels above 0.7 flies per trap per day, pesticide bait 
treatments must be applied in the affected place of production in order 
for the place of production to remain eligible to export avocados to 
the United States. The NPPO of Peru must keep records of fruit fly 
detections for each trap, update the records each time the traps are 
checked, and make the records available to APHIS inspectors upon 
request.
    (e) Mitigation measures for C. capitata. Places of production must 
meet one of the following requirements for C. capitata:
    (1) Pest-free area. The avocados must be produced in a place of 
production located in an area that is designated as free of C. capitata 
in accordance with Sec.  319.56-5.
    (2) Treatment. Avocados from Peru must be treated for C. capitata 
in accordance with part 305 of this chapter.
    (f) Surveys for S. catenifer. (1) Peruvian departamentos in which 
avocados are grown for export to the United States must be surveyed by 
the NPPO of Peru at least once annually, no more than 2 months before 
harvest begins, and found to be free from infestation by S. catenifer. 
APHIS must approve the survey protocol used to determine and maintain 
pest-free status and the actions to be performed if S. catenifer is 
detected. Surveys must include representative areas from all parts of 
each registered place of production in each departamento. The NPPO of 
Peru must cut and inspect a biometric sample of fruit at a rate 
determined by APHIS. Fruit sampled must be either from the upper half 
of the tree or from the ground. Sampled fruit must be cut and examined 
for the presence of eggs and larvae of S. catenifer in the pulp or seed 
and for the presence of eggs in the pedicel.
    (2) If one or more S. catenifer is detected in the annual survey, 
or during any other monitoring or inspection activity, the affected 
place of production will be immediately suspended from the export 
program until appropriate measures to reestablish pest freedom, agreed 
upon by the NPPO of Peru and APHIS, have been taken. The NPPO of Peru 
must keep records of S. catenifer detections for each orchard, update 
the records each time the orchards are surveyed, and make the records 
available to APHIS inspectors upon request. The records must be 
maintained for at least 1 year after the beginning of the harvest.
    (g) Harvesting requirements. Harvested avocados must be placed in 
field cartons or containers that are marked with the official 
registration number of the place of production. The place of production 
where the avocados were grown must remain identifiable when the fruit 
leaves the grove, at the packinghouse, and throughout the export 
process. The fruit must be moved to a registered packinghouse within 3 
hours of harvest or must be protected from fruit fly infestation until 
moved. The fruit must be safeguarded by an insect-proof screen or 
plastic tarpaulin while in transit to the packinghouse and while 
awaiting packing.
    (h) Packinghouse requirements. (1) During the time registered 
packinghouses are in use for packing avocados for export to the United 
States, the packinghouses may only accept avocados that are from 
registered places of production and that are produced in accordance 
with the requirements of this section.
    (2) Avocados must be packed within 24 hours of harvest in an 
insect-exclusionary packinghouse. All openings to the outside of the 
packinghouse must be covered by screening with openings of not more 
than 1.6 mm or by some other barrier that prevents pests from entering. 
The packinghouse must have double doors at the entrance to the facility 
and at the interior entrance to the area where the avocados are packed.
    (3) Before packing, all avocados must be cleaned of all plant 
debris.
    (4) Fruit must be packed in insect-proof packaging, or covered with 
insect-proof mesh or a plastic tarpaulin, for transport to the United 
States. These safeguards must remain intact until arrival in the United 
States.
    (5) Shipping documents accompanying consignments of avocados from 
Peru that are exported to the United States must include the official 
registration number of the place of production at which the avocados 
were grown and must identify the packing shed or sheds in which the 
fruit was processed and packed. This identification must be maintained 
until the fruit is released for entry into the United States.
    (i) NPPO of Peru inspection. Following any post-harvest processing, 
inspectors from the NPPO of Peru must inspect a biometric sample of 
fruit from each place of production at a rate to be determined by 
APHIS. The inspectors must visually inspect for the quarantine pests 
listed in the introductory text of this section and must cut fruit to 
inspect for S. catenifer. Unless the avocados were produced in a pest-
free area as described in paragraph (d)(1) of this section, the 
inspectors must cut fruit to inspect for A. fraterculus. Unless the 
avocados were produced in a pest-free area as described in paragraph 
(e)(1) of this section, the inspectors must cut fruit to inspect for C. 
capitata. If any quarantine pests are detected in this inspection, the 
place of production where the infested avocados were grown will 
immediately be suspended from the export program until an investigation 
has been conducted by APHIS and the NPPO of Peru and appropriate 
mitigations have been implemented. If C. capitata is detected, avocados 
from the place of production where the infested avocados were produced 
may be imported into the United States only if treated with an approved 
treatment for C. capitata in accordance with part 305 of this chapter.
    (j) Phytosanitary certificate. Each consignment of Hass avocados 
imported from Peru into the United States must be accompanied by a 
phytosanitary certificate issued by the NPPO of Peru with an additional 
declaration stating that the avocados in the consignment were grown, 
packed, and inspected and found to be free of pests in accordance with 
the requirements of 7 CFR 319.56-50. In addition:
    (1) If the avocados were produced in an area free of A. 
fraterculus, the phytosanitary certificate must state that the avocados 
in this consignment were produced in an area designated as free of A. 
fraterculus in accordance with 7 CFR 319.56-5.
    (2) If the avocados were produced in an area free of C. capitata, 
the phytosanitary certificate must state that the avocados in this 
consignment were

[[Page 13]]

produced in an area designated as free of C. capitata in accordance 
with 7 CFR 319.56-5.
    (3) If the avocados have been treated for C. capitata prior to 
export, the phytosanitary certificate must state that the avocados in 
the consignment have been treated for C. capitata in accordance with 7 
CFR part 305.

(Approved by the Office of Management and Budget under control 
number 0579-0355)

    Done in Washington, DC, this 28th day of December.
Cindy Smith,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-31182 Filed 12-31-09; 8:45 am]
BILLING CODE 3410-34-P