[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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Rules and Regulations
Federal Register
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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.
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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.
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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