[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)] [Unknown Section] [Page ] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-31893] [Federal Register: December 28, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 318 [Docket No. 93-088-2] Avocados From Hawaii AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: We are amending the regulations governing the interstate movement of Hawaiian fruits and vegetables to allow avocados to be moved from Hawaii into Alaska, accompanied by a limited permit and subject to certain conditions. This action is warranted because the climatic conditions in Alaska ensure that pests of avocados will not present a threat to agriculture in that State. This action relieves some restrictions on the interstate movement of avocados from Hawaii without presenting a significant risk of introducing injurious insects into the United States. We are also amending the regulations to clarify that limited permits may be issued by inspectors or by persons operating under compliance agreements, unless the regulations specify that the limited permit must be issued by an inspector. EFFECTIVE DATE: December 28, 1994. FOR FURTHER INFORMATION CONTACT: Mr. Victor Harabin, Head, Permit Unit, Port Operations, Plant Protection and Quarantine, APHIS, USDA, room 632, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782, (301) 436-8645. SUPPLEMENTARY INFORMATION: Background The Hawaiian Fruits and Vegetables regulations (contained in 7 CFR 318.13 through 318.13-17, and referred to below as the regulations) govern, among other things, the interstate movement from Hawaii of avocados in a raw or unprocessed state. Regulation is necessary to prevent the spread of the Mediterranean fruit fly (Ceratatis capitata (Wied.)), the melon fly (Dacus cucurbitae (Coq.)), and the Oriental fruit fly (Bactrocera dorsalis (Hendel)(Syn. Dacus dorsalis)). These types of fruit flies are collectively referred to as Trifly. The regulations have allowed avocados to be moved interstate from Hawaii to any destination in the United States only if, among other things, they have been treated in accordance with a treatment specified in either Sec. 318.13-4d or Sec. 318.13-4e of the regulations. On February 25, 1994, we published in the Federal Register (59 FR 9136-9140, Docket No. 93-088-1) a proposal to amend the regulations by adding a new Sec. 318.13-4g to allow untreated avocados from Hawaii to be moved interstate to Alaska only, provided that certain conditions are met to help ensure that the avocados moved to Alaska are free from Trifly. We proposed these conditions, in addition to limiting movement only to Alaska, to minimize the risk to Alaskan apples and pears and to address the slight risk that some Hawaiian avocados might eventually move from Alaska to other States. We solicited comments concerning our proposal for 60 days ending April 26, 1994. We received seven comments by that date. They were from State departments of agriculture, fruit growers associations, an agricultural marketing and trade association, and fruit growers and shippers. One comment was in favor of the proposed rule, three comments requested specific revisions to the proposed rule, and three comments opposed the proposed rule. We carefully considered all of the comments we received. They are discussed below. One concern raised by commenters opposed to the proposed rule was that, although we proposed to allow avocados from Hawaii to be moved to Alaska only, there remains a risk that the avocados could be transshipped to the contiguous 48 States. These commenters cited, as an example of a case which demonstrated that transshipments can occur, an interim rule concerning Unshu oranges from Japan that we published in the Federal Register on September 3, 1985 (50 FR 35533, Docket No. 85- 354). Prior to this interim rule, Unshu oranges were allowed to be imported into the State of Alaska without restriction. The interim rule added restrictions because inspection found that Unshu oranges were being moved from Alaska to other places in the United States. While it is true that the illegal movement did occur, it should be explained that there were factors connected with the importation of Unshu oranges at that time that gave shippers incentive to violate the regulations by shipping their fruit to the contiguous 48 States. These factors would not be applicable to the interstate movement of avocados from Hawaii. For example, Unshu oranges were not then grown in the United States. Fresh Unshu oranges were allowed to be imported into the United States exclusively from Japan, and only into Alaska. They were, therefore, not readily available in all U.S. markets. Unshu oranges are an expensive specialty fruit, often given as a gift during winter holidays. The demand for these oranges may not have been met by the severe restrictions on their importation into the United States, providing incentives for transshipment. In contrast, avocados grown in the United States are readily available in U.S. markets and are relatively inexpensive, especially in the western and southeastern States where they are grown. Moving the avocados from Alaska to the contiguous 48 States would not benefit shippers economically, as that practice did for shippers of Unshu oranges. Reshipping would significantly increase the shippers' packaging and shipping costs, offsetting any price advantage over California growers; and, since the U.S. demand for avocados is already being met by California and Florida growers, there is no incentive for shippers to violate the regulations in this way. We have also considered the suggestion by some commenters that Hawaiian avocados may be moved inadvertently from Alaska to the contiguous 48 States by tourists or business travellers who would carry them in their luggage, pockets, or handbags. It is our belief that this is not likely to occur. Avocados are not generally eaten in travel, like an apple or banana, because they usually require some preparation, such as for use in a salad or dip. Also, avocados are expected to be more expensive in Alaska than in California or other southwestern States, so a business traveller would not likely buy his or her avocados in Alaska if he or she is returning to one of those States. A few commenters cited a previous program of the Animal and Plant Health Inspection Service (APHIS) that permitted the interstate movement of untreated avocados from Hawaii, and that was discontinued because a Trifly infestation was discovered in Hawaii. Commenters stated that this experience calls into question the reliability of even commercial shipments of Hawaiian avocados being pest-free. On February 25, 1992, fruit fly larvae were discovered in a Hawaiian avocado picked by an APHIS inspector from a tree in an orchard that shipped avocados to the contiguous 48 States. Soon after, a significant fruit fly infestation was discovered in the Kona area of Hawaii. This infestation affected some avocados that could have been shipped to the contiguous 48 States. For these reasons, the program referred to by commenters, which allowed the movement of untreated avocados from Hawaii to any destination in the United States, was suspended by APHIS on February 26, 1992, and was removed completely in an interim rule published in the Federal Register on July 15, 1992 (57 FR 31306-31307, Docket No. 92-081-1). The situation presented risk to U.S. agriculture only because, at the time the infestation was discovered, APHIS was allowing avocados to move untreated to the mainland United States. It would not have presented any significant risk had the fruit been moving only to the State of Alaska, as we have proposed. Before APHIS implemented the program to allow Hawaiian avocados to move untreated to the mainland, Hawaiian avocados were permitted to move untreated to Alaska only. During that time, we had no evidence of any infestations of Trifly. However, even if an infestation had been present in Hawaii, Trifly would not have become established in Alaska because of Alaska's freezing winters. Again, the basis for our proposal to allow Hawaiian avocados into Alaska is that climatic conditions in Alaska would not allow for the establishment of pests of avocado in the United States. Because Hawaiian avocados will not be distributed in the contiguous 48 States and will only move through specified ports under strict conditions en route to Alaska, our previous experience with Hawaiian avocados that were to be moved to the mainland does not alter our decision to allow avocados from Hawaii into Alaska. Some commenters are concerned that this rule will impose too many additional inspection responsibilities on the APHIS inspection staff in Alaska, as well as in Portland and Seattle. We believe, however, that APHIS' Plant Protection and Quarantine (PPQ) staffs at these ports are currently adequate to manage the additional inspections. We do not anticipate any difficulties in inspecting the small amount of Hawaiian avocados which we expect will be moving to Alaska. One commenter was concerned that fruit flies could escape during transloading of the avocados in Portland or Seattle, and that a population could survive in those States long enough to infest summer fruits and migrate to California before winter arrives. Our experience indicates it is highly unlikely this scenario will occur. We proposed to allow transloading only under very strict conditions and only under the supervision of an APHIS inspector. Large amounts of fruits and vegetables that are prohibited entry into any part of the continental United States are currently transshipped through Portland and Seattle, and are often transloaded at those ports under the same conditions that we proposed for Hawaiian avocados. There has never been any incidence of a pest escaping, establishing itself temporarily in Washington or Oregon, and then moving south to California. There were a few commenters who had suggestions to revise the proposed rule. One commenter requested that we add provisions to the proposed rule to allow the Hawaiian avocados destined for Alaska to be commingled in a single shipping container with other tropical fruits that are destined for either Portland or Seattle. We are making no changes based on this comment. The proposal states that ``(t)he avocados may not be commingled in the same sealed container with articles that are intended for entry and distribution in any part of the United States other than Alaska.'' We believe this provision is necessary because the avocados may carry Trifly and commingling with articles not destined for Alaska would pose a pest risk if those articles became infested with Trifly. In explaining the reason for the request, the commenter states that ``(o)ften shipping costs can be greatly reduced if only partial shipments of avocados are ordered, providing the shipment can be made with other fruit for the same destination.'' According to our proposal, as long as all articles in the sealed container are destined for entry and distribution in Alaska, the avocados may be commingled with other commodities. However, if the other articles in the sealed container are destined for Portland or Seattle with the intention of distributing them in any part of the United States other than Alaska, the shipment would be prohibited for the reasons given in the proposed rule. The same commenter also requested that APHIS allow Hawaiian avocados destined for Alaska to be commingled in a single shipping container with other tropical fruits moving to foreign destinations. The commenter asked that APHIS allow such shipments to be broken down in Portland or Seattle, with the avocados being sent on to Alaska and the other fruits being sent to their respective foreign destinations. Section 318.13-17 of the regulations governs the transit of fruits and vegetables from Hawaii into or through the continental United States en route to foreign destinations. Paragraph (d) of this section states that ``(f)ruits and vegetables shipped into or through the continental United States from Hawaii in accordance with this section may not be commingled in the same sealed container with articles that are intended for entry and distribution in the continental United States.'' ``Continental United States'' is defined in Sec. 318.13-1 to include the State of Alaska. Therefore, in accordance with Sec. 318.13- 17, Hawaiian avocados moved to Alaska could not be commingled in a single shipping container with Hawaiian produce transiting the United States en route to foreign destinations. To allow such a scenario would mean that produce moving under different regulations would be commingled in a single shipping container. It would be operationally difficult to monitor the breakdown and movement of such a shipment to ensure that the avocados are actually moved to Alaska only and that the other produce is moved properly through the United States to its foreign destination. To help ensure that all produce is moved safely and in accordance with the regulations, we believe it is necessary to maintain that the Hawaiian avocados may only be commingled in a single shipping container with produce that is also moving to Alaska only. We are, therefore, making no changes based on this comment. Another commenter suggested that we extend the proposed rule to allow avocados to be carried from Hawaii to Alaska by air passengers in their luggage under the following conditions: (1) In pit baggage on direct flights to Alaska only; (2) only during the months of October to March or April; (3) only ``green ripe'' avocados; and (4) only rough- skinned varieties with the stems intact. We are making no changes based on this comment, for several reasons. The proposed rule includes many provisions and safeguards to help minimize the risk that the avocados will be infested with Trifly, and to help ensure that the avocados are not diverted from their final destination in Alaska. For example, the proposal allows only commercial shipments of avocados to be moved from Hawaii to Alaska, since wild or ``backyard'' avocados could present a higher pest risk than commercially produced avocados. APHIS inspectors would have no way of knowing whether or not an avocado carried by an individual air passenger is commercially produced. Further, we proposed that the avocado shipments be accompanied from Hawaii to Alaska by a limited permit, as a means of documenting the movement of the shipment and ensuring it arrives at its final destination in Alaska. We would have no way of confirming whether or not avocados carried in a passenger's luggage were diverted en route to Alaska because there would be no limited permit. We also proposed strict packing requirements and that the avocados be moved in sealed containers and be transloaded only under specified conditions. These provisions further minimize the risk that Trifly would be introduced in the continental United States, should the avocados be carrying Trifly. We believe these precautions are necessary, and none of these precautions would be possible for air passenger luggage. Finally, one commenter asked that we extend the proposal to allow all ``fruits and vegetables otherwise prohibited movement into or through the continental United States'' to be moved to Alaska under the same provisions as Hawaiian avocados. We are making no changes based on this comment. This rulemaking is only concerned with Hawaiian avocados. If, in the future, we determine that other fruits and vegetables prohibited movement into the continental United States can be safely moved to Alaska only, we will publish a separate proposed rule in the Federal Register. Therefore, based on the rationale set forth in the proposed rule and in this document, we are adopting the provisions of the proposal as a final rule. Miscellaneous We are amending the phrase ``Approved by the Office of Management and Budget under control number 0579-0049'' that appears at the end of Sec. 318.13-4 by removing the number ``0579-0049'' and replacing it with the number ``0579-0088''. This change corrects a prior misprint. Effective Date This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register. Immediate implementation of this rule is necessary to provide relief to those persons who are adversely affected by restrictions we no longer find warranted. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the Federal Register. Executive Order 12866 and Regulatory Flexibility Act This 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. This rule will allow untreated avocados to be moved interstate from Hawaii to Alaska under certain conditions. Avocados are not presently shipped from Hawaii to Alaska because required treatments do not make it economically feasible. In 1992, the U.S. production of avocados, not including Hawaii, was approximately 290 million pounds. California produced approximately 86 percent of this total, with the Hass variety accounting for about 85 percent of California's production. The peak harvest season of the Hass variety is April through October. California supplied approximately 90 percent of Alaska's 1992 avocado market. In 1992, Hawaii produced approximately 700,000 pounds of avocados. Thus, Hawaii's total production was less than 0.3 percent of the total U.S. avocado production for that year. There are about 100 farms in Hawaii that produce avocados. All of these farms would be considered small entities (defined as having sales of less than $500,000 annually), as the total value in 1992 for Hawaiian avocados was only $322,000. The Sharwil variety accounts for about 75 percent of Hawaii's avocado production. The peak harvest season for Sharwil avocados is November through May. This rule change will positively affect Hawaiian avocado producers by providing an economically feasible place for them to ship avocados when there is a surplus in production. Although almost all of Alaska's avocados are supplied by California, the addition of a Hawaiian supply is unlikely to have a significant impact on Californian avocado producers. Before a suspension of shipments in 1992, the shipment of Hawaiian avocados to the contiguous 48 States peaked at only 100,000 pounds. Further, Californian avocados (Hass variety) and Hawaiian avocados (Sharwil variety) have different peak production seasons. As a result, their importation will overlap very little. The shipment of Hawaiian avocados will allow Alaska to have a continuous and varied avocado supply. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities. Executive Order 12372 This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.) Executive Order 12778 This rule has been reviewed under Executive Order 12778, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under OMB control number 0579-0088. List of Subjects in 7 CFR Part 318 Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin Islands. Accordingly, 7 CFR part 318 is amended as follows: PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES 1. The authority citation for part 318 continues to read as follows: Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, 164a, 167; 7 CFR 2.17, 2.51, and 371.2(c). Sec. 318.13-1 [Amended] 2. Section 318.13-1 is amended as follows: a. In the definition for Compliance agreement the reference ``Sec. 318.13-4(e),'' and the reference ``and Sec. 318.13-4g'' are removed. b. A definition for Commercial shipment is added, in alphabetical order, to read as set forth below. c. In the definition for Limited permit, the introductory text is amended by adding the phrase ``or a person operating under a compliance agreement'' immediately following ``inspector'', and paragraph (1) is amended by removing the phrase ``, in conformity with a compliance agreement''. Sec. 318.13-1 Definitions. Commercial shipment. Shipment containing fruits and vegetables that an inspector identifies as having been produced for sale or distribution in mass markets. Such identification will be based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower and packing house on the packaging, and documents consigning the shipment to a wholesaler or retailer. * * * * * 3. In Sec. 318.13-2, the regulatory text of paragraph (a) is redesignated as paragraph (a)(1) and a new paragraph (a)(2) is added to read as follows: Sec. 318.13-2 Regulated articles. (a) * * * (2) Avocados which have been moved to Alaska in accordance with Sec. 318.13-4g are prohibited movement from Alaska into or through other places in the continental United States, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands of the United States. * * * * * 4. In Sec. 318.13-3, the regulatory text of paragraph (b) is redesignated as paragraph (b)(1) and a new paragraph (b)(2) is added to read as follows: Sec. 318.13-3 Conditions of movement. * * * * * (b) * * * (2) Avocados may be moved interstate from Hawaii to Alaska if the provisions of Sec. 318.13-4g are met, and if they are accompanied by a limited permit issued by an APHIS inspector in accordance with Sec. 318.13-4(c). * * * * * 5. Section 318.13-4 is amended as follows: a. A new paragraph (c)(3) is added to read as set forth below. b. Paragraph (d) is amended by adding the phrase ``under paragraph (c)(3) of this section'' immediately following the words ``limited permit''. c. At the end of this section, the OMB control number ``0579-0049'' is removed and the number ``0579-0088'' is added in its place. Sec. 318.13-4 Conditions governing the issuance of certificates or limited permits. * * * * * (c) * * * (3) Except when the regulations specify an inspector must issue the limited permit, limited permits may be issued by a person operating under a compliance agreement. * * * * * Sec. 318.13-4f [Amended] 6. In Sec. 318.13-4f, paragraph (b)(2)(iii) is amended by removing the reference ``Sec. 318.13-4(e)'' and adding ``Sec. 318.13-4(d)'' in its place. 7. Section 318.13-4g is added to read as follows: Sec. 318.13-4g Administrative instructions governing movement of avocados from Hawaii to Alaska. Avocados may be moved interstate from Hawaii to Alaska without being certified in accordance with Sec. 318.13-4 (a) or (b) only under the following conditions: (a) Distribution and marking requirements. The avocados may be moved interstate for distribution in Alaska only, the boxes of avocados must be clearly marked with the statement ``Distribution limited to the State of Alaska'', and the shipment must be identified in accordance with the requirements of Sec. 318.13-6. (b) Commercial shipments. The avocados may be moved in commercial shipments only. (c) Packing requirements. The avocados must have been sealed in the packing house in Hawaii in boxes with a seal that will break if the box is opened. (d) Ports. The avocados may enter the continental United States only at the following ports: Portland, Oregon; Seattle, Washington; or any port in Alaska. (e) Shipping requirements. The avocados must be moved either by air or ship and in a sealed container. The avocados may not be commingled in the same sealed container with articles that are intended for entry and distribution in any part of the United States other than Alaska. If the avocados arrive at either Portland, Oregon or Seattle, Washington, they may be transloaded only under the following conditions: (1) Shipments by sea. The avocados may be transloaded from one ship to another ship at the port of arrival, provided they remain in the original sealed container and that APHIS inspectors supervise the transloading. If the avocados are stored before reloading, they must be kept in the original sealed container and must be in an area that is either locked or guarded at all times the avocados are present. (2) Shipments by air. The avocados may be transloaded from one aircraft to another aircraft at the port of arrival, provided the following conditions are met: (i) The transloading is done into sealable containers; (ii) The transloading is carried out within the secure area of the airport--i.e., that area of the airport that is open only to personnel authorized by the airport security authorities; (iii) The area used for any storage of the shipment is within the secure area of the airport, and is either locked or guarded at all times the avocados are present. The avocados must be kept in a sealed container while stored in the continental United States en route to Alaska; and (iv) APHIS inspectors supervise the transloading. (3) Exceptions. No transloading other than that described in paragraphs (e) (1) and (2) of this section is allowed except under extenuating circumstances (such as equipment breakdown) and when authorized and supervised by an APHIS inspector. (f) Limited permit. Shipments of avocados must be accompanied by a limited permit issued by an APHIS inspector in accordance with Sec. 318.13-4(c) of this subpart. The limited permit will be issued only if the inspector examines the shipment and determines that the shipment has been prepared in compliance with the provisions of this section. Done in Washington, DC, this 20th day of December 1994. Terry L. Medley, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. 94-31893 Filed 12-27-94; 8:45 am] BILLING CODE 3410-34-P