Mexican Hass Avocado Import Program

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: November 1, 2001 (Volume 66, Number 212)]
[Rules and Regulations]
[Page 55529-55552]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01no01-27]

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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 00-003-4]
RIN 0579-AB27

AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.

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SUMMARY: We are amending the regulations governing the importation of
fruits and vegetables to increase the number of States in which fresh
avocado fruit grown in approved orchards in approved municipalities in
Michoacan, Mexico, may be distributed. We are also lengthening the
shipping season during which the Mexican Hass avocados may be imported
into the United States. We are taking this action in response to a
request from the Government of Mexico and after determining that
expanding the current Mexican avocado import program would present a
negligible risk of introducing plant pests into the United States.

EFFECTIVE DATE: November 1, 2001.

FOR FURTHER INFORMATION CONTACT: Mr. Wayne D. Burnett, Senior Import
Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700
River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 319.56
through 319.56-8) 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, including
fruit flies, that are new to or not widely distributed within the
United States.
Under the regulations in 7 CFR 319.56-2ff (referred to below as the
regulations), fresh Hass avocado fruit grown in approved orchards in
approved municipalities in Michoacan, Mexico, may be imported into
specified areas of the United States, subject to certain
conditions.Those conditions include pest surveys and pest risk-reducing
cultural practices, packinghouse procedures, inspection and shipping
procedures, and restrictions on the time of year (November through
February) that shipments may enter the United States. Further, the
regulations limit the distribution of the avocados to 19 northeastern
States (Connecticut, Delaware, Illinois, Indiana,Kentucky, Maine,
Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New
York,Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, West
Virginia, and Wisconsin) and the District of Columbia, where climatic
conditions preclude the establishment in the United States of any of
the exotic plant pests that may attack avocados in Michoacan, Mexico.
In September 1999, the Government of Mexico requested that the
Animal and Plant Health Inspection Service (APHIS) amend the
regulations to (1) increase the number of States into which the
avocados may be imported and (2) to allow the shipping season to begin
1 month earlier (October rather than November) and end 1 month later
(March rather than February).
On May 11, 2000, we published a notice in the Federal Register (65
FR 30365-30366,Docket No. 00-003-1) in which we solicited comments on
Mexico's request. In particular, we asked the public for comments and
recommendations regarding the scope of our review of Mexico's request
and requested interested persons to submit any data or information that
may have a bearing on our review of the Mexican Government's request.
We requested that comments focus on scientific, technical, or other
issues that commenters believed should be considered during our review
of the Mexican Government's request.
We solicited comments on our request for 90 days, ending August 9,
2000. By that date, we received 265 comments. In general, the majority
of commenters supported expanding the area of distribution of Hass
avocados and increasing the length of the shipping season during which
Hass avocados may be imported into the United States.
On July 13, 2001, we published in the Federal Register (64 FR
36891-36905, Docket No.00-003-2) a proposal to expand the area of
distribution for Hass avocados imported from Mexico to include
Colorado, Idaho, Iowa, Kansas, Minnesota, Missouri, Montana, Nebraska,
North Dakota, South Dakota, Utah, and Wyoming. We also proposed to
lengthen the Mexican Hass avocado shipping season by 2 months, to
include March and April. We proposed this action in response to the
Mexican Government's request and after determining that expanding the
current Mexican Hass avocado import program would present a negligible
risk of introducing plant pests into the United States.

Note: Under the Plant Protection Act (7 U.S.C. 7701-7772), The
Secretary's decision as to whether it is necessary to prohibit or
restrict the importation of plant products is contingent upon her
determination that such a prohibition or such restrictions are
necessary to prevent the introduction of plant pests into the United
States. The Plant Protection Act does not require that the
Secretary's decision be based on a numerical or quantitative
measurement of risk. In our proposed rule, we described the risk
associated with the importation of Hass avocados under the systems
approach regulations as being ``negligible'', ``insignificant'', or
``reduced to a negligible level.'' We used these terms in their
qualitative, descriptive sense; i.e., according to their common
usage. In this final rule we use only the term ``negligible'' for
consistency.

On July 27, 2001, we published a notice of public hearings in the
Federal Register (66 FR 39121, Docket No. 00-003-3) that detailed the
dates, times, and locations of four public hearings regarding the July
2001 proposed rule.
We solicited comments concerning our proposal for 60 days ending
September 11, 2001. Because APHIS's main office in the Washington,
D.C., area closed early and unexpectedly because of the attack on the
nearby Pentagon on September 11, 2001, we accepted and considered any
comments received by September 12, 2001. We received 71 comments by
that date, including 35 comments made at the four public hearings. The
comments were from officials of State departments of agriculture,
officials of foreign governments, Members of Congress, scientists,
representatives of associations such as farm bureaus, marketing
associations, consumer groups, and trade associations, and growers,
packers, and shippers of avocados. Thirty-seven of the commenters
generally supported the rule, and 34 opposed it. The issues raised in
the comments are discussed below, by topic.
On October 12, 2001, APHIS received a petition from the California
Avocado Commission requesting that the agency suspend further
administrative steps related to this action until, among other things,
APHIS conducts, publishes, and makes available for public comment
additional risk information that complies with Harlan Land Co. et al.
v. USDA, et al., a recent court decision related to the importation of
citrus from Argentina. The plaintiffs in that case are four California
citrus growers and a coalition of California citrus growers. In Harlan
Land, the court ruled that APHIS exceeded its authority under the Plant

[[Page 55531]]

Quarantine Act to permit the importation of Argentine citrus because
the agency did not define ``negligible risk.'' We are denying the
California Avocado Commission's petition and we do not agree that the
Harlan Land decision is applicable to the Mexican Hass avocado
rulemaking. We disagree with much of the Harlan Land decision and
believe that it was predicated on the unique facts of that case and
should, therefore, be limited to the Argentine citrus regulations that
were at issue in that litigation.
Section 7 of the Plant Quarantine Act (7 U.S.C. 160) and section
412 of the new Plant Protection Act (7 U.S.C. 7712) do not require that
the Secretary set a numerical threshold of risk at which the Secretary
must permit or forbid importation; rather, Congress entrusted to the
Secretary's discretion the decision, regardless of any numerical
limitation to permit or forbid importation. Nowhere in section 160 or
412 is the Secretary required to make a finding of negligible risk.
Further, sections 160 and 412 do not set forth specific factors that
the Secretary must consider in making her decision. A numerical
threshold would eliminate the Secretary's ability to exercise her
Congressionally delegated discretion under the Plant Protection Act.

Status of Avocados as a Host for Fruit Flies

Comment: Does APHIS consider Hass avocados to be a host for
Anastrepha spp. fruit flies? Fruit flies are not known to infest Hass
avocados under normal growing conditions, and no historical evidence
exists that these pests attack Hass avocados under natural conditions,
according to APHIS's 1995 Risk Management Analysis.
Response: APHIS considers Hass avocados to be a possible non-host,
or, at best, a poor host, for Anastrepha spp. fruit flies. No available
scientific research has conclusively proven that(1) Hass avocados are a
host for Anastrepha fruit flies under field conditions, or (2) that
Hass avocados are not a host for Anastrepha fruit flies under field
conditions. However, we are unaware of any reported detections of
Anastrepha fruit flies infesting Hass avocados under field conditions.
Some research using ripe fruit has shown that Anastrepha fruit flies
can infest Hass avocados under forced laboratory conditions, but no
research has shown that Hass avocados can be infested under natural
conditions in the field.
Comment: In laboratory tests aimed at ascertaining the
susceptibility of several avocado varieties grown in California to
infestation by the Mexican fruit fly (Anastrepha ludens), cultivars
Anaheim and Hass proved uninfested while Nabal, Ryan, Fuerte, Zutano,
Puebla, and several other unnamed varieties were infested under the
highly artificial conditions of the study.
Response: APHIS believes that the research mentioned above and
other scientific evidence show that Hass avocados are resistant to
infestation by Anastrepha spp. fruit flies. However, we are not certain
to what degree they are resistant. As stated above, APHIS considers
Hass avocados to be a possible non-host, or, at best, a poor host, for
Anastrepha spp. fruit flies.
Comment: One reason why fruit flies may lay eggs in Hass avocados
is likely a result of ``egg load.'' Flies may lay eggs in avocados
simply because they have built up an excess of eggs and need to release
some. For lack of a better available host, they choose avocados, just
as they might choose plastic wrap or wood, under forced conditions.
Response: APHIS feels the commenter's supposition is entirely
possible, since it is well known that fruit flies will lay eggs
wherever they can if a preferred host is not available.
Comment: No research exists to verify with certainty that Hass
variety avocados are a host for Anastrepha spp. fruit flies. There is
no evidence showing that Hass avocados have been infested with
Anastrepha spp. under field conditions. Anastrepha fruit flies may be
present in avocado orchards not because they are seeking avocados as
hosts, but because the groves provide a good microclimate for the
flies. Almost all flies are captured on the periphery of avocado
groves, and most likely enter and leave due to lack of preferred host
material, and it is likely that fruit flies do not breed in commercial
avocado orchards. Therefore, fruit flies should not be considered a
pest of Hass avocados, because they do not cause any economic damage to
commercially grown fruit.
Response: As stated above, APHIS agrees that no research or
evidence exists that proves that Hass avocados are hosts for Anastrepha
spp. under field conditions. Until such research is completed, APHIS
will continue to consider Hass avocados hosts for fruit flies, albeit
poor hosts.
Comment: The underlying assumption of the regulations is that
avocados are poor hosts for the Mexican fruit fly. We do not know that
this is truly the case. We need a better understanding of the true host
status of the Hass avocado for Mexican fruit fly. As was shown with
Sharwil avocados in Hawaii, a presumed non-host can become a good host
if conditions are correct.
Response: As stated above, the host status of Hass avocados for
Anastrepha spp. fruit flies has not yet been clearly defined, and until
proven otherwise, APHIS will continue to consider Hass avocados as poor
hosts for Anastrepha spp. fruit flies. However, while there is not
sufficient research available to confirm that Hass avocados are not
hosts of Anastrepha spp. fruit flies, no such fruit flies have ever
been detected and reported in Hass avocados growing under field
conditions.
Comment: What role do decreasing seven carbon sugars in the peel
and flesh of the fruit play in host resistance? What about changes in
fatty acid composition? What about barrier infestation of the fruit and
the peel? We know that the fruit skin thins considerably as it hangs on
the tree.
Response: Research aimed at determining the host status of Hass
avocados has not shown the physiological reason why they appear to be
resistant to fruit flies. Field cage tests previously conducted in
Mexico were designed to test commercial avocados for resistance to
fruit flies. The field cage tests found that, whatever their
physiological condition, the fruits were resistant to fruit flies. (The
nature of this resistance was not determined.)
Regarding the thinning of the skin: In the field cage tests, fruit
flies were able to penetrate the skin and lay eggs in the fruit, but
the eggs failed to develop. In laboratory tests that involved fruit
subjected to infestation immediately after harvest, fruit flies were
also able to penetrate the skin and lay eggs in the fruit, but eggs
failed to develop. Only when fruit was harvested, held for several
days, and then subjected to oviposition under forced conditions were
the eggs able to develop into larvae.
Comment: APHIS relies on the total number of fruit cut and
inspected without detection of fruit fly larvae during the operation of
the Mexican Hass avocado import program as evidence of the poor host
status of Hass avocados.
Response: APHIS believes that the number of fruit cut and inspected
without detection of fruit fly larvae during the operation of the
Mexican Hass avocado import program provides evidence that the systems
approach is working as designed and is effectively mitigating the risk
of pest introduction into the United States. As stated in the proposed
rule, nearly 5.5 million fruit have been cut and inspected in orchards,
in packinghouses, and at the border, and none were found infested

[[Page 55532]]

with target pests. While it may be tempting to infer that, based on the
number of fruit cut without detection of fruit fly larvae, Hass
avocados growing in commercial groves in Michoacan, Mexico, are not
hosts to Anastrepha spp. fruit flies, no scientific evidence is
available that conclusively supports or denies that conclusion.
Comment: An Agricultural Research Service (ARS) review of a
research report from Mexico dated July 21, 1994, concluded, ``it
appears that Hass avocado, while on the tree, may be resistant to fruit
fly development but this needs to be systematically proven before
``non-host'' status can be demonstrated.'' At the time, this prompted
APHIS to write to Sanidad Vegetal: ``Because of their high
susceptibility in the laboratory, we cannot yet consider Hass avocados
as being nonhosts under field conditions without research to identify
the resistance factors over time and under all ecological conditions.''
Has this research been done? Regardless, APHIS has apparently changed
its position on the issue of the host resistance of Hass avocados.
APHIS has emphatically stated, ``host resistance is real'' based on
fruit cutting results generated by the Mexican Avocado Import Program,
despite the fact that past research projects have not conclusively
established that Hass avocados are physically or chemically resistant
to attack by fruit flies. APHIS's position on host resistance lacks
substance, flies in the face of scientific principles, and cannot be
relied upon as a risk mitigation strategy (it is presently Step Four in
APHIS's systems approach).
Response: As stated earlier in this document, APHIS has not changed
its position on the issue of host resistance, because no available
scientific evidence conclusively proves that Hass avocados that are
imported under the conditions of the systems approach are not hosts for
fruit flies. APHIS did state in the June 1999 ``Review of the Systems
Approach for Mexican Avocado'' that ``the evidence shows that this
variety [Hass]
is either not a host or a poor Anastrepha fruit fly host
prior to harvest * * * The field and packinghouse fruit cutting
(2,897,926 fruit for both seasons) indicates that the host resistance
is real.''
We do not believe our use of the word ``indicates'' represents the
``emphatic statement'' suggested by the commenter. In fact, that
sentence is the only time APHIS has gone on record with such a
statement , and the June 1999 Review is not considered a risk
assessment document, and does not, by itself, provide any basis for the
expansion of the Mexican Hass avocado import program. As stated earlier
in this document, APHIS does believe that the number of fruit cut and
inspected without detection of fruit fly larvae during the operation of
the Mexican Hass avocado import program provides evidence that the
systems approach is working as designed and is effectively mitigating
the risk of pest introduction into the United States.

Enforcement and Outreach

Comment: Who is going to enforce the rules and regulations that
APHIS has proposed? Is enforcement being paid for by U.S. taxpayers? Is
it going to be self-policing?
Response: APHIS's International Services (IS) maintains a presence
in the avocado production areas in Michoacan. IS has an inspector
stationed in Michoacan year-round to ensure that APHIS regulations and
the conditions of the program workplan are being complied with in
approved orchards and packinghouses. APHIS also employs seasonal
inspectors who monitor compliance with the regulations during the
orchard certification process and the avocado shipping season. These
enforcement activities are paid for out of a trust fund account that is
funded by an association of Mexican avocado growers in accordance with
the regulations in Sec. 319.56-2ff(b).
As has been the case for the first 4 years of the program, the
regulations will be enforced in the United States by APHIS Plant
Protection and Quarantine (PPQ) officers stationed at ports and offices
in both approved and nonapproved States. Additional services will be
provided by APHIS-PPQ's Smuggling Interdiction and Trade Compliance
(SITC) program, which:
Conducts smuggling interdiction efforts at air, land, and
sea ports of entry.
Carries out domestic market surveys for the presence of
prohibited products.
Conducts transit survey and smuggling interdiction efforts
at truck weigh stations inside the country.
Provides education and outreach to importers, market
owners, transportation companies, retailers, and the public regarding
regulatory compliance.
Provides liaison and cooperative efforts with State
departments of agriculture and other Federal agencies such as the U.S.
Customs Service, U.S. Fish and Wildlife Service, U.S. Food and Drug
Administration, and U.S. Department of Agriculture's (USDA's) Food
Safety and Inspection Service.
Works closely with APHIS's Investigative and Enforcement
Services (IES) and USDA's Office of the Inspector General and Office of
General Counsel to investigate potential regulatory violations and
prosecute violators to the full extent of the law.
Gathers information to identify and close down smuggling
pathways for prohibited agricultural products.
More information on the SITC program is available on the APHIS
website at: http://www.aphis.usda.gov/ppq/trade/. PPQ and SITC
enforcement activities are funded by Agricultural Quarantine and
Inspection (AQI) user fees paid by persons who import commodities,
including avocados, into the United States.
Comment: What additional resources are going to be available to
enforce the regulations, given the expansion of the program? There is
legitimate concern that the Mexican Hass avocado import program cannot
be effectively monitored under the current state of APHIS resources,
particularly in the enforcement area. APHIS should review its resources
prior to adopting any change to the program.
Response: APHIS has reviewed its resources and believes it has
adequate coverage across the United States to ensure compliance with
its regulations, including the Mexican Hass avocado import program, as
expanded by this rule.
Comment: When avocados are moved into Utah, how is APHIS planning
to guard the border to ensure that they do not move westward toward
California?
Response: There are no APHIS personnel who physically guard borders
between U.S. States. However, all persons who move or distribute
Mexican Hass avocados within the United States must enter into a
compliance agreement with APHIS wherein they must acknowledge and agree
to observe the regulations that restrict the movement of Mexican Hass
avocados to certain States. Furthermore, persons who obtain permits to
import Mexican Hass avocados may only transfer the avocados to persons
who have entered into a compliance agreement with APHIS. Persons who
violate these conditions may have their permits or compliance
agreements revoked. Violators are also subject to penalties authorized
under the Plant Protection Act (7 U.S.C. 7701-7772).
APHIS-PPQ also has enforcement personnel in each U.S. State who are
responsible for monitoring compliance with APHIS-PPQ regulations,
including the Mexican Hass avocado import program. These personnel
review shipping documents at either end of the

[[Page 55533]]

shipping process to ensure that Mexican Hass avocados are distributed
only to approved States.
Comment: Are the distribution hubs of retail chains that operate in
States inside and outside the approved distribution area going to be
monitored? If so, by whom? Who will pay for the monitoring?
Response: Distribution hubs of such retail operations will have to
enter into the same compliance agreements just described, and will be
subject to the same monitoring just described. As stated earlier in
this document, monitoring is funded by receipts of AQI user fees paid
by persons who import commodities, including avocados, into the United
States.
Comment: Will there be an educational outreach effort to educate
trucking companies on the restrictions associated with the movement of
imported avocados? If so, who will conduct the outreach, and who will
pay for it?
Response: APHIS will send letters to various trucking industry
organizations and produce marketing organizations notifying them of the
change in the regulations. Furthermore, the revised box marking
requirement should be helpful in alerting shippers and retailers to the
change in the regulations. All of APHIS's educational outreach
activities, including outreach activities regarding Mexican Hass
avocados, are paid for with funds appropriated by Congress.
Comment: There is an economic incentive for consumers to smuggle
fruit into prohibited areas. What kind of outreach is planned to
educate the public on the legal ramifications of moving Mexican Hass
avocados to nonappproved States? Who will fund the outreach activities?
Response: There will always be some risk that commodities will be
smuggled into one area from another area where they cost less. APHIS
does not believe that expansion of the Mexican Hass avocado import
program will increase the likelihood that smuggling will occur.Further,
APHIS has not planned any outreach activities that are directed at
consumers because it does not believe that smuggling of Mexican Hass
avocados by consumers is a serious problem.Small quantities of Hass
avocados that are moved into nonapproved areas do not present a major
risk that pests could be introduced into, or become established in,
those areas, especially given that Mexican Hass avocados have not been
shown to be infested with any pests of concern.
Comment: Controls should continue to be tightened to keep Mexican
Hass avocados from being illegally shipped to Florida and other States
with avocado pest host material. One shipment of avocados found in
Florida did have scale, which is an actionable pest in Florida.
Response: APHIS is pleased with statistics that suggest there has
been over a 99 percent rate of compliance with the limited distribution
requirements for shipments of Hass avocados from Mexico. This
compliance rate is well within the estimates used for the risk
assessment, and therefore, APHIS sees no need to further tighten
restrictions on Mexican Hass avocado imports.The scale insect referred
to above was not an exotic species that required quarantine action by
APHIS.
Comment: Interception statistics suggest that 1 out of every 1,000
shipments of boxes of avocados ends up outside the approved
distribution area. Is this an acceptable level of risk?
Response: APHIS does not determine ``acceptable levels of risk''
for each node or potential risk event. Rather, estimates of the risk
that specific events could occur are factored into the overall
calculations of risk in the risk assessment. The risk assessment
concludes that there is a negligible risk of pest introduction
associated with Mexican Hass avocados imported under the various
requirements of the systems approach.
Comment: APHIS has been too slow in applying appropriate penalties
to U.S. distributors who knowingly divert Mexican Hass avocados to
nonapproved States.
Response: APHIS makes every attempt to resolve cases as quickly as
possible; however, all alleged violators of APHIS's regulations have
rights, are afforded due process, and may request to present their case
at a hearing. This process can take time due to the fact that violators
often have the right to appeal their cases to higher courts.
Comment: USDA-APHIS does not have a tracking system in place to
monitor the movement of avocados to their final destination. Even
though boxes of avocados are marked with destination restriction
requirements, there is nothing to stop fruit from being repackaged and
sent to nonapproved areas. The Florida Department of Agriculture is
concerned that there is no mechanism in place to protect it from fraud
by avocado shippers, packers, etc.
Response: Shipments of Mexican Hass avocados may only be imported
under limited permits granted by APHIS and are tracked to their initial
destination in the United States. APHIS inspectors confirm that
shipments arrive at their approved destination by reviewing shipping
documents, and monitor shipments from distribution hubs to ensure that
avocados are not shipped to nonapproved areas. Shippers of Mexican Hass
avocados must retain their shipping records, which are subject to APHIS
review.
APHIS believes it is highly unlikely that Mexican Hass avocados
would be repackaged and sent to nonapproved areas, especially given
that each avocado must be identified with a sticker that bears the
Sanidad Vegetal registration number of the packinghouse where they were
packed in Mexico. An unscrupulous distributor who wished to illegally
transship Mexican avocados would have to pay the costs associated with
obtaining a shipment of imported Mexican avocados at wholesale prices
from a terminal market in an approved State, moving that shipment to a
secure location, unloading the boxes from the truck or container,
removing all the avocados from their packing boxes, peeling the sticker
from each piece of fruit, perhaps adding a new sticker to each piece of
fruit, repacking the fruit in new boxes, loading the boxes back onto
the truck or container, and driving the load of avocados across the
country to one of the expected high-demand markets (south Florida,
Texas, and California), all of which would limit the profitability of
such an illegal enterprise. We believe that this limited profit
potential, when combined with other factors such as the ready
availability of domestic and imported avocados in areas outside the
approved States and the fact that persons involved in such illegal
transshipment are liable to legal action, incarceration, or fines,
makes it unlikely that such ``commodity fraud'' will take place.
Comment: Since the inception of the Mexican Hass avocado
importation program, two avocado pests from Mexico, the avocado thrips
(Oligonychus perseae) and the Mexican fruit fly(Anastrepha ludens) have
caused significant damage to the agricultural industry in San Diego
County, CA. The thrips were likely introduced into California as a
result of illegal shipments of Mexican avocados, despite APHIS's
contention that Mexican Hass avocados have not been diverted into
California.
Response: To clarify, the scientific name for the avocado thrips is
Scirtothrips perseae, and the scientific name for the persea mite is
Oligonychus perseae. Both of the these pests are established in the
State of California, and both cause damage to avocado fruit. The
avocado thrips was first noticed in California in July 1996, and the
persea mite was first identified in California in

[[Page 55534]]

1990. Both pests were introduced into California prior to the beginning
of the Mexican Hass avocado import program, and were not introduced
into California via Mexican Hass avocados imported under the systems
approach regulations. APHIS can only speculate as to how those pests
were introduced into California, but believes it is possible that both
could have been introduced via propagative material imported from
Mexico in violation of APHIS regulations.
The Sequeira, et al. study, which provides part of the basis for
this final rule, identifies San Diego County as an area at high risk
for fruit fly establishment. Given the poor host status of Hass
avocados for Anastrepha spp. fruit flies, and given the limited
distribution requirements of the regulations and all the APHIS
enforcement activities that support those regulations, APHIS believes
it is highly unlikely that imported Hass avocados from Mexico could
serve as a pathway for the introduction of fruit flies into San Diego
County. Outbreaks of Mexican fruit fly occurred periodically prior to
the inception of the Mexican Hass avocado program. APHIS believes these
infestations were likely triggered by small amounts of preferred host
material smuggled within legitimate cargo or passenger baggage.
Comment: APHIS's amendment of the regulations to require compliance
agreements is appreciated. However, even after the new requirements,
California continued to intercept Mexican avocado shipments, mostly at
border stations, that were being moved in violation of the limited
distribution and travel corridor requirements.
Response: APHIS is unaware of any Hass avocados imported under the
systems approach regulations that were intercepted at California border
stations. APHIS is aware that in early 1999, several shipments of
Mexican avocados intended for transit through the United States and
exportation to another country were intercepted at California border
stations. These shipments were not associated with the Mexican Hass
avocado import program.

Inequity of Treatment Protocols

Comment: In 1999, when APHIS declared a Mexican fruit fly
quarantine covering an 81-square-mile area surrounding Fallbrook, CA,
after finding two Mexican fruit flies, there was no debate about the
host status of Hass avocados. APHIS did not classify Hass avocados as a
secondary host, as did Sequeira, et al. In California, APHIS required
the application of Malathion bait treatments for two life cycles of the
Mexican fruit fly--a period of time covering 4 to 8 months--before Hass
avocados could be harvested from groves within the quarantine zone. By
contrast, under the regulations, if two fruit flies are detected within
a 260-hectare area within the approved Hass avocado export area in
Mexico, growers may continue to export fruit to the United States
provided that malathion bait treatments are applied every 7 to 10 days.
This APHIS policy unfairly favors foreign interests over domestic
producers of avocados, and APHIS offers no explanation for this
apparent double standard in the proposed rule or any of the supporting
documents.
Response: APHIS acknowledges that there are differences in the
regulatory procedures for growers to certify the movement of Hass
avocados from Mexican fruit fly regulated areas of Mexico and the
United States. However, in both cases, the goal of the regulatory
procedures is the same: To eliminate the potential for spread of fruit
flies. In 1999 in Fallbrook, CA, APHIS quarantined an 81-square-mile
area until such time as we could determine that there was not a
reproducing fruit fly population in that area. To ship fruit out of the
area, growers had to bait treat Hass avocado orchards at 6 to 10 day
intervals for two fruit fly life cycles as estimated by the degree day
model. Upon completion of bait spray treatments, Hass avocados from the
regulated areas could be shipped anywhere in the United States, without
any further restriction.
In contrast, Hass avocados grown in approved orchards in Michoacan,
Mexico, are always subject to the various conditions employed by the
systems approach regulations, which are intended to protect the United
States from the introduction of fruit flies and avocado-specific pests.
While Hass avocados from Mexico may continue to be shipped to the
United States if 2 fruit flies have been found in a 260-hectare area
within the growing area, such avocados are still subject to all of the
other risk-mitigating conditions of the systems approach. These
conditions include, among other things, requirements that Hass avocados
only be shipped to certain States during certain months of the year,
that they originate in orchards that meet certain sanitation
requirements, that they be packed in packinghouses under certain
conditions, that the boxes and fruit be specially labeled, that certain
numbers of fruit must be cut in orchards, in the packinghouse, and at
the border, and that persons handling and shipping avocados enter into
compliance agreements with APHIS. U.S. growers within an area under a
fruit fly quarantine are not subject to any restrictions of this type,
and may ship Hass avocados to all areas of the United States at any
time of year after bait treatments have been completed.
These issues aside, APHIS understands that avocado growers in
California would like to be able to harvest and ship their fruit during
a fruit fly quarantine in the event that one was to be declared in a
domestic growing area. APHIS is currently evaluating protocols that
would enable such movement.

Extension of Shipping Season and Expansion of Approved Distribution
Area

Comment: The regulations should list States where the distribution
of Mexican Hass avocados is prohibited rather than States where such
distribution is allowed.
Response: APHIS agrees that the box markings for imported Mexican
avocados should be revised. Therefore, in this final rule we are
revising the box marking provisions to require that boxes of Hass
avocados imported from Mexico be clearly marked with the statement``Not
for distribution in AL, AK, AZ, AR, CA, FL, GA, HI, LA, MS, NV, NM, NC,
OK, OR, SC,TN, TX, WA, Puerto Rico, or any other U.S. Territory.'' The
requirements that avocados be packed in clean, new boxes clearly marked
with the identity of the grower, packinghouse, and exporter are not
affected by this change. Given that the number of approved States now
exceeds the number of nonapproved States, this change will reduce the
amount of text necessary for the box markings, making them easier to
read.
Comment: During the first year of the Mexican Hass avocado import
program, six States were believed to have received illegal avocado
shipments. To help protect the large California avocado industry from
infestation, States such as Kansas and Utah should be removed from
consideration. Utah is 200 miles from California, and Kansas is just
across the Oklahoma panhandle from Texas.
Response: APHIS is confident that monitoring activities conducted
by PPQ, which are described in detail earlier in this document, are
adequate to ensure that Hass avocados from Mexico are not diverted into
nonapproved States. APHIS does, however, wish to restate that the risk
estimates assume that, despite the regulations and APHIS's enforcement
activities, a certain number of boxes of avocados might be diverted
outside the approved distribution area. These risk estimates are
factored into the overall calculations of risk in the

[[Page 55535]]

risk assessment, which provides that there is a negligible risk of pest
introduction associated with the importation of Mexican Hass avocados.
During the first 4 years of the program, 3881 boxes of fruit were
diverted outside the approved distribution area. This number is
substantially less than the number APHIS assumed might be diverted in
calculating the overall pest risk associated with the importation of
avocados. To change the overall risk estimate, the amount of diversion
would have to be approximately 50 times the current level of diversion.
Comment: APHIS-PPQ's industry alert dated October 2000 states that
moving or shipping Mexican Hass avocados to other States poses a risk
of introducing pests that could cause millions of dollars of damage to
U.S. crops. Why does APHIS's proposed rule state the opposite of what
was reported in the industry alert?
Response: The October 2000 Industry Alert was based on information
available to us at the time it was prepared. As stated in our proposed
rule, APHIS proposed to expand the Mexican Hass avocado import program
based on:
Risk assessment documents on which the original import
program was based, but that still provide a basis for expansion of the
program.
A study conducted by the North American Plant Protection
Organization's (NAPPO's) Pest Risk Assessment Panel (referred to
elsewhere in this document as ``Sequeira, et al.'') that provides
evidence that Anastrepha fruit flies could not become established in
the States proposed for expansion.
Four shipping seasons (1997-2001) worth of shipping and
inspection data and four years worth of fruit fly trapping data for the
approved orchards in approved municipalities in Mexico.
The content of these documents, and our analysis of their
applicability to Mexico's request that we expand the Mexican Hass
avocado import program is documented in APHIS's ``Information Memo for
the Record'' (April 30, 2001).
Comment: The Department appears to be sweeping aside one of the
critical components to the systems approach, namely limiting the season
of shipment. Under the proposal, fruit and pests can be shipped into
the United States during times (April and May) when there certainly is
host material present in the receiving States. Consequently, the rule
should be appropriately modified to delete April as a shipping period.
If the Department is intent on expanding the time period to cover a 6-
month shipping window, then a possible approach would be to start the
program on October 15 and end it on April 15.
Response: APHIS has reviewed the risk assessment documents on which
this rule is based, and finds that they support the commenter's
suggestion. We have reviewed anecdotal evidence regarding the marketing
patterns of Mexican Hass avocados and have found that Hass avocados
remain in the marketplace for 2 to 4 weeks after importation.
Therefore, avocados imported on April 30 could be in the marketplace
until late May, when fruit fly host material would be beginning to
become available in some approved States. To further reduce the risk
that fruit flies, if imported with Mexican Hass avocados, could find
suitable host material in approved States, we are revising the dates
that begin and end the shipping season. As suggested by the commenter,
the shipping season will run from October 15 through April 15. This
change will help to ensure that fruit flies, in the highly unlikely
event that they are present in imported Hass avocados, are even less
likely to be imported into areas with suitable host material that could
support their survival.
As stated in our proposed rule, the numbers of fruit flies trapped
in approved municipalities in Michoacan are higher in October than in
April. However, climatic conditions in the States proposed for
expansion are less conducive to fruit fly survival in late October than
in mid- to late May, when imported avocados could still be in the
marketplace in the United States. Climatic conditions in October in the
approved distribution area are such that even if fruit flies were
present in shipments of avocados, the flies would find little or no
host material on which to survive. Further, even if host material were
present and conditions were suitable for fruit fly survival in late
October, conditions in November would not suitable for fruit fly
survival.
Comment: Although trapping data indicate that fruit fly population
levels in Michoacan are lower between the months of November and April,
captures in May rise precipitously. For adults to be captured in May,
ovipositing in host material had to occur in late March or early April,
depending upon ambient weather conditions. Generally, temperatures
between 20 and 30 deg.C considered optimal for the development of
Anastrepha spp. fruit flies. According to the Joint Agricultural
Weather Facility, operated by the World Agricultural Outlook Board of
the USDA and the National Oceanic and Atmospheric Administration (NOAA)
of the U.S.
Department of Commerce, average temperatures in those
municipalities in Michoacan, Mexico, approved for the export of Hass
avocados were within this range between February 1 and April 30, 2001.
This means that fruit fly eggs and larvae were present in host material
in or around avocado groves at the time of the proposed harvest of Hass
avocados for shipment to the United States.
Response: As stated elsewhere in this document, APHIS has
acknowledged that Anastrepha spp. fruit flies are present in Michoacan,
which is why the systems approach regulations include safeguards to
prevent the introduction of those pests. The requirements, such as
surveillance trapping, increased trapping in response to a single fruit
fly detection, Malathion bait treatments, covering of harvested
avocados, fly-proof screens on packinghouses, and inspections, work
together with the poor host status of Hass avocado fruit growing in
commercial orchards in Michoacan to mitigate the risk posed by
Anastrepha spp. fruit flies.
Comment: To allow Hass avocados to pass through Florida for an
extended period when the invasive pests associated with avocados are
more prevalent would create a hardship for the Florida avocado industry
and the larger Florida agricultural industry. Although identified pests
of avocados would not likely become established in the approved States,
they could become established in Florida. With the potential for
transshipment, that is a distinct possibility.
Response: Avocados imported under the systems approach regulations
contained in Sec. 319.56-2ff are not eligible for movement into or
through Florida at any time.

Pest Detection

Comment: Without knowing the methodology used for fruit cutting and
other visual survey activities, there is no way for reviewers to draw
conclusions from the survey or other interpretive data provided.
Response: There is no manual on methods for fruit cutting and other
visual survey activities, per se. However, there is some discussion of
such methodologies in the 1995 Risk Management Analysis and the
workplan for the Mexican Hass avocado import program. Again, APHIS is
confident that Mexican Hass avocados are properly cut and inspected in
orchards, at packinghouses, and at the port of first arrival in the
United States.
Comment: The biology of potentially serious pests like thrips makes
detection very difficult. Thrips eggs are extremely

[[Page 55536]]

small and are usually laid within the tissues of leaves or skin of
fruit. The number of eggs laid within individual leaves and fruit in
orchards infested with the avocado thrips in California can easily
exceed 20. Plant material entering the United States, either legally or
illegally, with this number of viable eggs provides a good-sized cohort
that could establish a reproducing population in a permissive
environment. Further, frequent introductions of small numbers of pests
ultimately could lead to establishment when founding populations enter
a permissive environment.
Response: APHIS is confident that infestations of thrips in Hass
avocados can be detected during inspections required under the systems
approach, including inspections at the port of first arrival in the
United States. Available literature suggests that most thrips feed on,
and lay eggs in, other parts of plants besides fruit, and therefore,
APHIS does not generally consider fruit a likely pathway for thrips.
Furthermore, the lack of interceptions of thrips of quarantine
significance in commercial shipments of avocados suggests that imported
avocado fruits are not a good pathway into the United States for such
pests.
Comment: In the 2001 trip report, Dr. Cervantes states that ``the
methods used for detecting pests that have been proposed in the USDA-
SAGAR workplan, if they are followed as specified, are adequate to
detect the presence of the seed moth.'' What about the other pests?
Response: Dr. Luis M. Cervantes Peredo was asked to review only the
avocado seed moth detection activities associated with the Mexican Hass
avocado import program. Dr. Cervantes is an expert on the avocado seed
moth, and in his report found that the various pest detection measures
used in the program are adequate to detect the presence of the avocado
seed moth in approved avocado groves.
Comment: Is there a prescribed protocol for certifying or otherwise
validating laboratory standards and/or detection programs in the areas
of origin? Who ensures that such protocols are enacted? Are there
penalties for laboratories or detection facilities and programs that do
not enact or conform to the prescribed protocols?
Response: We are unsure of what the commenter means by ``laboratory
standards,'' as the program involves no laboratories, per se.
Regardless, as stated earlier in this document, APHIS's International
Services (IS) maintains a presence in the avocado production areas in
Michoacan. IS has an inspector stationed in Michoacan year-round to
ensure that APHIS regulations and the conditions of the program
workplan are being complied with in approved orchards and
packinghouses. APHIS also employs seasonal inspectors who monitor
compliance with the regulations during the avocado shipping seasons.
Orchards that do not meet the criteria outlined in the regulations
(including trapping, fruit cutting, orchard sanitation, and other
requirements) are removed from the program. Essentially there should be
minimal concern that APHIS standards are being met in Mexico because
APHIS monitors all aspects of the import program.

Fruit Cutting

Comment: A fruit fly egg is about 1.2 millimeters in length in the
field and in the packinghouse where 99 percent of all fruit cutting for
the program takes place. Weevil larvae feed just underneath the skin of
avocado near the stem end and, unless fruit are examined closely,
larvae would not be detected. Fruit that are cut should be examined for
eggs of fruit flies, weevils, and thrips using hand lenses or
dissecting microscopes. Non-detection under the current fruit cutting
procedures does not indicate non-infestation.
Response: APHIS inspectors are allowed to use their discretion in
selecting a method of examination of imported Hass avocados. Each
inspector has a hand lens that he or she may use if needed to aid in
the detection of pests in Hass avocados. APHIS is aware that there is a
remote possibility that pests could infest fruit and escape detection
during fruit cutting. However, fruit cutting represents only one
element of the systems approach, which uses a series of overlapping,
redundant safeguards to mitigate the risk of pest infestation. In fact,
Table 3 in the risk management analysis for the systems approach shows
that fruit cutting is one of the least effective risk mitigating tools
used in the systems approach. For convenience, the table is reproduced
below.

Table 3.--Systems Approach: Mexican Avocado
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reduction of potential pest risk
------------------------------------------------------------------------------------------------------------------------
Risk mitigation measures Small avocado seed Avocado stem Large avocado seed
Fruit flies: weevils: weevil: Copturus weevil: Heilipus Avocado seed moth: Hitchhikers and
Anastrepha spp. Conotrachelis spp. aguacatae lauri Stenoma catenifer other pests
--------------------------------------------------------------------------------------------------------------------------------------------------------
Field surveys.................. 40% to 60%......... 95% to 99%........ 80% to 95%........ 95% to 99%........ 95% to 99%........ 40% to 75%
Trapping and field treatments.. 55% to 75%......... 0................. 0................. 0................. 0................. 3% to 20%
Field sanitation............... 75% to 95%......... 15% to 35%........ 70% to 90%........ 15% to 35%........ 15% to 35%........ 20% to 40%
Host resistance................ 95% to 99.9%....... 0................. 0................. 0................. 0................. 0
Post-harvest safeguards........ 60% to 90%......... 0................. 0................. 0................. 0................. 40% to 60%
Winter shipping only........... 60% to 90%......... 0................. 0................. 0................. 0................. 50% to 75%
Packinghouse inspection and 25% to 40%......... 50% to 75%........ 40% to 60%........ 50% to 75%........ 50% to 75%........ 30% to 50%
fruit cutting.
Port-of-arrival inspection..... 50% to 70%......... 50% to 70%........ 50% to 70%........ 50% to 75%........ 50% to 75%........ 60% to 80%
Limited U.S. distribution...... 95% to 99%......... 95% to 99%........ 90% to 99%........ 95% to 99%........ 95% to 99%........ 75% to 95%
--------------------------------------------------------------------------------------------------------------------------------------------------------

As shown in the table, for each type of pest, there are at least
two other mitigating measures that are believed to be more effective in
reducing risk of infestation of avocados than fruit cutting. The most
significant of these mitigating measures is the limited distribution
measure, which provides that, even in the event that infested fruit
escape detection at the port of first arrival, they are only eligible
for importation into areas with a lack of suitable host material and
climatic conditions that would inhibit their survival.
Comment: In the field, fruit is cut in half or quartered, is
inspected for seed damage or tunneling, and is then

[[Page 55537]]

discarded. In the packinghouse, fruit is cut in half and given a
cursory glance and then brushed off the cutting table without
examination. APHIS must work closely with Sanidad Vegetal to develop
formal, documented methods for cutting fruit in the field, at
packinghouses, and at the border. The objective of fruit cutting in the
field should be detection of stem weevils, seed weevils, and the seed
moth. Each inspector should be thoroughly trained in proper fruit
cutting technique, and should be equipped with a hand lens.
Response: In the past, APHIS observed improper fruit cutting
techniques being employed at packinghouses, and took corrective action.
We are confident that inspections and fruit cutting in the field and at
the packinghouses are being conducted properly. APHIS inspectors are
present any time that fruit is cut in a packinghouse in Mexico, and are
trained to detect all of the pests of concern for Hass avocados. Each
APHIS inspector has a hand lens available if its use is necessary, and
the objective of fruit cutting is always detection of any and all
pests. Though fruit cutting and inspection are not as effective for
detecting fruit flies as they are for detecting stem weevils, seed
weevils, and the seed moth, APHIS inspectors look for all pests during
these procedures.
Comment: If the fruit cutting technique is not standardized, and is
not accompanied by proper detailed inspection of fruit, including use
of hand lenses or microscopes, then the data generated regarding the
number of uninfested cut fruit are meaningless and cannot serve as a
basis to support a change in regulatory requirements.
Response: As stated earlier in this document, we believe fruit
cutting as it is currently practiced in the field and at packinghouses
is adequate to detect pests in Hass avocado fruit. Furthermore, fruit
cutting data suggest that the Mexican Hass avocado import program is
working as designed.
We did not propose to expand the program simply because of fruit
cutting data. Rather, as stated in our proposed rule and elsewhere in
this document, we proposed to expand the program because risk
assessment documents and 4 seasons worth of shipping, inspection, and
trapping data support expanding the rule. Indeed, fruit cutting data
suggest that imported avocados are not infested with pests, but the
findings of the Sequeira, et al. study suggest that even if avocados
were infested with fruit flies, those flies would not survive in the
approved distribution areas.
Comment: APHIS has acknowledged that fruit cutting is not intended
as a method for detecting fruit fly eggs or larvae. This is evident
from the description of the procedure itself in the Work Plan, which
states that ``all the fruit will be cut open to detect the presence of
weevil eggs or larvae''.
Response: APHIS has made a policy of not using inspection (and in
this case, fruit cutting) as a means of mitigating the risk posed by
fruit flies. As shown in Table 3 of the Risk Management Analysis
(reprinted earlier in this document), packinghouse inspection and fruit
cutting provide only a 25 to 40 percent reduction in the risk posed by
fruit flies, while providing a 50 to 75 percent reduction in the risk
posed by seed weevils and a 40 to 60 percent reduction in the risk
posed by the avocado stem weevil. Despite this, we do still inspect
fruit for all pests.
Comment: Fruit cutting in the field should be supported by
mandatory cutting of culled fruit in the packinghouse from each lot per
day, in addition to cutting samples from packed fruit prior to
shipping.
Response: Under the regulations, 300 fruit per shipment must be cut
at the packinghouse prior to culling and packaging. No cutting is done
after culling, though fruit that would have been culled are part of the
cutting sample.
Comment: Fruit cutting should be based on a percentage of fruit at
each inspection for each lot per pack date, not a set number of fruit
per lot. Quantities of fruit per lot can vary considerably, with the
possibility that large lots could be undersampled. As an example, a
minimum of 1 percent of the boxes in each lot in the shipment should be
visually inspected and 5 percent of the fruit within those boxes should
be cut and carefully inspected for the presence of internal feeders.
Response: Fruit cutting is based on a percentage of fruit per
shipment. As stated above, under the regulations, 300 fruit must be cut
and inspected per shipment to the packinghouse. A shipment of avocados
is almost always the total amount that can fit in a standard shipping
container. APHIS believes that such shipments, depending on the size of
the fruit and the number of field boxes, can range in number between
1,000 and 4,000 avocados. Hypergeometric tables indicate that the
sample size needed to reach the 95 percent confidence level of
detecting a 1 percent infestation in these shipments varies between 258
and 288 fruit cut per shipment, assuming a maximum number of 4,000
avocados per shipment. Therefore, we set the sample size at 300 fruit,
and believe this sample size is sufficient to provide a high level of
confidence that infested fruit will be detected, if present.
Comment: Paragraph 4.4 under the Packinghouse section of the 1999
workplan requires that fruits sampled at the packinghouse are to be cut
into slices to inspect for fruit flies, seed pests, and stem weevils,
but the 2001 trip report and program review pictures provided show a
fruit cutting procedure that does not appear consistent with the work
plan requirements.
Response: It is difficult to determine from the pictures provided
in the 2001 trip report whether the fruit have been sliced properly to
detect stem weevils. Since such slices are thin, as evidenced in G.L.
Kreitner's photo essay on damage caused by weevils in avocado fruit,
and those slices are not readily discernable from the picture.
Nonetheless, the APHIS personnel who were present during the pictured
fruit cutting have assured APHIS that cutting at the top of avocados
near the stem end for stem weevils was indeed performed. Additionally,
the pictures do show evidence of deep cuts necessary to examine for
seed damage cause by seed weevils and the seed moth.
Comment: If fruit cutting is targeting seed-infesting insect
larvae, yet the agency is using the same data to advance a finding of
no fruit fly larvae, that conclusion should be a qualified one.
Response: While absence of fruit fly detections from fruit cutting
does not definitively prove absence of infestation, we do believe it
provides some evidence that the Mexican Hass avocado import program is
working as designed, as we have previously stated.

Pest Surveys

Comment: APHIS claims that the starting point in the risk equation
for fruit flies is virtually zero, and that the number of fruit fly
captures in traps set out in Mexican avocado orchards from November
through April is insignificant.
Response: We have acknowledged that Anastrepha spp. fruit flies are
present in Michoacan, which is why the regulations set forth safeguards
to prevent the introduction of those pests. The requirements, such as
surveillance trapping, increased trapping in response to a single fruit
fly detection, Malathion bait treatments, covering of harvested
avocados, fly-proof screens on packinghouses, and inspections, work
together with the poor host status of Hass avocado fruit to mitigate
the risk posed by Anastrepha spp. fruit flies.

[[Page 55538]]

Comment: Single digit fruit fly captures in Mexico from November
through April are not believable. There is no doubt that fly
populations are on the rise in April in Mexican avocado groves, based
on the dozens of adult flies captured in May. It would only take a warm
spring--a 2-week shift in seasonal weather patterns--to precipitate
explosive growth in fruit fly populations.
Response: We have confidence that fruit fly trapping in Mexico is
being conducted properly, based on observations by APHIS inspectors.
From 1997 to 2000, a total of 68 fruit flies were trapped during the
month of May in orchards certified for export to the United States.
These data do suggest that fruit flies are being trapped in higher
numbers in May than in November through April. However, as stated
earlier in this document, the approved shipping season for Mexican Hass
avocados will run from October 15 through April 15. We feel that this
change will reduce the risk that fruit flies, in the highly unlikely
event that they are present in imported Mexican Hass avocados, could be
introduced into an area of the United States where adequate host
material is available (mid- to late May in approved areas).
Furthermore, there still remains no evidence to conclusively prove that
the fruit flies in approved Mexican Hass avocado orchards are
populating in those orchards and/or using Hass avocados as hosts.
Comment: Four years of trapping results provide no guarantee that
future fruit fly population levels will remain low, particularly during
the month of April, because populations of flies in commercial orchards
can exhibit strong fluctuations from year to year.
Response: As stated in more detail earlier in this document, we are
revising the approved shipping season for Hass avocados to run from
October 15 through April 15. We believe that this change will further
reduce the possibility that fruit flies, in the highly unlikely event
that they are present in imported Hass avocados, could find suitable
conditions and host material to support their survival in the approved
distribution area.
Comment: APHIS should replace the highly inefficient McPhail traps
and liquid protein baits used in the Mexican Hass avocado import
program with newly developed synthetic lure and cylindrical traps.
Alternatively, the Department should consider using Nulure as an
attractant in McPhail traps deployed in Mexican avocado groves until
new technology is adopted by Mexico.
Response: APHIS is aware of the availability of new traps that use
Nulure as an attractant. APHIS is currently evaluating these traps and
may elect to require their use in the Mexican Hass avocado import
program at a later date.
Comment: Fruit fly trap placement in Mexican growing areas is
haphazard with respect to height and exposure to sunlight. Research has
shown that the preferred placement of traps is within the tree canopy
where traps are shaded. Industry observers have seen traps being
inappropriately washed out with soapy water. They have seen trappers
barely examine trapped specimens to determine if target pests were
present. Servicing of traps must be conscientious, both with respect to
cleaning and rebaiting of traps as well as detection and identification
of target species.
Response: Trapping is conducted in Michoacan by county-level
officials of Mexico's Secretaria de Agricultura, Ganaderia, Desarrollo
Rural, Pesca y Alimentacion (SAGARPA). These persons are trained by
SAGARPA, and are monitored by APHIS-IS personnel. APHIS inspectors
stationed in Mexico monitor the placement and servicing of traps; if an
inspector determines that trapping is not being conducted properly, he
or she orders corrective action.
Comment: A weak or ineffective attractant, a misplaced trap, or a
target species that was captured but undetected could significantly
skew reported fruit fly trapping results. Data presented by APHIS do
not accurately represent actual fruit fly activity levels in Mexican
avocado orchards throughout the year, and the risk of infestation is
significantly higher than levels calculated by APHIS.
Response: APHIS must rely on trapping data as the only evidence of
fruit fly activity in Michoacan, given the absence of fruit fly
detections in the avocados themselves. APHIS is confident that traps in
Michoacan are placed and tended similarly to traps placed in U.S. fruit
fly host growing areas, and, based on its own inspections of the
growing areas in Mexico, has no reason to suspect that the data have
been corrupted by improper trapping techniques.
Comment: Proper pest surveys of the avocado export area in Mexico
still have not been done, particularly in the absence of broad-spectrum
pesticide use that maintain pest species at relatively low levels such
that it is almost impossible to predict what other pest problems, both
arthropods and diseases, might arise. For instance, prior to its
discovery in California, the avocado thrips was a species new to
science. One wonders how this pest could be present in avocados in
Mexico without being known as a pest in the scientific literature or
having been described taxonomically.
Response: As stated in the proposed rule, APHIS pest surveys
include areas with backyard and feral avocado trees and groves. We
believe that surveying such areas provides a context to examine the
presence of pests in a limited pesticide use context. Furthermore,
APHIS believes that thrips, which are external feeders, can be readily
detected by inspection. We do not require treatment or other
mitigations for thrips on most fruits for this reason.
Comment: In 1997, APHIS surveys detected over 2,100 stem weevils in
Mexican avocado groves. There is no indication that these numbers have
decreased in the 4 years since. Given that APHIS conducts surveys for
stem weevils at the wrong time of year, the numbers could be even
higher.
Response: APHIS has acknowledged that stem weevils are present in
the State of Michoacan, and there is no existing program in Mexico that
is intended to reduce their numbers. However, the systems approach is
designed to mitigate the risk that stem weevils could infest imported
Hass avocado fruit.
Regarding inspections for stem weevils, the Junta Local de Sanidad
Vegetal (JLSV) conducts monthly inspections of orchards certified under
the Mexican export program.\1\ These inspections include inspections
for stem weevils. In addition, the Director General de Sanidad Vegetal
(DGSV) conducts one stem weevil survey per year (usually in the
spring), and APHIS and DGSV conduct a joint survey in the fall prior to
orchard certification. If stem weevils are detected during any of these
surveys (including the monthly inspections by JLSV), those orchards are
dropped from the Hass avocado export program.
---------------------------------------------------------------------------

\1\ Under the regulations, orchards must be part of Mexico's
export certification program, which is administered by SAGARPA. The
monthly inspections by JLSV are required under the Mexican export
program, not under APHIS regulations.
---------------------------------------------------------------------------

Further, even in the event that imported Hass avocados are infested
with stem weevils upon reaching their destination in the United States,
there is a minimal chance that stem weevils could find suitable host
material on which to survive and establish themselves, given that they
are believed to be avocado-specific pests. The only U.S. States that
commercially grow avocados are Florida, Texas, California,

[[Page 55539]]

and Hawaii, none of which are approved for distribution of Mexican Hass
avocados.
Comment: In 1998, 19 percent of wild/backyard orchards in Uruapan
were found to harbor stem weevils. Two years later, APHIS's surveys
indicated that 91 percent of wild/backyard sites were infested. No
explanation is provided for this dramatic increase in stem weevil
detections, but it is evident that populations of these insects remain
unabated in the municipalities approved for export to the United
States.
Response: Again, APHIS is well aware that stem weevils are present
in the State of Michoacan. However, as explained in more detail above,
we believe that there is a negligible risk that Mexican Hass avocados
imported under the systems approach would introduce plant pests,
including stem weevils, into the United States.
Comment: The timing of pest surveys by DGSV is a function of when a
grower first petitions JLSV to participate in the export program and,
later, the workload at DGSV. A review of a file for a grove eligible to
export avocados to the United States shows that the grower initially
signed up with the JLSV on November 13, 1997. Following the initial
inspection and monthly grove visits by JLSV, DGSV conducted fruit,
soil, and foliage sampling to pre-certify the grove for export to the
United States. The DGSV surveys were conducted on March 3, 1999, and
January 5, 2000. Neither survey was done at a time at when adult
avocado pests were most likely to be present. APHIS's statement that
surveys by DGSV are made ``in the spring'' simply is not true. Other
grower records indicate that DGSV survey dates are random, and that
they are most likely dictated by convenience, not pest biology. Based
on this information, the reported number of pests as determined by
APHIS and DGSV surveys is artificially low, and not representative of
the risks posed by these injurious insects. APHIS should formalize an
appropriate schedule for the survey of Mexican avocado groves to ensure
that survey activities are conducted when adult stages of the pests of
concern are most likely to be present. APHIS should develop this
schedule jointly with DGSV and require the agency to adhere to the
schedule by agreement under the work plan. Failure to adhere to the
schedule should result in the non-certification of orchards until such
time as APHIS is able to conduct survey activities with its own
personnel.
Response: APHIS believes that the records submitted by the
commenter do not represent the complete file for that orchard. APHIS
records show that the orchard in question was also surveyed for stem
weevils and seed weevils on June 15, 1999, and June 21, 2000, when
adult weevils would be likely to be present in orchards. We continue to
believe that orchards in Mexico that export Hass avocados to the United
States are properly surveyed for these pests at an appropriate time of
year, and see no reason to develop a set schedule for surveys in the
regulations or the workplan for the Mexican Hass avocado import
program.

Inspection at the Border

Comment: Cutting and inspection of only 64,560 fruit out of a total
of 160,108,800 imported avocados at point of entry (0.04 percent) does
not represent a valid inspection and detection program. Rather it
implies that phytosanitary inspections at the border are simply window
dressing and potential or possible detections are of no concern.
Response: There are several other pest detection elements involved
in the systems approach regulations that supplement fruit cutting and
inspection at the port of first arrival. In fact, there are pest
detection measures in place at every stage of the production process
for Hass avocados from Mexico. There are pest survey requirements that
must be met in orchards, including fruit fly trapping, and surveys for
the avocado stem weevil, seed moth, and seed weevils. Fruit are also
cut and inspected in orchards a total of 4,439,013 avocados during the
first 4 years of the program. At the packinghouse, a total of 300 fruit
per shipment must be cut and inspected in the presence of APHIS
inspectors. APHIS has required these additional pest detection
activities, in part, because it is aware that inspection at the port of
first arrival in the United States alone would not be sufficient to
detect pests in imported fruits.
Inspection at the port of first arrival is intended to accomplish
two goals. First, inspectors check the documents accompanying the
shipment to ensure that the avocados are from an approved orchard and
were processed in an approved packinghouse and are accompanied by a
phytosanitary certificate. The inspectors also ensure that the limited
distribution statement appears on all boxes, that a U.S. Customs
Service bond has been secured for the shipment, and that the in-bond
papers indicate that the shipment is consigned to an importer in an
approved State. Second, the inspectors will select a sample of fruit
from each shipment and carefully cut and inspect those avocados to
verify their pest-free status. Inspection at the port of first arrival
is essentially a redundant safeguard that serves to verify that all the
regulatory requirements applicable to the importation of the avocados
have been met.
Comment: It is physically impossible for inspectors, no matter how
diligent they are, and no matter how honest their intentions, to
protect the United States from pest invasions and infestations given
the volume of goods imported into the United States.
Response: APHIS has stated in the past that if zero tolerance for
pest risk were the standard applied to international trade in
agricultural commodities, it is quite likely that no country would ever
be able to export a fresh agricultural commodity to any other country.
There will always be some degree of pest risk associated with the
movement of agricultural products; APHIS's goal is to reduce that risk
to a negligible level. In the case of Hass avocados from Mexico, we
believe that the overlapping and redundant safeguards employed in the
systems approach will achieve that goal.
Comment: Inspectors at the border stations do not know how to look
for a weevil in an avocado, nor do they have time to carefully inspect
pieces of fruit under a dissecting microscope.
Border personnel must be provided with specific instruction on the
detection of stem weevil in Hass avocado fruit, and APHIS should update
and reissue the photo essay guide prepared by G.L. Kreitner to PPQ
offices at border ports of entry. Ports of entry should also be
adequately staffed so that examination of fruit samples can be done in
a meaningful way.
Response: As stated earlier in this document, APHIS inspectors are
trained to detect all types of pests in various types of commodities.
APHIS is distributing the photo essay as suggested to all approved
ports on the Mexican border where Hass avocados are imported prior to
the 2001-2002 shipping season. The photo essay will be incorporated
into an existing booklet of procedural guidelines on the Mexican Hass
avocado import program that is used by port inspectors when they
process and inspect shipments of imported avocados. We believe the
photo essay, as originally published, is a valuable tool in describing
where stem weevil infestations are typically found in avocado fruit,
and do not see the need to update it. Furthermore, APHIS believes the
level of inspection at border ports is appropriate, given the
additional safeguards employed under the systems approach regulations,
and is confident that border stations are

[[Page 55540]]

adequately staffed to provide agricultural quarantine and inspection
services.

Pest Detection in the United States

Comment: The proposed rule states that seven States (Arizona,
California, Florida,Georgia, Louisiana, South Carolina, and Texas) in
the continental United States are at risk for establishment of four
fruit fly species. Do these States have pest detection programs that
focus on the pests associated with Mexican Hass avocados?
Response: Arizona, California, Florida, and Texas each have fruit
fly detection programs that operate year-round. APHIS is not aware of
any detection programs in these or the other three States that focus on
avocado-specific pests, though it is possible that local surveillance
programs in avocado-producing States may conduct surveys for avocado-
specific pests.
Comment: Do the 12 additional States have pest detection programs
that focus on fruit fly host crops and fruit fly pests?
Response: The 12 States that we are adding to the Mexican Hass
avocado import program do not conduct fruit fly or avocado-specific
pest detection programs, likely because those States are not able to
provide the combination of host material and climatic conditions
necessary to support a reproducing, established fruit fly population,
and because none of the 12States have climatic conditions suitable for
the production of avocados.

Trade Issues

Comment: Over 4 years ago, avocado growers in California requested
market access to Northern Baja California, Mexico, for California
avocados and asked the USDA to initiate the necessary steps to clear
the way for exports into Mexico. There is a ready market for California
avocados in northern Mexico, yet California growers are prohibited from
shipping into Mexico. For 3 years, growers heard nothing in response to
their request. In November of 2000, senior representatives from the
USDA pledged that they would aggressively pursue access to the Mexican
market. Those talks prompted Mexico to prepare a risk assessment for
California avocados, which was recently forwarded to the USDA. The
Mexican risk assessment stated that California avocados would not be
allowed into Mexico until procedures were in place to protect the
Mexican avocado growers from being infested by avocado seed moths and
seed weevils that could be introduced from California. There is no
existing credible scientific evidence showing that these pests are
present in California. By contrast, these same quarantined pests in
Mexico are well documented through the scientific literature. APHIS
must reject Mexico's bid for expansion as long as the U.S. avocados are
not permitted entry into Mexico.
Response: APHIS agrees with the commenter that avocado seed moths
and seed weevils are not present in California, and sent a letter to
Sanidad Vegetal on September 6, 2001, asking that the Mexican risk
assessment be revised and those pests removed from consideration. As of
the drafting of this final rule, we have not received a response from
Sanidad Vegetal.
Comment: APHIS's primary role is to protect agriculture from the
introduction of pests and diseases. This role is compromised by APHIS's
new emphasis on promoting and expanding trade.
Response: The Plant Protection Act authorizes the Secretary of
Agriculture to regulate exports, imports, and interstate commerce when
the Secretary determines such action is necessary to prevent the
dissemination of plant pests. The Secretary of Agriculture has
delegated this responsibility to APHIS.
APHIS's primary responsibility with regard to international import
trade is now, and has been for many years, to identify and manage the
risks associated with importing commodities. Because, as we have
already noted, there is no such thing as zero risk in international
trade, reducing risk to a negligible level is the only realistic
approach. If there is no practical way to mitigate a particular risk
associated with a product, APHIS will prohibit that product's entry
into the United States, as is our right under current international
trade agreements; we have done so in the past and will continue to do
so when warranted. However, when we determine that the risk associated
with the importation of product is negligible, it is our responsibility
under those same trade agreements to make provisions for the
importation of that product.
The systems approaches developed for citrus from Florida and Texas,
apples from Washington, and stonefruit from California are examples of
ways that we have found to answer the pest concerns of our trading
partners in order to enable the exportation of domestically grown
fruits and vegetables. Just as we seek to open foreign markets to our
Washington apples or California stonefruit, however, we must also
listen to the requests of other nations seeking to export their
products to the United States.
Comment: This rulemaking is not based on science. It is based on a
political agreement made even before the scientific research/risk
assessment was done, and before the proposed rule was written. This is
about trade and politics, not science, and is about favoring foreign
interests over those of the domestic producer.
Response: This action was predicated on several risk assessment
documents that provide a scientific basis for potential expansion of
the Mexican Hass avocado import program. Without these risk assessment
documents, which have withstood several reviews and public comment
periods, APHIS would not have proposed this action. Political interests
stimulate consideration of the expansion of trade of agricultural
commodities between countries, but all decisionmaking concerning
phytosanitary restrictions on trade must be science-based. APHIS stands
behind the risk assessment documents that support this rule, and
believes they are based on sound science.

Pest List

Comment: The proposed rule accurately states that: ``the persea
mite (Oligonychus perseae) and avocado thrips (Scirtothrips perseae)
are currently established in the United States, and are not under
official control, and therefore, do not meet the definition of a
quarantine pest.'' At the time of their first detection by APHIS,
however, the label of quarantine pest would have been appropriate. In
both cases, APHIS failed to prevent the introduction and establishment
of injurious pests known to infest Mexican Hass avocados.
Response: The introductions of the persea mite and avocado thrip
happened independently of the importation of Mexican Hass avocados, as
described elsewhere in this document.
Comment: Deficits in the knowledge on the taxonomy, ecology, and
biology of the arthropod fauna on avocados in exporting countries may
render any mitigation of the risk posed by unknown pests that could be
present in growing areas ineffectual.
Response: Avocados and pests of avocados have been studied in
detail for many years, especially in Mexico, which is the world's
largest producer and consumer of avocados. APHIS is confident that it
has identified all pests of quarantine significance known to follow the
avocado pathway. Nonetheless, APHIS inspectors are trained to inspect
for all quarantine pests, and eight of the nine safeguards employed by
the systems approach

[[Page 55541]]

provide reduction of the risk posed by hitchhikers and other (unknown)
pests.
Comment: One species of thrips, Neohydatothrips burungae (Hood), is
as common as S. perseae on avocados in Mexico and is not known to be
present in California. This pest has not been included in USDA's Pest
Risk Assessment for Hass avocados from Mexico. Given the common
occurrence of S. perseae in Mexico on avocados and its pestiferous
nature in California, it is highly likely that N. burungae could also
pose a threat to the California avocado industry.
Response: When we conducted the Supplemental Pest Risk Assessment
for the original Mexican Hass avocado import program in 1995, there was
no literature available suggesting Neohydatothrips burungae (Hood) was
associated with Hass avocados. N. burungae is now considered a
quarantine pest by APHIS; however, to date, we have never intercepted
this pest on avocado fruits at a port of entry, nor have we intercepted
any thrips in commercial shipments of avocado fruits. We have
intercepted other thrips, including species of the genera Scirtothrips
and Thripidae, on avocado leaves imported in passenger baggage.
Further, based on findings of thrips on other fruits, we are confident
that we can detect thrips infesting Hass avocado fruits if they do
indeed follow the avocado fruit pathway; however, evidence to date
suggests they do not. For this reason, we are confident that N.
burungae associated with Mexican Hass avocado fruit poses a negligible
risk of being introduced into the United States.
Comment: Researchers have catalogued potentially dangerous pests
that do not appear in USDA's pest risk assessment. Johansen collected
38 phytophagous thrips species from avocados in Mexico, identifying
seven species, i.e. Frankliniella bruneri, F. chamulae, Heliothrips
haemorrhoidalis, Pseudophilothrips perseae, Scirtothrips aguacatae, S.
kupandae, and S. perseae, that could be transported via the avocado
pathway. Also reported from avocado in Michoacan, Mexico, is
Scirtothrips aceri (Moulton). Only one of these pests, Heliothrips
haemorrhoidalis, is listed in USDA's pest risk assessment. It is
important to note that the thrips species discussed above feed on or
attack the avocado fruit, and thus, based on their biology, can be
expected to follow the pathway of imported Mexican Hass avocados.
Frankliniella bruneri, F. chamulae, Pseudophilothrips perseae,
Scirtothrips aguacatae, S. kupandae, and Neohydatothrips burungae must
be added to USDA's Mexican Action List. In each case, the species
mentioned fall into the ``H'' or high category in the three criteria
outlined USDA's Enhanced Hazard Pest Categorization methodology,
indicating that quarantine action is required. Continuation of
rulemaking without a revised pest risk assessment given the
Department's own process of risk categorization for these species is
inconsistent with, and a violation of, international plant health
principles and the phytosanitary provisions of NAFTA.
Response: There was no literature available suggesting any of the
pests listed above are associated with Hass avocado fruits at the time
the 1995 Supplemental Pest Risk Assessment was conducted. APHIS now
considers Frankliniella bruneri and, as stated above, Neohydatothrips
burungae, to be quarantine pests. However, for the same reasons
described above for N. burungae, we believe that F. bruneri associated
with Mexican Hass avocado fruit poses a negligible risk of being
introduced into the United States. We are confident that both thrips
are unlikely to be imported in fresh Hass avocado fruit because they
prefer leaves and plants over fruit. For this reason, we believe they
do not follow the avocado fruit pathway.
Regarding the other thrips listed by the commenter (Frankliniella
chamulae, Heliothrips haemorrhoidalis, Pseudophilothrips perseae,
Scirtothrips aceri (Moulton), S. aguacatae, S. kupandae, and S.
perseae):
S. perseae exists in California, and does not meet the
definition of a quarantine pest.
H. haemorrhoidalis is listed in APHIS's 1995 Supplemental
Pest Risk Assessment as a pest mainly associated with plant parts of
avocado other than the fruit, and is considered by APHIS to be a non-
actionable pest if detected during port inspections.
F. chamulae, P. perseae, S. aceri (Moulton), S. aguacatae,
and S. kupandae have not been evaluated for consideration as quarantine
pests, but have not been associated with avocados in any published
scientific literature. APHIS has no reason to believe they follow the
avocado fruit pathway.
As requested by the commenter, APHIS is adding N. burungae, and F.
bruneri to APHIS's Mexican Action List. We are also evaluating F.
chamulae, P. perseae, S. aceri(Moulton), S. aguacatae, and S. kupandae
using APHIS's Enhanced Hazard Pest Categorization methodology to
determine whether they should be added to the Mexican Action List as
well.
Regarding whether revisions to the pest risk assessment are
necessary, APHIS is unaware of any evidence that suggests any of the
thrips species listed by the commenter follow the avocado fruit
pathway. Until we find evidence as such in scientific literature, we
will continue to consider these pests as unlikely to follow the avocado
fruit pathway, regardless of their quarantine pest status.
Comment: USDA's Supplemental Pest Risk Assessment states that the
pest list for Mexican avocados was generated after a review of the
AGRICOLA, CAB, and MELVYL databases, historical decision sheets
covering importation of avocados, the U.S. catalogue of intercepted
pests and interception records, CMI distribution maps, texts of plant
diseases and pathogens, and APHIS files on pests not known to occur in
the United States. No attempt has been made to collect information from
the most obvious and important source, independent scientific
researchers who have conducted field work on avocado pests in Mexico
and the United States.
Response: When gathering information on what pests to include in a
pest list for a risk assessment, APHIS considers only information from
published scientific literature. This is the only way to ensure that we
cite only research that has been peer-reviewed. If independent
scientific researchers have finalized and documented findings that
would be relevant to APHIS risk assessments, we would expect that those
findings would have been peer reviewed and published. APHIS does not
contact researchers to solicit information on pests that may be
relevant to particular risk assessments.

Systems Approach

Comment: The use of restrictions on the distribution of avocados is
meaningless. Once an avocado or any other product is legally imported
into this country, there are no further restrictions on the fruit after
importation. Unaware and unscrupulous importers are then free to
transship the product anywhere in the United States. They are
frequently found all over Florida and contain pests.
Response: If the limited distribution requirement was the only
means of risk mitigation available in the Mexican avocado import
program, the open nature of the U.S. marketing and transportation
systems would be a matter of concern. Limited distribution is, however,
only one of a series of safeguards designed to prevent the introduction
of pests into the United States through the importation of avocados
from Mexico. We have not

[[Page 55542]]

expected limited distribution to be foolproof, but we also do not
expect that infested avocados will be entering the United States
through legally imported commercial shipments in the first place.
Further, we anticipate that unscrupulous importers will be the
exception, rather than the rule, so we believe that the restrictions on
distribution of the avocados will be widely observed, rather than
ignored. As to the finding of imported Hass avocados in Florida, APHIS
is aware of only 2 cases where avocados were found in Florida. In both
cases, one less-than-full box of avocados was found, and the scale
insect contained therein is not a pest of quarantine significance.
Comment: APHIS cannot say that the risk of pest introduction
associated with increased Mexican Hass avocado imports is zero. The
risk may be low, but the risk only applies to U.S. growers.
Response: APHIS has not stated that the risk associated with
expanding the Mexican Hass avocado program is zero. As stated earlier
in this document, if zero tolerance for pest risk were the standard
applied to international trade in agricultural commodities, it is quite
likely that no country would ever be able to export a fresh
agricultural commodity to any other country. APHIS has performed a risk
analysis and has concluded that the risk of pest introduction is
negligible. APHIS has deliberately not defined the point at which risk
becomes negligible. The use of specific, numerical thresholds can have
important consequences in international trade, as their reciprocal use
by other countries could adversely affect the export of domestic
products and hinder trade in commodities that can be safely exported to
other countries. APHIS thus separately assesses individual risks for
specific commodities and applies the professional judgement of its
technical and scientific experts. This can result in different
quantified risks being deemed negligible. This approach allows APHIS to
protect domestic producers from risks which are not negligible while
maintaining necessary flexibility for U.S. export markets.
Comment: The risk assessment on which the avocado import program is
based is flawed because it is based on, and begins with, estimated
probabilities.
Response: Risk assessments are intended to estimate the potential
that future events can occur. Since risk assessments often are
conducted to evaluate the use of systems that did not previously exist,
there is no feasible way for risk assessors to begin the process with
historical or other hard data relevant to the scenario or system being
assessed. In the case of Hass avocados from Mexico, in the absence of
hard data, estimates of the probability that certain events could occur
were made by expert scientists to evaluate the risk mitigating measures
used in the import program. Using this method enabled APHIS to account
explicitly for the uncertainty associated with the various parameters
of the Mexican Hass avocado risk model.
Comment: When APHIS used Monte Carlo simulations to develop risk
estimates for the Mexican Hass avocado import program, it based the
simulations on two models; one model in which Mexican avocados are
imported under no special restrictions, and the second model employing
use of the systems approach. APHIS should have modeled the previously
existing system., i.e., the quarantine that was in place for more than
80 years.
Response: APHIS acknowledges that we could have used Monte Carlo
simulations to develop a risk assessment that considered the pre-1997
status quo in which the importation of Hass avocados from Mexico was
prohibited. However, such simulations would have simply been a paper
exercise, given that the pre-1997 quarantine is no longer in place;
given that the purpose of the risk assessment was to consider the risks
associated with the 1997 proposed rule, such an exercise was not
warranted.
Comment: The proposed rule stated that an eradication program would
be initiated if an introduced avocado pest became established. It
should have said that an eradication program would be initiated if a
pest is detected.
Response: We did not make such a statement in the proposed rule;
however, the environmental assessment for the proposed rule did have a
typographical error that may have led the commenter to make this
statement. In the environmental assessment, APHIS states that ``in the
highly unlikely event that an avocado pest should be introduced into
the United States established, appropriate eradication actions would
likely be initiated.'' The word ``established'' should not have been
included in that sentence and has been removed in the final draft.
Regardless, a single detection of a pest would not warrant eradication,
whereas introduction and establishment of a pest certainly would.

Peer Review/Cooperation

Comment: A third party should evaluate the surveillance techniques
associated with the Mexican Hass avocado import program, including
fruit cutting and trapping.
Response: APHIS has conducted two reviews of the Mexican Hass
avocado import program in the 4 years since its inception.
Representatives of domestic avocado growers (i.e., the California
Avocado Commission) participated in both reviews, and the State of
California participated in the second review. In fact, the
representatives of domestic avocado growers helped to draft the
workplan for the operation of the program, and has had many
opportunities to participate in the development and review of the
program. APHIS believes it has been very transparent with the public
throughout the existence of the program, and has shared information
whenever requested. APHIS sees no need for another third party to
review the documents on which the program is based, especially given
the success of the program thus far.
Comment: APHIS should allow external peer review of the pest risk
assessment for the Mexican Hass avocado import program. Peer review
should not be conducted by another USDA agency.
Response: APHIS believes that the pest risk assessment for the
Mexican Hass avocado program has been subjected to significant peer
review already. Each risk assessment document on which the program is
based has been made available for public comment for at least 60 days,
some of those documents more than once. APHIS has received and
considered numerous written comments on the risk documents as well as
oral comments made at public hearings and has made changes to documents
when appropriate. APHIS sees no need for any additional peer review of
its risk assessment documents, as ample opportunity has already been
provided for the public to submit its opinions.

Risk to Host Material-Producing States

Comment: The current Mexican Hass avocado import program places
Florida and other southern States at risk for new pest introductions.
Response: The systems approach regulations are designed to mitigate
the risk that pests could be introduced into the United States via
imported Mexican Hass avocados. Distribution of avocados is not allowed
in Florida and several other southern States. As stated elsewhere in
this document, the importation of commodities from foreign countries is
not without some risk, but APHIS believes that the regulations render
the risk of new pest introductions negligible.
Comment: Data for San Diego County, CA, show that over half of the
66 single fruit fly finds in San Diego County from

[[Page 55543]]

1991 to 2000 occurred during the proposed winter shipping period of
November to April. There is a high risk that fruit flies could become
established if introduced into California during those months.
Response: The Sequeira, et al. study confirms that most of the
State of California is at risk for establishment of Mexican fruit
flies. However, the intent of the regulations is to ensure that (1)
Hass avocados are not shipped to California, and, (2) even in the event
that they are shipped to California, that the imported avocados do not
contain pests.
Comment: An increase in the volume of imported fruit will result in
a proportional increase in the risk of a pest introduction.
Response: Indeed, increased volume of imports can increase the risk
that a pest could be introduced into the United States. The risk
assessment documents on which this final rule is based indicate that
even if imports increase as a result of this rule, the risk of pest
introduction associated with the increased volume of imports is still
negligible. As explained in the Information Memo for the Record, the
1995 Supplemental Pest Risk Assessment (as well as the 1996 Addendum)
estimated that between one and two million boxes of fruit would be
imported under the systems approach program. The actual number of boxes
imported fell short of the minimum in all but one of the four years
that the program has been in place. During the first four years of its
existence, the program averaged only 834,675 boxes per year. Because of
this, we believe that the 1995 and 1996 assessments actually
overestimated the risk. It also means that even if the addition of 12
States to the program doubled the number of imported Hass avocados, the
actual number of imported boxes would still fall within the range of
estimates used in the 1995 and 1996 assessments, and their results
would remain valid.

Treatment of Commodities

Comment: Mexico uses chemicals and pesticides that have been
outlawed in the United States since the early 1970's, DDT being one of
them. The growers in the United States are not allowed to use the
chemicals that Mexican growers can use.
Response: The U.S. Food and Drug Administration (FDA) samples and
tests imported fruits and vegetables for pesticide residues. The U.S.
Government does not have any control over what pesticides are approved
for use in foreign countries. The Environmental Protection Agency has
regulations that address the exportation from the United States of
pesticides that are not registered for use in this country and works
with foreign environmental protection agencies and agricultural
producers to promote safer pesticide use and food production practices.
There is a variety of pesticides and other pest control measures
available for use in the United States in the highly unlikely event
that a plant pest is introduced into this country via Hass avocados
imported from Mexico in accordance with the regulations.
Comment: There is no post-harvest treatment available for
Anastrepha spp. fruit flies in avocados. When fruit flies were found in
Fallbrook, CA, in 1999, many avocado growers lost a great deal of fruit
because they could not send fruit out of the quarantined area during
the 9-month quarantine period. Commodity post-harvest treatments were
available to growers of other fruits and vegetables. Has APHIS
evaluated post-harvest treatment protocols, including irradiation, for
fruit fly hosts in the seven at-risk States? These treatment options
should have been reviewed and validated in the environmental assessment
as required by NEPA. When will they become available to growers?
Response: As stated earlier in this document, APHIS is evaluating
protocols that would facilitate the interstate movement of Hass
avocados from fruit fly quarantined areas in the United States.
Currently, there is no available post-harvest treatment for Hass
avocados. Research on various varieties of avocados has shown that
treatment, including irradiation, has adverse effects on fruit quality.
It is likely, given the quality-related issues involving post-harvest
treatments, that regulatory approaches, perhaps modeled after the
Mexican Hass avocado systems approach, could prove to be more practical
for growers.
The environmental assessment referred to above was prepared
specifically to address the potential environmental impacts that could
be associated with implementation of the proposed rule. APHIS does not
agree that treatment options and a validation of prescribed treatment
protocols related to a potential eradication program should be
discussed in the environmental assessment for the Mexican Hass avocado
import program.

Comments Related to the Study by Sequeira et al.

Comment: Sequeira, et al. report that Mexican fruit flies do not
attack young fruit, but no source is cited for this unsubstantiated
conclusion. Although Sequeira notes that his approach is
``conservative'' with respect to phenological windows, insufficient
scientific evidence is presented to conclusively establish that young
fruit is not subject to attack by Anastrepha spp. fruit flies.
Response: Evidence for Sequeira, et al.'s observation that fruit
flies do not prefer young fruit can be found in: Leyva-Vazquez,
Browning, and Gilstrap. 1991 ``Development of Anastrepha ludens
(Diptera: Tephritidae) in Several Host Fruit.'' Environmental
Entomology 20(4): 1160-1165.
Comment: Mexican Hass avocados should not be imported during the
months of March and April because the temperature and climatic
conditions could foster a mating population of fruit flies.
Response: The findings of the Sequeira, et al. study indicate that
many U.S. States are at risk for the establishment of Anastrepha
ludens. These States include California and Florida, among others. All
States proposed for expansion of the Mexican Hass avocado import
program were found by Sequeira, et al. to be at low risk for
establishment of Anastrepha ludens because they do not have the
combination of hosts and climatic conditions needed to support an
established population of fruit flies. Nonetheless, because fruit
imported on April 30 could stay in the marketplace until late May (when
host material could be beginning to become available in some approved
States), APHIS is revising the approved shipping season for Hass
avocados imported from Mexico, as stated earlier in this document.
APHIS believes that revising the shipping season, which will run from
October 15 through April 15, will reduce the risk that fruit flies, if
present in imported Mexican Hass avocados, could be introduced into
areas with conditions suitable for even a short period of survival.
Comment: The mean maximum temperatures in Missouri and other States
along the southern boundary of the proposed Hass avocado distribution
area will promote fruit fly development in March. The 65 deg.F
temperatures there are optimal for pest development, and host crops
like apricots are well along in terms of development by April. These
are facts confirmed with tree fruit specialists in every State along
the southern boundary of the proposed shipping area.
Response: An area's mean maximum temperature is only a partial
indicator of the likelihood that fruit flies can become established
there. In identifying areas in the United States that are susceptible
for

[[Page 55544]]

the establishment of Anastrepha ludens, the Sequeira, et al. study
found that a given area must have adequate temperatures (including mean
maximum and mean minimum temperatures), adequate hosts (in a
susceptible stage), and other environmental needs (including adequate
moisture and low prevalence of predators and parasites) for fruit flies
to become established there.\2\ Furthermore, research shows that
optimal temperature for fruit fly development is not 65 deg.F but
approximately 77 to 86 deg.F.\3\
---------------------------------------------------------------------------

\2\ According to the following sources:
Aluja, M., J. Guillen, P. Liedo, M. Cabrera. E. Rios. 1990.
``Fruit infesting tephritids and associated parasitoids in Chiapas,
Mexico.'' Entomophaga. 35(1): 39-48.
Celedonio-Hurtado, H., Aluja, M., Liedo, P. 1995. ``Adult
population fluctuations of Anastrepha species (Diptera: Tephritidae)
in tropical orchard habitats of Chiapas, Mexico.'' Environmental
Entomol. 24(4): 861-869.
Levya-Vazquez, J.L. 1999. ``Control biologico de moscas de la
fruta: uso de parasitoides.'' Vedalia. 6:15-21.
Thomas, D.B. 1995. ``Predation on the soil inhabiting stages of
the Mexican fruit fly.'' Southwestern Entomol. 20(1): 61-71.
\3\ According to the following sources:
Leyva-Vazquez et al. (1991),
Leyva-Vazquez, J. 1988. ``Temperatura umbral y unidades de calor
requeridos por los estados inmaduros de Anastrepha ludens (Loew)
(Diptera: Tephritidae).'' Folia Entomologica Mexicana. No. 74: 189-
196.
Thomas, D.B. 1997. ``Degree day accumulations and seasonal
duration of the preimaginal stages of the Mexican fruit fly.''
Florida Entomol. 80(1): 71-80.
---------------------------------------------------------------------------

APHIS does believe that States proposed for expansion of the
Mexican Hass avocado import program do not have the combination of
these elements needed to support the survival of fruit flies in March
and April, as stated earlier in this document. We have revised the
shipping season, as described earlier in this document, to reduce the
possibility that imported avocados could remain in the marketplace
until mid to late May, when suitable fruit fly host material is
beginning to become available.
Comment: Fruit that enters the United States on April 30th would
stay in the marketplace pipeline until late May, when many of the
commercial crops with early bloom dates would be bearing fruit that is
unquestionably susceptible to attack by fruit flies. Climatic
conditions at that time of year would also be more than sufficient to
support fruit fly growth and development. Only two of the proposed
States (Maine and North Dakota) have mean temperatures below 60 deg.F
in May. Most of the other States have mean temperatures that range from
60 to 70 deg.F or above, and according to scientific literature, the
optimal temperature for survival of adult Mexican fruit flies is 59
deg.F.
Response: As stated in response to the previous comment, in this
final rule, we have revised the shipping season to reduce the
possibility that imported avocados could remain in the marketplace
until mid to late May, when suitable fruit fly host material is
beginning to become available. Furthermore, research shows that optimal
temperature for fruit fly development is not 59 deg.F but
approximately 77 to 86 deg.F.
Comment: Mean maximum temperatures during April are more than
sufficient to support fruit fly development. In May, when a piece of
infested fruit might still be in the market, mean temperatures are
favorable across many of the approved and proposed States. According to
historical records, States with mean temperatures of between 60 to
70 deg. F in May include: Utah,Kansas, Nebraska, Missouri, Iowa,
Kentucky, Indiana, Virginia, West Virginia, Maryland,Delaware, New
Jersey, Minnesota, South Dakota, Wisconsin, Illinois, Michigan,
Ohio,Pennsylvania, New York, Massachusetts, Connecticut, Rhode Island,
and Idaho. Over the same period, States with mean temperatures above
70 deg. F during May include Kentucky, Illinois,Virginia, West
Virginia, and Missouri. There are several States where host material is
available and ambient air temperatures are optimal for survival and
reproduction of adult fruit flies introduced via an infested container
or piece of fruit that arrives during the first 3 weeks in May.
Specifically, commercial production of cherries would be well underway
in Colorado, Idaho,Kansas, Utah, and Virginia. In addition, commercial
peach production would have progressed substantially in Colorado,
Kansas, Missouri, and Virginia by this time of year. Other crops that
would be vulnerable in May include plums and prunes in Idaho, apricots
and native Prunus spp. in Kansas, and apricots and native cherries in
Missouri. Mean temperatures in all of the States listed would be
optimal for adult fruit flies.
Response: The Sequeira, et al. study acknowledges that temperatures
during late spring and summer in some of the States cited above are
adequate for Mexican fruit fly development, but not establishment.
APHIS believes it would be exceedingly unlikely that fruit flies would
be introduced into approved States in commercial shipments of Mexican
Hass avocados in such numbers that their populations would reach
outbreak levels in a matter of a few months. Extended cold periods
during the winter would destroy surviving stages and make establishment
very unlikely. Note: The 60 to 70 deg.F temperatures cited by the
commenter are not consistent with the reported optimal developmental
temperatures for Mexican fruit flies, which are 77 to 86 deg.F.
To further reduce the possibility that fruit flies could survive if
introduced into approved States from mid- to late May, we have revised
the approved avocado shipping season, as described earlier in this
document.
Comment: Colorado and Utah border high-risk States where commercial
oranges, grapefruit, peaches, apricots, plums, and other hosts are
grown. These States are at risk for establishment of fruit flies. Will
APHIS adopt a buffer zone approach for fruit flies and not just
avocado-specific pests?
Response: APHIS stated in the proposed rule for this action that
``we have not proposed to allow Mexican Hass avocados to be distributed
in any State that borders California, Florida, and Texas, the only U.S.
States that produce avocados.'' We did not intend for this to mean that
we were adopting a ``buffer zone'' approach for avocados. In fact, we
proposed to expand the Mexican Hass avocado import program to include
Colorado, Idaho, Iowa, Kansas, Minnesota,Missouri, Montana, Nebraska,
North Dakota, South Dakota, Utah, and Wyoming because the Sequeira, et
al. study found that each of these States has climatological conditions
that put them at low risk for fruit fly establishment.
Comment: Given the maximum duration for the development of each
life stage of fruit flies, as documented in the scientific literature,
it appears reasonable to assume that under certain circumstances, the
total preimaginal development time for the Mexican fruit fly could
easily exceed 100 days. Climatic conditions and host availability in
destination States are not only important at the time a shipment
arrives, therefore, but also up to 100 days later. Fruit fly eggs or
larvae in a piece of infested fruit that arrives in one of the proposed
States in April would be capable of survival and, upon completion of
their development into adults, they would emerge to find optimal
climatic conditions and an ample food supply.
Response: APHIS agrees that, hypothetically, the total preimaginal
development time for the Mexican fruit fly could easily exceed 100 days
based on maximum durations of each life stage. However, we believe it
is highly unlikely that development could

[[Page 55545]]

actually occur across such a time span based on the simple fact that
there are few hosts that would provide suitable host material for fruit
fly life stages for 100 consecutive days.
Preimaginal developmental periods of more than 3 months are
unlikely to occur in the case of imported avocados because fruits are
perishable and not held in storage or in the commercial pathway for
extended periods. APHIS believes that fruit are typically present in
the commercial pathway for no more than 30 days. However, even if the
flies were to emerge after a prolonged preimaginal period, when they
emerge they would likely find prolonged periods where suitable hosts
are absent, along with prolonged freezing conditions during the winter-
time. We believe these facts make establishment of this tropical/sub
tropical pest very unlikely.
Comment: Experiences in San Jose, CA, in 1980-81 proved the
conclusions from the Flitters and Messenger Medfly temperature and
humidity study cited by Sequeira, et al. to be absolutely and totally
incorrect. The conclusion by Flitters and Messenger that Mexflies could
not establish and maintain populations in areas such as Sebastopol, CA,
is highly suspect. The importance of avoiding a ``Medfly experience''
with Anastrepha fruit flies, based on faulty assumptions and data,
strongly suggests that new temperature and humidity studies, using
improved, modern technology for laboratory work and climatic data, be
conducted by ARS scientists before any expansion of the avocado import
program is permitted.
Response: The research referred to above by the commenter refers to
a different study by Flitters and Messenger involving Medflies that was
not used as a reference by Sequeira, et al. It is noted in the comment
that in the Medfly study, the areas of San Jose, CA, were considered
low risk for Medfly establishment. In contrast to that study, the
Sequeira, et al. study identifies most of northern California as a high
risk area for the establishment of Anastrepha ludens.
APHIS does not believe that the Sequeira et al. study is an
extrapolation of Flitters and Messenger.\4\ Unlike Flitters and
Messenger, Sequeira, et al. analyzed the likelihood of establishment
based on the pest's requirements for survival. These requirements
included: (1)Availability of hosts, (2) host presence in a susceptible
condition (i.e., with susceptible fruit), (3) presence of temperatures
that are above the minimum below which development does not occur, (4)
absence of extended periods of freezing conditions (based on long-term
climatological averages from National Oceanic and Atmospheric
Administration data), and (5) other environmental needs (including
adequate moisture and low prevalence of predators and parasites) for
fruit flies to become established there. APHIS is confident that the
findings of the study, which have been reviewed by our NAPPO
counterparts in Canada and Mexico, are scientifically sound, and
believes they provide adequate assurance that fruit flies could not
become established in the States proposed for expansion.
---------------------------------------------------------------------------

\4\ Flitters, N.E. ad P.S. Messenger. 1965. ``Effect of
temperature and humidity on development and potential distribution
of the Mexican fruit fly in the United States.'' Tech. Bull. No.
1330. USDA-ARS. 35pp.
---------------------------------------------------------------------------

Comment: USDA must recalculate the probability of detecting or
failing to detect an infestation of Anastrepha spp. fruit flies along
the Mexican avocado pathway, taking into consideration problems
inherent in the fruit cutting and trapping data used as a basis for the
proposed rule. This should also be done for the Sampling Analysis
section of the Sequeira, et al. report, as well as for the Department's
Supplemental Pest Risk Assessment. New Monte Carlo simulations should
be run, and the resulting estimates of the frequency of a pest outbreak
should be subjected to external peer review. USDA should also rerun the
simulations and recalculate the possibility of an outbreak of stem
weevils based upon deficiencies associated with fruit cutting conducted
to detect these pests, and the documented evidence that confirms that
stem weevils can be transported in fresh Hass avocados.
Response: As stated earlier in this document, APHIS is confident
that fruit cutting and fruit fly trapping associated with the Mexican
Hass avocado import program are being conducted properly, and are
adequate to detect pests as intended. Furthermore, APHIS has not
proposed to expand the program based solely on the results of fruit
cutting and trapping results. Our decision to propose to expand the
program was based on a number of factors, including the results of the
Sequeira, et al. study of areas in the United States that are
susceptible to establishment of Anastrepha ludens.
Comment: Consideration of fruit maturity is lacking from all the
current risk assessment work pertaining to fruit flies and avocados.
Fruit maturity is different than fruit ripeness. According to research
by ARS and University of Hawaii researchers, papaya maturity is
critical in determining the host susceptibility to fruit fly
infestation.
Response: In laboratory tests, avocado fruit of various stages of
maturity and ripeness were subjected to forced exposure to fruit flies.
In these tests, fruit flies were only able to lay viable eggs that
developed and produced larvae in fruit that were removed from trees and
held for several days. A large volume of research has been conducted on
the susceptibility of avocados to infestation by fruit flies, but
little evidence that is conclusive in regard to avocados' host status.
None of this research suggests avocado maturity is more worthy of
consideration than avocado ripeness in determining susceptibility to
infestation with fruit flies.
Comment: Why is the ``optima'' temperature for fruit fly activity
used as the benchmark in establishing the threshold for establishment
of fruit flies? Given the consequences of an infestation, it would be
justified to use the more conservative benchmark that incorporates
minimum temperatures.
Response: The Sequeira, et al. study did not use temperature
optima. Rather, it used a model that accounts for (1) slower rates of
fruit fly development at cool temperatures down to the reported
absolute minimum temperature (49 deg.F) at which development occurs,
and (2) faster rates of development as the temperature increases.
Temperatures below freezing are considered lethal for all stages.
However, the Sequeira, et al. study used a conservative approach
whereby only areas with prolonged temperatures below freezing were
considered potentially lethal. Also, even though young fruit is not
considered susceptible to damage, Sequeira, et al. used a conservative
approach and considered the entire phenological period from bloom to
last possible harvest as potentially susceptible. APHIS believes these
approaches employ an even more conservative approach than that
suggested by the commenter.
Comment: Given the obvious flaws inherent in Sequeira's
extrapolation of conclusions from Flitters and Messenger (1965), USDA
should conduct new laboratory research on the effects of temperature
and humidity on fruit fly development and survival. Studies should take
advantage of major changes and improvements in quality control and
rearing technology to ensure the vigor and competitiveness of
laboratory flies. Data generated can be used to calibrate developmental
parameters for the Department's degree-day model, which can then be
used to properly characterize all areas of the United States into risk
regions.

[[Page 55546]]

Response: The Sequeira, et al. study did not extrapolate from
Flitters and Messenger, although the findings of Sequeira, et al. agree
with the results reported by Flitters and Messenger. More recent
developmental studies (including Leyva-Vazquez et al. (1991), Leyva-
Vazquez (1988), and Thomas (1997), each referenced earlier in this
document) are consistent with the reports of Flitters and Messenger
regarding conditions under which Anastrepha ludens develops. Sequeira,
et al. used life table analyses referred to earlier in this document as
the basis for the developmental model. As stated above, the
developmental model was one element in a study that also evaluated host
distribution, availability, susceptibility, winter-time freezing
conditions, as well as the avocado pathway.
Comment: APHIS must focus on the ``introduction'' of Anastrepha
spp. fruit flies, rather than ``establishment'' when characterizing
risk. Fruit flies do not need to become established to become a
quarantine risk, and a successfully introduced population can easily be
transported to susceptible areas of commercial agricultural production.
Response: As stated earlier in this document, APHIS believes it
would be exceedingly unlikely that fruit flies would be introduced into
approved States in commercial shipments of Mexican Hass avocados in
such numbers that their populations would reach outbreak levels in a
matter of a few months. Nonetheless, in response to a previous comment,
we are revising the approved shipping season for imported Hass avocados
to run from October 15 through April 15. We believe this change will
further reduce the risk that fruit flies could survive in approved
distribution areas in the highly unlikely event that they are present
in imported Hass avocados.
Comment: The Sequeira study should be subject to rigorous external
peer review. APHIS has stated that the Sequeira study ``has undergone a
sufficient internal review process to use as an aid in making a sound
regulatory decision.'' Again, APHIS relied almost exclusively on its
own APHIS-PPQ staff to critique a document potentially affecting
thousands of stakeholders. The California Department of Food and
Agriculture, citrus industry leaders in potentially affected States,
researchers and entomologists in California and Florida, and many other
experts were never sought out, nor were they aware of the existence of
the study until a final version of it appeared on the internet.
Response: The development of the Sequeira, et al. study included
consultation with scientists outside of APHIS and with scientists
associated with Mexican and American universities. Nonetheless, APHIS
believes that the rulemaking process has subjected the Sequeira, et al.
study to a very wide peer review. The process of soliciting and
responding to public comments is not limited to internal USDA input,
but seeks the widest possible range of comments and questions from all
interested persons. Public comments are sought to help APHIS improve
and enhance its decisionmaking and the resources on which decisions are
based. If commenters submit information that suggests changes to APHIS
documents are necessary,APHIS evaluates the information and may or may
not make changes in response. In the past, many APHIS rules and the
supporting documents for them have been reviewed and enhanced based on
public comments.
Comment: Where is the USDA analysis of the complete temperature
model for fruit fly activity as it relates to the proposed rule change
in the 12 additional States and as it relates to the 7 at-risk States?
Response: The analysis of climatology contained in the Sequeira, et
al. study was not limited to several States but included the entire
continental United States.
Comment: Statements in the Sequeira, et al. report regarding host
phenology appear to be inconsistent with information shown in Figure 2.
Response: Sequeira, et al.'s approach to estimating the periods
when susceptible fruit were present (generally from post-bloom to last
harvest) involved queries to all PPQ State Plant Health Directors as
well as State Plant Regulatory Officials. In some cases, the
information was not consistent, and when responses were not obtained,
Sequeira, et al. used available literature (sources are noted in the
document). Some inconsistent reports were due to changes in regional
trends. For example, Plant Regulatory Officials in San Diego tended to
provide State phenologies that were more appropriate to Southern
California than elsewhere. However, in the final analysis, Sequeira, et
al. were conservative given the reported variability. Their approach
was to maximize the phenology period to reflect this. For example,
Sequeira, et al. considered California to have fruit present year-round
at all locations and that this fruit is always susceptible. That, in
effect, is a conservative approach because clearly there are no fruit
in parts of California for varying periods of time. We have reviewed
the plant phenological information used in the study and are confident
that it is accurate.

Economic Issues

Comment: The economic analysis only looks at the Hass avocado
market, and does not take into account the effects on consumers and
producers of other varieties such as Fuerte,Pinkerton, etc. The entire
U.S. avocado market would be affected by the proposed ruling and needs
to be included in any analysis.
Response: The analysis assumes that consumers do not readily
substitute between Hass avocados and other varieties of avocado. For
that reason, the other varieties are not included in the analysis.
Significant differences in price suggest a lack of substitutability.
For example, during the first 8 months of the current season, the
average grower price for Hass avocados was$0.73 per pound, compared to
an average price for Fuerte avocados of $0.24 per pound and a combined
average price of $0.22 per pound for ``other'' varieties. If Hass and
non-Hass avocados were close substitutes, then such large price
differences would not exist. Including all domestically produced
avocados in the analysis would increase the baseline, reducing the
magnitude of the estimated impacts.
Comment: The analysis is based on the 6-month period from November
through April. However, avocados can be stored on trees. Therefore,
harvesting can be shifted between time periods. The 60 percent of the
crop that is currently shipped from May through October is an increase
in the percentage that was shipped during this same time period before
Mexico was granted partial access to the U.S. market. Therefore, the
analysis should be done for the entire year.
Response: We consider it appropriate to base the analysis on
domestic avocado shipments for the November-April period. California
producers may respond to increased imports from Mexico by postponing
the harvesting of a portion of their production for shipment during the
peak May-October season. However, inclusion in the analysis of possible
seasonal marketing adjustments would not substantially change the
results of the analysis. Analyzing increased imports from Mexico in
terms of year-round domestic production would simply reduce the size of
expected impacts. The percentage decline in price, gains to consumers/
merchandisers and losses to producers would all be smaller.
Comment: Both the national and regional models are very short-run

[[Page 55547]]

models that assume that the supply of avocados is fixed and, therefore,
it ignores supply adjustments to falling prices. In the short run,
supply is responsive to changes in prices through decisions made during
harvest and at the handler level. In the long run, producers would
adjust to the changes in market prices by removing land in production,
causing market prices to rise. The consequence of the exclusion of a
supply response in the economic model means that both the gains to
consumers and the losses to producers are overestimated. Costs to
handlers as a result of lower production also cannot be calculated
using the USDA model.
Response: As noted by the commenter, relaxing the assumption of
fixed supply would result in lower estimates of consumer/merchandiser
gains and producer losses. However, the net impact of the rule would
remain positive. A fixed supply is assumed in the analysis because
avocado is a perennial tree crop. An avocado tree started as a nursery
seedling takes 3 to 4 years to begin bearing fruit, and a tree grown
from seed can take 5 to 13 years before yielding its first fruit. In
the short term, producers can delay harvest in response to market
conditions, although this may affect the tree's productivity in
succeeding seasons. In the longer term, land may be removed from
production in response to falling prices, but for other reasons as
well. Bearing avocado acres in California decreased by more than 22
percent between 1987/1988 and 1999/2000, and yet over this same period
levels of production and producer prices showed no discernable pattern
of decline. Handlers adjust to seasonal variations in supply.
Comment: The analysis ignores the net effect of the proposed ruling
to California. An analysis of Mexico's imports into the 19 northeastern
States since 1997 shows that the net effect on consumer and producer
welfare within California is negative, even though California consumers
benefit. In addition, the decrease in producer surplus is about 10
times larger in the short run and 6 times larger in the long run than
the increase in consumer surplus.
Response: During the 1999/2000 season, about 40 percent of
California Hass avocado shipments remained within that State. As the
commenter points out, when only California consumers/merchandisers are
considered, their expected gains are outweighed by the expected losses
of California's avocado producers. This consequence is predictable,
given that essentially all domestically produced Hass avocados are
grown in California. The Regulatory Impact Analysis examines impacts on
approved and nonapproved States as defined in the rule. We do not
believe a separate analysis of net impacts for California alone is
appropriate.
Comment: The analysis assumes that the proposed expansion would
result in an increase in imports from Mexico of 16.87 million pounds.
The assumption is that Mexico would displace California shipments to
the additional approved regions. This seems to be a reasonable starting
point, however it is impossible to know precisely what the increase in
prices will be. Therefore, a sensitivity analysis based on higher and
lower levels should also be included.
Response: Whether more or less than the 16.87 million pounds of
additional avocados assumed in the analysis are actually imported from
Mexico, the pattern of impact remains the same: A decline in the price
of avocado, with gains to consumers/merchandisers exceeding losses to
domestic producers. Fewer additional imports would result in less of an
effect on price, and smaller losses and gains; a larger increase in
imports would mean a larger price effect, and larger losses and gains.
Assuming the same price elasticities of supply and demand, the net
impact is positive in all cases. For example, using the national model,
additional imports of 10 million pounds would result in a price decline
of 7 percent, with consumer/merchandiser gains of $16.1 million and
producer losses of $10.6 million; additional imports of 40 million
pounds would lead to a price decline of 28 percent, with consumer/
merchandiser gains of $70.0 million and producer losses of $42.5
million.
Comment: The elasticity of demand used in the Regulatory Impact
Analysis is -0.86 for Hass avocados, a number similar to the one
estimated by Carmen and Craft for the entire California avocado market.
Using techniques developed by Armington, the elasticity of demand for
only Hass avocados is estimated at -1.2. The analysis correctly states
that if demand is more elastic, then the costs to producers will
decrease. However, the gains to consumers will also decrease and that
is missing from the analysis.
Response: The magnitude of estimated impacts depends on the size of
the elasticities. If a price elasticity of demand of -1.2 is assumed
instead of -0.86, and the price elasticity of supply is kept at zero,
the national model shows a price decline of 8.6 percent (compared to 12
percent), producer losses of $12.8 million (compared to $17.9 million)
and consumer/merchandiser gains of $19.8 million (compared to $27.6
million), for a net benefit of $7.0 million (compared to $9.7 million).
These results, as well as those for the regional model when assuming a
price elasticity of -1.2, are shown in an addendum to the Regulatory
Impact Analysis. Both merchandiser/consumer benefits and producer
losses would be smaller, assuming a price elasticity of demand of -1.2
rather than of -0.86, but the net impact remains positive.
Comment: The analysis notes that average total shipments of
California Hass avocados for the 1999-2000 season were 20 percent
greater than shipments between the 1986 and 1994 seasons. However,
average shipments between the 1997 and 2000 seasons were 12 percent
lower than shipments between the 1994 and 1996 seasons, the period just
prior to Mexican Hass avocado imports.
Response: We do not have data for domestic shipments during the
1994/1995 and 1995/1996 seasons. Quantities of avocados shipped during
the 1999/2000 season to the approved and nonapproved States are the
basis for the assumed level of additional avocado imports from Mexico.
As indicated in response to other comments, whether a larger or smaller
quantity of imports is assumed, the direction of the effects is the
same: Price falls, with consumer/merchandiser gains and domestic
producer losses resulting in a net positive impact. Shipment levels
fluctuate from year to year, as do production levels and farm prices.
Although California's avocado acreage has been in decline since the
late 1980s, crop values (price times quantity produced) have trended
upward. Crop values over the 4-year period 1996/97 through 1999/2000
were higher than at any previous time.
Comment: The analysis discusses the decrease in shipments of
California Hass avocados and increase in prices since Hass avocado
imports have begun. It does not mention the establishment of an exotic
pest, avocado thrips, that has reduced marketable yields and increased
costs of production during this same time period.
Response: The purpose of the economic analysis, as required by
Executive Order 12866, is to evaluate the impact of the rule on U.S.
entities. The analysis should include factors affecting the rule or
influenced by the rule. Establishment of avocado thrips in California
occurred independently of avocado imports from Mexico. This pest's
impact in California is not directly pertinent to the analysis. Effects
of additional imports from Mexico are

[[Page 55548]]

estimated without reference to production costs or yields.
Comment: The analysis lacks an estimate of the expected costs to
consumers and producers should an exotic pest become established in the
United States as a result of Mexican Hass avocado imports. An economic
analysis of the effects of avocado thrips becoming established in
California shows a decrease in avocado consumer and producer welfare
since the 1997 season, even though increased imports from Mexico have
benefitted consumers. While a risk analysis would be difficult at this
time given that many avocado pests are undescribed or their impact
unknown, the potential costs need to be addressed in some manner. This
is especially important for the regional analysis. The regional
analysis assumes the existence of a price discrepancy between the
approved and non-approved regions. As the price discrepancy increases,
the risk of non-compliance with APHIS regulations increases, increasing
the risk of an exotic pest becoming established.
Response: The Regulatory Impact Analysis estimates annual net
benefits that can be expected to result from this rule. The cost of a
possible pest introduction would depend upon its likelihood of
occurrence, and upon the reduction in yields and increase in production
costs that would ensue. The introduction of a pest or disease would
adversely affect the economic health of the avocado industry. However,
for the purposes of our analysis, the likelihood of such an event must
be weighed against the certainty of the trade effects. As APHIS has
concluded that the introduction of plant pests is extremely unlikely,
we believe that consideration of the costs of pest introduction would
not substantively change the findings of our analysis. APHIS conducts
economic analyses for import-related rulemaking using the assumption
that the importation of a particular plant/plant product (or animal/
animal product, for that matter) will not result in the introduction of
pests or diseases; indeed, the prevention of such introductions is a
primary goal of those rulemakings. APHIS does, however, routinely
attempt to quantify, to the extent possible, the size (in dollar terms)
of the domestic industry that stands to be affected by a rulemaking. In
this instance, impacts on California avocado producers have been
examined in terms of additional avocado imports from Mexico.
Comment: USDA should establish a mechanism to compensate U.S.
growers who suffer economic losses attributable to pests imported with
Mexican Hass avocados. What mechanisms are planned, and how will they
be funded?
Response: The USDA's authority for the payment of compensation is
found in Sec. 415 of the Plant Protection Act, which provides that the
Secretary may pay compensation to any person for economic losses
incurred by the person as a result of action taken by the Secretary
pursuant to a declaration of extraordinary emergency. The Secretary may
determine that an extraordinary emergency exists because of the
presence of a plant pest or noxious weed that is new to or not known to
be widely prevalent in or distributed within and throughout the United
States and that the presence of the plant pest or noxious weed
threatens plants or plant products of the United States.

Environmental Assessment

Comment: The environmental assessment for the proposed rule does
not address the fact that shippers have an economic incentive to
develop mechanisms to smuggle avocados into areas outside the approved
distribution area.
Response: APHIS believes that the restrictions imposed under the
systems approach regulations discourage the smuggling of avocados into
nonapproved areas. As stated earlier in this document, the time and
effort involved in repackaging and restickering Mexican Hass avocados
would likely negate the incentive to smuggle them. Further, persons who
move Hass avocados into nonapproved areas are subject to prosecution,
and if convicted, face civil and criminal penalties. In addition, in
the 4 years since the Mexican Hass avocado import program began, APHIS
believes that only 0.11 percent of the boxes of imported Mexican
avocados were shipped outside the approved distribution area.
Based on these figures, APHIS believes that the chance that
imported Mexican Hass avocados could be moved to nonapproved States is
very remote. Further, even if imported Hass avocados were moved to
nonapproved areas, it is even more unlikely that they would contain
pests. The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321 et seq.) does not require consideration of remote and
speculative risks in the development of an environmental assessment.
Therefore, we see no need to revise our environmental assessment.
Comment: San Diego County, CA, has the highest number of threatened
or endangered species of any county in the United States. The county
has a large number of growers who practice integrated pest management,
and has in excess of 300 registered organic agricultural producers. The
potential impact of increased pesticide use resulting from an
eradication program in the county would be tremendous. The
environmental assessment should take these impacts into consideration.
Response: The concern of environmental impacts on threatened and
endangered species was noted in the preparation of the environmental
assessment as it applies to the proposed rule for the Mexican Hass
avocado import program expansion and its limited distribution area. San
Diego County is not listed as one of the distribution areas in the
proposed rule and, therefore, was not considered in assessing
environmental impacts to threatened and endangered species. If, in the
future, APHIS proposes to include San Diego County, an environmental
assessment or environmental impact statement (EIS) would be required to
address all environmental issues, including threatened and endangered
species.
Comment: Executive Order 12898 requires that in complying with
NEPA, agencies shall include an analysis of environmental effects,
including health, economic, and social factors. APHIS's environmental
assessment does not meet NEPA requirements in that it does not consider
economic or social factors.
Response: Section 1508.9(a) of NEPA states, in part, that an
environmental assessment is a concise public document that serves to
``(1) [b]riefly provide sufficient evidence for determining whether to
prepare an environmental impact statement; (2) [a]id an agency's
compliance with the [National Environmental Policy]
Act when no
environmental impact statement is necessary, and (3) [f]acilitate
preparation of a statement when one is necessary.'' Because an
environmental assessment is a concise document, it should not contain
lengthy descriptions of information gathered for the environmental
assessment. The analysis in the environmental assessment considered the
potential for effects on the natural and physical environment from the
proposed action and also, in accordance with Executive Order 12898, the
potential for disproportionate human health effects on low-income
populations and minority populations from the proposed action. The
analysis concluded that the expansion of the distribution of Hass
avocados will not result in adverse human health or environmental
effects.
Section 1508.14 of NEPA specifies ``when an environmental impact
statement is prepared and economic or

[[Page 55549]]

social and natural and physical environmental effects are interrelated,
then the environmental impact statement will discuss all of these
effects on the human environment.'' Therefore, an environmental
assessment is not required to discuss social and economic impacts of a
proposed action; however if, after the analysis is completed for an
environmental assessment, the decisionmaker cannot arrive at a finding
of no significant impact, then it would be appropriate to consider
social and economic factors, as they interrelate with the natural and
physical environmental effects, in the EIS.
Comment: The first environmental assessment for the Mexican Hass
avocado import program provided for the establishment of the program
based upon a scientific assessment of pest biology, host range, and
climatic factors. The current assessment discounts the science of the
initial environmental assessment and eliminates the no action
alternative based on trade issues. Where does APHIS provide the
information required by NEPA for discussing elimination of the no
action alternative?
Response: The environmental assessment considered three
alternatives for the proposed action: (1) Change the Fruits and
Vegetables regulations to add 12 States to the distribution area and
extend the shipping season by 2 months (March and April),\5\ (2) no
action, which would not change the current distribution area or months
of distribution, and (3) change the Fruits and Vegetable regulations to
expand the distribution to all 50 States and the District of Columbia
and provide for year-round distribution. Alternative 3 was dismissed
from further consideration because of the risks associated with
possible establishment of quarantine pests, as determined by pest risk
assessment. Alternative 2 (no action) was dismissed from further
consideration because (1) pest risk assessment documents produced by
APHIS found that the risk posed by expanded importation of Mexican Hass
avocados is negligible, and (2) under international trade agreements,
APHIS is obligated to allow the importation of commodities if their
importation presents a negligible risk of pest introduction. This
information is stated on page 3 of the environmental assessment.
---------------------------------------------------------------------------

\5\ The environmental assessment has since been revised to
reflect the change in the shipping season described earlier in this
document.
---------------------------------------------------------------------------

Comment: The consequences of introducing a new pest into the United
States are not adequately addressed in the environmental assessment,
and the assessment's conclusion that ``the risk to the quality of the
human environment [under the program expansion]
is insignificant'' is
incorrect. A full environmental impact statement should be prepared.
Response: The environmental assessment considers, refers to, and
incorporates by reference the risk assessment and subsequent documents
updating the assessment that were prepared specifically for the
importation of Mexican Hass avocados and analysis of selected pathways.
The environmental assessment also incorporates by reference the
Sequeira, et al. study, which assesses the risk associated with the
establishment of Anastrepha ludens fruit flies in the United States,
especially in relation to these pests as they occur in U.S. avocado
imports from Mexico. The study used the following approach factors to
determine the pest risks: (1) Examine the resource at risk (commercial
fruit production), (2) characterize host susceptibility (timing and
location of susceptible fruit), and (3) characterize climatology for
the purpose of studying pest reproduction potential as a function of
the previous factors. The study also used the avocado pathway as a case
study for the risks associated with fruit imports. In determining the
probability that fruit flies are getting through undetected along the
pathway, the case study used evidence from ongoing sampling and
recorded information since the initiation of the avocado export
program.
Epidemiologically, the Sequeira, et al. study concludes that both
the Hass avocado's status as a poor to inadequate host and marginal
developmental conditions lead to low production area fruit fly
densities. According to the statistical findings of the study, the
probability that fruit fly infestations--even very low-level
infestations--remain undetected in inspections under the current export
program is close to zero.
Based on the findings of these scientific assessments, increased
imports of Hass avocados from Michoacan, Mexico, will not significantly
impact the human environment; thus, the preparation of an EIS is not
required for this proposed action.

Miscellaneous

Under the regulations, imported Mexican Hass avocados must be
packed in clean, new boxes that are clearly marked with the identity of
the grower, packinghouse, and exporter, and a statement listing the
States in which distribution of the avocados is prohibited. In this
document, we are revising the regulations to allow imported Mexican
Hass avocados to, alternatively, be packed in clean plastic reusable
crates. The clean plastic reusable crates will be required to be marked
with the same information as is required on clean new boxes. We are
making this change because it could reduce unnecessary waste while
continuing to provide that imported Mexican avocados are packaged in
boxes that, in and of themselves, do not present a risk of introducing
fruit flies or other plant pests into the United States.
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.

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.
We are taking this action in response to a request from the
Government of Mexico and after determining that expanding the current
Mexican avocado import program would present a negligible risk of
introducing plant pests into the United States.
Immediate implementation of this rule is necessary to provide
relief to those persons who are adversely affected by restrictions we
no longer find warranted. Under the regulations, the shipping season
for Mexican Hass avocados begins October 15, 2001. Making this rule
effective immediately will allow interested persons to begin shipping
Hass avocados to certain areas of the United States as soon as possible
after that date. Therefore, the Administrator of the Animal and Plant
Health Inspection Service has determined that this rule should be
effective less than 30 days after publication.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The rule
has been determined to be significant for the purposes of Executive
Order 12866 and, therefore, has been reviewed by the Office of
Management and Budget.
For this rule, we have prepared a regulatory impact analysis. The
regulatory impact analysis also contains a final regulatory flexibility
analysis, which considers the potential economic effects of this final
rule on small

[[Page 55550]]

entities, as required under 5 U.S.C. 604. The regulatory impact
analysis and regulatory flexibility analysis are summarized below.
Copies of the full analysis are available by contacting the person
listed under FOR FURTHER INFORMATION CONTACT, or on the Internet at
http://www.aphis.usda.gov/ppq/avocados/.
Under the Plant Protection Act (7 U.S.C. 7701-7772), the Secretary
of Agriculture is authorized to regulate the importation of plants,
plant products, and other articles to prevent the introduction of
injurious plant pests.

Summary of Regulatory Impact Analysis

Our analysis considers economic impacts on U.S. producers and
consumers/ merchandisers of Hass avocados that could result from
allowing fresh Hass avocados from Michoacan, Mexico, to be imported
into additional areas of the United States and over a longer period
each year than is currently allowed. Since the 1997/98 season, imports
of avocados from approved orchards in Michoacan, Mexico, have been
allowed to be imported into the United States and distributed in
Connecticut, Delaware, the District of Columbia, Illinois, Indiana,
Kentucky, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New
Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia,
West Virginia, and Wisconsin during the months of November through
February. Under this final rule, distribution will be expanded to
include the States of Colorado, Idaho, Iowa, Kansas, Minnesota,
Missouri, Montana, Nebraska,North Dakota, South Dakota, Utah, and
Wyoming. The shipping season will also be expanded to run from October
15 through April 15.
We are taking this action in response to a request from the
government of Mexico, and after determining that this action would
present a negligible risk of introducing plant pests into the United
States.
Impacts on U.S. producers and consumers/merchandisers will derive
from the increased supply of Hass avocados from Mexico and concomitant
price declines. Essentially all domestically produced Hass avocados are
grown in California. U.S. producers and California producers are
therefore used interchangeably in the analysis. The 1997 rule that
first allowed for the importation of Mexican Hass avocados to 19 States
and the District of Columbia resulted in a redistribution of
California-grown Hass avocados from markets in the approved States
during the months that imports are allowed from Mexico. This final rule
is expected to have a similar effect. Anecdotal evidence suggests that
benefits resulting from the previous regulations have been largely
realized at the wholesale level, and discussion of consumer gains
therefore includes explicit reference to merchandisers as well.
In our analysis, we use two models to estimate impacts. The first
is a nationwide model that does not distinguish between the approved
and nonapproved States. The rationale underlying this model is that
given sufficient time, a single price for avocados would obtain in the
two regions. Although Mexico's supply is restricted to the approved
States for specified months of the year, California and other foreign
suppliers can move in and out of the two markets, and would do so in
search of profits until prices in the approved and nonapproved States
essentially equalize.
The second model explicitly recognizes the approved and nonapproved
States as two regions. Estimated economic losses include direct market
loss for California producers in approved States, and losses related to
increased supply in nonapproved States, as the diversion of California
Hass avocados from approved to nonapproved States depresses prices.
Consumers/merchandisers would be expected to gain in both approved and
nonapproved States from the lower prices. A theoretical limitation of
the regional model, in contrast to the national model, is the assumed
maintenance of a price differential between the approved and
nonapproved States.
Both models use a partial equilibrium economic surplus framework to
consider the benefits and costs of the final rule. Potential producer
losses and consumer/merchandiser gains are quantified in terms of
changes in producer and consumer surplus resulting from the increased
imports expected from Mexico. To simplify the analysis, the demand
curve is assumed to be of constant elasticity while U.S. supply is
assumed to be fixed. The supply curve is assumed to be vertical at
least in the short run, that is, supply is perfectly inelastic and does
not respond to changes in price.
In the national model, additional Hass avocado imports from Mexico
totaling 16.87 million pounds are estimated to result in a 12 percent
drop in the wholesale price, from $1.34 per pound to $1.18 per pound.
Consumers/merchandisers would gain by $27.65 million per year and
California Hass avocado producers would lose by $17.93 million per
year, for a net benefit of $9.72 million per year.
In the regional model, the same level of additional Mexican Hass
avocado imports is assumed (16.87 million pounds), an amount equivalent
to the maximum quantity assumed could be wholly diverted from approved
to nonapproved States. Impacts are examined using three scenarios. In
the first scenario, 70 percent of California Hass avocados that would
otherwise be sold in the approved States are diverted to nonapproved
States; in the second scenario, 85 percent are diverted; and in the
third scenario, 100 percent are diverted. The 85 percent diversion
scenario is considered representative of what is most likely to occur,
given historic changes in quantities of California Hass avocados
shipped to the existing approved States due to Mexican imports.
The first scenario of the regional model (70 percent diversion)
would mean 6.07 million pounds of California Hass avocados remain in
the approved States, and 11.81 million pounds are diverted to the
nonapproved States. The additional supply of Mexican Hass avocados
results in a price decline that benefits consumers/merchandisers in the
approved States by $10.12 million per year. California producers whose
Hass avocados are sold in the approved States face a revenue loss of
$17.15 million per year. The net loss in the approved States is $7.03
million per year.
In the nonapproved States, the 11.81 million pounds of California
Hass avocados diverted from the approved States result in a price
decline that causes a revenue loss of $0.35 million per year for
California producers. Consumers/merchandisers in the nonapproved States
benefit by $19.31 million per year, for a net benefit of $18.96 million
per year.
Net losses in the approved States ($7.03 million per year) and net
gains in the nonapproved States ($18.96 million per year) yield an
overall net gain of $11.94 million per year in the first scenario.
The second scenario (85 percent diversion) yields producers losses
and Consumer/merchandiser gains comparable to the first one. Net losses
in the approved States ($13.93 million per year) and net benefits in
the nonapproved States ($22.79 million per year) combine for an overall
net gain estimated at $8.87 million per year.
In the third scenario (100 percent diversion), 16.87 million pounds
of California Hass avocados are diverted to the nonapproved States. Net
losses in the approved States ($21.05 million per

[[Page 55551]]

year) and net gains in the nonapproved States ($26.54 million per year)
yield a combined net benefit of $5.50 million per year.
In sum, impacts of the final rule for U.S. producers and consumers/
merchandisers range from net benefits of $11.94 million per year for
the 70 percent diversion scenario and $8.87 million per year for the 85
percent diversion scenario, to $5.50 million per year for the 100
percent diversion scenario. The net benefit estimated using the
national model, $9.72 million per year, is contained within this range.
The overall impact in all cases is minor. In the event the price
elasticity of demand is larger than that used in this analysis (-0.86),
losses to California producers will be less than those calculated, but
the net impact remains positive. Another factor that could reduce
losses to California producers would be activities to increase the
demand for Hass avocados, that is, activities would increase sales at
any given price.

Summary of Final Regulatory Flexibility Analysis

The Regulatory Flexibility Act requires that impacts on small
entities be taken into consideration in rulemaking, to ensure that such
businesses are not disproportionately burdened. There are about 6,000
producers and 100 handlers of Hass avocados in southwestern California
that could be affected by this rule, as well as about 200 importers.
APHIS has been unable to obtain information on the size distribution of
affected avocado producers. For the purposes of our analysis, we assume
that the size distribution of the 6,000 producers is the same as the
size distribution of avocado farms reported in the 1997 Census of
Agriculture; that is, 98 percent are small entities ($750,000 or less
in annual receipts). Most avocado importers are reportedly also small
entities (100 or fewer employees), while most Hass avocado handlers are
large (more than $5 million in annual receipts). Given the declines in
revenue that are described in the three scenarios of the regional
model, average annual losses for small-entity California Hass avocado
producers could range between $1,870 and $2,593. This impact could
prove significant if producers rely upon Hass avocado production as
their principal source of income.
Two variations of the regional model are presented as examples of
modifications to the rule that would mitigate adverse impacts on small-
entity California Hass avocado producers. Alternative A would extend
the 4-month period of import by 2 months, March and April, but would
not expand the number of approved States. Alternative B would maintain
the current 4-month period of import, but would expand the number of
approved States. For both alternatives, losses to California's Hass
avocado producers would be less than were calculated for the proposed
rule. Under the 85 percent diversion scenario, California producer
losses would be $12.46 million per year and $2.50 million per year for
alternatives A and B, respectively, compared to an annual producer loss
of $20.55 million under the proposed rule. However, consumer/
merchandiser gains would also be reduced in both cases. Annual net
benefits are estimated to be $6.52 million per year for alternative A
and $3.67 million per year for alternative B, compared to $8.87 million
per year for the proposed rule.
There are no other rules that would overlap, duplicate, or conflict
with this final rule.
This final rule contains information collection requirements, which
have been approved by the Office of Management and Budget (see
``Paperwork Reduction Act'' below).

Executive Order 12988

This final rule allows Hass avocados to be imported into certain
areas of the United States from Michoacan, Mexico. State and local laws
and regulations regarding Hass avocados imported under this rule will
be preempted while the fruit is in foreign commerce. Fresh Hass
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 assessment provides a basis
for the conclusion that the importation of Hass avocados from Mexico
under the conditions specified in this rule will not present a risk of
introducing or disseminating plant pests and 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's NEPA
Implementing Procedures (7 CFR part 372).
Copies of the environmental assessment and finding of no
significant impact are available for public inspection at USDA, room
1141, South Building, 14th Street and Independence Avenue SW.,
Washington, DC between 8 a.m. and 4:30 p.m., Monday through Friday,
except holidays. Persons wishing to inspect copies are requested to
call ahead on (202) 690-2817 to facilitate entry into the reading room.
In addition, copies may be obtained by writing to the individual listed
under FOR FURTHER INFORMATION CONTACT, and on the Internet at: http://
www.aphis.usda.gov/ppq/avocados/.

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 0579-0129.

List of Subjects in 7 CFR Part 319

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

Accordingly, we are amending 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

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

Authority: 7 U.S.C. 166, 450, 7711-7714, 7718, 7731, 7732, and
7751-7754; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

2. Section 319.56-2ff is amended as follows:
a. By revising the section heading, the introductory text, and
paragraphs (a)(2), (a)(3), and (c)(3)(vii).
b. In paragraphs (e)(2) and (e)(3), by removing the words
``November through February'' each time they appear and adding the
words ``October 15 through April 15'' in their place.

[[Page 55552]]

c. By revising paragraphs (f)(1), (g), and (i).

Sec. 319.56-2ff Administrative instructions governing movement of Hass
avocados from Michoacan, Mexico, to approved States.

Fresh Hass variety avocados (Persea americana) may be imported from
Michoacan, Mexico, into the United States for distribution in approved
States only under a permit issued in accordance with Sec. 319.56-4, and
only under the following conditions:
(a) * * *
(2) The avocados may be imported only between October 15 and April
15 of the following year; and
(3) The avocados may be distributed only in the following States:
Colorado, Connecticut, Delaware, the District of Columbia, Idaho,
Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New
Hampshire, New Jersey, New York, North Dakota, Ohio, Pennsylvania,
Rhode Island, South Dakota, Utah, Vermont, Virginia, West Virginia,
Wisconsin, and Wyoming.
* * * * *
(c) * * *
(3) * * *
(vii) The avocados must be packed in clean, new boxes, or clean
plastic reusable crates. The boxes or crates must be clearly marked
with the identity of the grower, packinghouse, and exporter, and the
statement ``Not for distribution in AL, AK, AZ, AR, CA, FL, GA, HI, LA,
MS, NV, NM, NC, OK, OR, SC, TN, TX, WA, Puerto Rico, and all other U.S.
Territories.''
* * * * *
(f) * * *
(1) Any port located in a State specified in paragraph (a)(3) of
this section;
* * * * *
(g) Shipping areas. (1) Except as explained below in paragraph
(g)(3) for avocados that enter the United States at Nogales, AZ,
avocados moved by truck or rail car may transit only that area of the
United States bounded as follows:
(i) On the east and south by a line extending from Brownsville, TX,
to Galveston, TX, to Kinder, LA, to Memphis, TN, to Knoxville, TN,
following Interstate 40 to Raleigh, NC, and due east from Raleigh, and
(ii) On the west by following Interstate 10 North from El Paso, TX,
to Las Cruces, NM, and north following Interstate 25 to the Colorado
border, then west along Colorado and Utah's southern borders, then
north along Utah's western border, then west along Idaho's southern
border and north along Idaho's western border to the border with
Canada.
(2) All cities on the boundary lines described in paragraph (g)(1)
are included in this shipping area. If the avocados are moved by air,
the aircraft may not land outside this shipping area.
(3) Avocados that enter the United States at Nogales, AZ, must be
moved to Las Cruces, NM, by the route specified on the permit, and then
must remain within the shipping area described above in this paragraph.
* * * * *
(i) Inspection. The avocados are subject to inspection by an
inspector at the port of first arrival, at any stops in the United
States en route to an approved State, and upon arrival at the terminal
market in the approved States. At the port of first arrival, an
inspector will sample and cut avocados from each shipment to detect
pest infestation.
* * * * *

Done in Washington, DC, this 29th day of October 2001.
James G. Butler,
Acting Under Secretary for Marketing and Regulatory Programs, USDA.
[FR Doc. 01-27485 Filed 10-31-01; 8:45 am]
BILLING CODE 3410-34-U

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Mexican Hass Avocado Import Program

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