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Rules and Regulations Federal Register Vol. 75, No. 1

Monday, January 4, 2010

This section of the FEDERAL REGISTER Coordination Specialist, Regulations, rule. The issues raised by the remaining contains regulatory documents having general Permits, and Manuals, PPQ, APHIS, commenters are discussed below by applicability and legal effect, most of which 4700 River Road Unit 136, Riverdale, topic. are keyed to and codified in the Code of MD 20737–1236; (301) 734–0773. Federal Regulations, which is published under General Comments SUPPLEMENTARY INFORMATION: 50 titles pursuant to 44 U.S.C. 1510. Two commenters expressed general Background The Code of Federal Regulations is sold by concerns about the proposed rule. One the Superintendent of Documents. Prices of The regulations in ‘‘Subpart—Fruits stated that scientists say that not enough new books are listed in the first FEDERAL and Vegetables’’ (7 CFR 319.56–1 time has passed to study the pests REGISTER issue of each week. through 319.56–49, referred to below as associated with the importation of Hass the regulations) prohibit or restrict the avocados from Peru and the potential importation of fruits and vegetables into threat those pests pose. This commenter DEPARTMENT OF AGRICULTURE the United States from certain parts of stated that, without substantial inquiry the world to prevent the introduction into the effects of the pests, allowing the Animal and Plant Health Inspection and dissemination of plant pests that are importation of avocados from Peru Service new to or not widely distributed within would be unsafe, with very serious the United States. consequences for California avocado 7 CFR Parts 305 and 319 On January 7, 2009, we published in growers. Another commenter stated that [Docket No. APHIS–2008–0126] the Federal Register (74 FR 651–664, California avocado growers have Docket No. APHIS–2008–0126) a experienced pest introductions due to RIN 0579–AC93 proposal 1 to amend the regulations to the inadequate inspection of Hass allow the importation of Hass avocados avocados imported from Mexico, and Importation of Hass Avocados From from Peru into the continental United further stated that there is no reason to Peru States. As a condition of entry, we expect that inspection of Hass avocados AGENCY: Animal and Plant Health proposed to require Hass avocados from from Peru will provide any better Inspection Service, USDA. Peru to be produced in accordance with protection. We prepared a pest risk assessment ACTION: Final rule. a systems approach that included requirements for importation in (PRA) and risk management document SUMMARY: We are amending the fruits commercial consignments; registration (RMD) as part of our evaluation of the and vegetables regulations to allow the and monitoring of places of production request from the NPPO of Peru to export importation of Hass avocados from Peru and packinghouses; grove sanitation; Hass avocados to the United States. into the continental United States. As a pest-free areas, trapping, or treatment Based on the evidence and discussion condition of entry, Hass avocados from for fruit flies; surveys for the avocado presented in the PRA and RMD, we Peru will have to be produced in seed moth; and inspection for have concluded that the mitigations we accordance with a systems approach quarantine pests by the national plant proposed, with some changes as that includes requirements for protection organization (NPPO) of Peru. discussed later in this document, will be importation in commercial We also proposed to require Hass effective at preventing the quarantine consignments; registration and avocados from Peru to be accompanied pests identified in the PRA from being monitoring of places of production and by a phytosanitary certificate with an introduced into the United States via packinghouses; grove sanitation; pest- additional declaration stating that the the importation of avocados from Peru. free areas or trapping for the South avocados were grown, packed, and The first commenter did not provide American fruit fly; pest-free areas or inspected and found to be free of pests any specific citations supporting the treatment for the Mediterranean fruit in accordance with the proposed assertion that scientists say not enough fly; surveys for the avocado seed moth; requirements. We proposed to add the time has passed to study the pests and inspection for quarantine pests by systems approach to the regulations in associated with the importation of Hass the national plant protection a new § 319.56–49.2 avocados from Peru, nor did the organization of Peru. Hass avocados We solicited comments concerning commenter indicate that the evidence presented in the PRA and RMD was from Peru will also be required to be our proposal for 60 days ending March inadequate. accompanied by a phytosanitary 9, 2009. We received 30 comments by With regard to the second certificate with an additional that date. They were from private citizens, producers, importers, commenter’s concern about pests being declaration stating that the avocados introduced via the importation of Hass were grown, packed, and inspected and exporters, and representatives of State and foreign governments. Twenty of the avocados from Mexico, it should be found to be free of pests in accordance noted that, in 9 years of fruit cutting and commenters supported the proposed with these requirements. This action inspection of Hass avocados imported will allow the importation of Hass from Mexico, over 28 million fruit were 1 To view the proposed rule and the comments avocados from Peru into the United examined (20.2 million in the orchards, States while continuing to provide we received, go to http://www.regulations.gov/ fdmspublic/component/ 7.2 million in packinghouses, and protection against the introduction of main?main=DocketDetail&d=APHIS-2008-0126. 602,490 at border inspection ports) for quarantine pests. 2 In this final rule, the provisions of the systems pests. Twice, the quarantine pest DATES: Effective Date: February 3, 2010. approach are added as § 319.56–50. We discuss the comments in terms of provisions of proposed Contrachelus perseae was found, both FOR FURTHER INFORMATION CONTACT: Ms. § 319.56–49 so that the reader can follow along with times in backyard avocados that would Charisse Cleare, Regulatory the proposal. not have been eligible to be exported to

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the United States. Both outbreaks of this Peru, they are highly unlikely to travel treatment and avocado seed moth pest were eradicated. All other avocados the pathway of commercial avocado infestation levels in avocados grown in from this export program have been fruit exported from Peru. According to Brazil (Hohmann et al., 2000) and the found to be free of quarantine pests. Wysocki et al. (2002), pests of the family placement of avocado seed moth eggs There is no evidence that the Miridae, which includes the Dagbertus laid within the tree and in the avocados importation of Hass avocados from genus, ‘‘feed and insert their eggs on (Hohmann et al., 2003). This work does Mexico has resulted in the introduction opening buds, leaves, flowers and small not directly address the question of the of quarantine pests into the United fruit. Attacks seem to especially affect appropriate pest risk rating for avocado States. flowers and recently set fruit, causing seed moth. As appropriate, it will them to drop.’’ Fallen immature fruit inform our operational workplan, which Comments on the PRA would not be marketable and thus is required under the systems approach, We prepared a draft PRA titled would typically not be exported for and specifically the provisions of the ‘‘Importation of ‘Hass’ Avocado (Persea commercial sale. The other plant parts workplan that deal with specific details americana) Fruit from Peru into the mentioned would not be allowed to be of fruit cutting and sampling. Continental United States’’ (May 2006). included in shipments of avocados One commenter stated that Ferrisia The draft PRA evaluated the risks intended for export. malvastra, a mealybug, should not have associated with the importation of Hass The information in Wysocki et al. been identified in the PRA as a avocados into the continental United (2002) is corroborated by the fact that, quarantine pest. The commenter stated States (the lower 48 States and Alaska) since 1985, Dagbertus spp. have been that the NPPO of Peru does not have from Peru. We published a notice 3 in intercepted at U.S. ports of entry only records indicating that F. malvastra is the Federal Register on May 25, 2006 26 times from anywhere in the world, present in Peru and that the reference (71 FR 30113, Docket No. APHIS–2006– on any commodity, including flowers (Ben-Dov et al., 2003) that the PRA cites 0072), in which we advised the public and other plant parts in addition to as evidence of the pest’s presence in of the availability of the draft PRA and fruit. Peru also indicates that the pest is solicited comments on it for 60 days The paper the commenter submitted present in the United States. ending July 24, 2006. We also does not identify a specific species of The genus Ferrisia is comprised of conducted a peer review of the draft Dagbertus spp. as a pest. Additionally, several species which may be difficult PRA. We made changes to the May 2006 none of the information we have about to differentiate from one another (Gullan PRA in response to public comments Dagbertus spp. indicates that we should et al., 2003). Soon after being described, and peer review comments and further analyze any specific species Heliococcus malvastrus, a prepared a revised PRA, dated within the genus. In the PRA parthenogenic mealybug first described December 2008, for the January 2009 accompanying this final rule, we have by McDaniel in 1962, was synonymized proposal. We accepted comments on the added Dagbertus spp. to the list of plant with F. virgata (McKenzie, 1967). The revised PRA during the comment period pests potentially affecting Hass species was then separated, redescribed, for the proposed rule. avocados in Peru, but we have indicated and named F. consobrina (Williams and One commenter provided a comment in that list that these species will not Watson, 1988), a name that was the on the May 2006 PRA recommending follow the pathway of commercial fruit. junior synonym to F. malvastra (Ben- that mirids of the genus Dagbertus be We continue to consider Dagbertus spp. Dov, 2005). Hence, the observation added to the list of quarantine pests not to be quarantine pests. noted in Williams & Granara (1992) One commenter examined the associated with Hass avocados from records the presence of what is now references in the PRA regarding the Peru. We stated in the December 2008 considered F. malvastra in Peru. quarantine pest Stenoma catenifer, the The PRA notes that F. malvastra is PRA that we had not found any avocado seed moth, and stated that we present in the United States and further evidence that Dagbertus spp. were pests should have considered the work of Dr. indicates that this pest is on the of avocados in Peru. Addressing this Mark Hoddle and Dr. C.L. Hohmann in actionable pest list maintained by the statement, the commenter provided an assessing the risk posed by that pest. Plant Protection and Quarantine unpublished study that the commenter The commenter stated that the omission program’s National Identification believed supported the addition of of the work of these authors called into Service. Our regulatory practice is to Dagbertus spp. to the list of quarantine question whether the risk mitigation treat such pests as quarantine pests. We pests of avocados in Peru. The strategy we proposed for the avocado are making no changes to the quarantine commenter also consulted an seed moth would be effective. pest status of F. malvastra in response entomologist, who stated that he had The avocado seed moth was rated as to this comment. not tested whether Dagbertus spp. can a high-risk pest, meaning that the One commenter stated that, between oviposit in hard mature avocado fruit references we consulted were sufficient 2001 and 2005, the NPPO of Peru and added, with respect to the pests’ to establish that the pest risk rating was sampled a total of 12,505 Hass avocados ability to travel the commercial the highest available. The work of Dr. attached to trees, finding no fruit pathway, ‘‘I can’t guarantee it won’t Hoddle indicates that the avocado seed infested with fruit flies. The commenter happen.’’ The commenter urged APHIS moths can cause extensive damage to asserted that these data indicate that to further evaluate the quarantine pest Hass avocado crops, meaning that it Hass avocados attached to trees are not status of Dagbertus spp. to determine supports our rating of the pest risk of hosts for the fruit flies identified in the whether risk mitigation measures are the avocado seed moth as high. It also PRA as quarantine pests: Anastrepha warranted. describes the seasonality of this pest, fraterculus, the South American fruit We appreciate the opportunity to which is not relevant for Peru; avocados fly; A. striata, the guava fruit fly; and clarify our earlier statement. While are only produced in one season in Ceratitis capitata, the Mediterranean Dagbertus spp. are pests of avocados in Peru, unlike Guatemala, the site of Dr. fruit fly or Medfly. Hoddle’s research, where avocados are While these data are not inconsistent 3 To view the notice, the draft PRA, and the comments we received, go to http:// produced year-round. with the assertion made by the www.regulations.gov/fdmspublic/component/ The two papers by Dr. Hohmann that commenter, the data are not sufficient to main?main=DocketDetail&d=APHIS-2006-0072. the commenter cited discuss pesticide prove that assertion. (For example,

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research would need to be done to site visits as part of developing the necessary to provide appropriate determine the host status of avocados systems approach; we found the NPPO protection against the introduction of off the tree.) APHIS has developed a of Peru to have the necessary resources quarantine pests via Hass avocados protocol for surveys and sampling to and capacity to implement the systems imported from Peru. demonstrate that a fruit or vegetable is approach. In addition, APHIS Mitigation Measures for A. fraterculus not a host of a specific pest. If the NPPO inspection of Hass avocados from Peru of Peru wishes to establish that Hass at the port of entry will serve as a check In paragraph (d) of proposed avocados in Peru are not hosts of these on the effectiveness of the systems § 319.56–49, we proposed to provide fruit flies, it can follow the APHIS approach. two options for mitigating the risk protocol for doing so. associated with the fruit flies A. However, one of these fruit flies, A. Grove Sanitation fraterculus, the South American fruit striata, has been demonstrated not to Paragraph (c) of proposed § 319.56–49 fly, and A. striata, the guava fruit fly, in infest Hass avocados, in Aluja et al. contained grove sanitation avocados from Peru: Establishment of an (2004). We do not currently consider requirements. We proposed to require area free of A. fraterculus and A. striata, Hass avocados to be a host of this pest; avocado fruit that has fallen from the in accordance with our pest-free area in a final rule published in the Federal trees to be removed from each place of regulations in § 319.56–5, or trapping to Register on June 30, 2009 (74 FR 31154– production at least once every 7 days, demonstrate that places of production 31160, Docket No. APHIS–2006–0189), starting 2 months before harvest and have a low prevalence of A. fraterculus and effective on July 30, 2009, we continuing to the end of harvest. and A. striata. removed restrictions related to the One commenter stated that we should Although the January 2009 PRA movement of Hass avocados from areas require grove sanitation to occur only identified both A. fraterculus and A. where certain Anastrepha spp. fruit flies during the harvest season, rather than striata as potential pests of Hass (including A. striata) are present. beginning 2 months before harvest, and avocados from Peru, Hass avocados are Accordingly, we have removed A. that we should require removal of fallen known to be poor hosts for Anastrepha striata from the pest list in the PRA that fruit every 15 days, rather than every 7 spp. fruit flies in general. However, the accompanies this final rule. It should be days. The commenter provided the risk that these fruit flies will infest Hass noted that A. fraterculus is still on the following reasons: avocados increases if their population is pest list, meaning that avocados from • Hass avocados on the ground are high in areas where avocados are Peru will still need to be grown in poor hosts for fruit flies, and fruit produced. Trapping to demonstrate an places of production that have a low attached to trees are not hosts for fruit area of low pest prevalence was prevalence of A. fraterculus, as flies. proposed as an appropriate mitigation demonstrated by trapping, or that are • The avocado seed moth does not for these two fruit flies. free of that pest, as described in further occur in the coast of Peru, where most As noted above, we have removed A. detail later in this document. avocado production in Peru is expected striata from the pest list in the PRA to occur. accompanying this final rule, meaning Monitoring and Oversight • Hass avocado fruit fall to the that these requirements apply only with Two commenters addressed APHIS ground because of a normal regard to A. fraterculus in this final rule. monitoring and oversight of the systems physiological characteristic of the One commenter stated that allowing approach generally. One asked what the avocado crop, not due to pest attacks. the NPPO of Peru to define areas of low level of APHIS oversight would be in We disagree with this commenter. pest prevalence without direct APHIS Peru, what level of expertise and Avocado fruit do, in fact, fall from trees oversight would not be prudent. resources would be dedicated to the due to pest attacks; indeed, unusual Perhaps, the commenter stated, the systems approach by the NPPO of Peru, fruit drop is often a symptom of pest NPPO of Peru could define areas of low and whether periodic site visits were infestation. In addition, fallen avocado pest prevalence after several years of planned to verify program compliance. fruit are typically damaged and thus program implementation without The second commenter, noting the provide good host material for pests of incident, but without a proven track RMD’s statement that ‘‘APHIS will be avocados, including fruit flies; for this record, the risks would be too great to directly involved with SENASA [the reason, we proposed to prohibit fallen place an untried systems approach in NPPO of Peru] in monitoring and avocado fruit from being included in the hands of government officials in the auditing implementation of the systems field containers of fruit brought to the exporting country. The commenter approach,’’ stated that APHIS should packinghouse to be packed for export. recommended that the final rule include provide on-site monitoring of all aspects The occurrence of the avocado seed provisions for mandatory monitoring of of the systems approach throughout the moth in only one area in Peru is not fruit fly trapping by APHIS. harvest period and that a requirement relevant to this provision of the systems The commenter did not identify a for such APHIS monitoring should be approach, which targets all the specific risk associated with oversight of included in the regulations. quarantine pests. the fruit fly trapping by the NPPO of The NPPO of Peru is obligated to The 7-day interval for removal of Peru. In import programs that involve fulfill its responsibilities under the fallen fruit that we proposed is fruit fly trapping, we do not typically systems approach as a signatory to the consistent with our regulations for the require APHIS oversight of the trapping International Plant Protection importation of Hass avocados from itself. Instead, we require in the Convention (IPPC). We have determined Mexico in § 319.56–30; the requirement regulations that records of the fruit fly that it is not necessary for us to monitor to begin grove sanitation 2 months trapping be kept and made available to program activities on site unless we before harvest is consistent with other APHIS. We included in the proposed have reason to believe that such import programs that contain grove rule requirements for the NPPO of Peru activities may not be adequately sanitation requirements (although not to keep records of fruit fly detections for mitigating pest risks. Thus, we do not the Mexican program, since Hass each trap, update the records each time plan to make periodic site visits. This is avocados are exported from Mexico the traps are checked, and make the consistent with our practice in other year-round). We have determined that records available to APHIS inspectors import programs. We have conducted this sanitation period and interval are upon request. Fruit fly trapping itself is

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conducted in accordance with the PRA when discussing the host status of immediately surrounding all traps International Atomic Energy Agency Hass avocados for A. fraterculus, nor where Medfly was found to determine (IAEA) guidelines for fruit fly trapping, did the commenter point out any whether a reproducing population is which are internationally recognized evidence suggesting that some species of established. If any additional Medfly are and well-understood. By auditing the A. fraterculus exhibit a greater found within 30 days of the first fruit fly trapping records, we can preference for Hass avocados than detection, the affected place of determine whether the trapping is being others. As stated in the PRA, a review production would be ineligible to export conducted consistent with the IAEA of the current literature suggests that avocados without treatment for Medfly guidelines. Records of finds of fruit flies under most circumstances, Hass until the source of the infestation is in the trapping would also indicate avocados do not serve as hosts for identified and the infestation is whether the trapping procedures needed Anastrepha spp. The PRA ultimately eradicated. APHIS would have to to be adjusted. As noted earlier, we have concluded that, given the available concur with the determination that the conducted site visits as part of evidence, A. fraterculus could be infestation has been eradicated. developing the systems approach; we considered a pest of avocado in Peru. One commenter expressed concern found the NPPO of Peru to have the This is consistent with allowing the about using trapping to demonstrate necessary resources and capacity to importation of Hass avocados from Peru place of production freedom from implement the systems approach, that originate in an area of low pest Medfly, noting that allowing pest-free including fruit fly trapping. We are prevalence for A. fraterculus and places of production would be making no changes to the proposed rule requiring that Hass avocados be unprecedented unless all of the export in response to this comment. inspected for A. fraterculus before being groves in Peru are greater than 0.5 km2 This commenter also asserted that the exported to the United States. and are surrounded by buffer zones. The proposed rule did not provide adequate The research to demonstrate the non- commenter stated that international mitigations for the risk associated with susceptibility of Hass avocados to attack standards for area freedom from Medfly A. fraterculus and A. striata, stating that by A. fraterculus that the commenter should continue to be used. recommends would be necessary if we we should add to the final rule We agree with the commenter’s provisions prohibiting the distribution had proposed to require no mitigations concern. Peru’s places of production do of Hass avocados from Peru to areas of for A. fraterculus; instead, we proposed not all meet the conditions noted by the the United States where fruit flies could to require Hass avocados from Peru to commenter, thus making determining become established. The commenter come from areas that are free of A. place of production freedom from stated that A. fraterculus is considered fraterculus or areas that have been Medfly operationally difficult. the most important fruit fly pest in demonstrated by trapping to have a low Therefore, this final rule does not South America, with a very wide range prevalence of A. fraterculus. include trapping to establish a pest-free of hosts ranging from tropical to As noted earlier, we have determined place of production as a mitigation temperate species. A. fraterculus that A. striata is not a pest of Hass option for Medfly. We are providing exhibits greater morphological variation avocados, based on research to which than related species, and there is strong the commenter alludes. only for the establishment of pest-free evidence that a complex of cryptic The commenter also recommended areas and treatment as mitigation species is included in the nominal that we require the storing of ‘‘voucher options in paragraph (e). We are also species A. fraterculus, of which the specimens’’ of A. fraterculus in 95 making several changes elsewhere in the South American variety may be more percent alcohol, to facilitate genetic proposed regulatory text to remove aggressive and dangerous. analyses conducted later in time and references to pest-free places of The commenter stated that provisions aimed at differentiating sibling/cryptic production as a mitigation option for prohibiting the distribution of Hass species, some of which may exhibit a Medfly. avocados from Mexico to certain areas stronger preference for avocados. Surveys for the Avocado Seed Moth of the United States were only removed If a sibling or cryptic species of A. when research was completed fraterculus that has a stronger In paragraph (f) of proposed § 319.56– establishing that Hass avocados were preference for Hass avocados were to 49, we proposed to require surveys to not hosts of the Anastrepha species emerge in Peru, we would become demonstrate that registered places of present in Mexico, but that A. aware of it through fruit fly trapping, production are free of the avocado seed fraterculus was not included in this fruit inspection, and general monitoring, moth. Specifically, we proposed to 4 research, in part because of evidence and we would impose additional require Peruvian departamentos in that the Mexican morphotype differs restrictions on the importation of Hass which avocados are grown for export to significantly from the South American avocados from Peru as appropriate. the United States to be surveyed by the morphotype. The commenter stated Therefore, it is not necessary to require NPPO of Peru at least once annually, no that, until and unless field research in the specimen storage that the more than 2 months before harvest Peru demonstrates the non- commenter suggests. begins, and found to be free from susceptibility of Hass avocados to attack infestation by the avocado seed moth. by A. fraterculus and A. striata, Mitigation Measures for Medfly We stated that an annual survey is provisions limiting the distribution of Paragraph (e) of proposed § 319.56–49 appropriate for the avocado seed moth Hass avocados from Peru should be provided three options for mitigating because the pest has limited mobility; imposed. the risk associated with Medfly in the results of a survey conducted no We agree with the commenter that A. avocados from Peru: Establishment of an more than 2 months before harvest fraterculus is likely composed of area free of Medfly, trapping to would indicate freedom from the ‘‘sibling species,’’ as discussed in the demonstrate that places of production PRA, and we also agree that the host are free of Medfly, or treatment. With 4 In Peru, the departamento is the first level of status of Hass avocados for A. regard to trapping, we proposed to political subdivision within the country, similar to the U.S. State. However, because Peru is about five- fraterculus is uncertain. However, the require that, when traps are serviced, if sixths of the size of Alaska and there are 25 commenter did not provide any any Medfly are found, 10 additional departamentos, a typical departamento is smaller evidence that we did not consider in the traps be deployed in a 0.5-km2 area than most States.

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

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commenter’s suggestion that the registration number of the place of be contained in the bilateral workplan, incidence of avocado seed moth in the production at which the avocados were which APHIS must approve in order for growing areas of Peru is not well grown and would have to identify the Peru to be able to export avocados. understood. We also disagree with the packing shed or sheds in which the fruit Therefore, the NPPO of Peru will not commenter’s assertion that fruit cutting was processed and packed, and that this have sole discretion in setting a is an unreliable means of detecting identification would have to be biometric sample rate or developing a larval infestations of avocado seed maintained until the fruit is released for sampling plan. The regulations provide moth. Surveying and cutting techniques entry into the United States. mechanisms by which APHIS will can be designed to reduce uncertainties, Two commenters recommended that direct this activity. and our selection of a biometric we additionally require individual In fact, with respect to the Mexican sampling rate will take any remaining cartons of avocados to be labeled with Hass avocado import program, the uncertainties into account. Fruit cutting this information. (One of these requirement to cut specific numbers of has been successful at preventing the commenters also recommended that we fruit for inspection prior to export and introduction of avocado seed pests from require individual avocado fruit to be so at the port of first arrival is contained in Mexico into the United States through labeled as well.) The commenters stated the bilateral workplan required to be the importation of Hass avocados. that this information would allow for developed under paragraph (c) of Therefore, we have determined that the traceback to and suspension of § 319.56–30. Paragraph (c)(3)(iv) of additional mitigations suggested by the individual places of production and § 319.56–30, which contains the pre- commenter are not necessary to prevent packinghouses in the event that a pest export inspection requirement for Hass the introduction of avocado seed moth is discovered in the United States, avocados from Mexico, refers to a into the United States via the rather than having to suspend all biometric sample, at a rate determined importation of Hass avocados from Peru. avocado exports from Peru. The by APHIS. Paragraph (h) of that section, commenters stated that this requirement which contains the requirement for Sealing Containers would thereby isolate the problem inspection at the port of first arrival, Paragraph (h) of proposed § 319.56–49 without unnecessarily disrupting the does not refer to any specific sampling contained packinghouse requirements. flow of trade. mechanism. We will use the workplan To safeguard consignments of avocados We agree with these commenters that in a similar manner in the import to be exported from Peru to the United labeling cartons and fruit with place of program for Hass avocados from Peru. States, proposed paragraph (h)(4) would production and packinghouse In addition, it should be noted that have required the fruit to be packed in registration numbers would allow for Hass avocados from Peru will be insect-proof packaging, or covered with traceback to specific places of inspected at the port of entry into the insect-proof mesh or a plastic tarpaulin, production or packinghouses and would United States, providing a check on the for transport to the United States. These thus help to continue the flow of trade efficacy of the inspection in Peru. safeguards would have had to remain if a pest is discovered. We typically One commenter noted that systems intact until arrival in the United States. require in the bilateral workplan that approaches, such as the one we Two commenters noted that the such information be included on proposed for the importation of Hass proposed rule did not include a individual cartons. We will do so for avocados from Peru, are more complex requirement to seal containers while in avocados from Peru. As the commenters in nature than post-harvest treatments transit to the United States. One of these noted, an exporting country has an and require a higher level of expertise commenters encouraged us to require incentive to provide this information in and oversight. This commenter asked the use of cargo seals to enhance the order to minimize unnecessary trade whether there would be a higher level phytosanitary integrity of consignments disruptions in the event of a pest of inspection than normal of avocados during transit, to provide evidence of detection. from Peru at ports of entry to verify that any container breaches, and to prevent the avocados are free of pests. cross-contamination from boxes of Inspection We do not plan to inspect at a higher uncertified avocados or other Paragraph (i) of proposed § 319.56–49 level than our usual level, unless potentially infested fruit. The other provided for inspection of a biometric evidence indicates that there may be a commenter also noted that the proposed sample of fruit from each place of problem with the implementation of the rule did not include repackaging production by the NPPO of Peru at a systems approach. As noted earlier, we requirements for containers of Hass rate to be determined by APHIS. have found the NPPO of Peru to have avocados from Peru. One commenter stated that the the necessary resources and capacity to We agree with the commenters that regulations should limit the amount of implement the systems approach. seals are useful to ensure the discretion granted to the NPPO of Peru phytosanitary integrity of consignments. in this most critical aspect of the Inconsistencies With the Regulations for We typically require the use of such systems approach, providing a specific Importing Hass Avocados From Mexico seals in the bilateral workplan that sampling plan. Another commenter in § 319.56–30 provides specific details on how the stated that the regulations for the Four commenters noted that the export program will be implemented in importation of Hass avocados from provisions of the proposed rule and the the exporting country. We will do so for Mexico require specific numbers of fruit regulations for importing Hass avocados avocados from Peru. Similarly, we will to be cut for inspection prior to export from Mexico in § 319.56–30 were include repackaging requirements in the and at the port of first arrival in the inconsistent in various ways. Some of bilateral workplan. United States; this commenter praised these comments have been addressed the approach in the proposal and asked earlier in this document. The remaining Identification of Shipments that the specific fruit cutting comments are addressed here. Proposed paragraph (h)(5) provided requirements be removed from the One commenter stated that it was that shipping documents accompanying Mexican Hass avocado regulations. only over a period of years that APHIS consignments of avocados from Peru As we proposed, the sampling rate for relinquished oversight of Hass avocado that are exported to the United States this inspection will be determined by growers in Mexico to the Mexican would have to include the official APHIS. The general sampling plan will NPPO, and recommended that APHIS

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take a similar path with the NPPO of limited to approved municipalities in stating that domestic avocado farm Peru. In contrast, two commenters only one State, Michoacan. profit margins are already low due to stated generally that the phytosanitary Other States in Mexico have different adverse weather and other foreign track record of the Mexican Hass pests and different pest densities than competition. They cited specific avocado import program over the past Michoacan, which is less warm and concerns. One commenter stated that 11 years warrants at least no more humid than surrounding avocado the vast majority of California avocado burdensome treatment than APHIS production areas in Mexico. Mitigating growers operate small family farms, proposed to provide for Hass avocados the pest risk associated with Hass with 5- to 20-acre groves, and would be imported from Peru. One commenter avocados produced in States other than adversely affected by the proposal. One recommended that several specific Michoacan would require the commenter stated that imports should provisions of the regulations for the development of a different systems be limited to things or specialties that importation of Hass avocados from approach. We have not received a cannot be produced in the United Mexico be changed to be consistent with formal request from the Government of States, as buying close to home helps to similar provisions in the proposed rule. Mexico to do so. improve the U.S. economy and reduces Since the establishment of the The commenter noted that we did not carbon emissions associated with global Mexican Hass avocado import program, propose to require personnel conducting climate change while providing better- APHIS has accumulated experience trapping and pest surveys to be hired by tasting fruit to the consumer. with how large-scale systems approach the NPPO of Peru. Instead, we proposed Another commenter mentioned that programs such as the Mexican program to require any personnel conducting the recent economic downturn had work, which in turn has given us better trapping and pest surveys to be trained affected domestic avocado farmers’ information on the appropriate level of and supervised by the NPPO of Peru. personal wealth and access to credit. oversight for such programs. As stated The commenter requested that we This commenter also noted that Peru’s earlier, we have found the NPPO of Peru remove the requirement that the avocado growing season is from May to to have the necessary resources and Mexican NPPO hire its personnel September, meaning that the effects on capacity to implement the systems conducting trapping and pest surveys, the domestic market would be seasonal, approach, and, as a signatory to the which is contained in § 319.56–30(c). and stated that the proposal should not IPPC, the NPPO of Peru is obligated to We have evaluated this provision of be finalized in order to promote fulfill its responsibilities under the the regulations for the importation of sustainable, long-term, non-seasonal systems approach. Hass avocados from Mexico and have employment. Finally, this commenter The specific differences between the determined that it is not necessary for stated that the American Recovery and Reinvestment Act of 2009 exhibits proposed rule and the Mexican Hass such personnel to be hired by the protectionism of U.S. products and avocado regulations brought up by the Mexican NPPO. We are preparing a employment as a policy to aid the U.S. last commenter are addressed below. proposed rule that would amend those economy, and stated that the proposed The commenter stated that, because regulations accordingly. The Mexican Hass avocado import rule should reflect this policy. area freedom is not required, APHIS regulations require APHIS to be directly The Plant Protection Act (7 U.S.C. seems inclined to accept that the Hass involved with the Mexican NPPO in the 7701 et seq.), the authorizing statute for avocado is a poor host for A. fraterculus monitoring and supervision of its APHIS’ plant-health-related activities, and Medfly without any supporting activities. We did not propose to require authorizes the Secretary of Agriculture documentation. The commenter stated direct monitoring and supervision for to prohibit or restrict the importation of that APHIS should remove fruit fly- Hass avocados from Peru. The any plant product if the Secretary related restrictions for Mexican Hass commenter stated that the strong record determines that the prohibition or avocados before allowing the same of success of the Mexican Hass avocado restriction is necessary to prevent the commodity into the United States from import program provides ample reason introduction of a plant pest or noxious another country under fewer to remove the requirement for direct weed into the United States. We have restrictions. monitoring and supervision from that determined that the measures in the Our analysis establishing that Hass program. systems approach we proposed, avocado is a poor host for A. fraterculus We acknowledge the success of the amended as described earlier, are is documented in the PRA; the Mexican Hass avocado import program, sufficient to prevent the introduction of commenter did not provide any as noted earlier in this document. We any plant pests. The factors cited by the comments specific to that analysis. With plan to reevaluate this provision of the commenters are not within our regard to fruit flies, as noted earlier, we regulations and, if warranted, issue a decisionmaking authority under the Act. published a June 2009 final rule proposal to change it. The initial regulatory flexibility removing restrictions related to the The commenter noted that there is no analysis (IRFA) we prepared for the movement of Hass avocados from areas specific requirement for inspection of proposed rule acknowledged that the where certain Anastrepha spp. fruit flies Hass avocados imported from Peru. majority of U.S. producers and packers (including A. striata) are present, Under the general fruits and of fresh avocados are considered to be including Mexico. The PRA did not vegetables regulations in § 319.56–3, small entities as defined by Small determine that Hass avocados are a poor APHIS is authorized to inspect all fruits Business Association size standards. host for Medfly; as discussed earlier, and vegetables imported into the United However, we have estimated that U.S. this final rule requires Hass avocados States. It is thus not necessary to consumption (demand) is more than from Peru to be produced in an area that include specific provisions for port-of- double U.S. production of avocados, the Administrator has determined to be entry inspection for Hass avocados from indicating that consuming only U.S. free of Medfly or to be treated for Peru. avocados would create a shortage of Medfly. avocados on the U.S. market. Projected The commenter noted that we Economic Issues and Comments on the imports of avocados from Peru would proposed to allow the whole country of Economic Analysis likely decrease the U.S. avocado price Peru to export avocados to the United Four commenters opposed the by a maximum of 4 percent, assuming States, but exports from Mexico are proposed rule for economic reasons, no displacement of other imports.

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Furthermore, we have concluded that it avocados, a product with no substitutes consumption has declined over one is likely that at least a portion of the that is a relative mainstay in the diet of season, the overall trend indicates that projected imports from Peru would many Americans, will be inherently market demand is likely to experience displace imports from other foreign inelastic, meaning that price changes long-term growth. In any case, our sources when fresh avocado supplies have relatively less effect on the amount analysis is not dependent on such are low and demand is high, meaning demanded. However, the commenter projections. that price effects would likely be stated, a new supplier of lower-priced One commenter stated that, while the smaller than 4 percent. avocados, coupled with American IRFA accompanying the proposed rule The Office of Management and Budget consumers’ heightened awareness to framed displacement around how designated the proposed rule as not price changes for relatively common imports from Peru will displace significant under Executive Order produce (due to the poor economic Mexican and Chilean imports, the more 12866. One commenter stated that this climate), will cause the demand for appropriate question is how much of the rule should not have been designated avocados to become much more elastic domestic supply will be displaced. The not significant, saying that the rule runs and responsive to price changes than commenter asserted that more of the counter to the interests of U.S. avocado reflected in the elasticities used in the domestic supply will be displaced than growers and does little to assure the IRFA. Accordingly, the commenter the imports from Mexico and Chile, health and safety of U.S. consumers. recommended that we use a greater meaning a negative impact on an Executive Order 12866 provides elasticity of demand value for projecting already depressed market of domestic specific criteria for the Office of net welfare gains and that we use these suppliers. Management and Budget to use in elasticities to measure the effects on The commenter provided no data to determining the appropriate designation suppliers. support this assertion, and published of a rule. This commenter did not There is no published evidence to data 5 support our analysis. Domestic provide any reasons why the rule suggest that avocados have emerged as consumption of fresh avocados declined should have been designated significant a ‘‘mainstay’’ of the U.S. diet. Rather, by 10 percent during the 2007–2008 under Executive Order 12866. In APHIS believes that avocados remain a season, while fresh domestic production addition, the commenter did not specify specialty item that has become more increased by 25 percent and U.S. how the proposed rule should be popular in American culture over the exports of fresh avocados increased by changed to assure the health and safety last two decades. Furthermore, the state 47 percent. During this same season, of U.S. consumers. This final rule will of the economy is not a major imports from foreign sources decreased allow the importation of Hass avocados determinant of the price elasticity of by nearly 24 percent over the previous from Peru into the United States while demand for a good or service; however, season, suggesting that some continuing to provide protection against consumers in a recession are more likely displacement of foreign sources the introduction of quarantine pests. to reevaluate goods and services in occurred during this period. One commenter stated that allowing terms of necessity or luxury. Goods and Miscellaneous Changes the importation of Hass avocados from services deemed to be necessities are Peru could only adversely affect typically less elastic while goods In this final rule, we are correcting an producer prices while having a determined to be luxuries are typically error in proposed paragraph (b), which negligible effect on the consumer price. more elastic. A change in the price of referred incorrectly to the NPPO of Peru As indicated in the IRFA prepared for fresh avocados may cause a consumer to verifying that growers are complying the proposed rule, we have determined reconsider purchasing avocados in with the requirements of paragraphs (c) that estimated price effects and welfare times of economic downturn. The price and (f) of § 319.56–49. Paragraph (f) impacts are highly sensitive to elasticity of demand of ¥1.2 that we contains the requirements for surveys displacement and import levels; used in the IRFA is a relatively elastic for the avocado seed moth; we had however, given the conservative price elasticity of demand that reflects intended to refer to paragraph (g), which assumption of zero displacement, that consumers are relatively sensitive contains harvesting requirements, and imports from Peru at an estimated 50 to changes in prices of fresh avocados. we have corrected the error in this final percent more than current projections It should be noted that, for the rule. (28,500 metric tons), and short-run analysis, we used two sets of supply In addition, the proposed requirement supply and demand elasticities, we have elasticities to measure both short-term in paragraph (b)(4) referred to ‘‘groves,’’ concluded that the overall net changes and long-term welfare effects on rather than places of production, which in welfare of allowing the importation of producers as a result of the projected was the term used in the rest of the fresh Hass avocados from Peru under increase in imports of fresh avocados to proposed regulations. We are changing the specified systems approach are fully capture potential changes in the proposed paragraph (b)(4) to refer to likely to be positive. This indicates that market. places of production in this final rule. any decline in producer welfare would One commenter noted that several Therefore, for the reasons given in the be exceeded by a gain in consumer commenters who supported the rule proposed rule and in this document, we welfare, primarily in the form of lower stated that U.S. consumption of are adopting the proposed rule as a final prices. avocados will increase by 15 to 20 rule, with the changes discussed in this One commenter stated that the percent in 2009 and stated that such a document. demand and supply elasticities used in rise in consumption is likely an References calculating changes in producer and overstatement based on data not consumer welfare in the IRFA reflecting the current financial Aluja, M., Diaz-Fleischer, F., and J. accompanying the proposed rule should condition of U.S. consumers. Arredondo, J. 2004. Nonhost status of be modified based on more recent data Domestic consumption of fresh commercial Persea americana ‘‘Hass’’ to that reflect the current state of the U.S. avocados has nearly doubled over the Anastrepha ludens, Anastrepha obliqua, Anastrepha serpentina, and Anastrepha economy. This commenter noted that last decade, with an overall average our elasticity projections originated increase in 10 percent per season. 5 From the Foreign Agriculture Service’s from a 2003 publication that used data Although demand has been estimated to Production, Supply, and Distribution online from 1998 and stated that demand for be price-elastic and domestic database.

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striata (Diptera: Tephritidae) in Mexico. proposed rule that was published on animal, and plant health, it will have J. Econ. Entomol. 97 (2): 293–309. January 7, 2009, to grant this request the added benefit in meeting an average Ben-Dov, Y. 2005. The Malvastrum mealybug provided Peru produces its Hass annual increase in domestic market Ferrisia malvastra (Hemiptera: avocados in accordance with a systems demand for Hass avocados. Coccoidea: Pseudococcidae): approach that will include registration Distribution, host plants, and pest status APHIS received several comments in Israel. Phytoparasitica 33(2): 154–156. and monitoring of places of production based on the findings of the initial Ben-Dov, Y., D.R. Miller, and G.A.P. Gibson. and packinghouses; grove sanitation; regulatory flexibility analysis (IRFA) 2003. ScaleNet. http:// pest-free areas or trapping for the South prepared for the proposed rule; www.sel.barc.usda.gov/scalenet/ American fruit fly; pest-free areas or however, after careful consideration scalenet.htm. treatment for Medfly; surveys for the none was found to contain significant Gullan, P.J., D.A. Downie, and S.A. Steffan. avocado seed moth; and inspection for issues that would require a reevaluation 2003. A new pest species of the quarantine pests by Peru’s NPPO. Hass of the proposed regulations. We address mealybug genus Ferrisia Fullaway avocados from Peru will also be (Hemiptera: Pseudococcidae) from the these comments in detail in the required to be accompanied by a Background section of this document. United States. Annals of the phytosanitary certificate with an Entomological Society of America 96(6): Impact on Small Entities 723–737. additional declaration stating that the Hohmann, C.L., Dos Santos, W.J., Menegium, avocados have been inspected for The final rule may directly affect U.S. A.M. 2000. Avaliac¸a˜o de te´cnicas de quarantine pests and were grown and domestic producers of Hass avocados, as manejo para o controle de broca-do- packed in accordance with the well as firms responsible for packing abacate, Stenoma catenifer (Wals) requirements of this final rule. These and shipping these commodities for (Lepidoptera: Oecophoridae). Rev. Bras. mitigations will allow for the domestic and foreign markets. We find Frutic. Jaboticabal 22: 359–363. importation of Hass avocados from Peru that a substantial number of these Hohmann, C.L., Meneguim, A.M., Andrade, into the United States while providing E.A., Novaes, T.C., and Zandona´ C. 2003. businesses are small entities, according protection against the introduction of to Small Business Administration (SBA) The avocado fruit borer Stenoma quarantine pests. Application of the catenifer (Wals.) (Lepidoptera: guidelines and based on 2002 Census of Elachistidae): Egg and damage mitigation measures in granting Peru’s Agriculture data. SBA classifies distribution and parasitism. Revista request is consistent with World Trade producers within the category Other Brasileria de Frutic. Jaboticaba1 25: 432– Organization agreements that sanitary Non-Citrus Fruit Farming (NAICS and phytosanitary regulatory 435. 111339) having annual sales of not more McKenzie, H.L. 1967. Mealybugs of restrictions should be based on than $750,000 as small entities. California with taxonomy, biology, and scientific evidence and applied only to California is the largest U.S. producer of control of North American species the extent necessary to protect human, avocados, accounting for approximately (Homoptera: Coccoidae: animal, and plant health. Pseudococcidae). University of The Regulatory Flexibility Act of 1980 86 percent of all production and nearly California Press, California. 524 pp. requires agencies to evaluate the all Hass avocado production. According Williams, D.J., and M.C. Granara de Willink. to the 2002 Census of Agriculture 1992. Mealybugs of Central and South potential effects of proposed and final rules on small businesses, small Summary and State Data report, there America. CAB International, were a total of 6,251 avocado farms in Wallingford, UK. 635 pp. organizations, and small governmental jurisdictions. Section 605 of the Act the United States in 2002, with Williams, D.J., and G.W. Watson. 1988. The California farms representing Scale Insects of the Tropical South allows an agency to certify a rule if the Pacific Region: Part 2: The mealybugs proposed rulemaking will not have a approximately 85 percent (or 4,801 7 (Pseudococcidae). CAB International, significant economic impact on a farms) of this total. Of the remaining Wallingford, Oxon, UK. 260 pp. substantial number of small entities. farms, 839 are located in Florida, 601 Wysoki, M., M.A. Van den Berg, G. Ish-Am, APHIS has determined this to be the are located in Hawaii, and 10 are S. Gazit, J.E. Pen˜ a, and G.K. Waite. 2002. case for this final rulemaking, and this located in Texas. Pests and Pollinators of Avocado, pp. analysis provides the factual basis for APHIS does not have information on 223–294. In: J.E. Pen˜ a, J.L. Sharp, and M. the size distribution of the total U.S. Wysoki [Eds]. Tropical Fruit Pests and such certification in this case. Pollinators: Biology, Economic The United States is the world’s avocado producers, but according to the Importance, Natural Enemies and leading importer of all fresh Hass 2002 Census of Agriculture, there were Control. CABI Publishing. 430 pp. avocados, with imports between 60 and a total of 95,680 Fruit and Tree Nut 75 percent of total world exports farms (NAICS 1113) in the United States Executive Order 12866 and Regulatory annually. Japan and Canada rank a in 2002.8 Of this number, nearly 99 Flexibility Act distant second and third with combined percent had annual sales in 2002 of less This final rule has been reviewed imports of 18 to 20 percent annually. than $500,000, which is well below the under Executive Order 12866. The rule Mexico and Chile account for SBA’s small-entity threshold of has been determined to be not approximately 50 and 30 percent, $750,000.9 While cash receipts by size significant for the purposes of Executive respectively, of U.S. imports of Hass for avocado farms were not reported in Order 12866 and, therefore, has not avocados.6 The United States exports the 2002 Census of Agriculture, it is been reviewed by the Office of less than 1.5 percent of its production, reasonable to assume that most of the Management and Budget. whereas U.S. consumption is more than 6,251 domestic avocado farms currently In accordance with the Regulatory double production. While the final rule in operation qualify as small entities. Flexibility Act, we have analyzed the is consistent with World Trade potential economic effects of this action Organization agreements that sanitary 7 National Agricultural Statistics Service (NASS), on small entities. and phytosanitary regulatory United States Department of Agriculture (USDA), The NPPO of Peru requested market restrictions should be based on ‘‘United States: Summary and State Data, Volume access for commercial shipments of scientific evidence and applied only to 1,’’ 2002 Census of Agriculture, issued June 2004. 8 This number includes farms producing fruit and fresh Hass avocados into the continental the extent necessary to protect human, tree nut varieties and those specifically producing United States for domestic avocados. consumption. APHIS is finalizing a 6 Global Trade Atlas data. 9 Source: SBA and 2002 Census of Agriculture.

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Avocado packing and shipping and welfare gains for consumers. In all regulations regarding avocados establishments, those engaged in cases, the model results showed positive imported under this rule will be postharvest crop activities (NAICS net benefits overall. preempted while the fruit is in foreign 115114), are also expected to be small In addition to considering the effects commerce. Fresh avocados are generally according to SBA guidelines. The small- for three possible levels of displacement imported for immediate distribution and entity standard for packinghouses is of fresh avocado imports from other sale to the consuming public, and $6.5 million or less in annual receipts. sources, we analyzed the sensitivity of remain in foreign commerce until sold In 2004, the California Avocado the results to different quantities of to the ultimate consumer. The question Commission reported that 51 companies fresh Hass avocados imported from of when foreign commerce ceases in were active handlers of California Peru. We calculated the price and other cases must be addressed on a case- avocados at the end of October 2003. Of welfare effects assuming the avocado by-case basis. No retroactive effect will this number, 18 companies had first imports to be 50 percent less or 50 be given to this rule, and this rule will sales of avocados of under $10,000; 8 percent greater than the 19,000 metric not require administrative proceedings companies had avocado sales of tons projected by Peru. Given the before parties may file suit in court between $10,000 and $49,999; 5 linearity of the model used to assess challenging this rule. companies had sales from $50,000 to welfare impacts, this sensitivity analysis National Environmental Policy Act $99,999; 5 companies had sales from yielded changes in welfare that are proportional to the assumed levels of $100,000 to $499,999; 2 companies had An environmental assessment and imports. Reasonably, some portion of sales from $500,000 to $999,999; 2 finding of no significant impact have the imports from Peru will likely companies had sales from $1 million to been prepared for this final rule. The displace existing imports, and price and $4,999,999; 1 company had sales from environmental assessment provides a welfare effects of the rule for U.S. $5 million to $9,999,999; 2 companies basis for the conclusion that the had sales from $10 million to entities will be thereby moderated. The results of the sensitivity analysis importation of Hass avocados from Peru $19,999,999; 6 companies had sales under the systems approach required by from $20 million to $49,999,999; and 2 indicate that consumers may be positively affected and U.S. producers this final rule will not have a significant companies sold over $50 million worth impact on the quality of the human of California avocados. This information may be negatively affected by a decline in market prices ranging between 1 environment. Based on the finding of no indicates that 40 of the 51 firms are significant impact, the Administrator of small entities. We conclude that the percent and 6 percent, depending on the price elasticities of demand and supply the Animal and Plant Health Inspection majority of the handlers that will be Service has determined that an affected by the rule are small entities. and displacement ranging from 11 to 24 percent of fresh avocado imports from environmental impact statement need According to the Peru Avocado Peru. Net welfare gains for these same not be prepared. Growers Association, exporters expect levels of displacement range from $2.9 The environmental assessment and to ship approximately 19,000 metric million to $17.8 million. In all of the finding of no significant impact were tons of fresh Hass avocados per year modeled scenarios, consumer gains prepared in accordance with: (1) The from Peru to the United States. The resulting from the final rule were found National Environmental Policy Act of projected imports are roughly 5 percent to exceed U.S. producer losses. 1969 (NEPA), as amended (42 U.S.C. of U.S. fresh avocado consumption and Nevertheless, producer prices are 4321 et seq.), (2) regulations of the 11 percent of U.S. fresh avocado estimated to continue to decline in the Council on Environmental Quality for production. It is highly likely, however, long run, which may continue to implementing the procedural provisions that at least a portion of the projected negatively impact producer revenues. of NEPA (40 CFR parts 1500–1508), (3) imports from Peru will displace imports As producer receipts decline, so shall USDA regulations implementing NEPA from other foreign sources when fresh revenues for avocado handlers. As (7 CFR part 1b), and (4) APHIS’ NEPA avocado supplies are low and demand domestic demand experiences an Implementing Procedures (7 CFR part is high. If no displacement were to average annual increase for this 372). occur, projected fresh avocado imports specialty product, the modeled results from Peru will represent an increase in The environmental assessment and for all scenarios in the long run showed finding of no significant impact may be fresh avocado imports of 9 percent. The positive net benefits overall. extent to which displacement occurs is viewed on the Regulations.gov Web We conclude that, while small site.10 Copies of the environmental a critical factor affecting the size of producing entities will be affected by potential impacts of this final rule, but, assessment and finding of no significant the final rule, the overall net changes in impact are also available for public even under the conservative estimate of welfare of allowing the importation of zero displacement, overall net benefits inspection at USDA, Room 1141, South fresh Hass avocados from Peru under Building, 14th Street and Independence are expected to be positive. In the the specified systems approach are analysis of expected price and welfare Avenue, SW., Washington, DC, between likely to be positive given the sizable 8 a.m. and 4:30 p.m., Monday through impacts of the IRFA, we examined domestic demand for Hass avocados effects of the projected level of fresh Friday, except holidays. Persons given the available domestic supply. wishing to inspect copies are requested avocado imports from Peru if none, 11 Under these circumstances, the to call ahead on (202) 690–2817 to percent, or 24 percent of the imports Administrator of the Animal and Plant facilitate entry into the reading room. In were to displace fresh avocado imports Health Inspection Service has addition, copies may be obtained by from other countries. We compared the determined that this action will not writing to the individual listed under price and welfare effects for two sets of have a significant economic impact on FOR FURTHER INFORMATION CONTACT. demand and supply elasticities and a substantial number of small entities. quantified the welfare effects. The higher the level of displacement of Executive Order 12988 10 Go to http://www.regulations.gov/fdmspublic/ component/main?main=DocketDetail&d=APHIS- imports from other countries, the This final rule allows Hass avocados 2008-0126. The environmental assessment and smaller the price decline, and the to be imported into the United States finding of no significant impact will appear in the smaller the welfare losses for producers from Peru. State and local laws and resulting list of documents.

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Paperwork Reduction Act E-Government Act compliance related PART 305—PHYTOSANITARY In accordance with the Paperwork to this rule, please contact Mrs. Celeste TREATMENTS Reduction Act of 1995 (44 U.S.C. 3501 Sickles, APHIS’ Information Collection et seq.), the information collection or Coordinator, at (301) 851–2908. ■ 1. The authority citation for part 305 recordkeeping requirements included in List of Subjects continues to read as follows: this rule have been approved by the Authority: 7 U.S.C. 7701–7772 and 7781– 7 CFR Part 305 Office of Management and Budget 7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, (OMB) under OMB control number Irradiation, Phytosanitary treatment, 2.80, and 371.3. 0579–0355. Plant diseases and pests, Quarantine, Reporting and recordkeeping ■ 2. In § 305.2, the table in paragraph E-Government Act Compliance requirements. (h)(2)(i) is amended by adding in The Animal and Plant Health alphabetical order, under Peru, a new 7 CFR Part 319 Inspection Service is committed to entry for ‘‘Avocado’’ to read as follows: compliance with the E-Government Act Coffee, Cotton, Fruits, Imports, Logs, to promote the use of the Internet and Nursery stock, Plant diseases and pests, § 305.2 Approved treatments. other information technologies, to Quarantine, Reporting and * * * * * recordkeeping requirements, Rice, provide increased opportunities for (h) * * * citizen access to Government Vegetables. information and services, and for other ■ Accordingly, we are amending 7 CFR (2) * * * purposes. For information pertinent to parts 305 and 319 as follows: (i) * * *

Location Commodity Pest Treatment schedule

******* Peru.

******* Avocado ...... Ceratitis capitata ...... MB T101–c–1, MB&CT T108–a–1, MB&CT T108–a–2, MB&CT T108–a–3, CT T107–a.

*******

* * * * * workplan, carry out to meet the under paragraphs (d)(2) or (f) of this requirements of this section. The NPPO section must be trained and supervised PART 319—FOREIGN QUARANTINE of Peru must also establish a trust fund by the NPPO of Peru. APHIS may NOTICES in accordance with § 319.56–6. monitor the places of production if (2) The avocados must be grown at necessary. ■ 3. The authority citation for part 319 places of production that are registered (2) In addition to conducting fruit continues to read as follows: with the NPPO of Peru and that meet inspections at the packinghouses, the Authority: 7 U.S.C. 450, 7701–7772, and the requirements of this section. NPPO of Peru must monitor 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR (3) The avocados must be packed for packinghouse operations to verify that 2.22, 2.80, and 371.3. export to the United States in the packinghouses are complying with ■ 4. A new § 319.56–50 is added to read packinghouses that are registered with the requirements of paragraph (h) of this as follows: the NPPO of Peru and that meet the section. requirements of this section. (3) If the NPPO of Peru finds that a § 319.56–50 Hass avocados from Peru. (4) Avocados from Peru may be place of production or packinghouse is Fresh Hass variety avocados (Persea imported in commercial consignments not complying with the requirements of americana P. Mill.) may be imported only. this section, no fruit from the place of into the continental United States from (b) Monitoring and oversight. (1) The production or packinghouse will be Peru only under the conditions NPPO of Peru must visit and inspect eligible for export to the United States described in this section. These registered places of production monthly, until APHIS and the NPPO of Peru conditions are designed to prevent the starting at least 2 months before harvest conduct an investigation and introduction of the following quarantine and continuing until the end of the appropriate remedial actions have been pests: Anastrepha fraterculus shipping season, to verify that the implemented. (Wiedemann), the South American fruit growers are complying with the (4) The NPPO of Peru must retain all fly; Ceratitis capitata (Wiedemann), the requirements of paragraphs (c) and (g) of forms and documents related to export Mediterranean fruit fly; Coccus viridis this section and follow pest control program activities in places of (Green), the green scale; Ferrisia guidelines, when necessary, to reduce production and packinghouses for at malvastra (McDaniel), a mealybug; and quarantine pest populations. If trapping least 1 year and, as requested, provide Stenoma catenifer Walsingham, the is conducted under paragraph (d)(2) of them to APHIS for review. avocado seed moth. this section, the NPPO of Peru must also (c) Grove sanitation. Avocado fruit (a) General requirements. (1) The verify that the growers are complying that has fallen from the trees must be national plant protection organization with the requirements in those removed from each place of production (NPPO) of Peru must provide a paragraphs and must certify that each at least once every 7 days, starting 2 workplan to APHIS that details the place of production has effective fruit months before harvest and continuing to activities that the NPPO of Peru will, fly trapping programs. Any personnel the end of harvest. Fallen avocado fruit subject to APHIS’ approval of the conducting trapping and pest surveys may not be included in field containers

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

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produced in an area designated as free NRC’s Public Document Room (PDR): stresses is an increase in the potential of C. capitata in accordance with 7 CFR The public may examine publicly for fracture if a pre-existing flaw is 319.56–5. available documents at the NRC’s PDR, present in a material susceptible to (3) If the avocados have been treated Public File Area O1–F21, One White brittle failure. The ferritic, low alloy for C. capitata prior to export, the Flint North, 11555 Rockville Pike, steel of the reactor vessel beltline phytosanitary certificate must state that Rockville, Maryland. The PDR adjacent to the core, where neutron the avocados in the consignment have reproduction contractor will copy radiation gradually embrittles the been treated for C. capitata in documents for a fee. material over the lifetime of the plant, accordance with 7 CFR part 305. NRC’s Agencywide Documents Access can be susceptible to brittle fracture. (Approved by the Office of Management and and Management System (ADAMS): The current PTS rule, described in Budget under control number 0579–0355) Publicly available documents created or § 50.61, ‘‘Fracture Toughness Requirements for Protection against Done in Washington, DC, this 28th day of received at the NRC are available December. electronically at the NRC’s Electronic Pressurized Thermal Shock Events,’’ adopted on July 23, 1985 (50 FR 29937), Cindy Smith, Reading Room at http://www.nrc.gov/ reading-rm/adams.html. From this page, establishes screening criteria below Administrator, Animal and Plant Health which the potential for a reactor vessel Inspection Service. the public can gain entry into ADAMS, which provides text and image files of to fail due to a PTS event is deemed to [FR Doc. E9–31182 Filed 12–31–09; 8:45 am] NRC’s public documents. If you do not be acceptably low. These screening BILLING CODE 3410–34–P have access to ADAMS or if there are criteria effectively define a limiting problems in accessing the documents level of embrittlement beyond which located in ADAMS, contact the NRC’s operation cannot continue without NUCLEAR REGULATORY PDR reference staff at 1–800–397–4209, further plant-specific evaluation. COMMISSION or (301) 415–4737, or by e-mail to A licensee may not continue to use a [email protected]. reactor vessel with materials predicted 10 CFR Part 50 to exceed the screening criteria in FOR FURTHER INFORMATION CONTACT: Ms. RIN 3150–AI01 § 50.61 without implementing Veronica M. Rodriguez, Office of compensatory actions or additional [NRC–2007–0008] Nuclear Reactor Regulation, U.S. plant-specific analyses unless the Nuclear Regulatory Commission, licensee receives an exemption from the Alternate Fracture Toughness Washington, DC 20555–0001; telephone requirements of the rule. Acceptable Requirements for Protection Against (301) 415–3703; e-mail: compensatory actions are neutron flux Pressurized Thermal Shock Events [email protected], Mr. reduction, plant modifications to reduce Matthew Mitchell, Office of Nuclear AGENCY: the PTS event probability or severity, Nuclear Regulatory Reactor Regulation, U.S. Nuclear Commission. and reactor vessel annealing, which are Regulatory Commission, Washington, addressed in §§ 50.61(b)(3), (b)(4), and ACTION: Final rule. DC 20555–0001; telephone (301) 415– (b)(7); and 50.66, ‘‘Requirements for 1467; e-mail: [email protected], SUMMARY: The Nuclear Regulatory Thermal Annealing of the Reactor or Mr. Mark Kirk, Office of Nuclear Commission (NRC) is amending its Pressure Vessel.’’ Regulatory Research, U.S. Nuclear regulations to provide alternate fracture Currently, no operating PWR vessel is Regulatory Commission, Washington, toughness requirements for protection projected to exceed the § 50.61 DC 20555–0001; telephone (301) 251– against pressurized thermal shock (PTS) screening criteria before the expiration 7631; e-mail: [email protected]. events for pressurized water reactor of its 40 year operating license. (PWR) pressure vessels. This final rule SUPPLEMENTARY INFORMATION: However, several PWR vessels are approaching the screening criteria, provides alternate PTS requirements I. Background while others are likely to exceed the based on updated analysis methods. II. Discussion screening criteria during the extended This action is desirable because the III. Responses to Comments on the Proposed period of operation of their first license existing requirements are based on Rule and Supplemental Proposed Rule renewal. unnecessarily conservative probabilistic IV. Section-by-Section Analysis V. Availability of Documents The NRC’s Office of Nuclear fracture mechanics analyses. This action VI. Agreement State Compatibility Regulatory Research (RES) developed a reduces regulatory burden for those VII. Voluntary Consensus Standards technical basis that supports updating PWR licensees who expect to exceed the VIII. Finding of No Significant the PTS regulations. This technical basis existing requirements before the Environmental Impact: Availability concluded that the risk of through-wall expiration of their licenses, while IX. Paperwork Reduction Act Statement cracking due to a PTS event is much maintaining adequate safety, and may X. Regulatory Analysis XI. Regulatory Flexibility Act Certification lower than previously estimated. This choose to comply with the final rule as finding indicated that the screening an alternative to complying with the XII. Backfit Analysis XIII. Congressional Review Act criteria in § 50.61 are unnecessarily existing requirements. conservative and may impose an DATES: Effective Date: February 3, 2010. I. Background unnecessary burden on some licensees. ADDRESSES: You can access publicly PTS events are system transients in a Therefore, the NRC developed a available documents related to this PWR in which there is a rapid operating proposed new rule, § 50.61a, ‘‘Alternate document using the following methods: temperature cooldown that results in Fracture Requirements for Protection Federal e-Rulemaking Portal: Go to cold vessel temperatures with or against Pressurized Thermal Shock http://www.regulations.gov and search without repressurization of the vessel. Events,’’ providing alternate screening for documents filed under Docket ID The rapid cooling of the inside surface criteria and corresponding NRC–2007–0008. Address questions of the reactor vessel causes thermal embrittlement correlations based on the about NRC Dockets to Carol Gallagher at stresses. The thermal stresses can updated technical basis. The NRC 301–492–3668; e-mail combine with stresses caused by high decided that providing a new section [email protected]. pressure. The aggregate effect of these containing the updated screening

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