Importation of Fresh Avocado Fruit From Continental Ecuador Into the Continental United States

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

We are proposing to amend the fruits and vegetables regulations to allow the importation into the continental United States of fresh avocado fruit from continental Ecuador. As a condition of entry, fresh avocado fruit from continental Ecuador would have to be produced in accordance with a systems approach that would include production site registration, field sanitation, packinghouse procedures designed to exclude the quarantine pests, and procedures for packing, storing, and shipping the avocado fruit. The fruit would also have to be imported in commercial consignments, with each consignment identified throughout its movement from place of production to port of entry in the continental United States. The systems approach for all fresh avocado fruit from continental Ecuador, except Hass avocados, would also have to include production site pest control measures. Consignments would have to be accompanied by a phytosanitary certificate issued by the national plant protection organization of Ecuador certifying that the fruit was produced in accordance with the systems approach. This proposed rule would allow for the importation of fresh avocados from continental Ecuador into the continental United States while continuing to provide protection against the introduction of quarantine pests.

DATES:

We will consider all comments that we receive on or before August 14, 2018.

ADDRESSES:

You may submit comments by either of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2016-0099.
• Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2016-0099, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238.

Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2016-0099 or in our reading room, which is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW, Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT:

Ms. Claudia Ferguson M.S., Senior Regulatory Policy Specialist, Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1231; (301) 851-2352.

SUPPLEMENTARY INFORMATION:

Background

The regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-83, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.

The national plant protection organization (NPPO) of Ecuador has requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow fresh avocado (Persea americana Miller) from continental Ecuador to be imported into the continental United States. As part of our evaluation of Ecuador's request, we prepared a pest risk assessment (PRA) and a risk management document (RMD). Copies of the PRA and the RMD may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT or viewed on the Regulations.gov website (see ADDRESSES above for instructions for accessing Regulations.gov).

The PRA, titled “Importation of Fresh Avocado Fruit (Persea americana Miller) from Continental Ecuador into the Continental United States” (July 18, 2017), evaluates the risks associated with the importation of fresh avocado fruit into the continental United States from continental Ecuador. The RMD draws upon the findings of the PRA to determine the phytosanitary measures necessary to ensure the safe importation into the United States of avocado from continental Ecuador.

The PRA identified four pests of quarantine significance present in continental Ecuador that could follow the pathway of consignments of fresh avocado imported from continental Ecuador into the continental United States:

• The Mediterranean fruit fly (Medfly), Ceratitis capitata Wiedemann,
• The South American fruit fly, Anastrepha fraterculus Wiedemann,
• The sapote fruit fly, Anastrepha serpentina Wiedemann, and
• The guava fruit fly, Anastrepha striata Schiner.

A quarantine pest is defined in § 319.56-2 as a pest of potential economic importance to the area endangered thereby and not yet present there, or present but not widely distributed and being officially controlled. Plant pest risk potentials associated with the importation of fresh avocado from continental Ecuador into the continental United States were derived by estimating the consequences and likelihood of introduction of each quarantine pest into the United States and ranking the risk potential as High, Medium, or Low. The PRA determined that these four quarantine pests pose a medium risk of following the pathway of fresh avocado from continental Ecuador into the continental United States and having negative effects on U.S. agriculture.

Based on the conclusions of the PRA, we have determined that Hass avocados are not hosts of the fruit flies present in Ecuador, while other varieties of avocado are considered to be poor hosts to fruit flies. Therefore, based on the conclusions of the PRA and RMD, we are proposing to allow the importation from continental Ecuador of avocados subject to a systems approach. Under a systems approach, a set of phytosanitary conditions, at least two of which have an independent effect in mitigating the pest risk associated with the movement of commodities, is specified, whereby fruits and vegetables may be imported into the United States from countries that are not free of certain plant pests. For Hass avocados from continental Ecuador, the systems approach would be the same as for other varieties of avocado except that fruit fly trapping and treatment would not be required.

We are proposing to add the systems approach for avocado from continental Ecuador to the regulations in a new § 319.56-84. The specific mitigation measures required in the systems approach for each quarantine pest are discussed below, as well as in the risk management document.

General Requirements

Proposed paragraph (a) of § 319.56-84 would require the NPPO of Ecuador to provide an operational workplan to APHIS that details the activities that the NPPO would, subject to APHIS' approval of the workplan, carry out to meet the requirements of proposed § 319.56-84. The operational workplan would have to include and describe in detail the quarantine pest survey intervals and other specific requirements in proposed § 319.56-84.

An operational workplan is an agreement between APHIS' Plant Protection and Quarantine program, officials of the NPPO of a foreign government, and, when necessary, foreign commercial entities, that specifies in detail the phytosanitary measures that will be carried out to comply with our regulations governing the importation of a specific commodity. Operational workplans apply only to the signatory parties and establish detailed procedures and guidance for the day-to-day operations of specific import/export programs. Operational workplans also establish how specific phytosanitary issues are dealt with in the exporting country and make clear who is responsible for dealing with those issues. The implementation of a systems approach typically requires an operational workplan to be developed.

Proposed paragraph (b) of § 319.56-84 would require avocado from continental Ecuador to be imported only in commercial consignments. Produce grown commercially is less likely to be infested with plant pests than noncommercial consignments. Noncommercial consignments are more prone to infestations because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, and is often grown with little or no pest control. Commercial consignments, as defined in § 319.56-2, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packing, identification of grower or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer.

Production Site Requirements

Paragraph (c)(1) of proposed § 319.56-84 would require that all production sites participating in the avocado export program be approved by and registered with the NPPO of Ecuador in accordance with the requirements of the operational workplan.

Paragraph (c)(2) of proposed § 319.56-84 would require the NPPO of Ecuador to visit and inspect the production sites monthly starting 2 months before harvest and continue until the end of the shipping season. APHIS may also monitor the places of production if necessary. If APHIS or the NPPO of Ecuador finds that a place of production is not complying with the requirements of the systems approach, no fruit from the place of production will be eligible for export to the United States until APHIS and the NPPO of Ecuador conduct an investigation and appropriate remedial actions have been implemented.

Paragraph (c)(3) would require that any fallen avocado fruit be removed from the production site at least once every 7 days, starting 2 months before harvest and continuing through the end of the harvest, and that fallen fruit may not be included in field containers of fruit to be packed for export. Fallen fruit is more susceptible to infestation by pests because it may be overripe or damaged.

Paragraph (c)(4) would require that, for production sites that produce non-Hass variety avocados, no other host of Medfly or Anastrepha spp. can be grown within 100 meters of the edge of the place of production.

Paragraph (c)(5) would require the NPPO of Ecuador conduct a fruit fly trapping program beginning at least 2 months before the beginning of harvest and continuing for the duration of the harvest period for the detection of Medfly and Anastrepha spp. at each production site that produces non-Hass variety avocados. This program would support efforts for pest-free production sites within a certified low pest prevalence area for fruit flies. Details of the trapping program would be specified in the operational workplan.

Paragraph (c)(6) would require that the NPPO of Ecuador maintain records of fruit fly detections for each trap in a non-Hass avocado production site and update the records each time the traps are checked. The trapping records would have to be maintained for at least 1 year and made available for APHIS' review upon request.

Paragraph (c)(7) would state that, if the number of flies per trap per day exceeds levels specified in the operational workplan for more than 2 consecutive weeks, the place of production would be prohibited from exporting avocados to the continental United States until APHIS and the NPPO of Ecuador jointly agree that the risk has been mitigated.

Paragraph (c)(8) would require that all harvested avocados be placed in field cartons or containers that are marked to identify the production site from which the consignment of fruit originated. Production site registration and container marking would facilitate traceback of a consignment of avocado fruit to the production site in which it was grown in the event that quarantine pests were discovered in the consignment at the port of first arrival into the United States. The fruit would have to be moved to the packinghouse within 3 hours of harvest or it must be protected from fruit fly infestation until moved.

Packinghouse Requirements

We are proposing several requirements for packinghouse activities, which would be contained in paragraph (d) of proposed § 319.56-84. Paragraph (d)(1) would require that all avocados be packed for export to the United States in pest-exclusionary packinghouses approved by and registered with the NPPO of Ecuador in accordance with the requirements of the operational workplan.

Paragraph (d)(2) would provide that consignments of avocados destined for export to the continental United States must be packed within 24 hours of harvest and safeguarded during movement from registered packinghouses to arrival at the port of entry into the continental United States as specified by the operational workplan. Such safeguarding could include the use of pest-proof screens or tarpaulins to cover the lots during transit, or other similar measures approved by APHIS and the NPPO of Ecuador. We would require these safeguards to remain intact until the consignment's arrival in the continental United States or the consignment would be denied entry into the continental United States.

Paragraph (d)(3) would require that all openings to the outside of the packinghouse must be covered by screening with openings of not more than 1.6 mm or by some other barrier that prevents pests from entering. The packinghouse would have to have double doors at the entrance to the facility and at the interior entrance to the area where the avocados are packed.

Paragraph (d)(4) would require that, while in use for exporting avocado fruit to the continental United States, the packinghouses may only accept avocados from registered a pproved production sites and the fruit must be segregated from fruit intended for other markets. This requirement would prevent such avocados intended for export to the continental United States from being exposed to or otherwise mixed with avocados that are not produced according to the requirements of the systems approach. Avocados from other places of production may be produced under conditions that are less stringent than those of this proposed rule, and may therefore be a pathway for introduction of quarantine pests into the packinghouses.

Paragraph (d)(5) would require that the identity and origin of the fruit be maintained from the packinghouse through export of consignments to the United States. This requirement would ensure that APHIS and the NPPO of Ecuador could identify the packinghouse at which the fruit was packed if inspectors find quarantine pests in the fruit either before export or at the port of entry.

Treatment

Paragraph (e) would state that, if non-Hass variety avocados are ineligible for export under the systems approach due to the place of production exceeding the trapping threshold for fruit flies as established in the operational workplan, they may still be exported, but only after undergoing an APHIS approved treatment in accordance with 7 CFR part 305.

Currently, irradiation treatment under treatment schedule T105-a-1 is the only treatment approved for all fruit flies and may be used to export non-Hass avocados from Ecuador. Under this treatment, the fruit must be irradiated with a minimum absorbed dose of 150 Gy to be applied upon arrival in the United States and follow the requirements of 7 CFR part 305. In the future, when irradiation facilities become available in Ecuador, irradiation may be applied in Ecuador as long as the treatment follows all requirements of 7 CFR part 305.

Phytosanitary Inspection

Paragraph (f)(1) would require that a biometric sample of avocados, jointly agreed upon by APHIS and the NPPO of Ecuador, be inspected in Ecuador by the NPPO following post-harvest processing. The sample would have to be visually inspected for all quarantine pests and a portion of the fruit would be cut open, if the fruit shows signs of internal pests. If any quarantine pests are found, the entire consignment of avocados would be prohibited from import into the continental United States unless treated using an APHIS-approved treatment in accordance with 7 CFR part 305.

Paragraph (f)(2) would require that fruit presented for inspection at a U.S. port of entry be identified in the shipping documents accompanying each consignment of fruit that specify the place of production in which the fruit was produced and the packinghouse in which the fruit was processed. This identification would have to be maintained with the consignment until the fruit is released for entry into the continental United States.

Phytosanitary Certificate

Paragraph (g) would require that each consignment of avocado fruit be accompanied by a phytosanitary certificate issued by the NPPO of Ecuador that states that the avocados in the consignment have been produced in accordance with the requirements of §§ 319.56-84.

Executive Orders 12866 and 13771 and Regulatory Flexibility Act

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. Further, because this rule is not significant, it is not a regulatory action under Executive Order 13771.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov website (see ADDRESSES above for instructions for accessing Regulations.gov).

APHIS is proposing to allow the importation of fresh avocados from continental Ecuador into the continental United States under certain pest mitigation measures. This would be the first opportunity Ecuador has had to export fresh avocados to the United States. Over the 6-year period 2010-2015, Ecuador's avocado exports declined precipitously, from over 8,000 metric tons (MT) in 2010 to about 1,000 MT in 2015. Over these 6 years, Ecuador's avocado exports averaged 4,884 MT per year, reportedly valued at about $310,000 for an average price of less than $0.07 per kilogram or $63.50 per MT. This price is inexplicably low and may well indicate data error.

The United States is a net importer of avocados. Over the same 6-year period, 2010-2015, annual U.S. avocado imports averaged more than 570,000 MT, valued at $1.1 billion. Mexico is the principal source, accounting for 86 percent of U.S. avocado imports.

If between 5 percent and 20 percent of Ecuador's average fresh avocado exports to the world, 2010-2015, that is, between 244 and 976 MT, were imported by the United States, we estimate that U.S. producer welfare would fall by between $95,000 and $383,000, consumer welfare would rise by between $428,000 to $1.72 million, for a net social welfare gain of between $332,000 and $1.33 million. At the midpoint of this range, the net social gain would be $833,000. In accordance with guidance on complying with Executive Order 13771, the primary estimate of the cost savings of this proposed rule is $833,000, the mid-point estimate of cost savings annualized in perpetuity using a 7 percent discount rate.

While most U.S. avocado farms are small entities, they would not be significantly affected by this proposed rule. Annual avocado imports by the United States from Ecuador of between 244 and 976 MT would be equivalent to between 0.04 and 0.17 percent of the quantity of avocados imported by the United States annually.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

Executive Order 12988

This proposed rule would allow fresh avocado to be imported into the continental United States from continental Ecuador, subject to a systems approach. If this proposed rule is adopted, State and local laws and regulations regarding fresh avocado imported under this rule would be preempted while the fruit is in foreign commerce. Fresh avocados are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), reporting and recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send comments on the Information Collection Request (ICR) to OMB's Office of Information and Regulatory Affairs via email to oira_submissions@omb.eop.gov, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2016-0099. Please send a copy of your comments to the USDA using one of the methods described under ADDRESSES at the beginning of this document.

APHIS is proposing to amend the fruit and vegetable regulations to allow the importation of avocados from continental Ecuador into the continental United States. As a condition of entry, the avocados would have to be produced in accordance with a systems approach that would include requirements for importation in commercial consignments, registration and monitoring of places of production, field monitoring and pest-control practices, trapping, and inspection for quarantine pests by the NPPO of Ecuador.

Implementing this rule will require information collection activities such as an operational workplan, production site and packinghouse registrations, marking of fruit cartons, phytosanitary inspections and certificates, notices of suspension to export, notices of resumption to export, preclearance inspection documentation, import permit applications, notices of arrival, emergency action notifications, and creation and maintenance records.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.012 hours per response.

Respondents: NPPO of Ecuador, production site and packinghouse managers, and importers of avocados from Ecuador.

Estimated annual number of respondents: 44.

Estimated annual number of responses per respondent: 1,154.

Estimated annual number of responses: 50,791.

Estimated total annual burden on respondents: 623 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

A copy of the information collection may be viewed on the Regulations.gov website or in our reading room. (A link to Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this proposed rule.) Copies can also be obtained from Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483. APHIS will respond to any ICR-related comments in the final rule. All comments will also become a matter of public record.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.

List of Subjects in 7 CFR Part 319

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

Accordingly, we propose to amend 7 CFR part 319 as follows:

PART 319—FOREIGN QUARANTINE NOTICES

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

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

2. Section 319.56-84 is added to read as follows: