[Federal Register Volume 72, Number 128 (Thursday, July 5, 2007)]
[Proposed Rules]
[Pages 36629-36632]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-13036]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 72, No. 128 / Thursday, July 5, 2007 / 
Proposed Rules

[[Page 36629]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 305

[Docket No. APHIS-2006-0091]


Amendments to Treatments for Plant Pests

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations for the treatment of 
plant pests by removing two treatment options that we now believe to be 
ineffective at neutralizing their target plant pests. A review of these 
treatments found these options to be ineffective. We are also proposing 
to remove two treatment schedules that are no longer authorized for use 
and to clarify the fruits and vegetables on which two methyl bromide 
treatments may be used. These changes would ensure that ineffective or 
unauthorized treatments are not used and clarify the regulations.

DATES: We will consider all comments that we receive on or before 
September 4, 2007.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov, select ``Animal and Plant Health Inspection 
Service'' from the agency drop-down menu, then click ``Submit.'' In the 
Docket ID column, select APHIS-2006-0091 to submit or view public 
comments and to view supporting and related materials available 
electronically. Information on using Regulations.gov, including 
instructions for accessing documents, submitting comments, and viewing 
the docket after the close of the comment period, is available through 
the site's ``User Tips'' link.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. APHIS-
2006-0091, Regulatory Analysis and Development, PPD, APHIS, Station 3A-
03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. APHIS-2006-0091.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room 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) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Dr. Inder P. S. Gadh, Senior Risk 
Manager-Treatments, Phytosanitary Issues Management, PPQ, APHIS, 4700 
River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-8758.

SUPPLEMENTARY INFORMATION:

Background

    The phytosanitary treatments regulations contained in 7 CFR part 
305 (referred to below as the regulations) set out standards and 
schedules for treatments required in 7 CFR parts 301, 318, and 319 for 
fruits, vegetables, and articles to prevent the introduction or 
dissemination of plant pests or noxious weeds into or through the 
United States.
    In this document, we are proposing to:
     Amend two treatments to remove options that we now believe 
to be ineffective at neutralizing their target plant pests;
     Remove two treatment schedules that are no longer 
authorized for use; and
     Clarify the fruits and vegetables on which two methyl 
bromide treatments may be used.
    These changes are discussed in more detail directly below.

Temperature Requirement for Conducting Methyl Bromide Treatment MB 
T101-j-2-1

    In the approved treatments regulations in Sec.  305.2(h)(2), 
fumigation according to methyl bromide treatment schedule MB T101-j-2-
1, in accordance with the methyl bromide treatment regulations in Sec.  
305.6, is approved as a treatment for Anastrepha spp. fruit flies in 
grapefruit, orange, and tangerine from Mexico and for Anastrepha ludens 
(Mexican fruit fly) in grapefruit, orange, and tangerine moved 
interstate from areas within the United States that are quarantined due 
to the presence of Mexican fruit fly. The schedule for this fumigation 
treatment in Sec.  305.6 currently requires that the treatment be 
conducted at a temperature between 70 and 85 [deg]F.
    A recent discovery of a live larva of Mexican fruit fly in citrus 
that was being moved interstate from an area within the United States 
that had been quarantined for the Mexican fruit fly and had been 
treated with MB T101-j-2-1 prompted the Animal and Plant Health 
Inspection Service (APHIS) to reevaluate the research that had been 
used to formulate this treatment. The reevaluation revealed that, in 
order to effectively neutralize Mexican fruit fly, the treatment should 
be performed at a temperature of 80 [deg]F or above. Accordingly, we 
are proposing to amend the entry for this treatment in Sec.  305.6(a) 
to indicate that it may only be performed at a temperature of 80 [deg]F 
or above. The commodities for which this treatment is an approved 
treatment would not change.

Cold Treatment Options in Combination Treatment MB&CT T108-b

    In the approved treatments regulations in Sec.  305.2(h)(2)(i), the 
methyl bromide/cold treatment combination treatment MB&CT T108-b, 
performed in accordance with the combination treatment requirements in 
Sec.  305.10, is approved as a treatment for Austrotortrix spp. and 
Epiphyas spp., Bactrocera tryoni, Ceratitis capitata (Mediterranean 
fruit fly, or Medfly), and other fruit flies in grape from Australia 
and for Medfly in apple, grape, and pear moved interstate from areas 
within the United States that are quarantined due to the presence of 
Medfly. The schedule listed for MB&CT T108-b in Sec.  305.10 currently 
provides two options for conducting the cold treatment portion of the 
treatment: An option in which the fruit is held at 33 [deg]F or below 
for 21 days, and an option in which the fruit is held between 48 [deg]F 
and 56 [deg]F for 6 days.

[[Page 36630]]

    A review by APHIS has determined that there is not adequate 
scientific justification to conclude that the pests for which MB&CT 
T108-b is an approved treatment can be neutralized if the option of 
holding the fruit between 48 [deg]F and 56 [deg]F for 6 days is used. 
Accordingly, we are proposing to remove this option from the cold 
treatment schedule in MB&CT T108-b. The other options available for 
this MB&CT treatment and the commodities for which this treatment is an 
approved treatment would not change.

Treatments for Aircraft Using the Pesticide Resmethrin

    In the approved treatment regulations in Sec.  305.2(g), two 
treatments are listed that are approved for use on aircraft to treat 
for fruit flies and soft-bodied insects: The aerosol treatments T409-c-
1 and T409-c-3. As described in the aerosol spray for aircraft 
treatment schedules regulations in Sec.  305.9(b), both of these 
treatments require the use of resmethrin, a pesticide.
    The U.S. Environmental Protection Agency (EPA) issues labels for 
pesticides such as resmethrin that set out requirements for their use, 
including approved uses. Resmethrin's EPA label does not list aerosol 
application to aircraft as an approved use. APHIS may secure emergency 
approval to use pesticides in a manner that is not specified on the EPA 
label, but we have not done so for these two treatments. Thus, they 
cannot currently be legally administered. Accordingly, we are proposing 
to remove treatment schedules T409-c-1 and T409-c-3 from the aerosol 
spray for aircraft treatment schedules regulations. We would also 
remove the entry for fruit flies and soft-bodied insects in the table 
listing approved treatments for aircraft (among other equipment) in 
Sec.  305.2(g).
    If this change is finalized, no treatment would be approved in the 
regulations to neutralize fruit flies and other soft-bodied insects 
that are associated with aircraft. To our knowledge, neither of the 
treatments we are proposing to remove has been used in many years, and 
aircraft are not being treated for fruit flies and other soft-bodied 
insects. We are not proposing to add a substitute treatment for fruit 
flies and other soft-bodied insects, because presently a treatment is 
unnecessary. If we determine that such a treatment is necessary, we 
will add one to the regulations through subsequent rulemaking.

Clarifying the Fruits and Vegetables on Which Two Methyl Bromide 
Treatments May Be Used

    In the approved treatment regulations in Sec.  305.2(h)(2)(i), 
fumigation according to methyl bromide treatment schedule MB T104-a-1, 
in accordance with the methyl bromide treatment regulations in Sec.  
305.6, is listed as an approved treatment for hitchhikers or surface 
pests, except mealybugs, for all imported fruits and vegetables. 
Similarly, fumigation according to methyl bromide treatment schedule MB 
T104-a-2 is listed as an approved treatment for mealybugs for all 
imported fruits and vegetables. However, only some fruits and 
vegetables are approved by EPA to be treated with methyl bromide under 
the Federal Insecticide, Fungicide, and Rodenticide Act. These fruits 
and vegetables are typically approved for treatment either on the EPA 
label for methyl bromide or through an exemption under Section 18 of 
the Act. (EPA makes lists of commodities that it has approved for 
treatment with methyl bromide available on its Web site at http://
www.epa.gov/pesticides/.) The current APHIS regulations are ambiguous 
and can be read as indicating that methyl bromide fumigation is 
approved for use on all fruits and vegetables, which is incorrect.
    Therefore, we are proposing to update the commodity entries in the 
table in Sec.  305.2(h)(2)(i) for MB T104-a-1 and MB T104-a-2. Rather 
than indicating simply that the treatments are approved for all 
imported fruits and vegetables, these entries would instead indicate 
that the treatments are approved for those imported fruits and 
vegetables that are approved for treatment with methyl bromide under 
the Federal Insecticide, Fungicide, and Rodenticide Act. This proposed 
clarification reflects the requirements in Sec.  305.5(c)(1), which 
states that all chemical applications must be administered in 
accordance with an EPA-approved pesticide label and the APHIS-approved 
treatment schedule prescribed in part 305, and that if EPA cancels 
approval for the use of a pesticide on a commodity, then the treatment 
schedule prescribed in part 305 is no longer authorized for that 
commodity.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
For this action, the Office of Management and Budget has waived its 
review under Executive Order 12866.
    We are proposing to amend the regulations for the treatment of 
plant pests by removing two treatment options that we now believe to be 
ineffective at neutralizing their target plant pests. A review of these 
treatments found these options to be ineffective. We are also proposing 
to remove two treatment schedules that are no longer authorized for 
use, to clarify the fruits and vegetables on which two methyl bromide 
treatments may be used, and to clearly prohibit the use of unauthorized 
chemical treatments. These changes would ensure that ineffective or 
unauthorized treatments are not used and clarify the regulations.
    Removing treatment schedules T409-c-1 and T409-c-3 would not be 
expected to have any economic effects because, to our knowledge, these 
treatments have not been used for many years. Clarifying that treatment 
schedules MB T104-a-1 and MB T104-a-2 are approved for only those 
imported fruits and vegetables that are listed on the EPA label for 
methyl bromide or otherwise authorized for treatment by EPA would not 
be expected to have any economic effects because it simply clarifies 
the circumstances under which APHIS will perform the treatments. 
Therefore, this economic analysis concentrates on the potential 
economic effects of our proposal to amend two treatment options for 
fruits and vegetables.
    We are proposing to amend methyl bromide treatment schedule MB 
T101-j-2-1 to indicate that it may only be performed at a temperature 
of 80 [deg]F or above. The commodities for which this treatment is an 
approved treatment would not change. The treatment schedule is approved 
for Anastrepha spp. fruit flies in grapefruit, orange, and tangerine 
from Mexico and for Anastrepha ludens (Mexican fruit fly) in 
grapefruit, orange, and tangerine moved interstate from areas within 
the United States that are quarantined due to the presence of Mexican 
fruit fly.
    We are also proposing to amend combination cold treatment-methyl 
bromide treatment schedule MB&CT T108-b to remove the cold treatment 
option of holding the fruit between 48 [deg]F and 56 [deg]F for 6 days. 
The other options available for this MB&CT treatment and the 
commodities for which this treatment is an approved treatment would not 
change. The treatment schedule is approved for Austrotortrix spp., 
Epiphyas spp., Bactrocera tryoni, Medfly, and other fruit flies in 
grape from Australia and for Medfly in apple, grape, and pear moved 
interstate from areas within the

[[Page 36631]]

United States that are quarantined due to the presence of Medfly.
    Depending on the actual cost increases that occur because of the 
changes to the treatment schedules for MB T101-j-2-1 and MB&CT T108-b, 
foreign suppliers or domestic suppliers located in quarantined areas 
may experience a cost increase, and consequently the quantity of fruit 
or vegetables shipped could decrease. This decrease in the quantity 
shipped could result in a price increase, benefiting U.S. producers and 
suppliers located outside quarantined areas.
    In reality, negative effects of the proposed changes in treatment 
requirements would be negligible; any changes in treatment costs 
associated with these amendments to the treatment schedules would 
represent a small fraction of the prices of the fruits and vegetables. 
Additionally, import quantities affected are small to nonexistent. 
Grapefruit, orange, and tangerine imports from Mexico represent less 
than one-half of 1 percent of domestic supply, and there are no records 
of apple, grape, or pear imports from Australia.
    Domestically, this proposed rule would amend approved treatments 
for regulated articles moved interstate from areas quarantined due to 
Medfly. There are currently no areas in the United States quarantined 
due to the presence of Medfly. Because the proposal would not prohibit 
movement of regulated articles, if areas are quarantined in the future 
due to the presence of this pest, the effect on entities within those 
areas that move regulated articles interstate would be minimized by the 
continued availability of various treatment options that, in most 
cases, would allow these small entities to continue to move regulated 
articles interstate with very little change in cost.
    If the proposed changes affect treatment costs or shipping 
expenses, U.S. entities that could be affected include producers of 
Medfly host crops, many of which are categorized within the following 
North American Industry Classification System subsectors: NAICS 111310, 
Orange Groves; NAICS 111320, Citrus (except Orange) Groves; NAICS 
111331, Apple Orchards; NAICS 111332, Grape Vineyards; NAICS 111334, 
Berry (except Strawberry) Farming; NAICS 111335, Tree Nut Farming; 
NAICS 111336, Fruit and Tree Nut Combination Farming; and NAICS 111339, 
Other Noncitrus Fruit Farming. Other entities that could be affected 
are fruit and vegetables wholesalers (NAICS 422480), supermarkets and 
other grocery stores (NAICS 445110), warehouse clubs and superstores 
(NAICS 452910), and fruit and vegetable markets (NAICS 445230).
    Other than warehouse clubs and superstores, the vast majority of 
the businesses that compose these industries are small entities. The 
Small Business Administration (SBA) classifies Medfly host crop 
operations as small entities if their annual receipts are not more than 
$750,000.\1\ According to the 2002 Census of Agriculture, there were 
446 operations that were engaged in the production of citrus and 
noncitrus fruits. Over 99 percent of these entities were designated as 
small entities. The SBA classifies fresh fruit and vegetable merchant 
wholesalers (NAICS code 422480) as small entities if they employ 100 or 
fewer employees. According to the 2002 Economic Census there were 4,644 
of these entities nationally, with 484 (or 10.4 percent) of them 
considered to be large. SBA classifies supermarkets and other grocery 
stores (NAICS 445110) as small entities if their annual receipts are 
not more than $25 million. There were 56,577 supermarkets and other 
groceries in 2002. Of these, only 3,477 or 6.1 percent are considered 
to be large. Fruit and vegetable markets (NAICS code 445230) are 
considered small if their annual sales are not more than $6.5 million. 
In 2002, the most recent year for which data are available, the census 
reported 2,257 fruit and vegetable markets.\2\ Approximately 96 percent 
of these are considered to be small entities by SBA standards. The 
census also reported 2,761 warehouse clubs and superstores (NAICS 
452910), which are classified as small entities if their annual sales 
are not more than $25 million. Of the above total, 2,593, or 93.9 
percent, are classified as large entities.
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    \1\ SBA, Small business Size Standards matched to North American 
Industry Classification System 2002, Effective January 2006 (http://
www.sba.gov/size/sizetable2002.html).
    \2\ U.S. Census Bureau, 2002 Economic Census Geographic Area 
Series: Manufacturing and Wholesale Trade, Revised January 2006 
(http://www.census.gov/econ/census02/guide/geosumm.htm).
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    The majority of entities that could be affected by the rule are 
small entities. However, any effects would be minimal.
    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 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This proposed rule contains no information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects for 7 CFR part 305

    Irradiation, Phytosanitary treatment, Plant diseases and pests, 
Quarantine, Reporting and recordkeeping requirements.

    Accordingly, we are proposing to amend 7 CFR part 305 as follows:

PART 305--PHYTOSANITARY TREATMENTS

    1. The authority citation for 7 CFR part 305 would continue to read 
as follows:

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

    2. Section 305.2 would be amended as follows:
    a. In the table in paragraph (g), by removing, in the entry for 
Aircraft, the words ``Fruit flies and soft-bodied insects'' in the Pest 
column and ``Aerosol T409-c-1 or Aerosol T409-c-3.'' in the Treatment 
column.
    b. In the table in paragraph (h)(2)(i), under All, by revising the 
entry for ``All imported fruits and vegetables'' and by adding a new 
entry for ``All imported fruits and vegetables approved for treatment 
with methyl bromide under the Federal Insecticide, Fungicide, and 
Rodenticide Act'' to read as set forth below.


Sec.  305.2  Approved treatments.

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *

[[Page 36632]]



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             Location                        Commodity                     Pest              Treatment schedule
----------------------------------------------------------------------------------------------------------------
All...............................  All imported fruits and     Most......................  Quick freeze T110.
                                     vegetables.
                                    All imported fruits and     Hitchhiker pests or         MB T104-a-1.
                                     vegetables approved for     surface pests, except      ....................
                                     treatment with methyl       mealybugs.                 MB T104-a-2.
                                     bromide under the Federal  Mealybugs.................
                                     Insecticide, Fungicide,
                                     and Rodenticide Act.
 
                                                  * * * * * * *
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* * * * *
    3. In Sec.  305.6, in the table in paragraph (a), the entry for 
T101-j-2-1 would be revised to read as follows.


Sec.  305.6  Methyl bromide fumigation treatment schedules.

    (a) * * *

----------------------------------------------------------------------------------------------------------------
                                                         Temperature      Dosage rate  (lb/    Exposure  period
       Treatment schedule             Pressure            ([deg]F)        1,000 cubic feet)         (hours)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
T101-j-2-1.....................  NAP...............  80 or above.......  2.5                  2
 
                                                  * * * * * * *
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    4. Section 305.9 would be amended as follows:
    a. The section heading would be revised to read as set forth below.
    b. Paragraph (b), including the table, would be revised to read as 
set forth below.


Sec.  305.9  Aerosol spray for aircraft treatment schedule.

* * * * *
    (b) Aerosol schedule.

------------------------------------------------------------------------
       Treatment schedule               Aerosol               Rate
------------------------------------------------------------------------
T-409b..........................  d-phenothrin (10%).       8g/1,000 ft3
------------------------------------------------------------------------

    5. In Sec.  305.10, in the table in paragraph (a)(3), the entry for 
T-108b would be revised to read as follows:


Sec.  305.10  Treatment schedules for combination treatments.

    (a) * * *
    (3) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                    Dosage rate      Exposure
        Treatment schedule            Type of treatment    Temperature  ([deg]F)     (lb/1,000        period
                                                                                    cubic feet)       (hours)
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                                                  * * * * * * *
T108-b............................  MB...................  50 or above..........             1.5         2 hours
                                                           40-49................               2         2 hours
                                    CT...................  33 or below..........  ..............         21 days
 
                                                  * * * * * * *
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* * * * *

    Done in Washington, DC, this 28th day of June 2007.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E7-13036 Filed 7-3-07; 8:45 am]
BILLING CODE 3410-34-P