[Federal Register Volume 73, Number 102 (Tuesday, May 27, 2008)]
[Rules and Regulations]
[Pages 30271-30274]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11740]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 73, No. 102 / Tuesday, May 27, 2008 / Rules 
and Regulations

[[Page 30271]]



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: Final rule.

-----------------------------------------------------------------------

SUMMARY: We are amending 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 removing 
two treatment schedules that are no longer authorized for use and 
clarifying the fruits and vegetables on which two methyl bromide 
treatments may be used. These changes are necessary to ensure that 
ineffective or unauthorized treatments are not used and to clarify the 
regulations.

DATES: Effective Date: June 26, 2008.

FOR FURTHER INFORMATION CONTACT: Dr. Inder P.S. Gadh, Senior Risk 
Manager-Treatments, Commodity Import Analysis and Operations, 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 other articles to prevent the introduction or 
dissemination of plant pests or noxious weeds into or through the 
United States. On July 5, 2007, we published in the Federal Register 
(72 FR 36629-36632, Docket No. APHIS-2006-0091) a proposal \1\ to amend 
the regulations by:
---------------------------------------------------------------------------

    \1\ To view the proposed rule and the comment we received, go to 
http://www.regulations.gov/fdmspublic/component/
main?main=DocketDetail&d=APHIS-2006-0091.
---------------------------------------------------------------------------

     Amending two treatments to remove options that we now 
believe to be ineffective at neutralizing their target plant pests;
     Removing two treatment schedules that are no longer 
authorized for use; and
     Clarifying the fruits and vegetables on which two methyl 
bromide treatments may be used.
    We solicited comments concerning our proposal for 60 days ending 
September 4, 2007. We received one comment by that date, from the 
national plant protection organization of a foreign country. We address 
the issues raised by the commenter in the following paragraphs.
    The regulations in Sec.  305.2 allow grapes from Australia to enter 
the United States if they are treated in accordance with methyl 
bromide/cold treatment combination treatment MB&CT T108-b, found in 
Sec.  305.10 of the regulations, in order to neutralize the plant pests 
Austrotortrix spp., Epiphyas spp.,  Bactrocera tryoni, Mediterranean 
fruit fly (Medfly), and other fruit flies. The regulations in Sec.  
305.2 also provide for the use of MB&CT T108-b to qualify apples, 
grapes, and pears for interstate movement from areas within the United 
States that are quarantined due to the presence of Medfly. This 
treatment schedule has stipulated that these commodities first be 
fumigated with methyl bromide and then held at either 33 [deg]F or 
below for 21 days, or between 48 [deg]F and 56 [deg]F for 6 days. In 
the proposed rule, we stated that our review of these two options had 
led us to determine that there was not adequate scientific 
justification to conclude that these pests could be neutralized if the 
cold treatment option of holding the fruit between 48 [deg]F and 56 
[deg]F for 6 days was used. We therefore proposed to remove this option 
from the regulations.
    The commenter stated that we had failed to provide a citation for 
our review, or scientific information in support of such a change, and 
asked that such information be provided in this final rule.
    Our review evaluated the scientific justification for each 
component of the various MB&CT treatment schedules to ensure that all 
supporting data incorporated and thus adequately reflected the 
pertinent research on the efficacy of such treatments at neutralizing 
their target pests. This review revealed the absence of any supporting 
scientific evidence suggesting that the cold treatment option that we 
are removing from the regulations is an effective deterrent for its 
target pests. Indeed, the review determined that the inclusion of this 
treatment option in the regulations was the result of a long-standing 
clerical error in the Plant Protection and Quarantine (PPQ) Treatment 
Manual. Cold treatment at a temperature between 48 [deg]F and 56 [deg]F 
is an effective component of treatment schedule T108-a-3, where 
fumigation is performed with a higher dose and for a longer duration 
than under T108-b. It appears that this temperature range option was 
inadvertently copied into treatment schedule T108-b, where its efficacy 
had not been established. When we moved the treatment schedules from 
the PPQ Treatment Manual into the regulations in part 305, this error 
was repeated.
    However, we welcome any research suggesting that this treatment is, 
in fact, effective at neutralizing its target pests, and therefore 
ought to be reintroduced into the regulations.
    Fumigation according to methyl bromide treatment schedule MB T104-
a-1, in accordance with the methyl bromide treatment regulations in 
Sec.  305.6, has been 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 has been listed as an approved treatment for 
mealybugs for all imported fruits and vegetables. In the proposed rule, 
we pointed out that only some fruits and vegetables are approved by the 
Environmental Protection Agency to be treated with methyl bromide under 
the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). We 
therefore proposed 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 to clarify that 
only imported fruits and

[[Page 30272]]

vegetables approved under FIFRA for treatment with methyl bromide, 
rather than all imported fruits and vegetables, may be treated 
according to those treatment schedules.
    The commenter suggested that we not change the regulations to 
specify the commodities approved under FIFRA, since that act could be 
amended in the future to include or exclude certain fruits or 
vegetables, and any such revisions to FIFRA would necessitate 
subsequent revisions to our regulations. Instead, the commenter 
suggested that any references to specific commodities approved under 
FIFRA be contained in an updated PPQ Treatment Manual.
    We did not propose to list specific commodities in the regulations; 
rather, we proposed to amend the entry for ``all imported fruits and 
vegetables'' in order to make it clear that the two methyl bromide 
treatments could be applied only to those fruits and vegetables that 
are approved for treatment with methyl bromide under FIFRA.
    The commenter also pointed out that FIFRA applies only to the use 
and sale of specific chemicals within the United States. Accordingly, 
the commenter suggested that we revise the wording of Sec.  305.2 to 
make it clear that FIFRA does not apply to the sale or use of specific 
chemicals or classes of chemicals in any other country.
    We do not believe that it is necessary to make such a statement in 
our regulations, as they do not assert or imply that FIFRA's 
applicability extends to the regulation of chemicals by other 
countries.
    The commenter also asserted that, because FIFRA has no authority in 
other countries, it is possible that a country may employ a methyl 
bromide fumigation treatment or fumigate an item not approved under 
FIFRA prior to exporting the commodity to the United States, and yet 
still comply with our quarantine requirements. For this reason, the 
commenter suggested that we also amend Sec.  305.2 to specify that all 
imported foods must not exceed methyl bromide residue limits contained 
in 40 CFR 180.123.
    If methyl bromide was not approved for use on a particular fruit or 
vegetable under FIFRA, then we would not prescribe its use as a 
quarantine treatment for that article. We cannot, therefore, envision 
any circumstances under which an article that we did not require to be 
treated with methyl bromide would be so treated anyway, or if it was 
treated with methyl bromide rather than the treatment required under 
the regulations, that the article would be eligible for entry into the 
United States.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.

Executive Order 12866 and Regulatory Flexibility Act

    This 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 amending 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 removing two 
treatment schedules that are no longer authorized for use and 
clarifying the fruits and vegetables on which two methyl bromide 
treatments may be used. These changes are necessary to ensure that 
ineffective or unauthorized treatments are not used and to clarify the 
regulations.
    Removing treatment schedules T409-c-1 and T409-c-3 from the 
regulations is not expected to have any economic impacts 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 only for those imported fruits and vegetables that are 
approved for treatment with methyl bromide under FIFRA is not expected 
to have any economic effects because it simply clarifies the 
circumstances under which APHIS will perform or authorize the 
treatments. Therefore, this economic analysis concentrates on the 
potential economic effects of amending two treatment options for fruits 
and vegetables.
    We are amending 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 will not change. The treatment schedule is approved for 
Anastrepha spp. fruit flies in grapefruits, oranges, and tangerines 
from Mexico and for Anastrepha ludens (Mexican fruit fly) in 
grapefruits, oranges, and tangerines moved interstate from areas within 
the United States that are quarantined due to the presence of Mexican 
fruit fly.
    We are also amending the methyl bromide-cold treatment combination 
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 will not change. The 
treatment schedule is approved for Austrotortrix spp., Epiphyas spp., 
Bactrocera tryoni, Medfly, and other fruit flies in grapes from 
Australia and for Medfly in apples, grapes, and pears moved interstate 
from areas within the United States that are quarantined due to the 
presence of Medfly.
    Depending on the actual cost increases that occur because of 
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 changes in treatment 
requirements will be negligible; any changes in treatment costs 
associated with these amendments to the treatment schedules will 
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 rule amends approved treatments for regulated 
articles moved interstate from areas quarantined due to Medfly. If the 
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 vegetable 
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

[[Page 30273]]

small entities if their annual receipts are not more than $750,000.\2\ 
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 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.\3\ 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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    \2\ SBA, Small business Size Standards matched to North American 
Industry Classification System 2002, Effective January 2006 (http://
www.sba.gov/size/sizetable2002.html).
    \3\ 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).
---------------------------------------------------------------------------

    The majority of entities that could be affected by the rule are 
small entities. However, any effects will be minimal.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

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

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This final 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.

0
Accordingly, we are amending 7 CFR part 305 as follows:

PART 305--PHYTOSANITARY TREATMENTS

0
1. The authority citation for 7 CFR part 305 continues 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.


0
2. Section 305.2 is amended as follows:
0
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.
0
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) * * *

----------------------------------------------------------------------------------------------------------------
       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.
                         bromide under the Federal
                         Insecticide, Fungicide, and
                         Rodenticide Act.
                                                       Mealybugs..............  MB T104-a-2.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

0
3. In Sec.  305.6, in the table in paragraph (a), the entry for T101-j-
2-1 is revised to read as follows.


Sec.  305.6  Methyl bromide fumigation treatment schedules.

    (a) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                            Dosage
                                                                                           rate (lb/   Exposure
          Treatment schedule                   Pressure           Temperature ( [deg]F)      1,000      period
                                                                                             cubic      (hours)
                                                                                             feet)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
T101-j-2-1...........................  NAP.....................  80 or above............        2.5           2
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 30274]]


0
4. Section 305.9 is amended as follows:
0
a. By revising the section heading to read as set forth below.
0
b. By revising paragraph (b), including the table, 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 ft \3\.
------------------------------------------------------------------------


0
5. In Sec.  305.10, in the table in paragraph (a)(3), the entry for T-
108b is revised to read as follows:


Sec.  305.10  Treatment schedules for combination treatments.

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

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

* * * * *

    Done in Washington, DC, this 20th day of May 2008.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E8-11740 Filed 5-23-08; 8:45 am]
BILLING CODE 3410-34-P