Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / Rules and Regulations 60359 

1To view the interim rule and its supporting 

economic analysis, go to http:// 

www.regulations.gov/fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2010-0075. 

Manager, Emergency and Domestic 

Programs, Plant Protection and 

Quarantine, APHIS, 4700 River Road 

Unit 137, Riverdale, MD 20737; (301) 

734–5332. 

SUPPLEMENTARY INFORMATION: 

Background 

The gypsy moth, Lymantria dispar 

(Linnaeus), is a destructive pest of 

forest, shade, and commercial trees such 

as nursery stock and Christmas trees. 

The gypsy moth regulations (contained 

in 7 CFR 301.45 through 301.45–12 and 

referred to below as the regulations) 

restrict the interstate movement of 

regulated articles from generally 

infested areas to prevent the artificial 

spread of the gypsy moth. Section 

301.45–3 of the regulations lists 

generally infested areas. 

In an interim rule 1 effective and 

published in the Federal Register on 

April 18, 2011 (76 FR 21613–21615, 

Docket No. APHIS–2010–0075), we 

amended § 301.45–3(a) by adding 

portions of Indiana, Maine, Ohio, 

Virginia, West Virginia, and Wisconsin 

to the list of generally infested areas. 

Comments on the interim rule were 

required to be received on or before June 

17, 2011. We received one comment 

from a State agricultural agency that was 

in favor of this action. Therefore, for the 

reasons given in the interim rule, we are 

adopting the interim rule as a final rule 

without change. 

This action also affirms the 

information contained in the interim 

rule concerning Executive Order 12866 

and the Regulatory Flexibility Act, 

Executive Orders 12372 and 12988, and 

the Paperwork Reduction Act. 

Further, for this action the Office of 

Management and Budget has waived its 

review under Executive Order 12866. 

List of Subjects in 7 CFR Part 301 

Agricultural commodities, Plant 

diseases and pests, Quarantine, 

Reporting and recordkeeping 

requirements, Transportation. 

PART 301—DOMESTIC QUARANTINE 

NOTICES 

■ Accordingly, we are adopting as a 

final rule, without change, the interim 

rule that amended 7 CFR part 301 and 

that was published at 76 FR 21613– 

21615 on April 18, 2011. 

Done in Washington, DC, this 23rd day of 

September 2011. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2011–25089 Filed 9–28–11; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 305 

[Docket No. APHIS–2008–0022] 

RIN 0579–AC94 

Phytosanitary Treatments; Location of 

and Process for Updating Treatment 

Schedules; Technical Amendment 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule; technical 

amendment. 

SUMMARY: In a final rule that was 

published in the Federal Register on 

January 26, 2010, and effective on 

February 25, 2010, we amended the 

phytosanitary treatment regulations by 

removing the lists of approved 

treatments and treatment schedules 

from the regulations, while retaining the 

general requirements for performing 

treatments and certifying or approving 

treatment facilities. The final rule also 

removed treatment schedules from other 

places where they had been found in 

APHIS regulations and provided that 

approved treatment schedules will 

instead be found in the Plant Protection 

and Quarantine Treatment Manual, 

which is available on the Internet. In the 

final rule, we neglected to provide for 

the Administrator of the Animal and 

Plant Health Inspection Service to 

approve treatments that are not found in 

the Treatment Manual, and we did not 

retain text explaining that irradiation 

can be used as a substitute for other 

treatments. In this amendment, we are 

amending the regulation to provide for 

such approval of treatments and to 

restore the text we removed. 

DATES: Effective Date: September 29, 

2011. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Inder P. S. Gadh, Senior Risk Manager— 

Treatments, Regulations, Permits, and 

Manuals, PPQ, APHIS, 4700 River Road 

Unit 133, Riverdale, MD 20737–1236; 

(301) 734–0627. 

SUPPLEMENTARY INFORMATION: 

Background 

In a final rule that was published in 

the Federal Register on January 26, 

2010 (75 FR 4228–4253, Docket No. 

APHIS–2008–0022), and effective on 

February 25, 2010, we amended the 

phytosanitary treatment regulations in 7 

CFR part 305 by removing the lists of 

approved treatments and treatment 

schedules from the regulations, while 

retaining the general requirements for 

performing treatments and certifying or 

approving treatment facilities. The final 

rule also removed treatment schedules 

from other places where they had been 

found in 7 CFR chapter III. 

We replaced the lists of approved 

treatments that had been in § 305.2 with 

a general statement in paragraph (b) of 

that section that approved treatment 

schedules are set out in the Plant 

Protection and Quarantine (PPQ) 

Treatment Manual. Paragraph (b) went 

on to state that treatments may only be 

administered in accordance with the 

treatment requirements of part 305 and 

in accordance with treatment schedules 

found in the PPQ Treatment Manual. 

We also amended the general 

requirements for performing treatments 

and certifying or approving treatment 

facilities to indicate that such facilities 

need to be able to conduct the 

treatments in the PPQ Treatment 

Manual. 

However, while the PPQ Treatment 

Manual contains only approved 

treatment schedules, it is inappropriate 

to refer to the PPQ Treatment Manual as 

the sole place where approved treatment 

schedules may be found and to set 

requirements for treatment facilities 

based only on the treatments in the PPQ 

Treatment Manual. A treatment 

schedule is ultimately approved for use 

not by dint of its inclusion in the PPQ 

Treatment Manual but because the 

Administrator of the Animal and Plant 

Health Inspection Service has decided 

that the treatment schedule is effective 

at neutralizing the targeted plant pest. 

Ultimately, the regulations should refer 

to approval by the Administrator as the 

standard for use of a treatment schedule. 

Therefore, we are amending 

paragraph (b) of § 305.2 to indicate that 

treatments may only be administered in 

accordance with the requirements of 

part 305 and in accordance with 

treatment schedules approved by the 

Administrator as effective at 

neutralizing quarantine pests. We are 

also amending paragraph (b) to 

explicitly indicate that the treatment 

schedules found in the PPQ Treatment 

Manual have been approved by the 

Administrator. 


tkelley on DSKG8SOYB1PROD with RULES
60360 Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / Rules and Regulations 

As the regulations in part 305 now 

indicate that treatment must be 

administered in accordance with 

treatment schedules approved by the 

Administrator, it is appropriate to 

provide a means by which persons can 

request that the Administrator approve 

other treatment schedules. Therefore, 

we are adding a new paragraph (c) to 

§ 305.2. This paragraph indicates that 

persons who wish to have a treatment 

schedule approved by the Administrator 

as effective at neutralizing a quarantine 

pest or pests may apply for approval by 

submitting the treatment schedule, 

along with any supporting information 

and data, to the Animal and Plant 

Health Inspection Service, Plant 

Protection and Quarantine, Center for 

Plant Health Science and Technology, 

1730 Varsity Drive, Suite 400, Raleigh, 

NC 27606–5202. Upon receipt of such 

an application, the Administrator will 

review the schedule and the supporting 

information and data and respond with 

approval or denial of the treatment 

schedule. If the Administrator 

determines the treatment schedule to be 

of potential general use, the 

Administrator may add the new 

treatment schedule to the PPQ 

Treatment Manual or revise an existing 

schedule, as appropriate, in accordance 

with the process described in § 305.3. 

To accommodate this change, we are 

redesignating current paragraph (c) of 

§ 305.2 as paragraph (d). We are also 

amending the definition of PPQ 

Treatment Manual in § 305.1 to make it 

clear that all treatment schedules in the 

manual are approved by the 

Administrator, and we are amending the 

heading of § 305.3, which describes the 

process for adding, revising, or 

removing treatment schedules, to 

indicate that it specifically applies to 

the PPQ Treatment Manual. 

These changes also necessitate 

changes in §§ 305.5 through 305.9, 

which set out the requirements for 

administering chemical treatment, cold 

treatment, quick freeze treatment, heat 

treatment, and irradiation treatment, 

respectively. Where these sections have 

referred to facilities capable of 

performing treatments in accordance 

with treatment schedules in the PPQ 

Treatment Manual, they now also refer 

to performing treatments in accordance 

with treatment schedules approved in 

accordance with § 305.2. For other 

references to the PPQ Treatment Manual 

in those sections, we have added 

references to treatment schedules 

approved in accordance with § 305.2 as 

well. A complete list of these changes 

can be found in the regulatory text at the 

end of this document. 

As noted earlier, before the 

publication of the January 2010 final 

rule, § 305.2 listed approved treatments 

for various articles. Paragraph (h) of 

§ 305.2 listed approved treatments for 

fruits and vegetables. At the beginning 

of the list, paragraph (h)(1) stated that 

irradiation treatment in accordance with 

part 305 could be substituted for other 

approved treatments for any pests for 

which irradiation was an approved 

treatment. For example, several fruits 

and vegetables may be treated with cold 

treatment to neutralize certain fruit flies; 

as irradiation is an approved treatment 

for fruit flies, irradiation for fruit flies in 

accordance with part 305 may be 

substituted for cold treatment for those 

fruits and vegetables. 

We did not include this text in the 

revised part 305; it is contained in the 

PPQ Treatment Manual, thus confirming 

that substitution of irradiation for other 

approved treatments has been approved 

by the Administrator. However, since 

the publication of the January 2010 final 

rule, there has been some confusion 

among the regulated community 

regarding our policy on substituting 

irradiation for other approved 

treatments. 

To address this confusion, we are 

adding a new paragraph (o) to § 305.9, 

which contains requirements for 

performing irradiation treatment, that 

describes our policy on substituting 

irradiation for other approved 

treatments. The new paragraph reads: 

‘‘Treatment of fruits and vegetables that 

are from foreign localities, from Hawaii, 

Puerto Rico, and the U.S. Virgin Islands, 

or from domestic areas under quarantine 

with irradiation in accordance with this 

section may be substituted for other 

approved treatments if the target pests 

of the other approved treatments are 

approved for treatment with irradiation 

in the PPQ Treatment Manual or 

approved for treatment with irradiation 

in accordance with § 305.2.’’ 

List of Subjects in 7 CFR Part 305 

Agricultural commodities, Chemical 

treatment, Cold treatment, Heat 

treatment, Imports, Irradiation, 

Phytosanitary treatment, Plant diseases 

and pests, Quarantine, Quick freeze, 

Reporting and recordkeeping 

requirements, Transportation. 

Accordingly, we are amending 7 CFR 

part 305 as follows: 

PART 305—PHYTOSANITARY 

TREATMENTS 

■ 1. The authority citation for 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. 

■ 2. In § 305.1, in the definition of PPQ 

Treatment Manual, the first sentence is 

revised to read as follows: 

§ 305.1 Definitions. 

* * * * * 

PPQ Treatment Manual. A document 

that contains treatment schedules that 

are approved by the Administrator for 

use under this part. * * * 

* * * * * 

■ 3. Section 305.2 is amended as 

follows: 

■ a. By revising paragraph (b) to read as 

set forth below. 

■ b. By redesignating paragraph (c) as 

paragraph (d). 

■ c. By adding a new paragraph (c) to 

read as set forth below. 

§ 305.2 Approved treatments. 

* * * * * 

(b) Treatments may only be 

administered in accordance with the 

requirements of this part and in 

accordance with treatment schedules 

approved by the Administrator as 

effective at neutralizing quarantine 

pests. The treatment schedules found in 

the PPQ Treatment Manual have been 

approved by the Administrator. 

Treatment schedules may be added to 

the PPQ Treatment Manual in 

accordance with § 305.3. Treatment 

schedules may also be approved by the 

Administrator in accordance with 

paragraph (c) of this section. 

(c) Persons who wish to have a 

treatment schedule approved by the 

Administrator as effective at 

neutralizing a quarantine pest or pests 

may apply for approval by submitting 

the treatment schedule, along with any 

supporting information and data, to the 

Animal and Plant Health Inspection 

Service, Plant Protection and 

Quarantine, Center for Plant Health 

Science and Technology, 1730 Varsity 

Drive, Suite 400, Raleigh, NC 27606– 

5202. Upon receipt of such an 

application, the Administrator will 

review the schedule and the supporting 

information and data and respond with 

approval or denial of the treatment 

schedule. If the Administrator 

determines the treatment schedule to be 

of potential general use, the 

Administrator may add the new 

treatment schedule to the PPQ 

Treatment Manual or revise an existing 

schedule, as appropriate, in accordance 

with § 305.3. 

* * * * * 

■ 4. In § 305.3, the section heading is 

revised to read as follows: 


tkelley on DSKG8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / Rules and Regulations 60361 

§ 305.3 Processes for adding, revising, or 

removing treatment schedules in the PPQ 

Treatment Manual. 

* * * * * 

§ 305.5 [Amended] 

■ 5. Section 305.5 is amended as 

follows: 

■ a. In paragraph (a)(1), by adding the 

words ‘‘or in another treatment schedule 

approved in accordance with § 305.2’’ 

after the word ‘‘Manual’’. 

■ b. In paragraph (c)(1), in the first 

sentence, by adding the words ‘‘or in 

another treatment schedule approved in 

accordance with § 305.2’’ after the word 

‘‘Manual’’; and, in the second sentence, 

by adding the words ‘‘or approved in 

accordance with § 305.2’’ after the word 

‘‘Manual’’. 

■ c. In paragraph (c)(3), in the first 

sentence, by adding the words ‘‘or in 

another approved treatment schedule’’ 

after the word ‘‘Manual’’. 

§ 305.6 [Amended] 

■ 6. Section 305.6 is amended as 

follows: 

■ a. In paragraph (a) introductory text, 

by adding the words ‘‘or in another 

treatment schedule approved in 

accordance with § 305.2’’ after the word 

‘‘Manual’’. 

■ b. In paragraph (c)(1), by adding the 

words ‘‘or in another approved 

treatment schedule’’ after the word 

‘‘Manual’’. 

■ c. In paragraph (d)(14), by adding the 

words ‘‘or in accordance with another 

approved treatment schedule’’ after the 

word ‘‘Manual’’. 

■ 7. Section 305.7 is amended as 

follows: 

■ a. In the second sentence, by removing 

the word ‘‘the’’ before the word ‘‘fruits’’. 

■ b. By adding a new sentence at the 

end of the section to read as set forth 

below. 

§ 305.7 Quick freeze treatment 

requirements. 

* * * Requests to authorize quick 

freeze as a treatment for other fruits and 

vegetables may be made in accordance 

with § 305.2(c). 

§ 305.8 [Amended] 

■ 8. In § 305.8, paragraph (a)(1) is 

amended by adding the words ‘‘or in 

another treatment schedule approved in 

accordance with § 305.2’’ after the word 

‘‘Manual’’. 

■ 9. Section 305.9 is amended as 

follows: 

■ a. In paragraph (d)(1), by adding the 

words ‘‘or in another treatment schedule 

approved in accordance with § 305.2’’ 

after the word ‘‘Manual’’. 

■ b. In paragraph (i), by adding the 

words ‘‘or in another approved 

treatment schedule’’ after the word 

‘‘Manual’’. 

■ c. In paragraph (j)(2), by adding the 

words ‘‘or by another approved 

treatment schedule’’ after the word 

‘‘Manual’’. 

■ d. In paragraph (n), by adding the 

words ‘‘or the plant pests for which 

another treatment schedule is approved 

in accordance with § 305.2’’ after the 

word ‘‘Manual’’. 

■ e. By adding a new paragraph (o) to 

read as set forth below. 

§ 305.9 Irradiation treatment requirements. 

* * * * * 

(o) Substitution of irradiation for 

other treatments. Treatment of fruits 

and vegetables that are from foreign 

localities, from Hawaii, Puerto Rico, and 

the U.S. Virgin Islands, or from 

domestic areas under quarantine with 

irradiation in accordance with this 

section may be substituted for other 

approved treatments if the target pests 

of the other approved treatments are 

approved for treatment with irradiation 

in the PPQ Treatment Manual or 

approved for treatment with irradiation 

in accordance with § 305.2. 

* * * * * 

Done in Washington, DC, this 23rd day of 

September 2011. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2011–25097 Filed 9–28–11; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 983 

[Doc. No. AMS–FV–11–0077; FV–983–2 IR] 

Pistachios Grown in California, 

Arizona, and New Mexico; Decreased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This rule decreases the 

assessment rate established for the 

Administrative Committee for 

Pistachios (Committee) for the 2011–12 

and subsequent production years from 

$0.0007 to $0.0005 per pound of 

assessed weight pistachios. The 

Committee locally administers the 

marketing order which regulates the 

handling of pistachios grown in 

California, Arizona, and New Mexico. 

Assessments upon pistachio handlers 

are used by the Committee to fund 

reasonable and necessary expenses of 

the program. The production year 

begins September 1 and ends August 31. 

The assessment rate will remain in 

effect indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective September 30, 2011. 

Comments received by November 28, 

2011, will be considered prior to 

issuance of a final rule. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments must be 

sent to the Docket Clerk, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; Fax: 

(202) 720–8938; or Internet: http:// 

www.regulations.gov. Comments should 

reference the document number and the 

date and page number of this issue of 

the Federal Register and will be 

available for public inspection in the 

Office of the Docket Clerk during regular 

business hours, or can be viewed at: 

http://www.regulations.gov. All 

comments submitted in response to this 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Andrea Ricci, Marketing Specialist or 

Kurt J. Kimmel, Regional Manager, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906, or E-mail: 

Andrea.Ricci@ams.usda.gov or 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or E-mail: 

Laurel.May@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

and Order No. 983, both as amended (7 

CFR part 983), regulating the handling 

of pistachios grown in California, 

Arizona, and New Mexico hereinafter 

referred to as the ‘‘order.’’ The order is 

effective under the Agricultural 

Marketing Agreement Act of 1937, as 

amended (7 U.S.C. 601–674), hereinafter 

referred to as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 


tkelley on DSKG8SOYB1PROD with RULES