[Federal Register Volume 67, Number 181 (Wednesday, September 18, 2002)]
[Rules and Regulations]
[Pages 58683-58686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23685]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 01-115-2]


Imported Fire Ant; Approved Treatments

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the imported fire ant regulations to add the 
insecticide fipronil (Chipco[reg]) to the list of chemicals authorized 
for the treatment of regulated articles and to provide instructions for 
its use in soil or potting media and on grass sod. This action makes 
another authorized treatment available to persons wishing to move 
containerized plants and commercial grass sod interstate from 
quarantined areas. We are also updating the regulations by making the 
rates of application for chlorpyrifos (Dursban[reg]), a currently 
authorized insecticide, consistent with current product labeling.

EFFECTIVE DATE: September 18, 2002.

FOR FURTHER INFORMATION CONTACT: Mr. Charles L. Brown, Operations 
Officer, Invasive Species and Pest Management, PPQ, APHIS, 4700 River 
Road Unit 134, Riverdale, MD 20737-1236; (301) 734-4838.

SUPPLEMENTARY INFORMATION:

Background

    The imported fire ant, Solenopsis invicta Buren and Solenopsis 
richteri Forel, is an aggressive, stinging insect that, in large 
numbers, can seriously injure and even kill livestock, pets, and 
humans. The imported fire ant feeds on

[[Page 58684]]

crops and builds large, hard mounds that damage farm and field 
machinery.
    The imported fire ant regulations (7 CFR 301.81 through 301.81-10, 
referred to below as the regulations) quarantine infested States or 
infested areas within States and restrict the interstate movement of 
regulated articles from those areas to prevent the artificial spread of 
the imported fire ant. Regulated articles include soil, plants, and sod 
(Sec.  301.81-2).
    Sections 301.81-4 and 301.81-5 of the regulations provide, among 
other things, that regulated articles requiring treatment prior to 
interstate movement must be treated in accordance with the methods and 
procedures prescribed in the appendix to the subpart, which sets forth 
the treatment provisions of the ``Imported Fire Ant Program Manual.''
    On April 30, 2002, we published a proposal in the Federal Register 
(67 FR 21183-21185, Docket No. 01-115-1) to amend the imported fire ant 
regulations by adding the insecticide fipronil (Chipco[reg]) to the 
list of chemicals authorized for the treatment of soil, potting media, 
and grass sod. We also proposed to change the dosage rates for applying 
chlorpyrifos, a currently approved insecticide, to grass sod so that 
the rate would be consistent with current product labeling.
    We solicited comments concerning our proposal for 60 days ending 
July 1, 2002. We received five comments by that date. They were from 
representatives of a pest control company and three State agriculture 
departments. Three comments supported our proposal, and two comments 
raised two issues, which are discussed below.
    One commenter stated his concern that over-the-counter availability 
of fipronil would remove business from pest management professionals. 
The commenter's assumption that fipronil that is used in the imported 
fire ant quarantine program will be available over the counter is 
incorrect. The over-the-counter product is not labeled for imported 
fire ant quarantine use and thus cannot be used in the program. 
Certified applicators, who could include personnel at nurseries or golf 
courses or pest management professionals, must apply the product.
    Two commenters were concerned that the use of fipronil would lead 
to contamination of ground water, streams, lakes, and other water 
resources due to the over application or misuse of fipronil. Fipronil 
must be applied according to the label that has been approved by the 
Environmental Protection Agency (EPA). When fipronil is used in 
accordance with the label requirements and applied by certified 
applicators, it is unlikely that any over application or misuse of 
fipronil will occur.
    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.

Effective Date

    This is a substantive rule that approves the use of a new chemical 
pesticide that may be used as an alternative to other authorized 
chemicals. Immediate implementation of this rule will enable those 
persons wishing to sell or use fipronil to benefit from its 
availability for treatment of the imported fire ant during the fall 
shipping season, which is about to begin. Therefore, pursuant to 5 
U.S.C. 553, the Administrator of the Animal and Plant Health Inspection 
Service has determined that this rule should be effective less than 30 
days after publication in the Federal Register.

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.
    This rule amends the appendix to the imported fire ant regulations 
to allow the use of the insecticide fipronil (Chipco[reg]) against the 
imported fire ant. Fipronil is registered by the EPA for use against 
imported fire ant in potting media and commercial grass sod and has 
been found to be efficacious against the imported fire ant based on 
testing by the Gulfport Plant Methods Center in Mississippi.
    Determining the cost of imported fire ant treatments is complicated 
because of the variety of insecticides that can be used, varying soil 
conditions, and the various nursery crops grown. For example, in two 
surveys conducted by Hall and Holloway (1994 and 1995) of 37 nursery 
crop growers in Texas--representing over one-half of all nursery crops 
produced in that State--chemical cost per treatment for imported fire 
ant control averaged $12.10, with treatment costs making up to 4 
percent of their production cost. Almost one-half (i.e., 47 percent) of 
those growers reported treating for imported fire ant, and most of them 
reported using more than one insecticide to treat for imported fire ant 
in their operations (range = 1 to 3; average = 1.5), making the average 
cost per acre for insecticides to control imported fire ants $18.15 
(i.e., 1.5 x $12.10).
    Fipronil is the latest EPA-approved insecticide to be added to the 
regulations for the treatment of imported fire ant. Other approved 
insecticides--Pyriproxyfen (Distance[reg], Fenoxycarb (Award[reg], 
Hydramethylnon (AMDRO[reg], and Bifenthrin (Talstar[reg]--cost 
approximately the same in the bulk market, between $5 per pound and $12 
per pound, with each pound treating 17 colonies (i.e., mounds) of 
imported fire ant. An insecticide's retail price depends on the price 
charged by its local distributor and may vary from State to State. 
Although the insecticides generally do not differ greatly in price, at 
least some consumers can be expected to benefit from the inclusion of 
fipronil as an alternative treatment.

Affected Entities

    Businesses such as nurseries, sod growers, farm equipment dealers, 
and construction companies that work with regulated articles are the 
entities most likely to be affected by this rule. This rule results in 
a wider selection of treatment options for imported fire ant. The 
economic effect on affected entities is expected to either be positive, 
since a wider selection of insecticides will provide greater choice, or 
have no effect, if they choose not to use fipronil.
    The Regulatory Flexibility Act requires that agencies consider the 
economic effects of their rules on small businesses. Based on data from 
the 1997 Census of Agriculture, there were 13,266 nurseries and 
greenhouses located in areas of the United States quarantined because 
of imported fire ant, of which 82 to 99 percent were small businesses, 
according to the U.S. Small Business Administration's criterion of 
annual sales of less than $750,000.
    The addition of fipronil to the imported fire ant regulations 
provides the regulated community with a greater selection of treatment 
options. Thus, it is expected that the economic effect on these 
businesses would either be positive (a wider selection of insecticides 
provides greater choice) or neutral (if they choose not to use 
fipronil). The majority (i.e., 82 to 99 percent) of firms that may 
potentially be affected by this proposed rule are small entities.
    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

[[Page 58685]]

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 new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

    Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 continues to read as 
follows:

    Authority: 7 U.S.C. 166, 7711, 7712, 7714, 7731, 7735, 7751, 
7752, 7753, and 7754; 7 CFR 2.22, 2.80, and 371.3.
    Section 301.75-15 also issued under Sec. 204, Title II, Pub. 
L.106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 
also issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 
(7 U.S.C. 1421 note).



    2. In part 301, Subpart--Imported Fire Ant (Sec. Sec.  301.81 
through 301.81-10), the appendix to the subpart is amended as follows:
    a. In paragraph III.B., under the heading INSECTICIDES, by adding 
``Fipronil (Chipco[reg]'' in alphabetical order.
    b. By redesignating paragraph III.C.3.d. as paragraph III.C.3.e. 
and adding a new paragraph III.C.3.d. to read as set forth below.
    c. In newly redesignated paragraph III.C.3.e., by removing, from 
the heading, the words ``or tefluthrin'' and adding the words 
``tefluthrin, or fipronil'' in their place, and by adding a new 
``Method F--Granular Incorporation (Fipronil)'' in alphabetical order 
to read as set forth below.
    d. In paragraph III.C.4., under the heading Exclusion, by adding a 
new entry for Fipronil, following the Tefluthrin entry, to read as set 
forth below.
    e. In paragraph III.C.4., under the heading Enforcement, the sixth 
paragraph, second sentence, by removing the words ``or tefluthrin'' and 
adding the words ``tefluthrin, or fipronil'' in their place.
    f. In paragraph III.C.8., by revising the entry for Material to 
read as set forth below.

APPENDIX TO SUBPART ``IMPORTED FIRE ANT''

III. Regulatory Procedures

* * * * *
    C. Approved Treatments.
* * * * *

3. Plants Balled or in Containers

* * * * *
    d. Fipronil: Granular Formulation.
    Material: Granular fipronil incorporation into soil or potting 
media for containerized nursery stock.
    Dosage: The amount of granular fipronil needed to achieve a 
specified dosage varies with the bulk density of the soil or potting 
media. Follow label directions to calculate the amount of granular 
fipronil needed to achieve a specified dosage.

------------------------------------------------------------------------
   Granular fipronil dosage  (parts per         Certification period
                 million)                     (months after treatment)
------------------------------------------------------------------------
10 ppm....................................  0-6 months.
12 ppm....................................  0-12 months.
15 ppm....................................  0-24 months.
25 ppm....................................  Continuous.
------------------------------------------------------------------------

    Exposure Period: Containerized nursery stock can be certified 
for interstate movement from quarantined areas 2 weeks after 
completion of treatment.
    e. * * *

Method F--Granular Incorporation (Fipronil)

    Apply fipronil according to the label instructions for granular 
incorporation. Mix thoroughly to distribute product evenly 
throughout the soil or potting media. After potting, containers must 
be watered to the point of saturation.
    Precautions: Saturation of the soil or potting media with the 
granular fipronil is essential. Water that drains from the treatment 
area, which may contain fipronil, must be disposed of in accordance 
with State and local laws.
    4. Imported-Fire-Ant-Free Nursery--Containerized Plants Only
* * * * *

Exclusion

* * * * *

Fipronil

    For plants grown on the premises: Treatment of soil or potting 
media with granular fipronil prior to planting is permitted as an 
alternative to treatment with granular formulations of bifenthrin or 
tefluthrin. This treatment reduces the risk of infestation of 
containers by alate queens flying in from adjacent or nearby 
infested premises. The dosage rate is variable, determined by the 
selected certification period, for the granular fipronil.
    Apply this treatment according to the label directions.
    Mixing must be adequate to blend the required dosage of granular 
fipronil throughout the entire soil or potting media.
* * * * *

8. Grass-Sod

Material

    a. Chlorpyrifos.

------------------------------------------------------------------------
                                Amount and dosage
           Material                of material      Certification period
------------------------------------------------------------------------
Chlorpyrifos..................  8.0 lb (3.6 kg)    6 weeks (after
                                 a.i./acre.         exposure period has
                                                    been completed).
------------------------------------------------------------------------

    Exposure Period: 48 hours.

Method

    1. Apply a single broadcast application of chlorpyrifos with 
ground equipment.
    2. Immediately after treatment, water the treated areas with at 
least \1/2\ inch of water.
    Chlorpyrifos wettable powder Dursban[reg] 50-WP: Follow label 
directions for regulatory treatment for IFA.
    b. Fipronil.

------------------------------------------------------------------------
                                Amount and dosage
           Material                of material      Certification period
------------------------------------------------------------------------
Fipronil......................  Dosage per         20 weeks (after
                                 application:       exposure period has
                                 0.0125 lb          been completed).
                                 (0.00567 kg)
                                 a.i./acre.
                                Total amount over
                                 two
                                 applications:
                                 0.025 lb
                                 (0.01134 kg)
                                 a.i./acre.
------------------------------------------------------------------------


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    Exposure Period: 30 days from the second application.

Method

    1. Apply in two applications approximately 1 week apart for a 
total of 0.025 lb (0.01134 kg) a.i./acre.
    2. Follow label directions for regulatory treatment for IFA.
* * * * *

    Done in Washington, DC, this 12th day of September, 2002.
Bobby R. Acord,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 02-23685 Filed 9-17-02; 8:45 am]
BILLING CODE 3410-34-P