[Federal Register Volume 68, Number 100 (Friday, May 23, 2003)]
[Rules and Regulations]
[Pages 28111-28114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12986]



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  Federal Register / Vol. 68, No. 100 / Friday, May 23, 2003 / Rules 
and Regulations  

[[Page 28111]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 300 and 318

[Docket No. 02-026-5]


Hot Water Dip Treatment for Mangoes

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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

SUMMARY: We are amending the Plant Protection and Quarantine Treatment 
Manual, which is incorporated by reference into the Code of Federal 
Regulations, by amending the hot water dip treatment schedule for 
rounded varieties of mangoes from Mexico, Central America, Puerto Rico, 
the U.S. Virgin Islands, and the West Indies to provide for the 
treatment of mangoes weighing between 701 and 900 grams. Because that 
hot water dip treatment schedule previously provided only for the 
treatment of mangoes weighing up to 700 grams, this action will provide 
for the importation or interstate movement of larger rounded-variety 
mangoes from Mexico, Central America, Puerto Rico, the U.S. Virgin 
Islands, and the West Indies. We are also making other changes to the 
treatment schedule, including the extension of the treatment time if 
the mangoes are to be hydrocooled within 30 minutes of the treatment.

DATES: This regulation is effective May 23, 2003. The incorporation by 
reference of the material described in the rule is approved by the 
Director of the Federal Register as of May 23, 2003.

FOR FURTHER INFORMATION CONTACT: Dr. Inder P. Gadh, Import Specialist, 
Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road Unit 
140, Riverdale, MD 20737-1236; (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

    To prevent the introduction into, and the dissemination within, the 
United States of plant pests, the Animal and Plant Health Inspection 
Service (APHIS) restricts the importation and interstate movement of 
many articles, including fruits. As a condition of importation or 
interstate movement, some fruits are required to be treated for plant 
pests in accordance with our regulations in title 7, chapter III, of 
the Code of Federal Regulations (7 CFR parts 300 to 399). The Plant 
Protection and Quarantine (PPQ) Treatment Manual contains approved 
treatment schedules and is incorporated by reference into the 
regulations at 7 CFR 300.1.
    On January 2, 2003, we published a proposed rule in the Federal 
Register (68 FR 69-71, Docket No. 02-026-3) to amend the PPQ Treatment 
Manual to provide for the treatment of rounded mangoes from Mexico or 
Central America weighing from 701 to 900 grams. We also proposed to 
make other changes to the treatment schedule, including extending the 
treatment time for mangoes that would be hydrocooled within 30 minutes 
of treatment.
    We solicited comments concerning our proposal for 45 days ending 
February 18, 2003. We received 11 comments by that date. They were from 
growers, a student, and State Government representatives. Nine 
commenters supported our proposal, although two of the nine raised 
issues concerning the proposed rule; the remaining two commenters 
voiced objections to the proposal. The issues raised by the commenters 
are discussed below.
    Comment: Large mangoes, like the mangoes discussed in the proposed 
rule, are also grown in Puerto Rico. Will growers in Puerto Rico be 
able to use the amended treatment schedule to qualify their large 
mangoes for movement?
    Response: As noted in the proposed rule, the duration of the hot 
water dip treatment is determined based on the origin, shape, and 
weight of the mangoes. Three tables, sorted by region of origin, are 
provided under treatment T102-a: Table 5-2-1 for Puerto Rico, U.S. 
Virgin Islands, or West Indies (excluding Aruba, Bonaire, Curacao, 
Margarita, Tortuga or Trinidad and Tobago); table 5-2-2 for Mexico or 
Central America (north of and including Costa Rica); and table 5-2-3 
for Panama, South America, or West Indies islands of Aruba, Bonaire, 
Curacao, Margarita, Tortuga, or Trinidad and Tobago.
    Because the proposed rule was prompted by a request from producers 
in Mexico, we had proposed to include the treatment for rounded variety 
mangoes weighing between 701 and 900 grams in table 5-2-2 only (i.e., 
for mangoes from Mexico or Central America). However, based on this 
comment, we have carefully evaluated the available research and have 
determined that the same treatment schedule for rounded variety mangoes 
weighing between 701 and 900 grams can also address the risks presented 
by such mangoes produced in Puerto Rico, the U.S. Virgin Islands, or 
the West Indies. Therefore, in this final rule, we have also amended 
table 5-2-1 under treatment schedule T102-a to provide for the 
treatment of rounded variety mangoes weighing between 701 and 900 grams 
from Puerto Rico, the U.S. Virgin Islands, or the West Indies.
    The regulations in Sec.  318.58-2(b) of ``Subpart--Fruits and 
Vegetables from Puerto Rico or Virgin Islands'' contain a 700-gram 
limit on the size of mangoes that are eligible for movement if they 
meet certain conditions, which include treatment in accordance with the 
PPQ Treatment Manual. Because that limitation was based on the size 
limitation in the PPQ Treatment Manual, we are also amending Sec.  
318.58-2(b) in this final rule to reflect the availability of the 
treatment of mangoes weighing up to 900 grams.
    Comment: Since the Commonwealth of Puerto Rico is a mango producer 
and a territory of the United States, Puerto Rico's mango production 
should have been reflected in the discussion of U.S. production 
contained in the proposed rule's regulatory flexibility analysis. 
Mangoes grown in Puerto Rico are shipped to the mainland United States, 
exported, or sold locally in Puerto Rico.
    Response: The commenter is correct that we should have included 
data on Puerto Rico's mango production in our economic analysis. In 
addition, we should have considered Guam, the Northern Mariana Islands, 
and the U.S. Virgin Islands. We have adjusted the information presented 
under ``Executive Order 12866 and Regulatory Flexibility Act'' in this 
final rule to include available data concerning mango

[[Page 28112]]

production in Guam, the Northern Mariana Islands, Puerto Rico, and the 
U.S. Virgin Islands. According to the country notes for the data we 
used from the Food and Agriculture Organization (FAO) of the United 
Nations, the data for U.S. exports and imports includes Puerto Rico and 
the U.S. Virgin Islands. According to these data, however, there were 
no U.S. exports.
    Comment: The hot water dip treatment should be approved only for 
use against the Mexican fruit fly (Anastrepha ludens) because the 
research performed by the U.S. Department of Agriculture's Agricultural 
Research Service (ARS) was limited to that species. Prior research has 
shown that the West Indian fruit fly (A. obliqua) is more heat tolerant 
than the Mexican fruit fly. No information was provided on the heat 
tolerances for other important Anastrepha species, including A. 
fraterculus, A. striata, and A. serpentina.
    Response: While the research that ARS conducted was limited to the 
Mexican fruit fly, we disagree that the treatment of mangoes should be 
approved only for the Mexican fruit fly. The genus Anastrepha contains 
at least 150 species or strains, and it would be impractical for us to 
test them all, especially when other scientific research would preclude 
the need for such testing. The specific fruit flies of concern in 
Mexico and Central America are A. ludens, A. obliqua, A. serpentina, A. 
striata, and the Mexican and Central American populations of the A. 
fraterculus species complex. In Puerto Rico, the U.S. Virgin Islands, 
and the West Indies, the fruit flies of concern are A. suspensa and A. 
obliqua. We have carefully reviewed the available research on this 
topic and have determined that the hot water dip treatment can be used 
to mitigate the risk of fruit flies associated with rounded mangoes 
weighing from 701 and 900 grams from Mexico, Central America, Puerto 
Rico, the U.S. Virgin Islands, and the West Indies.
    We agree with the commenter that an earlier study (Sharp et al. 
[1989a. J. Econ. Entomol. 82(6) 1657-1662]) had shown the West Indian 
fruit fly to be more heat tolerant than the Mexican fruit fly. These 
results were likely influenced by the stage of larva used in the study. 
It is likely that early third-instar larvae were used instead of late 
third-instar larvae; late third-instar larvae appear to tolerate heat 
better than the younger larva. In a subsequent study using a number of 
isolates and late third-instar larvae, ARS research concluded the 
Mexican fruit fly to be consistently more heat tolerant than the West 
Indian fruit fly, especially when heat treated for 75 minutes or 
longer. These results became the basis for their later research on 
large mangoes.
    Comment: The recurring breakdown in treatment compliance at several 
hot water treatment facilities in Mexico reinforces the need for APHIS 
to upgrade its oversight and monitoring of hot water dip treatments and 
other similar treatments. APHIS should provide timely written reports 
on compliance to States and other interested parties.
    Response: We believe that our oversight and notification procedures 
are adequate and responsive. APHIS routinely maintains oversight of 
treatment programs. For mangoes produced in Mexico for export to the 
United States, we monitor trapping and controls in orchards, cut and 
inspect fruit prior to treatment, directly supervise all treatments, 
and inspect the mangoes upon their arrival at ports of entry. Further, 
box marking requirements allow us to trace mangoes back to their 
production area. When pests are intercepted following treatment, APHIS 
investigates possible causes and responds appropriately. Our response 
includes increasing our oversight for as long as necessary and, 
depending on the specific situation, could extend to rejecting 
shipments or terminating the preclearance program at a treatment 
facility. Although we do not routinely notify States and other 
interested parties of all compliance issues, we notify appropriate 
representatives of significant compliance problems, including when live 
fruit flies are found.
    Comment: During 2 consecutive years (2001 and 2002), State 
personnel in California intercepted live Anastrepha larvae in mangoes 
imported from Mexico that were certified as having been treated 
according to the protocol. California officials have not yet been 
informed of the reason for this program failure.
    Response: Our investigations into the fruit fly interceptions in 
2001 and 2002 in treated mangoes from Mexico revealed two possible 
explanations for the presence of larvae in the mangoes. First, we 
believe the fruit may have been hydrocooled immediately after the 
authorized hot water treatment, with no adjustment to the dip time. 
Recent research conducted by ARS indicates that extending the dip time 
by 10 minutes for mangoes that will be hydrocooled within 30 minutes of 
removal from the hot water immersion tank compensates for any reduction 
in efficacy when hydrocooling is used. (Copies of the ARS report are 
available by contacting the person listed under FOR FURTHER INFORMATION 
CONTACT.) We believe that the 10-minute extension of the dip time for 
mangoes that will be hydrocooled within 30 minutes of their removal 
from the hot water immersion tank addresses past failures associated 
with hydrocooling.
    The second possibility is that the mangoes were misrepresented as 
originating from a registered orchard. If the mangoes did originate 
from an unregistered orchard, then it is possible that they originated 
from an orchard with an uncontrolled population of fruit flies, which 
could lower the effectiveness of the hot water dip treatment. In 
response to this possibility, APHIS increased its monitoring, rejected 
shipments, and terminated the preclearance program at the particular 
treatment facility until APHIS determined that appropriate remedial 
actions had been taken to allow the treatment facility to resume its 
operation.
    Comment: Is irradiation approved as an alternative treatment to the 
hot water dip treatment, or is additional research necessary to 
determine whether larger mangoes can undergo irradiation as an 
alternative to the hot water dip treatment?
    Response: Irradiation treatment could be used as an alternative to 
the hot water dip treatment for mangoes if the applicable provisions of 
the regulations in 7 CFR 305.2 have been met. According to Sec.  
319.56-2(k) of ``Subpart--Fruits and Vegetables,'' treatment by 
irradiation in accordance with Sec.  305.2 may be substituted for 
treatments in the PPQ Treatment Manual for the mango seed weevil 
Sternochetus mangiferae (Fabricus) or for one or more of the following 
11 species of fruit flies: A. fraterculus, A. ludens, A. obliqua, A. 
serpentina, A. suspensa, Bactrocera cucurbitae, B. dorsalis, B. tryoni, 
B. jarvisi, B. latifrons, and Ceratitis capitata. Because the ARS 
conducted exhaustive research to determine appropriate commodity-
generic irradiation dose rates for certain pests, additional research 
would not be needed in order for irradiation to be used as an approved 
treatment for rounded mangoes weighing from 701 to 900 grams.

Miscellaneous

    In addition to the changes discussed previously, we are also 
amending Sec.  318.58(a) to replace the obsolete scientific name ``A. 
mombinpraeoptans Sein'' with ``A. obliqua.''
    Therefore, for the reasons given in the proposed rule and in this 
document, we

[[Page 28113]]

are adopting the proposed rule as a final rule, with the changes 
discussed in this document.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register.
    Immediate implementation of this rule is necessary to provide 
relief to those persons who are adversely affected by restrictions we 
no longer find warranted. The shipping season for mangoes from Mexico, 
Central America, Puerto Rico, the U.S. Virgin Islands, and the West 
Indies is in progress. Making this rule effective immediately will 
allow interested producers and others in the marketing chain to benefit 
during this year's shipping season. Therefore, the Administrator of the 
Animal and Plant Health Inspection Service has determined that this 
rule should be effective upon publication in the Federal Register.

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 
process under Executive Order 12866.
    We are amending the PPQ Treatment Manual, which is incorporated by 
reference at 7 CFR 300.1, to provide for the treatment of rounded-
variety mangoes from Mexico, Central America, Puerto Rico, the U.S. 
Virgin Islands, and the West Indies weighing between 701 and 900 grams. 
Prior to this rule, the approved hot water dip treatment for mangoes 
from Mexico, Central America, Puerto Rico, the U.S. Virgin Islands, and 
the West Indies was limited to mangoes weighing 700 grams or less.
    According to FAO, U.S. production of mangoes is supplemented with 
mango imports in order to satisfy the domestic demand, and that demand 
appears to be increasing:

Production, Import, and Export Data for Mangoes From the United States, Mexico, Central America, and West Indies
                                                       \1\
                                                [In metric tons]
----------------------------------------------------------------------------------------------------------------
                    Country and activity                          1997         1998         1999         2000
----------------------------------------------------------------------------------------------------------------
U.S. production (includes Puerto Rico and Guam).............       20,145       20,145       20,145       20,145
U.S. exports (includes Puerto Rico and U.S. Virgin Islands).            0            0            0            0
U.S. imports (includes Puerto Rico and U.S. Virgin Islands).      186,520      197,393      219,144      235,080
Mexico production...........................................    1,500,317    1,473,852    1,508,468    1,559,351
Mexico exports..............................................      187,127      209,426      204,002      206,782
Central America production..................................    1,712,251    1,686,828    1,728,457    1,787,151
Central America exports.....................................      204,177      225,406      220,595      228,653
West Indies production......................................      434,151      449,444      445,397      470,747
West Indies exports.........................................       12,451        8,523       10,828      12,029
----------------------------------------------------------------------------------------------------------------
\1\ Includes Antigua and Barbuda, Cayman Islands, Dominica, Dominican Republic, Grenada, Guadeloupe, Haiti,
  Jamaica, Martinique, Montserrat, Saint Lucia, and Saint Vincent/Grenadines.

    Although FAO production data for mangoes were not available for the 
U.S. Virgin Islands and the Northern Mariana Islands, data were 
reported in the 1998 Census of Agriculture. In 1998, the U.S. Virgin 
Islands harvested 61,621 pounds (approximately 28 metric tons), and the 
Northern Mariana Islands harvested 3,940 pounds (approximately 1.79 
metric tons). FAO data were not available for imports and exports of 
mangoes into and from Guam or the Northern Mariana Islands.
    U.S. mango imports are far greater than domestic production. U.S. 
production of mangoes has primarily been in Puerto Rico and southern 
Florida, with lesser quantities grown in California, Guam, Hawaii, the 
Northern Mariana Islands, and the U.S. Virgin Islands. According to the 
1997 Census of Agriculture, there were 218 mango farms in Florida, 171 
in Hawaii, and 2 in California. According to the 1998 Census of 
Agriculture, there were 255 mango farms in Puerto Rico, 163 in the U.S. 
Virgin Islands, 36 in Guam, and 14 in the Northern Mariana Islands.
    The Regulatory Flexibility Act requires that agencies consider the 
economic effects of their rules on small entities. Whether affected 
entities may be considered small in this case depends on their annual 
gross receipts. Annual receipts of $750,000 or less is the small entity 
criterion set by the Small Business Administration for establishments 
primarily engaged in ``other noncitrus fruit farming'' (North American 
Industry Classification System code 111339). It is likely that most, if 
not all, mango producers in the United States are small entities. 
However, because the U.S. production of mangoes is supplemented with 
imports in order to satisfy the demand, we do not expect this rule will 
have a significant economic effect on domestic producers, large or 
small.
    Mango producers in Puerto Rico and Florida contribute to the bulk 
of the mango production in the United States and are the entities more 
likely to be affected by this rule. Mangoes grown in Puerto Rico are 
shipped to the contiguous United States, exported, or sold locally. By 
providing for the treatment of larger mangoes produced in Puerto Rico, 
this rule may increase opportunities for producers there to ship 
additional fruit to mainland U.S. markets, but we are unable to predict 
the number of producers affected, or the extent to which those 
producers will be affected, by this rule.
    According to information provided by the University of Florida's 
Institute of Food and Agricultural Sciences (IFAS), about 10 to 15 
growers manage the bulk of the producing mango acreage in Florida. 
According to IFAS, about 25 percent of Florida growers produce mangoes 
alone, while the remaining 75 percent are diversified operations 
growing other tropical fruits in addition to mangoes. Florida growers 
occupy niche markets in the State by providing green fruit for 
processing into chutney and other products and by providing fresh, 
untreated, tree-ripened fruit for consumption. The availability of 
larger mangoes from Mexico and Central America in the larger U.S. 
market is expected to have little to no impact on Florida producers who 
occupy those niche markets, as producers in Mexico and Central America 
are not expected to be shipping green fruit for processing and would be 
unable to provide untreated, tree-ripened fruit to U.S. markets.
    The availability of a treatment for larger mangoes of the rounded 
varieties

[[Page 28114]]

is not expected to significantly affect U.S. mango producers, as the 
amount of those larger mangoes likely to be imported from Mexico, 
Central America, and the West Indies would represent a fraction of 
current import levels. These markets are unlikely to be affected by the 
availability of larger mangoes from Mexico, Central America, and the 
West Indies. Therefore, we do not expect that the economic effects of 
this rule on U.S. entities, large or small, will be significant.
    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 12988

    This 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

7 CFR Part 300

    Incorporation by reference, Plant diseases and pests, Quarantine.

7 CFR Part 318

    Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and 
pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin 
Islands.

0
Accordingly, 7 CFR parts 300 and 318 are amended as follows:

PART 300--INCORPORATION BY REFERENCE

0
1. The authority citation for part 300 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.

0
2. In Sec.  300.1, paragraph (a) is amended as follows:
0
a. In paragraph (a)(4), by removing the word ``and''.
0
b. In paragraph (a)(5), by removing the period and adding the word ``; 
and'' in its place.
0
c. By adding a new paragraph (a)(6) to read as follows:


Sec.  300.1  Plant Protection and Quarantine Treatment Manual.

    (a) * * *
    (6) Treatment T102-a, dated March 2003.
* * * * *

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

0
3. The authority citation for part 318 continues to read as follows:

    Authority: 7 U.S.C. 7711, 7712, 7714, 7731, 7754, and 7756; 7 
CFR 2.22, 2.80, and 371.3.


Sec.  318.58  [Amended]

0
4. In Sec.  318.58, paragraph (a) is amended by removing the words 
``mombinpraeoptans Sein'' and adding the word ``obliqua'' in their 
place.


Sec.  318.58-2  [Amended]

0
5. In Sec.  318.58-2, paragraph (b)(1), the entry for mangoes is 
amended by removing the words ``no larger than size 8 (no more than 700 
g each)'' and adding the words ``no larger than 900 grams each'' in 
their place.

    Done in Washington, DC, this 16th day of May, 2003.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-12986 Filed 5-22-03; 8:45 am]
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