[Federal Register Volume 72, Number 220 (Thursday, November 15, 2007)]
[Proposed Rules]
[Pages 64163-64170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22278]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 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. 220 / Thursday, November 15, 2007 / 
Proposed Rules  

[[Page 64163]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 305 and 318

[Docket No. APHIS-2007-0050]
RIN 0579-AC62


Interstate Movement of Fruit From Hawaii

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the Hawaiian fruits and vegetables 
regulations to allow mangosteen, dragon fruit, melon, pods of cowpea 
and its relatives, breadfruit, jackfruit, and fresh moringa pods to be 
moved interstate from Hawaii under certain conditions. This action 
would allow the movement of these tropical fruits from Hawaii to the 
continental United States while continuing to provide protection 
against the spread of plant pests from Hawaii to the continental United 
States.

DATES: We will consider all comments that we receive on or before 
January 14, 2008.

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-2007-0050 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-
2007-0050, 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-2007-0050.
    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: Mr. David B. Lamb, Import Specialist, 
Commodity Import Analysis and Operations, PPQ, VS, APHIS, 4700 River 
Road Unit 133, Riverdale, MD 20737-1236; (301) 734-8758.

SUPPLEMENTARY INFORMATION:

Background

    The Hawaiian fruits and vegetables regulations, contained in 7 CFR 
318.13 through 318.13-17 (referred to below as the regulations), 
govern, among other things, the interstate movement of fruits and 
vegetables from Hawaii to the continental United States. The 
regulations are necessary to prevent the spread of plant diseases and 
pests that occur in Hawaii but not in the continental United States.
    The regulations in Sec.  318.13-4f identify specific fruits and 
vegetables that are allowed to be moved interstate from Hawaii if, 
among other things, they are treated with irradiation in accordance 
with our phytosanitary treatments regulations in 7 CFR part 305. The 
regulations in part 305 require that:
    1. Irradiation treatment must be carried out only in Hawaii or in 
non-fruit-fly supporting areas of the United States (i.e., States other 
than Alabama, Arizona, California, Florida, Georgia, Kentucky, 
Louisiana, Mississippi, Nevada, New Mexico, North Carolina, South 
Carolina, Tennessee, Texas, or Virginia);
    2. The irradiation treatment facility and treatment protocol must 
be approved by the Animal and Plant Health Inspection Service (APHIS);
    3. In order to be approved, a facility must be able to administer 
the minimum absorbed ionizing radiation doses specified in paragraph 
(a) of Sec.  305.34 to the articles, be constructed so as to provide 
physically separate locations for treated and untreated fruits and 
vegetables, complete a compliance agreement with APHIS, and be 
certified by Plant Protection and Quarantine, APHIS, for initial use 
and annually for subsequent use;
    4. Irradiation treatment must be monitored by an inspector, who may 
be either an APHIS employee or a designated State plant regulatory 
official;
    5. If treated in Hawaii, the fruits and vegetables must be packaged 
in pest-proof cartons and must be sealed with seals that will visually 
indicate if the cartons have been opened. Then, the pallet-load of 
pest-proof cartons must be wrapped, before leaving the irradiation 
facility, in one of the following ways: (1) With polyethylene sheet 
wrap; (2) with net wrapping; or (3) with strapping so that each carton 
on an outside row of the pallet load is constrained by a metal or 
plastic strap. In addition, pallet loads must be labeled before leaving 
the irradiation facility with treatment lot numbers, packaging, and 
treatment facility identification and location, and dates of packing 
and treatment;
    6. If moving to the mainland for treatment, the untreated fruits 
and vegetables must be shipped in shipping containers sealed prior to 
interstate movement with seals that will visually indicate if the 
shipping containers have been opened;
    7. The fruits and vegetables must receive the minimum absorbed 
ionizing radiation doses specified in paragraph (a) of Sec.  305.34;
    8. Dosimetry systems in the irradiation facility must map, control, 
and record the absorbed doses;
    9. The absorbed dose must be measured by a dosimeter that can 
accurately measure the absorbed doses specified in paragraph (a) of 
Sec.  305.34;
    10. The number and placement of dosimeters must be in accordance 
with American Society of Testing and Materials standards;
    11. The irradiation facility must keep records or invoices for each 
treatment lot for a period that exceeds the shelf

[[Page 64164]]

life of the irradiated food product by 1 year and must make those 
records available to an inspector for inspection; and
    12. An inspector will issue a certificate for the interstate 
movement of fruits and vegetables treated and handled in Hawaii in 
accordance with the regulations in Sec.  305.34. An inspector will 
issue a limited permit for the interstate movement of untreated fruits 
and vegetables from Hawaii for irradiation treatment on the continental 
United States in accordance with the regulations in Sec.  305.34.
    Paragraphs (c) and (d) of Sec.  305.34 set forth procedures for 
applying for approval and inspection of a treatment facility, and 
procedures for denial and withdrawal of approval.
    Paragraph (e) of Sec.  305.34 further provides that the U.S. 
Department of Agriculture and its inspectors are not responsible for 
any loss or damage resulting from any treatment prescribed or 
supervised.
    The State of Hawaii has requested that APHIS amend the regulations 
to allow the interstate movement of commercial shipments of Hawaiian 
breadfruit (Artocarpus altilis), fresh pods of cowpea (Vigna 
unguiculata) and its relatives, dragon fruit (species of Hylocereus and 
Selenicereus), jackfruit (Artocarpus heterophyllus), mangosteen 
(Garcinia mangostana), melon (Cucumis melo), and fresh moringa pods 
(Moringa oleifera) following irradiation treatment. All of these 
tropical fruits are currently prohibited from being moved to the 
continental United States from the State of Hawaii.
    As part of our evaluation of that request, we have prepared pest 
risk assessments (PRAs) for the commodities under consideration and a 
risk management document that proposes risk mitigation measures to 
prevent the plant pests associated with each fruit from being 
introduced into the continental United States. Copies of the PRAs and 
the risk management document can be obtained from the person listed 
under FOR FURTHER INFORMATION CONTACT or viewed on the Regulations.gov 
Web site (see ADDRESSES above for instructions for accessing 
Regulations.gov).
    The risk management document considered the protections that would 
be afforded by compliance with the provisions of Sec.  305.34 (i.e., 
the requirements described previously), determined that they were 
appropriate to address the risks presented by some of the pests of 
concern, and suggested some additional mitigations to address the 
remaining identified risks. Based on those suggestions in the risk 
management document, we propose the following measures be applied to 
breadfruit, fresh pods of cowpea and its relatives, dragon fruit, 
jackfruit, mangosteen, melon, and fresh moringa pods moved from the 
State of Hawaii to the continental United States.

Breadfruit and Jackfruit

    The PRA for breadfruit and jackfruit identified 13 quarantine pests 
which could potentially follow the pathway from Hawaii to the 
continental United States. These included several species of fruit fly, 
scale insects, mealybugs, and thrips. The PRA also identified the 
fungus Phytophthora tropicalis as a pathogen likely to follow the 
pathway.
    We have found that irradiation at the 150 gray dose is effective 
against all fruit flies and certain other pests.\1\ To protect against 
the introduction of other insect pests into the continental United 
States, we would require that breadfruit and jackfruit to be treated 
with the 150 gray dose would have to either receive a post-harvest dip 
in accordance with treatment schedule T102-c (warm soapy water and 
brushing) as provided in Sec.  305.42(b), or originate from an orchard 
or growing area that was previously treated with a broad-spectrum 
insecticide during the growing season and a pre-harvest inspection of 
the orchard or growing area found the fruit free of any surface pests 
as prescribed in a compliance agreement. The fruit would also have to 
be inspected after harvest by an APHIS inspector in Hawaii and found 
free of spiraling whitefly (Aleurodicus disperses), inornate scale 
(Aonidiella inornata), green scale (Coccus viridis), red wax scale 
(Ceroplastes rubens), gray pineapple mealybug (Dysmicoccus 
neobrevipes), pink hibiscus mealybug (Maconellicoccus hirsutus), 
spherical mealybug (Nipaecoccus viridis), citrus mealybug (Pseudococcus 
cryptus), and melon thrips (Thrips palmi). The fruit would also have to 
be inspected for signs of thrip damage.
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    \1\ There is no data regarding the radio-tolerance of breadfruit 
and jackfruit at the dose levels used by USDA approved irradiation 
treatments.
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    The 400 gray dose has been found to be effective against all insect 
pests, excluding adults and pupae of the order Lepidoptera, which are 
the stages that generally do not feed on fruit or pods. The PRA for 
breadfruit and jackfruit did not identify any quarantine significant 
Lepidopteran pests likely to follow the pathway. Therefore, breadfruit 
and jackfruit receiving treatment at the 400 gray dose in Hawaii would 
not be required to undergo additional inspection in Hawaii for insect 
pests. Fruit to be moved interstate for treatment on the mainland would 
have to be treated with a minimum absorbed dose of 400 gray.
    However, neither the 150 gray nor the 400 gray dose has been 
determined to be effective against the fungus Phytophthora tropicalis. 
Therefore, in addition to irradiation, breadfruit and jackfruit would 
have to receive a post-harvest fungicidal dip appropriate for the 
fungus Phytophthora tropicalis or originate from an orchard that was 
previously treated with an appropriate fungicide during the growing 
season and a pre-harvest inspection of the orchard found the fruit free 
of symptoms of the fungus.
    Regardless of the irradiation dose applied, the fruit would have to 
be free of leaves and stems. Breadfruit and jackfruit moved into the 
continental United States after treatment in Hawaii would be subject to 
inspection upon arrival in accordance with Sec.  318.13-8 if inspectors 
determine that such inspection is necessary.

Cowpea and Its Relatives

    The PRA for fresh pods of cowpea and its relatives identified 11 
quarantine pests which could potentially follow the pathway from Hawaii 
to the continental United States. These included several species of 
fruit flies, mealybugs, and thrips, as well as cassava red mite 
(Oligonychus biharensis) and several Lepidopteran pests.
    Fresh pods of cowpea and its relatives would have to be treated 
with a minimum absorbed dose of 400 gray because the 150 gray dose is 
not known to be effective against the internal stages of pests of the 
order Lepidoptera. The 400 gray dose is effective against all insect 
pests, excluding adults and pupae of the order Lepidoptera. However, 
neither the 150 gray nor the 400 gray dose have been determined to be 
effective against the cassava red mite. Therefore, fresh pods of cowpea 
and its relatives would have to be inspected after harvest by an APHIS 
inspector in Hawaii and found free of adults and pupae of the order 
Lepidoptera and the cassava red mite.
    The pods would have to be free of leaves and stems. Pods moved into 
the continental United States after treatment in Hawaii would be 
subject to inspection upon arrival in accordance with Sec.  318.13-8 if 
inspectors determine that such inspection is necessary.

Dragon Fruit

    The PRA for dragon fruit identified five quarantine significant 
pests which could potentially follow the pathway from Hawaii to the 
continental United

[[Page 64165]]

States. These included two species of fruit fly, Oriental fruit fly 
(Bactrocera dorsalis), and Mediterranean fruit fly (Ceratitis 
capitata), and three species of mealybug.
    We have found that irradiation at the 150 gray dose is effective 
against all fruit flies and certain other pests. To protect against the 
introduction of other insect pests into the continental United States, 
we would require that dragon fruit to be treated with the 150 gray dose 
would have to either receive a post-harvest dip in accordance with 
treatment schedule T102-c (warm soapy water and brushing) as provided 
in Sec.  305.42(b), or originate from an orchard or growing area that 
was previously treated with a broad-spectrum insecticide during the 
growing season and a pre-harvest inspection of the orchard or growing 
area found the fruit free of any surface pests as prescribed in a 
compliance agreement. We would also require dragon fruit to be treated 
with the 150 gray dose to be inspected after harvest by an APHIS 
inspector in Hawaii and found free of gray pineapple mealybug, pink 
hibiscus mealybug, and citrus mealybug. Sepals, if present on the fruit 
sampled for inspection, would have to be removed during the pre-
departure inspection.
    The 400 gray dose is effective against all insect pests, excluding 
adults and pupae of the order Lepidoptera. The PRA for dragon fruit did 
not identify any Lepidopteran quarantine pests likely to follow the 
pathway. Dragon fruit receiving treatment at the 400 gray dose in 
Hawaii would not be required to undergo additional inspection in Hawaii 
for insect pests. Fruit to be moved interstate for treatment on the 
continental would have to be treated with a minimum absorbed dose of 
400 gray.
    Regardless of the irradiation dose applied, the fruit would have to 
be free of leaves and stems. Dragon fruit moved into the continental 
United States after treatment in Hawaii would be subject to inspection 
upon arrival in accordance with Sec.  318.13-8 if inspectors determine 
that such inspection is necessary.

Mangosteen

    The PRA for mangosteen identified six quarantine pests which could 
potentially follow the pathway from Hawaii to the continental United 
States, including fruit flies, mealybugs, and Thrips florum.
    We have found that irradiation at the 150 gray dose is effective 
against all fruit flies and certain other pests. To protect against the 
introduction of other insect pests into the continental United States, 
we would require that mangosteen to be treated with the 150 gray dose 
would have to either receive a post-harvest dip in accordance with 
treatment schedule T102-c (warm soapy water and brushing) as provided 
in Sec.  305.42(b), or originate from an orchard or growing area that 
was previously treated with a broad-spectrum insecticide during the 
growing season and a pre-harvest inspection of the orchard or growing 
area found the fruit free of any surface pests as prescribed in a 
compliance agreement. We would also require mangosteen to be inspected 
after harvest by an APHIS inspector in Hawaii and found free of gray 
pineapple mealybug, pink hibiscus mealybug, citrus mealybug, and Thrips 
florum. Sepals, if present on the fruit sampled for inspection, would 
have to be removed during the pre-departure inspection.
    The 400 gray dose is effective against all insect pests, excluding 
adults and pupae of the order Lepidoptera. The PRA for mangosteen did 
not identify any quarantine significant Lepidopteran pests likely to 
follow the pathway. Mangosteen receiving treatment at the 400 gray dose 
in Hawaii would not be required to undergo additional inspection for 
insect pests. Fruit to be moved interstate for treatment on the 
continental would have to be treated with a minimum absorbed dose of 
400 gray.
    Regardless of the irradiation dose applied, the fruit would have to 
be free of leaves and stems. Mangosteen moved into the continental 
United States from Hawaii would be subject to inspection upon arrival 
in accordance with Sec.  318.13-8 if inspectors determine that such 
inspection is necessary.

Melon

    The PRA for melon identified four quarantine significant pests 
which could potentially follow the pathway from Hawaii to the 
continental United States, including fruit flies and spiraling 
whitefly.
    We have found that irradiation at the 150 gray dose is effective 
against all fruit flies and certain other pests. To protect against the 
introduction of other insect pests into the continental United States, 
we would require that melons to be treated with the 150 gray dose would 
have to either receive a post-harvest dip in accordance with treatment 
schedule T102-c (warm soapy water and brushing) as provided in Sec.  
305.42(b), or originate from an orchard or growing area that was 
previously treated with a broad-spectrum insecticide during the growing 
season and a pre-harvest inspection of the orchard or growing area 
found the fruit free of any surface pests as prescribed in a compliance 
agreement. We would also require Hawaiian melons to be inspected after 
harvest by an APHIS inspector in Hawaii and found free of spiraling 
whitefly.
    The 400 gray dose is effective against all insect pests, excluding 
adults and pupae of the order Lepidoptera. The PRA for melon did not 
identify any quarantine significant Lepidopteran pests likely to follow 
the pathway. Melons receiving treatment at the 400 gray dose in Hawaii 
would not be required to undergo additional inspection for insect 
pests. Fruit to be moved interstate for treatment on the continental 
would have to be treated with a minimum absorbed dose of 400 gray.
    Regardless of the irradiation dose applied, the fruit would have to 
be washed to remove dirt and be free of leaves and stems. Melons moved 
into the continental United States after treatment in Hawaii would be 
subject to inspection upon arrival in accordance with Sec.  318.13-8 if 
inspectors determine that such inspection is necessary.

Moringa Pods

    The PRA for fresh moringa pods identified seven quarantine 
significant pests which could potentially follow the pathway from 
Hawaii to the continental United States, including fruit flies, 
spiraling whitefly, scale insects, and citrus mealybug.
    We have found that irradiation at the 150 gray dose is effective 
against all fruit flies and certain other pests. To protect against the 
introduction of other insect pests into the continental United States, 
we would require that moringa pods to be treated with the 150 gray dose 
would have to be either receive a post-harvest dip in accordance with 
treatment schedule T102-c (warm soapy water and brushing) as provided 
in Sec.  305.42(b), or originate from an orchard or growing area that 
was previously treated with a broad-spectrum insecticide during the 
growing season and a pre-harvest inspection of the orchard or growing 
area found the fruit free of any surface pests as prescribed in a 
compliance agreement. We would also require moringa pods to be 
inspected after harvest by an APHIS inspector in Hawaii and found free 
of spiraling whitefly, inornate scale, green scale, and citrus 
mealybug.
    The 400 gray dose is effective against all insect pests, excluding 
adults and pupae of the order Lepidoptera. The PRA for moringa pods did 
not identify any Lepidopteran quarantine pests likely to follow the 
pathway. Moringa pods receiving treatment at the 400 gray

[[Page 64166]]

dose in Hawaii would not be required to undergo additional inspection 
or treatment for insect pests. Moringa pods to be moved interstate for 
treatment on the continental would have to be treated with a minimum 
absorbed dose of 400 gray.
    Regardless of the irradiation dose applied, moringa pods moved into 
the continental United States would be subject to inspection upon 
arrival in accordance with Sec.  318.13-8 if inspectors determine that 
such inspection is necessary.
    We believe the mitigations described above will allow these 
tropical fruits to move from Hawaii to the continental United States 
while continuing to prevent plant pests from entering the continental 
United States from Hawaii.

Irradiation Treatments for Three Additional Pests

    Paragraph (a) of Sec.  305.31 currently provides approved 
irradiation doses against the specific plant pests that may be present 
on fruits and vegetables that are imported into the United States. 
Studies by the Department's Agricultural Research Service have found 
that a minimum absorbed dose of 150 gray is adequate to treat 
commodities in which coconut scale (Aspidiotus destructor) \2\ and 
white peach scale (Pseudaulacaspis pentagona) \3\ may be present, and 
that a minimum absorbed dose of 100 gray is adequate to treat 
commodities in which Copitarsia decolora (Lepidoptera: Noctuidae) \4\ 
may be present. Therefore, we propose to amend Sec.  305.31(a) to add 
these irradiation doses for these three plant pests.
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    \2\ Follett, P.A. ``Irradiation as a phytosanitary treatment for 
Aspidiotus destructor Signoret (Homoptera: Diaspididae).'' Journal 
of Economic Entomology 99: 1138-1142.
    \3\ Follett, P.A. ``Irradiation as a phytosanitary treatment for 
White Peach Scale (Homoptera: Diaspididae).'' Journal of Economic 
Entomology 99: 1974-1978.
    \4\ Maldonado, Marisela Huam[aacute]n. ``Final report: Gamma 
irradiation as a quarantine treatment against Copitarsia decolora 
(Guen[eacute]e) in fresh asparagus.'' Copies of this technical 
report can be obtained from the person listed under FOR FURTHER 
INFORMATION CONTACT or viewed on the Regulations.gov Web site (see 
ADDRESSES above for instructions for accessing Regulations.gov).
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Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    This proposed rule would allow the interstate movement mangosteen, 
dragon fruit, melon, fresh pods of cowpea and its relatives, 
breadfruit, jackfruit, and moringa pods from Hawaii after irradiation 
treatment. As a condition of entry, these fruits would have to meet 
certain other inspection and treatment requirements. This action would 
allow for the interstate movement of these fruits into the continental 
United States while continuing to provide protection against the 
introduction of quarantine pests.
    Tropical specialty fruit production in Hawaii has been increasing 
rapidly in recent years.\5\ Hawaii's growers produced and sold an 
estimated 1.5 million pounds of tropical specialty fruit in 2005, the 
highest sales on record and 50 percent more than was produced and sold 
in 2004.\6\ Higher yields from maturing orchards and expansion of the 
harvested area have contributed to the increased production. Sales in 
2005 were valued at $2.7 million, 40 percent more than in 2004.
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    \5\ Tropical specialty fruits include: Abiu, atemoya, 
breadfruit, caimito, canistel, cherimoya, durian, jaboticaba, 
jackfruit, langsat, longan, loquat, litchi, mango, mangosteen, 
persimmon, poha, rambutan, rollina, sapodilla, soursop, starfruit, 
and white sapote.
    \6\ The statistics in this paragraph are taken from USDA 
National Agricultural Statistics Service (NASS), ``Hawaii Tropical 
Specialty Fruits,'' released August 8, 2006. http://www.nass.usda.gov/hi/fruit/tropfrt.pdf.
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    This proposed rule, if finalized, is not expected to result in 
significant economic effects on mainland U.S. producers. The tropical 
specialty fruits included in this proposed rule are not commercially 
grown in the continental United States. The proposed rule would benefit 
Hawaiian producers by providing a broader market for these fruits. 
Their movement from Hawaii would compete against imports from other 
countries, and the only effects for U.S. producers would be the 
benefits that accrue to Hawaiian producers.
    Melons and cowpeas are produced in the continental United States, 
but effects of allowing the interstate movement of melons from Hawaii 
on U.S. mainland producers of these products are expected to be 
minimal.

Melons

    The predominant U.S. melon varieties are cantaloupes, honeydews, 
and watermelons, for which the value of U.S. production was 
approximately $866 million in 2006 (table 1). Over 80 percent of melon 
production takes place in five States. California is the leading 
domestic producer of all melons, accounting for 33 percent of total 
acreage; followed by Texas, with 15 percent; Georgia, with 12 percent; 
Arizona, with 11 percent, and Florida, with 10 percent. The United 
States is a net importer of melons. In 2006, the total value of melons 
imported into the United States was $350 million, compared to $189 
million worth of melons exported.\7\ Nearly all (99 percent) melon 
farmers have receipts of not more than $750,000 annually, and are 
therefore classified by the Small Business Administration (SBA) as 
small entities.
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    \7\ World Trade Atlas 2006.

                               Table 1.--Value of U.S. Melon Production, 2004-2006
----------------------------------------------------------------------------------------------------------------
                         Commodity                                2004              2005              2006
----------------------------------------------------------------------------------------------------------------
Cantaloupe................................................      $322,188,000      $335,818,000      $340,677,000
Honeydews.................................................        92,133,000        91,569,000        90,600,000
Watermelons...............................................       313,217,000       445,917,000       434,861,000
                                                           -----------------------------------------------------
    Total.................................................       727,538,000       873,304,000      866,138,000
----------------------------------------------------------------------------------------------------------------
Source: National Agricultural Statistics Service.

    We do not know the quantity or type of melons that would be moved 
from Hawaii to the continental United States under this rule, but we do 
not expect the quantity to be significant in relation to our total 
domestic supply. For example, the most recent NASS data on the farm 
value of watermelon produced in Hawaii show a value of $2.4 million in 
2004, which is less than 1 percent of the value of U.S. melon imports 
of all types.
    Entry of Hawaiian melons into markets in the continental United 
States is not expected to have a significant

[[Page 64167]]

economic impact on mainland prices or production, especially given the 
irradiation treatment costs and transport costs that merchants of 
Hawaiian melons would have to bear. Moreover, depending on the type of 
melon, relative prices, and quality, shipments from Hawaii to the 
continental United States may at least partially substitute for 
imports, thereby further reducing any effects on mainland producers.

Fresh Cowpea Pods

    The 2002 Census of Agriculture (the most recent year for which data 
are available) states that 151 farms harvested 13,651 acres of cowpeas 
in 2002. Cowpeas, also known as southern peas, blackeye peas, or 
crowder, are not routinely harvested as fresh cowpea pods but are 
allowed to dry before harvesting. Nearly all (99 percent) cowpea 
farmers have receipts of not more than $750,000 annually, and therefore 
are small entities according to SBA standards.
    Fresh cowpea pods are not sold commercially by producers in the 
continental United States; only dried cowpea pods are marketed. Since 
fresh cowpea pods are not generally used as a substitute for dried 
cowpeas, interstate movement of fresh cowpea pods from Hawaii would not 
significantly impact the mainland's commercial production of cowpeas. 
Rather, the fresh cowpea pods from Hawaii are expected to be sold as a 
fresh or frozen vegetable. Immature snapped cowpea pods are used in the 
same way as snap beans, often mixed with other foods.\8\ Green cowpea 
seeds can be boiled as a fresh vegetable.
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    \8\ Alternative Field Crops Manual, ``Cowpea,'' http://www.hort.purdue.edu/newcrop/afcm/cowpea.html.
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    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.

National Environmental Policy Act

    To provide the public with documentation of APHIS' review and 
analysis of any potential environmental impacts associated with 
importation of tropical fruits from Hawaii into the continental United 
States, we have prepared an environmental assessment. The environmental 
assessment was prepared in accordance with: (1) The National 
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et 
seq.), (2) regulations of the Council on Environmental Quality for 
implementing the procedural provisions of NEPA (40 CFR parts 1500-
1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) 
APHIS' NEPA Implementing Procedures (7 CFR part 372).
    The environmental assessment may be viewed on the Regulations.gov 
Web site or in our reading room. (Instructions for accessing 
Regulations.gov and information on the location and hours of the 
reading room are provided under the heading ADDRESSES at the beginning 
of this proposed rule.) In addition, copies may be obtained by calling 
or writing to the individual listed under FOR FURTHER INFORMATION 
CONTACT.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. APHIS-
2007-0050. Please send a copy of your comments to: (1) Docket No. 
APHIS-2007-0050, Regulatory Analysis and Development, PPD, APHIS, 
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, 
and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and 
Independence Avenue, SW., Washington, DC 20250. A comment to OMB is 
best assured of having its full effect if OMB receives it within 30 
days of publication of this proposed rule.
    This proposed rule would amend the Hawaiian fruit and vegetable 
regulations to allow mangosteen, dragon fruit, pods of cowpea and its 
relatives, breadfruit, jackfruit, and fresh moringa pods to be moved 
interstate from Hawaii under certain conditions. This action would 
allow the movement of these tropical fruits from Hawaii to the 
continental United States while continuing to provide protection 
against the spread of plant pest from Hawaii to the continental United 
States.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.2000 hours per response.
    Respondents: Importers of fruits and vegetables.
    Estimated annual number of respondents: 110.
    Estimated annual number of responses per respondent: 24.7636.
    Estimated annual number of responses: 2,724.
    Estimated total annual burden on respondents: 545 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related

[[Page 64168]]

to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' 
Information Collection Coordinator, at (301) 734-7477.

Lists of Subjects

7 CFR Part 305

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

7 CFR Part 318

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

    Accordingly, we propose to amend 7 CFR parts 305 and 318 to read 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 U.S.C. 2.22, 2.80, and 371.3.

    2. In Sec.  305.31, paragraph (a), the table is amended by adding 
new entries, in alphabetical order, for ``Aspidiotus destructor'', 
``Copitarsia decolora'', and ``Pseudaulacaspis pentagona'' to read as 
follows:


Sec.  305.31  Irradiation treatment of imported regulated articles for 
certain plant pests.

    (a) * * *

 Irradiation for Certain Plant Pests in Imported Regulated Articles \1\
------------------------------------------------------------------------
                                                                   Dose
           Scientific name                    Common name         (gray)
------------------------------------------------------------------------
 
                              * * * * * * *
Aspidiotus destructor................  Coconut scale...........      150
 
                              * * * * * * *
Copitarsia decolora..................  (No common name)........      100
 
                              * * * * * * *
Pseudaulacaspis pentagona............  White peach scale.......      150
 
                              * * * * * * *
------------------------------------------------------------------------
\1\ There is a possibility that some cut flowers could be damaged by
  such irradiations. See paragraph (n) of this section.

    3. Section 305.34 is amended as follows:
    a. By adding, in alphabetical order, new entries to the table in 
paragraph (a) for breadfruit, cowpea pods (and its relatives), dragon 
fruit, jackfruit, mangosteen, melon, and moringa pods to read as set 
forth below.
    b. In the table in paragraph (a), by revising footnote 1 and adding 
a new footnote 2 to read as set forth below.
    c. By revising paragraph (b)(7) to read as set forth below.


Sec.  305.34  Irradiation treatment of certain regulated articles from 
Hawaii, Puerto Rico, and the U.S. Virgin Islands.

    (a) * * *

      Irradiation for Plant Pests in Hawaiian Fruits and Vegetables
------------------------------------------------------------------------
                Commodity                           Dose (gray)
------------------------------------------------------------------------
 
                                * * * * *
Breadfruit 1 2...........................  400 or 150.
 
                                * * * * *
Cowpea pods (and its relatives) \1\......  400.
 
                                * * * * *
Dragon fruit 1 2.........................  400 or 150.
 
                                * * * * *
Jackfruit 1 2............................  400 or 150.
 
                                * * * * *
Mangosteen 1 2...........................  400 or 150.
Melon 1 2................................  400 or 150.
 
                                * * * * *
Moringa pods 1 2.........................  400 or 150.
 
                               * * * * *
------------------------------------------------------------------------
\1\ Breadfruit, cowpea pods, dragon fruit, jackfruit, litchi,
  mangosteen, melon, moringa pods, and sweetpotato are also subject to
  the additional inspection and treatment requirements in paragraph
  (b)(7) of this section.
\2\ Breadfruit, dragon fruit, jackfruit, mangosteen, melon, and moringa
  pods moving to the continental United States for treatment under
  limited permit in accordance with the requirements of paragraph
  (b)(7)(ii) of this section must be treated with the 400 gray dose.

* * * * *
    (b) * * *
    (7)(i) Certification on basis of treatment. A certificate shall be 
issued by an inspector for the movement of articles from Hawaii that 
have been treated and handled in accordance with this section.
    (A) To be certified for interstate movement under this section, 
litchi from Hawaii must be inspected in Hawaii and found free of the 
litchi fruit moth (Cryptophlebia spp.) and other plant pests by an 
inspector before undergoing irradiation treatment in Hawaii for fruit 
flies.
    (B) To be certified for interstate movement under this section, 
sweetpotato from Hawaii must be inspected in Hawaii and found free of 
the gray pineapple mealybug (Dysmicoccus neobrevipes), and the Kona 
coffee-root knot nematode (Meloidogyne konaensis) by an inspector 
before undergoing irradiation treatment in Hawaii. In addition, 
sweetpotato from Hawaii to be treated with irradiation at a dose of 150 
Gy must be sampled, cut, and inspected in Hawaii and found to be free 
of the ginger weevil (Elytrotreinus subtruncatus) by an inspector 
before undergoing irradiation treatment in Hawaii. Sampling, cutting, 
and inspection must be performed under conditions that will prevent any 
pests that may emerge from the sampled sweetpotatoes from infesting any 
other sweetpotatoes intended for interstate movement in accordance with 
this section.

[[Page 64169]]

    (C) To be certified for interstate movement under this section, 
breadfruit and jackfruit from Hawaii must be inspected in Hawaii and 
found free of spiraling whitefly (Aleurodicus dispersus), inornate 
scale (Aonidiella inornata), red wax scale (Ceroplastes rubens), green 
scale (Coccus viridis), gray pineapple mealybug (Dysmicoccus 
neobrevipes), pink hibiscus mealybug (Maconellicoccus hirsutus), 
spherical mealybug (Nipaecoccus viridis), citrus mealybug (Pseudococcus 
cryptus), melon thrips (Thrips palmi) and signs of thrip damage before 
undergoing irradiation treatment in Hawaii at the 150 gray dose. Fruit 
receiving the 150 gray dose also must either receive a post-harvest dip 
in accordance with treatment schedule T102-c as provided in Sec.  
305.42(b) or originate from an orchard or growing area that was 
previously treated with a broad-spectrum insecticide during the growing 
season and a pre-harvest inspection of the orchard or growing area 
found the fruit free of any surface pests as prescribed in a compliance 
agreement. Post-treatment inspection in Hawaii is not required if the 
fruit undergoes irradiation treatment at the 400 gray dose. Regardless 
of irradiation dose, the fruit must be free of stems and leaves and 
must originate from an orchard that was previously treated with a 
fungicide appropriate for the fungus Phytophthora tropicalis during the 
growing season and the fruit must be inspected prior to harvest and 
found free of the fungus or, after irradiation treatment, must receive 
a post-harvest fungicidal dip appropriate for Phytophthora tropicalis.
    (D) To be certified for interstate movement under this section, 
fresh pods of cowpea and its relatives from Hawaii must be inspected in 
Hawaii and found free of the cassava red mite (Oligonychus biharensis) 
and adults and pupae of the order Lepidoptera before undergoing 
irradiation treatment. The pods must be free of stems and leaves.
    (E) To be certified for interstate movement under this section, 
dragon fruit from Hawaii presented for inspection must have the sepals 
removed and must be inspected in Hawaii and found free of gray 
pineapple mealybug (Dysmicoccus neobrevipes), pink hibiscus mealybug 
(Maconellicoccus hirsutus), and citrus mealybug (Pseudococcus cryptus) 
before undergoing irradiation treatment in Hawaii at the 150 gray dose. 
Fruit receiving the 150 gray dose also must either receive a post-
harvest dip in accordance with treatment schedule T102-c as provided in 
Sec.  305.42(b) or originate from an orchard or growing area that was 
previously treated with a broad-spectrum insecticide during the growing 
season and a pre-harvest inspection of the orchard or growing area 
found the fruit free of any surface pests as prescribed in a compliance 
agreement. Post-treatment inspection in Hawaii is not required if the 
fruit undergoes irradiation treatment at the 400 gray dose. Regardless 
of irradiation dose, the fruit must be free of stems and leaves.
    (F) To be certified for interstate movement under this section, 
mangosteen from Hawaii must have the sepals removed and must be 
inspected in Hawaii and found free of gray pineapple mealybug 
(Dysmicoccus neobrevipes), pink hibiscus mealybug (Maconellicoccus 
hirsutus), citrus mealybug (Pseudococcus cryptus), and Thrips florum 
before undergoing irradiation treatment in Hawaii at the 150 gray dose. 
Fruit receiving the 150 gray dose also must either receive a post-
harvest dip in accordance with treatment schedule T102-c as provided in 
Sec.  305.42(b) or originate from an orchard or growing area that was 
previously treated with a broad-spectrum insecticide during the growing 
season and a pre-harvest inspection of the orchard or growing area 
found the fruit free of any surface pests as prescribed in a compliance 
agreement. Post-treatment inspection in Hawaii is not required if the 
fruit undergoes irradiation treatment at the 400 gray dose. Regardless 
of irradiation dose, the fruit must be free of stems and leaves.
    (G) To be certified for interstate movement under this section, 
melon from Hawaii must be inspected in Hawaii and found free of 
spiraling whitefly (Aleurodicus dispersus) before undergoing 
irradiation treatment in Hawaii at the 150 gray dose. Fruit receiving 
the 150 gray dose also must either receive a post-harvest dip in 
accordance with treatment schedule T102-c as provided in Sec.  
305.42(b) or originate from an orchard or growing area that was 
previously treated with a broad-spectrum insecticide during the growing 
season and a pre-harvest inspection of the orchard or growing area 
found the fruit free of any surface pests as prescribed in a compliance 
agreement. Post-treatment inspection in Hawaii is not required if the 
fruit undergoes irradiation treatment at the 400 gray dose. Regardless 
of irradiation dose, melons must be washed to remove dirt and must be 
free of stems and leaves.
    (H) To be certified for interstate movement under this section, 
moringa pods from Hawaii must be inspected in Hawaii and found free of 
spiraling whitefly (Aleurodicus dispersus), inornate scale (Aonidiella 
inornata), green scale (Coccus viridis), and citrus mealybug 
(Pseudococcus cryptus) before undergoing irradiation treatment in 
Hawaii at the 150 gray dose. Fruit receiving the 150 gray dose also 
must either receive a post-harvest dip in accordance with treatment 
schedule T102-c as provided in Sec.  305.42(b) or originate from an 
orchard or growing area that was previously treated with a broad-
spectrum insecticide during the growing season and a pre-harvest 
inspection of the orchard or growing area found the fruit free of any 
surface pests as prescribed in a compliance agreement. Post-treatment 
inspection in Hawaii is not required if the fruit undergoes irradiation 
treatment at the 400 gray dose.
    (ii) Limited permit. A limited permit shall be issued by an 
inspector for the interstate movement of untreated articles from Hawaii 
into the continental United States for treatment in accordance with 
this section.
    (A) To be eligible for a limited permit under this section, 
untreated litchi from Hawaii must be inspected in Hawaii and found free 
of the litchi fruit moth (Cryptophlebia spp.) and other plant pests by 
an inspector.
    (B) To be eligible for a limited permit under this section, 
untreated sweetpotato from Hawaii must be inspected in Hawaii and found 
free of the gray pineapple mealybug (Dysmicoccus neobrevipes) and the 
Kona coffee-root knot nematode (Meloidogyne konaensis) by an inspector. 
In addition, sweetpotato from Hawaii to be treated with irradiation at 
a dose of 150 Gy must be sampled, cut, and inspected in Hawaii and 
found free of the ginger weevil (Elytrotreinus subtruncatus) by an 
inspector. Sampling, cutting, and inspection must be performed under 
conditions that will prevent any pests that may emerge from the sampled 
sweetpotatoes from infesting any other sweetpotatoes intended for 
interstate movement in accordance with this section.
    (C) To be eligible for a limited permit under this section, 
breadfruit and jackfruit from Hawaii must be free of stems and leaves 
and must originate from an orchard that was previously treated with a 
fungicide appropriate for the fungus Phytophthora tropicalis during the 
growing season and the fruit must be inspected prior to harvest and 
found free of the fungus or, after irradiation treatment, must receive 
a post-harvest fungicidal dip appropriate for Phytophthora tropicalis.
    (D) To be eligible for a limited permit under this section, fresh 
pods of cowpea and its relatives from Hawaii must be

[[Page 64170]]

free of stems and leaves and must be inspected in Hawaii and found free 
of the cassava red mite (Oligonychus biharensis) and adults and pupae 
of the order Lepidoptera.
* * * * *

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

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

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


Sec.  318.13-4f  [Amended]

    5. Section 318.13-4f is amended as follows:
    a. By adding the word ``breadfruit,'' before the words ``Capsicum 
spp. (peppers)''.
    b. By adding the words ``cowpea pods,'' before the words 
``Cucurbita spp. (squash)''.
    c. By adding the word ``dragon fruit,'' before the word 
``eggplant''.
    d. By adding the word ``jackfruit,'' before the word ``litchi''.
    e. By adding the words ``mangosteen, melon, moringa pods'' before 
the word ``papaya''.

    Done in Washington, DC, this 8th day of November 2007.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E7-22278 Filed 11-14-07; 8:45 am]
BILLING CODE 3410-34-P