[Federal Register Volume 69, Number 181 (Monday, September 20, 2004)]
[Rules and Regulations]
[Pages 56157-56159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21084]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 69, No. 181 / Monday, September 20, 2004 / 
Rules and Regulations  

[[Page 56157]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 02-096-3]


Oriental Fruit Fly; Designation of Quarantined Area

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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

SUMMARY: We are amending the Oriental fruit fly regulations by 
quarantining a portion of Orange County, CA, and restricting the 
interstate movement of regulated articles from that area. This action 
is necessary on an emergency basis to prevent the spread of the 
Oriental fruit fly into noninfested areas of the United States. We are 
also amending the regulations to provide for the use of spinosad bait 
spray as an alternative treatment for premises. This new treatment 
option will provide an alternative to the use of malathion bait spray 
for premises that produce regulated articles within the quarantined 
area but outside the infested core area.

DATES: This interim rule was effective September 14, 2004. We will 
consider all comments that we receive on or before November 19, 2004.

ADDRESSES: You may submit comments by any of the following methods:
     EDOCKET: Go to http://www.epa.gov/feddocket to submit or 
view public comments, access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Once you have entered 
EDOCKET, click on the ``View Open APHIS Dockets'' link to locate this 
document.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 02-096-3, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 02-096-3.
     E-mail: Address your comment to 
[email protected]. Your comment must be contained in the body 
of your message; do not send attached files. Please include your name 
and address in your message and ``Docket No. 02-096-3'' on the subject 
line.
     Agency Web Site: Go to http://www.aphis.usda.gov/ppd/rad/cominst.html for a form you can use to submit an e-mail comment through 
the APHIS Web site.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this 
docket and submitting comments.
    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: You may view APHIS documents published in the 
Federal Register and related information, including the names of groups 
and individuals who have commented on APHIS dockets, on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. Wayne D. Burnett, National Fruit 
Fly Program Manager, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, 
MD 20737-1236; (301) 734-4387.

SUPPLEMENTARY INFORMATION:

Background

    The Oriental fruit fly, Bactrocera dorsalis (Hendel), is a 
destructive pest of citrus and other types of fruit, nuts, vegetables, 
and berries. The short life cycle of the Oriental fruit fly allows 
rapid development of serious outbreaks, which can cause severe economic 
losses. Heavy infestations can cause complete loss of crops.
    The Oriental fruit fly regulations, contained in 7 CFR 301.93 
through 301.93-10 (referred to below as the regulations), were 
established to prevent the spread of the Oriental fruit fly into 
noninfested areas of the United States.
    Section 301.93-3(a) provides that the Administrator will list as a 
quarantined area each State, or portion of a State, in which the 
Oriental fruit fly has been found by an inspector, in which the 
Administrator has reason to believe that the Oriental fruit fly is 
present, or that the Administrator considers necessary to regulate 
because of its proximity to the Oriental fruit fly or its 
inseparability for quarantine purposes from localities in which the 
Oriental fruit fly has been found. The regulations impose restrictions 
on the interstate movement of regulated articles from the quarantined 
areas. Quarantined areas are listed in Sec.  301.93-3(c).
    Less than an entire State will be designated as a quarantined area 
only if the Administrator determines that: (1) The State has adopted 
and is enforcing restrictions on the interstate movement of the 
regulated articles that are substantially the same as those imposed on 
the interstate movement of regulated articles and (2) the designation 
of less than the entire State as a quarantined area will prevent the 
interstate spread of the Oriental fruit fly.
    Recent trapping surveys by inspectors of California State and 
county agencies and by inspectors of the Animal and Plant Health 
Inspection Service reveal that a portion of Orange County, CA, is 
infested with the Oriental fruit fly.
    State agencies in California have begun an intensive Oriental fruit 
fly eradication program in the quarantined areas of Orange County. 
Also, California has taken action to restrict the intrastate movement 
of regulated articles from the quarantined area.
    Accordingly, to prevent the spread of the Oriental fruit fly to 
noninfested areas of the United States, we are amending the regulations 
in Sec.  301.93-3 by designating a portion of Orange County, CA, as a 
quarantined area for the Oriental fruit fly. The quarantined area is 
described in the rule portion of this document.

Prior Designation of Quarantined Area

    In an interim rule effective on January 13, 2004, and published in 
the Federal Register on January 20, 2004 (69 FR 2653-2655, Docket No. 
02-096-2), we

[[Page 56158]]

quarantined portions of Los Angeles and San Bernardino Counties, CA, 
and restricted the interstate movement of regulated articles from the 
quarantined area. Based on trapping surveys by inspectors of California 
State and county agencies, the State of California lifted its interior 
quarantine on May 21, 2004, based on the determination that the 
Oriental fruit fly had been eradicated from the quarantined area. In 
these types of situations, we normally follow the State's action by 
lifting the corresponding Federal quarantine on the particular area; 
however, in this case that did not occur. Therefore, in this interim 
rule, we are removing the quarantined area established in our January 
2004 interim rule. The description of the new quarantined area 
discussed previously replaces the description of the January 2004 
quarantined area in Sec.  301.93-3(c).

Treatments

    Section 301.93-10 of the regulations lists treatments for regulated 
articles. Regulated articles treated in accordance with this section 
may be moved interstate from a quarantined area to any destination. 
Section 301.93-10 contains treatments for specified fruits, treatments 
for soil within the treeline of plants producing specified fruits, and 
treatments for premises (fields, groves, or areas) that are within a 
quarantined area but outside the infested core area.
    Under Sec.  301.93-10(b), premises that are located within the 
quarantined area but outside the infested core area, and that produce 
regulated articles, must receive regular treatments with malathion bait 
spray. We are amending Sec.  301.93-10(b) to include a new alternative 
chemical treatment for premises. The new chemical treatment is a 
spinosad bait spray. Without spinosad bait spray, the only treatment 
made available by the regulations for premises has been malathion bait 
spray. Spinosad bait spray must be applied by aircraft or ground 
equipment at a rate of 0.01 oz of a USDA-approved spinosad formulation 
and 48 oz of protein hydrolysate per acre. For ground applications, the 
mixture may be diluted with water to improve coverage. The spinosad 
bait spray provisions we are adding to the regulations in Sec.  301.93-
10(b) are the same as those currently found in the Mexican fruit fly 
regulations in Sec.  301.64-10(c), the West Indian fruit fly 
regulations in Sec.  301.98-10(b), and the sapote fruit fly regulations 
in Sec.  301.99-10(c).

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
Oriental fruit fly from spreading to noninfested areas of the United 
States and to provide an alternative treatment for premises. Under 
these circumstances, the Administrator has determined that prior notice 
and opportunity for public comment are contrary to public interest and 
that there is good cause under 5 U.S.C. 553 for making this rule 
effective less than 30 days after publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review under 
Executive Order 12866.
    This rule amends the Oriental fruit fly regulations by adding a 
portion of Orange County, CA, to the list of quarantined areas. The 
regulations restrict the interstate movement of regulated articles from 
a quarantined area. This rule also amends the regulations by including 
a new alternative chemical treatment for premises located within the 
quarantined area but outside the infested core area.
    The quarantined area encompasses a relatively small area of Orange 
County, CA, covering approximately 116 square miles. County records 
indicated there are 9 growers, 4 nurseries, 24 mobile vendors, 3 
farmers markets, 8 fruit sellers, 1 distributor, 2 haulers, 2 
processors, 1 swap meet, and 34 yard and tree maintenance firms within 
the quarantined area that may be affected by this rule.
    We expect that any small entities located within the quarantined 
area that sell regulated articles do so primarily for local intrastate, 
not interstate, movement, so the effect, if any, of this rule on those 
entities appears to be minimal. The effect on any small entities that 
may move regulated articles interstate will be minimized by the 
availability of various treatments that, in most cases, will allow 
these small entities to move regulated articles interstate with very 
little additional cost.
    Currently, growers must treat premises that are within the 
quarantined area but outside the infested core area and that produce 
regulated articles with regular treatments of malathion bait spray. 
This rule provides for the use of spinosad bait spray for these 
premises as an alternative to malathion. Spinosad bait spray has been 
added to the list of approved treatment methods to help meet the 
requirements of organic growers. Growers and nurseries in regulated 
areas that choose to use spinosad bait spray may be affected by this 
change, as the costs of applying spinosad bait spray are greater than 
the costs of applying malathion bait spray. No growers or nurseries 
will be required to use spinosad bait spray as a result of its addition 
to the regulations.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

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

Executive Order 12988

    This 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.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this interim rule. The site-specific 
environmental assessment provides a basis for the conclusion that the 
implementation of integrated pest management to eradicate the Oriental 
fruit fly will not have a significant impact on the quality of the 
human environment. Based on the finding of no significant impact, the 
Administrator of the Animal and Plant Health Inspection Service has 
determined that an environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were 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

[[Page 56159]]

(7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR 
part 372).
    The environmental assessment and finding of no significant impact 
are available for viewing on the Internet at http://www.aphis.usda.gov/ppq/ep/ff. Copies of the environmental assessment and finding of no 
significant impact are also available for public inspection in our 
reading room (information on the location and hours of the reading room 
is provided under the heading ADDRESSES at the beginning of this 
proposed rule). In addition, copies may be obtained by writing to the 
individual listed under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

    This interim rule contains no information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 301

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

0
Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772; 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).

0
2. In Sec.  301.93-3, paragraph (c) is revised to read as follows:


Sec.  301.93-3  Quarantined areas.

* * * * *
    (c) The areas described below are designated as quarantined areas:

CALIFORNIA

    Orange County. That portion of Orange County in the Santa Ana area 
bounded by a line as follows: Beginning at the intersection of South 
Euclid Street and West Broadway; then east on West Broadway to East 
Broadway; then east on East Broadway to South East Street; then 
northwest on South East Street to East Lincoln Avenue; then east on 
East Lincoln Avenue to West Lincoln Avenue; then east on West Lincoln 
Avenue to East Lincoln Avenue; then east on East Lincoln Avenue to Nohl 
Ranch Road; then east and northeast on Nohl Ranch Road to South 
Imperial Highway; then south and southwest on South Imperial Highway to 
Edison Ridge Road; then east and northeast on Edison Ridge Road to Nohl 
Ranch Road; then southeast on Nohl Ranch Road to Serrano Avenue; then 
southwest on Serrano Avenue to northern boundary of Santiago Oaks 
Regional Park; then east, southwest, west, south, and west along the 
park boundary line to Santiago Creek; then southeast along Santiago 
Creek to the boundary of Irvine Regional Park; then northeast, 
southeast, south, southeast, northeast, southeast, south, southwest, 
and northwest along the park boundary line to Peters Canyon Road; then 
south and southwest on Peters Canyon Road to Santiago Canyon Road; then 
southeast on Santiago Canyon Road to the Eastern Transportation 
Corridor; then south along an imaginary line from the intersection of 
Santiago Canyon Road and the Eastern Transportation Corridor to the 
northernmost point of Culver Drive; then southwest on Culver Drive to 
Walnut Avenue; then northwest on Walnut Avenue to Jamboree Road; then 
southwest on Jamboree Road to Alton Parkway; then northwest on Alton 
Parkway to Red Hill Avenue; then southwest on Red Hill Avenue to 
Macarthur Boulevard; then northwest on Macarthur Boulevard to State 
Highway 55; then southwest on State Highway 55 to Interstate Highway 
405; then west and northwest on Interstate Highway 405 to Magnolia 
Street; then north on Magnolia Street to McFadden Avenue; then west on 
McFadden Avenue to Newland Street; then north on Newland Street to 
Garden Grove Boulevard; then east on Garden Grove Boulevard to Magnolia 
Street; then north on Magnolia Street to Magnolia Avenue; then north on 
Magnolia Avenue to South Magnolia Avenue; then north on South Magnolia 
Avenue to West Ball Road; then east on West Ball Road to Ball Road; 
then east on Ball Road to South Euclid Street; then north on South 
Euclid Street to the point of the beginning.

0
3. In Sec.  301.93-10, paragraph (b) is revised to read as follows:


Sec.  301.93-10  Treatments.

* * * * *
    (b) Premises. A field, grove, or area that is located within the 
quarantined area but outside the infested core area, and that produces 
regulated articles, must receive regular treatments with either 
malathion or spinosad bait spray. These treatments must take place at 
6-to 10-day intervals, starting a sufficient time before harvest (but 
not less than 30 days before harvest) to allow for completion of egg 
and larvae development of the Oriental fruit fly. Determination of the 
time period must be based on the day degrees model for the Oriental 
fruit fly. Once treatment has begun, it must continue through the 
harvest period. The malathion bait spray treatment must be applied by 
aircraft or ground equipment at a rate of 2.4 oz technical grade 
malathion and 9.6 oz of protein hydrolysate per acre. The spinosad bait 
spray treatment must be applied by aircraft or ground equipment at a 
rate of 0.01 oz of a USDA-approved spinosad formulation and 48 oz of 
protein hydrolysate per acre. For ground applications, the mixture may 
be diluted with water to improve coverage.
* * * * *

    Done in Washington, DC, this 14th day of September, 2004.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 04-21084 Filed 9-17-04; 8:45 am]
BILLING CODE 3410-34-P