[Federal Register Volume 70, Number 124 (Wednesday, June 29, 2005)]
[Rules and Regulations]
[Pages 37249-37254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12814]



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  Federal Register / Vol. 70, No. 124 / Wednesday, June 29, 2005 / 
Rules and Regulations  

[[Page 37249]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 03-059-3]


Mexican Fruit Fly; Interstate Movement of Regulated Articles

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the Mexican fruit fly regulations by removing 
a provision that allows regulated articles to be moved interstate from 
a regulated area without a certificate or limited permit if they are 
moved into States other than commercial citrus-producing States. 
Additionally, we are amending the regulations to remove references to 
quarantined States and to refer to regulated areas as quarantined 
areas. We are also making other changes to the regulations, including 
clarifying that an entity requiring the services of an inspector is 
responsible for the costs of services performed outside of normal 
business hours. These actions are necessary to prevent the interstate 
spread of Mexican fruit fly and make the Mexican fruit fly regulations 
more consistent with our other domestic fruit fly regulations.

DATES: Effective July 29, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. Wayne Burnett, National Program 
Manager, Pest Detection and Management Programs, PPQ, APHIS, 4700 River 
Road Unit 134, Riverdale, MD 20737-1236; (301) 734-4387.

SUPPLEMENTARY INFORMATION:

Background

    The Mexican fruit fly regulations, contained in 7 CFR 301.64 
through 301.64-10 (referred to below as the regulations) were 
established to prevent the spread of the Mexican fruit fly to 
noninfested areas of the United States. The regulations impose 
restrictions on the interstate movement of regulated articles from 
regulated areas.
    On February 18, 2004, we published in the Federal Register (69 FR 
7607-7611, Docket No. 03-059-1) a proposal to amend the regulations by 
removing a provision that allows regulated articles to be moved 
interstate from a regulated area without a certificate or limited 
permit if they are moved into States other than commercial citrus-
producing States. Additionally, we proposed to amend the regulations to 
remove references to quarantined States and to refer to regulated areas 
as quarantined areas. We also proposed to make other changes to the 
regulations, including clarifying that an entity requiring the services 
of an inspector is responsible for the costs of services performed 
outside of normal business hours.
    We solicited comments concerning our proposal for 60 days ending 
April 19, 2004. We subsequently extended the deadline for comments 
until May 17, 2004, in a document published in the Federal Register on 
April 15, 2004 (69 FR 19950, Docket No. 03-059-2). We received 10 
comments by the close of the extended comment period. They were from 
State government officials, growers, industry associations, and an 
attorney. One commenter strongly supported the proposal, while the 
remaining nine commenters raised specific issues or objections. They 
are discussed below by topic.

Pest Pathways and Hosts

    Three commenters stated that a pest risk assessment should first be 
prepared relative to the potential spread of Mexican fruit fly from 
Texas into States other than commercial citrus-producing States.
    We do not believe a pest risk assessment is necessary in this case 
since Mexican fruit fly hosts are well known and known to be present in 
States other than commercial citrus-producing States. For these 
reasons, we did not find that a specific pest risk assessment was 
necessary to support our proposal.
    In 2001, we prepared a document entitled ``Identification of 
Susceptible Areas for the Establishment of Anastrepha spp. Fruit Flies 
in the United States and Analysis of Selected Pathways'' (Sequeira, R., 
L. Millar, and D. Bartels 2001) in connection with another rule. In 
that document, we thoroughly catalogue and analyze the risks associated 
with the shipment of potential Mexican fruit fly hosts, including 
citrus, from infested areas. The document is available on the Internet 
at http://www.aphis.usda.gov/ppq/avocados/ISA.pdf.
    One commenter said that northern States are not at risk for Mexican 
fruit fly infestation because of their cooler climates. The commenter 
further stated that the State of Texas is located at the northernmost 
extreme of the Mexican fruit fly's potential habitat.
    While it is true that the Mexican fruit fly cannot exist year-round 
in northern States, there is potential for Mexican fruit fly survival 
in all States, particularly during the spring and summer months. 
Further, fruit found on the list of regulated articles at Sec.  301.64-
2 may be present in all States between April 15 and October 30. If 
infested regulated articles are shipped during this timeframe from a 
quarantined area into a State other than a commercial citrus-producing 
State where alternate Mexican fruit fly hosts are grown, those other 
host fruits could potentially become infested and subsequently be 
shipped to any State, including commercial citrus-producing States, 
without restriction, thereby increasing the risk of Mexican fruit fly 
being spread to an area with a climate more favorable to the year-round 
establishment of that pest.
    The quarantined area in the State of Texas is located in the Rio 
Grande Valley, in the southern portion of the State. Conditions exist 
that could support damaging populations of Mexican fruit fly in the 
southern parts of Alabama, Arizona, California, Florida, Georgia, 
Louisiana, and Mississippi as well. With the exception of certain 
portions of Florida, all of these susceptible areas lie north of the 
quarantined area in Texas. Further, the States of Alabama, Georgia, and 
Mississippi, where conditions are such that Mexican fruit fly could 
become established, are not listed as commercial citrus-producing 
States at Sec.  301.64(b).
    One commenter stated that the Animal and Plant Health Inspection 
Service (APHIS) needs to fully develop scientifically based lists of 
Mexican fruit

[[Page 37250]]

fly hosts before proposing such a change to the regulations.
    There is a comprehensive list of Mexican fruit fly hosts at Sec.  
301.64-2(a). This represents our most complete and scientific 
determination of the various Mexican fruit fly host fruits.

Treatments

    Two commenters stated that the proposed change to the treatment and 
shipping requirements will cause sizable economic harm to producers and 
treatment facilities as a result of the inability of fumigation 
facilities to expand sufficiently to meet demand for their services.
    We agree that this is a legitimate concern; however, methyl bromide 
fumigation is not the only treatment option available to producers of 
citrus and other regulated articles located in quarantined areas. The 
regulations at Sec.  301.64-10 list several approved treatment options 
for citrus and other regulated articles from quarantined areas. They 
are as follows:
     Cold treatment in accordance with 7 CFR part 305;
     A field, grove, or area located within the quarantined 
area but outside the infested core area 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);
     High temperature forced air in accordance with 7 CFR part 
305; or
     Irradiation, carried out in accordance with the provisions 
listed at Sec.  301.64-10(g).
    We are aware that facilities for cold treatment, forced air 
treatment, and irradiation are not currently available in the three 
Texas counties currently quarantined because of Mexican fruit fly 
(i.e., Cameron, Hidalgo, and Willacy Counties), however the option of 
premises treatments with malathion or spinosad bait spray is available 
and serves to relieve the citrus industry of the economic burden of 
building additional fumigation chambers.
    One commenter questioned why, in discussing the amount of citrus 
that may require treatment from year to year, APHIS assumes an average 
infestation rate instead of considering each infestation individually.
    It is impossible to predict the amount of citrus that will require 
treatment from year to year due to the variability of Mexican fruit fly 
infestations. We acknowledge that this infestation rate may differ from 
year to year, but historical data shows that, on average, 5 to 10 
percent of citrus will require treatment due to Mexican fruit fly 
infestation. Treatments based on the average infestation rate could 
cost the citrus industry $40,000 to $80,000, which is less than 0.5 
percent of the value of the $20 million worth of citrus that will 
require treatment. The worst case scenario, or 100 percent infestation, 
would cost the citrus industry $806,000 in treatment costs. This amount 
represents less than 4 percent of the value of the $20 million worth of 
citrus that would require treatment.
    The commenter also stated that there was a need to investigate the 
potential impacts of the rule on the organic citrus industry in Texas.
    We have already considered these impacts to organic citrus 
producers. They are included in our estimation of the total impact to 
the Texas citrus industry ($40,000 to $80,000 annually). Since 
fumigation is not an available treatment option for organic producers 
and we assume the average infestation rate of 5 to 10 percent, 
treatment of organic citrus would cost approximately $12,000 to $25,000 
annually for premises treatment using spinosad bait spray.
    We consider ``significant impact'' to mean that the cost of a given 
action is equal to or greater than the small business's profit margin 
(5 to 10 percent of annual sales). By these standards, given the size 
and profitability of the citrus industry in Texas, this action does not 
represent a significant impact on a substantial number of small 
entities.
    Two commenters added that, apart from the associated economic 
issues, Texas packinghouses will not be able to expand their operations 
adequately to fumigate citrus moving interstate, as prescribed in the 
regulations, because many of these entities are located near urban 
areas where air quality standards prohibit such expansion. One 
commenter additionally stated that fumigation degrades the quality of 
the fruit, thus affecting its marketability, and that some markets will 
not accept fruit that has undergone fumigation.
    As previously stated, methyl bromide fumigation is not the only 
treatment option available to producers of citrus and other regulated 
articles located in quarantined areas. The alternative treatments 
available are listed above.

Regulatory Procedure

    One commenter said that changes should not be made to the 
regulations solely in response to possible infestation of other hosts 
or transshipment. The commenter pointed out that no past infestations 
have occurred in commercial citrus-producing States as a result of 
regulated articles that originated in Texas.
    The changes we are making to the regulations are precautionary in 
nature. As stated in the proposed rule, all of our other fruit fly 
regulations in 7 CFR part 301 (e.g., Mediterranean fruit fly 
[Sec. Sec.  301.78-301.78-10], Oriental fruit fly [Sec. Sec.  301.93-
301.93-10], etc.), have interstate shipment requirements identical to 
those listed in this document for Mexican fruit fly. In the past 
several years, infestations of Mexican fruit fly in California and 
Florida have emphasized the need for revision to the regulations.
    One commenter stated that the current practice of marking 
containers as non-eligible for shipment to commercial citrus-producing 
States is sufficient to prevent transshipment.
    We disagree with this assessment. According to the California 
Department of Food and Agriculture, fruit repacked in Nevada is 
routinely intercepted at border inspection stations in California. 
Mexican fruit fly larvae have also been discovered in grapefruit that 
had been purchased in Oregon and moved into California. We are also 
concerned with mailed containers of potentially infested fruits, 
particularly those used in gourmet and specialty fruit packages, since 
our regulations have not covered some fruits shipped by such retailers. 
The amended regulations are intended to eliminate those potential pest 
pathways.
    One commenter pointed out that different regulatory processes are 
necessary given the differing circumstances in the growing areas within 
quarantined areas in Texas. The commenter argued that the regulatory 
system in Texas must necessarily differ from those in other States such 
as California, Florida, and Arizona where temporary infestations of 
Mexican fruit fly have historically occurred given that the quarantined 
areas in Texas are adjacent to areas in Mexico that are continually 
infested with many types of fruit fly, including Mexican fruit fly.
    As previously stated in this document and in the proposed rule, the 
aim of this action is to make our Mexican fruit fly regulations 
equivalent to our other fruit fly regulations. The pest risk associated 
with the movement of regulated articles from those areas of Texas where 
Mexican fruit fly is established is equivalent to the pest risk 
associated with the movement of regulated articles from areas in 
California, Florida, or other States where Mexican fruit fly or other 
fruit flies may have been introduced. We have found that a uniform 
approach to quarantine and treatment is most effective in preventing

[[Page 37251]]

the spread of various types of injurious fruit flies to noninfested 
areas of the United States.
    One commenter said that the APHIS-approved preventative release 
program using sterile insect technique that is being used within the 
quarantined areas in Texas is sufficient to prevent the spread of 
Mexican fruit fly to those States that are not commercial citrus-
producing States.
    The preventative release programs (PRP) described by the commenter 
are important tools in our efforts to protect noninfested areas from 
Mexican fruit fly infestation. The current PRP in Texas is part of a 
systems approach that is designed to mitigate the risk associated with 
the movement of host commodities. However, at the current sterile fly 
release levels, the PRP alone does not provide sufficient protection 
against the spread of the Mexican fruit fly. APHIS has submitted a 
request for increased funding for these sterile release programs as 
part of the Agency's 2006 budget in an effort to increase the sterile 
release rates in order to eradicate the Mexican fruit fly from Texas. 
The procedure outlined in this document provides necessary and 
immediate protection against the spread of Mexican fruit fly to 
noninfested areas of the United States.

Mexican Citrus

    Two commenters stated that we should focus our efforts primarily on 
bringing Mexico's fruit fly programs into equivalency with U.S. 
programs. An additional commenter said that no importation of citrus 
from Mexico or any other country should be allowed unless the 
phytosanitary programs in the country of origin are equivalent to those 
used in quarantined areas of the United States.
    We have developed a preventative release program with sterile 
insect technique in Mexico. The United States Department of Agriculture 
(USDA), in cooperation with the Mexican Government, has initiated a 
sterile fly release program along the Rio Grande River as well as in 
nearby urban areas. The program features consolidated U.S./Mexican 
recordkeeping, which will enable us to more effectively synchronize our 
Mexican fruit fly programs on both sides of the U.S./Mexico border.
    In addition, we have drafted a series of foreign fruit fly systems 
approach guidelines that are based primarily on our domestic fruit fly 
programs. This document is a draft intended for broad ranging 
international consideration. It is available on the Internet at http://www.aphis.usda.gov/ppq/manuals/pdf_files/FF%20Guidelines.pdf.
    Further, available treatment options make it possible for fruit to 
be exported to the United States from countries without equivalent 
eradication programs where fruit flies are present. Those importation 
standards and procedures are described in our regulations governing the 
importation of fruits and vegetables at 7 CFR 319.56-2(e) through (h) 
and 319.56-2(j) through (k).
    One commenter objected to our proposal as a result of his 
understanding of consideration we may be giving to proposals from 
Argentina, Chile, and Mexico to ship untreated citrus to States other 
than citrus-producing States, as well as his understanding that we are 
poised to grant these requests.
    When fruit flies are the only pest of concern, shipments of citrus 
from any citrus-producing country or area could be eligible for 
importation in two ways: Fruit from non-fruit-fly-free areas may be 
imported subject to approved treatments, as mentioned previously, and 
fruit from areas that we have determined to be free of a number of 
fruit flies, including Mexican fruit fly, may be imported without 
treatment. Under our import regulations at 7 CFR 319.56-2(e) through 
(g), fruits and vegetables, except those restricted to certain 
countries and districts by special quarantine, may be imported under a 
permit issued once the Administrator determines that certain conditions 
in the country of origin have been met. Among other things, the 
Administrator must determine that the fruit or vegetable is being 
imported from an area that is free of the pest or pests in accordance 
with the criteria for establishing freedom found in International 
Standard for Phytosanitary Measures Publication No. 4, ``Requirements 
for the Establishment of Pest Free Areas,'' which is incorporated by 
reference into the regulations at 7 CFR 300.5. APHIS must approve the 
survey protocol used to determine freedom from the pests of concern.
    We are considering no such proposals as described by the commenter 
from Argentina or Chile. However, we are considering a proposal that 
would allow untreated citrus from specified areas in Mexico to enter 
into areas of the United States that are quarantined because of Mexican 
fruit fly for processing. However, under the proposal we are 
considering, those areas in Mexico would be required to be operating 
under a systems approach for Mexican fruit fly that is the same as our 
domestic programs. Any action on this proposal would come only after we 
published a proposed rule for public comment in the Federal Register.

Miscellaneous

    One commenter characterized the changes we proposed as ``removing 
restrictions'' and stated that there is a need instead for additional 
restrictions, including more quarantine stations.
    We disagree with the commenter's characterization of the changes we 
are making in this final rule. These changes will provide more, not 
less, protection against the interstate spread of the Mexican fruit 
fly.
    Although we are making no changes in this final rule in response to 
the comments discussed above, this final rule does not include two 
editorial changes that had been part of the proposed rule. 
Specifically, we had proposed to update an address that appeared in two 
places in Sec.  301.64-10(g); because that address has been changed in 
another final rule, it is not necessary to follow through with the 
proposed change in this final rule.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule with the 
changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This 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.
    We are amending the Mexican fruit fly regulations by removing a 
provision that allows regulated articles to be moved interstate from a 
regulated area without a certificate or limited permit if they are 
moved into States other than commercial citrus-producing States. 
Additionally, we are amending the regulations to remove references to 
quarantined States and to refer to regulated areas as quarantined 
areas. We are also making other changes to the regulations, including 
clarifying that an entity requiring the services of an inspector is 
responsible for the costs of services performed outside of normal 
business hours. These actions are necessary to prevent the interstate 
spread of Mexican fruit fly and make the Mexican fruit fly regulations 
more consistent with our other domestic fruit fly regulations.
    The Regulatory Flexibility Act requires that agencies specifically 
consider the economic effects of their rules on small entities. We 
expect that the entities most likely to be affected by the changes will 
be citrus growers and

[[Page 37252]]

packinghouses located within quarantined areas. Currently, only 
Cameron, Hidalgo, and Willacy Counties in Texas are designated as 
quarantined areas in the regulations. In 2002, the latest census year, 
citrus fruit was produced on 1,053 farms in Texas. Approximately 98 
percent of citrus farms had gross sales of less than $750,000 and thus 
are considered small entities according to the size standards set by 
the Small Business Administration (SBA).

Impact on Affected Industries in Texas

    As noted previously, three counties in the Lower Rio Grande Valley 
of Texas--Cameron, Hidalgo, and Willacy--are designated as quarantined 
areas. The Mexican fruit fly protocol for Texas calls for a trapping 
program to monitor those areas; under the protocol, the detection of 
one wild Mexican fruit fly triggers the application of bait sprays or 
the aerial release of sterile flies around the fly capture. Fruit 
destined for shipment to commercial citrus-producing States must be 
certified as free of the Mexican fruit fly, either through inspection 
or following the application of an authorized post-harvest treatment.
    Within the quarantined area of Texas there are approximately 540 
citrus growers operating on 30,000 acres producing $31 million worth of 
citrus annually, and 5 packinghouses.\1\ Seventy five percent of the 
citrus growers produce grapefruit while the remaining 25 percent 
produce oranges. Approximately 80 percent of all citrus growers use one 
of the five packinghouses, while the remaining 20 percent sell their 
citrus locally. The five packinghouses currently ship approximately 35 
percent of the citrus to California and 65 percent to States that are 
not commercial citrus-producing States.\2\ Currently only 5 to 10 
percent of all citrus shipped annually to citrus-producing regions 
(mainly California) are treated for Mexican fruit flies using methyl 
bromide fumigation. The cost of treatment generally comprises less than 
4 percent of the citrus wholesale value.\3\
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    \1\ Texas Crop Production Summary with Values 2001-2002. NASS 
USDA report, Jerry Ramirez.
    \2\ John McClung, Texas Citrus Growers Association. Personal 
communication, June 28, 2003.
    \3\ It is estimated that it costs $0.25 to treat a 40-pound 
carton of citrus with a worth of approximately $7.50 to $9.00. 
Source: Robert Martin, Texas Citrus packing facility owner. Personal 
communication, June 28, 2003.
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    This rule requires that all citrus and other host crops moved 
interstate to States that are not commercial citrus-producing States be 
accompanied by a limited permit or certificate issued by an APHIS 
inspector, just as is currently required for host crops moved to 
commercial citrus-producing States. The provisions of this rule will 
primarily affect the packinghouses in the quarantined area in that any 
overtime cost that is incurred by APHIS inspectors for supervising 
post-harvest treatments at the packinghouses will now have to be paid 
for by owners of the facilities. Currently, as a result of the small 
number of inspectors working overtime, this cost is borne by APHIS. It 
is estimated that one APHIS inspector will be required at each of the 
five Texas packinghouses for approximately 16 weeks during the citrus 
harvest period. APHIS has estimated that each of these inspectors will 
work approximately 53 hours in overtime supervision during this 16-week 
period. At $28.11 per hour, each citrus packinghouse will be 
responsible for, on average, $1,500 in overtime charges for the 
inspectors. Assuming these charges stay constant with more stringent 
interstate movement requirements, we estimate that the five Texas 
packinghouses will incur approximately $7,500 per year in total 
overtime charges for citrus fruits moving to commercial citrus-
producing States.
    Similarly, additional charges may also be incurred by producers or 
packinghouses for the services of an APHIS inspector in monitoring the 
post-harvest treatment of citrus for shipment to States other than 
commercial citrus-producing States if services are provided beyond the 
normal working hours. If, as estimated above, the overtime costs 
associated with the interstate movement of the 35 percent of fruit 
moving to commercial citrus-producing States would be $7,500, then a 
rough estimate of the overtime charges that may be incurred in 
connection with the interstate movement of the remaining 65 percent of 
fruit would be $14,000. The total overtime cost to the producers or 
packinghouses for APHIS supervision will be approximately $21,500 per 
year.
    Producers of host crops may also incur additional costs for post-
harvest treatment if they wish to send their fruit to States other than 
commercial citrus-producing States and their fruit is found to be 
infested. Under the rule, host crops moving interstate to such States, 
like fruit moved to commercial citrus-producing States, will be subject 
to treatment if found to be infested with Mexican fruit flies. The 
current fumigation facilities in place can treat approximately 5 to 20 
percent of the citrus moving interstate. The amount of fruit that may 
require treatment as a condition of movement to States other than 
commercial citrus-producing States is not known and will vary with the 
infestation levels. However, assuming that (1) 65 percent of the $31 
million worth of citrus is shipped to these States, (2) that the 
proportion of these fruits that would require treatment would be the 
same percentage as that of fruits currently shipped to commercial 
citrus-producing States (about 5-10 percent), and (3) that treatment 
costs comprise less than 4 percent of the wholesale value of citrus, 
the additional cost of treatment to producers is estimated to be 
$40,000 to $80,000. In sum, based on past infestation rates, the impact 
of this rule on the Texas citrus industry could range between $61,500 
and $101,500 in additional yearly treatment costs and APHIS overtime 
costs for pre- and post-harvest monitoring (table 1).

          Table 1.--Possible Texas Overtime and Treatment Costs
------------------------------------------------------------------------
                                                         Yearly  costs
------------------------------------------------------------------------
Current pre- and post-harvest APHIS monitoring (for               $7,500
 movement to commercial citrus-producing States)....
Future pre- and post-harvest APHIS monitoring (for                14,000
 movement of citrus to non-commercial citrus-
 producing States)..................................
Treatment (methyl bromide)\1\.......................       40,000-80,000
                                                     -------------------
    Total cost......................................     61,500-101,500
------------------------------------------------------------------------
\1\ For some producers, pre-harvest premises treatment with either
  malathion or spinosad bait spray is required under Sec.   301.64-
  10(c); this pre-harvest treatment eliminates the need for post-harvest
  treatment with methyl bromide. The cost of malathion treatment is
  $5.50 per acre, with an average of 20 treatments required (a total per
  acre cost of $110). The cost of spinosad treatment is $18.50 per acre,
  with an average of 20 treatments required (a total per acre cost of
  $368).


[[Page 37253]]

Summary

    This rule could potentially have a negative economic impact on the 
Texas citrus industry, as producers who wish to move regulated 
articles, including citrus fruit, to any State--not just commercial 
citrus-producing States--will now have to obtain a certificate or 
limited permit before moving the articles interstate. Producers and/or 
packinghouses will have to incur the cost of treatment along with 
overtime costs incurred by APHIS in monitoring treatments. The extent 
of the impact will depend on the level of pest infestation.
    It is expected that the percentage of citrus fruits requiring 
treatment for movement to States that are not commercial citrus-
producing States would be the same as that of fruits currently shipped 
to commercial citrus-producing States (i.e., 5-10 percent). The impact 
on the industry is expected to be small ($40,000 to $80,000 in annual 
treatment costs), as the treatment costs comprise less than 4 percent 
of the wholesale value of the citrus and only 5 to 10 percent of the 
citrus requires treatment.\4\
---------------------------------------------------------------------------

    \4\ It is estimated that 65 percent of the $31 million worth of 
Texas citrus produced is transported to States that are not 
commercial citrus producing States. Approximately 5 to 10 percent of 
the $20.15 million worth of fruit may require treatment based on 
past infestation levels. The total treatment cost is about 4 percent 
of the $1 to $2 million, or $40,000 to $81,000.
---------------------------------------------------------------------------

    The Texas citrus industry will also have to incur the estimated 
$7,500 per year in overtime costs associated with PPQ treatment 
supervision at the five packinghouses for fruit moved to commercial 
citrus-producing States. These costs will either be absorbed by the 
industry or passed on to consumers of the fruit. Additionally, it is 
estimated that packinghouses for fruit moved to States other than 
commercial citrus-producing States could also incur overtime costs of 
$14,000. In sum, based on past infestation rates, the impact of this 
proposed rule on the Texas citrus industry could range between $61,500 
and $101,500 in additional treatment costs and overtime charges for 
APHIS pre- and post-harvest monitoring.
    The forgone costs or benefits of averting a Mexican fruit fly 
outbreak are substantial. The establishment of the Mexican fruit fly in 
the United States could cost producers and exporters about $900 million 
in losses annually.\5\ This amount is comprised of (1) field control 
costs, (2) field losses after malathion use, (3) cost of quarantine 
compliance treatments, and (4) losses due to quarantine treatment 
damage. The costs associated with the additional restrictions on the 
interstate movement of regulated articles are surpassed by the benefits 
of averting a large scale Mexican fruit fly outbreak.
---------------------------------------------------------------------------

    \5\ Lottie Erikson (2000). ``Economic Analysis of Options for 
Eradicating Mexican Fruit Fly (Anastrepha ludens) from the Lower Rio 
Grande Valley of Texas.'' Policy and Program Development, APHIS, 
USDA.
---------------------------------------------------------------------------

    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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0238.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 301

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

PART 301--DOMESTIC QUARANTINE NOTICES

0
Accordingly, we are amending 7 CFR part 301 as follows:
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. Section 301.64 is revised to read as follows:


Sec.  301.64  Restrictions on interstate movement of regulated 
articles.

    No person shall move any regulated article interstate from any 
quarantined area except in accordance with this subpart.1,2
---------------------------------------------------------------------------

    \1\ Any properly identified inspector is authorized to stop and 
inspect persons and means of conveyance, and to seize, quarantine, 
treat, apply other remedial measures to, destroy, or otherwise 
dispose of regulated articles as provided in sections 414, 421, and 
434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).
    \2\ Regulations concerning the movement of plant pests, 
including live Mexican fruit flies, in interstate commerce are 
contained in part 330 of this chapter.

0
3. Section 301.64-1 is amended by removing the definition of regulated 
area

[[Page 37254]]

and by adding, in alphabetical order, definitions for departmental 
permit and quarantined area to read as follows:


Sec.  301.64-1  Definitions.

* * * * *
    Departmental permit. A document issued by the Administrator in 
which he or she affirms that the interstate movement of the regulated 
article identified on the document is for scientific or experimental 
purposes and that the regulated article is eligible for interstate 
movement in accordance with Sec.  301.64-4(c).
* * * * *
    Quarantined area. Any State, or any portion of a State, listed in 
Sec.  301.64-3(c) or otherwise designated as a quarantined area in 
accordance with Sec.  301.64-3(b).
* * * * *


Sec.  301.64-3  [Amended]

0
4. Section 301.64-3 is amended as follows:
0
a. In the section heading, by removing the word ``Regulated'' and 
adding the word ``Quarantined'' in its place.
0
b. In paragraph (a), introductory text, by removing the word 
``quarantined'' each time it appears, and by removing the word 
``regulated'' each time it appears and adding the word ``quarantined'' 
in its place.
0
c. In paragraph (a)(2), by removing the word ``regulated'' and adding 
the word ``quarantined'' in its place.
0
d. In paragraph (b), by removing the word ``quarantined'', by removing 
the word ``nonregulated'' both times it appears and adding the word 
``nonquarantined'' in its place, and by removing the words ``regulated 
area'' and adding the words ``quarantined area'' in their place.
0
e. In paragraph (c), introductory text, by removing the word 
``regulated'' and adding the word ``quarantined'' in its place.

0
5. In Sec.  301.64-4, the section heading, the introductory text of the 
section, and paragraph (b) are revised and a new paragraph (c) and an 
OMB citation at the end of the section are added to read as follows:


Sec.  301.64-4  Conditions governing the interstate movement of 
regulated articles from quarantined areas.

    Any regulated article may be moved interstate from a quarantined 
area only if moved under the following conditions:\3\
---------------------------------------------------------------------------

    \3\ Requirements under all other applicable Federal domestic 
plant quarantines and regulations must also be met.
---------------------------------------------------------------------------

* * * * *
    (b) Without a certificate or limited permit, if:
    (1) The regulated article originated outside the quarantined area 
and is either moved in an enclosed vehicle or is completely enclosed by 
a covering adequate to prevent access by Mexican fruit flies (such as 
canvas, plastic, or closely woven cloth) while moving through the 
quarantined area; and
    (2) The point of origin of the regulated article is clearly 
indicated on the waybill, and the enclosed vehicle or the enclosure 
that contains the regulated article is not opened, unpacked, or 
unloaded in the quarantined area; and
    (3) The regulated article is moved through the quarantined area 
without stopping except for refueling or for normal traffic conditions, 
such as traffic lights or stop signs; or
    (c) Without a certificate or limited permit, if the regulated 
article is moved:
    (1) By the United States Department of Agriculture for experimental 
or scientific purposes;
    (2) Pursuant to a departmental permit issued by the Administrator 
for the regulated article;
    (3) Under conditions specified on the departmental permit and found 
by the Administrator to be adequate to prevent the spread of Mexican 
fruit fly; and
    (4) With a tag or label bearing the number of the departmental 
permit issued for the regulated article attached to the outside of the 
container of the regulated article or attached to the regulated article 
itself if not in the container.
    (Approved by the Office of Management and Budget under control 
number 0579-0238).

0
6. In Sec.  301.64-6(a), footnote 6 is revised to read as follows:


Sec.  301.64-6  Compliance agreement and cancellation thereof.

    (a) * * * \6\

----------
    \6\ Compliance agreement forms are available without charge from 
local offices of the Animal and Plant Health Inspection Service, 
Plant Protection and Quarantine. Local offices are listed in 
telephone directories, or on the Internet at http://www.aphis.usda.gov/ppq/.


0
7. In Sec.  301.64-7(a), footnote 7 is revised to read as follows:


Sec.  301.64-7  Assembly and inspection of regulated articles.

    (a) * * * \7\

----------
    \7\ Inspectors are assigned to local offices of Plant Protection 
and Quarantine, which are listed in telephone directories. 
Information concerning such local offices may also be obtained on 
the Internet at http://www.aphis.usda.gov/ppq/.

0
8. Section 301.64-9 is revised to read as follows:


Sec.  301.64-9  Costs and charges.

    The services of an inspector during normal business hours (8 a.m. 
to 4:30 p.m., Monday through Friday, except holidays) will be furnished 
without cost. The user will be responsible for all costs and charges 
arising from inspection and other services provided outside normal 
business hours.


Sec.  301.64-10  [Amended]

0
9. In Sec.  301.64-10, paragraph (g)(9) is amended by removing the word 
``Mediterranean'' and adding the word ``Mexican'' in its place.

    Done in Washington, DC, this 23rd day of June 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-12814 Filed 6-28-05; 8:45 am]
BILLING CODE 3410-34-P