[Federal Register Volume 71, Number 29 (Monday, February 13, 2006)]
[Rules and Regulations]
[Pages 7393-7395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1302]



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 Rules and Regulations
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  Federal Register / Vol. 71, No. 29 / Monday, February 13, 2006 / 
Rules and Regulations  

[[Page 7393]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2005-0116]


Mediterranean Fruit Fly; Add Portions of Los Angeles, San 
Bernardino, and Santa Clara Counties, CA, to the List of Quarantined 
Areas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the Mediterranean fruit fly regulations by 
adding portions of Los Angeles, San Bernardino, and Santa Clara 
Counties, CA, to the list of quarantined areas and restricting the 
interstate movement of regulated articles from those areas. This action 
is necessary on an emergency basis to prevent the spread of the 
Mediterranean 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 February 7, 2006. We will 
consider all comments that we receive on or before April 14, 2006.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the ``Search for Open Regulations'' box, 
select ``Animal and Plant Health Inspection Service'' from the agency 
drop-down menu, then click on ``Submit.'' In the Docket ID column, 
select APHIS-2005-0116 to submit or view public comments and to view 
supporting and related materials available electronically. After the 
close of the comment period, the docket can be viewed using the 
``Advanced Search'' function in Regulations.gov.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. APHIS-
2005-0116, 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-2005-0116.
    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. 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 Mediterranean fruit fly (Medfly, Ceratitis capitata 
[Wiedemann]) is one of the world's most destructive pests of numerous 
fruits and vegetables. The Medfly can cause serious economic losses. 
Heavy infestations can cause complete loss of crops, and losses of 25 
to 50 percent are not uncommon. The short life cycle of this pest 
permits the rapid development of serious outbreaks.
    The Mediterranean fruit fly regulations, contained in 7 CFR 301.78 
through 301.78-10 (referred to below as the regulations), were 
established to prevent the spread of Medfly into noninfested areas of 
the United States. Section 301.78-3(a) provides that the Administrator 
will list as a quarantined area each State, or each portion of a State, 
in which Medfly has been found by an inspector, in which the 
Administrator has reason to believe that Medfly is present, or that the 
Administrator considers necessary to regulate because of its 
inseparability for quarantine enforcement purposes from localities in 
which Medfly has been found. The regulations impose restrictions on the 
interstate movement of regulated articles from the quarantined areas. 
Quarantined areas are listed in Sec.  301.78-3(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 intrastate movement of the 
regulated articles that are equivalent to 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 Medfly.
    Recent trapping surveys by inspectors of California State and 
county agencies have revealed that portions of Los Angeles, San 
Bernardino, and Santa Clara Counties, CA, are infested with Medfly.
    State agencies in California have begun an intensive Medfly 
eradication program in the quarantined areas in Los Angeles, San 
Bernardino, and Santa Clara Counties. Also, California has taken action 
to restrict the intrastate movement of regulated articles from the 
quarantined areas.
    Accordingly, to prevent the spread of Medfly into noninfested areas 
of the United States, we are amending the regulations in Sec.  301.78-
3(c) by designating portions of Los Angeles, San Bernardino, and Santa 
Clara Counties, CA, as quarantined areas.

Treatments

    Section 301.78-10 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 301.78-10 contains treatments for specified fruits and 
vegetables, treatments for citrus fruit that has been harvested, 
treatments for soil within the drip area of plants that are producing 
or have produced specified berries, fruits, nuts, and vegetables, and 
treatments for premises (fields, groves, or areas) that are within a 
quarantined area but outside the infested core area.

[[Page 7394]]

    Under Sec.  301.78-10(d), 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.  301.78-10(d) 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.  301.78-
10(d) 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), the sapote fruit fly regulations in 
Sec.  301.99-10(c), and the Oriental fruit fly regulations in Sec.  
301.93-10(b). ?>

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
Medfly from spreading to noninfested areas of the United States. Under 
these circumstances, the Administrator has determined that prior notice 
and opportunity for public comment are contrary to the 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 restricts the interstate movement of regulated articles 
from those portions of Los Angeles, San Bernardino, and Santa Clara 
Counties, CA, that have been designated as quarantined areas. Within 
the quarantined areas there are approximately 297 small entities that 
may be affected by this rule. These include 127 yard maintenance firms, 
110 fruit sellers, 22 nurseries, 15 growers, 4 distributors, 4 haulers, 
3 certified farmers' market, 3 processors, 2 harvesters, 2 packers, 2 
recyclers, 1 food bank, 1 producer, and 1 swapmeet. These 297 entities 
comprise less than 1 percent of the total number of similar entities 
operating in the State of California. Additionally, few of these small 
entities move regulated articles interstate during the normal course of 
their business, nor do consumers of products purchased from those 
entities generally move those products interstate.
    The effect on those few entities that do 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.
    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

    We have prepared two environmental assessments for this interim 
rule. The site-specific environmental assessments and the programmatic 
Medfly environmental impact statement provide a basis for our 
conclusion that the implementation of integrated pest management to 
achieve eradication of the Medfly would not have a significant impact 
on human health or the natural 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 assessments and findings 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 (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    The environmental assessments and findings of no significant impact 
may be viewed on the Regulations.gov Web site or in our reading room 
(see ADDRESSES above for instructions for accessing Regulations.gov and 
information on the location and hours of the reading room). You may 
request paper copies of the environmental assessments and findings of 
no significant impact by calling or writing to the person listed under 
FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

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

List of Subjects in 7 CFR Part 301

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


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 and 7781-7786; 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.  301.78-3, paragraph (c) is revised to read as follows:


Sec.  301.78-3  Quarantined areas.

* * * * *
    (c) The following areas are designated as quarantined areas: 
California
    Los Angeles/San Bernardino Counties. Rancho Cucamonga area: That 
portion of the counties bounded by a line drawn as follows: Beginning 
at the intersection of the southern border of the Angeles National 
Forest and the southern border of the San Bernardino National Forest; 
then northeast along the southern border of the San Bernardino National 
Forest to East

[[Page 7395]]

Etiwanda Creek; then southeast along East Etiwanda Creek to Wilson 
Avenue; then east on Wilson Avenue to Summit Avenue; then east on 
Summit Avenue to Cherry Avenue; then south on Cherry Avenue to U.S. 
Interstate 15; then southwest on U.S. Interstate 15 to East Avenue; 
then south on East Avenue to State Highway 66; then east on State 
Highway 66 to Cherry Avenue; then south on Cherry Avenue to Slover 
Avenue; then west on Slover Avenue to South Mulberry Avenue; then south 
on South Mulberry Avenue to Jurupa Avenue; then southwest on Jurupa 
Avenue to North Etiwanda Avenue; then south on North Etiwanda Avenue to 
Philadelphia Street; then west on Philadelphia Street to South Milliken 
Avenue; then south on South Milliken Avenue to East Riverside Drive; 
then west on East Riverside Drive to South Haven Avenue; then south on 
South Haven Avenue to East Edison Avenue; then west on East Edison 
Avenue to Edison Avenue; then west on Edison Avenue to Cucamonga Creek; 
then south on Cucamonga Creek to Eucalyptus Avenue; then northwest on 
Eucalyptus Avenue to San Antonio Avenue; then north on San Antonio 
Avenue to Edison Avenue; then west on Edison Avenue to Grand Avenue; 
then northwest on Grand Avenue to South Grand Avenue; then north on 
South Grand Avenue to East Badillo Street; then northeast on East 
Badillo Street to Badillo Street; then northeast on Badillo Street to 
West Covina Street; then east on West Covina Street to State Highway 
57; then north on State Highway 57 to State Highway 210; then east on 
State Highway 210 to North Towne Avenue; then north on North Towne 
Avenue to its intersection with the shoreline of Thompson Creek; then 
east along an imaginary line from the intersection of North Towne 
Avenue and the shoreline of Thompson Creek to its intersection with 
Miller Ranch Road and the eastern border of Marshall Canyon County 
Park; then northeast along the eastern border of Marshall Canyon County 
Park to the southern border of the Angeles National Forest; then east 
along the southern border of the Angeles National Forest to the point 
of beginning.
    Santa Clara County. San Jose area: That portion of the county 
bounded by a line drawn as follows: Beginning at the intersection of 
Camden Avenue and Hillside Avenue; then northeast on Hillside Avenue to 
Meridian Avenue; the northwest on Meridian Avenue to Dry Creek Road; 
then northeast on Dry Creek Road to Hicks Avenue; then northwest on 
Hicks Avenue to Robsheal Drive; then northeast on Robsheal Drive to 
Simpson Way; then southeast on Simpson Way to Clark Way; then northeast 
on Clark Way to Lincoln Avenue; then northwest on Lincoln Avenue to 
Byerley Street; then northeast on Byerley Street to Byerley Avenue; 
then northeast on Byerley Avenue to Bird Avenue; then southeast on Bird 
Avenue to Malone Road; then northeast on Malone Road to Almaden Road; 
then northeast on Almaden Road to San Jose Avenue; then northeast on 
San Jose Avenue to Monterey Highway; then southeast on Monterey Highway 
to Tully Road; then northeast on Tully Road to South King Road; then 
southeast on South King Road to Aborn Road; then northeast on Aborn 
Road to San Felipe Road; then southeast on San Felipe Road to Silver 
Creek Road; then south along an imaginary line from the intersection of 
San Felipe Road and Silver Creek Road to the intersection of U.S. 
Highway 101 and Metcalf Road; then southwest on Metcalf Road to 
Monterey Highway; then southeast on Monterey Highway to Bailey Avenue; 
then southwest on Bailey Avenue to McKean Road; then southwest along an 
imaginary line from the intersection of Bailey Avenue and McKean Road 
to the intersection of Mine Hill Road and Alamitos Road; then southwest 
on Alamitos Road to Hicks Road; then northwest and northeast on Hicks 
Road to Camden Avenue; then northwest on Camden Avenue to the point of 
beginning.

0
3. In Sec.  301.78-10, paragraph (d) is revised to read as follows:


Sec.  301.78-10  Treatments.

* * * * *
    (d) 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 Mediterranean fruit fly. Determination of the 
time period must be based on day degrees. Once treatment has begun, it 
must continue through the harvest period. The malathion bait spray 
treatment must be applied at a rate of 1.2 fluid ounces of technical 
grade malathion (1.4 ounces by weight) and 10.8 fluid ounces of protein 
hydrolysate (13.2 ounces by weight) per acre, for a total of 12 fluid 
ounces 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 7th day of February 2006 .
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 06-1302 Filed 2-10-06; 8:45 am]
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