[Federal Register Volume 71, Number 222 (Friday, November 17, 2006)]
[Rules and Regulations]
[Pages 66831-66833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19451]



[[Page 66831]]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2006-0151]


Oriental Fruit Fly; Add a Portion of San Bernardino County, 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 Oriental fruit fly regulations by adding a 
portion of San Bernardino County, CA, to the list of quarantined areas 
and restricting the interstate movement of regulated articles from that 
area. We are also amending the definitions of the terms core area and 
day degrees and adding jujube (Ziziphus spp.) to the list of articles 
regulated for Oriental fruit fly. These actions are necessary to 
prevent the artificial spread of Oriental fruit fly to noninfested 
areas of the United States and to update the regulations to reflect 
current science and practices.

DATES: This interim rule is effective November 17, 2006. We will 
consider all comments that we receive on or before January 16, 2007.

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-2006-0151 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-
2006-0151, 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-2006-0151.
    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 
Coordinator, Fruit Fly Exclusion and Detection Programs, APHIS, 4700 
River Road Unit 137, Riverdale, MD 20737-1234; (301) 734-6553.

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 
each 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 enforcement 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 intrastate 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 reveal that a portion of San Bernardino 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 area in San Bernardino 
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 into 
noninfested areas of the United States, we are amending the regulations 
in Sec.  301.93-3 by designating a portion of San Bernardino County, 
CA, as a quarantined area for the Oriental fruit fly. The quarantined 
area is described in the regulatory text at the end of this document.
    Section 301.93-1 of the regulations currently defines the term core 
area as the ``1 square mile area surrounding each property where 
Oriental fruit fly has been detected.'' We have determined that it is 
necessary to amend the definition of core area because the use of GPS 
technology allows us to more accurately measure the distance from a 
positive detection site of Oriental fruit fly. Therefore, we are 
revising the definition of the term core area to read ``the area within 
a circle surrounding each detection using a \1/2\-mile radius with the 
detection as a center point.''
    The regulations currently define the term day degrees as a 
mathematical construct combining average temperature over time that is 
used to calculate the length of an Oriental fruit fly life cycle. Day 
degrees are the product of the following formula, with all temperatures 
measured in [deg]F.: [(Minimum Daily Temp + Maximum Daily Temp)/2]-
54[deg]=Day Degrees. We have determined that it is necessary to amend 
the definition of day degrees because the use of weather service data 
entered into a computer model enables us to more accurately measure day 
degree accumulation based upon the latest biological information than 
was previously possible. Therefore, we are revising the definition of 
day degrees to read ``a unit of measurement used to measure the amount 
of heat required to further the development of fruit flies through 
their life cycle. Day-degree life cycle requirements are calculated 
through a modeling process specific for each fruit fly species.''
    We are also adding jujube (Ziziphus spp.) to the regulated articles 
list in Sec.  301.93-2 because jujube was recorded as a host of the 
Oriental fruit fly as documented in a peer reviewed international 
journal.

[[Page 66832]]

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. 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 amends the Oriental fruit fly regulations by adding a 
portion of San Bernardino County, CA, to the list of quarantined areas. 
The regulations restrict the interstate movement of regulated articles 
from a quarantined area.
    County records indicate there are approximately 18 nurseries, 96 
yard maintenance companies, 2 growers (including 1 jujube grower), 1 
mobile vendors, 5 food banks, and 34 fruit sellers 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 these 
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.
    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 human health and 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 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 (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    The environmental assessment and finding of no significant impact 
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 interim rule.) In addition, copies 
may be obtained by writing to the individual listed under FOR FURTHER 
INFORMATION CONTACT.

Paperwork Reduction Act

    This 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, 7 CFR part 301 is amended 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 issued under Sec. 204, Title II, Public Law 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 
(7 U.S.C. 1421 note).


0
2. Section 301.93-1 is amended by revising the definitions of core area 
and day degrees to read as follows:


Sec.  301.93-1  Definitions.

* * * * *
    Core area. The area within a circle surrounding each detection 
using a 1/2-mile radius with the detection as a center point.
    Day degrees. A unit of measurement used to measure the amount of 
heat required to further the development of fruit flies through their 
life cycle. Day-degree life cycle requirements are calculated through a 
modeling process specific for each fruit fly species.
* * * * *


Sec.  301.93-2  [Amended]

0
3. In Sec.  301.93-2, paragraph (a) is amended by adding, in 
alphabetical order, an entry for ``Jujube (Ziziphus spp.)''.


0
4. 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
    San Bernardino County. That portion of San Bernardino County in the 
Rialto area bounded by a line as follows: Beginning at the intersection 
of State Highway 201 and East Avenue; then north on East Avenue to 
Banyan Street; then east, northeast, north, and northeast on Banyan 
Street to Wardman Bullock Road; then north and northwest on Wardman 
Bullock Road to Colonbero Road; then north along an imaginary line from 
the intersection of Wardman Bullock Road and Colobero Road to its 
intersection with the southern boundary line of the San Bernardino 
National Forest; then east, northeast, northwest, southeast, east, 
southeast, northeast, north, northeast, and east along the

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southern boundary line of the San Bernardino National Forest to its 
intersection with U.S. Interstate 15; then northeast on U.S. Interstate 
15 to its next intersection with the San Bernardino National Forest 
boundary line; then northwest, north, northeast, southeast, east, 
northeast, southeast, and east along the San Bernardino National Forest 
boundary line to its intersection with Palm Avenue; then southwest on 
Palm Avenue to U.S. Interstate 215; then southeast on U.S. Interstate 
215 to University Parkway; then southwest on University Parkway to N. 
State Street; then south on N. State Street to State Highway 210; then 
west on State Highway 210 to the Southern Pacific railroad track; then 
south, southwest, south, and southeast along the Southern Pacific 
railroad track to its intersection with W. Base Line Street; then west 
on W. Base Line Street to N. Pepper Avenue; then south on N. Pepper 
Avenue to State Highway 66; then west on State Highway 66 to N. Cactus 
Avenue; then south on N. Cactus Avenue to W. Rialto Avenue; then west 
on W. Rialto Avenue to W. Arrow Boulevard; then west on W. Arrow 
Boulevard to Arrow Boulevard; then west on Arrow Boulevard to Cherry 
Avenue; then north on Cherry Avenue to State Highway 66; then west on 
State Highway 66 to East Avenue; then north on East Avenue to the point 
of beginning.

    Done in Washington, DC, this 14th day of November 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E6-19451 Filed 11-16-06; 8:45 am]
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