[Federal Register: September 20, 2004 (Volume 69, Number 181)]
[Rules and Regulations]
[Page 56157-56159]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20se04-1]
========================================================================
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.
========================================================================
[[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
regulations@aphis.usda.gov. 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