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###### Department of Agriculture

###### Animal and Plant Health Inspection Service

          - 7 CFR Part 301
          - [Docket No. 04-127-2]

# AGENCY:

Animal and Plant Health Inspection Service, USDA.

# ACTION:

Affirmation of interim rule as final rule.

# SUMMARY:

We are adopting as a final rule, without change, an interim rule that amended the West Indian fruit fly regulations by removing grapefruit, sweet lime, sour orange, and sweet orange from the list of regulated articles. A review of available scientific literature and other information led us to conclude that these citrus fruits do not present a risk of spreading West Indian fruit fly. This action affirms the elimination of restrictions on the interstate movement of these citrus fruits from areas quarantined because of the West Indian fruit fly.

# DATES:

The interim rule became effective on April 26, 2005.

# FOR FURTHER INFORMATION CONTACT:

Mr. Wayne D. Burnett, National Program Manager, PPQ, APHIS, 4700 River Road, Unit 134, Riverdale, MD 20737-1236; (301) 734-4387.

# SUPPLEMENTARY INFORMATION:

## Background

                    The West Indian fruit fly regulations, contained in 7 CFR 301.98 through 301.98-10 (referred to below as the regulations), restrict the interstate movement of regulated articles from quarantined areas to prevent the spread of West Indian fruit fly (                    *Anastrepha obliqua*) to noninfested areas of the United States. Regulated articles are listed in § 301.98-2, and quarantined areas are listed in § 301.98-3(c). There are currently no areas in the continental United States quarantined for the West Indian fruit fly.                

                    In an interim rule effective and published in the                     **Federal Register**                     on April 26, 2005 (70 FR 21325-21326, Docket No. 04-127-1), we amended the regulations by removing grapefruit, sweet lime, sour orange, and sweet orange from the list of regulated articles for West Indian fruit fly because the available information indicates that these fruit do not present a risk of spreading West Indian fruit fly.                

Comments on the interim rule were required to be received on or before June 27, 2005. We received one comment by that date. The commenter—a State government official—raised several issues, which are addressed below.

                    First, the commenter stated that the literature and record review used as the basis of the interim rule not only provides weak support for removing                     *Citrus*                     spp. as a host of West Indian fruit fly, but actually substantiates                     *Citrus*                     spp. as an occasional host. We disagree with this comment. The literature review examined nine papers that were based on original research and that supported                     *Citrus*                     spp. as a host to West Indian fruit fly. A detailed evaluation of these papers' quality led APHIS to conclude that the evidence supported only a low likelihood that                     *Citrus*                     spp. are a host. After conducting this review and examining the multi-year interception data included in the report, we do not believe that the low likelihood of                     *Citrus*                     spp. being a host is sufficient to support the continued listing of these fruits as regulated articles.                

Second, the commenter stated that without formal regulations for West Indian fruit fly and with the lack of a sensitive and effective detection trap, a serious threat is posed for too many commercial and dooryard hosts in Florida, including mango, guava, carambola, avocado, pear, peach, and other tropical fruits. We are making no changes based on this comment. The interim rule did not remove all of the regulations for West Indian fruit fly. Instead, the interim rule simply removed four articles—grapefruit, sweet lime, sour orange, and sweet orange—from the list of regulated articles; the remaining provisions of the regulations will remain intact. In addition, we will continue using our current detection system, which has proven to be an effective method for determining if a population of fruit flies exists.

                    Third, the commenter stated that the interception records cited do not provide reliable data either due to inadequate identification of specimens or a low interception rate of hosts. The commenter stated that over 3,000                     *Anastrepha*                     spp. larvae per year were intercepted over the period listed in Table 1 of the literature review, which identifies a high rate of risk. We are unclear on the source and context of the number cited by the commenter. Table 1 in the literature review presented interception data from the Greater and Lesser Antilles. Of 17,258 interceptions, only 8 interceptions were reported as occurring in                     *Citrus*                     spp. Upon a closer review of these eight reports, most were deemed invalid as proof of infestation—three were reported as on fruit (not in fruit), two were listed as adults, one was listed as on leaves, and one was from citrus obtained in Haiti and intended for use as on-board food on an airline flight that departed from Haiti. The final interception could have been                     *Anastrepha suspensa,*                     as this pest is known to use                     *Citrus*                     spp. as a host and                     *Anastrepha obliqua*                     larvae can not be reliably differentiated from                     *Anastrepha suspensa*                     larvae using keys. Given this analysis, the evidence supported a conclusion of low likelihood of the host status of                     *Citrus*                     spp.                

                    Finally, the commenter called for additional data and scientific justification for the change in the regulations and suggested that an interactive risk assessment be conducted by APHIS in concert with certain concerned and affected States before further action is taken. We are making no changes based on this comment. We continue to believe that the information contained in the literature review provides a sufficient basis for our determination that there is only a low likelihood that                     *Citrus*                     spp. would be a host to West Indian fruit fly. If more research regarding this topic is published, we may reevaluate the host status of                     *Citrus*                     spp. with respect to West Indian fruit fly.                

                    Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change.                          ( print page 57122)    

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

# 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

Accordingly, we are adopting as a final rule, without change, the interim rule that amended 7 CFR part 301 and that was published at 70 FR 21325-21326 on April 26, 2005.

Done in Washington, DC, this 26th day of September 2005.

Elizabeth E. Gaston,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 05-19576 Filed 9-29-05; 8:45 am]

BILLING CODE 3410-34-P