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###### Department of Agriculture

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

          - 7 CFR Part 301
          - [Docket No. 02-129-5]

# AGENCY:

Animal and Plant Health Inspection Service, USDA.

# ACTION:

Affirmation of interim rules as final rule.

# SUMMARY:

We are adopting as a final rule, without change, an interim rule that amended the Mexican fruit fly regulations to provide for the use of irradiation as a treatment for fruits listed as regulated articles. We are also adopting as a final rule, without change, an interim rule that amended those regulations by removing a portion of San Diego County, CA, from the list of quarantined areas. Those interim rules were necessary to provide an additional option for qualifying regulated articles for movement from quarantined areas and to relieve restrictions that were no longer needed to prevent the spread of Mexican fruit fly to noninfested areas of the United States.

# DATES:

The interim rules became effective on February 20, 2003, and October 22, 2003.

# FOR FURTHER INFORMATION CONTACT:

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

# SUPPLEMENTARY INFORMATION:

## Background

                    The Mexican fruit fly (                    *Anastrepha ludens*) is a destructive pest of citrus and many other types of fruit. The short life cycle of the Mexican fruit fly allows rapid development of serious outbreaks that can cause severe economic losses in commercial citrus-producing areas.                

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 quarantined areas.

                    In an interim rule effective January 15, 2003, and published in the                     **Federal Register**                     on January 21, 2003 (68 FR 2679-2680, Docket No. 02-129-1), we amended the regulations in § 301.64-3 by designating a portion of San Diego County, CA, as a quarantined area for Mexican fruit fly. That action was necessary to prevent the spread of the Mexican fruit fly to noninfested areas of the United States.                

We solicited comments concerning the interim rule for 60 days ending March 24, 2003. We received five comments by that date. They were from fruit and vegetable producers and an individual.

One commenter supported the interim rule. The remaining commenters raised questions about the location of the boundary lines for the quarantined area, arguing that the boundary lines were beyond what was necessary for quarantine purposes and requesting that the lines be reexamined and redrawn.

The process for establishing quarantine boundaries is based on our experience and scientific information concerning the Mexican fruit fly's life cycle and its ability to spread, both naturally and by artificial means. For operational and quarantine enforcement reasons, boundaries often follow easily identifiable markers, such as major roads or other county and city lines. We remain sensitive to the needs of producers and make every effort to minimize quarantined areas. Currently, Mexican fruit fly has been eradicated from the designated part of San Diego County, CA, and there are no longer any areas in California quarantined for the Mexican fruit fly.

                    In a second interim rule effective February 20, 2003, and published in the                     **Federal Register**                     on February 26, 2003 (68 FR 8817-8820, Docket No. 02-129-2), we amended the regulations in § 301.64-10 to provide for the use of irradiation as a treatment for fruits that are regulated articles. That change provided an additional option for qualifying those regulated articles for interstate movement from areas quarantined because of Mexican fruit fly.                

We solicited comments concerning the interim rule for 60 days ending April 28, 2003. We received three comments by that date. They were from State and Federal government representatives and an individual.

One commenter supported the interim rule, and suggested that we should also consider allowing the use of irradiation as a treatment option for all fruit imported into the United States from Mexico to mitigate the risk posed by Mexican fruit fly.

In the regulations governing the importation of fruits and vegetables (Subpart—Fruits and Vegetables, 7 CFR 319.56 through 319.56-6), § 319.56-2(k) provides that any fruit or vegetable that is required to be treated or subjected to other growing or inspection requirements to control one or more of the 11 species of fruit flies and one species of seed weevil listed in 7 CFR 305.31(a) as a condition of entry into the United States may instead be treated by irradiation in accordance with part 305. The Mexican fruit fly is among the 11 species of fruit flies listed in § 305.31(a), so irradiation is already an option for any fruits or vegetables imported from Mexico that are required to be treated or subjected to other measures to control Mexican fruit fly.

Another commenter stated that the minimum absorbed treatment dose should be reduced from 150 gray to 70 gray, since some fruits may suffer damage as a result of higher dosimetry.

                    In a proposed rule published in the                     **Federal Register**                     on June 10, 2005 (70 FR 33857-33873, Docket No. 03-077-1), we proposed, among other things, to reduce the approved irradiation dose for Mexican fruit fly to 70 gray, consistent with the commenter's recommendation. We are currently considering the comments received on that proposed rule and will finalize the 70 gray dose and the other proposed provisions of that document if our review of the comments leads us to conclude such action is appropriate.                

                    The same commenter also pointed out that the addresses we provided in                           ( print page 57123)                        § 301.64-10 for the submission of cartons for approval and for the submission of requests for approval of an irradiation treatment facility and treatment protocol were out of date.                

Those addresses were updated in another final rule that amended § 310.64-10, so the changes suggested by the commenter are no longer necessary.

Another commenter pointed out that, as written, the packaging and labeling requirements found in § 301.64-10(g)(3) would apply only to fruit treated within a quarantined area. The commenter stated that information relative to treatment verification and product origin must be provided regardless of where the treatment was conducted.

                    The packaging requirements of § 301.64-10(g)(3) are intended to prevent fruit flies from entering the cartons and ovipositing on the fruit after it has been treated and is being moved out of a treatment facility in a quarantined area. That same risk of oviposition would not be present if the treatment facility was located outside a quarantined area,                     *i.e.*, in an area where Mexican fruit fly was not present; in such instances, an inspector would ensure, through a compliance agreement, that safeguards were applied to prevent the escape of fruit flies from the fruit as it was being moved from the quarantined area into the non-quarantined area for treatment. With respect to the labeling requirements of paragraph (g)(3) as they apply to fruit treated outside a quarantined area, the same compliance agreement would provide that packaging must be labeled with treatment lot numbers, packing and treatment facility identification and location, and dates of packing and treatment.                

                    In a third interim rule effective March 4, 2003, and published in the                     **Federal Register**                     on March 10, 2003 (68 FR 11311-11313, Docket No. 02-129-3), we amended the regulations in § 301.64-3 by designating an additional portion of San Diego County, CA, as a quarantined area for Mexican fruit fly. This action was necessary to prevent the spread of the Mexican fruit fly to noninfested areas of the United States.                

                    We solicited comments concerning the interim rule for 60 days ending May 9, 2003. We received one comment by that date, from an individual. The commenter stated that the interim rule attempted to bypass the requirements of the Regulatory Flexibility Act (5 U.S.C. 601*et seq.*) based on its designation of the spread of the Mexican fruit fly as an emergency situation and failed to take into consideration potentially more efficient methods of preventing the spread of the fruit fly (                    *e.g.*, pesticides).                

In this case, the requirements of the Regulatory Flexibility Act were not bypassed, but simply deferred, consistent with the provisions of that act, due to the need to implement the quarantine and movement restrictions on an emergency basis in order to prevent the spread of the Mexican fruit fly into noninfested areas of the United States. With respect to our consideration of alternatives such as pesticides, we note that the action taken in the interim rule was merely one aspect of a multifaceted State/Federal response to the Mexican fruit fly outbreak in San Diego County, CA. In addition to the designation of the quarantined area and the resulting restrictions on the movement of regulated articles, a variety of inspections, trapping and delimiting surveys, premises treatments, and other activities were undertaken to prevent Mexican fruit fly from spreading to noninfested areas and to ensure that the pest was eradicated from the quarantined area.

Noting that the regulations in §§ 301.64 and 301.64-5 provide that 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, the commenter stated that there was “a great risk of abuse of that authority.” Because of that perceived risk, the commenter stated that there should be checks and balances on the authority of inspectors.

Given that the action taken in the March 2003 interim rule was limited to amending § 301.64-3 to designate of a portion of San Diego County, CA, as a quarantined area, we believe that this comment falls outside the scope of that rulemaking.

                    In a fourth interim rule effective October 22, 2003, and published in the                     **Federal Register**                     on October 28, 2003 (68 FR 61323-61324, Docket No. 02-129-4), we removed San Diego County, CA, from the list of quarantined areas and thus removed restrictions on the interstate movement of regulated articles from that area. That action was based on our determination that the Mexican fruit fly had been eradicated from San Diego County, CA, and was necessary to relieve restrictions that were no longer needed to prevent the spread of the Mexican fruit fly into noninfested areas of the United States.                

We solicited comments concerning the interim rule for 60 days ending December 29, 2003. We did not receive any comments.

Therefore, for the reasons given in the interim rules and in this document, we are adopting the February 2003 and October 2003 interim rules as a final rule without change.

This action also affirms the information contained in the interim rules concerning Executive Orders 12866, 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.

## Regulatory Flexibility Act

This rule follows a series of interim rules that amended the Mexican fruit fly regulations by designating portions of San Diego County, CA, as quarantined areas, then subsequently removing those portions of the county from the list of quarantined areas. In another interim rule in that series, we provided for the use of irradiation as a treatment for fruits listed as regulated articles. In the October 2003 interim rule in which we removed those portions of San Diego County, CA, from the list of quarantined areas, we addressed the economic effects of the interim rules that dealt with quarantined areas. The following analysis examines the economic effects associated with the February 2003 interim rule adding irradiation as a treatment for regulated articles.

The small entities most likely to have been affected by our addition of irradiation as an approved treatment for fruits listed as regulated articles would be those entities that moved regulated articles interstate from the quarantined area. We expect that those entities would have benefited from the availability of an additional treatment alternative, especially in any case where irradiation treatment may have been less time-consuming or less expensive than the other treatment options available (cold treatment, methyl bromide fumigation, and high-temperature forced air).

We do not know how many producers or shippers availed themselves of the irradiation treatment option, but we have no evidence to suggest that the cost or time differential between irradiation and the other available treatment options is substantial enough to have had any significant economic effects for any entities, large or small.

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.

      ( print page 57124)    

# 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 rules that amended 7 CFR part 301 and that were published at 68 FR 8817-8820 on February 26, 2003, and 68 FR 61323-61324 on October 28, 2003.

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

Elizabeth E. Gaston,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 05-19575 Filed 9-29-05; 8:45 am]

BILLING CODE 3410-34-P