[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Rules and Regulations]
[Pages 57122-57124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19575]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 02-129-5]


Mexican Fruit Fly; Quarantined Areas and Treatments for Regulated 
Articles

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Affirmation of interim rules as final rule.

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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 Sec.  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 Sec.  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), Sec.  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 Sec.  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

[[Page 57123]]

Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  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.

[[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

0
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