Mexican Fruit Fly; Regulated Areas, Regulated Articles, and Treatments

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 99-075-2]

Mexican Fruit Fly; Regulated Areas, Regulated Articles, and

Treatments

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the Mexican fruit fly regulations by adding a

portion of San Diego and Riverside Counties, CA, to the list of areas

regulated because of the Mexican fruit fly. This action is necessary on

an emergency basis to prevent the spread of the Mexican fruit fly into

noninfested areas of the United States. This action restricts the

interstate movement of regulated articles from the regulated area. We

are also amending the regulations to provide for the use of a new

alternative chemical treatment for premises and for the use of a cold

treatment for citrons, litchis, longans, persimmons, and white zapotes,

which are all regulated articles. These new treatment options will

minimize the effect of restrictions on the interstate movement of

regulated articles from regulated areas. We are also removing kumquats

from the list of regulated articles. We have determined that kumquats

do not pose a risk of hosting the Mexican fruit fly.

DATES: This interim rule was effective December 14, 1999. We invite you

to comment on this docket. We will consider all comments that we

receive by February 22, 2000.

ADDRESSES: Please send your comment and three copies to: Docket No. 99-

075-2, Regulatory Analysis and Development, PPD, APHIS, Suite 3C03,

4700 River Road, Unit 118, Riverdale, MD 20737-1238.

Please state that your comment refers to Docket No. 99-075-2.

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.

APHIS documents published in the Federal Register, and related

information, including the names of organizations and individuals who

have commented on APHIS rules, are available on the Internet at http://

www.aphis.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. Michael B. Stefan, Operations

Officer, Invasive Species and Pest Management, PPQ, APHIS, 4700 River

Road Unit 134, Riverdale, MD 20737-1236; (301) 734-8247.

SUPPLEMENTARY INFORMATION:

Background

The Mexican fruit fly, Anastrepha ludens (Loew), 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 and 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

regulated areas.

Section 301.64-3 provides that the Deputy Administrator for Plant

Protection and Quarantine (PPQ), Animal and Plant Health Inspection

Service (APHIS), shall list as a regulated area each quarantined State,

or each portion of a quarantined State, in which the Mexican fruit fly

has been found by an inspector, in which the Deputy Administrator has

reason to believe the Mexican fruit fly is present, or that the Deputy

Administrator considers necessary to regulate because of its proximity

to the Mexican fruit fly or its inseparability for quarantine

enforcement purposes from localities in which the Mexican fruit fly

occurs.

Less than an entire quarantined State will be designated as a

regulated area only if the Deputy Administrator determines that the

State has adopted and is enforcing a quarantine or regulations that

impose restrictions on the intrastate movement of regulated articles

that are substantially the same

[[Page 71268]]

as those that are imposed with respect to the interstate movement of

the articles and the designation of less than the entire State as a

regulated area will otherwise be adequate to prevent the artificial

interstate spread of the Mexican fruit fly.

In an interim rule effective September 22, 1999, and published in

the Federal Register on September 28, 1999 (64 FR 52211-52212, Docket

No. 99-075-1), we designated an area in San Bernardino and Riverside

Counties, CA, as a regulated area.

Recent trapping surveys by inspectors of California State and

county agencies and by inspectors of PPQ reveal that a portion of San

Diego and Riverside Counties, CA, is infested with the Mexican fruit

fly. Specifically, since October 12, 1999, inspectors have detected

Mexican fruit flies in the Fallbrook area of San Diego and Riverside

Counties, CA.

Accordingly, to prevent the spread of the Mexican fruit fly to

noninfested areas of the United States, we are amending the regulations

in Sec. 301.64-3(c) by designating an area in San Diego and Riverside

Counties, CA, as a regulated area. The regulated area is described in

the rule portion of this document.

There does not appear to be any reason to designate any other

portion of the quarantined State of California as a regulated area.

Officials of State agencies of California are conducting an intensive

Mexican fruit fly eradication program in the regulated areas in

California. Also, California has adopted and is enforcing regulations

imposing restrictions on the intrastate movement of certain articles

from the regulated areas that are substantially the same as those

imposed with respect to the interstate movement of regulated articles.

The Mexican fruit fly is not known to occur in the continental

United States outside of the regulated areas in California and Texas.

Treatments

Section 301.64-10 of the regulations lists treatments for regulated

articles. Regulated articles treated in accordance with this section

may be moved interstate from a regulated area to any destination.

Section 301.64-10 contains treatments for specified fruits, treatments

for soil within the dripline 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.

In accordance with Sec. 301.64-10(c), premises that are located

within the regulated area but outside the infested core area, and that

produce regulated articles, must receive regular treatments with

malathion bait spray. We are amending Sec. 301.64-10(c) 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.

We are also amending Sec. 301.64-10 to add provisions for cold

treatment of citrons, litchis, longans, persimmons, and white zapotes.

In the PPQ Treatment Manual, which is incorporated by reference into

the Code of Federal Regulations (CFR), we list a cold treatment that is

effective for Mexican fruit fly for several commodities. We also want

to allow a cold treatment that is not listed in the PPQ Treatment

Manual. Therefore, we are adding a new paragraph (f) to Sec. 301.64-10

to state that citrons, litchis, longans, persimmons, and white zapotes

may be cold treated in accordance with the PPQ Treatment Manual and in

accordance with a treatment schedule described in paragraph (f).

Regulated Articles

Section 301.64-2 of the regulations lists articles that are

regulated for the Mexican fruit fly. Kumquats are on the list of

regulated articles because kumquats are known hosts to some species of

Anastrepha. After reviewing scientific data, APHIS has determined that

kumquats are not a host to the Mexican fruit fly. Therefore, we are

removing kumquats from the list of regulated articles. This action will

relieve unnecessary restrictions on the movement of kumquats from

regulated areas.

Emergency Action

The Administrator of the Animal and Plant Health Inspection Service

has determined that an emergency exists that warrants publication of

this interim rule without prior opportunity for public comment.

Immediate action is necessary to prevent the Mexican fruit fly from

spreading to noninfested areas of the United States.

Because prior notice and other public procedures with respect to

this action are impracticable and contrary to the public interest under

these conditions, we find good cause under 5 U.S.C. 553 to make this

action effective less than 30 days after publication. We will consider

comments that are received within 60 days of publication of this rule

in the Federal Register. 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 as a result of the comments.

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

process required by Executive Order 12866.

Under the Plant Quarantine Act and the Federal Plant Pest Act (7

U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and 164-167), the

Secretary of Agriculture is authorized to regulate the interstate

movement of articles to prevent the spread of injurious plant pests in

the United States.

In accordance with 5 U.S.C. 603, we have performed an initial

regulatory flexibility analysis, which is set out below, regarding the

effects of this interim rule on small entities. We do not currently

have all the data necessary for a comprehensive analysis of the effects

of this interim rule on small entities. Therefore, we are inviting

comments concerning potential effects. In particular, we are interested

in determining the number and kind of small entities that may incur

benefits or costs from the implementation of this interim rule.

This action amends the Mexican fruit fly regulations by adding a

portion of San Diego and Riverside Counties, CA, to the list of areas

regulated because of the Mexican fruit fly. This action is necessary on

an emergency basis to prevent the spread of the Mexican fruit fly into

noninfested areas of the United States. We are also amending the

regulations to provide for the use of a new alternative chemical

treatment for premises and for the use of a cold treatment for citrons,

litchis, longans, persimmons, and white zapotes, which are regulated

articles. This new treatment option will minimize the effect of

restrictions on the interstate movement of regulated articles from

regulated areas. We are also removing kumquats from the list of

regulated articles. We have determined that kumquats do not pose a risk

of hosting the Mexican fruit fly.

Newly Regulated Area

This rule restricts the interstate movement of regulated articles

from a portion of San Diego and Riverside

[[Page 71269]]

Counties, CA. Within the regulated area there are approximately 2,000

growers operating on 11,400 acres (72 square miles), 38 packing houses,

50 fruit sellers, and 2 farmer's markets that may be affected by the

regulations. Those entities that move regulated articles interstate

will have to comply with the regulations concerning certification and

treatment. There are various relatively low cost treatments available,

which in most cases will allow interstate movement of regulated

articles.

Spinosad Bait Spray

Currently, growers have an option to treat the 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 additional treatment alternative of

spinosad bait spray for these premises. Growers and nurseries in all

regulated areas may be affected by this change. However, because the

cost for applying spinosad bait spray is comparable to the cost for

applying the currently available malathion bait spray, entities will be

little affected.

Cold Treatment

This rule also adds provisions for cold treatment of persimmons,

longans, litchis, citrons, and white zapotes to qualify them for

interstate movement from the regulated areas. Previously, no treatment

was listed in the regulations for these fruits. In the regulated area

in 1998, approximately $860,000 worth of persimmons were grown on 286

acres. We do not have information on the number of growers or value of

longans, litchi, citron, or white zapotes grown in the regulated area,

but the numbers are likely to be very small.

Cold treatment may take place in a refrigerated container which can

be leased for approximately $65 per day. Using the container for 26

days (20 days of treatment and 6 days of preparation) would cost

$1,690. Assuming that there are 800 flats of persimmons in one of these

refrigerated containers, the cold treatment would add $2.11 to the cost

of each flat of persimmons. Cold treatment may also take place at an

approved facility, which would likely be less costly. Additionally,

cold storage for the preparation of persimmons for market is a common

practice; therefore, the treatment may add little additional cost

(measures such as closer monitoring of temperature or better sealing of

the facility may be required). Cold treatment allows the fruit to be

shipped interstate to markets outside the regulated area.

The alternative to this interim rule was to make no changes in the

regulations. After consideration, we rejected this alternative because

if no action was taken, the Mexican fruit fly would spread to

noninfested areas of the continental United States.

This interim rule contains no information collection or

recordkeeping requirements.

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 interim 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 assessment provides a

basis for the conclusion that the methods employed to eradicate the

Mexican 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, as amended (NEPA) (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).

Copies of the environmental assessment and finding of no

significant impact are available for public inspection at USDA, room

1141, South Building, 14th Street and Independence Avenue, SW.,

Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday,

except holidays. Persons wishing to inspect copies are requested to

call ahead on (202) 690-2817 to facilitate entry into the reading room.

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.

Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

1. The authority citation for part 301 continues to read as

follows:

Authority: 7 U.S.C. 147a, 150bb, 150dd, 150ee, 150ff, 161, 162,

and 164-167; 7 CFR 2.22, 2.80, and 371.2(c).

Sec. 301.64-2 [Amended]

2. In Sec. 301.64-2, paragraph (a), the regulated article ``Kumquat

(Fortunella japonica)'' is removed.

3. In Sec. 301.64-3, paragraph (c), the entry for California is

amended by adding an entry for San Diego and Riverside Counties, in

alphabetical order, to read as follows:

Sec. 301.64-3 Regulated areas.

* * * * *

(c) * * *

California

* * * * *

San Diego and Riverside Counties. That portion of San Diego and

Riverside Counties in the Fallbrook area bounded by a line drawn as

follows: Beginning at the intersection of Rainbow Glen Road and

Interstate Highway 15; then southwest along Interstate Highway 15 to

Old Highway 395; then west and south along Old Highway 395 to

Canonita Drive; then west along Canonita Drive to Tecalote Drive;

then south along Tecalote Drive to Puerta Del Mundo; then northwest

along Puerta Del Mundo to Peony Drive; then west along Peony Drive

to Citrus Lane; then south along Citrus Lane to Citrus Drive; then

south along Citrus Drive to Wilt Road; then west along Wilt Road to

Laketree Drive; then southwest along Laketree Drive to Gird Road;

then south along Gird Road to Knottwood Way; then west along

Knottwood Way to Genista Place; then south along Genista Place to

Brushwood Lane; then west and south along Brushwood Lane to Staghorn

Court; then southwest along an imaginary line to the intersection of

Linda Vista Drive and Via Monserate; then west along Via Monserate

to Ramona Drive; then south along Ramona Drive to Hillrise Road;

then west along Hillrise Road to La Canada Road; then west along La

Canada Road to South Mission

[[Page 71270]]

Road; then southwest along an imaginary line to the east end of

Shady Hill Lane; then west along Shady Hill Lane to Gateview Drive;

then southwest along Gateview Drive to Olive Hill Road; then north

along Olive Hill Road to Morro Hills Road; then west along Morro

Hills Road to Sleeping Indian Road; then west along Sleeping Indian

Road to Conejo Road; then northwest along an imaginary line to the

intersection of Fallbrook Road and Vandergrift Boulevard; then west

along Vandergrift Boulevard to Camp De Luz Road; then north along

Camp De Luz Road to the intersection of the boundary line for the

Camp Pendleton Marine Corps Base and De Luz Road; then northeast

along De Luz Road to Daily Road; then northeast along Daily Road to

Lynda Road; then northeast along Lynda Road to Sandia Creek Drive;

then east and south along Sandia Creek Drive to Rock Mountain Drive;

then east along Rock Mountain Drive to the Riverside/San Diego

County line; then southeast along an imaginary line to the

intersection of Stage Coach Lane and the Riverside/San Diego County

line; then east along the Riverside/San Diego County line to the

second unnamed road (near gate); then south along the second unnamed

road (near gate) to Rainbow Glen Road; then southeast along Rainbow

Glen Road to the point of beginning.

* * * * *

4. Section 301.64-10 is amended as follows:

a. Paragraph (c) is revised to read as set forth below.

b. A new paragraph (f) is added to read as set forth below.

Sec. 301.64-10 Treatments.

* * * * *

(c) 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 Mexican fruit fly. Determination of the

time period must be based on the day degrees model for Mexican 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 of 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.

* * * * *

(f) Citrons, litchis, longans, persimmons, and white zapotes. Cold

treatment in accordance with the PPQ Treatment Manual (for full

identification of this standard, see Sec. 300.1 of this chapter,

``Materials incorporated by reference'') and in accordance with the

following schedule:

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Treatment Exposure period

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33 deg.F or below....................... 18 days.

34 deg.F or below....................... 20 days.

35 deg.F or below....................... 22 days.

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Done in Washington, DC, this 14th day of December 1999.

Craig A. Reed,

Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 99-33059 Filed 12-20-99; 8:45 am]

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