[Federal Register: January 22, 2001 (Volume 66, Number 14)]
[Rules and Regulations]
[Page 6429-6436]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja01-2]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 00-110-1]
West Indian Fruit Fly
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
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SUMMARY: We are quarantining part of Cameron County, TX, because of the
West Indian fruit fly and restricting the interstate movement of
regulated articles from the quarantined area. This action is necessary
on an emergency basis to prevent the spread of the West Indian fruit
fly to noninfested areas of the United States.
[[Page 6430]]
DATES: This interim rule was effective January 12, 2001. We invite you
to comment on this docket. We will consider all comments that we
receive by March 23, 2001.
ADDRESSES: Please send four copies of your comment (an original and
three copies) to: Docket No. 00-110-1, 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. 00-110-1.
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 dockets, are available on the Internet at
http://www.aphis.usda.gov/ppd/rad/webrepor.html.
FOR FURTHER INFORMATION CONTACT: Mr. Robert G. Spaide, Assistant
Director, Invasive Species and Pest Management, PPQ, APHIS, 4700 River
Road Unit 134, Riverdale, MD 20737-1236; (301) 734-8247.
SUPPLEMENTARY INFORMATION:
Background
We are amending the ``Domestic Quarantine Notices'' in 7 CFR part
301 by adding a new subpart, ``West Indian Fruit Fly'' (Secs. 301.98
through 301.98-10, referred to below as the regulations). The
regulations quarantine part of Cameron County, TX, because of the West
Indian fruit fly and restrict the interstate movement of regulated
articles from the quarantined area.
The West Indian fruit fly, Anastrepha obliqua (Macquart), is a very
destructive pest of fruits and vegetables, including carambola,
grapefruit, guava, limes, mangoes, oranges, passion fruit, peaches, and
pears. This pest can cause serious economic losses by lowering the
yield and quality of these fruits and vegetables and, in some cases, by
damaging seedlings and young plants. Heavy infestations can result in
complete loss of these crops.
Recent trapping surveys near Rio Hondo, TX, have established that
part of Cameron County is infested with the West Indian fruit fly.
Officials of the Animal and Plant Health Inspection Service (APHIS)
and State and county agencies in Texas have begun an intensive survey
and eradication program in the infested area. Also, as explained below,
Texas has restricted the intrastate movement of certain articles from
the infested area to prevent the spread of the West Indian fruit fly
within Texas. However, Federal regulations are necessary to restrict
the interstate movement of certain articles from the infested area to
prevent the spread of the West Indian fruit fly to noninfested areas of
the United States. This interim rule establishes those Federal
regulations, which are described below.
Section 301.98--Restrictions on Interstate Movement of Regulated
Articles
Section 301.98 prohibits the interstate movement of regulated
articles from quarantined areas except in accordance with the
regulations.
Section 301.98-1--Definitions
Section 301.98-1 contains definitions of the following terms:
Administrator, Animal and Plant Health Inspection Service, certificate,
compliance agreement, core area, day degrees, Departmental permit,
dripline, infestation, inspector, interstate, limited permit, moved
(move, movement), person, Plant Protection and Quarantine, quarantined
area, regulated articles, State, and West Indian fruit fly.
Section 301.98-2--Regulated Articles
Certain articles present a significant risk of spreading the West
Indian fruit fly if they are moved from quarantined areas without
restrictions. We call these articles regulated articles. Paragraphs (a)
through (e) of Sec. 301.98-2 list the following as regulated articles:
The West Indian fruit fly;
Certain fruits and vegetables (fruits or vegetables that
are canned or dried or that are frozen below -17.8 deg.C (0 deg.F)
are exempted, since the West Indian fruit fly cannot survive such
processing);
Soil within the dripline of plants that produce those
fruits or vegetables; and
Any other product, article, or means of conveyance that an
inspector determines to present a risk of spreading the West Indian
fruit fly when the inspector notifies the person in possession of the
product, article, or means of conveyance that it is subject to the
restrictions in the regulations.
The last item listed above, which provides for the designation of
``any other product, article, or means of conveyance'' as a regulated
article, is intended to address the risks presented by, for example, a
truck with West Indian fruit fly pupae in the cracks of its
floorboards, thus enabling an inspector to designate that truck as a
regulated article in order to ensure that any necessary risk-mitigating
measures are carried out.
Section 301.98-3--Quarantined Areas
Paragraph (a) of Sec. 301.98-3 provides the criteria for the
inclusion of States, or portions of States, in the list of quarantined
areas. Under these criteria, any State or portion of a State in which
the West Indian fruit fly is found by an inspector, or in which the
Administrator has reason to believe that the West Indian fruit fly is
present, will be listed as a quarantined area. These criteria also
provide that an area will be designated as a quarantined area when the
Administrator considers it necessary due to the area's inseparability
for quarantine enforcement purposes from localities in which the West
Indian fruit fly has been found.
Paragraph (a) of Sec. 301.98-3 also provides that we will designate
less than an entire State as a quarantined area only if we determine
that the State has adopted and is enforcing restrictions on the
intrastate movement of regulated articles that are equivalent to those
imposed on the interstate movement of regulated articles and that the
designation of less than the entire State as a quarantined area will
prevent the interstate spread of the West Indian fruit fly. These
determinations would indicate that infestations are confined to the
quarantined areas and eliminate the need for designating an entire
State as a quarantined area.
The boundary lines that delimit the portion of a State that is
designated as a quarantined area are set up approximately 4.5 miles
from the locations where West Indian fruit fly has been detected. The
4.5 mile radius distance for regulated areas from the trapping sites
for West Indian fruit fly is based upon several factors, including:
Previous experience with fruit fly eradication programs, estimated
efficacy of trapping grids, available data on natural dispersal, and
recommendations from fruit fly experts familiar with the biology and
behavior of the West Indian fruit fly. The boundary lines may vary due
to factors such as the location of West Indian fruit fly host material,
the location of transportation centers such as bus stations and
airports, the pattern of persons moving in that State, the number and
patterns of distribution of the West Indian fruit fly, and the use of
clearly identifiable lines for the boundaries.
[[Page 6431]]
We have determined that it is not necessary to designate the entire
State of Texas as a quarantined area. The West Indian fruit fly has not
been found in any area of the State other than a portion of Cameron
County, and Texas has adopted and is enforcing restrictions on the
intrastate movement of regulated articles from that area that are
substantially the same as those we are imposing on the interstate
movement of regulated articles. Therefore, in accordance with the
criteria described in the previous paragraph, we have designated part
of the Rio Hondo area of Cameron County, TX, as a quarantined area. The
boundaries of the quarantined area are described in Sec. 301.98-3(c) in
the rule portion of this document.
Paragraph (b) of Sec. 301.98-3 provides that we may temporarily
designate any nonquarantined area in a State as a quarantined area when
we determine that the nonquarantined area meets the criteria for
designation as a quarantined area described in Sec. 301.98-3(a). In
such cases, we will give the owner or person in possession of the area
a copy of the regulations along with written notice of the area's
temporary designation as a quarantined area, after which time the
interstate movement of any regulated article from the area will be
subject to the regulations. This provision is necessary to prevent the
spread of the West Indian fruit fly during the time between the
detection of the pest and the time a document quarantining the area can
be made effective and published in the Federal Register. In the event
that an area's designation as a temporary quarantined area is
terminated, we will provide written notice of that termination to the
owner or person in possession of the area as soon as is practicable.
Section 301.98-4--Conditions Governing the Interstate Movement of
Regulated Articles from Quarantined Areas
This section requires most regulated articles moving interstate
from quarantined areas to be accompanied by a certificate or a limited
permit. APHIS or the U.S. Department of Agriculture (the Department)
may move regulated articles interstate without a certificate or limited
permit if the articles are moved for experimental or scientific
purposes. However, the articles must be moved in accordance with a
Departmental permit issued by the Administrator, under conditions
specified on the permit to prevent the spread of the West Indian fruit
fly.
Except for articles moved by APHIS or the Department, only articles
that are moved into the quarantined area from outside the quarantined
area and that are accompanied by a waybill that indicates the point of
origin may be moved interstate from the quarantined area without a
certificate or limited permit. Additionally, the articles must be moved
in an enclosed vehicle or be completely enclosed so as to prevent
access by West Indian fruit flies. The regulated articles must also be
moved through the quarantined area without stopping (except for
refueling, rest stops, emergency repairs, and for traffic conditions
such as traffic lights and stop signs), and the regulated articles must
not be unpacked or unloaded in the quarantined area.
Section 301.98-5--Issuance and Cancellation of Certificates and Limited
Permits
Under Federal domestic plant quarantine programs, there is a
difference between the use of certificates and limited permits.
Certificates are issued for regulated articles when an inspector finds
that, because of certain conditions (e.g., the article is free of West
Indian fruit fly), there is no pest risk before movement. Regulated
articles accompanied by a certificate may be moved interstate without
further restrictions. Limited permits are issued for regulated articles
when an inspector finds that, because of a possible pest risk, the
articles may be safely moved interstate only subject to further
restrictions, such as movement to limited areas and movement for
limited purposes. Section 301.98-5 explains the conditions for issuing
a certificate or limited permit.
Specifically, Sec. 301.98-5(a) provides that a certificate will be
issued by an inspector for the movement of a regulated article if the
inspector determines that the article: (1) Is free of the West Indian
fruit fly; has been treated in the presence of an inspector in
accordance with Sec. 301.98-10; or comes from a premises of origin that
is free of the West Indian fruit fly; (2) will be moved in compliance
with any additional emergency conditions deemed necessary to prevent
the spread of the West Indian fruit fly under section 414 of the Plant
Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 444, 7 U.S.C.
7714); and (3) is eligible for unrestricted movement under all other
Federal domestic plant quarantines and regulations applicable to that
article.
We have included a footnote (number 4) that provides an address for
securing the addresses and telephone numbers of the local Plant
Protection and Quarantine offices at which services of inspectors may
be requested. We have also included a footnote (number 5) that explains
that the Secretary of Agriculture can, under the Plant Protection Act,
take emergency actions to seize, quarantine, treat, destroy, or apply
other remedial measures to articles that are, or that he or she has
reason to believe are, infested or infected by or contain plant pests.
Paragraph (b) of Sec. 301.98-5 provides for the issuance of a
limited permit (in lieu of a certificate) by an inspector for
interstate movement of a regulated article if the inspector determines
that the article is to be moved to a specified destination for
specified handling, utilization or processing, and that the movement
will not result in the spread of the West Indian fruit fly.
Paragraph (c) of Sec. 301.98-5 allows any person who has entered
into and is operating under a compliance agreement to issue a
certificate or limited permit for the interstate movement of a
regulated article after an inspector has determined that the article is
eligible for a certificate or limited permit under Sec. 301.98-5(a) or
(b).
Also, Sec. 301.98-5(d) contains provisions for the withdrawal of a
certificate or limited permit by an inspector if the inspector
determines that the holder of the certificate or limited permit has not
complied with conditions for the use of the document. This section also
contains provisions for notifying the holder of the reasons for the
withdrawal and for holding a hearing if there is any conflict
concerning any material fact in the event that the person wishes to
appeal the cancellation.
Section 301.98-6--Compliance Agreements and Cancellation
Section 301.98-6 provides for the issuance and cancellation of
compliance agreements. Compliance agreements are provided for the
convenience of persons who are involved in interstate shipments of
regulated articles from quarantined areas. A compliance agreement will
be issued when an inspector has determined that the person requesting
the compliance agreement is knowledgeable regarding the requirements of
the regulations and the person has agreed to comply with those
requirements. This section contains a footnote (number 7) that explains
how compliance agreements may be arranged.
Section 301.98-6 also provides that an inspector may cancel the
compliance agreement upon finding that a person who has entered into
the agreement has failed to comply with any of the provisions of the
regulations. The inspector will notify the holder of the compliance
agreement of the reasons for
[[Page 6432]]
cancellation and offer an opportunity for a hearing to resolve any
conflicts of material fact in the event that the person wishes to
appeal the cancellation.
Section 301.98-7--Assembly and Inspection of Regulated Articles
Section 301.98-7 provides that any person (other than a person
authorized to issue certificates or limited permits under Sec. 301.98-
5(c)) who desires a certificate or limited permit to move regulated
articles must request, at least 48 hours before the desired interstate
movement, that an inspector issue a certificate or limited permit. The
regulated articles must be assembled in a place and manner directed by
the inspector.
Section 301.98-8--Attachment and Disposition of Certificates and
Limited Permits
Section 301.98-8 requires the certificate or limited permit issued
for movement of the regulated article to be attached, during the
interstate movement, to the regulated article, or to a container
carrying the regulated article, or to the accompanying waybill.
Further, the section requires that the carrier must furnish the
certificate or limited permit to the consignee listed on the
certificate or limited permit upon arrival at the location provided on
the certificate or limited permit.
These provisions are necessary for enforcement purposes and to
ensure that persons desiring inspection services can obtain them before
the intended movement date.
Section 301.98-9--Costs and Charges
Section 301.98-9 explains the APHIS policy that the services of an
inspector that are needed to comply with the regulations are provided
without cost between 8 a.m. and 4:30 p.m., Monday through Friday,
except holidays, to persons requiring those services, but that we will
not be responsible for any other costs or charges (such as overtime
costs for inspections conducted at times other than between 8 a.m. to
4:30 p.m., Monday through Friday, except holidays).
Section 301.98-10--Treatments
Section 301.98-10 lists treatments that qualify soil and regulated
articles for interstate movement with a certificate as provided in
Sec. 301.98-5.
Paragraph (a) provides that fruits and vegetables originating
inside the quarantined area that are to be moved outside the
quarantined area must be treated with an applicable treatment listed in
the Plant Protection and Quarantine Treatment Manual, which is
incorporated by reference at 7 CFR 300.1, ``Materials incorporated by
reference.''
Paragraph (b) provides that soil within the dripline of plants that
are producing or have produced the fruits and vegetables listed in
Sec. 301.98-2(a) of this subpart may be treated with diazinon at the
rate of 5 pounds active ingredient per acre with sufficient water to
wet the soil to a depth of at least \1/2\ inch. Research by the
Agricultural Research Service has determined that this diazinon
treatment would destroy the West Indian fruit fly in soil.
Paragraph (c) provides that premises that are located within the
regulated area but outside the infested core area, and that produce
regulated articles, may receive regular treatments with 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 West Indian fruit fly. Determination of the time
period must be based on the day degrees model for West Indian fruit
fly. Since the length of fruit fly life cycles vary according to the
temperature of their environment, the day degrees model is used to
project the duration of the life cycle of the 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. 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 of Spinosad, the mixture may be diluted with water to
improve coverage. After the treatment cycle is complete, regulated
articles produced on the premises will be eligible for interstate
movement with a certificate as provided in Sec. 301.98-5.
Emergency Action
This rulemaking is necessary on an emergency basis to prevent the
West Indian fruit fly from spreading to noninfested areas of the United
States. Under these circumstances, the Administrator has determined
that prior notice and opportunity for public comment are contrary to
the 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 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. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
This rule quarantines part of Cameron County, TX, because of the
West Indian fruit fly and restricts the interstate movement of
regulated articles from the quarantined area. This action is necessary
on an emergency basis to prevent the spread of the West Indian fruit
fly to noninfested areas of the United States.
Within the regulated area there are approximately 22 small entities
that may be affected by this rule. These include 5 fruit sellers and 17
growers. These 22 entities comprise less than 1 percent of the total
number of similar entities operating in the State of Texas.
Additionally, these small entities sell regulated articles primarily
for local intrastate--not interstate--movement, so the effect, if any,
of this rule on these entities appears to be minimal.
The effect on those few entities that do move regulated articles
interstate from the quarantined area 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.
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
[[Page 6433]]
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 the West Indian Fruit Fly Cooperative
Eradication Program. The assessment provides a basis for the conclusion
that the implementation of this interim rule will not have a
significant impact on human health and the natural 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 (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
In accordance with section 3507(j) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection and
recordkeeping requirements included in this interim rule have been
submitted for emergency approval to the Office of Management and Budget
(OMB). OMB has assigned control number 0579-0170 to the information
collection and recordkeeping requirements.
We plan to request continuation of that approval for 3 years.
Please send written comments on the 3-year approval request to the
following addresses: (1) Office of Information and Regulatory Affairs,
OMB, Attention: Desk Officer for APHIS, Washington, DC 20503, and (2)
Docket No. 00-110-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 00-110-1 and send your
comments within 60 days of publication of this rule.
This interim rule quarantines a part of Cameron, TX, because of the
West Indian fruit fly and restricts the interstate movement of
regulated articles from the quarantined area. Its implementation will
require us to engage in certain information collection activities, in
that certain articles may not be moved interstate from the quarantined
area unless they are accompanied by a certificate or a limited permit.
A certificate or limited permit may be issued by an inspector (i.e., an
APHIS employee or other person authorized by the APHIS Administrator to
enforce the regulations) or by a person who has entered into a written
compliance agreement with APHIS. We are soliciting comments from the
public concerning our information collection and recordkeeping
requirements. These comments will help us:
(1) Evaluate whether the information collection is necessary for
the proper performance of our agency's functions, including whether the
information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed information collection, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated to average 1 hour per response.
Respondents: State and county cooperators (inspectors); and
producers, handlers, and movers of regulated fruit and vegetables in
Cameron County, TX.
Estimated annual number of respondents: 37.
Estimated annual number of responses per respondent: 1.
Estimated annual number of responses: 37.
Estimated total annual burden on respondents: 37 hours.
Copies of this information collection can be obtained from Mrs.
Celeste Sickles, APHIS' Information Collection Coordinator, at (301)
734-7477.
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: Title IV, Pub. L. 106-224, 114 Stat. 438, 7 U.S.C.
7701-7772; 7 U.S.C. 166; 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, and Sec. 203, Title II, Pub. L. 106-
224, 114 Stat. 400 (7 U.S.C. 1421 note).
2. Part 301 is amended by adding a new ``Subpart--West Indian Fruit
Fly,'' Secs. 301.98 through 301.98-10, to read as follows:
Subpart--West Indian Fruit Fly
Sec.
301.98 Restrictions on interstate movement of regulated articles.
301.98-1 Definitions.
301.98-2 Regulated articles.
301.98-3 Quarantined areas.
301.98-4 Conditions governing the interstate movement of regulated
articles from quarantined areas.
301.98-5 Issuance and cancellation of certificates and limited
permits.
301.98-6 Compliance agreements and cancellation.
301.98-7 Assembly and inspection of regulated articles.
301.98-8 Attachment and disposition of certificates and limited
permits.
301.98-9 Costs and charges.
301.98-10 Treatments.
Subpart--West Indian Fruit Fly
Sec. 301.98 Restrictions on interstate movement of regulated articles.
No person may move interstate from any quarantined area any
regulated article except in accordance with this subpart.\1\
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\1\ 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 as provided in section 414 of the
Plant Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 444, 7
U.S.C. 7714).
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Sec. 301.98-1 Definitions.
Administrator. The Administrator, Animal and Plant Health
Inspection Service, or any person authorized to act for the
Administrator.
Animal and Plant Health Inspection Service. The Animal and Plant
Health Inspection Service (APHIS) of the United States Department of
Agriculture.
[[Page 6434]]
Certificate. A document in which an inspector or person operating
under a compliance agreement affirms that a specified regulated article
is free of West Indian fruit fly and may be moved interstate to any
destination.
Compliance agreement. A written agreement between APHIS and a
person engaged in growing, handling, or moving regulated articles,
wherein the person agrees to comply with this subpart.
Core area. The 1-square-mile area surrounding each property where
West Indian fruit fly has been detected.
Day degrees. A mathematical construct combining average temperature
over time that is used to calculate the length of a West Indian fruit
fly life cycle. Day degrees are the product of the following formula,
with all temperatures measured in deg.F: (Minimum Daily Temp+ Maximum
Daily Temp)/2)-54 deg.=Day Degrees.
Departmental permit. A document issued by the Administrator in
which he or she affirms that interstate movement of the regulated
article identified on the document is for scientific or experimental
purposes and that the regulated article is eligible for interstate
movement in accordance with Sec. 301.98-4(c) of this subpart.
Dripline. The line around the canopy of a plant.
Infestation. The presence of the West Indian fruit fly or the
existence of circumstances that makes it reasonable to believe that the
West Indian fruit fly is present.
Inspector. Any employee of the APHIS, U.S. Department of
Agriculture, or other person authorized by the Administrator to perform
the duties required under this subpart.
Interstate. From any State into or through any other State.
Limited permit. A document in which an inspector or person
operating under a compliance agreement affirms that the regulated
article identified on the document is eligible for interstate movement
in accordance with Sec. 301.98-5(b) of this subpart only to a specified
destination and only in accordance with specified conditions.
Moved (move, movement). Shipped, offered for shipment, received for
transportation, transported, carried, or allowed to be moved, shipped,
transported, or carried.
Person. Any association, company, corporation, firm, individual,
joint stock company, partnership, society, or other entity.
Plant Protection and Quarantine. Plant Protection and Quarantine,
Animal and Plant Health Inspection Service, United States Department of
Agriculture.
Quarantined area. Any State, or any portion of a State, listed in
Sec. 301.98-3(c) of this subpart or otherwise designated as a
quarantined area in accordance with Sec. 301.98-3(b) of this subpart.
Regulated article. Any article listed in Sec. 301.98-2 or otherwise
designated as a regulated article in accordance with Sec. 301.98-2(d).
State. The District of Columbia, Puerto Rico, the Northern Mariana
Islands, or any State, territory, or possession of the United States.
West Indian fruit fly. The insect known as the West Indian fruit
fly, Anastrepha obliqua (Macquart), in any stage of development.
Sec. 301.98-2 Regulated articles.
The following are regulated articles:
(a) West Indian fruit flies.\2\
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\2\ Permit and other requirements for the interstate movement of
West Indian fruit flies are contained in part 330 of this chapter.
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(b)(1) The following fruits and vegetables:
Barbados cherry (Malpighia glabra)
Carambola (Averrhoa carambola)
Grapefruit (Citrus paradisi)
Granadilla, giant (Passiflora quadrangularis)
Guava (Psidium guajava)
Guava, strawberry (Psidium littorale)
Hog-plum (Spondias mombin)
Japanese plum (Prunus salicina)
Jew plum (Spondias cytherea)
Ketembilla (Dovyalis hebecarpa)
Lime, sweet (Citrus aurantifolia)
Loquat (Eriobotrya japonica)
Malay-apple (Syzygium malaccense)
Mango (Mangifera indica)
Orange, sour (Citrus aurantium)
Orange, sweet (Citrus sinensis)
Passion fruit (Passiflora edulis)
Peach (Prunus persica)
Pear (Pyrus communis)
Ramon (Brosimum alicastrum)
Red mombin (Spondias purpurea)
Rose-apple (Syzygium jambos)
Sapodilla (Manilkara zapota)
Sapote (Diospyros spp.)
(2) Any fruits or vegetables that are canned or dried or frozen
below -17.8 deg.C. (0 deg.F.) are not regulated articles.
(c) Soil within the dripline of plants that are producing or have
produced the fruits or vegetables listed in paragraph (b) of this
section.
(d) Any other product, article, or means of conveyance not listed
in paragraphs (a) through (c) of this section that an inspector
determines presents a risk of spreading the West Indian fruit fly, when
the inspector notifies the person in possession of the product,
article, or means of conveyance that it is subject to the restrictions
of this subpart.
Sec. 301.98-3 Quarantined areas.
(a) Except as otherwise provided in paragraph (b) of this section,
the Administrator will list as a quarantined area in paragraph (c) of
this section each State, or each portion of a State, in which the West
Indian fruit fly has been found by an inspector, in which the
Administrator has reason to believe that the West Indian fruit fly is
present, or that the Administrator considers necessary to quarantine
because of its inseparability for quarantine enforcement purposes from
localities in which the West Indian fruit fly has been found. 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
intrastate movement of the regulated articles that are substantially
the same as those imposed by this subpart 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 West Indian fruit fly.
(b) The Administrator or an inspector may temporarily designate any
nonquarantined area in a State as a quarantined area in accordance with
paragraph (a) of this section. The Administrator will give a copy of
this regulation along with a written notice for the temporary
designation to the owner or person in possession of the nonquarantined
area. Thereafter, the interstate movement of any regulated article from
an area temporarily designated as a quarantined area will be subject to
this subpart. As soon as practicable, this area will be added to the
list in paragraph (c) of this section or the designation will be
terminated by the Administrator or an inspector. The owner or person in
possession of an area for which designation is terminated will be given
notice of the termination as soon as practicable.
(c) The areas described below are designated as quarantined areas:
Texas
Cameron County. That portion of Cameron County bounded by a line
drawn as follows: Beginning at the intersection of FM 106 and Robertson
Road; then north on Robertson Road to Fernando Road; then east on
Fernando Road to Alexander Road; then north on Alexander Road to
Taubert Road; then east on Taubert Road to FM 2925; then north on FM
2925 to Johnson Road; then east on Johnson Road to North Olimeto
[[Page 6435]]
Road; then east along an imaginary line to FM 1847; then south on FM
1847 to FM 510; then west on FM 510 to Casey Road; then north on Casey
Road to Bean Road; then west on Bean Road to FM 345; then north on FM
345 to Glenview Road; then west on Glenview Road to Robertson Road;
then north on Robertson Road to the point of beginning.
Sec. 301.98-4 Conditions governing the interstate movement of
regulated articles from quarantined areas.
Any regulated article may be moved interstate from a quarantined
area \3\ only if moved under the following conditions:
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\3\ Requirements under all other applicable Federal domestic
plant quarantines and regulations must also be met.
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(a) With a certificate or limited permit issued and attached in
accordance with Secs. 301.98-5 and 301.98-8 of this subpart;
(b) Without a certificate or limited permit if:
(1) The regulated article originated outside the quarantined area
and is either moved in an enclosed vehicle or is completely enclosed by
a covering adequate to prevent access by West Indian fruit flies (such
as canvas, plastic, or other closely woven cloth) while moving through
the quarantined area; and
(2) The point of origin of the regulated article is indicated on
the waybill, and the enclosed vehicle or the enclosure that contains
the regulated article is not opened, unpacked, or unloaded in the
quarantined area; and
(3) The regulated article is moved through the quarantined area
without stopping except for refueling or for traffic conditions, such
as traffic lights or stop signs.
(c) Without a certificate or limited permit if the regulated
article is moved:
(1) By the United States Department of Agriculture for experimental
or scientific purposes;
(2) Pursuant to a Departmental permit issued by the Administrator
for the regulated article;
(3) Under conditions specified on the Departmental permit and found
by the Administrator to be adequate to prevent the spread of the West
Indian fruit fly; and
(4) With a tag or label bearing the number of the Departmental
permit issued for the regulated article attached to the outside of the
container of the regulated article or attached to the regulated article
itself if not in a container.
(Approved by the Office of Management and Budget under control
number 0579-0170)
Sec. 301.98-5 Issuance and cancellation of certificates and limited
permits.
(a) A certificate may be issued by an inspector \4\ for the
interstate movement of a regulated article if the inspector determines
that:
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\4\ Services of an inspector may be requested by contacting
local offices of Plant Protection and Quarantine, which are listed
in telephone directors. The addresses and telephone numbers of local
offices may also be obtained from the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, Invasive
Species and Pest Management, 4700 River Road Unit 134, Riverdale, MD
20737-1236, or the APHIS web site at http://www.aphis.usda.gov/
travel/aqui.html.
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(1)(i) The regulated article has been treated under the direction
of an inspector in accordance with Sec. 301.98-10 of this subpart; or
(ii) Based on inspection of the premises of origin, the premises
are free from the West Indian fruit fly; or
(iii) Based on inspection of the regulated article, the regulated
article is free of West Indian fruit flies; and
(2) The regulated article will be moved through the quarantined
area in an enclosed vehicle or will be completely enclosed by a
covering adequate to prevent access by the West Indian fruit fly; and
(3) The regulated article is to be moved in compliance with any
additional emergency conditions the Administrator may impose under
section 414 of the Plant Protection Act (Title IV, Pub. L. 106-224, 114
Stat. 444, 7 U.S.C. 7714) \5\ to prevent the spread of the West Indian
fruit fly; and
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\5\ Section 414 of the Plant Protectin Act (Title IV, Pub. L.
106-224, 114 Stat. 444, 7 U.S.C. 7714) provides that the Secretary
of Agriculture may, under certain conditions, hold, seize,
quarantine, treat, apply other remedial measures to destroy or
otherwise dispose of any plant, plant pest, plant product, article,
or means of conveyance that is moving, or has moved into or through
the United States or interstate if the Secretary has reason to
believe the article is a plant pest or is infested with a plant pest
at the time of movement.
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(4) The regulated article is eligible for unrestricted movement
under all other Federal domestic plant quarantines and regulations
applicable to the regulated article.
(b) An inspector \6\ will issue a limited permit for the interstate
movement of a regulated article if the inspector determines that:
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\6\ See footnote 4 to Sec. 301.98-5(a).
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(1) The regulated article is to be moved interstate to a specified
destination for specified handling, processing, or utilization (the
destination and other conditions to be listed in the limited permit),
and this interstate movement will not result in the spread of the West
Indian fruit fly because life stages of the West Indian fruit fly will
be destroyed by the specified handling, processing, or utilization;
(2) The regulated article is to be moved in compliance with any
additional emergency conditions the Administrator may impose under
section 414 of the Plant Protection Act (Title IV, Pub. L. 106-224, 114
Stat. 444, 7 U.S.C. 7714) to prevent the spread of the West Indian
fruit fly; and
(3) The regulated article is eligible for interstate movement under
all other Federal domestic plant quarantines and regulations applicable
to the regulated article.
(c) Certificates and limited permits for the interstate movement of
regulated articles may be issued by an inspector or person operating
under a compliance agreement. A person operating under a compliance
agreement may issue a certificate for the interstate movement of a
regulated article if an inspector has determined that the regulated
article is eligible for a certificate in accordance with paragraph (a)
of this section. A person operating under a compliance agreement may
issue a limited permit for interstate movement of a regulated article
when an inspector has determined that the regulated article is eligible
for a limited permit in accordance with paragraph (b) of this section.
(d) Any certificate or limited permit that has been issued may be
withdrawn, either orally or in writing, by an inspector if he or she
determines that the holder of the certificate or limited permit has not
complied with all conditions in this subpart for the use of the
certificate or limited permit. If the withdrawal is oral, the
withdrawal and the reasons for the withdrawal will be confirmed in
writing as promptly as circumstances allow. Any person whose
certificate or limited permit has been withdrawn may appeal the
decision in writing to the Administrator within 10 days after receiving
the written notification of the withdrawal. The appeal must state all
of the facts and reasons upon which the person relies to show that the
certificate or limited permit was wrongfully withdrawn. As promptly as
circumstances allow, the Administrator will grant or deny the appeal,
in writing, stating the reasons for the decision. A hearing will be
held to resolve any conflict as to any material fact. Rules of practice
concerning a hearing will be adopted by the Administrator.
(Approved by the Office of Management and Budget under control
number 0579-0170)
[[Page 6436]]
Sec. 301.98-6 Compliance agreements and cancellation.
(a) Any person engaged in growing, handling, or moving regulated
articles may enter into a compliance agreement when an inspector
determines that the person understands this subpart, agrees to comply
with its provisions, and agrees to comply with all the provisions
contained in the compliance agreement.\7\
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\7\ Compliance agreement forms are available without charge from
the Animal and Plant Health Inspection Service, Plant Protection and
Quarantine, Invasive Species and Pest Management, 4700 River Road
Unit 134, Riverdale, MD 20737-1236, and from local offices of the
Plant Protection and Quarantine, which are listed in telephone
directories.
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(b) Any compliance agreement may be canceled, either orally or in
writing, by an inspector whenever the inspector finds that the person
who has entered into the compliance agreement has failed to comply with
this subpart. If the cancellation is oral, the cancellation and the
reasons for the cancellation will be confirmed in writing as promptly
as circumstances allow. Any person whose compliance agreement has been
canceled may appeal the decision, in writing, within 10 days after
receiving written notification of the cancellation. The appeal must
state all of the facts and reasons upon which the person relies to show
that the compliance agreement was wrongfully canceled. As promptly as
circumstances allow, the Administrator will grant or deny the appeal,
in writing, stating the reasons for the decision. A hearing will be
held to resolve any conflict as to any material fact. Rules of practice
concerning a hearing will be adopted by the Administrator.
Sec. 301.98-7 Assembly and inspection of regulated articles.
(a) Any person (other than a person authorized to issue
certificates or limited permits under Sec. 301.98-5(c)) who desires to
move a regulated article interstate accompanied by a certificate or
limited permit must notify an inspector \8\ as far in advance of the
desired interstate movement as possible, but no less than 48 hours
before the desired interstate movement.
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\8\ See footnote 4 to Sec. 301.98-5(a).
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(b) The regulated article must be assembled at the place and in the
manner the inspector designates as necessary to comply with this
subpart.
Sec. 301.98-8 Attachment and disposition of certificates and limited
permits.
(a) A certificate or limited permit required for the interstate
movement of a regulated article must, at all times during the
interstate movement, be:
(1) Attached to the outside of the container containing the
regulated article; or
(2) Attached to the regulated article itself if not in a container;
or
(3) Attached to the consignee's copy of the accompanying waybill.
If the certificate or limited permit is attached to the consignee's
copy of the waybill, the regulated article must be sufficiently
described on the certificate or limited permit and on the waybill to
identify the regulated article.
(b) The certificate or limited permit for the interstate movement
of a regulated article must be furnished by the carrier to the
consignee listed on the certificate or limited permit upon arrival at
the location provided on the certificate or limited permit.
(Approved by the Office of Management and Budget under control
number 0579-0170)
Sec. 301.98-9 Costs and charges.
The services of the inspector during normal business hours (8 a.m.
to 4:30 p.m., Monday through Friday, except holidays) will be furnished
without cost. The user will be responsible for all costs and charges
arising from inspection and other services provided outside normal
business hours.
Sec. 301.98-10 Treatments.
Treatment schedules listed in the Plant Protection and Quarantine
Treatment Manual to destroy the West Indian fruit fly are authorized
for use on regulated articles. The Plant Protection and Quarantine
Treatment Manual is incorporated by reference. For the full
identification of this standard, see Sec. 300.1 of this chapter,
``Materials incorporated by reference.'' The following treatments also
may be used for the regulated articles indicated:
(a) Soil within the dripline of plants that are producing or have
produced the fruits and vegetables listed in Sec. 301.98-2(a) of this
subpart. Apply diazinon at the rate of 5 pounds active ingredient per
acre to the soil within the dripline with sufficient water to wet the
soil to at least a depth of \1/2\ inch.
(b) Premises. Fields, groves, or areas that are located within a
quarantined area but outside the infested core area and that produce
regulated articles may receive regular treatments with either malathion
or spinosad bait spray as an alternative to treating fruits and
vegetables as provided in the Plant Protection and Quarantine Treatment
Manual. 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 development of West Indian fruit fly egg
and larvae. Determination of the time period must be based on the day
degrees model for West Indian 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.
Done in Washington, DC, this 12th day of January 2001.
Craig A. Reed,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 01-1618 Filed 1-19-01; 8:45 am]
BILLING CODE 3410-34-P
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