[Federal Register: May 8, 2003 (Volume 68, Number 89)]
[Rules and Regulations]
[Page 24605-24613]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my03-2]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 03-032-1]
Sapote 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 Hidalgo County, TX, because of the
sapote 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 sapote fruit fly to
noninfested areas of the United States.
[[Page 24606]]
DATES: This interim rule was effective May 2, 2003. We will consider
all comments that we receive on or before July 7, 2003.
ADDRESSES: You may submit comments by postal mail/commercial delivery
or by e-mail. If you use postal mail/commercial delivery, please send
four copies of your comment (an original and three copies) to: Docket
No. 03-032-1, Regulatory Analysis and Development, PPD, APHIS, Station
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state
that your comment refers to Docket No. 03-032-1. If you use e-mail,
address your comment to regulations@aphis.usda.gov. Your comment must
be contained in the body of your message; do not send attached files.
Please include your name and address in your message and ``Docket No.
03-032-1'' on the subject line.
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. Stephen A. Knight, Senior Staff
Officer, 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, ``Sapote Fruit Fly'' (Sec. Sec. 301.99
through 301.99-10, referred to below as the regulations). The
regulations quarantine part of Hidalgo County, TX, because of the
sapote fruit fly and restrict the interstate movement of regulated
articles from the quarantined area.
The sapote fruit fly (Anastrepha serpentina) is a destructive pest
of fruits and vegetables, including apples, avocados, grapefruit,
mangoes, peaches, pears, and tangerines. 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 the complete loss of these crops.
Recent trapping surveys in the lower Rio Grande valley in Texas
have established that part of Hidalgo County, TX, is infested with
sapote 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. Texas
has restricted the intrastate movement of certain articles from the
infested area to prevent the spread of the sapote 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 sapote fruit fly to noninfested areas of the
United States. This interim rule establishes those Federal regulations,
which are described below.
Section 301.99--Restrictions on Interstate Movement of Regulated
Articles
Section 301.99 prohibits the interstate movement of regulated
articles from quarantined areas except in accordance with the
regulations.
Section 301.99-1--Definitions
Section 301.99-1 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 article, sapote fruit fly, and State.
Section 301.99-2--Regulated Articles
Certain articles present a significant risk of spreading the sapote
fruit fly if they are moved from quarantined areas without
restrictions. We call these articles regulated articles. Paragraphs (a)
through (e) of Sec. 301.99-2 list the following as regulated articles:
[sbull] The sapote fruit fly;
[sbull] Fruits and vegetables that are not canned or dried or that
are not frozen below -17.8 [deg]C (0 [deg]F);
[sbull] Soil within the dripline of plants that are producing or
have produced those fruits or vegetables; and
[sbull] Any other product, article, or means of conveyance that an
inspector determines to present a risk of spreading the sapote fruit
fly after the inspector provides written notification to 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 sapote 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 301.99-3--Quarantined Areas
Paragraph (a) of Sec. 301.99-3 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 sapote fruit fly is found by an inspector, or in which the
Administrator has reason to believe that the sapote 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 sapote
fruit fly has been found.
Paragraph (a) of Sec. 301.99-3 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 an entire State as a quarantined area will
prevent the interstate spread of the sapote 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 sapote fruit fly has been detected. The 4.5
mile radius distance for regulated areas from the trapping sites for
sapote 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 sapote fruit fly. The boundary lines may vary due to
factors such as the location of sapote fruit fly host material, the
location of transportation centers such as bus stations and airports,
the pattern of persons moving in that State, the
[[Page 24607]]
number and patterns of distribution of the sapote fruit fly, and the
use of clearly identifiable lines for the boundaries.
We have determined that it is not necessary to designate the entire
State of Texas as a quarantined area. The sapote fruit fly has not been
found in any area of the State other than a portion of Hidalgo County,
and Texas has adopted and is enforcing restrictions on the intrastate
movement of regulated articles from that area that are equivalent to
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 lower Rio Grande valley in
Hidalgo County, TX, as a quarantined area. The boundaries of the
quarantined area are described in Sec. 301.99-3(c) in the rule portion
of this document.
Paragraph (b) of Sec. 301.99-3 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. 301.99-3(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 sapote 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 practicable.
Section 301.99-4--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. The U.S. Department of Agriculture (USDA or 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 sapote fruit fly.
Except for articles moved by APHIS or the Department, only
regulated 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 sapote fruit flies. The regulated
articles must also be moved through the quarantined area without
stopping (except for refueling 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 301.99-5--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
sapote 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 301.99-5 explains the conditions for issuing
a certificate or limited permit.
Specifically, Sec. 301.99-5(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 sapote fruit
fly, has been treated in the presence of an inspector in accordance
with Sec. 301.99-10, or comes from a premises of origin that is free
of the sapote fruit fly; (2) will be moved in compliance with any
additional emergency conditions deemed necessary to prevent the spread
of the sapote fruit fly under section 414 of the Plant Protection Act
(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 (PPQ) offices at which services of inspectors
may be requested. We have also included a footnote (number 5) that
explains that the Secretary of Agriculture may, 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. 301.99-5 provides for the issuance of a
limited permit 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
sapote fruit fly. A limited permit will only be issued if the regulated
article will be moved in compliance with any additional emergency
conditions imposed by the Administrator under section 414 of the Plant
Protection Act (7 U.S.C. 7714) to prevent the spread of the sapote
fruit fly, and if the regulated article is eligible for interstate
movement under all other Federal domestic plant quarantines and
regulations applicable to the regulated article.
Paragraph (c) of Sec. 301.99-5 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. 301.99-5(a) or
(b).
Also, Sec. 301.99-5(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 301.99-6--Compliance Agreements and Cancellation
Section 301.99-6 provides for the use of and cancellation of
compliance agreements. Compliance agreements are provided for the
convenience of persons who are involved in the growing, handling, or
moving of regulated articles from quarantined areas. A person may enter
into a compliance agreement when an inspector has determined that the
person requesting the compliance
[[Page 24608]]
agreement has been made aware of the requirements of the regulations
and the person has agreed to comply with the requirements of the
regulations and the provisions of the compliance agreement. This
section contains a footnote (number 7) that explains where compliance
agreement forms may be obtained.
Section 301.99-6 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 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 301.99-7--Assembly and Inspection of Regulated Articles
Section 301.99-7 provides that any person (other than a person
authorized to issue certificates or limited permits under Sec. 301.99-
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 301.99-8--Attachment and Disposition of Certificates and
Limited Permits
Section 301.99-8 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 consignee's copy of the
accompanying waybill. Further, the section requires that the carrier or
the carrier's representative 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.
Section 301.99-9--Costs and Charges
Section 301.99-9 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 301.99-10--Treatments
Section 301.99-10 lists treatments that qualify soil and regulated
articles for interstate movement with a certificate as provided in
Sec. 301.99-5.
The introductory text of this section provides that any person
moving fruits and vegetables originating inside the quarantined area
outside of the quarantined area may treat those fruits and vegetables
with an applicable treatment listed in the PPQ Treatment Manual, which
is incorporated by reference at 7 CFR 300.1, ``Plant Protection and
Quarantine Treatment Manual.''
Paragraph (a) provides that soil within the dripline of plants that
are producing or have produced the fruits and vegetables listed in
Sec. 301.99-2(a) of the 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
Department's Agricultural Research Service has determined that this
diazinon treatment would destroy the sapote fruit fly in soil.
Paragraph (b) provides that citrus fruits originating inside the
quarantined area that are to be moved outside the quarantined area may
be treated with methyl bromide fumigation in APHIS-approved chambers as
an alternative to the treatments prescribed in the PPQ Treatment
Manual. Exposure period for this treatment is 2 hours. Fruit pulp
temperature must be between 21.1 [deg]C and 29.4 [deg]C (70 [deg]F and
85 [deg]F). This temperature requirement refers to fruit pulp only and
not to air temperature within the chamber. Fruit taken from a cooling
room may have to be pre-warmed before fumigation is attempted. To
determine fruit pulp temperature, stab several fruit to the center with
a suitable thermometer that reads at least in whole degrees (F or C).
The lowest temperature should be used, not the average. The methyl
bromide dosage is set at a rate of 2.5 pounds of 100 percent pure, type
``Q'' (for quarantine use only) methyl bromide per 1,000 cubic feet of
chamber space. After the treatment cycle is complete, regulated
articles will be eligible for interstate movement with a certificate as
provided in Sec. 301.99-5 unless, prior to treatment, representative
sampling revealed a level of infestation greater than 0.5 percent for
the lot.
Paragraph (d) 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 as an alternative to treating fruits and vegetables
with methyl bromide fumigation as described above or with treatments
prescribed in the PPQ 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
completion of egg and larvae development of the sapote fruit fly.
Determination of the time period must be based on the day degrees model
for sapote 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. 301.99-5.
Emergency Action
This rulemaking is necessary on an emergency basis to prevent the
sapote 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 we receive during the comment period for
this interim rule (see DATES above). 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.
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 under
Executive Order 12866.
[[Page 24609]]
This emergency situation makes timely compliance with section 604
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) impracticable.
We are currently assessing the potential economic effects of this
action on small entities. Based on that assessment, we will either
certify that the rule will not have a significant economic impact on a
substantial number of small entities or publish a final regulatory
flexibility analysis.
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 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 Sapote 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 in our reading
room (information on the location and hours of the reading room is
provided under the heading ADDRESSES at the beginning of this
document). Copies may also be obtained by calling or writing to the
individual listed under FOR FURTHER INFORMATION CONTACT. In addition,
copies are available on the Internet at http://www.aphis.usda.gov/ppd/es/sapff.htm
.
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 0579-0222 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. 03-032-1, Regulatory Analysis and Development, PPD, APHIS,
Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238.
Please state that your comments refer to Docket No. 03-032-1 and send
your comments within 60 days of publication of this rule.
This interim rule quarantines a part of Hidalgo County, TX, because
of the sapote 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 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 (as well as affected agencies) 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
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 0.16 hours per response.
Respondents: Growers, State plant regulatory officials.
Estimated annual number of respondents: 700.
Estimated annual number of responses per respondent: 1.
Estimated annual number of responses: 700.
Estimated total annual burden on respondents: 112 hours. (Due to
averaging, the total annual burden hours may not equal the product of
the annual number of responses multiplied by the reporting burden per
response.)
Copies of this information collection can be obtained from Mrs.
Celeste Sickles, APHIS Information Collection Coordinator, at (301)
734-7477.
Government Paperwork Elimination Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the Government Paperwork Elimination Act (GPEA), which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. For information pertinent to GPEA
compliance related to this interim rule, please contact 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.
0
Accordingly, we are amending 7 CFR part 301 as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 is revised to read as
follows:
Authority: 7 U.S.C. 7701-7772; 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; sections 301.75-15 and 301.75-
[[Page 24610]]
16 also issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat.
400 (7 U.S.C. 1421 note).
0
2. Part 301 is amended by adding a new ``Subpart--Sapote Fruit Fly,''
Sec. Sec. 301.99 through 301.99-10, to read as follows:
Subpart--Sapote Fruit Fly
Sec.
301.99 Restrictions on interstate movement of regulated articles.
301.99-1 Definitions.
301.99-2 Regulated articles.
301.99-3 Quarantined areas.
301.99-4 Conditions governing the interstate movement of regulated
articles from quarantined areas.
301.99-5 Issuance and cancellation of certificates and limited
permits.
301.99-6 Compliance agreements and cancellation.
301.99-7 Assembly and inspection of regulated articles.
301.99-8 Attachment and disposition of certificates and limited
permits.
301.99-9 Costs and charges.
301.99-10 Treatments.
Subpart--Sapote Fruit Fly
Sec. 301.99 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 (7 U.S.C. 7714).
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Sec. 301.99-1 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.
Certificate. A document in which an inspector or person operating
under a compliance agreement affirms that a specified regulated article
is free of sapote 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
sapote fruit fly has been detected.
Day degrees. A mathematical construct combining average temperature
over time that is used to calculate the length of a sapote 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 = 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. 301.99-4(c) of this subpart.
Dripline. The line around the canopy of a plant.
Infestation. The presence of the sapote fruit fly or the existence
of circumstances that makes it reasonable to believe that the sapote
fruit fly is present.
Inspector. Any employee of APHIS 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. 301.99-5(b) 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. The Plant Protection and
Quarantine program of the Animal and Plant Health Inspection Service,
United States Department of Agriculture.
Quarantined area. Any State, or any portion of a State, listed in
Sec. 301.99-3(c) or otherwise designated as a quarantined area in
accordance with Sec. 301.99-3(b).
Regulated article. Any article listed in Sec. 301.99-2 or
otherwise designated as a regulated article in accordance with Sec.
301.99-2(d).
Sapote fruit fly. The insect known as the sapote fruit fly,
Anastrepha serpentina, in any stage of development.
State. The District of Columbia, Puerto Rico, the Northern Mariana
Islands, or any State, territory, or possession of the United States.
Sec. 301.99-2 Regulated articles.
The following are regulated articles:
(a) Sapote fruit flies.\2\
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\2\ Permit and other requirements for the interstate movement of
sapote fruit flies are contained in part 330 of this chapter.
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(b) The following fruits and vegetables:
Abiu (Pouteria caimito)
Apple (Malus domestica)
Avocado (Persea americana)
Black sapote (Diospyros digyna)
Citrus (Citrus spp.)
Egg-fruit tree (Pouteria campechiana)
Green sapote (Pouteria viridis)
Guava (Psidium guajava)
Hog-plum (Spondias mombin)
Ketembilla (Dovyalis hebecarpa)
Lucmo (Pouteria obovata)
Mammy apple (Mammea americana)
Mango (Mangifera indica)
Nance (Byrsonima crassifolia)
Panama orange (Citrofortunella x mitis)
Peach (Prunus perscia)
Pear (Pyrus communis)
Pond-apple (Annona glabra)
Quince (Cydonia oblonga)
Red mombin (Spondias purpurea)
Sapodilla (Manilkara zapota)
Sapote (Diospyros spp.)
Star-apple (Chrysophyllum Cainito)
Any fruits or vegetables that are not canned or dried or frozen
below -17.8 [deg]C. (0 [deg]F.).
(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 sapote fruit fly, after the
inspector provides written notification to the person in possession of
the product, article, or means of conveyance that it is subject to the
restrictions of this subpart.
Sec. 301.99-3 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
sapote fruit fly has been found by an inspector, in which the
Administrator has reason to believe that the sapote 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 sapote 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
[[Page 24611]]
movement of the regulated articles that are equivalent to 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 sapote 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, the 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 in this paragraph are designated as
quarantined areas:
Texas
Hidalgo County. That portion of Hidalgo County bounded by a line as
follows: Beginning at the intersection of South Cage Boulevard and the
Rio Grande River; then northwest along the Rio Grande River for 17.11
miles; then north along an imaginary line to the intersection of Aloe
Vera and Sunrise Street; then northeast along an imaginary line to the
intersection of Victoria and Davina Street; then northwest along an
imaginary line to the intersection of Farm Road 495 and North Stewart
Road; then northeast along an imaginary line to the intersection of
North Ware Road and Mile 4 North Road; then east on Mile 4 North Road
(also known as West Alberta Road) to South I Road; then south on South
I Road to West Earling Road; then east on West Earling Road to North
San Juan Road; then south on North San Juan Road to East Ferguson
Avenue; then east on East Ferguson Avenue to East Gasline Road; then
south on East Gasline Road to East Nebraska Road; then east on East
Nebraska Road to North Morningside Road; then south on North
Morningside Road to Expressway 83; then east on Expressway 83 to North
Alamo Road; then north on North Alamo Road to Earling Road; then west
on Earling Road to North Morningside Road; then north on North
Morningside Road to East Curve Road; then east on East Curve Road to
Alamo Road; then north on Alamo Road to Mile 17 Road North; then west
on Mile 17 Road North to Sharp Road; then northeast on Sharp Road to
Mile 18 Road North; then east on Mile 18 Road North continuing along an
imaginary line to Mile 17 Road North and Mile 6 Road West; then south
on Mile 6 Road West to Mile 17 Road North; then east on Mile 17 Road
North to West Broadway Street; then south on West Broadway Street to
State Highway 107; then east on State Highway 107 to Mile 4 Road West;
then south on Mile 4 Road West to Mile 13 Road North; then east on Mile
13 Road North to Farm Road 1015; then south on Farm Road 1015 to
Expressway 83; then west on Expressway 83 to South Bridge Avenue; then
south on South Bridge Avenue to East Eighth Street; then west on East
Eighth Street to South Border Avenue; then south on South Border Avenue
to Mile 6 Road North; then west on Mile 6 Road North to Midway Road;
then south on Midway Road to Lott Road; then west on Lott Road,
continuing along an imaginary line to the intersection of FM 907 and
Resaca Road; then south on FM 907 to Balli Road; then west on Balli
Road to FM 2557; then south on FM 2557 to Las Milpas Road; then east on
Las Milpas Road to South I Road; then south on South I Road to Hi Line
Road; then west on Hi Line Road to South Cage Boulevard; then south on
South Cage Boulevard to the point of beginning.
Sec. 301.99-4 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 Sec. Sec. 301.99-5 and 301.99-8;
(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 sapote 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 sapote
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
0579-0222)
Sec. 301.99-5 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 directories. The addresses and telephone numbers of
local offices may also be obtained from the McAllen Work Station,
Federal Building Suite 119, 320 North Main, McAllen, TX 78501-4699,
or the APHIS Web site at http://www.aphis.usda.gov/travel/aqi.html.
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(1)(i) The regulated article has been treated under the direction
of an inspector in accordance with Sec. 301.99-10; or
(ii) Based on inspection of the premises of origin, the premises
are free from the sapote fruit fly; or
(iii) Based on inspection of the regulated article, the regulated
article is free of sapote 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 sapote 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 (7 U.S.C. 7714)\5\ to prevent
the spread of the sapote fruit fly; and
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\5\ Section 414 of the Plant Protection Act (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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[[Page 24612]]
(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. 301.99-5(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
sapote fruit fly because life stages of the sapote 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 (7 U.S.C. 7714) to prevent the
spread of the sapote 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 after 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
after 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
0579-0222)
Sec. 301.99-6 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 is aware of 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 McAllen Work Station, Federal Building Suite 119, 320 North
Main, McAllen, TX 78501-4699, and from local Plant Protection and
Quarantine offices, 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, to the Administrator,
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. 301.99-7 Assembly and inspection of regulated articles.
(a) Any person (other than a person authorized to issue
certificates or limited permits under Sec. 301.99-5(c)) who desires a
certificate or limited permit to move a regulated article interstate
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. 301.99-5(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. 301.99-8 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 or the
carrier's representative 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
0579-0222)
Sec. 301.99-9 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. 301.99-10 Treatments.
Treatment schedules listed in the Plant Protection and Quarantine
Treatment Manual to destroy the sapote 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
[[Page 24613]]
Sec. 300.1 of this chapter, ``Plant Protection and Quarantine
Treatment Manual.'' 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. 301.99-2(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) Citrus fruits. Regulated citrus fruits originating inside the
quarantined area that are to be moved outside the quarantined area may
be treated with methyl bromide fumigation in APHIS-approved chambers as
an alternative to treating the fruits as provided in the Plant
Protection and Quarantine Treatment Manual. Exposure period for this
treatment is 2 hours.\9\ Fruit pulp temperature must be between 21.1
[deg]C and 29.4 [deg]C (70 [deg]F and 85 [deg]F). This temperature
requirement refers to fruit pulp only and not to air temperature within
the chamber. Fruit taken from a cooling room may have to be pre-warmed
before fumigation is attempted. To determine fruit pulp temperature,
stab several fruit to the center with a suitable thermometer that reads
at least in whole degrees (F or C). The lowest temperature should be
used, not the average. The methyl bromide dosage is set at a rate of
2.5 pounds of 100 percent pure, type ``Q'' (for quarantine use only)
methyl bromide per 1,000 cubic feet of chamber space.\10\ However, if,
prior to treatment, representative sampling reveals a level of
infestation greater than 0.5 percent for the lot, then the fruit is
ineligible for treatment.
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\9\ To enhance equal concentrations of methyl bromide throughout
the chamber, a fan should be placed near the point of gas
introduction, and allowed to run for at least 15 minutes.
\10\ Dosage is based upon chamber volume, not the volume of the
fruit being treated. Fruit should be in cartons approved for
fumigation. Cartons must be placed on pallets. There should be an
air space of at least 1 foot between adjacent pallet loads; at least
1 foot between chamber walls and the nearest carton of fruit; and at
least 2 feet between the height of the stack and the ceiling of the
chamber. The compressed liquid methyl bromide inside the cylinder
must be put through a volatilizer prior to injection into the
chamber. Water temperature in the volatilizer must never fall below
65.6 [deg]C (150 [deg]F) at any time during gas injection.
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(c) 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 the regulated
articles with methyl bromide fumigation or those treatments 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 sapote fruit fly egg and larvae. Determination of the
time period must be based on the day degrees model for sapote 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 2nd day of May 2003 .
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-11438 Filed 5-7-03; 8:45 am]
BILLING CODE 3410-34-P