[Code of Federal Regulations]
[Title 7, Volume 5]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR301]
[Page 52-56]
TITLE 7--AGRICULTURE
CHAPTER III--ANIMAL AND PLANT HEALTH INSPECTION SERVICE, DEPARTMENT OF
AGRICULTURE
PART 301_DOMESTIC QUARANTINE NOTICES--Table of Contents
Subpart_Emerald Ash Borer
Source: 68 FR 59088, Oct. 8, 2003, unless otherwise noted.
Sec. 301.53-1 Definitions.
Administrator. The Administrator, Animal and Plant Health Inspection
Service, or any individual authorized to act for the Administrator.
Animal and Plant Health Inspection Service (APHIS). The Animal and
Plant Health Inspection Service of the United States Department of
Agriculture.
Certificate. A document that is issued for a regulated article by an
inspector or by a person operating under a compliance agreement and that
represents that such article is eligible for interstate movement in
accordance with Sec. 301.53-5(a).
Compliance agreement. A written agreement between APHIS and a person
engaged in growing, handling, or moving regulated articles that are
moved interstate, in which the person agrees to comply with the
provisions of this subpart and any conditions imposed under this
subpart.
[[Page 53]]
Emerald ash borer. The insect known as emerald ash borer (Agrilus
planipennis [Coleoptera: Buprestidae]) in any stage of development.
Infestation. The presence of the emerald ash borer or the existence
of circumstances that make it reasonable to believe that the ash borer
is present.
Inspector. Any employee of the Animal and Plant Health Inspection
Service, or other individual authorized by the Administrator to enforce
the provisions of this subpart.
Interstate. From any State into or through any other State.
Limited permit. A document in which an inspector or a person
operating under a compliance agreement affirms that the regulated
article not eligible for a certificate is eligible for interstate
movement only to a specified destination and in accordance with
conditions specified on the permit.
Moved (movement, move). 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 any other legal entity.
Quarantined area. Any State, or any portion of a State, listed in
Sec. 301.53-3(c) or otherwise designated as a quarantined area in
accordance with Sec. 301.53-3(b).
Regulated article. Any article listed in Sec. 301.53-2(a) or
otherwise designated as a regulated article in accordance with Sec.
301.53-2(b).
State. The District of Columbia, Puerto Rico, the Northern Mariana
Islands, or any State, territory, or possession of the United States.
Sec. 301.53-2 Regulated articles.
The following are regulated articles:
(a) The emerald ash borer; firewood of all hardwood (non-coniferous)
species; nursery stock, green lumber, and other material living, dead,
cut, or fallen, including logs, stumps, roots, branches, and composted
and uncomposted chips of the genus Fraxinus.
(b) Any other article, product, or means of conveyance not listed in
paragraph (a) of this section may be designated as a regulated article
if an inspector determines that it presents a risk of spreading emerald
ash borer and notifies the person in possession of the article, product,
or means of conveyance that it is subject to the restrictions of the
regulations.
[68 FR 59088, Oct. 8, 2003, as amended at 70 FR 252, Jan. 4, 2005]
Sec. 301.53-3 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 emerald
ash borer has been found by an inspector, in which the Administrator has
reason to believe that the emerald ash borer is present, or that the
Administrator considers necessary to regulate because of its
inseparability for quarantine enforcement purposes from localities where
emerald ash borer 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 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 an entire State as a quarantined
area will be adequate to prevent the artificial interstate spread of the
emerald ash borer.
(b) The Administrator or an inspector may temporarily designate any
nonquarantined area as a quarantined area in accordance with the
criteria specified in paragraph (a) of this section. The Administrator
will give written notice of this designation to the owner or person in
possession of the nonquarantined area, or, in the case of publicly owned
land, to the person responsible for the management of the nonquarantined
area. Thereafter, the interstate movement of any regulated article from
an area temporarily designated as a quarantined area is subject to this
subpart. As soon as practicable, this area either will be added to the
list of designated quarantined areas in paragraph (c) of this section,
or the Administrator will terminate
[[Page 54]]
the designation. The owner or person in possession of, or, in the case
of publicly owned land, the person responsible for the management of, an
area for which the designation is terminated will be given written
notice of the termination as soon as practicable.
(c) The following areas are designated as quarantined areas:
Illinois
The entire State.
Indiana
The entire State.
Maryland
Prince George's County. The entire county.
Michigan
Upper Peninsula: Chippewa County. Brimley area. That portion of the
county bounded by a line drawn as follows: Beginning at the intersection
of Michigan Route 28 and Crawford Street; then north on Crawford Street
to Irish Line Road; then north on Irish Line Road to its end and
continuing north along an imaginary line to the Bay Mills/Superior
Township line; then north and east along the Bay Mills/Superior Township
line to the Lake Superior shoreline; then east along the Lake Superior
shoreline to the Bay Mills/Soo Township line; then south on the Bay
Mills/Soo Township line to the intersection of the Dafter and Superior
Township lines at 6 Mile Road; then south along the Dafter/Superior
Township line to Forrest Road; then south on Forrest Road to Michigan
Route 28; then west on Michigan Route 28 to the point of beginning.
[Note: This quarantined area includes tribal land of the Bay Mills
Indian Community. Movement of regulated articles on those lands is
subject to tribal jurisdiction.]
Lower Peninsula: All counties, in their entirety (i.e., Alcona,
Allegan, Alpena, Antrim, Arenac, Barry, Bay, Benzie, Berrien, Branch,
Calhoun, Cass, Charlevoix, Cheboygan, Clare, Clinton, Crawford, Eaton,
Emmet, Genesee, Gladwin, Grand Traverse, Gratiot, Hillsdale, Huron,
Ingham, Ionia, Iosco, Isabella, Jackson, Kalamazoo, Kalkaska, Kent,
Lake, Lapeer, Leelanau, Lenawee, Livingston, Macomb, Manistee, Mason,
Mecosta, Midland, Missaukee, Monroe, Montcalm, Montmorency, Muskegon,
Newaygo, Oakland, Oceana, Ogemaw, Osceola, Oscoda, Otsego, Ottawa,
Presque Isle, Roscommon, Saginaw Sanilac, St. Clair, St. Joseph,
Shiawassee, Tuscola, Van Buren, Washtenaw, Wayne, and Wexford Counties).
Ohio
The entire State.
[68 FR 59088, Oct. 8, 2003, as amended at 70 FR 252, Jan. 4, 2005; 70 FR
10316, Mar. 3, 2005; 70 FR 62231, Oct. 31, 2005; 71 FR 29764, May 24,
2006; 71 FR 57873, Oct. 2, 2006; 72 FR 15598, Apr. 2, 2007; 72 FR 30460,
June 1, 2007]
Sec. 301.53-4 Conditions governing the interstate movement of regulated articles from quarantined areas.
Regulated articles may be moved interstate from a quarantined area
only if moved under the following conditions:
(a) With a certificate or limited permit issued and attached in
accordance with Sec. Sec. 301.53-5 and 301.53-8;
(b) Without a certificate or limited permit if:
(1) The regulated article is moved by the United States Department
of Agriculture for experimental or scientific purposes; or
(2) The regulated article originates outside the quarantined area
and is moved interstate through the quarantined area under the following
conditions:
(i) The points of origin and destination are indicated on a waybill
accompanying the regulated article; and
(ii) The regulated article, if moved through the quarantined area
during the period of May 1 through August 31 or when the ambient air
temperature is 40 [deg]F or higher, is moved in an enclosed vehicle or
is completely covered to prevent access by the EAB; and
(iii) The regulated article is moved directly through the
quarantined area without stopping (except for refueling or for traffic
conditions, such as traffic lights or stop signs), or has been stored,
packed, or handled at locations approved by an inspector as not posing a
risk of infestation by emerald ash borer; and
(iv) The article has not been combined or commingled with other
articles so as to lose its individual identity.
[[Page 55]]
Sec. 301.53-5 Issuance and cancellation of certificates and limited permits.
(a) An inspector \1\ or person operating under a compliance
agreement will issue a certificate for the interstate movement of a
regulated article if he or she determines that the regulated article:
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\1\ Inspectors are assigned to local offices of APHIS, which are
listed in the local telephone directories. Information concerning such
local offices may also be obtained from the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, Domestic and
Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland
20737-1236.
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(1)(i) Is apparently free of EAB, based on inspection; or the
article or
(ii) Has been grown, produced, manufactured, stored, or handled in a
manner that, in the judgment of the inspector, prevents the regulated
article from presenting a risk of spreading EAB; and
(2) Is to be moved in compliance with any additional emergency
conditions that the Administrator may impose under section 414 of the
Plant Protection Act (7 U.S.C. 7714) \2\ in order to prevent the
artificial spread of emerald ash borer; and
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\2\ An inspector may hold, seize, quarantine, treat, apply other
remedial measures to, destroy, or otherwise dispose of plants, plant
pests, or other articles in accordance with sections 414, 421, and 423
of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).
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(3) Is eligible for unrestricted movement under all other Federal
domestic plant quarantines and regulations applicable to the regulated
articles.
(b) An inspector or a person operating under a compliance agreement
will issue a limited permit for the interstate movement of a regulated
article not eligible for a certificate if he or she determines that the
regulated article:
(1) Is to be moved interstate to a specified destination for
specific processing, handling, or utilization (the destination and other
conditions to be listed on the limited permit), and this interstate
movement will not result in the spread of emerald ash borer because
emerald ash borer will be destroyed by the specific processing,
handling, or utilization; and
(2) Is to be moved in compliance with any additional emergency
conditions that the Administrator may impose under section 414 of the
Plant Protection Act (7 U.S.C. 7714) in order to prevent the spread of
emerald ash borer; and
(3) Is eligible for unrestricted movement under all other Federal
domestic plant quarantines and regulations applicable to the regulated
article.
(c) An inspector shall issue blank certificates and limited permits
to a person operating under a compliance agreement in accordance with
Sec. 301.53-6 or authorize reproduction of the certificates or limited
permits on shipping containers, or both, as requested by the person
operating under the compliance agreement. These certificates and limited
permits may then be completed and used, as needed, for the interstate
movement of regulated articles that have met all of the requirements of
paragraph (a) or (b), respectively, of this section.
(d) Any certificate or limited permit may be canceled orally or in
writing by an inspector whenever the inspector determines that the
holder of the certificate or limited permit has not complied with this
subpart or any conditions imposed under this subpart. If the
cancellation is oral, the cancellation will become effective
immediately, and the cancellation and the reasons for the cancellation
will be confirmed in writing as soon as circumstances permit. Any person
whose certificate or limited permit has been canceled may appeal the
decision in writing to the Administrator within 10 days after receiving
the written cancellation notice. The appeal must state all of the facts
and reasons that the person wants the Administrator to consider in
deciding the appeal. A hearing may be held to resolve a conflict as to
any material fact. Rules of practice for the hearing will be adopted by
the Administrator. As soon as practicable, the Administrator will grant
or deny the appeal, in writing, stating the reasons for the decision.
(Approved by the Office of Management and Budget under control number
0579-0233)
[[Page 56]]
Sec. 301.53-6 Compliance agreements and cancellation.
(a) Persons engaged in growing, handling, or moving regulated
articles interstate may enter into a compliance agreement \3\ if such
persons review with an inspector each provision of the compliance
agreement. Any person who enters into a compliance agreement with APHIS
must agree to comply with the provisions of this subpart and any
conditions imposed under this subpart.
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\3\ Compliance agreements may be initiated by contacting a local
office of APHIS. The addresses and telephone numbers of local offices
are listed in local telephone directories and may also be obtained from
the Animal and Plant Health Inspection Service, Plant Protection and
Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134,
Riverdale, MD 20737-1236.
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(b) Any compliance agreement may be canceled orally or in writing by
an inspector whenever the inspector determines that the person who has
entered into the compliance agreement has not complied with this subpart
or any conditions imposed under this subpart. If the cancellation is
oral, the cancellation will become effective immediately, and the
cancellation and the reasons for the cancellation will be confirmed in
writing as soon as circumstances permit. Any person whose compliance
agreement has been canceled may appeal the decision in writing to the
Administrator within 10 days after receiving the written cancellation
notice. The appeal must state all of the facts and reasons that the
person wants the Administrator to consider in deciding the appeal. A
hearing may be held to resolve a conflict as to any material fact. Rules
of practice for the hearing will be adopted by the Administrator. As
soon as practicable, the Administrator will grant or deny the appeal, in
writing, stating the reasons for the decision.
(Approved by the Office of Management and Budget under control number
0579-0233)
Sec. 301.53-7 Assembly and inspection of regulated articles.
(a) Persons requiring certification or other services must request
the services from an inspector \4\ at least 48 hours before the services
are needed.
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\4\ See footnote 1 to Sec. 301.53-5.
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(b) The regulated articles must be assembled at the place and in the
manner that the inspector designates as necessary to comply with this
subpart.
(Approved by the Office of Management and Budget under control number
0579-0233)
Sec. 301.53-8 Attachment and disposition of certificates and limited permits.
(a) A regulated article must be plainly marked with the name and
address of the consignor and the name and address of the consignee and
must have the certificate or limited permit issued for the interstate
movement of a regulated article securely attached at all times during
interstate movement to:
(1) The regulated article;
(2) The container carrying the regulated article; or
(3) The consignee's copy of the accompanying waybill: Provided, that
the description of the regulated article on the certificate or limited
permit, and on the waybill, are sufficient to identify the regulated
article; and
(b) The carrier must furnish the certificate or limited permit
authorizing interstate movement of a regulated article to the consignee
at the destination of the shipment.
(Approved by the Office of Management and Budget under control number
0579-0233)
Sec. 301.53-9 Costs and charges.
The services of the inspector during normal business hours will be
furnished without cost to persons requiring the services. The user will
be responsible for all costs and charges arising from inspection and
other services provided outside of normal business hours.