[Federal Register Volume 61, Number 213 (Friday, November 1, 1996)]
[Rules and Regulations]
[Pages 56403-56404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27972]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 95-087-2]


Japanese Beetle; Domestic Quarantine and Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, with two changes, an interim 
rule that amended the Japanese beetle quarantine and regulations by 
adding Minnesota and Wisconsin to the list of quarantined States and by 
providing greater specificity about what actions must be taken to 
prevent the spread of Japanese beetle by aircraft from regulated 
airports. This action was necessary to prevent the spread of Japanese 
beetle into noninfested areas of the United States. The interim rule 
also amended the regulations to allow carriers at regulated airports 
the option of performing some activities under a compliance agreement 
with the Animal and Plant Health Inspection Service, rather than in the 
presence of an inspector.

EFFECTIVE DATE: December 2, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald P. Milberg, Operations 
Officer, Program Support, PPQ, APHIS, 4700 River Road Unit 134, 
Riverdale, MD 20737-1236, (301) 734-5255.

SUPPLEMENTARY INFORMATION:

Background

    The Japanese beetle feeds on fruits, vegetables, and ornamental 
plants and is capable of causing damage to over 300 potential hosts. 
The Japanese beetle quarantine and regulations, contained in 7 CFR 
301.48 through 301.48-7 (referred to below as the regulations), 
quarantine certain States and restrict the interstate movement of 
aircraft from regulated airports in the quarantined States to prevent 
the spread of the Japanese beetle to the seven States listed in 
Sec. 301.48(b) (Arizona, California, Idaho, Nevada, Oregon, Utah, and 
Washington, referred to below as the protected States). Under 
Sec. 301.48-4 of the regulations, a regulated article may move 
interstate from a regulated airport to any of the protected States only 
if certain conditions have been met.
    In an interim rule effective June 20, 1996, and published in the 
Federal Register on June 25, 1996 (61 FR 32636-32641, Docket No. 95-
087-1), the Animal and Plant Health Inspection Service (APHIS) amended 
the regulations to (1) add Minnesota and Wisconsin to the list of 
States quarantined for Japanese beetle; (2) provide greater specificity 
about what actions must be taken to ensure aircraft do not spread 
Japanese beetle from regulated airports; (3) allow carriers at 
regulated airports the option of performing some activities under a 
compliance agreement with APHIS, rather than in the presence of an 
inspector; and (4) amend the definition of ``regulated airport'' to 
include portions of airports, as well as entire airports. This action 
was necessary to help prevent the spread of Japanese beetle into the 
protected States.
    We solicited comments concerning the interim rule for 60 days 
ending August 26, 1996. We received one comment by that date. The 
comment received was from a State government. The commenter was 
generally supportive of the interim rule but included three suggestions 
pertaining to content changes and one suggestion to delay publication 
of a final rule. We have carefully considered the suggestions made in 
this comment. They are discussed below.
    The first suggestion was to leave the determination of what 
constitutes daylight hours up to local APHIS personnel at the regulated 
airports. (The interim rule specified that the regulatory provisions 
apply between the hours of 7:00 a.m. and 8:00 p.m. because Japanese 
beetles are active during daylight hours only.) The concern expressed 
was that operational problems could occur when determining airport 
regulation status along timeline divisions. For example, an aircraft at 
a regulated airport in the central time zone could require treatment at 
7:00 p.m., whereas an aircraft at a nearby airport in the eastern time 
zone (8:00 p.m.) would not be subject to the same regulatory 
requirements.
    We designed the regulations to prevent adult Japanese beetles from 
flying into aircraft destined for any of the protected States. Because 
of the Japanese beetle life cycle, the adult beetles are active in most 
parts of the United States only in the summer months during daylight 
hours. More specifically, adult Japanese beetles are generally active 
only when the air reaches a certain temperature. We believe the period 
of greatest flight activity occurs between the hours of 10:00 a.m. and 
3:00 p.m. during the months of July through mid-September in most parts 
of the country. Because the hours of 7:00 a.m. to 8:00 p.m. are roughly 
the hours of daylight in many parts of the United States during the 
summer months, we established that timeframe as the period of 
regulatory activity to ensure we would cover any possible Japanese 
beetle flight activity.
    We are not making any change to the regulations based on this 
comment because we are not aware of any operational problems that have 
occurred to date as a result of the 7:00 a.m. to 8:00 p.m. timeframe 
and, furthermore, we believe that having an established timeframe for 
regulatory activity will make conducting operations at the airports 
easiernot more difficult.
    The second suggestion was to eliminate language concerning how to 
apply an approved pesticide in an aircraft (i.e., holding the pesticide 
at a 45-degree angle and aerating for 15 minutes). These instructions 
pertain to the application of the pesticide d-phenothrin. The concern 
was that d-phenothrin is not the only pesticide approved for use 
against Japanese beetle in aircraft and the language in the regulations 
should allow for use of any approved and effective treatment.

[[Page 56404]]

    We agree with the reasons presented for this suggestion. 
Accordingly, we are removing the language in Sec. 301.48-4(d)(4) that 
pertains to application of d-phenothrin.
    The third suggestion was to eliminate the term ``tail swapping'' in 
the regulations because of concerns that this term is not commonly used 
and could be misconstrued.
    We believe the term ``tail swapping'' is commonly used by the 
airline industry and, therefore, is appropriate for use in a regulation 
targeted at that industry. However, to ensure clarity, we are changing 
the wording in Sec. 301.48-4(d)(6). As reworded, Sec. 301.48-4(d)(6) 
will begin: ``When a designated aircraft is replaced with an alternate 
one just prior to departure (the procedure known as `tail swapping'). * 
* *''
    The final suggestion was to delay issuance of this final rule until 
the list of infested States used in the U.S./Canada Japanese Beetle 
Harmonization Plans has been finalized.
    We are not taking any action in regard to this suggestion because 
this list, which is primarily used by noninfested States to regulate 
the movement of nursery stock from infested States, is constantly being 
updated. It will never be ``finalized,'' per se. Just as we added 
Minnesota and Wisconsin to the list of quarantined States in the 
interim rule, if we determine that a State other than those currently 
listed in Sec. 301.48(a) is infested with Japanese beetles and needs to 
be quarantined, we will take action at that time to include that State 
in the list of quarantined States.
    Therefore, based on the rationale set forth in the interim rule and 
in this document, we are adopting the provisions of the interim rule as 
a final rule, with the changes discussed in this document.
    This final rule also affirms the information contained in the 
interim rule concerning Executive Order 12866 and the Regulatory 
Flexibility Act, Executive Orders 12372 and 12778, and the National 
Environmental Policy Act.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this final rule have been 
approved by the Office of Management and Budget (OMB) under OMB control 
number 0579-0088.

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

    Accordingly, the interim rule amending 7 CFR part 301 which was 
published at 61 FR 32636-32641 on June 25, 1996, is adopted as a final 
rule with the following changes:

PART 301--DOMESTIC QUARANTINE NOTICES

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

    Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and 
164-167; 7 CFR 2.22, 2.80, and 371.2(c).

    2. In Sec. 301.48-4, paragraph (d)(4) and the first sentence of 
paragraph (d)(6) are revised to read as follows:


Sec. 301.48-4  Conditions governing the interstate movement of 
regulated articles from quarantined States.

* * * * *
    (d) * * *
    (4) Aircraft must be treated in accordance with the Treatment 
Manual no more than 1 hour before loading. Particular attention should 
be paid to the ball mat area and the holes around the main entrance. 
The aircraft must then be aerated under safeguard conditions as 
required by the Treatment Manual.
* * * * *
    (6) When a designated aircraft is replaced with an alternate one 
just prior to departure (the procedure known as ``tail swapping''), the 
alternate aircraft must be inspected and all Japanese beetles must be 
removed. * * *
* * * * *
    Done in Washington, DC, this 24th day of October 1996.
A. Strating,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-27972 Filed 10-31-96; 8:45 am]
BILLING CODE 3410-34-P