[Federal Register Volume 65, Number 35 (Tuesday, February 22, 2000)]
[Rules and Regulations]
[Pages 8633-8640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4030]



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 Rules and Regulations
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  Federal Register / Vol. 65, No. 35 / Tuesday, February 22, 2000 / 
Rules and Regulations  

[[Page 8633]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 99-097-1]


Melon 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 Los Angeles County, CA, because of 
the melon 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 melon fruit fly to 
noninfested areas of the United States.

DATES: This interim rule was effective February 22, 2000. We invite you 
to comment on this docket. We will consider all comments that we 
receive by April 24, 2000. The incorporation by reference provided for 
by this interim rule is approved by the Director of the Federal 
Register as of February 22, 2000.

ADDRESSES: Please send your comment and three copies to: Docket No. 99-
097-1, 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. 99-097-1.
    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 rules, are available on the Internet at http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. Michael B. Stefan, Operations 
Officer, Invasive Species and Pest Management, PPQ, APHIS, 4700 River 
Road Unit 134, Riverdale, MD 20737-1236; (301) 734-8247.

SUPPLEMENTARY INFORMATION:

Background

    We are amending the ``Domestic Quarantine Notices'' in 7 CFR part 
301 by adding a new subpart 301.97, ``Melon fruit fly'' (referred to 
below as the regulations). These regulations quarantine part of Los 
Angeles County, CA, because of the melon fruit fly and restrict the 
interstate movement of regulated articles from the quarantined area.
    The melon fruit fly, Bactrocera cucurbitae (Coquillett), is a very 
destructive pest of fruits and vegetables, including melons, mangos, 
peppers, squash, cucumbers, beans, oranges, and peaches. This pest can 
cause serious economic losses by lowering the yield and quality of 
these fruits and vegetables and by damaging the seedlings and young 
plants of squash, melons, and cucumbers. Heavy infestations can result 
in complete loss of these crops.
    Recent trapping surveys near El Monte and Rosemead, CA, have 
established that part of Los Angeles County is infested with the melon 
fruit fly.
    Officials of the Animal and Plant Health Inspection Service (APHIS) 
and State and county agencies in California have begun an intensive 
survey and eradication program in the infested area. Also, as explained 
below, California has restricted the intrastate movement of certain 
articles from the infested area to prevent the spread of the melon 
fruit fly within California. However, Federal regulations are necessary 
to restrict the interstate movement of certain articles from the 
infested area to prevent the spread of the melon fruit fly to 
noninfested areas of the United States. This interim rule establishes 
those Federal regulations, which are described below.

Section 301.97--Restrictions on Interstate Movement of Regulated 
Articles

    Section 301.97 prohibits the interstate movement of regulated 
articles from quarantined areas except in accordance with the 
regulations.

Section 301.97-1--Definitions

    Section 301.97-1 contains definitions of the following terms: 
Administrator, Animal and Plant Health Inspection Service, certificate, 
compliance agreement, Departmental permit, dripline, infestation, 
inspector, interstate, limited permit, melon fruit fly, moved (move, 
movement), person, Plant Protection and Quarantine, quarantined area, 
regulated articles, and State.

Section 301.97-2--Regulated Articles

    Certain articles present a significant risk of spreading the melon 
fruit fly if they are moved from quarantined areas without 
restrictions. We call these articles regulated articles. Paragraphs (a) 
through (e) of Sec. 301.97-2 list the following as regulated articles:
     The melon 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 melon fruit fly cannot survive such 
processing);
     Soil within the dripline of plants that produce those 
fruits or vegetables;
     Certain plants of the family Cucurbitaceae; and
     Any other product, article, or means of conveyance that an 
inspector determines to present a risk of spreading the melon 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 melon fruit fly pupae in the cracks of its floorboards by 
enabling an inspector to designate that truck as a regulated article in 
order to ensure that any necessary risk-mitigating measures are carried 
out.

[[Page 8634]]

Section 301.97-3--Quarantined Areas

    Paragraph (a) of Sec. 301.97-3 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 melon fruit fly is found by an inspector, or in which the 
Administrator has reason to believe that the melon 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 melon 
fruit fly has been found.
    Paragraph (a) of Sec. 301.97-3 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 melon 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 melon fruit fly has been detected. The 
boundary lines may vary due to factors such as the location of melon 
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 melon 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 California as a quarantined area because the melon fruit fly 
has not been found in any other area of the State, and because 
California has adopted and is enforcing restrictions on the intrastate 
movement of regulated articles and those restrictions are substantially 
the same as those imposed by the regulations on the interstate movement 
of regulated articles. Therefore, in accordance with the criteria 
described in the previous paragraph, we have designated the El Monte 
and Rosemead area of Los Angeles County, CA, as a quarantined area. The 
boundaries of the quarantined area are described in Sec. 301.97-3(c) in 
the rule portion of this document.
    Paragraph (b) of Sec. 301.97-3 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. 301.97-3(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 melon 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 301.97-4--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 only exceptions are certain articles that move into the 
quarantined area from outside the quarantined area or that are moved by 
APHIS or the Department for experimental or scientific purposes.
    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 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 melon fruit flies. The 
regulated articles must also move 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.
    Also, APHIS 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 melon fruit fly.

Section 301.97-5--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 melon 
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 
301.97-5 explains the conditions for issuing a certificate or limited 
permit.
    Specifically, Sec. 301.97-5(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 melon fruit 
fly; has been treated under the supervision of an inspector, who must 
be present during the treatment, in accordance with Sec. 301.97-10; or 
comes from a premises of origin that is free of the melon fruit fly; 
(2) will be moved in compliance with any additional emergency 
conditions deemed necessary to prevent the spread of the melon fruit 
fly under section 105 of the Federal Plant Pest Act (7 U.S.C. 150dd); 
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 7 U.S.C. 150dd, 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. 301.97-5 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

[[Page 8635]]

destination for specified handling, utilization or processing, and that 
the movement will not result in the spread of the melon fruit fly.
    Paragraph (c) of Sec. 301.97-5 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. 301.97-5(a) or 
(b).
    Also, Sec. 301.97-5(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 301.97-6--Compliance Agreements and Cancellation

    Section 301.97-6 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 301.97-6 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 301.97-7--Assembly and Inspection of Regulated Articles

    Section 301.97-7 provides that any person (other than a person 
authorized to issue certificates or limited permits under Sec. 301.97-
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 301.97-8--Attachment and Disposition of Certificates and 
Limited Permits

    Section 301.97-8 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 at the destination of 
the regulated article.
    These provisions are necessary for enforcement purposes and to 
ensure that persons desiring inspection services can obtain them before 
the intended movement date.

Section 301.97-9--Costs and Charges

    Section 301.97-9 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 301.97-10--Treatments

    Section 301.97-10 sets forth treatment schedules that qualify soil 
and regulated articles for issuance of certificates and limited permits 
as provided in Sec. 301.97-5. For instance, it has been determined, 
based on research by the Agricultural Research Service, that the 
following diazinon treatment would destroy the melon fruit fly in soil:
    Soil within the dripline of plants that are producing or have 
produced the fruits and vegetables listed in Sec. 301.97-2(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 a depth of at least \1/2\ inch.
    Treatments authorized for use in destroying the melon fruit fly on 
regulated articles are listed in the Plant Protection and Quarantine 
Treatment Manual, which is incorporated by reference at 7 CFR 300.1, 
``Materials incorporated by reference.''

Emergency Action

    The Administrator of the Animal and Plant Health Inspection Service 
has determined that an emergency exists that warrants publication of 
this interim rule without prior opportunity for public comment. 
Immediate action is necessary to prevent the melon fruit fly from 
spreading to noninfested areas of the United States.
    Because prior notice and other public procedures with respect to 
this action are impracticable and contrary to the public interest under 
these conditions, we find good cause under 5 U.S.C. 553 to make this 
action effective less than 30 days after publication. We will consider 
comments that are received within 60 days of publication of this rule 
in the Federal Register. After the comment period closes, we will 
publish another document in the Federal Register. The document will 
include a discussion of any comments we receive and any amendments we 
are making to the rule as a result of the comments.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review 
process required by Executive Order 12866.
    This rule quarantines part of Los Angeles County, CA, because of 
the melon 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 melon fruit fly to 
noninfested areas of the United States.
    Within the regulated area there are approximately 413 small 
entities that may be affected by this rule. These include 3 
distributors, 250 fruit sellers, 27 growers, 126 nurseries, 1 
processor, 3 community gardens, 2 swap meets, and 1 farmers market. 
These 413 entities comprise less than 1 percent of the total number of 
similar entities operating in the State of California. 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 will very 
little additional cost.
    Under these circumstances, the Administrator of the Animal and 
Plant

[[Page 8636]]

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 interim rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this interim rule. The assessment provides a 
basis for the conclusion that the implementation of integrated pest 
management to achieve eradication of the melon fruit fly 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 0579-0088 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) Docket No. 99-097-1, Regulatory Analysis and 
Development, PPD, APHIS, suite 3C03, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 
404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. 
Please state that your comments refer to Docket No. 99-097-1 and send 
your comments within 60 days of publication of this rule.
    This interim rule quarantines a part of Los Angeles, CA, because of 
the melon 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 .04049 hours per response.
    Respondents: State and county cooperators (inspectors); and 
producers, handlers, and movers of regulated fruit and vegetables in 
Los Angeles County, California.
    Estimated annual number of respondents: 10.
    Estimated annual number of responses per respondent: 32.1.
    Estimated annual number of responses: 321.
    Estimated total annual burden on respondents: 13 hours.
    Copies of this information collection can be obtained from: 
Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence 
Avenue, SW., Washington, DC 20250.

List of Subjects in 7 CFR Part 301

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

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

PART 301--DOMESTIC QUARANTINE NOTICES

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

    Authority: 7 U.S.C. 147a, 150bb, 150dd, 150ee, 150ff, 161, 162, 
and 164-167; 7 CFR 2.22, 2.80, and 371.2(c).


    2. Part 301 is amended by adding a new ``Subpart--Melon Fruit 
Fly,'' Secs. 301.97 through 301.97-10, to read as follows:
Subpart--Melon Fruit Fly
Sec.
301.97   Restrictions on interstate movement of regulated articles.
301.97-1   Definitions.
301.97-2   Regulated articles.
301.97-3   Quarantined areas.
301.97-4   Conditions governing the interstate movement of regulated 
articles from regulated areas.
301.97-5   Issuance and cancellation of certificates and limited 
permits.
301.97-6   Compliance agreements and cancellation.
301.97-7   Assembly and inspection of regulated articles.
301.97-8   Attachment and disposition of certificates and limited 
permits.
301.97-9   Costs and charges.
301.97-10   Treatments.

[[Page 8637]]

Subpart--Melon Fruit Fly


Sec. 301.97  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\
---------------------------------------------------------------------------

    \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 10 of the Plant 
Quarantine Act (7 U.S.C. 164a) and sections 105 and 107 of the 
Federal Plant Pest Act (7 U.S.C. 150dd and 150ff).
---------------------------------------------------------------------------


Sec. 301.97-1  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 melon 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.
    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. 301.97-4(d) of this subpart.
    Dripline. The line around the canopy of a plant.
    Infestation. The presence of the melon fruit fly or the existence 
of circumstances that makes it reasonable to believe that the melon 
fruit fly is present.
    Inspector. Any employee of the Animal and Plant Health Inspection 
Service, U.S. Department of Agriculture, or other person authorized by 
the Administrator to enforce 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. 301.97-5(b) of this subpart only to a specified 
destination and only in accordance with specified conditions.
    Melon fruit fly. The insect known as the melon fruit fly, 
Bactrocera cucurbitae (Coquillett), in any stage of development.
    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. 301.97-3(c) of this subpart or otherwise designated as a 
quarantined area in accordance with Sec. 301.97-3(b) of this subpart.
    Regulated article. Any article listed in Sec. 301.97-2 or otherwise 
designated as a regulated article in accordance with Sec. 301.97-2(e).
    State. The District of Columbia, Puerto Rico, the Northern Mariana 
Islands, or any State, territory, or possession of the United States.


Sec. 301.97-2  Regulated articles.

    The following are regulated articles:
    (a) Melon fruit flies.\2\
---------------------------------------------------------------------------

    \2\ Permit and other requirements for the interstate movement of 
melon fruit flies are contained in part 330 of this chapter.
---------------------------------------------------------------------------

    (b) The following fruits and vegetables:

Apple (Malus sylvestris)
Apple, custard (Annona reticulata)
Avocado (Persea americana)
Bean, hyacinth (Dolichos lablab)
Bean, lima (Phaseolus lunatus = Phaseolus limensis)
Bean, mung (Phaseolus vulgaris)
Cantaloupe (Cucumis melo and Cucumis melo var. Cantalupensis)
Cauliflower (Brassica oleracea var. botrytis)
Chayote (Sechium edule)
Colocynth (Citrullus colocynthis)
Cowpea (Vigna unguiculata)
Cucumber (Cucumis sativus)
Cucumber, bur (Sicyes sp.)
Cucurbit (Cucumis pubescens and Cucumis trigonus)
Date palm (Phoenix dactylifera)
Eggplant (Solanum melongena)
Fig (Ficus carica)
Gourds
    (Coccinia spp.)
    (Cresentia spp.)
    (Lagenaria spp.)
    (Luffa spp.)
    (Momordica spp.)
    (Trichosanthis spp.)
Grape (Vitis trifolia)
Guava (Psidium guajava)
Guava, cattley (Psidium cattlelanum)
Lemon, water (Passiflora laurifolia)
Mango (Mangifera indica)
Melon (Citrullus spp.)
Melon, Chinese (Benincasa hispida)
Melon, oriental pickling (Cucumis melo var. conomon)
Mustard, leaf (Brassica juncea)
Okra (Hibiscus esculentus)
Orange, king (Citrus nobilis)
Orange, mandarin (Citrus reticulata)
Orange, sweet (Citrus sinensis)
Papaya (Carica papaya)
Passion fruit (Passiflora edulis)
Peach (Prunus persica)
Pear (Pyrus communis)
Pepper (Capsicum annum)
Pepper, chile (Capsicum annum)
Pepper, tobasco (Capsicum frutescens)
Pumpkin (Cucurbita pepo)
Pumpkin, Canada (Cucurbita moschata)
Scarlet wisteria tree (Sesbania grandiflora)
Soursop (Annona muricata)
Squash (Cucurbita maxima)
Tomato (Lycopersicon esculentum)
Tomato, tree (Cyphomandra betaceae)
Watermelon (Citrullus lanatus = Citrullus vulgaris)

    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) Plants of the following species in the family Cucurbitaceae:

Cantaloupe (Cucumis melo)
Chayote (Sechium edule)
Colocynth (Citrullus colocynthis)
Cucumber (Cucumis sativus)
Cucumber, bur (Sicyos sp.)
Cucurbit, wild (Cucumis trigonus)
Gherkin, West India (Cucumis angaria)
Gourd, angled luffa (Luffa acutangula)
Gourd, balsam apple (Momordica balsaminia)
Gourd, ivy (Coccinia grandis)
Gourd, kakari (Momordica dioica)
Gourd, serpent cucumber (Trichosanthis anguina)
Gourd, snake (Trichosanthis cucumeroides)
Gourd, sponge (Luffa aegyptiaca)
Gourd, white flowered (Lagenaria siceraria)
Melon, Chinese (Benincasa hispida)
Melon, long (Cucumis utilissimus)
Pumpkin (Cucurbita pepo)
Pumpkin, Canada (Cucurbita moschata)
Squash (Cucurbita maxima)
Watermelon (Citrullus lanatus = Citrullus vulgaris)


[[Page 8638]]


    (e) Any other product, article, or means of conveyance not listed 
in paragraphs (a) through (d) of this section that an inspector 
determines presents a risk of spreading the melon 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. 301.97-3  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 melon 
fruit fly has been found by an inspector, in which the Administrator 
has reason to believe that the melon 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 melon 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 melon 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:

California

    Los Angeles County. That portion of Los Angeles County bounded by a 
line drawn as follows: Beginning at the intersection of Atlantic 
Boulevard and Huntington Drive; then northeast along Huntington Drive 
to Sierra Madre Boulevard; then north along Sierra Madre Boulevard to 
Interstate Highway 210; then east along Interstate Highway 210 to Buena 
Vista Street; then south along Buena Vista Street to Arrow Highway; 
then east along Arrow Highway to Interstate Highway 605; then south 
along Interstate Highway 605 to Live Oak Avenue; then east along Live 
Oak Avenue to Baldwin Park Boulevard; then south and southwest along 
Baldwin Park Boulevard to Francisquito Avenue; then southeast along 
Francisquito Avenue to Puente Avenue; then southwest along Puente 
Avenue to Valley Boulevard; then southeast along Valley Boulevard to 
5th Street; then southwest along 5th Street to Lomitas Avenue; then 
southwest along an imaginary line to the intersection of Interstate 
Highway 605 and Beverly Boulevard; then west along Beverly Boulevard to 
Garfield Avenue; then north along Garfield Avenue to Garvey Avenue; 
then west along Garvey Avenue to Atlantic Boulevard; then north along 
Atlantic Boulevard to the point of beginning.


Sec. 301.97-4  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:
---------------------------------------------------------------------------

    \3\ Requirements under all other applicable Federal domestic 
plant quarantines and regulations must also be met.
---------------------------------------------------------------------------

    (a) With a certificate or limited permit issued and attached in 
accordance with Secs. 301.97-5 and 301.97-8 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 melon 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.
    (c) Without a certificate or limited permit if:
    (1) The regulated article originated outside any quarantined area 
and is moved through (without stopping except for refueling or for 
traffic conditions, such as traffic lights or stop signs) the 
quarantined area in an enclosed vehicle or is completely enclosed by a 
covering adequate to prevent access by melon 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.
    (d) 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 melon 
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 
0579-0088)


Sec. 301.97-5  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:
---------------------------------------------------------------------------

    \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 Animal and Plant Health 
Inspection Service, Plant Protection and Quarantine, Invasive 
Species and Pest Management, 4700 River Road Unit 134, Riverdale, MD 
20737-1236.
---------------------------------------------------------------------------

    (1)(i) The regulated article has been treated under the direction 
of an inspector in accordance with Sec. 301.97-10 of this subpart; or
    (ii) Based on inspection of the premises of origin, the premises 
are free from the melon fruit fly; or
    (iii) Based on inspection of the regulated article, the regulated 
article is free of melon 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 melon fruit fly; and
    (3) The regulated article is to be moved in compliance with any 
additional emergency conditions the Administrator may impose under 
section 105 of the Federal Plant Pest Act

[[Page 8639]]

(7 U.S.C. 150dd) \5\ to prevent the spread of the melon fruit fly; and
---------------------------------------------------------------------------

    \5\ Section 105 of the Federal Plant Pest Act (7 U.S.C. 150dd) 
provides that the Secretary of Agriculture may, under certain 
conditions, seize, quarantine, treat, destroy, or apply other 
remedial measures to articles that are, or that the Administrator 
has reason to believe are, infested or infected by or contain plant 
pests.
---------------------------------------------------------------------------

    (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:
---------------------------------------------------------------------------

    \6\ See footnote 4 to Sec. 301.97-5(a).
---------------------------------------------------------------------------

    (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 melon 
fruit fly because life stages of the melon 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 105 of the Federal Plant Pest Act (7 U.S.C. 150dd) to prevent 
the spread of the melon 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 
0579-0088)


Sec. 301.97-6  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 and agrees to 
comply with its provisions.\7\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    (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. 301.97-7  Assembly and inspection of regulated articles.

    (a) Any person (other than a person authorized to issue 
certificates or limited permits under Sec. 301.97-5(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.
---------------------------------------------------------------------------

    \8\ See footnote 4 to Sec. 301.97-5(a).
---------------------------------------------------------------------------

    (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. 301.97-8  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 at the destination of the regulated article.


(Approved by the Office of Management and Budget under control number 
0579-0088)


Sec. 301.97-9  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. 301.97-10  Treatments.

    Treatment schedules listed in the Plant Protection and Quarantine 
Treatment Manual to destroy the melon 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:

[[Page 8640]]

    (a) Soil within the dripline of plants that are producing or have 
produced the fruits and vegetables listed in Sec. 301.97-2(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) [Reserved]

    Done in Washington, DC, this 1st day of February 2000.
Bobby R. Acord,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 00-4030 Filed 2-18-00; 8:45 am]
BILLING CODE 3410-34-U