[Federal Register Volume 66, Number 14 (Monday, January 22, 2001)]
[Rules and Regulations]
[Pages 6429-6436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1618]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 00-110-1]


West Indian Fruit Fly

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

-----------------------------------------------------------------------

SUMMARY: We are quarantining part of Cameron County, TX, because of the 
West Indian fruit fly and restricting the interstate movement of 
regulated articles from the quarantined area. This action is necessary 
on an emergency basis to prevent the spread of the West Indian fruit 
fly to noninfested areas of the United States.

[[Page 6430]]


DATES: This interim rule was effective January 12, 2001. We invite you 
to comment on this docket. We will consider all comments that we 
receive by March 23, 2001.

ADDRESSES: Please send four copies of your comment (an original and 
three copies) to: Docket No. 00-110-1, Regulatory Analysis and 
Development, PPD, APHIS, Suite 3C03, 4700 River Road, Unit 118, 
Riverdale, MD 20737-1238.
    Please state that your comment refers to Docket No. 00-110-1.
    You may read any comments that we receive on this docket in our 
reading room. The reading room is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. Robert G. Spaide, Assistant 
Director, Invasive Species and Pest Management, PPQ, APHIS, 4700 River 
Road Unit 134, Riverdale, MD 20737-1236; (301) 734-8247.

SUPPLEMENTARY INFORMATION:

Background

    We are amending the ``Domestic Quarantine Notices'' in 7 CFR part 
301 by adding a new subpart, ``West Indian Fruit Fly'' (Secs. 301.98 
through 301.98-10, referred to below as the regulations). The 
regulations quarantine part of Cameron County, TX, because of the West 
Indian fruit fly and restrict the interstate movement of regulated 
articles from the quarantined area.
    The West Indian fruit fly, Anastrepha obliqua (Macquart), is a very 
destructive pest of fruits and vegetables, including carambola, 
grapefruit, guava, limes, mangoes, oranges, passion fruit, peaches, and 
pears. This pest can cause serious economic losses by lowering the 
yield and quality of these fruits and vegetables and, in some cases, by 
damaging seedlings and young plants. Heavy infestations can result in 
complete loss of these crops.
    Recent trapping surveys near Rio Hondo, TX, have established that 
part of Cameron County is infested with the West Indian fruit fly.
    Officials of the Animal and Plant Health Inspection Service (APHIS) 
and State and county agencies in Texas have begun an intensive survey 
and eradication program in the infested area. Also, as explained below, 
Texas has restricted the intrastate movement of certain articles from 
the infested area to prevent the spread of the West Indian fruit fly 
within Texas. However, Federal regulations are necessary to restrict 
the interstate movement of certain articles from the infested area to 
prevent the spread of the West Indian fruit fly to noninfested areas of 
the United States. This interim rule establishes those Federal 
regulations, which are described below.

Section 301.98--Restrictions on Interstate Movement of Regulated 
Articles

    Section 301.98 prohibits the interstate movement of regulated 
articles from quarantined areas except in accordance with the 
regulations.

Section 301.98-1--Definitions

    Section 301.98-1 contains definitions of the following terms: 
Administrator, Animal and Plant Health Inspection Service, certificate, 
compliance agreement, core area, day degrees, Departmental permit, 
dripline, infestation, inspector, interstate, limited permit, moved 
(move, movement), person, Plant Protection and Quarantine, quarantined 
area, regulated articles, State, and West Indian fruit fly.

Section 301.98-2--Regulated Articles

    Certain articles present a significant risk of spreading the West 
Indian fruit fly if they are moved from quarantined areas without 
restrictions. We call these articles regulated articles. Paragraphs (a) 
through (e) of Sec. 301.98-2 list the following as regulated articles:
     The West Indian fruit fly;
     Certain fruits and vegetables (fruits or vegetables that 
are canned or dried or that are frozen below -17.8  deg.C (0  deg.F) 
are exempted, since the West Indian fruit fly cannot survive such 
processing);
     Soil within the dripline of plants that produce those 
fruits or vegetables; and
     Any other product, article, or means of conveyance that an 
inspector determines to present a risk of spreading the West Indian 
fruit fly when the inspector notifies the person in possession of the 
product, article, or means of conveyance that it is subject to the 
restrictions in the regulations.
    The last item listed above, which provides for the designation of 
``any other product, article, or means of conveyance'' as a regulated 
article, is intended to address the risks presented by, for example, a 
truck with West Indian fruit fly pupae in the cracks of its 
floorboards, thus enabling an inspector to designate that truck as a 
regulated article in order to ensure that any necessary risk-mitigating 
measures are carried out.

Section 301.98-3--Quarantined Areas

    Paragraph (a) of Sec. 301.98-3 provides the criteria for the 
inclusion of States, or portions of States, in the list of quarantined 
areas. Under these criteria, any State or portion of a State in which 
the West Indian fruit fly is found by an inspector, or in which the 
Administrator has reason to believe that the West Indian fruit fly is 
present, will be listed as a quarantined area. These criteria also 
provide that an area will be designated as a quarantined area when the 
Administrator considers it necessary due to the area's inseparability 
for quarantine enforcement purposes from localities in which the West 
Indian fruit fly has been found.
    Paragraph (a) of Sec. 301.98-3 also provides that we will designate 
less than an entire State as a quarantined area only if we determine 
that the State has adopted and is enforcing restrictions on the 
intrastate movement of regulated articles that are equivalent to those 
imposed on the interstate movement of regulated articles and that the 
designation of less than the entire State as a quarantined area will 
prevent the interstate spread of the West Indian fruit fly. These 
determinations would indicate that infestations are confined to the 
quarantined areas and eliminate the need for designating an entire 
State as a quarantined area.
    The boundary lines that delimit the portion of a State that is 
designated as a quarantined area are set up approximately 4.5 miles 
from the locations where West Indian fruit fly has been detected. The 
4.5 mile radius distance for regulated areas from the trapping sites 
for West Indian fruit fly is based upon several factors, including: 
Previous experience with fruit fly eradication programs, estimated 
efficacy of trapping grids, available data on natural dispersal, and 
recommendations from fruit fly experts familiar with the biology and 
behavior of the West Indian fruit fly. The boundary lines may vary due 
to factors such as the location of West Indian fruit fly host material, 
the location of transportation centers such as bus stations and 
airports, the pattern of persons moving in that State, the number and 
patterns of distribution of the West Indian fruit fly, and the use of 
clearly identifiable lines for the boundaries.

[[Page 6431]]

    We have determined that it is not necessary to designate the entire 
State of Texas as a quarantined area. The West Indian fruit fly has not 
been found in any area of the State other than a portion of Cameron 
County, and Texas has adopted and is enforcing restrictions on the 
intrastate movement of regulated articles from that area that are 
substantially the same as those we are imposing on the interstate 
movement of regulated articles. Therefore, in accordance with the 
criteria described in the previous paragraph, we have designated part 
of the Rio Hondo area of Cameron County, TX, as a quarantined area. The 
boundaries of the quarantined area are described in Sec. 301.98-3(c) in 
the rule portion of this document.
    Paragraph (b) of Sec. 301.98-3 provides that we may temporarily 
designate any nonquarantined area in a State as a quarantined area when 
we determine that the nonquarantined area meets the criteria for 
designation as a quarantined area described in Sec. 301.98-3(a). In 
such cases, we will give the owner or person in possession of the area 
a copy of the regulations along with written notice of the area's 
temporary designation as a quarantined area, after which time the 
interstate movement of any regulated article from the area will be 
subject to the regulations. This provision is necessary to prevent the 
spread of the West Indian fruit fly during the time between the 
detection of the pest and the time a document quarantining the area can 
be made effective and published in the Federal Register. In the event 
that an area's designation as a temporary quarantined area is 
terminated, we will provide written notice of that termination to the 
owner or person in possession of the area as soon as is practicable.

Section 301.98-4--Conditions Governing the Interstate Movement of 
Regulated Articles from Quarantined Areas

    This section requires most regulated articles moving interstate 
from quarantined areas to be accompanied by a certificate or a limited 
permit. APHIS or the U.S. Department of Agriculture (the Department) 
may move regulated articles interstate without a certificate or limited 
permit if the articles are moved for experimental or scientific 
purposes. However, the articles must be moved in accordance with a 
Departmental permit issued by the Administrator, under conditions 
specified on the permit to prevent the spread of the West Indian fruit 
fly.
    Except for articles moved by APHIS or the Department, only articles 
that are moved into the quarantined area from outside the quarantined 
area and that are accompanied by a waybill that indicates the point of 
origin may be moved interstate from the quarantined area without a 
certificate or limited permit. Additionally, the articles must be moved 
in an enclosed vehicle or be completely enclosed so as to prevent 
access by West Indian fruit flies. The regulated articles must also be 
moved through the quarantined area without stopping (except for 
refueling, rest stops, emergency repairs, and for traffic conditions 
such as traffic lights and stop signs), and the regulated articles must 
not be unpacked or unloaded in the quarantined area.

Section 301.98-5--Issuance and Cancellation of Certificates and Limited 
Permits

    Under Federal domestic plant quarantine programs, there is a 
difference between the use of certificates and limited permits. 
Certificates are issued for regulated articles when an inspector finds 
that, because of certain conditions (e.g., the article is free of West 
Indian fruit fly), there is no pest risk before movement. Regulated 
articles accompanied by a certificate may be moved interstate without 
further restrictions. Limited permits are issued for regulated articles 
when an inspector finds that, because of a possible pest risk, the 
articles may be safely moved interstate only subject to further 
restrictions, such as movement to limited areas and movement for 
limited purposes. Section 301.98-5 explains the conditions for issuing 
a certificate or limited permit.
    Specifically, Sec. 301.98-5(a) provides that a certificate will be 
issued by an inspector for the movement of a regulated article if the 
inspector determines that the article: (1) Is free of the West Indian 
fruit fly; has been treated in the presence of an inspector in 
accordance with Sec. 301.98-10; or comes from a premises of origin that 
is free of the West Indian fruit fly; (2) will be moved in compliance 
with any additional emergency conditions deemed necessary to prevent 
the spread of the West Indian fruit fly under section 414 of the Plant 
Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 444, 7 U.S.C. 
7714); and (3) is eligible for unrestricted movement under all other 
Federal domestic plant quarantines and regulations applicable to that 
article.
    We have included a footnote (number 4) that provides an address for 
securing the addresses and telephone numbers of the local Plant 
Protection and Quarantine offices at which services of inspectors may 
be requested. We have also included a footnote (number 5) that explains 
that the Secretary of Agriculture can, under the Plant Protection Act, 
take emergency actions to seize, quarantine, treat, destroy, or apply 
other remedial measures to articles that are, or that he or she has 
reason to believe are, infested or infected by or contain plant pests.
    Paragraph (b) of Sec. 301.98-5 provides for the issuance of a 
limited permit (in lieu of a certificate) by an inspector for 
interstate movement of a regulated article if the inspector determines 
that the article is to be moved to a specified destination for 
specified handling, utilization or processing, and that the movement 
will not result in the spread of the West Indian fruit fly.
    Paragraph (c) of Sec. 301.98-5 allows any person who has entered 
into and is operating under a compliance agreement to issue a 
certificate or limited permit for the interstate movement of a 
regulated article after an inspector has determined that the article is 
eligible for a certificate or limited permit under Sec. 301.98-5(a) or 
(b).
    Also, Sec. 301.98-5(d) contains provisions for the withdrawal of a 
certificate or limited permit by an inspector if the inspector 
determines that the holder of the certificate or limited permit has not 
complied with conditions for the use of the document. This section also 
contains provisions for notifying the holder of the reasons for the 
withdrawal and for holding a hearing if there is any conflict 
concerning any material fact in the event that the person wishes to 
appeal the cancellation.

Section 301.98-6--Compliance Agreements and Cancellation

    Section 301.98-6 provides for the issuance and cancellation of 
compliance agreements. Compliance agreements are provided for the 
convenience of persons who are involved in interstate shipments of 
regulated articles from quarantined areas. A compliance agreement will 
be issued when an inspector has determined that the person requesting 
the compliance agreement is knowledgeable regarding the requirements of 
the regulations and the person has agreed to comply with those 
requirements. This section contains a footnote (number 7) that explains 
how compliance agreements may be arranged.
    Section 301.98-6 also provides that an inspector may cancel the 
compliance agreement upon finding that a person who has entered into 
the agreement has failed to comply with any of the provisions of the 
regulations. The inspector will notify the holder of the compliance 
agreement of the reasons for

[[Page 6432]]

cancellation and offer an opportunity for a hearing to resolve any 
conflicts of material fact in the event that the person wishes to 
appeal the cancellation.

Section 301.98-7--Assembly and Inspection of Regulated Articles

    Section 301.98-7 provides that any person (other than a person 
authorized to issue certificates or limited permits under Sec. 301.98-
5(c)) who desires a certificate or limited permit to move regulated 
articles must request, at least 48 hours before the desired interstate 
movement, that an inspector issue a certificate or limited permit. The 
regulated articles must be assembled in a place and manner directed by 
the inspector.

Section 301.98-8--Attachment and Disposition of Certificates and 
Limited Permits

    Section 301.98-8 requires the certificate or limited permit issued 
for movement of the regulated article to be attached, during the 
interstate movement, to the regulated article, or to a container 
carrying the regulated article, or to the accompanying waybill. 
Further, the section requires that the carrier must furnish the 
certificate or limited permit to the consignee listed on the 
certificate or limited permit upon arrival at the location provided on 
the certificate or limited permit.
    These provisions are necessary for enforcement purposes and to 
ensure that persons desiring inspection services can obtain them before 
the intended movement date.

Section 301.98-9--Costs and Charges

    Section 301.98-9 explains the APHIS policy that the services of an 
inspector that are needed to comply with the regulations are provided 
without cost between 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays, to persons requiring those services, but that we will 
not be responsible for any other costs or charges (such as overtime 
costs for inspections conducted at times other than between 8 a.m. to 
4:30 p.m., Monday through Friday, except holidays).

Section 301.98-10--Treatments

    Section 301.98-10 lists treatments that qualify soil and regulated 
articles for interstate movement with a certificate as provided in 
Sec. 301.98-5.
    Paragraph (a) provides that fruits and vegetables originating 
inside the quarantined area that are to be moved outside the 
quarantined area must be treated with an applicable treatment listed in 
the Plant Protection and Quarantine Treatment Manual, which is 
incorporated by reference at 7 CFR 300.1, ``Materials incorporated by 
reference.''
    Paragraph (b) provides that soil within the dripline of plants that 
are producing or have produced the fruits and vegetables listed in 
Sec. 301.98-2(a) of this subpart may be treated with diazinon at the 
rate of 5 pounds active ingredient per acre with sufficient water to 
wet the soil to a depth of at least \1/2\ inch. Research by the 
Agricultural Research Service has determined that this diazinon 
treatment would destroy the West Indian fruit fly in soil.
    Paragraph (c) provides that premises that are located within the 
regulated area but outside the infested core area, and that produce 
regulated articles, may receive regular treatments with malathion or 
spinosad bait spray. These treatments must take place at 6-to 10-day 
intervals, starting a sufficient time before harvest (but not less than 
30 days before harvest) to allow for completion of egg and larvae 
development of the West Indian fruit fly. Determination of the time 
period must be based on the day degrees model for West Indian fruit 
fly. Since the length of fruit fly life cycles vary according to the 
temperature of their environment, the day degrees model is used to 
project the duration of the life cycle of the fruit fly. Once treatment 
has begun, it must continue through the harvest period. The malathion 
bait spray treatment must be applied by aircraft or ground equipment at 
a rate of 2.4 oz of technical grade malathion and 9.6 oz of protein 
hydrolysate per acre. Spinosad bait spray must be applied by aircraft 
or ground equipment at a rate of 0.01 oz of a USDA-approved spinosad 
formulation and 48 oz of protein hydrolysate per acre. For ground 
applications of Spinosad, the mixture may be diluted with water to 
improve coverage. After the treatment cycle is complete, regulated 
articles produced on the premises will be eligible for interstate 
movement with a certificate as provided in Sec. 301.98-5.

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
West Indian fruit fly from spreading to noninfested areas of the United 
States. Under these circumstances, the Administrator has determined 
that prior notice and opportunity for public comment are contrary to 
the public interest and that there is good cause under 5 U.S.C. 553 for 
making this rule effective less than 30 days after publication in the 
Federal Register.
    We will consider comments that are received within 60 days of 
publication of this rule in the Federal Register. After the comment 
period closes, we will publish another document in the Federal 
Register. The document will include a discussion of any comments we 
receive and any amendments we are making to the rule as a result of the 
comments.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    This rule quarantines part of Cameron County, TX, because of the 
West Indian fruit fly and restricts the interstate movement of 
regulated articles from the quarantined area. This action is necessary 
on an emergency basis to prevent the spread of the West Indian fruit 
fly to noninfested areas of the United States.
    Within the regulated area there are approximately 22 small entities 
that may be affected by this rule. These include 5 fruit sellers and 17 
growers. These 22 entities comprise less than 1 percent of the total 
number of similar entities operating in the State of Texas. 
Additionally, these small entities sell regulated articles primarily 
for local intrastate--not interstate--movement, so the effect, if any, 
of this rule on these entities appears to be minimal.
    The effect on those few entities that do move regulated articles 
interstate from the quarantined area will be minimized by the 
availability of various treatments that, in most cases, will allow 
these small entities to move regulated articles interstate with very 
little additional cost.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not

[[Page 6433]]

require administrative proceedings before parties may file suit in 
court challenging this rule.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for the West Indian Fruit Fly Cooperative 
Eradication Program. The assessment provides a basis for the conclusion 
that the implementation of this interim rule will not have a 
significant impact on human health and the natural environment. Based 
on the finding of no significant impact, the Administrator of the 
Animal and Plant Health Inspection Service has determined that an 
environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    Copies of the environmental assessment and finding of no 
significant impact are available for public inspection at USDA, room 
1141, South Building, 14th Street and Independence Avenue SW., 
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays. Persons wishing to inspect copies are requested to 
call ahead on (202) 690-2817 to facilitate entry into the reading room. 
In addition, copies may be obtained by writing to the individual listed 
under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

    In accordance with section 3507(j) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection and 
recordkeeping requirements included in this interim rule have been 
submitted for emergency approval to the Office of Management and Budget 
(OMB). OMB has assigned control number 0579-0170 to the information 
collection and recordkeeping requirements.
    We plan to request continuation of that approval for 3 years. 
Please send written comments on the 3-year approval request to the 
following addresses: (1) Office of Information and Regulatory Affairs, 
OMB, Attention: Desk Officer for APHIS, Washington, DC 20503, and (2) 
Docket No. 00-110-1, Regulatory Analysis and Development, PPD, APHIS, 
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please 
state that your comments refer to Docket No. 00-110-1 and send your 
comments within 60 days of publication of this rule.
    This interim rule quarantines a part of Cameron, TX, because of the 
West Indian fruit fly and restricts the interstate movement of 
regulated articles from the quarantined area. Its implementation will 
require us to engage in certain information collection activities, in 
that certain articles may not be moved interstate from the quarantined 
area unless they are accompanied by a certificate or a limited permit. 
A certificate or limited permit may be issued by an inspector (i.e., an 
APHIS employee or other person authorized by the APHIS Administrator to 
enforce the regulations) or by a person who has entered into a written 
compliance agreement with APHIS. We are soliciting comments from the 
public concerning our information collection and recordkeeping 
requirements. These comments will help us:
    (1) Evaluate whether the information collection is necessary for 
the proper performance of our agency's functions, including whether the 
information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 1 hour per response.
    Respondents: State and county cooperators (inspectors); and 
producers, handlers, and movers of regulated fruit and vegetables in 
Cameron County, TX.
    Estimated annual number of respondents: 37.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 37.
    Estimated total annual burden on respondents: 37 hours.
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.
    Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

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

    Authority: Title IV, Pub. L. 106-224, 114 Stat. 438, 7 U.S.C. 
7701-7772; 7 U.S.C. 166; 7 CFR 2.22, 2.80, and 371.3.
    Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 
106-113, 113 Stat. 1501A-293, and Sec. 203, Title II, Pub. L. 106-
224, 114 Stat. 400 (7 U.S.C. 1421 note).


    2. Part 301 is amended by adding a new ``Subpart--West Indian Fruit 
Fly,'' Secs. 301.98 through 301.98-10, to read as follows:

Subpart--West Indian Fruit Fly
Sec.
301.98  Restrictions on interstate movement of regulated articles.
301.98-1  Definitions.
301.98-2  Regulated articles.
301.98-3  Quarantined areas.
301.98-4  Conditions governing the interstate movement of regulated 
articles from quarantined areas.
301.98-5  Issuance and cancellation of certificates and limited 
permits.
301.98-6  Compliance agreements and cancellation.
301.98-7  Assembly and inspection of regulated articles.
301.98-8  Attachment and disposition of certificates and limited 
permits.
301.98-9  Costs and charges.
301.98-10  Treatments.

Subpart--West Indian Fruit Fly


Sec. 301.98  Restrictions on interstate movement of regulated articles.

    No person may move interstate from any quarantined area any 
regulated article except in accordance with this subpart.\1\
---------------------------------------------------------------------------

    \1\ Any properly identified inspector is authorized to stop and 
inspect persons and means of conveyance and to seize, quarantine, 
treat, apply other remedial measures to, destroy, or otherwise 
dispose of regulated articles as provided in section 414 of the 
Plant Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 444, 7 
U.S.C. 7714).
---------------------------------------------------------------------------


Sec. 301.98-1  Definitions.

    Administrator. The Administrator, Animal and Plant Health 
Inspection Service, or any person authorized to act for the 
Administrator.
    Animal and Plant Health Inspection Service. The Animal and Plant 
Health Inspection Service (APHIS) of the United States Department of 
Agriculture.

[[Page 6434]]

    Certificate. A document in which an inspector or person operating 
under a compliance agreement affirms that a specified regulated article 
is free of West Indian fruit fly and may be moved interstate to any 
destination.
    Compliance agreement. A written agreement between APHIS and a 
person engaged in growing, handling, or moving regulated articles, 
wherein the person agrees to comply with this subpart.
    Core area. The 1-square-mile area surrounding each property where 
West Indian fruit fly has been detected.
    Day degrees. A mathematical construct combining average temperature 
over time that is used to calculate the length of a West Indian fruit 
fly life cycle. Day degrees are the product of the following formula, 
with all temperatures measured in  deg.F: (Minimum Daily Temp+ Maximum 
Daily Temp)/2)-54 deg.=Day Degrees.
    Departmental permit. A document issued by the Administrator in 
which he or she affirms that interstate movement of the regulated 
article identified on the document is for scientific or experimental 
purposes and that the regulated article is eligible for interstate 
movement in accordance with Sec. 301.98-4(c) of this subpart.
    Dripline. The line around the canopy of a plant.
    Infestation. The presence of the West Indian fruit fly or the 
existence of circumstances that makes it reasonable to believe that the 
West Indian fruit fly is present.
    Inspector. Any employee of the APHIS, U.S. Department of 
Agriculture, or other person authorized by the Administrator to perform 
the duties required under this subpart.
    Interstate. From any State into or through any other State.
    Limited permit. A document in which an inspector or person 
operating under a compliance agreement affirms that the regulated 
article identified on the document is eligible for interstate movement 
in accordance with Sec. 301.98-5(b) of this subpart only to a specified 
destination and only in accordance with specified conditions.
    Moved (move, movement). Shipped, offered for shipment, received for 
transportation, transported, carried, or allowed to be moved, shipped, 
transported, or carried.
    Person. Any association, company, corporation, firm, individual, 
joint stock company, partnership, society, or other entity.
    Plant Protection and Quarantine. Plant Protection and Quarantine, 
Animal and Plant Health Inspection Service, United States Department of 
Agriculture.
    Quarantined area. Any State, or any portion of a State, listed in 
Sec. 301.98-3(c) of this subpart or otherwise designated as a 
quarantined area in accordance with Sec. 301.98-3(b) of this subpart.
    Regulated article. Any article listed in Sec. 301.98-2 or otherwise 
designated as a regulated article in accordance with Sec. 301.98-2(d).
    State. The District of Columbia, Puerto Rico, the Northern Mariana 
Islands, or any State, territory, or possession of the United States.
    West Indian fruit fly. The insect known as the West Indian fruit 
fly, Anastrepha obliqua (Macquart), in any stage of development.


Sec. 301.98-2  Regulated articles.

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

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

    (b)(1) The following fruits and vegetables:
Barbados cherry (Malpighia glabra)
Carambola (Averrhoa carambola)
Grapefruit (Citrus paradisi)
Granadilla, giant (Passiflora quadrangularis)
Guava (Psidium guajava)
Guava, strawberry (Psidium littorale)
Hog-plum (Spondias mombin)
Japanese plum (Prunus salicina)
Jew plum (Spondias cytherea)
Ketembilla (Dovyalis hebecarpa)
Lime, sweet (Citrus aurantifolia)
Loquat (Eriobotrya japonica)
Malay-apple (Syzygium malaccense)
Mango (Mangifera indica)
Orange, sour (Citrus aurantium)
Orange, sweet (Citrus sinensis)
Passion fruit (Passiflora edulis)
Peach (Prunus persica)
Pear (Pyrus communis)
Ramon (Brosimum alicastrum)
Red mombin (Spondias purpurea)
Rose-apple (Syzygium jambos)
Sapodilla (Manilkara zapota)
Sapote (Diospyros spp.)
    (2) Any fruits or vegetables that are canned or dried or frozen 
below -17.8  deg.C. (0  deg.F.) are not regulated articles.
    (c) Soil within the dripline of plants that are producing or have 
produced the fruits or vegetables listed in paragraph (b) of this 
section.
    (d) Any other product, article, or means of conveyance not listed 
in paragraphs (a) through (c) of this section that an inspector 
determines presents a risk of spreading the West Indian fruit fly, when 
the inspector notifies the person in possession of the product, 
article, or means of conveyance that it is subject to the restrictions 
of this subpart.


Sec. 301.98-3  Quarantined areas.

    (a) Except as otherwise provided in paragraph (b) of this section, 
the Administrator will list as a quarantined area in paragraph (c) of 
this section each State, or each portion of a State, in which the West 
Indian fruit fly has been found by an inspector, in which the 
Administrator has reason to believe that the West Indian fruit fly is 
present, or that the Administrator considers necessary to quarantine 
because of its inseparability for quarantine enforcement purposes from 
localities in which the West Indian fruit fly has been found. Less than 
an entire State will be designated as a quarantined area only if the 
Administrator determines that:
    (1) The State has adopted and is enforcing restrictions on the 
intrastate movement of the regulated articles that are substantially 
the same as those imposed by this subpart on the interstate movement of 
regulated articles; and
    (2) The designation of less than the entire State as a quarantined 
area will prevent the interstate spread of the West Indian fruit fly.
    (b) The Administrator or an inspector may temporarily designate any 
nonquarantined area in a State as a quarantined area in accordance with 
paragraph (a) of this section. The Administrator will give a copy of 
this regulation along with a written notice for the temporary 
designation to the owner or person in possession of the nonquarantined 
area. Thereafter, the interstate movement of any regulated article from 
an area temporarily designated as a quarantined area will be subject to 
this subpart. As soon as practicable, this area will be added to the 
list in paragraph (c) of this section or the designation will be 
terminated by the Administrator or an inspector. The owner or person in 
possession of an area for which designation is terminated will be given 
notice of the termination as soon as practicable.
    (c) The areas described below are designated as quarantined areas:
Texas
    Cameron County. That portion of Cameron County bounded by a line 
drawn as follows: Beginning at the intersection of FM 106 and Robertson 
Road; then north on Robertson Road to Fernando Road; then east on 
Fernando Road to Alexander Road; then north on Alexander Road to 
Taubert Road; then east on Taubert Road to FM 2925; then north on FM 
2925 to Johnson Road; then east on Johnson Road to North Olimeto

[[Page 6435]]

Road; then east along an imaginary line to FM 1847; then south on FM 
1847 to FM 510; then west on FM 510 to Casey Road; then north on Casey 
Road to Bean Road; then west on Bean Road to FM 345; then north on FM 
345 to Glenview Road; then west on Glenview Road to Robertson Road; 
then north on Robertson Road to the point of beginning.


Sec. 301.98-4  Conditions governing the interstate movement of 
regulated articles from quarantined areas.

    Any regulated article may be moved interstate from a quarantined 
area \3\ only if moved under the following conditions:
---------------------------------------------------------------------------

    \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. 301.98-5 and 301.98-8 of this subpart;
    (b) Without a certificate or limited permit if:
    (1) The regulated article originated outside the quarantined area 
and is either moved in an enclosed vehicle or is completely enclosed by 
a covering adequate to prevent access by West Indian fruit flies (such 
as canvas, plastic, or other closely woven cloth) while moving through 
the quarantined area; and
    (2) The point of origin of the regulated article is indicated on 
the waybill, and the enclosed vehicle or the enclosure that contains 
the regulated article is not opened, unpacked, or unloaded in the 
quarantined area; and
    (3) The regulated article is moved through the quarantined area 
without stopping except for refueling or for traffic conditions, such 
as traffic lights or stop signs.
    (c) Without a certificate or limited permit if the regulated 
article is moved:
    (1) By the United States Department of Agriculture for experimental 
or scientific purposes;
    (2) Pursuant to a Departmental permit issued by the Administrator 
for the regulated article;
    (3) Under conditions specified on the Departmental permit and found 
by the Administrator to be adequate to prevent the spread of the West 
Indian fruit fly; and
    (4) With a tag or label bearing the number of the Departmental 
permit issued for the regulated article attached to the outside of the 
container of the regulated article or attached to the regulated article 
itself if not in a container.

(Approved by the Office of Management and Budget under control 
number 0579-0170)


Sec. 301.98-5  Issuance and cancellation of certificates and limited 
permits.

    (a) A certificate may be issued by an inspector \4\ for the 
interstate movement of a regulated article if the inspector determines 
that:
---------------------------------------------------------------------------

    \4\ Services of an inspector may be requested by contacting 
local offices of Plant Protection and Quarantine, which are listed 
in telephone directors. The addresses and telephone numbers of local 
offices may also be obtained from the Animal and Plant Health 
Inspection Service, Plant Protection and Quarantine, Invasive 
Species and Pest Management, 4700 River Road Unit 134, Riverdale, MD 
20737-1236, or the APHIS web site at http://www.aphis.usda.gov/travel/aqui.html.
---------------------------------------------------------------------------

    (1)(i) The regulated article has been treated under the direction 
of an inspector in accordance with Sec. 301.98-10 of this subpart; or
    (ii) Based on inspection of the premises of origin, the premises 
are free from the West Indian fruit fly; or
    (iii) Based on inspection of the regulated article, the regulated 
article is free of West Indian fruit flies; and
    (2) The regulated article will be moved through the quarantined 
area in an enclosed vehicle or will be completely enclosed by a 
covering adequate to prevent access by the West Indian fruit fly; and
    (3) The regulated article is to be moved in compliance with any 
additional emergency conditions the Administrator may impose under 
section 414 of the Plant Protection Act (Title IV, Pub. L. 106-224, 114 
Stat. 444, 7 U.S.C. 7714) \5\ to prevent the spread of the West Indian 
fruit fly; and
---------------------------------------------------------------------------

    \5\ Section 414 of the Plant Protectin Act (Title IV, Pub. L. 
106-224, 114 Stat. 444, 7 U.S.C. 7714) provides that the Secretary 
of Agriculture may, under certain conditions, hold, seize, 
quarantine, treat, apply other remedial measures to destroy or 
otherwise dispose of any plant, plant pest, plant product, article, 
or means of conveyance that is moving, or has moved into or through 
the United States or interstate if the Secretary has reason to 
believe the article is a plant pest or is infested with a plant pest 
at the time of movement.
---------------------------------------------------------------------------

    (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. 301.98-5(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 West 
Indian fruit fly because life stages of the West Indian fruit fly will 
be destroyed by the specified handling, processing, or utilization;
    (2) The regulated article is to be moved in compliance with any 
additional emergency conditions the Administrator may impose under 
section 414 of the Plant Protection Act (Title IV, Pub. L. 106-224, 114 
Stat. 444, 7 U.S.C. 7714) to prevent the spread of the West Indian 
fruit fly; and
    (3) The regulated article is eligible for interstate movement under 
all other Federal domestic plant quarantines and regulations applicable 
to the regulated article.
    (c) Certificates and limited permits for the interstate movement of 
regulated articles may be issued by an inspector or person operating 
under a compliance agreement. A person operating under a compliance 
agreement may issue a certificate for the interstate movement of a 
regulated article if an inspector has determined that the regulated 
article is eligible for a certificate in accordance with paragraph (a) 
of this section. A person operating under a compliance agreement may 
issue a limited permit for interstate movement of a regulated article 
when an inspector has determined that the regulated article is eligible 
for a limited permit in accordance with paragraph (b) of this section.
    (d) Any certificate or limited permit that has been issued may be 
withdrawn, either orally or in writing, by an inspector if he or she 
determines that the holder of the certificate or limited permit has not 
complied with all conditions in this subpart for the use of the 
certificate or limited permit. If the withdrawal is oral, the 
withdrawal and the reasons for the withdrawal will be confirmed in 
writing as promptly as circumstances allow. Any person whose 
certificate or limited permit has been withdrawn may appeal the 
decision in writing to the Administrator within 10 days after receiving 
the written notification of the withdrawal. The appeal must state all 
of the facts and reasons upon which the person relies to show that the 
certificate or limited permit was wrongfully withdrawn. As promptly as 
circumstances allow, the Administrator will grant or deny the appeal, 
in writing, stating the reasons for the decision. A hearing will be 
held to resolve any conflict as to any material fact. Rules of practice 
concerning a hearing will be adopted by the Administrator.

(Approved by the Office of Management and Budget under control 
number 0579-0170)

[[Page 6436]]

Sec. 301.98-6  Compliance agreements and cancellation.

    (a) Any person engaged in growing, handling, or moving regulated 
articles may enter into a compliance agreement when an inspector 
determines that the person understands this subpart, agrees to comply 
with its provisions, and agrees to comply with all the provisions 
contained in the compliance agreement.\7\
---------------------------------------------------------------------------

    \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. 301.98-7  Assembly and inspection of regulated articles.

    (a) Any person (other than a person authorized to issue 
certificates or limited permits under Sec. 301.98-5(c)) who desires to 
move a regulated article interstate accompanied by a certificate or 
limited permit must notify an inspector \8\ as far in advance of the 
desired interstate movement as possible, but no less than 48 hours 
before the desired interstate movement.
---------------------------------------------------------------------------

    \8\ See footnote 4 to Sec. 301.98-5(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. 301.98-8  Attachment and disposition of certificates and limited 
permits.

    (a) A certificate or limited permit required for the interstate 
movement of a regulated article must, at all times during the 
interstate movement, be:
    (1) Attached to the outside of the container containing the 
regulated article; or
    (2) Attached to the regulated article itself if not in a container; 
or
    (3) Attached to the consignee's copy of the accompanying waybill. 
If the certificate or limited permit is attached to the consignee's 
copy of the waybill, the regulated article must be sufficiently 
described on the certificate or limited permit and on the waybill to 
identify the regulated article.
    (b) The certificate or limited permit for the interstate movement 
of a regulated article must be furnished by the carrier to the 
consignee listed on the certificate or limited permit upon arrival at 
the location provided on the certificate or limited permit.

(Approved by the Office of Management and Budget under control 
number 0579-0170)


Sec. 301.98-9  Costs and charges.

    The services of the inspector during normal business hours (8 a.m. 
to 4:30 p.m., Monday through Friday, except holidays) will be furnished 
without cost. The user will be responsible for all costs and charges 
arising from inspection and other services provided outside normal 
business hours.


Sec. 301.98-10  Treatments.

    Treatment schedules listed in the Plant Protection and Quarantine 
Treatment Manual to destroy the West Indian fruit fly are authorized 
for use on regulated articles. The Plant Protection and Quarantine 
Treatment Manual is incorporated by reference. For the full 
identification of this standard, see Sec. 300.1 of this chapter, 
``Materials incorporated by reference.'' The following treatments also 
may be used for the regulated articles indicated:
    (a) Soil within the dripline of plants that are producing or have 
produced the fruits and vegetables listed in Sec. 301.98-2(a) of this 
subpart. Apply diazinon at the rate of 5 pounds active ingredient per 
acre to the soil within the dripline with sufficient water to wet the 
soil to at least a depth of \1/2\ inch.
    (b) Premises. Fields, groves, or areas that are located within a 
quarantined area but outside the infested core area and that produce 
regulated articles may receive regular treatments with either malathion 
or spinosad bait spray as an alternative to treating fruits and 
vegetables as provided in the Plant Protection and Quarantine Treatment 
Manual. These treatments must take place at 6- to 10-day intervals, 
starting a sufficient time before harvest (but not less than 30 days 
before harvest) to allow for development of West Indian fruit fly egg 
and larvae. Determination of the time period must be based on the day 
degrees model for West Indian fruit fly. Once treatment has begun, it 
must continue through the harvest period. The malathion bait spray 
treatment must be applied by aircraft or ground equipment at a rate of 
2.4 oz of technical grade malathion and 9.6 oz of protein hydrolysate 
per acre. The spinosad bait spray treatment must be applied by aircraft 
or ground equipment at a rate of 0.01 oz of a USDA-approved spinosad 
formulation and 48 oz of protein hydrolysate per acre. For ground 
applications, the mixture may be diluted with water to improve 
coverage.

    Done in Washington, DC, this 12th day of January 2001.
Craig A. Reed,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 01-1618 Filed 1-19-01; 8:45 am]
BILLING CODE 3410-34-P