[Federal Register Volume 68, Number 89 (Thursday, May 8, 2003)]
[Rules and Regulations]
[Pages 24605-24613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11438]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 03-032-1]


Sapote Fruit Fly

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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

[[Page 24606]]


DATES: This interim rule was effective May 2, 2003. We will consider 
all comments that we receive on or before July 7, 2003.

ADDRESSES: You may submit comments by postal mail/commercial delivery 
or by e-mail. If you use postal mail/commercial delivery, please send 
four copies of your comment (an original and three copies) to: Docket 
No. 03-032-1, Regulatory Analysis and Development, PPD, APHIS, Station 
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. 03-032-1. If you use e-mail, 
address your comment to [email protected]. Your comment must 
be contained in the body of your message; do not send attached files. 
Please include your name and address in your message and ``Docket No. 
03-032-1'' on the subject line.
    You may read any comments that we receive on this docket in our 
reading room. The reading room is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen A. Knight, Senior Staff 
Officer, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-
1236; (301) 734-8247.

SUPPLEMENTARY INFORMATION:

Background

    We are amending the ``Domestic Quarantine Notices'' in 7 CFR part 
301 by adding a new subpart, ``Sapote Fruit Fly'' (Sec. Sec.  301.99 
through 301.99-10, referred to below as the regulations). The 
regulations quarantine part of Hidalgo County, TX, because of the 
sapote fruit fly and restrict the interstate movement of regulated 
articles from the quarantined area.
    The sapote fruit fly (Anastrepha serpentina) is a destructive pest 
of fruits and vegetables, including apples, avocados, grapefruit, 
mangoes, peaches, pears, and tangerines. This pest can cause serious 
economic losses by lowering the yield and quality of these fruits and 
vegetables and, in some cases, by damaging seedlings and young plants. 
Heavy infestations can result in the complete loss of these crops.
    Recent trapping surveys in the lower Rio Grande valley in Texas 
have established that part of Hidalgo County, TX, is infested with 
sapote fruit fly. Officials of the Animal and Plant Health Inspection 
Service (APHIS) and State and county agencies in Texas have begun an 
intensive survey and eradication program in the infested area. Texas 
has restricted the intrastate movement of certain articles from the 
infested area to prevent the spread of the sapote fruit fly within 
Texas. However, Federal regulations are necessary to restrict the 
interstate movement of certain articles from the infested area to 
prevent the spread of the sapote fruit fly to noninfested areas of the 
United States. This interim rule establishes those Federal regulations, 
which are described below.

Section 301.99--Restrictions on Interstate Movement of Regulated 
Articles

    Section 301.99 prohibits the interstate movement of regulated 
articles from quarantined areas except in accordance with the 
regulations.

Section 301.99-1--Definitions

    Section 301.99-1 contains definitions of the following terms: 
Administrator, Animal and Plant Health Inspection Service, certificate, 
compliance agreement, core area, day degrees, departmental permit, 
dripline, infestation, inspector, interstate, limited permit, moved 
(move, movement), person, Plant Protection and Quarantine, quarantined 
area, regulated article, sapote fruit fly, and State.

Section 301.99-2--Regulated Articles

    Certain articles present a significant risk of spreading the sapote 
fruit fly if they are moved from quarantined areas without 
restrictions. We call these articles regulated articles. Paragraphs (a) 
through (e) of Sec.  301.99-2 list the following as regulated articles:
    [sbull] The sapote fruit fly;
    [sbull] Fruits and vegetables that are not canned or dried or that 
are not frozen below -17.8 [deg]C (0 [deg]F);
    [sbull] Soil within the dripline of plants that are producing or 
have produced those fruits or vegetables; and
    [sbull] Any other product, article, or means of conveyance that an 
inspector determines to present a risk of spreading the sapote fruit 
fly after the inspector provides written notification to the person in 
possession of the product, article, or means of conveyance that it is 
subject to the restrictions in the regulations.
    The last item listed above, which provides for the designation of 
``any other product, article, or means of conveyance'' as a regulated 
article, is intended to address the risks presented by, for example, a 
truck with sapote fruit fly pupae in the cracks of its floorboards, 
thus enabling an inspector to designate that truck as a regulated 
article in order to ensure that any necessary risk-mitigating measures 
are carried out.

Section 301.99-3--Quarantined Areas

    Paragraph (a) of Sec.  301.99-3 provides the criteria for the 
inclusion of States, or portions of States, in the list of quarantined 
areas. Under these criteria, any State or portion of a State in which 
the sapote fruit fly is found by an inspector, or in which the 
Administrator has reason to believe that the sapote fruit fly is 
present, will be listed as a quarantined area. These criteria also 
provide that an area will be designated as a quarantined area when the 
Administrator considers it necessary due to the area's inseparability 
for quarantine enforcement purposes from localities in which the sapote 
fruit fly has been found.
    Paragraph (a) of Sec.  301.99-3 also provides that we will 
designate less than an entire State as a quarantined area only if we 
determine that the State has adopted and is enforcing restrictions on 
the intrastate movement of regulated articles that are equivalent to 
those imposed on the interstate movement of regulated articles and that 
the designation of less than an entire State as a quarantined area will 
prevent the interstate spread of the sapote fruit fly. These 
determinations would indicate that infestations are confined to the 
quarantined areas and eliminate the need for designating an entire 
State as a quarantined area.
    The boundary lines that delimit the portion of a State that is 
designated as a quarantined area are set up approximately 4.5 miles 
from the locations where sapote fruit fly has been detected. The 4.5 
mile radius distance for regulated areas from the trapping sites for 
sapote fruit fly is based upon several factors, including: Previous 
experience with fruit fly eradication programs, estimated efficacy of 
trapping grids, available data on natural dispersal, and 
recommendations from fruit fly experts familiar with the biology and 
behavior of the sapote fruit fly. The boundary lines may vary due to 
factors such as the location of sapote fruit fly host material, the 
location of transportation centers such as bus stations and airports, 
the pattern of persons moving in that State, the

[[Page 24607]]

number and patterns of distribution of the sapote fruit fly, and the 
use of clearly identifiable lines for the boundaries.
    We have determined that it is not necessary to designate the entire 
State of Texas as a quarantined area. The sapote fruit fly has not been 
found in any area of the State other than a portion of Hidalgo County, 
and Texas has adopted and is enforcing restrictions on the intrastate 
movement of regulated articles from that area that are equivalent to 
those we are imposing on the interstate movement of regulated articles. 
Therefore, in accordance with the criteria described in the previous 
paragraph, we have designated part of the lower Rio Grande valley in 
Hidalgo County, TX, as a quarantined area. The boundaries of the 
quarantined area are described in Sec.  301.99-3(c) in the rule portion 
of this document.
    Paragraph (b) of Sec.  301.99-3 provides that we may temporarily 
designate any nonquarantined area in a State as a quarantined area when 
we determine that the nonquarantined area meets the criteria for 
designation as a quarantined area described in Sec.  301.99-3(a). In 
such cases, we will give the owner or person in possession of the area 
a copy of the regulations along with written notice of the area's 
temporary designation as a quarantined area, after which time the 
interstate movement of any regulated article from the area will be 
subject to the regulations. This provision is necessary to prevent the 
spread of the sapote fruit fly during the time between the detection of 
the pest and the time a document quarantining the area can be made 
effective and published in the Federal Register. In the event that an 
area's designation as a temporary quarantined area is terminated, we 
will provide written notice of that termination to the owner or person 
in possession of the area as soon as practicable.

Section 301.99-4--Conditions Governing the Interstate Movement of 
Regulated Articles From Quarantined Areas

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

Section 301.99-5--Issuance and Cancellation of Certificates and Limited 
Permits

    Under Federal domestic plant quarantine programs, there is a 
difference between the use of certificates and limited permits. 
Certificates are issued for regulated articles when an inspector finds 
that, because of certain conditions (e.g., the article is free of 
sapote fruit fly), there is no pest risk before movement. Regulated 
articles accompanied by a certificate may be moved interstate without 
further restrictions. Limited permits are issued for regulated articles 
when an inspector finds that, because of a possible pest risk, the 
articles may be safely moved interstate only subject to further 
restrictions, such as movement to limited areas and movement for 
limited purposes. Section 301.99-5 explains the conditions for issuing 
a certificate or limited permit.
    Specifically, Sec.  301.99-5(a) provides that a certificate will be 
issued by an inspector for the movement of a regulated article if the 
inspector determines that the article: (1) Is free of the sapote fruit 
fly, has been treated in the presence of an inspector in accordance 
with Sec.  301.99-10, or comes from a premises of origin that is free 
of the sapote fruit fly; (2) will be moved in compliance with any 
additional emergency conditions deemed necessary to prevent the spread 
of the sapote fruit fly under section 414 of the Plant Protection Act 
(7 U.S.C. 7714); and (3) is eligible for unrestricted movement under 
all other Federal domestic plant quarantines and regulations applicable 
to that article.
    We have included a footnote (number 4) that provides an address for 
securing the addresses and telephone numbers of the local Plant 
Protection and Quarantine (PPQ) offices at which services of inspectors 
may be requested. We have also included a footnote (number 5) that 
explains that the Secretary of Agriculture may, under the Plant 
Protection Act, take emergency actions to seize, quarantine, treat, 
destroy, or apply other remedial measures to articles that are, or that 
he or she has reason to believe are, infested or infected by or contain 
plant pests.
    Paragraph (b) of Sec.  301.99-5 provides for the issuance of a 
limited permit by an inspector for interstate movement of a regulated 
article if the inspector determines that the article is to be moved to 
a specified destination for specified handling, utilization, or 
processing, and that the movement will not result in the spread of the 
sapote fruit fly. A limited permit will only be issued if the regulated 
article will be moved in compliance with any additional emergency 
conditions imposed by the Administrator under section 414 of the Plant 
Protection Act (7 U.S.C. 7714) to prevent the spread of the sapote 
fruit fly, and if the regulated article is eligible for interstate 
movement under all other Federal domestic plant quarantines and 
regulations applicable to the regulated article.
    Paragraph (c) of Sec.  301.99-5 allows any person who has entered 
into and is operating under a compliance agreement to issue a 
certificate or limited permit for the interstate movement of a 
regulated article after an inspector has determined that the article is 
eligible for a certificate or limited permit under Sec.  301.99-5(a) or 
(b).
    Also, Sec.  301.99-5(d) contains provisions for the withdrawal of a 
certificate or limited permit by an inspector if the inspector 
determines that the holder of the certificate or limited permit has not 
complied with conditions for the use of the document. This section also 
contains provisions for notifying the holder of the reasons for the 
withdrawal and for holding a hearing if there is any conflict 
concerning any material fact in the event that the person wishes to 
appeal the cancellation.

Section 301.99-6--Compliance Agreements and Cancellation

    Section 301.99-6 provides for the use of and cancellation of 
compliance agreements. Compliance agreements are provided for the 
convenience of persons who are involved in the growing, handling, or 
moving of regulated articles from quarantined areas. A person may enter 
into a compliance agreement when an inspector has determined that the 
person requesting the compliance

[[Page 24608]]

agreement has been made aware of the requirements of the regulations 
and the person has agreed to comply with the requirements of the 
regulations and the provisions of the compliance agreement. This 
section contains a footnote (number 7) that explains where compliance 
agreement forms may be obtained.
    Section 301.99-6 also provides that an inspector may cancel the 
compliance agreement upon finding that a person who has entered into 
the agreement has failed to comply with any of the provisions of the 
regulations. The inspector will notify the holder of the compliance 
agreement of the reasons for cancellation and offer an opportunity for 
a hearing to resolve any conflicts of material fact in the event that 
the person wishes to appeal the cancellation.

Section 301.99-7--Assembly and Inspection of Regulated Articles

    Section 301.99-7 provides that any person (other than a person 
authorized to issue certificates or limited permits under Sec.  301.99-
5(c)) who desires a certificate or limited permit to move regulated 
articles must request, at least 48 hours before the desired interstate 
movement, that an inspector issue a certificate or limited permit. The 
regulated articles must be assembled in a place and manner directed by 
the inspector.

Section 301.99-8--Attachment and Disposition of Certificates and 
Limited Permits

    Section 301.99-8 requires the certificate or limited permit issued 
for movement of the regulated article to be attached, during the 
interstate movement, to the regulated article, or to a container 
carrying the regulated article, or to the consignee's copy of the 
accompanying waybill. Further, the section requires that the carrier or 
the carrier's representative must furnish the certificate or limited 
permit to the consignee listed on the certificate or limited permit 
upon arrival at the location provided on the certificate or limited 
permit.

Section 301.99-9--Costs and Charges

    Section 301.99-9 explains the APHIS policy that the services of an 
inspector that are needed to comply with the regulations are provided 
without cost between 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays, to persons requiring those services, but that we will 
not be responsible for any other costs or charges (such as overtime 
costs for inspections conducted at times other than between 8 a.m. to 
4:30 p.m., Monday through Friday, except holidays).

Section 301.99-10--Treatments

    Section 301.99-10 lists treatments that qualify soil and regulated 
articles for interstate movement with a certificate as provided in 
Sec.  301.99-5.
    The introductory text of this section provides that any person 
moving fruits and vegetables originating inside the quarantined area 
outside of the quarantined area may treat those fruits and vegetables 
with an applicable treatment listed in the PPQ Treatment Manual, which 
is incorporated by reference at 7 CFR 300.1, ``Plant Protection and 
Quarantine Treatment Manual.''
    Paragraph (a) provides that soil within the dripline of plants that 
are producing or have produced the fruits and vegetables listed in 
Sec.  301.99-2(a) of the subpart may be treated with diazinon at the 
rate of 5 pounds active ingredient per acre with sufficient water to 
wet the soil to a depth of at least \1/2\ inch. Research by the 
Department's Agricultural Research Service has determined that this 
diazinon treatment would destroy the sapote fruit fly in soil.
    Paragraph (b) provides that citrus fruits originating inside the 
quarantined area that are to be moved outside the quarantined area may 
be treated with methyl bromide fumigation in APHIS-approved chambers as 
an alternative to the treatments prescribed in the PPQ Treatment 
Manual. Exposure period for this treatment is 2 hours. Fruit pulp 
temperature must be between 21.1 [deg]C and 29.4 [deg]C (70 [deg]F and 
85 [deg]F). This temperature requirement refers to fruit pulp only and 
not to air temperature within the chamber. Fruit taken from a cooling 
room may have to be pre-warmed before fumigation is attempted. To 
determine fruit pulp temperature, stab several fruit to the center with 
a suitable thermometer that reads at least in whole degrees (F or C). 
The lowest temperature should be used, not the average. The methyl 
bromide dosage is set at a rate of 2.5 pounds of 100 percent pure, type 
``Q'' (for quarantine use only) methyl bromide per 1,000 cubic feet of 
chamber space. After the treatment cycle is complete, regulated 
articles will be eligible for interstate movement with a certificate as 
provided in Sec.  301.99-5 unless, prior to treatment, representative 
sampling revealed a level of infestation greater than 0.5 percent for 
the lot.
    Paragraph (d) provides that premises that are located within the 
regulated area but outside the infested core area, and that produce 
regulated articles, may receive regular treatments with malathion or 
spinosad bait spray as an alternative to treating fruits and vegetables 
with methyl bromide fumigation as described above or with treatments 
prescribed in the PPQ Treatment Manual. These treatments must take 
place at 6-to 10-day intervals, starting a sufficient time before 
harvest (but not less than 30 days before harvest) to allow for 
completion of egg and larvae development of the sapote fruit fly. 
Determination of the time period must be based on the day degrees model 
for sapote fruit fly. Since the length of fruit fly life cycles vary 
according to the temperature of their environment, the day degrees 
model is used to project the duration of the life cycle of the fruit 
fly. Once treatment has begun, it must continue through the harvest 
period. The malathion bait spray treatment must be applied by aircraft 
or ground equipment at a rate of 2.4 oz of technical grade malathion 
and 9.6 oz of protein hydrolysate per acre. Spinosad bait spray must be 
applied by aircraft or ground equipment at a rate of 0.01 oz of a USDA-
approved spinosad formulation and 48 oz of protein hydrolysate per 
acre. For ground applications of spinosad, the mixture may be diluted 
with water to improve coverage. After the treatment cycle is complete, 
regulated articles produced on the premises will be eligible for 
interstate movement with a certificate as provided in Sec.  301.99-5.

Emergency Action

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

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review under 
Executive Order 12866.

[[Page 24609]]

    This emergency situation makes timely compliance with section 604 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) impracticable. 
We are currently assessing the potential economic effects of this 
action on small entities. Based on that assessment, we will either 
certify that the rule will not have a significant economic impact on a 
substantial number of small entities or publish a final regulatory 
flexibility analysis.

Executive Order 12372

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

Executive Order 12988

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

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for the Sapote Fruit Fly Cooperative Eradication 
Program. The assessment provides a basis for the conclusion that the 
implementation of this interim rule will not have a significant impact 
on human health and the natural environment. Based on the finding of no 
significant impact, the Administrator of the Animal and Plant Health 
Inspection Service has determined that an environmental impact 
statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    Copies of the environmental assessment and finding of no 
significant impact are available for public inspection in our reading 
room (information on the location and hours of the reading room is 
provided under the heading ADDRESSES at the beginning of this 
document). Copies may also be obtained by calling or writing to the 
individual listed under FOR FURTHER INFORMATION CONTACT. In addition, 
copies are available on the Internet at http://www.aphis.usda.gov/ppd/es/sapff.htm.

Paperwork Reduction Act

    In accordance with section 3507(j) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection and 
recordkeeping requirements included in this interim rule have been 
submitted for emergency approval to the Office of Management and Budget 
(OMB). OMB has assigned control number 0579-0222 to the information 
collection and recordkeeping requirements.
    We plan to request continuation of that approval for 3 years. 
Please send written comments on the 3-year approval request to the 
following addresses: (1) Office of Information and Regulatory Affairs, 
OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) 
Docket No. 03-032-1, Regulatory Analysis and Development, PPD, APHIS, 
Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. 
Please state that your comments refer to Docket No. 03-032-1 and send 
your comments within 60 days of publication of this rule.
    This interim rule quarantines a part of Hidalgo County, TX, because 
of the sapote fruit fly and restricts the interstate movement of 
regulated articles from the quarantined area. Its implementation will 
require us to engage in certain information collection activities, in 
that certain articles may not be moved interstate from the quarantined 
area unless they are accompanied by a certificate or limited permit. A 
certificate or limited permit may be issued by an inspector (i.e., an 
APHIS employee or other person authorized by the APHIS Administrator to 
enforce the regulations) or by a person who has entered into a written 
compliance agreement with APHIS. We are soliciting comments from the 
public (as well as affected agencies) concerning our information 
collection and recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the information collection is necessary for 
the proper performance of our agency's functions, including whether the 
information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
information collection, including the validity of the methodology and 
assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.16 hours per response.
    Respondents: Growers, State plant regulatory officials.
    Estimated annual number of respondents: 700.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 700.
    Estimated total annual burden on respondents: 112 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS Information Collection Coordinator, at (301) 
734-7477.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this interim rule, please contact Mrs. Celeste 
Sickles, APHIS Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 301

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

0
Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

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

    Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
    Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-

[[Page 24610]]

16 also issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 
400 (7 U.S.C. 1421 note).


0
2. Part 301 is amended by adding a new ``Subpart--Sapote Fruit Fly,'' 
Sec. Sec.  301.99 through 301.99-10, to read as follows:
Subpart--Sapote Fruit Fly
Sec.
301.99 Restrictions on interstate movement of regulated articles.
301.99-1 Definitions.
301.99-2 Regulated articles.
301.99-3 Quarantined areas.
301.99-4 Conditions governing the interstate movement of regulated 
articles from quarantined areas.
301.99-5 Issuance and cancellation of certificates and limited 
permits.
301.99-6 Compliance agreements and cancellation.
301.99-7 Assembly and inspection of regulated articles.
301.99-8 Attachment and disposition of certificates and limited 
permits.
301.99-9 Costs and charges.
301.99-10 Treatments.

Subpart--Sapote Fruit Fly


Sec.  301.99  Restrictions on interstate movement of regulated 
articles.

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

    \1\ Any properly identified inspector is authorized to stop and 
inspect persons and means of conveyance and to seize, quarantine, 
treat, apply other remedial measures to, destroy, or otherwise 
dispose of regulated articles as provided in section 414 of the 
Plant Protection Act (7 U.S.C. 7714).
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Sec.  301.99-1  Definitions.

    Administrator. The Administrator, Animal and Plant Health 
Inspection Service, or any person authorized to act for the 
Administrator.
    Animal and Plant Health Inspection Service. The Animal and Plant 
Health Inspection Service (APHIS) of the United States Department of 
Agriculture.
    Certificate. A document in which an inspector or person operating 
under a compliance agreement affirms that a specified regulated article 
is free of sapote fruit fly and may be moved interstate to any 
destination.
    Compliance agreement. A written agreement between APHIS and a 
person engaged in growing, handling, or moving regulated articles, 
wherein the person agrees to comply with this subpart.
    Core area. The 1-square-mile area surrounding each property where 
sapote fruit fly has been detected.
    Day degrees. A mathematical construct combining average temperature 
over time that is used to calculate the length of a sapote fruit fly 
life cycle. Day degrees are the product of the following formula, with 
all temperatures measured in [deg]F:
    (Minimum Daily Temp + Maximum Daily Temp)/2)-54 = Day Degrees.
    Departmental permit. A document issued by the Administrator in 
which he or she affirms that interstate movement of the regulated 
article identified on the document is for scientific or experimental 
purposes and that the regulated article is eligible for interstate 
movement in accordance with Sec.  301.99-4(c) of this subpart.
    Dripline. The line around the canopy of a plant.
    Infestation. The presence of the sapote fruit fly or the existence 
of circumstances that makes it reasonable to believe that the sapote 
fruit fly is present.
    Inspector. Any employee of APHIS or other person authorized by the 
Administrator to perform the duties required under this subpart.
    Interstate. From any State into or through any other State.
    Limited permit. A document in which an inspector or person 
operating under a compliance agreement affirms that the regulated 
article identified on the document is eligible for interstate movement 
in accordance with Sec.  301.99-5(b) only to a specified destination 
and only in accordance with specified conditions.
    Moved (move, movement). Shipped, offered for shipment, received for 
transportation, transported, carried, or allowed to be moved, shipped, 
transported, or carried.
    Person. Any association, company, corporation, firm, individual, 
joint stock company, partnership, society, or other entity.
    Plant Protection and Quarantine. The Plant Protection and 
Quarantine program of the Animal and Plant Health Inspection Service, 
United States Department of Agriculture.
    Quarantined area. Any State, or any portion of a State, listed in 
Sec.  301.99-3(c) or otherwise designated as a quarantined area in 
accordance with Sec.  301.99-3(b).
    Regulated article. Any article listed in Sec.  301.99-2 or 
otherwise designated as a regulated article in accordance with Sec.  
301.99-2(d).
    Sapote fruit fly. The insect known as the sapote fruit fly, 
Anastrepha serpentina, in any stage of development.
    State. The District of Columbia, Puerto Rico, the Northern Mariana 
Islands, or any State, territory, or possession of the United States.


Sec.  301.99-2  Regulated articles.

    The following are regulated articles:
    (a) Sapote fruit flies.\2\
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    \2\ Permit and other requirements for the interstate movement of 
sapote fruit flies are contained in part 330 of this chapter.
---------------------------------------------------------------------------

    (b) The following fruits and vegetables:

Abiu (Pouteria caimito)
Apple (Malus domestica)
Avocado (Persea americana)
Black sapote (Diospyros digyna)
Citrus (Citrus spp.)
Egg-fruit tree (Pouteria campechiana)
Green sapote (Pouteria viridis)
Guava (Psidium guajava)
Hog-plum (Spondias mombin)
Ketembilla (Dovyalis hebecarpa)
Lucmo (Pouteria obovata)
Mammy apple (Mammea americana)
Mango (Mangifera indica)
Nance (Byrsonima crassifolia)
Panama orange (Citrofortunella x mitis)
Peach (Prunus perscia)
Pear (Pyrus communis)
Pond-apple (Annona glabra)
Quince (Cydonia oblonga)
Red mombin (Spondias purpurea)
Sapodilla (Manilkara zapota)
Sapote (Diospyros spp.)
Star-apple (Chrysophyllum Cainito)

    Any fruits or vegetables that are not canned or dried or frozen 
below -17.8 [deg]C. (0 [deg]F.).
    (c) Soil within the dripline of plants that are producing or have 
produced the fruits or vegetables listed in paragraph (b) of this 
section.
    (d) Any other product, article, or means of conveyance not listed 
in paragraphs (a) through (c) of this section that an inspector 
determines presents a risk of spreading the sapote fruit fly, after the 
inspector provides written notification to the person in possession of 
the product, article, or means of conveyance that it is subject to the 
restrictions of this subpart.


Sec.  301.99-3  Quarantined areas.

    (a) Except as otherwise provided in paragraph (b) of this section, 
the Administrator will list as a quarantined area in paragraph (c) of 
this section each State, or each portion of a State, in which the 
sapote fruit fly has been found by an inspector, in which the 
Administrator has reason to believe that the sapote fruit fly is 
present, or that the Administrator considers necessary to quarantine 
because of its inseparability for quarantine enforcement purposes from 
localities in which the sapote fruit fly has been found. Less than an 
entire State will be designated as a quarantined area only if the 
Administrator determines that:
    (1) The State has adopted and is enforcing restrictions on the 
intrastate

[[Page 24611]]

movement of the regulated articles that are equivalent to those imposed 
by this subpart on the interstate movement of regulated articles; and
    (2) The designation of less than the entire State as a quarantined 
area will prevent the interstate spread of the sapote fruit fly.
    (b) The Administrator or an inspector may temporarily designate any 
nonquarantined area in a State as a quarantined area in accordance with 
paragraph (a) of this section. The Administrator will give a copy of 
this regulation along with a written notice for the temporary 
designation to the owner or person in possession of the nonquarantined 
area. Thereafter, the interstate movement of any regulated article from 
an area temporarily designated as a quarantined area will be subject to 
this subpart. As soon as practicable, the area will be added to the 
list in paragraph (c) of this section or the designation will be 
terminated by the Administrator or an inspector. The owner or person in 
possession of an area for which designation is terminated will be given 
notice of the termination as soon as practicable.
    (c) The areas described in this paragraph are designated as 
quarantined areas:

Texas

    Hidalgo County. That portion of Hidalgo County bounded by a line as 
follows: Beginning at the intersection of South Cage Boulevard and the 
Rio Grande River; then northwest along the Rio Grande River for 17.11 
miles; then north along an imaginary line to the intersection of Aloe 
Vera and Sunrise Street; then northeast along an imaginary line to the 
intersection of Victoria and Davina Street; then northwest along an 
imaginary line to the intersection of Farm Road 495 and North Stewart 
Road; then northeast along an imaginary line to the intersection of 
North Ware Road and Mile 4 North Road; then east on Mile 4 North Road 
(also known as West Alberta Road) to South I Road; then south on South 
I Road to West Earling Road; then east on West Earling Road to North 
San Juan Road; then south on North San Juan Road to East Ferguson 
Avenue; then east on East Ferguson Avenue to East Gasline Road; then 
south on East Gasline Road to East Nebraska Road; then east on East 
Nebraska Road to North Morningside Road; then south on North 
Morningside Road to Expressway 83; then east on Expressway 83 to North 
Alamo Road; then north on North Alamo Road to Earling Road; then west 
on Earling Road to North Morningside Road; then north on North 
Morningside Road to East Curve Road; then east on East Curve Road to 
Alamo Road; then north on Alamo Road to Mile 17 Road North; then west 
on Mile 17 Road North to Sharp Road; then northeast on Sharp Road to 
Mile 18 Road North; then east on Mile 18 Road North continuing along an 
imaginary line to Mile 17 Road North and Mile 6 Road West; then south 
on Mile 6 Road West to Mile 17 Road North; then east on Mile 17 Road 
North to West Broadway Street; then south on West Broadway Street to 
State Highway 107; then east on State Highway 107 to Mile 4 Road West; 
then south on Mile 4 Road West to Mile 13 Road North; then east on Mile 
13 Road North to Farm Road 1015; then south on Farm Road 1015 to 
Expressway 83; then west on Expressway 83 to South Bridge Avenue; then 
south on South Bridge Avenue to East Eighth Street; then west on East 
Eighth Street to South Border Avenue; then south on South Border Avenue 
to Mile 6 Road North; then west on Mile 6 Road North to Midway Road; 
then south on Midway Road to Lott Road; then west on Lott Road, 
continuing along an imaginary line to the intersection of FM 907 and 
Resaca Road; then south on FM 907 to Balli Road; then west on Balli 
Road to FM 2557; then south on FM 2557 to Las Milpas Road; then east on 
Las Milpas Road to South I Road; then south on South I Road to Hi Line 
Road; then west on Hi Line Road to South Cage Boulevard; then south on 
South Cage Boulevard to the point of beginning.


Sec.  301.99-4  Conditions governing the interstate movement of 
regulated articles from quarantined areas.

    Any regulated article may be moved interstate from a quarantined 
area \3\ only if moved under the following conditions:
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    \3\ Requirements under all other applicable Federal domestic 
plant quarantines and regulations must also be met.
---------------------------------------------------------------------------

    (a) With a certificate or limited permit issued and attached in 
accordance with Sec. Sec.  301.99-5 and 301.99-8;
    (b) Without a certificate or limited permit if:
    (1) The regulated article originated outside the quarantined area 
and is either moved in an enclosed vehicle or is completely enclosed by 
a covering adequate to prevent access by sapote fruit flies (such as 
canvas, plastic, or other closely woven cloth) while moving through the 
quarantined area; and
    (2) The point of origin of the regulated article is indicated on 
the waybill, and the enclosed vehicle or the enclosure that contains 
the regulated article is not opened, unpacked, or unloaded in the 
quarantined area; and
    (3) The regulated article is moved through the quarantined area 
without stopping except for refueling or for traffic conditions, such 
as traffic lights or stop signs.
    (c) Without a certificate or limited permit if the regulated 
article is moved:
    (1) By the United States Department of Agriculture for experimental 
or scientific purposes;
    (2) Pursuant to a departmental permit issued by the Administrator 
for the regulated article;
    (3) Under conditions specified on the departmental permit and found 
by the Administrator to be adequate to prevent the spread of the sapote 
fruit fly; and
    (4) With a tag or label bearing the number of the departmental 
permit issued for the regulated article attached to the outside of the 
container of the regulated article or attached to the regulated article 
itself if not in a container.


(Approved by the Office of Management and Budget under control number 
0579-0222)


Sec.  301.99-5  Issuance and cancellation of certificates and limited 
permits.

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

    \4\ Services of an inspector may be requested by contacting 
local offices of Plant Protection and Quarantine, which are listed 
in telephone directories. The addresses and telephone numbers of 
local offices may also be obtained from the McAllen Work Station, 
Federal Building Suite 119, 320 North Main, McAllen, TX 78501-4699, 
or the APHIS Web site at http://www.aphis.usda.gov/travel/aqi.html.
---------------------------------------------------------------------------

    (1)(i) The regulated article has been treated under the direction 
of an inspector in accordance with Sec.  301.99-10; or
    (ii) Based on inspection of the premises of origin, the premises 
are free from the sapote fruit fly; or
    (iii) Based on inspection of the regulated article, the regulated 
article is free of sapote fruit flies; and
    (2) The regulated article will be moved through the quarantined 
area in an enclosed vehicle or will be completely enclosed by a 
covering adequate to prevent access by the sapote fruit fly; and
    (3) The regulated article is to be moved in compliance with any 
additional emergency conditions the Administrator may impose under 
section 414 of the Plant Protection Act (7 U.S.C. 7714)\5\ to prevent 
the spread of the sapote fruit fly; and
---------------------------------------------------------------------------

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

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

[[Page 24612]]

    (4) The regulated article is eligible for unrestricted movement 
under all other Federal domestic plant quarantines and regulations 
applicable to the regulated article.
    (b) An inspector \6\ will issue a limited permit for the interstate 
movement of a regulated article if the inspector determines that:
---------------------------------------------------------------------------

    \6\ See footnote 4 to Sec.  301.99-5(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 
sapote fruit fly because life stages of the sapote fruit fly will be 
destroyed by the specified handling, processing, or utilization;
    (2) The regulated article is to be moved in compliance with any 
additional emergency conditions the Administrator may impose under 
section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the 
spread of the sapote fruit fly; and
    (3) The regulated article is eligible for interstate movement under 
all other Federal domestic plant quarantines and regulations applicable 
to the regulated article.
    (c) Certificates and limited permits for the interstate movement of 
regulated articles may be issued by an inspector or person operating 
under a compliance agreement. A person operating under a compliance 
agreement may issue a certificate for the interstate movement of a 
regulated article after an inspector has determined that the regulated 
article is eligible for a certificate in accordance with paragraph (a) 
of this section. A person operating under a compliance agreement may 
issue a limited permit for interstate movement of a regulated article 
after an inspector has determined that the regulated article is 
eligible for a limited permit in accordance with paragraph (b) of this 
section.
    (d) Any certificate or limited permit that has been issued may be 
withdrawn, either orally or in writing, by an inspector if he or she 
determines that the holder of the certificate or limited permit has not 
complied with all conditions in this subpart for the use of the 
certificate or limited permit. If the withdrawal is oral, the 
withdrawal and the reasons for the withdrawal will be confirmed in 
writing as promptly as circumstances allow. Any person whose 
certificate or limited permit has been withdrawn may appeal the 
decision in writing to the Administrator within 10 days after receiving 
the written notification of the withdrawal. The appeal must state all 
of the facts and reasons upon which the person relies to show that the 
certificate or limited permit was wrongfully withdrawn. As promptly as 
circumstances allow, the Administrator will grant or deny the appeal, 
in writing, stating the reasons for the decision. A hearing will be 
held to resolve any conflict as to any material fact. Rules of practice 
concerning a hearing will be adopted by the Administrator.


(Approved by the Office of Management and Budget under control number 
0579-0222)


Sec.  301.99-6  Compliance agreements and cancellation.

    (a) Any person engaged in growing, handling, or moving regulated 
articles may enter into a compliance agreement when an inspector 
determines that the person is aware of this subpart, agrees to comply 
with its provisions, and agrees to comply with all the provisions 
contained in the compliance agreement.\7\
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    \7\ Compliance agreement forms are available without charge from 
the McAllen Work Station, Federal Building Suite 119, 320 North 
Main, McAllen, TX 78501-4699, and from local Plant Protection and 
Quarantine offices, which are listed in telephone directories.
---------------------------------------------------------------------------

    (b) Any compliance agreement may be canceled, either orally or in 
writing, by an inspector whenever the inspector finds that the person 
who has entered into the compliance agreement has failed to comply with 
this subpart. If the cancellation is oral, the cancellation and the 
reasons for the cancellation will be confirmed in writing as promptly 
as circumstances allow. Any person whose compliance agreement has been 
canceled may appeal the decision, in writing, to the Administrator, 
within 10 days after receiving written notification of the 
cancellation. The appeal must state all of the facts and reasons upon 
which the person relies to show that the compliance agreement was 
wrongfully canceled. As promptly as circumstances allow, the 
Administrator will grant or deny the appeal, in writing, stating the 
reasons for the decision. A hearing will be held to resolve any 
conflict as to any material fact. Rules of practice concerning a 
hearing will be adopted by the Administrator.


Sec.  301.99-7  Assembly and inspection of regulated articles.

    (a) Any person (other than a person authorized to issue 
certificates or limited permits under Sec.  301.99-5(c)) who desires a 
certificate or limited permit to move a regulated article interstate 
must notify an inspector \8\ as far in advance of the desired 
interstate movement as possible, but no less than 48 hours before the 
desired interstate movement.
---------------------------------------------------------------------------

    \8\ See footnote 4 to Sec.  301.99-5(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.  301.99-8  Attachment and disposition of certificates and limited 
permits.

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


(Approved by the Office of Management and Budget under control number 
0579-0222)


Sec.  301.99-9  Costs and charges.

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


Sec.  301.99-10  Treatments.

    Treatment schedules listed in the Plant Protection and Quarantine 
Treatment Manual to destroy the sapote fruit fly are authorized for use 
on regulated articles. The Plant Protection and Quarantine Treatment 
Manual is incorporated by reference. For the full identification of 
this standard, see

[[Page 24613]]

Sec.  300.1 of this chapter, ``Plant Protection and Quarantine 
Treatment Manual.'' The following treatments also may be used for the 
regulated articles indicated:
    (a) Soil within the dripline of plants that are producing or have 
produced the fruits and vegetables listed in Sec.  301.99-2(a) of this 
subpart. Apply diazinon at the rate of 5 pounds active ingredient per 
acre to the soil within the dripline with sufficient water to wet the 
soil to at least a depth of \1/2\ inch.
    (b) Citrus fruits. Regulated citrus fruits originating inside the 
quarantined area that are to be moved outside the quarantined area may 
be treated with methyl bromide fumigation in APHIS-approved chambers as 
an alternative to treating the fruits as provided in the Plant 
Protection and Quarantine Treatment Manual. Exposure period for this 
treatment is 2 hours.\9\ Fruit pulp temperature must be between 21.1 
[deg]C and 29.4 [deg]C (70 [deg]F and 85 [deg]F). This temperature 
requirement refers to fruit pulp only and not to air temperature within 
the chamber. Fruit taken from a cooling room may have to be pre-warmed 
before fumigation is attempted. To determine fruit pulp temperature, 
stab several fruit to the center with a suitable thermometer that reads 
at least in whole degrees (F or C). The lowest temperature should be 
used, not the average. The methyl bromide dosage is set at a rate of 
2.5 pounds of 100 percent pure, type ``Q'' (for quarantine use only) 
methyl bromide per 1,000 cubic feet of chamber space.\10\ However, if, 
prior to treatment, representative sampling reveals a level of 
infestation greater than 0.5 percent for the lot, then the fruit is 
ineligible for treatment.
---------------------------------------------------------------------------

    \9\ To enhance equal concentrations of methyl bromide throughout 
the chamber, a fan should be placed near the point of gas 
introduction, and allowed to run for at least 15 minutes.
    \10\ Dosage is based upon chamber volume, not the volume of the 
fruit being treated. Fruit should be in cartons approved for 
fumigation. Cartons must be placed on pallets. There should be an 
air space of at least 1 foot between adjacent pallet loads; at least 
1 foot between chamber walls and the nearest carton of fruit; and at 
least 2 feet between the height of the stack and the ceiling of the 
chamber. The compressed liquid methyl bromide inside the cylinder 
must be put through a volatilizer prior to injection into the 
chamber. Water temperature in the volatilizer must never fall below 
65.6 [deg]C (150 [deg]F) at any time during gas injection.
---------------------------------------------------------------------------

    (c) Premises. Fields, groves, or areas that are located within a 
quarantined area but outside the infested core area and that produce 
regulated articles may receive regular treatments with either malathion 
or spinosad bait spray as an alternative to treating the regulated 
articles with methyl bromide fumigation or those treatments provided in 
the Plant Protection and Quarantine Treatment Manual. These treatments 
must take place at 6-to 10-day intervals, starting a sufficient time 
before harvest (but not less than 30 days before harvest) to allow for 
development of sapote fruit fly egg and larvae. Determination of the 
time period must be based on the day degrees model for sapote fruit 
fly. Once treatment has begun, it must continue through the harvest 
period. The malathion bait spray treatment must be applied by aircraft 
or ground equipment at a rate of 2.4 oz of technical grade malathion 
and 9.6 oz of protein hydrolysate per acre. The spinosad bait spray 
treatment must be applied by aircraft or ground equipment at a rate of 
0.01 oz of a USDA-approved spinosad formulation and 48 oz of protein 
hydrolysate per acre. For ground applications, the mixture may be 
diluted with water to improve coverage.

    Done in Washington, DC, this 2nd day of May 2003 .
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-11438 Filed 5-7-03; 8:45 am]
BILLING CODE 3410-34-P