E8-12858. Consolidation of the Fruit Fly Regulations

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending the regulations to consolidate our domestic regulations regarding exotic fruit flies. Currently, these regulations are contained in six separate subparts, each of which covers a different species of fruit fly, and each of these subparts has parallel sections that are substantially the same as the corresponding sections in the other subparts. Therefore, we are combining these six subparts into a single subpart. We are also modifying the regulations by adding a mechanism through which quarantined areas can be removed from regulation expeditiously. These actions eliminate duplication and enhance the flexibility of our regulatory program.

DATES:

Effective Date: July 9, 2008.

FOR FURTHER INFORMATION CONTACT:

Mr. Wayne D. Burnett, Domestic Coordinator, Fruit Fly Exclusion and Detection Programs, PPQ, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737-1234; [phone].

SUPPLEMENTARY INFORMATION:

Background

On September 18, 2007, we published in the Federal Register (72 FR 53171-53181, Docket No. APHIS-2007-0084) a proposal ^[1] to consolidate our domestic regulations regarding exotic fruit flies. These regulations have been maintained in six separate subparts, each of which covers a different species of fruit fly, and each of these subparts has parallel sections that are substantially the same as the corresponding sections in the other subparts, so we proposed to combine those six subparts into a single subpart. We also proposed to modify the regulations by adding a mechanism through which quarantined areas can be removed from regulation expeditiously. These actions eliminate duplication and enhance the flexibility of our regulatory program. Finally, we proposed to make irradiation available as a phytosanitary treatment for additional species of fruit flies.

We solicited comments concerning out proposal for 60 days ending November 19, 2007. We received two comments by that date. They were from a State agricultural agency and a private citizen. The comments supported the rule. One commenter did, however, suggest a few minor changes. They are discussed below.

The commenter, noting that we had proposed to revise the definition of core area to describe an area within a circle surrounding each site where fruit flies have been detected using a 1/2 mile radius with the detection site as a center point, stated his agency had found that using a square-mile section around the find is more conducive to actual trap placement than a radius.

As we stated in the proposed rule, our update to the definition of core area was intended to reflect the availability of GPS technology because we have determined that the use of GPS technology allows us to more accurately measure the distance from a positive detection site. Our change to the definition will not affect the ability of State or local agencies to carry out existing surveillance efforts or eradication treatment methods; it simply redefines the way we will identify the core area surrounding a detection site. In other words, this revision does not preclude State agencies from employing squared-off grids as a guide to place traps.

The commenter also suggested we revise references to “all other fruit flies” or “other species of insects in the family Tephritidae” since there are more than 4,000 species of Tephritids and not all of them are pests.

In the definition for fruit fly (fruit flies) found in the regulations, we specifically include “or other species of insects found in the family Tephritidae” in the definition because this reference provides us with the flexibility we need to regulate new fruit fly pests as the need arises; it does not mean that we consider all other species of insects found in the family Tephritidae to be pests. Similarly, while we do refer to “all fruit fly species of the Family Tephritidae” in § 305.2, “Approved treatments,” this does not mean that we consider all fruit flies species of the Family Tephritidae to be pests, only that the treatment has been shown to be effective against those species and has been approved for use.

Finally, the commenter suggested we combine the three soil treatments mentioned in § 301.32-10, paragraph (a), because they appear to be the same. We agree that these three treatments can be combined into one and we have revised § 301.32-10(a) in the final rule accordingly.

Quarantined Areas (§ 301.32-3)

In this final rule, we have updated § 301.32-3, “Quarantined areas,” to incorporate a different approach to listing quarantined areas and notifying the public of changes to those areas. In the proposed rule, we described a mechanism by which we would quarantine an area by providing written notification to the affected entities in that area, and then follow up by amending the regulations to add a description of the quarantined area. When sufficient time passed without additional fruit fly detections and it was time to lift the quarantine, the affected entities would be notified and we would amend the regulations to remove the description of the quarantined area.

Following the publication of the proposed rule, we amended ^[2] our regulations in 7 CFR part 301 by adding a new “Subpart-Potato Cyst Nematode” (§§ 301.86 through 301.86-9). In that new subpart, we employed a different approach to notifying the public about changes to quarantined areas. Rather than engaging in a process like that described in the previous paragraph, the new subpart describes the conditions under which fields will be added or removed from quarantine and uses the Internet and Federal Register notices inform the public of changes to the quarantined areas. When, for example, a field or area meets the criteria spelled out in the regulations for designation as a quarantined area, we publish a description of the quarantined area on a designated page on our Web site. The description of the quarantined area includes the date the description was last updated and a description of the changes that have been made to the quarantined area. The description of the quarantined area is also made available at any local office of the Agency's Plant Protection and Quarantine (PPQ) program. After a change is made to a quarantined area, we publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined area.

We believe that using this Internet- and notice-based approach will allow us to update and maintain the descriptions of quarantined areas under the consolidated fruit fly regulations with a greater degree of timeliness and efficiency than would be possible under the older approach. Our criteria for designating and releasing quarantined areas will remain the same as was described in the proposed rule; the difference will be in where the list of quarantined areas is maintained and how changes to the list will be communicated. Because we will not be publishing descriptions of quarantined areas in the regulations, we will be able to update them more quickly if a fruit fly population subject to the regulations is detected, thus allowing us to take prompt action to prevent the spread of the fruit fly population and provide necessary information to affected parties in a timely manner. Accordingly, the quarantined areas that appeared in the proposed regulations, as well as quarantined areas that have been added since the publication of the proposed rule, will no longer appear in the regulations, but can be found at the PPQ Web site, as mentioned above. We believe our description of the criteria by which quarantined areas will be designated and how the quarantined area will be determined will provide adequate notice regarding the criteria by which we will make changes to the quarantined area.

Finally, in an interim rule published and effective on December 7, 2007 (72 FR 69137-69139, Docket No. APHIS-2007-0133), we added blueberries (Vaccinium spp.) as a regulated article for Mediterranean fruit fly. We have updated § 301.32-2(a) in this final rule to reflect that addition.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

This final 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.

We are combining the regulations regarding exotic fruit flies. These regulations, located in 7 CFR part 301, have been divided into separate subparts, each covering a different species of fruit fly and each containing parallel sections that are substantially similar to the corresponding sections in other subparts. This rule combines these sections into one subpart that will cover all fruit fly species. We are also modifying the regulations by adding a mechanism through which quarantined areas can be removed from regulation expeditiously and by expanding the availability of irradiation as a phytosanitary treatment.

The consolidation of the 66 sections to 11 sections under the new “Subpart—Fruit Flies” allows us to eliminate the duplicative regulatory text. This change is an administrative one without any direct economic effect on any entity.

The second change offers irradiation as one more treatment option for articles regulated because of Oriental, Melon, West Indian, or Sapote fruit flies. There are no areas currently quarantined because of any of these fruit fly species. If there were, the irradiation treatment option may benefit affected entities by providing them with an alternative means of treating regulated articles. We do not know how costs of irradiation treatment may compare to the costs of other treatments, but at least, entities now have a broader choice of options.

The third change affects the interstate movement of regulated articles directly by allowing producers of those commodities in an area that has been under quarantine to more quickly resume moving articles without first having to obtain a certificate or limited permit. Entities that may benefit from this change include fresh fruit producers, nurserymen and tree growers, and transportation entities such as long distance general freight trucking with storage, scheduled freight air transportation companies, and/or short line railroad transportation companies.

There are no significant alternatives to these actions; however, we do not anticipate that the economic effects of these actions will be significant. Any impacts on small entities would be attributable to the availability and the cost of irradiation as a treatment against all regulated fruit flies and to our ability to relieve quarantine-related restrictions on the interstate movement of regulated articles more quickly. The overall economic effects of these changes are expected to be positive, if minimal. We cannot estimate how many entities will be affected or what percentage of these entities will be small entities; those numbers depend entirely on the number and size of entities that might be present in a quarantined area at the time these provisions become effective or at any time thereafter. While the number of entities affected may eventually prove to be a large number of entities, most of which are likely to be small entities, the economic effects on those entities, while positive, would not be significant.

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 final 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.

Paperwork Reduction Act

This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

7 CFR Part 301

• Agricultural commodities
• Plant diseases and pests
• Quarantine
• Reporting and recordkeeping requirements
• Transportation

7 CFR Part 305

• Irradiation
• Phytosanitary treatment
• Plant diseases and pests
• Quarantine
• Reporting and recordkeeping requirements

Accordingly, we are amending 7 CFR parts 301 and 305 as follows:

PART 301—DOMESTIC QUARANTINE NOTICES

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

Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3.

Section 301.75-15 issued under Sec. 204, Title II, Public Law 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).

2. In part 301, a new “Subpart—Fruit Flies” (§§ 301.32 through 301.32-10) is added to read as follows:

Subpart—Fruit Flies

301.32

Restrictions on interstate movement of regulated articles.

301.32-1

Definitions.

301.32-2

Regulated articles.

301.32-3

Quarantined areas.

301.32-4

Conditions governing the interstate movement of regulated articles from quarantined areas.

301.32-5

Issuance and cancellation of certificates and limited permits.

301.32-6

Compliance agreements and cancellation.

301.32-7

Assembly and inspection of regulated articles.

301.32-8

Attachment and disposition of certificates and limited permits.

301.32-9

Costs and charges.

301.32-10

Treatments.

Subpart—Fruit Flies

§ 301.32

Restrictions on interstate movement of regulated articles.

(a) No person may move interstate from any quarantined area any regulated article except in accordance with this subpart.^[1]

(b) 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.

§ 301.32-1

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 fruit flies and may be moved interstate to any destination.

Commercially produced. Fruits and vegetables that an inspector identifies as having been produced for sale and distribution in mass markets. Such identification will be based on a variety of indicators, including, but not limited to: Quantity of produce, monocultural practices, pest management programs, good sanitation practices including destruction of culls, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the shipment to a wholesaler or retailer.

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 area within a circle surrounding each site where fruit flies have been detected using a 1/2-mile radius with the detection site as a center point.

Day degrees. A unit of measurement used to measure the amount of heat required to further the development of fruit flies through their life cycle. Day-degree life cycle requirements are calculated through a modeling process specific for each species of fruit fly.

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 § 301.32-4(c).

Dripline. The line around the canopy of a plant.

Fruit fly (fruit flies). The melon fruit fly, Mexican fruit fly, Mediterranean fruit fly, Oriental fruit fly, peach fruit fly, sapote fruit fly, or West Indian fruit fly, or other species of insects found in the family Tephritidae, collectively.

Infestation. The presence of fruit flies or the existence of circumstances that makes it reasonable to believe that fruit flies are present.

Inspector. Any employee of APHIS or other person authorized by the Administrator to enforce this subpart.

Interstate. From any State into or through any other State.

Limited permit. A document in which an inspector or person operating under a compliance agreement affirms that the regulated article identified on the document is eligible for interstate movement in accordance with § 301.32-5(b) only to a specified destination and only in accordance with specified conditions.

Mediterranean fruit fly. The insect known as Mediterranean fruit fly, Ceratitis capitata (Wiedemann), in any stage of development.

Melon fruit fly. The insect known as the melon fruit fly, Bactrocera cucurbitae (Coquillett), in any stage of development.

Mexican fruit fly. The insect known as Mexican fruit fly, Anastrepha ludens (Loew), in any stage of development.

Move (moved, movement). Shipped, offered to a common carrier for shipment, received for transportation or transported by a common carrier, or carried, transported, moved, or allowed to be moved.

Oriental fruit fly. The insect known as Oriental fruit fly, Bactrocera dorsalis (Hendel), in any stage of development.

Peach fruit fly. The insect known as peach fruit fly, Anastrepha zonata (Saunders), in any stage of development.

Person. Any individual, partnership, corporation, association, joint venture, or other legal entity.

Plant Protection and Quarantine. The organizational unit within the Animal and Plant Health Inspection Service that has been delegated responsibility for enforcing provisions of the Plant Protection Act and related legislation, quarantines, and regulations.

Quarantined area. Any State, or any portion of a State, designated as a quarantined area in accordance with § 301.32-3.

Regulated article. Any article listed in § 301.32-2 or otherwise designated as a regulated article in accordance with § 301.32-2(d).

Sapote fruit fly. The insect known as the sapote fruit fly, Anastrepha serpentina, in any stage of development.

State. Any of the several States of the United States, the Commonwealth of the Northern Mariana Islands, the Commonwealth of Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the United States, or any other 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.

§ 301.32-2

Regulated articles.

(a) In the following table, the berry, fruit, nut, or vegetable listed in each row in the left column is a regulated article for each of the fruit fly species listed in that row in the right column, unless the article is canned, dried, or frozen below −17.8 °C (0 °F):

Botanical name	Common name(s)	Fruit fly
Abelmoschus esculentus = Hibiscus esculentus	Okra	Melon, Peach.
Acca sellowiana = Feijoa sellowiana	Pineapple guava	Mediterranean, Oriental, Peach.
Actinidia chinensis	Kiwi	Mediterranean.
Aegle marmelos	Indian bael	Peach.
Anacardium occidentale	Cashew	Oriental.
Annona cherimola	Cherimoya	Mexican, Oriental, Peach.
Annona glabra	Pond-apple	Sapote.
Annona muricata	Soursop	Melon, Oriental, Peach.
Annona reticulata	Custard apple, Annona	Melon, Mexican, Oriental, Peach.
Annona squamosa	Custard apple	Peach.
Artocarpus altilis	Breadfruit	Oriental.
Artocarpus heterophyllus	Jackfruit	Oriental.
Averrhoa carambola	Carambola, Country gooseberry	Oriental, West Indian.
Benincasa hispida	Melon, Chinese	Melon.
Brassica juncea	Mustard, leaf	Melon.
Brassica oleracea var. botrytis	Cauliflower	Melon.
Brosimum alicastrum	Ramón	West Indian.
Byrsonima crassifolia	Nance	Sapote.
Calophyllum inophyllum	Alexandrian-laurel, Laurel	Oriental.
Cananga odorata	Ylang-Ylang	Oriental.
Capsicum annum	Pepper, chili	Mediterranean, Melon, Oriental.
Capsicum frutescens	Pepper, tabasco	Mediterranean, Melon.
Capsicum frutescens abbreviatum	Oriental bush red pepper	Oriental.
Capsicum frutescens var. grossum	Pepper, sweet	Oriental.
Carica papaya	Papaya	Mediterranean, Melon, Oriental, Peach.
Carissa grandiflora	Natal plum	Oriental.
Carissa macrocarpa	Natal plum	Mediterranean.
Casimiroa edulis	Sapote, white	Mediterranean.
Casimiroa greggii = Sargentia greggii	Sargentia, yellow chapote	Mexican.
Casimiroa spp	Sapote	Mexican.
Cereus coerulescens	Cactus	Oriental.
Chrysophyllum cainito	Star apple	Oriental, Sapote.
Chrysophyllum oliviforme	Caimitillo	Oriental.
Citrofortunella japonica	Orange, calamondin	Peach.
Citrullus colocynthis	Colocynth	Melon.
Citrullus lanatus = Citrullus vulgaris	Watermelon	Melon, Peach.
Citrullus spp	Melon	Melon.
Citrus aurantiifolia	Lime	Mediterranean, Mexican,1 Oriental, Peach.
Citrus aurantium	Orange, sour	Mediterranean, Mexican, Oriental, Peach.
Citrus jambhiri	Lemon, Rough	Mediterranean.
Citrus latifolia	Lime, Persian	Oriental.
Citrus limon	Lemon	Mediterranean,2 Mexican,3 Oriental, Peach.
Citrus limon x reticulata	Lemon, Meyer	Mediterranean.
Citrus madurensis = x Citrofortunella mitis	Orange, Panama	Sapote.
Citrus maxima = Citrus grandis	Pummelo or Shaddock	Mediterranean, Mexican, Oriental, Peach.
Citrus medica	Citrus citron	Mediterranean, Mexican, Peach.
Citrus paradisi	Grapefruit	Mediterranean, Melon, Mexican, Oriental, Peach.
Citrus reticulata	Mandarin orange, tangerine	Mediterranean, Mexican, Oriental, Peach.
Citrus reticulata var. Unshu	Orange, Unshu	Mediterranean, Oriental.
Citrus reticulata x C. sinensis = Citrus nobilis	Orange, king	Mediterranean, Melon, Oriental, Peach.
Citrus reticulata x Fortunella	Orange, calamondin	Mediterranean, Mexican, Oriental.
Citrus sinensis	Orange, sweet	Mediterranean, Melon, Mexican, Oriental, Peach.
Citrus spp	Citrus	Sapote.
Clausena lansium	Wampi	Oriental.
Coccinia spp	Gourds	Melon, Peach.
Coccoloba uvifera	Seagrape	Oriental.
Coffea arabica	Coffee, Arabian	Oriental.
Cresentia spp	Gourds	Melon, Peach.
Cucumis melo and Cucumis melo var. Cantalupensis	Cantaloupe	Melon, Peach.
Cucumis melo var. conomon	Melon, oriental pickling	Melon.
Cucumis pubescens and Cucumis trigonus	Cucurbit	Melon.
Cucumis sativus	Cucumber	Melon, Oriental, Peach.
Cucumis utilissimus	Melon, long	Peach.
Cucurbita maxima	Squash	Melon.
Cucurbita moschata	Pumpkin, Canada	Melon.
Cucurbita pepo	Pumpkin	Melon.
Cydonia oblonga	Quince	Mexican, Mediterranean, Oriental, Peach, Sapote.
Cyphomandra betaceae	Tomato, tree	Melon.
Diospyros digyna	Black sapote	Sapote.
Diospyros discolor	Velvet apple	Oriental.
Diospyros khaki	Japanese persimmon	Mediterranean, Oriental.
Diospyros spp	Sapote	Sapote, West Indian.
Dovyalis hebecarpa	Kitembilla	Oriental, Sapote, West Indian.
Dracena draco	Dragon tree	Oriental.
Elaeocarpus angustifolius	Blue marbletree; New Guinea quandong	Peach.
Elaeocarpus grandiflorus	Lily of the valley tree	Peach.
Elaeocarpus madopetalus	Ma-kok-nam	Peach.
Eriobotrya japonica	Loquat	Mediterranean, Oriental, Peach, West Indian.
Eugenia brasiliensis = E. dombeyi	Brazil-cherry, grumichama	Mediterranean, Oriental, Peach.
Eugenia malaccensis	Malay apple	Oriental.
Eugenia uniflora	Surinam cherry	Mediterranean, Oriental, Peach.
Euphoria longan	Longan	Oriental.
Ficus benghalensis	Fig, Banyan	Peach.
Ficus carica	Fig	Mediterranean, Melon, Oriental, Peach.
Ficus macrophylla	Fig, Moreton Bay	Peach.
Ficus retusa	Fig, glossy leaf	Peach.
Ficus rubiginosa	Fig, Port Jackson	Peach.
Ficus spp	Fig	Peach.
Fortunella japonica	Chinese Orange, Kumquat	Mediterranean, Oriental, Peach.
Garcinia celebica	Gourka	Oriental.
Garcinia mangostana	Mangosteen	Oriental.
Grewia asiatica	Phalsa	Peach.
Jubaea chilensis = Jubaea spectabilis	Syrup palm	Oriental.
Juglans hindsii	Walnut	Oriental.
Juglans regia	Walnut, English	Oriental.
Juglans spp	Walnut with husk	Mediterranean.
Lablab purpureus subsp. purpureus = Dolichos lablab	Bean, hyacinth	Melon.
Lagenaria spp	Gourds	Melon, Peach.
Luffa acutangula	Gourd, ribbed or ridged, luffa	Peach.
Luffa aegyptiaca	Gourd, smooth luffa, sponge	Peach.
Luffa spp	Gourds	Melon, Peach.
Luffa vulgaris	Gourd	Peach.
Lychee chinensis	Lychee nut	Oriental.
Lycopersicon esculentum	Tomato	Mediterranean, Melon,4 Oriental,4 Peach 4.
Madhuca indica = Bassia latifolia	Mahua, mowra-buttertree	Peach.
Malpighia glabra	Cherry, Barbados	Oriental, West Indian.
Malpighia punicifolia	West Indian cherry	Oriental.
Malus sylvestris	Apple	Mediterranean, Melon, Mexican, Oriental, Sapote, Peach.
Mammea americana	Mammy apple	Mexican, Oriental, Peach, Sapote.
Mangifera foetida	Mango, Bachang	Peach.
Mangifera indica	Mango	All.
Mangifera odorata	Kuine	Peach.
Manilkara hexandra	Sapodilla, balata	Peach.
Manilkara jaimiqui subsp. emarginata	Sapodilla, wild	Peach.
Manilkara zapota	Sapodilla, chiku	Oriental, Peach, Sapote, West Indian.
Mimusops elengi	Spanish cherry	Mediterranean, Oriental.
Momordica balsamina	Balsam apple, hawthorn	Peach.
Momordica charantia	Balsam pear, bitter melon	Peach.
Momordica cochinchinensis	Balsam apple, gac	Peach.
Momordica spp	Gourds	Melon, Peach.
Morus nigra	Mulberry	Oriental.
Murraya exotica	Mock orange	Mediterranean, Oriental.
Musa x paradisiaca = Musa paradisiaca subsp. sapientum	Banana	Oriental.
Musa acuminata = Musa nana	Banana, dwarf	Oriental.
Ochrosia elliptica	Orange, bourbon	Peach.
Olea europea	Olive	Mediterranean.
Opuntia ficus-indica = Opuntia megacantha	Prickly pear	Oriental.
Opuntia spp	Opuntia cactus	Mediterranean.
Passiflora edulis	Passionflower, passionfruit, yellow lilikoi	Melon, Oriental, West Indian.
Passiflora laurifolia	Lemon, water	Melon.
Passiflora ligularis	Granadilla, sweet	Oriental.
Passiflora quadrangularis	Granadilla, giant	West Indian.
Passiflora tripartita var. mollissima	Passionflower, softleaf	Oriental.
Persea americana	Avocado	Mediterranean, Melon, Mexican, Oriental, Peach, Sapote.
Phaseolus lunatus = Phaseolus limensis	Bean, lima	Melon.
Phaseolus vulgaris	Bean, mung	Melon.
Phoenix dactylifera	Date palm	Mediterranean, Melon, Oriental, Peach.
Planchonia careya = Careya arborea	Patana oak, kumbhi	Peach.
Pouteria caimito	Abiu	Sapote.
Pouteria campechiana	Eggfruit tree	Oriental, Sapote.
Pouteria obovata	Lucmo	Sapote.
Pouteria viridis	Sapote, green	Sapote.
Prunus americana	Plum, American	Mediterranean, Mexican, Oriental, Peach.
Prunus armeniaca	Apricot	Mediterranean, Mexican, Oriental, Peach.
Prunus avium	Sweet cherry	Mediterranean, Peach.
Prunus cerasus	Sour cherry	Mediterranean, Peach.
Prunus domestica	Plum, European	Mediterranean, Mexican, Oriental, Peach.
Prunus dulcis = P. amygdalus	Almond with husk	Mediterranean, Peach 5.
Prunus ilicifolia	Cherry, Catalina	Oriental, Peach.
Prunus lusitanica	Cherry, Portuguese	Oriental, Peach.
Prunus persica	Peach	All.
Prunus persica var. nectarine	Nectarine	Mediterranean, Mexican, Oriental, Peach.
Prunus salicina	Japanese plum	Mediterranean, Mexican, Peach, West Indian.
Prunus salicina x Prunus cerasifera	Methley plum	Peach.
Psidium cattleianum	Strawberry guava, Cattley guava	Mediterranean, Melon, Oriental.
Psidium cattleianum var. cattleianum f. lucidum	Yellow strawberry guava	Peach.
Psidium cattleianum var. littorale	Red strawberry guava	Oriental, West Indian, Peach.
Psidium guajava	Guava	All.
Punica granatum	Pomegranate	Mediterranean, Mexican, Oriental, Peach.
Pyrus communis	Pear	All.
Pyrus pashia	Kaeuth	Peach.
Pyrus pyrifolia	Pear, sand	Peach.
Rhodomyrtus tomentosa	Myrtle, downy rose	Oriental.
Sandoricum koetjape	Santol	Oriental.
Santalum album	Sandalwood, white	Oriental.
Santalum paniculatum	Sandalwood	Oriental.
Sapotaceae	Sapota, Sapodilla	Mexican.
Sechium edule	Chayote	Melon.
Sesbania grandiflora	Scarlet wisteria tree	Melon.
Sicyes sp	Cucumber, bur	Melon.
Solanum aculeatissimum	Nightshade	Peach.
Solanum mauritianum = S. auriculatum	Tobacco, wild	Peach.
Solanum melongena	Eggplant	Mediterranean,6 Melon, Peach.
Solanum muricatum	Pepino	Oriental, Peach.
Solanum pseudocapsicum	Jerusalem cherry	Oriental, Peach.
Solanum seaforthianum	Nightshade, Brazilian	Peach.
Solanum verbascifolium	Nightshade, Mullein	Peach.
Spondias dulcis = Spondias cytherea	Otaheite apple, Jew plum	Oriental, West Indian.
Spondias mombin	Hog-plum	Sapote, West Indian.
Spondias purpurea	Red mombin	Sapote, West Indian.
Spondias spp	Spanish plum, purple mombin or Ciruela	Mexican.
Spondias tuberose	Imbu	Oriental.
Syzygium aquem	Water apple, watery roseapple	Peach.
Syzygium cumini	Java plum, jambolana	Peach.
Syzygium jambos = Eugenia jambos	Rose apple	Mediterranean, Mexican, Oriental, Peach, West Indian.
Syzygium malaccense = Eugenia malaccensis	Mountain apple, Malay apple	Mediterranean, Peach, West Indian.
Syzygium samarangense	Java apple	Peach.
Terminalia bellirica	Myrobalan, belleric	Peach.
Terminalia catappa	Tropical almond	Oriental, Peach.
Terminalia chebula	Myrobalan, black or chebulic	Mediterranean, Oriental, Peach.
Thevetia peruviana	Yellow oleander	Mediterranean, Oriental.
Trichosanthis spp	Gourds	Melon, Peach.
Vaccinium spp	Blueberry	Mediterranean.
Vigna unguiculata	Cowpea	Melon.
Vitis spp	Grapes	Mediterranean, Oriental.
Vitis trifolia	Grape	Melon.
Wikstroemia phillyreifolia	Akia	Oriental.
Ziziphus mauritiana	Chinese date, jujube	Peach.
1 Sour limes are not regulated articles for Mexican fruit fly.
2 Smooth-skinned lemons harvested for packing by commercial packinghouses are not regulated articles for Mediterranean fruit fly.
3 Eureka, Lisbon, and Villa Franca cultivars (smooth-skinned sour lemon) are not regulated articles for Mexican fruit fly.
4 Only pink and red ripe tomatoes are regulated articles for melon, Oriental, and peach fruit flies.
5 Harvested almonds with dried husks are not regulated articles for peach fruit fly.
6 Commercially produced eggplants are not regulated articles for Mediterranean fruit fly.

(b) Plants of the following species in the family Curcurbitaceae are regulated articles for the melon fruit fly only:

Cantaloupe (Cucumis melo)

Chayote (Sechium edule)

Colocynth (Citrullus colocynthis)

Cucumber (Cucumis sativus)

Cucumber, bur (Sicyes spp.)

Cucurbit (Cucumis pubescens and C. trigonus)

Cucurbit, wild (Cucumis trigonus)

Gherkin, West India (Cucumis angaria)

Gourds (Coccinia, Cresentia, Lagenaria, Luffa, Momordica, and Trichosanthis spp.)

Gourd, angled luffa (Luffa acutangula)

Gourd, balsam apple (Momordica balsaminia)

Gourd, ivy (Coccinia grandis)

Gourd, kakari (Momordica dioica)

Gourd, serpent cucumber (Trichosanthis anguina)

Gourd, snake (Trichosanthis cucumeroides)

Gourd, sponge (Luffa aegyptiaca)

Gourd, white flowered (Lagenaria siceraria)

Melon, Chinese (Benincasa hispida)

Melon, long (Cucumis utilissimus)

Pumpkin (Cucurbita pepo)

Pumpkin, Canada (Cucurbita moschata)

Squash (Cucurbita maxima)

Watermelon (Citrullus lanatus = Citrullus vulgaris)

(c) Soil within the dripline of the plants listed in paragraph (b) of this section or plants that are producing or have produced any article listed in paragraph (a) of this section.

(d) Any other product, article, or means of conveyance not listed in paragraphs (a), (b), or (c) of this section that an inspector determines presents a risk of spreading fruit flies, 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.

§ 301.32-3

Quarantined areas.

(a) Designation of quarantined areas. In accordance with the criteria listed in paragraph (c) of this section, the Administrator will designate as a quarantined area each State, or each portion of a State, in which a fruit fly population subject to the regulations in this subpart has been found by an inspector, or in which the Administrator has reason to believe that a fruit fly population is present, or that the Administrator considers necessary to quarantine because of its inseparability for quarantine enforcement purposes from localities in which a fruit fly population has been found. The Administrator will publish the description of the quarantined area on the Plant Protection and Quarantine Web site, http://www.aphis.usda.gov/​plant_​health/​plant_​pest_​info/​fruit_​flies/​index.shtml. The description of the quarantined area will include the date the description was last updated and a description of the changes that have been made to the quarantined area. The description of the quarantined area may also be obtained by request from any local office of PPQ; local offices are listed in telephone directories. After a change is made to the quarantined area, we will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined area.

(b) Designation of an area less than an entire State as a quarantined area. 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 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 fruit fly.

(c) Criteria for designation of a State, or a portion of a State, as a quarantined area. A State, or a portion of a State, will be designated as a quarantined area when a fruit fly population has been found in that area by an inspector, when the Administrator has reason to believe that the fruit fly is present in that area, or when the Administrator considers it necessary to quarantine that area because of its inseparability for quarantine enforcement purposes from localities in which the fruit fly has been found.

(d) Removal of a State, or a portion of a State, from quarantine. A State, or a portion of a State, will be removed from quarantine when the Administrator determines that sufficient time has passed without finding additional flies or other evidence of infestation in the area to conclude that the fruit fly no longer exists in that area.

§ 301.32-4

Conditions governing the interstate movement of regulated articles from quarantined areas.

Any regulated article may be moved interstate from a quarantined area ^[2] only if moved under the following conditions:

(a) With a certificate or limited permit issued and attached in accordance with §§ 301.32-5 and 301.32-8;

(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 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 permit issued by the Administrator for the regulated article;

(3) Under conditions specified on the permit and found by the Administrator to be adequate to prevent the spread of fruit flies; and

(4) With a tag or label bearing the number of the permit issued for the regulated article attached to the outside of the container of the regulated article or attached to the regulated article itself if not in a container.

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

§ 301.32-5

Issuance and cancellation of certificates and limited permits.

(a) A certificate may be issued by an inspector ^[3] for the interstate movement of a regulated article if the inspector determines that:

(1)(i) The regulated article has been treated under the direction of an inspector in accordance with § 301.32-10; or

(ii) Based on inspection of the premises of origin, the premises are free from fruit flies; or

(iii) Based on inspection of the regulated article, the regulated article is free of 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 fruit flies; 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) to prevent the spread of fruit flies; and

(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 ^[4] will issue a limited permit for the interstate movement of a regulated article if the inspector determines that:

(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 fruit flies because life stages of the fruit flies 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 fruit flies; and

(3) The regulated article is eligible for interstate movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.

(c) Certificates and limited permits for the interstate movement of regulated articles may be issued by an inspector or person operating under a compliance agreement. A person operating under a compliance agreement may issue a certificate for the interstate movement of a regulated article if an inspector has determined that the regulated article is eligible for a certificate in accordance with paragraph (a) of this section. A person operating under a compliance agreement may issue a limited permit for interstate movement of a regulated article when an inspector has determined that the regulated article is eligible for a limited permit in accordance with paragraph (b) of this section.

(d) Any certificate or limited permit that has been issued may be withdrawn, either orally or in writing, by an inspector if he or she determines that the holder of the certificate or limited permit has not complied with all conditions in this subpart for the use of the certificate or limited permit. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal will be confirmed in writing as promptly as circumstances allow. Any person whose certificate or limited permit has been withdrawn may appeal the decision in writing to the Administrator within 10 days after receiving the written notification of the withdrawal. The appeal must state all of the facts and reasons upon which the person relies to show that the certificate or limited permit was wrongfully withdrawn. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator.

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

§ 301.32-6

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. ^[5]

(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 any of the conditions of this subpart or with any of the provisions of the compliance agreement. 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.

§ 301.32-7

Assembly and inspection of regulated articles.

(a) Any person, other than a person authorized to issue certificates or limited permits under § 301.32-5(c), who desires to move a regulated article interstate accompanied by a certificate or limited permit must notify an inspector ^[6] as far in advance of the desired interstate movement as possible, but no less than 48 hours before the desired interstate movement.

(b) The regulated article must be assembled at the place and in the manner the inspector designates as necessary to comply with this subpart.

§ 301.32-8

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: Provided, however, that 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 0579-0088)

§ 301.32-9

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.

§ 301.32-10

Treatments.

Treatment schedules listed in part 305 of this chapter to destroy fruit flies are authorized for use on regulated articles. 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 regulated articles listed § 301.32(a) or (b). The following soil treatments may be used: 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 0.5 inch. Both immersion and pour-on treatment procedures are also acceptable.

(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 part 305 of this chapter. 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 fruit fly egg and larvae. Determination of the time period must be based on the day degrees model for the specific 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.

Subpart—Mexican Fruit Fly Quarantine and Regulations [Removed]

3. Subpart—Mexican Fruit Fly Quarantine and Regulations, consisting of §§ 301.64 through 301.64-10, is removed.

Subpart—Mediterranean Fruit Fly [Removed]

4. Subpart—Mediterranean Fruit Fly, consisting of §§ 301.78 through 301.78-10, is removed.

Subpart—Oriental Fruit Fly [Removed]

5. Subpart—Oriental Fruit Fly, consisting of §§ 301.93 through 301.93-10, is removed.

Subpart—Melon Fruit Fly [Removed]

6. Subpart—Melon Fruit Fly, consisting of §§ 301.97 through 301.97-10, is removed.

Subpart—West Indian Fruit Fly [Removed]

7. Subpart—West Indian Fruit Fly, consisting of §§ 301.98 through 301.98-10, is removed.

Subpart—Sapote Fruit Fly [Removed]

8. Subpart—Sapote Fruit Fly, consisting of §§ 301.99 through 301.99-10, is removed.

PART 305—PHYTOSANITARY TREATMENTS

9. The authority citation for part 305 continues to read as follows:

Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

10. In § 305.2, the table in paragraph (h)(2)(ii) is amended by removing, in the entry for “Areas in the United States under Federal quarantine for the listed pest”, the entries for “Any fruit listed in § 301.64-2(a) of this chapter” and “Any article listed in § 301.78-2(a) of this chapter” and adding a new entry in their place to read as set forth below.

§ 305.2

Approved treatments.

* * * * *

(h) * * *

(2) * * *

(ii) * * *

Location	Commodity	Pest	Treatment schedule
Areas in the United States under Federal quarantine for the listed pest.			IR.
*         *         *         *         *         *         *
	Any fruit or article listed in § 301.32-2(a) of this chapter	All fruit fly species of the Family Tephritidae
*         *         *         *         *         *         *

* * * * *

§ 305.32

[Amended]

11. Section 305.32 is amended as follows:

a. In the section heading, by removing the words “Mexican fruit fly” and adding the words “fruit flies” in their place.

b. In the introductory text, by removing the word “fruit” and adding the words “berry, fruit, nut, or vegetable” in its place, and by removing the citation “§ 301.64-2(a)” and adding the citation “§ 301.32-2(a)” in its place.

c. In paragraph (a)(1), by removing the words “Mexican fruit fly” and adding the words “the fruit fly of concern” in their place, and by removing the words “the fruit” and adding the words “the regulated articles” in their place.

d. In paragraph (a)(2), by removing the words “fruit, except that fruit” and adding the words “regulated articles, except that articles” in their place.

e. In paragraph (a)(3), by removing the citation “§ 301.64-6” and adding the citation “§ 301.32-6” in its place.

f. In paragraph (d), by removing the words “Mexican fruit fly” and adding the words “the fruit fly of concern” in their place.

g. In paragraph (e)(2), by removing the words “Mexican fruit fly” and adding the words “the fruit fly of concern” in their place.

h. In paragraph (i), by removing the words “Mexican fruit fly” and adding the words “fruit flies” in their place, and by adding the words “and vegetables” after the word “fruits”.

i. In the OMB control number citation at the end of the section, by removing the control number “0579-0215” and adding the control number “0579-0088” in its place.

§ 305.33

[Removed and reserved]

12. Section 305.33 is removed and reserved.

§ 305.34

[Amended]

13. Section 305.34 is amended by redesignating footnotes 15 through 19 as footnotes 10 through 14, respectively.

Done in Washington, DC, this 3rd day of June 2008.

Kevin Shea,

Acting Administrator, Animal and Plant Health Inspection Service.

Footnotes

1.  To view the proposed rule and the comments we received, go to http://www.regulations.gov/​fdmspublic/​component/​main?​main=​DocketDetail&​d=​APHIS=​2007-0084.

2.  See 72 FR 51975-51099. Docket No. APHIS-2006-0143, published September 12, 2007, and effective on November 1, 2007.

1.  Permit and other requirements for the interstate movement of any of the fruit flies regulated under this subpart are contained in part 330 of this chapter.

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

3.  Services of an inspector may be requested by contacting local PPQ offices, which are listed in telephone directories.

4.  See footnote 3.

5.  Compliance agreement forms are available without charge from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Emergency and Domestic Programs, 4700 River Road Unit 134, Riverdale, MD 20737-1236, and from local PPQ offices, which are listed in telephone directories.

6.  See footnote 3 to § 301.32-5(a).