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spector determines that the plants and cuttings are true to type and if the plants and cuttings are accompanied by a certificate or permit.

(b) Seeds and fruits of rust-resistant Berberis plants. (1) Seeds and fruits of rust-resistant Berberis plants originating within an eradication area may be moved interstate between eradication areas if accompanied by a permit.

(2) Seeds and fruits of rust-resistant Berberis plants may be moved interstate between noneradication areas and from an eradication area to a noneradication area without further restriction under this subpart.

(c) Seeds and fruits of rust-resistant Mahonia plants. (1) Seeds and fruits of rust-resistant Mahonia plants originating within an eradication area may be moved interstate between eradication areas if accompanied by a permit.

(2) Seeds and fruits determined by an inspector to be from rust-resistant Mahonia plants originating in a noneradication area may be moved interstate from such an area into an eradication area if accompanied by permit.

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(3) Seeds and fruits of rust-resistant Mahonia plants may be moved interstate between noneradication areas and from an eradication area to a noneradication area without further restriction under this subpart.

(d) Any regulated articles. Any regulated articles may be moved to a specified destination authorized by the Deputy Administrator under a scientific permit.

§ 301.38-4 Issuance and cancellation of certificates and permits.

(a) Certificates may be issued for any regulated articles by an inspector if he determines that they are eligible for certification for movement to any destination under all Federal domestic plant quarantines applicable to such articles and upon examination they have been found to be free from evidence of black stem rust and to be rust-resistant.

(b) Limited permits may be issued by an inspector to allow interstate movement of regulated articles, not eligible for certification under this subpart, to specified destinations for limited handling or utilization, when upon evalua

tion of the circumstances involved in each specific case he determines that such movement will not result in the spread of the black stem rust and requirements of other applicable Federal domestic plant quarantines have been met.

(c) Restricted destination permits may be issued by an inspector to allow the interstate movement of regulated articles for other than scientific purposes to any destination permitted under all applicable Federal domestic plant quarantines, if such articles are not eligible for certification under all such quarantines, but would otherwise qualify for certification under this subpart.

(d) Scientific permits may be issued by the Deputy Administrator to allow the interstate movement of regulated articles for scientific purposes under such conditions as may be prescribed in each specific case by the Deputy Administrator.

(e) Certificate, limited permit, and restricted destination permit forms may be issued by an inspector to any person for use by the latter for subsequent shipments provided such person is operating under a compliance agreement; and any such person may be authorized by an inspector to reproduce such forms on shipping containers or otherwise. Any such person may use the certificate forms, or reproductions of such forms, for the interstate movement of regulated articles from the premises of such person identified in the compliance agreement if such person has made the determination specified in paragraph (a) of this section with respect to such articles. Any such person may use the limited permit forms, or reproductions of such forms, for interstate movement of regulated articles to specific destinations authorized by the inspector in accordance with paragraph (b) of this section. Any such person may use the restricted destination permit forms, or reproductions of such forms, for the interstate movement of regulated articles not eligible for certification under all Federal domestic plant quarantines applicable to such articles, under the conditions specified in paragraph (c) of this section.

(f) Any certificate or permit which has been issued or authorized may be withdrawn by the inspector if he determines that the holder thereof has not complied with any condition for the use of such document imposed by this subpart.

§ 301.38-5 Compliance agreements; and cancellation thereof.

(a) Any person engaged in the business of growing, handling, or moving regulated articles may enter into a compliance agreement to facilitate the movement of such articles under this subpart. Compliance agreement forms may be obtained from the Deputy Administrator or an inspector.

(b) Any compliance agreement may be canceled by the inspector who is supervising its enforcement whenever he finds, after notice and reasonable opportunity to present views has been accorded to the other party thereto, that such other party has failed to comply with the conditions of the agreement.

§ 301.38-6 Assembly and inspection of regulated articles.

Persons (other than those authorized to use certificates, limited permits, or restricted destination permits, or reproductions thereof, under § 301.38-4(e)) who desire to move interstate regulated articles which must be accompanied by a certificate or permit shall, as far in advance as possible, request an inspector to examine the articles prior to movement. Such articles shall be assembled at such points and in such manner as the inspector designates to facilitate inspection.

§ 301.38-7 Attachment and disposition of certificates or permits.

(a) If a certificate or permit is required for the interstate movement of regulated articles, the certificate or permit shall be securely attached to the outside of the container in which such articles are moved, except that, where the certificate or permit is attached to the waybill or other shipping document, and the regulated articles are adequately described on the certificate, permit, or shipping document, the attachment of the certifi

cate or permit to each container of the articles is not required.

(b) In all cases, certificates or permits shall be furnished by the carrier to the consignee at the destination of the shipment.

§ 301.38-8 Inspection and disposal of regulated articles and pests.

Any properly identified inspector is authorized to stop and inspect, and to seize, destroy, or otherwise dispose of, or require disposal of regulated articles and black stem rust spores as provided in section 10 of the Plant Quarantine Act (7 U.S.C. 164a) and section 105 of the Plant Pest Act (7 U.S.C. 150dd), in accordance with instructions issued by the Deputy Administrator.

§ 301.38-9 Movement of black stem rust spores.

Regulations requiring a permit for, and otherwise governing the movement of black stem rust spores in interstate or foreign commerce, are contained in the Federal Plant Pest regulations in Part 330 of this chapter. Applications for the movement of such spores may be made to the Deputy Administrator.

8 301.38-10 Nonliability of the Department.

The U.S. Department of Agriculture disclaims liability for any costs incident to inspections or compliance with provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.

Subpart-Gypsy Moth and Browntail Moth

AUTHORITY: Secs. 8 and 9, 37 Stat. 318, as amended, secs. 105 and 106, 71 Stat. 32, 71 Stat. 33; 7 U.S.C. 161, 162, 150dd, 150ee; 37 FR 28464, 28477, as amended; 38 FR 19141. SOURCE: 45 FR 15510, Mar. 11, 1980, unless otherwise noted.

QUARANTINE AND REGULATIONS

§ 301.45 Notice of quarantine; restriction on interstate movement of specified regulated articles.

(a) Notice of Quarantine. Pursuant to the provisions of sections 8 and 9 of the Plant Quarantine Act of August 20, 1912, as amended, and sections 105 and 106 of the Federal Plant Pest Act (7 U.S.C. 161, 162, 150dd, 150ee), the Secretary of Agriculture hereby quarantines the States of Arkansas, California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, West Virginia, and Wisconsin, in order to prevent the spread of the gypsy moth, Lymantria dispar (Linnaeus), and the States of Maine and Massachusetts in order to prevent the spread of the browntail moth, Nygmia phaeorrhoea (Donovan), dangerous insects injurious to forests and shade trees and not theretofore widely prevalent or distributed within throughout the United States; and establishes regulations governing the interstate movement from the regulated areas of the quarantined States of the articles described in § 301.45-1(v).

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niture, trailer blocks, and trailer skirts.

(b) Browntail moth. The live insect known as the browntail moth, Nygmia phaeorrhoea (Donovan), in any life stage of development (egg, larva, pupa, adult).

(c) Certificate. A document issued by the inspector, to allow the movement of regulated articles to any destination.

(d) Compliance agreement. A written agreement between a person engaged in growing, handling, or moving regulated articles, and the Plant Protection and Quarantine Programs, wherein the former agrees to comply with the requirements of the compliance agreement.

(e) Defoliation. A condition existing when at least 10 percent of the leaves are stripped from the trees in an area by gypsy moth larvae as determined by visual inspection of an inspector.

(f) Deputy Administrator. The Deputy Administrator of the Animal and Plant Health Inspection Service, U.S. Department of Agriculture for the Plant Protection and Quarantine Programs, or any other officer or employee of the Department to whom authority to act in his/her stead has been or may hereafter be delegated.

(g) OHA document. A document issued for the interstate movement of outdoor household articles by a qualified certified applicator which contains the following information:

(1) Name and address of mover of outdoor household article covered by the OHA document;

(2) Address where outdoor household article was inspected and/or treated;

(3) Destination address of outdoor household article;

(4) Identity of each outdoor household article covered by the OHA document;

(5) Date of inspection, and if applicable, date and type of treatment applied to outdoor household article and date OHA document expires;

(6) Statement by the qualified certified applicator who issued the OHA document that (i) he/she has inspected, or that the inspection was performed under his/her direct supervision, and any outdoor household arti

cle listed thereon was found to be free of any life stage of the gypsy moth, or (ii) that any such outdoor household article was treated by or under the direct supervision of the qualified certified applicator to destroy any life stage of gypsy moth, in accordance with the methods and procedures prescribed in the section III.C.5 of the Appendix to Subpart ("Treatment of Outdoor Household Articles"); and

(7) Name, address, signature and company name, if applicable, of the certified applicator issuing the OHA document.

(Approved by the Office of Management and Budget under control number 05790074)

(h) Gypsy moth. The live insect known as the gypsy moth, Lymantria dispar (Linnaeus), in any life stage (egg, larva, pupa, adult).

(i) Hazardous recreational vehicle site. Any site where a recreational vehicle is, or may be parked, and it is determined in the professional judgment of an inspector that such site harbors populations of gypsy moth, on the basis of eggs which are present yearround, larvae and pupae which are present in spring and summer, adults which are present in summer, that could hitchhike on and be spread by a recreational vehicle, and such site is listed by the Deputy Administrator in § 301.45-2c.

or

(j) High-risk area. That portion of a regulated area where it is visually determined in the professional judgment of an inspector that there is a substantial risk of artificial spread of gypsy moths or browntail moths in any life stage by movement of regulated articles to nonregulated areas. There is substantial risk of artificially spreading the gypsy moth when the inspector determines that regulated articles exist within or adjacent to an area where defoliation has occurred where the inspector has reason to believe that 50 or more egg masses per acre of the gypsy moth are present. There is substantial risk of artificially spreading browntail moth when the inspector determines that regulated articles are within an area where 5 or more browntail moth webs per acre may be present.

or

(k) Infestation. (1) With regard to the browntail moth, it means the presence of eggs, larva(e), pupa(e), or adult(s) of the browntail moth.

(2) With regard to the gypsy moth, it means: (i) The presence of gypsy moths as determined by the trapping of male moths in accordance with the program manual in a pattern indicating an established population, or (ii) the detection of any other life stage of the gypsy moth through visual inspection; however, it does not include the presence of life stages of gypsy moth or browntail moth not established in the wild which are found as a result of hitchhiking on transitory means of conveyance.

(1) Inspector. Any employee of the Plant Protection and Quarantine Programs, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or other person, authorized by the Deputy Administrator in accordance with law to enforce the provisions of the quarantine and regulations in this subpart.

(m) Interstate. From any State into or through any other State.

(n) Limited permit. A document issued by an inspector to allow the interstate movement of regulated articles to a specified destination.

(0) Low-risk area. That portion of the regulated area not designated as a high-risk area.

(p) Mobile home. Any vehicle, other than a recreational vehicle, designed to serve, when parked, as a dwelling or place of business.

(q) Move (movement, move). Shipped, offered for shipment to a common carrier, received for transportation or transported by a common carrier, or carried, transported, moved, or allowed to be moved by any means. "Movement" and "move" shall be construed in accordance with this definition.

(r) Outdoor household articles. Articles associated with a household that have been kept outside the home such as outdoor furniture, barbecue grills, dog houses, boats, hauling trailers, garden tools, tents, and awnings.

(s) Person. Any individual, partnership, corporation, company, society, association, or other organized group.

(t) Plant Protection and Quarantine Programs. The organizational unit within the Animal and Plant Health Inspection Service, U.S. Department of Agriculture, delegated responsibility for enforcing provisions of the Plant Quarantine Act, the Federal Plant Pest Act; and related legislation, and quarantines and regulations promulgated thereunder.

(u) Qualified certified applicator. Any individual who is (1) certified pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (86 Stat. 983; 7 U.S.C. 136b) as a certified commercial applicator in a category allowing use of the restricted pesticides recommended for use in the treatment of outdoor household articles for gypsy moth in section III.C.5 of the Appendix to Subpart-"Portion of Gypsy Moth and Browntail Moth Program Manual"; and (2) who has attended and completed a workshop segment approved by the Deputy Administrator on the identification and treatment of gypsy moth life stages on outdoor household articles.1

(v) Recreational vehicles. Highway vehicles, including pickup truck campers, one-piece motor homes, and travel trailers, designed to serve as a temporary place of dwelling.

(w) Regulated area. Any quarantined State, or any portion thereof, listed as a regulated area in § 301.45-2a or otherwise designated as a regulated area in accordance with § 301.45-2(b).

(x) Regulated articles. (1) Gypsy moth regulated articles:

(i) Trees with roots, and shrubs with roots and persistent woody stems, except if greenhouse grown throughout the year.

(ii) Logs and pulpwood, except if moved to a mill operating under a compliance agreement.2

'Names of qualified certified applicators and plant regulatory officials for the States and Territories of the United States are available upon request from the Technology Analysis and Development Staff, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, Room 600 Federal Building, Hyattsville, MD 20782.

2Names of mills under compliance agreement are available upon request to the Deputy Administrator, Plant Protection and Quarantine Programs, Animal and Plant

(iii) Firewood (unless moved as an outdoor household article).

(iv) Mobile homes and associated equipment.

(v) Recreational vehicles and associated equipment (unless moved as an outdoor household article), moving from hazardous recreational vehicle sites listed in § 301.45-2c.

(vi) Other products, articles, and means of conveyance listed in paragraph (v)(3) of this section.

(2) Browntail moth regulated articles:

(i) Deciduous trees, and shrubs with persistent woody stems, and parts of such trees and shrubs, with leaves attached.

(ii) Other products, articles, and means of conveyance listed in paragraph (v)(3) of this section.

(3) Any other products, articles, or means of conveyance, of any character whatsoever, when it is determined by an inspector that any life stage of gypsy moth or browntail moth are in proximity to such articles and the articles present a high risk of artificial spread of gypsy moth or browntail moth infestations and the person in possession thereof has been so notified.

(y) State. Any State, Territory, or District of the United States including Puerto Rico.

(z) Treatment manual. The provisions currently contained in the "Gypsy Moth and Browntail Moth Program Manual" 3.5 and the "Plant Protection and Quarantine Treatment Manual." 3, 4

Health Inspection Service, U.S. Department of Agriculture, Washington, D.C. 20250, or from an inspector.

'Pamphlets containing such provisions are available upon request to the Deputy Administrator, Plant Protection and Quarantine Programs, APHIS, U.S. Department of Agriculture, Washington, DC 20250, or from an inspector.

"NOTE: Provisions for incorporation by reference of the PPQ Treatment Manual approved by the Director, Office of the Federal Register on June 15, 1978.

'Relevant portions of the Gypsy Moth and Browntail Moth Program Manual are published as an appendix to these regulations.

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