(c) The following are designated as protected areas:

(1) The states of Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, Pennsylvania, South Dakota, West Virginia, and Wisconsin.

(2) The following counties in the State of Washington: Adams, Asotin, Benton, Chelan, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, Kittitas, Klickitat, Lincoln, Okanogan, Pend Oreille, Spokane, Stevens, Walla Walla, Whitman, Yakima.

(d) Each state that is a protected area or that encompasses a protected area must submit annually to the Administrator a written statement, signed by an inspector, assuring APHIS that all nursery inspections have been performed in accordance with this section. The statement must be submitted by January 1st of each year, and must include a list of the nurseries inspected and found free of rust-susceptible plants.

(e) The Administrator may remove a protected area from the list of designated protected areas in paragraph (c) of this section if he or she determines that it no longer meets the criteria of paragraph (a) or (b)(1) through (3) of this section. A hearing will be held to resolve any conflict as to any material fact. Rules of practice for the hearing shall be adopted by the Administrator. § 301.38-4 Interstate movement of regulated articles.

(a) Non-protected areas. (1) Interstate movement of regulated articles into or through any state or area that is not designated a protected area under § 301.38-3(c) is allowed without restriction under this subpart.

(b) Protected areas-(1) Prohibited movement. The following regulated articles are prohibited from moving interstate into or through any protected area:

(i) All Berberis seedlings and plants of less than 2 years' growth, and rust

susceptible Berberis plants, seeds, fruits, and other plant parts capable of propagation.

(ii) Rust-susceptible Mahoberberis and Mahonia plants, seedlings, seeds, fruits, and other plant parts capable of propagation.

(2) Restricted movement: The following regulated articles may be moved interstate into or through a protected area with a certificate issued and attached in accordance with §§ 301.38-5 and 301.38-7 of this subpart:

(i) Plants of at least two years' growth, seeds, fruits, and other plant parts capable of propagation of the genus Berberis that are designated as rust-resistant in § 301.38-2(b) of this subpart;

(ii) Plants, seedlings, seeds, fruits, and other plant parts capable of propagation of the genera Mahoberberis and Mahonia that are designated as rust-resistant in § 301.38-2(c) of this subpart.

(c) An inspector may issue a limited permit to allow a regulated article not eligible for certication under § 301.384(b)(2) to move interstate into or through a protected area to a specified destination that is stated in the permit and is outside the protected area, if the requirements of all other applicable federal domestic plant quarantines are met. A regulated article moved interstate under a limited permit must be placed in a closed sealed container that prevents unauthorized removal of the regulated article, and that remains sealed until the regulated article reaches the final destination stated in the permit. At the final destination, the sealed container must be opened only in the presence of an inspector or with the authorization of an inspector obtained expressly for that shipment.

(d) The United States Department of Agriculture may move any regulated article interstate into or through a protected area in accordance with the conditions determined necessary to prevent the introduction or spread of

black stem rust in protected areas, as specified in a Departmental permit issued for this purpose.

§ 301.38-5 Assembly and inspection of regulated articles: issuance and cancellation of certificates.

(a) Any person, other than a person authorized to issue certificates under paragraph (c) of this section, who desires to move interstate a regulated article that must be accompanied by a certificate under § 301.38-4(b), shall, as far in advance of the desired interstate movement as possible (and no less than 48 hours before the desired interstate movement), request an inspector 5 to issue a certificate. To expedite the issuance of a certificate, an inspector may direct that the regulated articles be assembled in a manner that facilitates inspection.

(b) An inspector 5 may issue a certificate for the interstate movement of a regulated article if he or she:

(1) Determines, upon examination, that the regulated article may be moved interstate in accordance with § 301.38-4; and

(2) Determines that the regulated article may be moved interstate in accordance with all other federal domestic plant quarantines and regulations applicable to the regulated article.

(c) Certificates for interstate movement of regulated articles may be issued by an inspector 5 to a person operating under a compliance agreement for use with subsequent shipments of regulated articles to facilitate their movement. A person operating under a compliance agreement must make the determinations set forth in paragraph (b) of this section before shipping any regulated articles.

(d) Any certificate that has been issued may be withdrawn by an inspector, orally or in writing, if he or she

5 Services of an inspector may be requested by contacting a local APHIS office (listed in telephone directories under Animal and Plant Health Inspection Service (APHIS), Plant Protection and Quarantine). The addresses and telephone numbers of local offices may also be obtained by writing to the Administrator, c/o Domestic and Emergency Operations, PPQ, APHIS, USDA, Room 661, Federal Building, 6505 Belcrest Road, Hyattsville, Maryland 20782.

determines that the holder of the certificate has not complied with the conditions of this subpart for the use of the certificate. If the withdrawal is oral, the inspector will confirm the withdrawal and the reasons for the withdrawal, in writing, within 20 days of oral notification of the withdrawal. Any person whose certificate has been withdrawn may appeal the decision, in writing within 10 days after receiving 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 was wrongfully withdrawn. A hearing will be held to resolve any conflict as to any material fact. An appeal shall be granted or denied, in writing, as promptly as circumstances allow, and the reasons for the decision shall be stated. In a non-protected area, appeal shall be made to the Administrator. The Administrator shall adopt rules of practice for the hearing. The certificate will remain withdrawn pending decision of the appeal.

§ 301.38-6 Compliance agreements and

cancellation.

(a) Any state that is a protected area or that encompasses a protected area may enter into a written compliance agreement with any person who grows or handles regulated articles in the protected area, or moves interstate regulated articles from the protected area, under which that person agrees to comply with this subpart, to provide inspectors with information concerning the source of any regulated articles acquired each year, and to prevent the unauthorized use of certificates issued for future use under the compliance agreement."

(b) A compliance agreement may be cancelled by an inspector, orally or in writing, whenever he or she determines that the person who has en

6 In non-protected areas, compliance agreements may be arranged by contacting a local office of the Animal and Plant Health Inspection Service (APHIS), Plant Protection and Quarantine, or by writing to the Administrator, c/o Domestic and Emergency Operations Staff, PPQ, APHIS, USDA, Room 646, Federal Building, 6505 Belcrest Road, Hyattsville, Maryland 20782.

tered into the compliance agreement has failed to comply with the agreement or this subpart. If the cancellation is oral, the cancellation and the reasons for the cancellation will be confirmed, in writing, within 20 days of oral notification of the cancellation. Any person whose compliance agreement has been cancelled 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 cancelled. A hearing will be held to resolve any conflict as to any material fact. An appeal shall be granted or denied, in writing, as promptly as circumstances allow, and the reasons for the decision shall be stated. In a nonprotected area, appeal shall be made to the Administrator. The Administrator shall adopt rules of practice for the hearing. The compliance agreement will remain cancelled pending decision of the appeal.

[54 FR 32791, Aug. 10, 1989; 54 FR 38494, Sept. 18, 1989]

§ 301.38-7 Attachment and disposition of certificates.

(a) The certificate required for the interstate movement of a regulated article must, at all times during the interstate movement, be attached to the outside of the container containing the regulated article except as follows:

(1) The certificate may be attached to the regulated article itself if it is not in container; or

(2) The certificate may be attached to the accompanying waybill or other shipping document if the regulated article is identified and described on the certificate or waybill.

(b) The carrier must furnish the certificate to the consignee at the destination of the regulated article.

§ 301.38-8 Costs and charges.

The services of an inspector 4 during normal business hours, Monday through Friday, 8 a.m. to 4:30 p.m., will be furnished without cost to persons requiring the services. The United States Department of Agricul

ture will not be responsible for any other costs or charges.

[54 FR 32791, Aug. 10, 1989; 54 FR 38494, Sept. 18, 1989]

Subpart-Gypsy Moth

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 Connecticut,

Delaware, District of Columbia, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, and West Virginia in order to prevent the spread of the gypsy moth, Lymantria dispar (Linnaeus), a dangerous insect injurious to forests and shade trees and not theretofore widely prevalent or distributed within or 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).

(b) Quarantine restrictions on interstate movement of regulated articles and outdoor household articles. No common carrier or other person shall move interstate from any regulated area any regulated article and outdoor household articles except in accordance with the conditions prescribed in this subpart.

[45 FR 15510, Mar. 11, 1980, as amended at 46 FR 48628, Oct. 2, 1981; 47 FR 5191, Feb. 4, 1982; 48 FR 39601, Sept. 1, 1983; 49 FR 19961, May 11, 1984; 49 FR 38931, Oct. 2, 1984; 50 FR 13542, Apr. 5, 1985; 51 FR 16997, May 8, 1986; 51 FR 21137, June 11, 1986; 51 FR 30836, Aug. 29, 1986; 53 FR 34018, Sept. 2, 1988, and 53 FR 49974, Dec. 13, 1988; 54 FR 31007, July 26, 1989]

(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 ap

plied 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 article 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.

(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, or 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.

(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 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 or where the inspector has reason to believe that 50 or more egg masses per acre of the gypsy moth are present.

(k) Infestation. (1) The presence of gypsy moths as determined by the

trapping of male moths in accordance with the program manual in a pattern indicating an estimated population; or (2) 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 not established in the wild which are found as a result of hitchhiking on transitory means of convey

ance.

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

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

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

(4) Mobile homes and associated equipment.

(5) Recreational vehicles and associated equipment (unless moved as an outdoor household article), moving

'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.

2 Names of mills under compliance agreement are available upon request to the Deputy Administrator, Plant Protection and Quarantine, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, Washington, DC 20250, or from an inspector.