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under the cooperative Federal-State program, and;

(1) The State employs personnel with responsibility for the issuance and withdrawal of certificates in accordance with $ 301.38–5;

(2) The State 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, as determined by the Administrator; and

(3) The State maintains and enforces an inspection program under which every plant nursery within the county is inspected at least once each year to ensure that plant nurseries within that area are free of rust-susceptible plants of the genera Berberis, Mahoberberis, and Mahonia. During the requisite nursery inspections, all nursery stock shall be examined to determine that it consists only of rust-resistant varieties of the genera Berberis, Mahoberberis, and Mahonia, and that the plants are true to type. Plants that do not meet this criteria must be destroyed.

(c) All seed used to propagate plants of the genera Berberis, Mahoberberis, and Mahonia in protected areas, and all seed used to propagate plants of the genera Berberis, Mahoberberis, and Mahonia that are certified as rust-resistant for interstate movement into protected areas, must be produced at properties where a State inspector has verified that no wild or domesticated rust-susceptible plants are growing at or within one-half mile of the property.4

(d) 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, Wisconsin, and Wyoming.

(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.

(e) 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.

(f) 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.

(54 FR 32791, Aug. 10, 1989, as amended at 55 FR 29558, July 20, 1990; 57 FR 3118, Jan. 28, 1992]

4 Persons performing the inspections must be able to recognize rust-susceptible varieties of Berberis, Mahoberberis, and Mahonia. Inspectors must work side by side, 10 to 20 feet apart, and walk outward away from the property a distance of one-half mile measured from the edge of the property, and observe all plants growing in the half-mile band. The distance between the inspectors may vary within this range, depending upon the visibility of the plant growth. In areas with low brush and flat terrain, the inspectors may be the maximum distance of 20 feet apart if they can observe all plants growing within 10 feet of them. In areas of high plant growth or hilly terrain, the inspectors must be closer together due to limited or obstructed visibility. Inspectors must observe all plants growing between themselves and

8 301.384 Interstate movement of reg

ulated 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 8301.38_3(c) is allowed without restriction under this subpart.

the mid-point of the distance between themselves and the next inspector. This process must be repeated so that the entire band, measured from the border of the property to the circumference of an imaginary circle having the property as its mid-point, is visually inspected in this manner.

in

(b) Protected areas (1) Prohibited specified in a Departmental permit movement. The following regulated arti- issued for this purpose. cles are prohibited from moving interstate into or through any protected 8301.385 Assembly and inspection of area:

regulated articles: issuance and (i) All Berberis seedlings and plants of cancellation of certificates. less than 2 years' growth, and rust-sus- (a) Any person, other than a person ceptible Berberis plants, seeds, fruits,

authorized to issue certificates under and other plant parts capable of propa- paragraph (c) of this section, who degation.

sires to move interstate a regulated ar(ii) Rust-susceptible Mahoberberis and

ticle that must be accompanied by a Mahonia plants, seedlings, seeds, fruits,

certificate under $ 301.38-4(b), shall, as and other plant parts capable of propa

far in advance of the desired interstate gation. (2) Restricted movement: The following

movement as possible (and no less than

48 hours before the desired interstate regulated articles may be moved interstate into or through a protected area

movement), request an inspectors to with a certificate issued and attached

issue a certificate. To expedite the accordance with $$ 301.38–5 and

issuance of a certificate, an inspector 301.38–7 of this subpart:

may direct that the regulated articles (i) Plants of at least two years'

be assembled in a manner that faciligrowth, seeds, fruits, and other plant

tates inspection. parts capable of propagation of the (b) An inspector may issue a certifigenus Berberis that are designated as cate for the interstate movement of a rust-resistant in $301.38–2(b) of this regulated article if he or she: subpart;

(1) Determines, upon examination, (ii) Plants, seedlings, seeds, fruits, that the regulated article may be and other plant parts capable of propa- moved interstate in accordance with gation of the genera Mahoberberis and

8 301.38 4; and Mahonia that are designated as rust-re- (2) Determines that the regulated arsistant in 8 301.38–2(c) of this subpart.

ticle may be moved interstate in ac(c) An inspector may issue a limited

cordance with all other Federal domespermit to allow a regulated article not

tic plant quarantines and regulations eligible for certification under $301.38–

applicable to the regulated article. 4(b)(2) to move interstate into through a protected area to a specified

(c) Certificates for interstate movedestination that is stated in the permit

ment of regulated articles may be and is outside the protected area, if the

issued by an inspector to a person operrequirements of all other applicable

ating under a compliance agreement Federal domestic plant quarantines are

for use with subsequent shipments of met. A regulated article moved inter- reg ted articles to facilitate their state under a limited permit must be movement. A person operating under a placed in a closed sealed container that compliance agreement must make the prevents unauthorized removal of the determinations set forth in paragraph regulated article, and that remains (b) of this section before shipping any sealed until the regulated article regulated articles. 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

5 Services of an inspector may be requested with the authorization of an inspector

by contacting a local APHIS office (listed in obtained expressly for that shipment.

telephone directories under Animal and (d) The United States Department of

Plant Health Inspection Service (APHIS),

Plant Protection and Quarantine). The adAgriculture may move any regulated

dresses and telephone numbers of local ofarticle interstate into or through a

fices may also be obtained by writing to the protected area in accordance with the

Animal and Plant Health Inspection Service, conditions determined necessary to Plant Protection and Quarantine, Domestic prevent the introduction or spread of and Emergency Operations, 4700 River Road black stem rust in protected areas, as Unit 134, Riverdale, Maryland 20737–1236.

or

(d) Any certificate that has been issued may be withdrawn by an inspector, orally or in writing, if he or she 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, 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. (54 FR 32791, Aug. 10, 1989, as amended at 59 FR 67608, Dec. 30, 1994]

writing, whenever he or she determines that the person who has entered 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 non-protected 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, as amended at 57 FR 3118, Jan. 28, 1992; 59 FR 67608, Dec. 30, 1994]

as

8301.38 6 Compliance agreements and

cancellation. (a) Any State may enter into a written compliance agreement with any person who grows or handles regulated articles in a protected area, or moves interstate regulated articles from a 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.6

(b) A compliance agreement may be cancelled by an inspector, orally or in

8301.38_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.

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 Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.

8301.388 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 Agriculture 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

SOURCE: 58 FR 39423, July 23, 1993, unless otherwise noted.

8 301.45 Notice of quarantine; restric

tion 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, Indiana, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, West Virginia, and Wisconsin 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 throughout the United States; and establishes regulations governing the interstate movement from generally infested areas of the quarantined States of regulated articles and outdoor household articles defined in 8 301.45–1.

(b) Restrictions on the interstate movement of regulated articles and outdoor household articles. No common carrier or other person may move interstate from any generally infested area any regulated article or outdoor household article except in accordance with the conditions prescribed in this subpart. (58 FR 39423, July 23, 1993, as amended at 62 FR 29287, May 30, 1997; 63 FR 38280, July 16, 1998]

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 of the U.S. Department of Agriculture (APHIS).

Associated equipment. Articles associated and moved with mobile homes and recreational vehicles, such as, but not limited to, awnings, tents, outdoor furniture, trailer blocks, and trailer skirts.

Certificate. A document issued by an inspector, or by a qualified certified applicator or any other person operating in accordance with a compliance agreement, to allow the movement of regulated articles to any destination.

Compliance agreement. A written agreement between a person engaged in growing, handling, or moving regulated articles, and APHIS, wherein the former agrees to comply with the requirements of the compliance agreement.

Effectively diminishing. An eradication program is considered to be effectively diminishing the gypsy moth population of an area if the results of two successive annual Federal or State delimiting trapping surveys of the area conducted in accordance with Section II, “Survey Procedures

Gypsy Moth," of the Gypsy Moth Treatment Manual show that the average number of gypsy moths caught per trap in the second delimiting survey (when comparable geographical areas and trapping densities are used) is: (1) Less than 10, and (2) less than the average number of gypsy moths caught per trap in the first survey.

Eradication program. A program that uses pesticide application, biological controls, or other methods with the goal of eliminating gypsy moth from a particular area.

General infestation. (1) The detection of gypsy moth egg masses through visual inspection by an inspector during a 10-minute walk through the area; however, it does not include the presence of gypsy moth egg masses which

are found as a result of hitchhiking on transitory means of conveyance; or

(2) The detection of gypsy moth through multiple catches of adult

or

8301.45–1 Definitions.

Terms used in the singular form in this subpart shall be construed as the plural, and vice versa, as the case may demand. The following terms, when used in this subpart, shall be construed, respectively, to mean:

under the cooperative Federal-State program, and;

(1) The State employs personnel with responsibility for the issuance and withdrawal of certificates in accordance with 8 301.38–5;

(2) The State 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, as determined by the Administrator; and

(3) The State maintains and enforces an inspection program under which every plant nursery within the county is inspected at least once each year to ensure that plant nurseries within that area are free of rust-susceptible plants of the genera Berberis, Mahoberberis, and Mahonia. During the requisite nursery inspections, all nursery stock shall be examined to determine that it consists only of rust-resistant varieties of the genera Berberis, Mahoberberis, and Mahonia, and that the plants are true to type. Plants that do not meet this criteria must be destroyed.

(c) All seed used to propagate plants of the genera Berberis, Mahoberberis, and Mahonia in protected areas, and all seed used to propagate plants of the genera Berberis, Mahoberberis, and Mahonia that are certified as rust-resistant for interstate movement into protected areas, must be produced at properties where a State inspector has verified that no wild or domesticated rust-susceptible plants are growing at or within one-half mile of the property.4

(d) 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, Wisconsin, and Wyoming.

(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.

(e) 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.

(f) 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. 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.

(54 FR 32791, Aug. 10, 1989, as amended at 55 FR 29558, July 20, 1990; 57 FR 3118, Jan. 28, 1992]

4 Persons performing the inspections must be able to recognize rust-susceptible varieties of Berberis, Mahoberberis, and Mahonia. Inspectors must work side by side, 10 to 20 feet apart, and walk outward away from the property a distance of one-half mile measured from the edge of the property, and observe all plants growing in the half-mile band. The distance between the inspectors may vary within this range, depending upon the visibility of the plant growth. In areas with low brush and flat terrain, the inspectors may be the maximum distance of 20 feet apart if they can observe all plants growing within 10 feet of them. In areas of high plant growth or hilly terrain, the inspectors must be closer together due to limited or obstructed visibility. Inspectors must observe all plants growing between themselves and

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