Japanese Beetle; Domestic Quarantine and Regulations

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 95-087-2]

Japanese Beetle; Domestic Quarantine and Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, with two changes, an interim

rule that amended the Japanese beetle quarantine and regulations by

adding Minnesota and Wisconsin to the list of quarantined States and by

providing greater specificity about what actions must be taken to

prevent the spread of Japanese beetle by aircraft from regulated

airports. This action was necessary to prevent the spread of Japanese

beetle into noninfested areas of the United States. The interim rule

also amended the regulations to allow carriers at regulated airports

the option of performing some activities under a compliance agreement

with the Animal and Plant Health Inspection Service, rather than in the

presence of an inspector.

EFFECTIVE DATE: December 2, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald P. Milberg, Operations

Officer, Program Support, PPQ, APHIS, 4700 River Road Unit 134,

Riverdale, MD 20737-1236, (301) 734-5255.

SUPPLEMENTARY INFORMATION:

Background

The Japanese beetle feeds on fruits, vegetables, and ornamental

plants and is capable of causing damage to over 300 potential hosts.

The Japanese beetle quarantine and regulations, contained in 7 CFR

301.48 through 301.48-7 (referred to below as the regulations),

quarantine certain States and restrict the interstate movement of

aircraft from regulated airports in the quarantined States to prevent

the spread of the Japanese beetle to the seven States listed in

Sec. 301.48(b) (Arizona, California, Idaho, Nevada, Oregon, Utah, and

Washington, referred to below as the protected States). Under

Sec. 301.48-4 of the regulations, a regulated article may move

interstate from a regulated airport to any of the protected States only

if certain conditions have been met.

In an interim rule effective June 20, 1996, and published in the

Federal Register on June 25, 1996 (61 FR 32636-32641, Docket No. 95-

087-1), the Animal and Plant Health Inspection Service (APHIS) amended

the regulations to (1) add Minnesota and Wisconsin to the list of

States quarantined for Japanese beetle; (2) provide greater specificity

about what actions must be taken to ensure aircraft do not spread

Japanese beetle from regulated airports; (3) allow carriers at

regulated airports the option of performing some activities under a

compliance agreement with APHIS, rather than in the presence of an

inspector; and (4) amend the definition of ``regulated airport'' to

include portions of airports, as well as entire airports. This action

was necessary to help prevent the spread of Japanese beetle into the

protected States.

We solicited comments concerning the interim rule for 60 days

ending August 26, 1996. We received one comment by that date. The

comment received was from a State government. The commenter was

generally supportive of the interim rule but included three suggestions

pertaining to content changes and one suggestion to delay publication

of a final rule. We have carefully considered the suggestions made in

this comment. They are discussed below.

The first suggestion was to leave the determination of what

constitutes daylight hours up to local APHIS personnel at the regulated

airports. (The interim rule specified that the regulatory provisions

apply between the hours of 7:00 a.m. and 8:00 p.m. because Japanese

beetles are active during daylight hours only.) The concern expressed

was that operational problems could occur when determining airport

regulation status along timeline divisions. For example, an aircraft at

a regulated airport in the central time zone could require treatment at

7:00 p.m., whereas an aircraft at a nearby airport in the eastern time

zone (8:00 p.m.) would not be subject to the same regulatory

requirements.

We designed the regulations to prevent adult Japanese beetles from

flying into aircraft destined for any of the protected States. Because

of the Japanese beetle life cycle, the adult beetles are active in most

parts of the United States only in the summer months during daylight

hours. More specifically, adult Japanese beetles are generally active

only when the air reaches a certain temperature. We believe the period

of greatest flight activity occurs between the hours of 10:00 a.m. and

3:00 p.m. during the months of July through mid-September in most parts

of the country. Because the hours of 7:00 a.m. to 8:00 p.m. are roughly

the hours of daylight in many parts of the United States during the

summer months, we established that timeframe as the period of

regulatory activity to ensure we would cover any possible Japanese

beetle flight activity.

We are not making any change to the regulations based on this

comment because we are not aware of any operational problems that have

occurred to date as a result of the 7:00 a.m. to 8:00 p.m. timeframe

and, furthermore, we believe that having an established timeframe for

regulatory activity will make conducting operations at the airports

easiernot more difficult.

The second suggestion was to eliminate language concerning how to

apply an approved pesticide in an aircraft (i.e., holding the pesticide

at a 45-degree angle and aerating for 15 minutes). These instructions

pertain to the application of the pesticide d-phenothrin. The concern

was that d-phenothrin is not the only pesticide approved for use

against Japanese beetle in aircraft and the language in the regulations

should allow for use of any approved and effective treatment.

[[Page 56404]]

We agree with the reasons presented for this suggestion.

Accordingly, we are removing the language in Sec. 301.48-4(d)(4) that

pertains to application of d-phenothrin.

The third suggestion was to eliminate the term ``tail swapping'' in

the regulations because of concerns that this term is not commonly used

and could be misconstrued.

We believe the term ``tail swapping'' is commonly used by the

airline industry and, therefore, is appropriate for use in a regulation

targeted at that industry. However, to ensure clarity, we are changing

the wording in Sec. 301.48-4(d)(6). As reworded, Sec. 301.48-4(d)(6)

will begin: ``When a designated aircraft is replaced with an alternate

one just prior to departure (the procedure known as `tail swapping'). *

* *''

The final suggestion was to delay issuance of this final rule until

the list of infested States used in the U.S./Canada Japanese Beetle

Harmonization Plans has been finalized.

We are not taking any action in regard to this suggestion because

this list, which is primarily used by noninfested States to regulate

the movement of nursery stock from infested States, is constantly being

updated. It will never be ``finalized,'' per se. Just as we added

Minnesota and Wisconsin to the list of quarantined States in the

interim rule, if we determine that a State other than those currently

listed in Sec. 301.48(a) is infested with Japanese beetles and needs to

be quarantined, we will take action at that time to include that State

in the list of quarantined States.

Therefore, based on the rationale set forth in the interim rule and

in this document, we are adopting the provisions of the interim rule as

a final rule, with the changes discussed in this document.

This final rule also affirms the information contained in the

interim rule concerning Executive Order 12866 and the Regulatory

Flexibility Act, Executive Orders 12372 and 12778, and the National

Environmental Policy Act.

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act

of 1995 (44 U.S.C. 3501 et seq.), the information collection or

recordkeeping requirements included in this final rule have been

approved by the Office of Management and Budget (OMB) under OMB control

number 0579-0088.

List of Subjects in 7 CFR Part 301

Agricultural commodities, Plant diseases and pests, Quarantine,

Reporting and recordkeeping requirements, Transportation.

Accordingly, the interim rule amending 7 CFR part 301 which was

published at 61 FR 32636-32641 on June 25, 1996, is adopted as a final

rule with the following changes:

PART 301--DOMESTIC QUARANTINE NOTICES

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

follows:

Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and

164-167; 7 CFR 2.22, 2.80, and 371.2(c).

2. In Sec. 301.48-4, paragraph (d)(4) and the first sentence of

paragraph (d)(6) are revised to read as follows:

Sec. 301.48-4 Conditions governing the interstate movement of

regulated articles from quarantined States.

* * * * *

(d) * * *

(4) Aircraft must be treated in accordance with the Treatment

Manual no more than 1 hour before loading. Particular attention should

be paid to the ball mat area and the holes around the main entrance.

The aircraft must then be aerated under safeguard conditions as

required by the Treatment Manual.

* * * * *

(6) When a designated aircraft is replaced with an alternate one

just prior to departure (the procedure known as ``tail swapping''), the

alternate aircraft must be inspected and all Japanese beetles must be

removed. * * *

* * * * *

Done in Washington, DC, this 24th day of October 1996.

A. Strating,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 96-27972 Filed 10-31-96; 8:45 am]

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