RULE NO.: RULE TITLE:
5B-66.001: Definitions
5B-66.002: Purpose
5B-66.003: Quarantine Area
5B-66.004: Movement or Procession of Hosts or Other Regulated Articles; Conditions of Certification
5B-66.005: Confiscation and Disposal of Hosts
5B-66.006: Treatment Areas, Treatment Procedures and Mitigative Measures
PURPOSE AND EFFECT: The purpose of this rule is to establish procedures for the eradication of fruit flies species in the genera Anastrepha (except A. suspensa), Bactrocera, Ceratitis, Dacus and Rhagoletis upon their detection in the State of Florida. If established in Florida, any one of these exotic pest species will significantly imperil the quality and quantity of many fruits and vegetables that are important to Florida’s citizens as well as significantly curtail the domestic and international markets for Florida agricultural products and thereby result in substantial economic losses. The rule will allow the state to respond immediately to a detection of a fruit fly outbreak and take appropriate measures to achieve eradication thereby protecting Florida’s agricultural industry, homegrown fruits and vegetables and certain native plants which are important food sources for wildlife.
SUMMARY: The proposed rule will address the necessity of immediate action to eradicate fruit flies of economic importance before any infestation spreads. Depending on the fruit fly species, these pests will infest several to hundreds of host plants species, several of which are of significant economic importance to Florida (e.g., citrus, tomatoes, peppers). If the fruit fly continues to spread unchecked, it will cause substantial damage to fruit and vegetable-bearing plants in home gardens and agricultural production areas resulting in several millions of dollars in control costs, lost production, increased consumer prices in the marketplace, and loss of domestic and international markets.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. An SERC has not been prepared by the agency.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 570.07(23), (24), 581.031(1), (5), (7), (17) FS.
LAW IMPLEMENTED: 570.32(5), (6), 581.031(6), (7), (9), (15), (17), (20), (26), (30), 581.101, 581.161, 581.181 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Dr. Wayne N. Dixon, Assistant Director, Division of Plant Industry, Department of Agriculture and Consumer Services, P. O. Box 147100, Gainesville, FL 32614-7100.. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Dr. Wayne N. Dixon, Assistant Director, Division of Plant Industry, Department of Agriculture and Consumer Services, P. O. Box 147100, Gainesville, FL 32614-7100

THE FULL TEXT OF THE PROPOSED RULE IS:

FRUIT FLY ERADICATION

5B-66.001 Definitions.

For the purpose of this rule, the definitions in Section 581.011, F. S., and the following definitions shall apply:

(1) EPA. The United States Environmental Protection Agency.

(2) Fruit fly. Any life stage of any species of tephritid fruit fly in the genera Anastrepha (except A. suspensa), Bactrocera, Ceratitis, Dacus, Rhagoletis or synonyms thereof.

(3) Host. All fruits (including nuts, dates, and berries), vegetables, and the fruiting bodies of wild and cultivated plants which are capable of infestation by any life stage of any species of fruit fly defined in subsection (2).

(4) Infested. The condition of a host actually harboring a fruit fly in any of its life stages.

(5) Regulated article(s). Any article(s), including soil, capable of transporting or harboring a fruit fly, e.g., host fruits, vegetables, and potted plants.

(6) USDA-APHIS-PPQ. United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine.

Rulemaking Authority 570.07(23), (24), 581.031(1), (5), (7), (17) FS. Law Implemented 570.32(5), (6), 581.031(6), (7), (9), (15), (17), (20), (26), (30), 581.101, 581.161, 581.181 FS. History–New_______.

5B-66.002 Purpose.

The purpose of this rule is to establish procedures for conducting a program to eradicate fruit flies defined in subsection 5B-66.001(2), F.A.C., upon their detection in the State of Florida. This rule chapter designates the size of quarantine areas and the requirements for the movement and certification of hosts and regulated articles. It also designates the size of treatment areas and the procedures for conducting treatments, outlines program mitigative measures and sets forth the requirements for declaring eradication.

5B-66.003 Quarantine Area.

(1) A minimum 81-square mile area around a fruit fly detection shall be quarantined upon finding:

(a) Two adults within three miles (3.5 miles for Bactrocera) of each other within a life cycle; or

(b) One gravid female; or

(d) A pupa.

(2) The geographical boundaries of a quarantine area shall be published in a major newspaper of general distribution in the quarantine area, on the Department’s website, and provided to affected industry groups.

(3) It shall be unlawful to move a host of the fruit fly species detected or a regulated article within, through or from a quarantine area unless in accordance with Rule 5B-66.004, F.A.C.

(4) A list of hosts most likely to be present in a quarantine area shall be published in a major newspaper of general distribution in the quarantine area, on the Department’s website, and provided to affected industry groups.

(5) An area shall be released from quarantine following a declaration that the fruit fly has been eradicated in accordance with subsection 5B-66.006(5), F.A.C.

5B-66.004 Movement or Possession of Hosts or Regulated Articles; Conditions of Certification.

(1) Compliance agreements. The certification of handling, processing, treatment, and moving of hosts and regulated articles may be accomplished through the use of a compliance agreement. The form Cooperative Fruit Fly Eradication Project, DACS 08468, Rev. 05/11, and Cooperative Fruit Fly Eradication Project, Aerial Applicator, DACS-08469, Rev. 05/11, are incorporated herein by reference and may be obtained from the Division of Plant Industry, Bureau of Plant and Apiary Inspection, by writing to P. O. Box 147100, Gainesville, FL 32514-7100 or on at http://www.freshfromflorida.com/onestop/plt/plantinsp.html.

(2) It shall be unlawful for any person to move any hosts of the fruit fly species or regulated articles within, through, or out of the quarantine area unless in compliance with this rule chapter and the movement practices have been certified by the Department or the USDA-APHIS-PPQ.

(3) Hosts or regulated articles shall be certified by the Department for movement out of a quarantine area for commercial or distribution purposes based on negative trapping, post-harvest treatments, or treatments applied to production areas which are approved by the Department by issuing a Temporary Certificate of Inspection (DACS-08010), Rev. 10/08, as incorporated in Rule 5B-2.010, F.A.C. Prior to movement, the method of treatment and location of the treatment facility must be documented in the “Additional Declarations” section of DACS-08010. Interstate movement of hosts or regulated articles shall by governed by 7 CFR §301.32 – Subpart – Fruit Flies (§301.32 and §301.32-1 to §301.32-10) which is hereby incorporated by reference. Copies may be obtained from: www.gpo.gov.

(4) Hosts offered for sale or distribution within the quarantined area shall be certified only if an authorized representative of the Department or USDA-APHIS-PPQ has conducted an inspection and certified that the following conditions have been met:

(a) The hosts have been received from outside the quarantine area. Vendors or shippers must have proof of origin in the form of written receipts or other documentation traveling with the hosts; and

(b) The hosts are kept in fruit fly-proof screened enclosures or sealed containers, cold storage, fly-proof vehicles, or other enclosures to prevent infestation by a fruit fly.

(5) Hosts transiting through the quarantine area must be covered by fly-proof screen or be in fly-proof vehicles and accompanied by proof of origin in the form of written receipt or other documentation.

(6) Soil and plants with soil attached:

(a) Soil and plants with soil attached shall be certified for movement only if an authorized representative of the Department or USDA-APHIS-PPQ has conducted an inspection and certified that they are not or have not been under the canopy of a host plant which is bearing hosts or was capable of bearing hosts within the previous 60 days.

(b) Soil and plants with soil attached under the canopy of a plant which is bearing hosts or was capable of bearing hosts within the previous 60 days, shall be certified provided:

1. All such soil and plants with soil attached are removed to an area clear of plants bearing or capable of bearing hosts and the soil is treated with an EPA-registered pesticide, an Emergency Exempted product as authorized by Federal Insecticide Fungicide and Rodenticide Act (FIFRA), Section 18 [7 U.S.C. 136p], or a Special Local Need product as authorized by FIFRA, Section 24(c) [(7 U.S.C. 136 v] that are labeled as effective for fruit fly control.

2. All treatments must be conducted under the supervision of an authorized representative of the Department or USDA-APHIS-PPQ or pursuant to a compliance agreement as provided in subsection 5B-66.004(1), F.A.C.

(c) Plants bearing hosts or which were capable of bearing hosts within the previous 60 days, shall be certified for movement only if an authorized representative of the Department or USDA-APHIS-PPQ has conducted an inspection and certified that all hosts have been removed in accordance with paragraph 5B-66.006(1)(c), F.A.C., and that any soil attached to the host is treated with an EPA-registered pesticide, an Emergency Exempted product as authorized by Federal Insecticide Fungicide and Rodenticide Act (FIFRA), Section 18 [7 U.S.C. 136p], or a Special Local Need product as authorized by FIFRA, Section 24(c) [(7 U.S.C. 136 v] that are labeled as effective for fruit fly control. All treatments must be conducted under the supervision of an authorized representative of the Department or USDA-APHIS-PPQ or pursuant to a compliance agreement as provided in subsection 5B-66.004(1), F.A.C.

5B-66.005 Confiscation and Disposal of Hosts and Regulated Articles.

All hosts or regulated articles offered for sale or distribution within the quarantine area that are not in compliance with Rule 5B-66.004, F.A.C., shall be considered infested and:

(1) Shall be confiscated, held, and destroyed by the Department at the expense of the vendor or person having possession of the hosts or regulated articles upon issuance of a Stop-Sale Notice and Hold Order, DACS-08016, Rev. 02/10, as incorporated in Rule 5B-65.005, F.A.C.; or

(2) Shall be voluntarily destroyed by the vendor or person having possession of the hosts or regulated articles pursuant to an Agreement For Treatment, Destruction, Forfeiture Or Return of Plants and/or Plant Parts, DACS-08029, Rev.04/08, as incorporated in Rule 5B-3.0038, F.A.C.

5B-66.006 Treatment Areas, Treatment Procedures, Mitigative Measures, and Declaration of Eradication.

(1) Treatment areas and treatment procedures to eradicate a fruit fly infestation will be dependent on the species, life-stages and numbers of fruit flies detected and the geographical area affected by the fruit fly infestation. Treatment areas shall be treated under the direction of the Department or the USDA-APHIS-PPQ. All pesticide applications will be applied in accordance with applicable federal and state regulations, implementing mitigative measures to reduce environmental and public impact as described in this subsection 5B-66.006(4), F.A.C. The Department or other parties acting in concert with the Department through a compliance agreement shall use the following treatment activities or combination thereof:

(a) Ground or aerial applications of an EPA-registered pesticide, an Emergency Exempted product as authorized by Federal Insecticide Fungicide and Rodenticide Act (FIFRA), Section 18 [7 U.S.C. 136p], or a Special Local Need product as authorized by FIFRA, Section 24(c) [(7 U.S.C. 136 v] that are labeled as effective for fruit fly control;

(b) Bait stations applied to host plants or plants capable of harboring adult fruit flies;

(d) The removal and destruction of abandoned or unwanted plants capable of bearing hosts;

(e) The placement of traps;

(f) The release of sterile fruit flies to achieve eradication.

(2) Delimitation area and Treatment areas. The geographical boundaries of treatment areas shall be published in a major newspaper of general distribution in the treatment area, on the Department’s website, and provided to affected industry groups.

(a) When a single male or unmated female fruit fly is detected, an intensified monitoring program will be implemented in a delimitation area which will be a minimum 81-square mile area around the positive site.

(b) When two adult fruit flies are detected within three miles (3.5 miles for Bactrocera species) of each other within a life cycle, or a single gravid female, larva, or pupa are detected, a delimitation monitoring program will be implemented in a minimum 81-square mile area around the positive site. The treatment area for pesticide treatments shall be established and shall be a minimum 9-square mile area around a positive site.

(c) If a larva is detected, in addition to paragraph 5B-66.006(1)(b), F.A.C., above, the soil under the canopy of all host plants on the property and each adjacent property shall be drenched with an EPA-registered pesticide, an Emergency Exempted product as authorized by Federal Insecticide Fungicide and Rodenticide Act (FIFRA), Section 18 [7 U.S.C. 136p], or a Special Local Need product as authorized by FIFRA, Section 24(c) [(7 U.S.C. 136 v] that are labeled as effective for fruit fly control. All hosts shall be removed within a 660-foot radius of the positive site by the Department or the USDA-APHIS-PPQ.

(3) Treatment procedures. Treatments will be conducted in accordance with the following procedures upon notification of applicable federal, state, and local government agencies, and officials who will be provided an opportunity for input into program procedures or mitigative measures or participation in program monitoring activities:

(a) All necessary control actions will be conducted based on the species of fruit fly detected using the treatments necessary to prevent further spread and achieve eradication.

(b) Local hospitals and public health facilities and agencies will be notified of the pesticide treatment schedules and the types of pesticides used and all accidental pesticide exposures will be reported to the appropriate local, state and federal authorities.

(c) All applicable environmental laws and regulations will be followed and an environmental monitoring program in accordance with applicable federal and state environmental laws will be implemented.

(d) All pesticides will be applied under the supervision of certified applicators in accordance with label instructions, applicable quarantine or emergency exemptions, USDA Environmental Impact Statements, site specific Environmental Assessments and state licensing requirements.

(e) All appropriate program personnel will be trained on the proper use and storage of materials and instructed on emergency procedures in the event of accidental chemical exposure.

(f) All necessary safety and cleaning equipment, protective clothing and Material Safety Data Sheets will be provided to program personnel.

(4) Program Mitigative Measures. The following mitigative measures will be taken to reduce public and environmental impact:

(a) Residents in treatment areas shall be notified in person or by publication in a major newspaper of general distribution in the treatment area at least 24 hours in advance of the date and time of planned pesticide treatments, on the Department’s website, and notice will be provided to affected industry groups. Notifications will be in English or other languages as necessary based on the ethnic structure of the community. The notification shall include basic information about the program, the geographical boundaries of the treatment area, treatment procedures and measures to be taken to avoid exposure and reduce damage.

(b) A telephone help line system will be established to keep the public informed of program activities and serve as a mechanism for registering and responding to complaints.

(d) The United States Department of the Interior’s Fish and Wildlife Service and the Florida Fish and Wildlife Conservation Commission will be contacted to determine the presence of any endangered or threatened species in need of protection within the treatment area and the program shall take appropriate measures to protect those species as recommended by these agencies.

(e) Sensitive areas in or near treatment areas shall be identified prior to chemical treatments and appropriate measures taken to ensure that these areas are not adversely affected.

(f) All control actions will be conducted with appropriate concern for potential impact on the public, wildlife, non-target organisms and sensitive areas.

(5) Declaration of Eradication. Following the completion of all treatments, eradication shall be declared when no fruit fly is detected after a period of a minimum of two fruit fly life cycles. The Department shall publish notice of the Declaration of Eradication in a major newspaper of general distribution in the quarantine area, on the Department’s website, and provide notice to affected industry groups.

(6) Program Evaluation. Following the completion of a fruit fly eradication program, program activities and monitoring results will be reviewed and evaluated and appropriate changes implemented for future programs.