The purpose of this rule is to facilitate an emergency program designed to eradicate fruit flies introduced into Florida.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Plant Industry

RULE NO.: RULE TITLE:

5B-66.001: Definitions

5B-66.002: Purpose

5B-66.003: Quarantine Area

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

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

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

PURPOSE AND EFFECT: The purpose of this rule is to facilitate an emergency program designed to eradicate fruit flies introduced into Florida.

SUMMARY: This rule edit is to address quarantine movement regulations and treatment measures for exposed areas during an emergency fruit fly eradication program.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

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. A 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 FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Dr. Greg Hodges,

P.O. Box 147100, Gainesville, FL, 32614, [phone], [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

5B-66.001 Definitions and Purpose.

(1) For the purpose of this rule, the definitions in section 581.011, F. S., and the following definitions shall apply:

(1) through (6) reorganized (a) through (f) No change.

(2) The purpose of this rule chapter is to establish procedures for conducting a program to eradicate Fruit flies defined in Rule 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.

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 12-8-11,        .

 

5B-66.002 Purpose.

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 12-8-11, Repealed         .

 

5B-66.003 Quarantine Area.

(1) A minimum 81-square mile area around a Ffruit 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) through (d) No change.

(2) The geographical boundaries of a quarantine area shall be published in a major newspaper of general distribution in the quarantine area, provided to affected industry groups, and published on the Department’s website at http://www.FDACS.gov freshfromflorida.com/PI.

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

(4) A list of Hhosts most likely to be present in a quarantine area shall be published in a major newspaper of general distribution in the quarantine area, provided to affected industry groups, and published on the Department’s website at http://www.FDACS.gov freshfromflorida.com/PI.

(5) No change.

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 12-8-11, Amended         .

 

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 Hhosts and Rregulated articles may be accomplished through the use of a compliance agreement. The form Compliance Agreement Cooperative Fruit Fly Eradication Program Project, FDACS 08468, Rev. 05/20 05/11, and Compliance Agreement Cooperative Fruit Fly Eradication Program Project, Aerial Applicator, FDACS-08469, Rev. 05/20 05/11, are incorporated herein by reference and samples are available may be obtained at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX.  from the Division of Plant Industry, Bureau of Plant and Apiary Inspection, by writing to P. O. Box 147100, Gainesville, FL 32514-7100 or at http://www.flrules.org/Gateway/reference.asp?No=Ref-00748 for Compliance Agreement Cooperative Fruit Fly Eradication Project, DACS 08468, Rev. 05/11, and http://www.flrules.org/Gateway/reference.asp?No=Ref-00749  for Compliance Agreement Cooperative Fruit Fly Eradication Project, Aerial Applicator, DACS-08469, Rev. 05/11.

(2) It shall be unlawful for any person to move any Hhosts of the Ffruit fly species or Rregulated articles within, into, 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) Hhosts or Rregulated articles within a half-mile of a positive find may only be moved out of a quarantine area if processed with a post-harvest treatment (fumigation or irradiation); or application of a pre-harvest bait spray treatment and Ffruit fly trap placement 30 days prior to harvest and monitoring throughout the harvest season with negative detection within the quarantine zone, but outside of the half-mile arc results. Hhosts or Rregulated articles shall be certified by the Department for movement out of a quarantine area for commercial or distribution purposes following confirmation by the Department of either method above. After confirmation, the Department shall issue a Temporary Certificate of Inspection (FDACS-08010), Rev. 10/20 10/08, which is as incorporated herein by reference and a sample is available at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX. in Rule 5B-2.010, F.A.C. Prior to movement of Hhosts or Rregulated articles, the method of treatment and location of the treatment facility must be documented in the “Additional Declarations” section of FDACS-08010. Interstate movement of Hhosts or Rregulated articles shall by governed by 7 CFR §301.32 – Subpart – Fruit Flies (§301.32 and §301.32-1 to §301.32-10, 1-1-20 Edition effective June 9, 2008) which is hereby incorporated herein by reference and available at may be obtained from www.govinfo.gov gpo.gov or http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX http://www.flrules.org/Gateway/reference.asp?No=Ref-00750.

(4) Hosts or Regulated articles offered for sale or distribution within the quarantined area shall be certified only if placed under compliance by 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 Hhosts or Regulated articles 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 Hhosts or Regulated articles; and,

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

(5) Hosts or Regulated articles transiting through the quarantine area must be covered by a fly-proof tarp screen or be in enclosed fly-proof vehicles and accompanied by proof of origin in the form of written receipt or other documentation traveling with Hhosts or Regulated articles.

(6) Soil and plants with soil attached:

(a) Soil and plants with soil attached shall be certified for movement only if placed under compliance by 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 Hhost plant which is bearing Hhosts or was capable of bearing Hhosts 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 Hhosts 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 Hhosts;

2. and Tthe 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, effective December 13, 1991], or a Special Local Need product, as authorized by FIFRA, Section 24(c) [(7 U.S.C. 136 v, effective October 25, 1988] that are labeled as effective for Ffruit fly control. These federal The sections of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) referenced above are hereby incorporated herein by reference and are available at copies may be obtained from www.govinfo.gov gpo.gov or http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX. http://www.flrules.org/Gateway/reference.asp?No=Ref-00751 for 7 U.S.C. 136p and http://www.flrules.org/Gateway/reference.asp?No=Ref-00752 for 7 U.S.C. 136v.

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

(c) Plants bearing Hhosts or which were capable of bearing Hhosts within the previous 60 days, shall be certified for movement only if placed under compliance by an authorized representative of the Department or USDA-APHIS-PPQ has conducted an inspection and certified that all Hhosts have been removed in accordance with Rule paragraph 5B-66.006(1)(c), F.A.C., and that any soil attached to the Hhost 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, effective December 13, 1991], or a Special Local Need product as authorized by FIFRA, Section 24(c) [(7 U.S.C. 136 v, effective October 25, 1988] that are labeled as effective for Ffruit fly control. These federal The sections of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) referenced above are incorporated by reference in Rule subparagraph 5B-664.004(6)(b)1., F.A.C. All treatments must be monitored by conducted under the supervision of an authorized representative of the Department or USDA-APHIS-PPQ or pursuant to a compliance agreement as provided in Rule subsection 5B-66.004(1), F.A.C.

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 12-8-11,

Amended          .

 

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

All Hhosts or Rregulated 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 Iinfested and:

(1) Shall be confiscated, held, and destroyed by the Department at the expense of the vendor or person having possession of the Hhosts or Rregulated articles upon issuance of a Hold Order and Quarantine Stop-Sale Notice and Hold Order, FDACS-08016, Rev. 02/15 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 Hhosts or Rregulated articles pursuant to an Agreement fFor Treatment, Destruction, Forfeiture oOr Return of Plants and/or Plant Parts, FDACS-08029, Rev. 09/16 04/08, as incorporated in Rule 5B-3.0038, F.A.C.

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 12-8-11, Amended      .

 

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

(1) Treatment areas and treatment procedures to eradicate a Ffruit fly infestation will be dependent on the species, life-stages and numbers of Ffruit flies detected and the geographical area affected by the Ffruit 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 Rule 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, effective December 13, 1991], or a Special Local Need product as authorized by FIFRA, Section 24(c) [(7 U.S.C. 136v, effective October 25, 1988] that are labeled as effective for Ffruit fly control. These federal The sections of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) referenced above are incorporated by reference in Rule subparagraph 5B-66.004(6)(b)1., F.A.C.

(b) No change.

(c) The removal and disposal of all Hhosts or Regulated articles within 200 meters of a larva or gravid female detection site known or suspected to harbor any stage of the Ffruit fly species detected;

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

(d)(e) The placement of traps;

(e)(f) The release of sterile Ffruit 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, provided to affected industry groups, and published on the Department’s website at http://www.FDACS.gov freshfromflorida.com/PI.

(a) No change.

(b) When two adult Ffruit 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 a minimum 1.5-mile arc established and shall be a minimum 9-square mile area around a positive site.

(c) If a larva is detected, in addition to Rule paragraph 5B-66.006(1)(b) above, the soil under the canopy of all Hhost 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, effective December 13, 1991], or a Special Local Need product as authorized by FIFRA, Section 24(c) [(7 U.S.C. 136 v, effective October 25, 1988] that are labeled as effective for Ffruit fly control. These federal The sections of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) referenced above are incorporated by reference in Rule subparagraph 5B-664.004(6)(b)1., F.A.C.  All Hhosts shall be removed within a 200 meter 660-foot radius of the positive site by the Department or the USDA-APHIS-PPQ.

(3) No change.

(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, notice will be provided to affected industry groups, and published on the Department’s website at http://www.FDACS.gov freshfromflorida.com/PI. 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) No change.

(c) Beekeepers in the treatment area will be notified at least 24 hours in advance of any chemical applications.

(d) through (f) No change.

(5) Declaration of Eradication. Following the completion of all treatments, eradication shall be declared when no Ffruit fly is detected after a period of a minimum of two Ffruit fly life cycles. The Department shall publish notice of the Declaration of Eradication in a major newspaper of general distribution in the quarantine area, provided to affected industry groups, and published on the Department’s website at http://www.FDACS.gov freshfromflorida.com/PI.

(6) No change.

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 12-8-11, Amended       .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Dr. Trevor Smith, Division Director

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Nicole “Nikki” Fried, Commissioner of Agriculture

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 08, 2021

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: April 12, 2021