Federal Register, Volume 73 Issue 117 (Tuesday, June 17, 2008)

[Federal Register Volume 73, Number 117 (Tuesday, June 17, 2008)]
[Proposed Rules]
[Pages 34202-34224]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-13480]

========================================================================
Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 /
Proposed Rules

[[Page 34202]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 305 and 318

[Docket No. APHIS-2007-0052]
RIN 0579-AC70

Revision of the Hawaiian and Territorial Fruits and Vegetables
Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We are proposing to revise and reorganize the regulations
pertaining to the interstate movement of fruits and vegetables from
Hawaii and the territories to consolidate requirements of general
applicability and eliminate redundant requirements, update terms and
remove outdated requirements and references, and make various editorial
and nonsubstantive changes to the regulations to make them easier to
use. We are also proposing to make substantive changes to the
regulations including establishing criteria within the regulations
that, if met, would allow us to approve certain new fruits and
vegetables for interstate movement in the United States and to
acknowledge pest-free areas in Hawaii and U.S. territories
expeditiously, and removing the listing in the regulations of some
specific commodities as regulated articles. These changes are intended
to simplify and expedite our processes for approving certain regulated
articles for interstate movement and pest-free areas while continuing
to allow for public participation in the processes. This proposal, if
adopted, would not allow for the interstate movement of any specific
new fruits or vegetables, nor would it alter the conditions for
interstate movement of currently approved fruits or vegetables. These
proposed changes would make our domestic interstate movement
regulations more consistent with our fruits and vegetables import
regulations. The proposed changes would not alter the manner in which
the risk associated with a regulated article interstate movement
request is evaluated, nor would it alter the manner in which those
risks are ultimately mitigated.

DATES: We will consider all comments that we receive on or before
August 18, 2008.

ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://
www.regulations.gov/fdmspublic/component/
main?main=DocketDetail&d=APHIS-2007-0052 to submit or view comments and
to view supporting and related materials available electronically.
Postal Mail/Commercial Delivery: Please send two copies of
your comment to Docket No. APHIS-2007-0052, Regulatory Analysis and
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118,
Riverdale, MD 20737-1238. Please state that your comment refers to
Docket No. APHIS-2007-0052.
Reading Room: You may read any comments that we receive on this
docket in our reading room. The reading room is located in room 1141 of
the USDA South Building, 14th Street and Independence Avenue, SW.,
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m.,
Monday through Friday, except holidays. To be sure someone is there to
help you, please call (202) 690-2817 before coming.
Other Information: Additional information about APHIS and its
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. David Lamb, Import Specialist,
Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road
Unit 133, Riverdale, MD 20737-1231; (301) 734-8758.

SUPPLEMENTARY INFORMATION:

Background

Under the regulations in 7 CFR part 318, ``Hawaiian and Territorial
Quarantine Notices'' (referred to below as the regulations), the Animal
and Plant Health Inspection Service (APHIS) of the U.S. Department of
Agriculture (USDA or the Department) prohibits or restricts the
interstate movement of fruits, vegetables, and other products from
Hawaii, Puerto Rico, the U.S. Virgin Islands, and Guam to the
continental United States to prevent the spread of plant pests and
noxious weeds that occur in Hawaii and the territories.
We are proposing to revise and reorganize those portions of the
regulations pertaining to the interstate movement of fruits and
vegetables to consolidate requirements of general applicability and
eliminate redundant requirements, update terms and remove outdated
requirements and references, and make various editorial and
nonsubstantive changes to the regulations to make them easier to use.
We are also proposing to make substantive changes to the regulations
including: Establishing criteria within the regulations that, if met,
would allow us to approve certain new fruits and vegetables for
interstate movement in the United States and to acknowledge pest-free
areas in Hawaii and U.S. territories expeditiously; and removing the
listing in the regulations of some specific commodities as regulated
articles. These changes are intended to simplify and expedite our
processes for approving certain regulated articles for interstate
movement and pest-free areas while continuing to allow for public
participation in the processes. This proposal, if adopted, would not
allow for the interstate movement of any specific new fruits or
vegetables, nor would it alter the conditions for interstate movement
of currently approved fruits or vegetables. These proposed changes
would make our domestic interstate movement regulations more consistent
with our fruits and vegetables import regulations. The proposed changes
would not alter the manner in which the risk associated with a
regulated article's interstate movement request is evaluated, nor would
it alter the manner in which the risk is ultimately mitigated.

The Current Regulations

Currently, the regulations prohibit the interstate movement of
fruits, vegetables, and other products from Hawaii, Puerto Rico, the
U.S. Virgin Islands, and Guam into the continental United States or any
other territory or possession of the United States unless the
regulations specifically allow the interstate movement of the
particular fruit, vegetable, or product.

[[Page 34203]]

The regulations are divided into five subparts: Hawaiian Fruits,
Vegetables, and Flowers (Sec. Sec. 318.13 through 318.13-17);
Territorial Cotton, Cottonseed, and Cottonseed Products (Sec. Sec.
318.47 through 318.47-4); Fruits and Vegetables From Puerto Rico or the
Virgin Islands (Sec. Sec. 318.58 through 318.58-16); Sand, Soil, or
Earth, with Plants From Territories and Districts (Sec. 318.60); and
Guam (Sec. Sec. 318.82 through 318.82-3). For the purposes of this
proposal, we will focus on three of those subparts: Hawaiian Fruits,
Vegetables, and Flowers; Fruits and Vegetables From Puerto Rico or the
Virgin Islands; and Guam. The Territorial Cotton, Cottonseed, and
Cottonseed Products subpart and Sand, Soil, or Earth, with Plants From
Territories and Districts subpart are not addressed in this proposal.
Of the three subparts that are the focus of this proposal, each
subpart contains a list of regulated articles from each State or
territory, requirements of general applicability, as well as specific
requirements regarding certain regulated articles.
As a condition of interstate movement under the regulations, all
approved fruits, vegetables, and other products are subject to some
type of restriction to ensure that the regulated article does not act
as a pathway for the dissemination of plant pests or noxious weeds
within the United States. These restrictions are known as phytosanitary
measures, and include any activities that have the effect of reducing
the plant pest risk posed by a fruit, vegetable, or other product.
Typically, certain products may be moved interstate if the movement
is authorized by a limited permit or a valid certificate issued on the
basis of inspection and verification of pest freedom or on the basis of
treatment. These requirements are considered applicable to the
interstate movement of all commodities. A partial list of the
commodities that may be moved interstate from Hawaii and from Puerto
Rico or the U.S. Virgin Islands under these conditions may be found in
Sec. Sec. 318.13-2 and 318.58-2, respectively. Certain other fruits,
vegetables, or products must meet additional requirements to be
eligible for movement, including distribution restrictions, packing
requirements, and other measures determined to be necessary to mitigate
the pest risk posed by the particular regulated article. Requirements
for the interstate movement of these commodities can be found in ((
318.13-4b through 318.13-4j and Sec. Sec. 318.58-4a through 318.58-4c.

Proposed Revisions

Reorganization of the Regulations and Consolidation of Similar
Provisions
The Hawaii subpart and the Puerto Rico and U.S. Virgin Islands
subpart are constructed in a similar manner and, with the exception of
commodity-specific sections, each subpart contains the following 17
sections that can be applied to all commodities moving interstate from
those areas:
Notice of quarantine;
Definitions;
Conditions of movement;
Conditions governing the issuance of certificates or
limited permits;
Application for inspection;
Container marking and identity;
Products as ships' stores or in the possession of
passengers or crew;
Articles and persons subject to inspection;
Inspection of means of conveyance;
Inspection of baggage, other personal effects, and cargo;
Disinfection of means of conveyance;
Posting of warning notice and distribution of baggage
declarations;
Movement by the U.S. Department of Agriculture;
Parcel post inspection;
Costs and charges;
Withdrawal of certificates, transit permits, limited
permits, or compliance agreements; and
Transit of fruits and vegetables from Hawaii or the
territories into or through the United States.
With the exception of the provisions regarding the posting of
warning notices and distribution of baggage declarations, which appear
only in the Hawaii subpart, there is little to no variation between the
subparts in these 17 sections; any differences are more editorial then
substantive. Each subpart also contains commodity-specific instructions
for the movement of certain regulated articles. As explained later in
this document, if this proposal is adopted, all of those sections would
be removed from or relocated in the regulations. (See ``Regulated
Article-Specific Provisions'' section later in this document.) While
the interstate movement of regulated articles from Guam is covered
within the scope of the Guam subpart, that subpart is outdated and most
interstate movement requirements for Guam are not accurately reflected
in the subpart.
We are proposing to reorganize the regulations by combining the
three Hawaiian and territorial subparts into one single subpart,
``Regulated Articles From Hawaii and the Territories'' (Sec. Sec.
318.13-1 through 318.13-25). In doing so, we would consolidate the
generally applicable provisions that now appear in each subpart. We
would also explicitly include the Commonwealth of the Northern Mariana
Islands (CNMI) within the scope of the regulations and update the
regulations to reflect administrative and procedural processes that
have been modified or established since we last updated the
regulations.
In some cases, we would make no changes to the content of the
current sections, but simply change their paragraph and section
designations. In other cases, we would amend the text to make the
regulations easier to understand, to correct errors, or to update them
to reflect current APHIS operating procedures.
In order to facilitate review of this proposal, which, if adopted,
would relocate all current provisions to new sections within the
regulations, we have prepared a cross-reference table that links the
current provisions with the proposed provisions. The cross-reference
document may be viewed on the Regulations.gov Web site (see ADDRESSES
above for instructions for accessing Regulations.gov) and may be
obtained by contacting the person listed under FOR FURTHER INFORMATION
CONTACT. The cross-reference document may also be viewed in our reading
room (information on the location and hours of the reading room is
provided under the heading ADDRESSES at the beginning of this proposed
rule).

Section-by-Section Discussion of Additional Amendments

Additional proposed amendments to the regulations are discussed
below, by proposed section.

Notice of Quarantine (Proposed Sec. 318.13-1)

Proposed Sec. 318.13-1 describes the authority held by the
Secretary of Agriculture to regulate the interstate movement of fruits,
vegetables, and other regulated articles.\1\ Proposed Sec. 318.13-1
would continue to prohibit the interstate movement of fruits and
vegetables and associate plants and portions of plants and other
regulated articles except as provided in the Hawaii and territorial
quarantine regulations or elsewhere in part 318. These proposed
provisions were all drawn from and are consistent with those found in
the existing Hawaiian and territorial subparts.
---------------------------------------------------------------------------

\1\ The Secretary of Agriculture has delegated authority for the
formulation, direction, and supervision of APHIS policies, programs,
and activities to the Administrator of APHIS.

---------------------------------------------------------------------------

[[Page 34204]]

Definitions (Proposed Sec. 318.13-2)

Proposed Sec. 318.13-2 contains definitions of terms used in the
subpart. All the terms and their definitions were drawn from the
existing Hawaiian and territorial subparts; however, we are proposing
to make some substantive changes, including revising, adding, and
removing certain definitions. Specifically, we are proposing to revise
definitions for fruits and vegetables, interstate, and person. These
new definitions would clarify the meaning of those terms in the context
of the revised regulations.
We are also proposing to add definitions for approved growing
media, lot, regulated article, and soil. We are proposing to replace
the current definition of certificate with a definition for
certification. As explained later in this document under the section
titled ``General Requirements for All Regulated Articles (Proposed
Sec. 318.13-3),'' the term certification more accurately reflects
current operating procedures. We are proposing to replace the current
definition of commercial shipment with a definition of commercial
consignment in order to eliminate confusion over what constitutes a
``shipment.'' We are also proposing to replace the current definition
of plant litter with a definition of plant debris in order to provide
the most up-to-date term. All new and revised definitions may be found
in Sec. 318.13-2 in the regulatory text at the end of this document.
We are proposing to remove the definitions for administrative
instructions; cactus plants; cereals; cotton and cotton covers; mango
seeds; rice straw; seeds; State, territory, or district of the United
States; and sugarcane or parts or by-products thereof because these
terms are not used in the proposed new subpart.

General Requirements for All Regulated Articles (Proposed Sec. 318.13-
3)

As explained earlier in this document, we are proposing to
consolidate all existing general requirements for the interstate
movement of regulated articles into Sec. 318.13-3. These requirements
include provisions that pertain to:
Freedom of regulated articles from plant debris;
Certification;
Limited permits;
Compliance agreements;
Withdrawal of certification, transit permits, limited
permits, or compliance agreements;
Container marking and identity;
Refusal of entry;
Costs and charges; and
Responsibility for damage arising from quarantine actions
or procedures.
The current provisions for these requirements are contained in
Sec. Sec. 318.13 through 318.13-4, Sec. Sec. 318.13-5 through 318.13-
17, Sec. Sec. 318.58 through 318.58-4, Sec. Sec. 318.58-5 through
318.58-16, Sec. 318.82-2, and Sec. 318.82-3. In consolidating those
provisions into a single section, we would set out the general
requirements as follows:
Freedom From Plant Debris
Proposed Sec. 318.13-3(a) would require that fruits and vegetables
moved interstate from Hawaii, Puerto Rico, the U.S. Virgin Islands,
CNMI, or Guam must be free from plant debris. These proposed provisions
are drawn from and are consistent with those found in the existing
Hawaiian and territorial subparts.
Certification
Proposed Sec. 318.13-3(b) contains provisions under which
certificates or limited permits may be issued for the movement of
regulated articles under certain conditions. These proposed provisions
were drawn from and are consistent with the provisions that appear in
the corresponding sections of each of the Hawaiian and territorial
subparts. However, while the regulations refer to the issuance of
certificates, APHIS inspectors do not issue certificates, but rather
stamp shipping boxes and/or containers or accompanying documents with a
release stamp as a verification of certification. Therefore, we are
proposing to amend the regulations by removing all references to
issuing certificates, and we would instead use the term certification.
Limited Permits
Proposed Sec. 318.13-3(c) contains provisions for the issuance of
limited permits. These proposed provisions were drawn from and are
consistent with the provisions that appear in the corresponding
sections of each of the Hawaiian and territorial subparts.
Compliance Agreements
Proposed Sec. 318.13-3(d) contains provisions for entering into
compliance agreements with APHIS. These provisions were drawn from and
are consistent with the provisions that appear in the corresponding
sections of each of the Hawaiian and territorial subparts. We are also
proposing to require persons wishing to move fruits and vegetables
interstate under certain approved notice-based measures to enter into a
compliance agreement with APHIS. Specifically, we would require
compliance agreements for persons wishing to move fruits and vegetables
from fruit fly-free areas, in commercial consignments, or with
inspection in the State of origin. The compliance agreement would help
APHIS to trace back consignments should problems occur with the
shipment as well as to monitor the establishment in which the fruits
and vegetables are grown, packed, and otherwise processed.
Attachment of Limited Permit or Verification of Certification
Proposed Sec. 318.13-3(e) contains provisions pertaining to the
attachment of certification and limited permits. These provisions were
drawn from and are consistent with the provisions that appear in the
corresponding sections of each of the Hawaiian and territorial
subparts.
Withdrawal of Transit Permits, Limited Permits, or Compliance
Agreements
Proposed Sec. 318.13-3(f) contains conditions under which APHIS
will withdraw certification, transit permits, limited permits, or
compliance agreements. These provisions were drawn from and are
consistent with the provisions that appear in the corresponding
sections of each of the Hawaiian and territorial subparts.
Container Marking and Identity
Proposed Sec. 318.13-3(g) contains provisions regarding container
marking and identity. These provisions were drawn from and are
consistent with the provisions that appear in the corresponding
sections of each of the Hawaiian and territorial subparts.
Refusal of Entry
Proposed Sec. 318.13-3(h) explains conditions under which APHIS
would refuse entry of a regulated article. Specifically, paragraph (h)
provides that if an inspector finds that a regulated article is
prohibited, or is not accompanied by required documentation, or is so
infested with a plant pest or noxious weed that, in the judgment of the
inspector, it cannot be cleaned or treated, or contains soil or other
prohibited contaminants, the entire lot or consignment may be refused
movement elsewhere in the United States. This change would clearly
state our existing authority in the regulations and would not affect
program operations in any way.
Costs and Charges for APHIS Services
Proposed Sec. 318.13-3(i) contains provisions related to costs and
charges for APHIS services. These provisions were drawn from and are
consistent

[[Page 34205]]

with the provisions that appear in the corresponding sections of each
of the Hawaiian and territorial subparts.
APHIS Not Responsible for Damage
Proposed Sec. 318.13-3(j) contains provisions pertaining to
responsibility for damages to regulated articles resulting from
required treatments. These provisions were drawn from and are
consistent with the provisions that appear in the corresponding
sections of each of the Hawaiian and territorial subparts.

Approval of Certain Fruits and Vegetables for Interstate Movement
(Proposed Sec. 318.13-4)

Under our current process, in order for a fruit or vegetable to be
approved for interstate movement from Hawaii, Puerto Rico, Guam, the
U.S. Virgin Islands, the Commonwealth of Northern Mariana Islands, or
any other territory or possession of the United States, APHIS, after
receiving the movement request from a State or territory, first gathers
information on the fruit or vegetable and then performs a pest risk
analysis. The pest risk analysis usually contains two main components:
(1) A risk assessment, to determine what pests of quarantine
significance are associated with the fruit or vegetable and which of
those are likely to follow the import pathway, and (2) a risk
management analysis, to identify phytosanitary measures that could be
applied to the fruit or vegetable and evaluate the potential
effectiveness of those measures. When the risk analysis is complete,
APHIS may then propose to allow the interstate movement of the fruit or
vegetable through a proposed rule published in the Federal Register.
Following its evaluation of public comments on the proposal and any
other supporting documentation, APHIS may then issue a final rule that
specifically lists the fruit or vegetable, and any applicable
phytosanitary measures, in the regulations. The results of a pest risk
analysis may also reveal that the risks posed by a fruit or vegetable
cannot be sufficiently mitigated for a variety of reasons, and such
movement continues to be prohibited. The current process for approving
new commodities for interstate movement takes a significant period of
time, ranging on average from 18 months to over 3 years (beginning with
the initial request and ending with the publication of a final rule).
In a final rule published on July 18, 2007 (72 FR 39482-39528,
Docket No. APHIS-2005-0106) and effective on August 17, 2007, we
established a performance-based process for approving the importation
of commodities that, based on the findings of a pest risk analysis, can
be safely imported subject to one or more of the designated
phytosanitary measures listed in Sec. 319.56-4(b) of the regulations.
These measures are:
The fruits or vegetables are subject to inspection upon
arrival in the United States and comply with all applicable provisions
of Sec. 319.56-3;
The fruits or vegetables are imported from a pest-free
area in the country of origin that meets the requirements of Sec.
319.56-5 for freedom from that pest and are accompanied by a
phytosanitary certificate stating that the fruits or vegetables
originated in a pest-free area in the country of origin;
The fruits or vegetables are treated in accordance with 7
CFR part 305;
The fruits or vegetables are inspected in the country of
origin by an inspector or an official of the national plant protection
organization of the exporting country, and have been found free of one
or more specific quarantine pests identified by the risk analysis as
likely to follow the import pathway; and/or
The fruits or vegetables are imported as commercial
consignments only.
In response to comments received on our proposed rule that preceded
the July 2007 final rule, and in order to make our domestic regulations
consistent with our import regulations, we are proposing to establish a
similar regulatory approach that would allow APHIS to approve or reject
certain fruits and vegetables for interstate movement from Hawaii and
the territories. The process, which would be codified in proposed Sec.
318.13-4, would entail the publication of notices in the Federal
Register to advise the public of the findings of pest risk analyses and
invite comment on those analyses prior to authorizing the interstate
movement of any fruit or vegetable. The proposed measures, which are
referred to as ``designated measures'' elsewhere in this document,
would be similar, but not identical to those which are located in Sec.
319.56-4, given that the proposed designated measures have been
modified to account for the differences between interstate movement and
importation. For example, in the current Hawaii/territorial
regulations, inspectors must certify consignments through inspection or
treatment before consignments may move interstate. Therefore, we have
included certification as part of two designated measures--treatment
and inspection in the State of origin. Also, Sec. 319.56-4 lists
inspection upon arrival in the United States as a designated measure
for imports. In proposed Sec. 318.13-4 we require that the inspection
take place in the State of first arrival, which more accurately
reflects the fact that the consignment is already in commerce in the
United States. In Sec. 319.56-4, inspection in the country of origin
by an inspector or an official of the national plant protection
organization (NPPO) of the exporting country is listed as a designated
measure, while this proposed rule would provide that inspection and
certification take place in the State of origin by an inspector. The
inspector could be a State agricultural inspector or an individual
authorized by APHIS or the Department of Homeland Security. Finally,
Sec. 319.56-4 provides that fruits or vegetables coming from approved
pest-free areas be accompanied by a phytosanitary certificate. States
do not issue phytosanitary certificates, nor do they issue any
comparable document; therefore, the proposed equivalent measure would
not provide for the issuance of additional documentation for
consignments moving from pest-free areas. The proposed designated
measures are as follows:
Inspection in the first State of arrival and subject to
other general requirements of proposed Sec. 318.13-3.
Origination from a pest-free area in the State of origin
in accordance with proposed Sec. 318.13-5.
Treatment in accordance with part 305 and certification of
applied treatment for pest(s).
Commercial consignments only.
Inspection and certification that the fruit or vegetable
is pest free in the State of origin by an inspector.
This proposed process for approving interstate movement would apply
only to fruits and vegetables, not propagative material or other
products (i.e., cut flowers, seeds, etc.) that are regulated under 7
CFR part 318. Further, the proposed process would apply only to those
fruits and vegetables that, based on the findings of risk analysis, we
determine can be safely moved subject to one or more of the designated
measures.
We believe the proposed process would measurably speed up the
evaluation and approval or denial of requests for interstate movement
of fruits and vegetables, while continuing to provide opportunity for
public analysis of and comment on the evidence used in our evaluation
of the potential pest risks associated with the fruit or vegetable.
In addition to the phytosanitary measures added to the regulations
for the notice-based approach in the July

[[Page 34206]]

2007 final rule, we have evaluated one additional measure, limited
distribution, for the notice-based process in this proposal. Limited
distribution would be applied if the results of the pest risk analysis
indicated that the risk of introducing specific pests of concern could
be mitigated by limiting the geographical area within which the fruit
or vegetable could be moved interstate. For example, based on the
quarantine pest(s) identified, a pest risk analysis may determine that
a mitigation measure should be to limit distribution of the fruit or
vegetable to Alaska because the climate there would not be conducive
for the particular pest's establishment. There are also box marking
requirements that are associated with this measure to ensure that
consignments are not misdirected. Using the previous example, we would
require the shipping containers be marked as ``For Distribution in
Alaska Only.''
We have determined that limited distribution has a good track
record of efficacy when used in combination with one or more of the
other proposed designated measures. There are a number of regulated
articles that currently move from Hawaii under distribution limitations
(e.g., litchi and longan may not be moved interstate into Florida, and
avocados may only be moved interstate to Alaska). Therefore, we are
proposing to include this measure in the list of designated measures in
this proposed rule.
The interstate movement of fruits and vegetables that require
additional phytosanitary measures beyond one or more of the designated
measures cited above would continue to be authorized through specific
prior rulemaking. For ease of discussion in this document, we refer to
the proposed streamlined process as the ``notice-based process'' and
the existing process as the ``rulemaking-based process.'' Note that the
determination as to which process to follow (rulemaking or the notice-
based process) would be based exclusively on the conclusions of a risk
analysis.
Using the proposed notice-based process, when APHIS receives a
request from a State Department of Agriculture to allow interstate
movement of an additional fruit or vegetable, it would gather
information on the fruit or vegetable and conduct a pest risk
assessment. When the assessment is complete, if quarantine pests are
associated with the fruit or vegetable in the State of origin,\2\ we
would evaluate whether the risk posed by each quarantine pest can be
mitigated by one or more of the designated measures cited previously in
this document.\3\ If the designated measures alone are not sufficient
to mitigate the risk posed by the fruit or vegetable--i.e., if
additional risk mitigation is required beyond one or more of the
designated phytosanitary measures--any further action on approving the
fruit or vegetable for interstate would be undertaken using the
rulemaking-based process for authorizing new fruits and vegetables for
interstate movement. However, if APHIS determines in a risk management
analysis that the risk posed by each identified quarantine pest
associated with the fruit or vegetable in the State of origin can be
mitigated by one or more of the designated measures, our findings would
be communicated using the notice-based process; APHIS would publish in
the Federal Register, for a public comment period of a minimum of 60
days, a notice announcing the availability of the pest risk analysis.
Each pest risk analysis made available for public comment will specify
which of the designated phytosanitary measures would be required to be
applied by APHIS.
---------------------------------------------------------------------------

\2\ Risk analyses could consider a State or territory, part of a
State or territory, or all or parts of several States or
territories.
\3\ If no quarantine pests are identified in the pest risk
analysis as likely to follow the pathway, a detailed risk management
analysis would likely not be performed, but the interstate movement
of the commodity would still be subject to the general requirements
of proposed Sec. 318.13-3.
---------------------------------------------------------------------------

Under the notice-based process, APHIS would evaluate the comments
we received in response to our notice of availability of the risk
analysis. In the event that we receive no comments, or in the event
that commenters do not provide APHIS with information that shows that
the conclusions of the pest risk analysis are incorrect and that
changes to the pest risk analysis are necessary, APHIS would then
publish another notice in the Federal Register announcing that the
Administrator has determined that, based on the information available,
the application of one or more of the designated measures described
above (and as specified in a given pest risk analysis) is sufficient to
mitigate the risk that plant pests or noxious weeds could be introduced
into or disseminated within the United States via the moved fruit or
vegetable. APHIS would also respond to all substantive comments
received on the initial notice in this second notice. APHIS would begin
allowing the interstate movement of the particular fruit or vegetable,
subject to the conditions described in the pest risk analysis,
beginning on the date the Federal Register notice is published.
In the event that commenters provide APHIS with information that
shows that changes to the pest risk analysis are necessary, and if the
changes made affect the conclusions of the analysis (i.e., that the
application of the identified phytosanitary measures will not be
sufficient to mitigate the risk posed by the identified pests), APHIS
would proceed as follows:
If additional phytosanitary measures beyond the designated
measures described earlier in this document are determined to be
necessary to mitigate the risk posed by the particular fruit or
vegetable, any further action on the fruit or vegetable would follow
the rulemaking-based process.
If additional risk mitigation measures beyond those
evaluated in the pest risk analysis are determined to be necessary, but
the added measures still only include one or more of the designated
measures described earlier in this document, APHIS may publish another
notice announcing that the Administrator has determined that the
application of one or more of the designated measures will be
sufficient to mitigate the risk that plant pests or noxious weeds could
be disseminated within the United States via the interstate movement of
the fruit or vegetable. The notice would explain the additional
mitigation measures that will be required for the interstate movement
of the fruit or vegetable to be authorized and how APHIS made its
determination. APHIS would begin allowing the interstate movement for
the particular fruit or vegetable, subject to the conditions described
in the revised pest risk analysis, beginning on the date specified in
the Federal Register notice. Alternately, if APHIS believes that the
revisions to the pest risk analysis are substantial, and that there may
be continued uncertainty as to whether the designated measures are
sufficient to mitigate the risk posed by the fruit or vegetable, APHIS
may elect to make the revised risk analysis available for public
comment via a notice in the Federal Register, or may make any further
action on approving the fruit or vegetable for interstate movement
subject to rulemaking.
Note that APHIS does not set policy or regulatory requirements
based on issues of economic competitiveness; our authority is tied to
pest risk, and therefore our decisionmaking is based on an analysis of
risk. While the proposed process would not preclude

[[Page 34207]]

the submission of comments regarding issues unrelated to risk, comments
on issues such as economic competitiveness (e.g., comments that the
proposed fruit or vegetable movement would result in decreased sales
for continental U.S. producers of the same fruit or vegetable) would
not merit a detailed response by APHIS. This proposal would allow APHIS
to focus public discussion on the analysis of pest risk, which is the
primary basis for our decisionmaking. We believe this policy is
consistent with the provisions of the Plant Protection Act.
The notice-based process would employ the use of Federal Register
notices to communicate APHIS's consideration and approval or denial of
requests that were previously only approved via rulemaking. As
described above, Federal Register notices would be used to announce the
availability of pest risk analyses for public comment. Federal Register
notices would also be used to announce when the Administrator has
determined that a particular fruit or vegetable that has been subject
to risk analysis and public comment can, based on the findings of pest
risk analysis, be approved for interstate movement in the United
States. These notices would make clear the conditions under which such
movement could occur, and would state that APHIS will immediately begin
allowing the interstate movement of the fruit or vegetable. As
described later in this document, these notices would also be used to
make available any documentation of our consideration of the potential
effects of the interstate movement of a fruit or vegetable on the
environment, as required under the National Environmental Policy Act,
as well as any other analyses determined by APHIS to be necessary under
other Federal statutes, such as the Endangered Species Act.
If the notice-based process is adopted for use by APHIS, we would
not list commodities approved under this approach in the regulations,
though such commodities would be listed in APHIS' Hawaii/CNMI and
Puerto Rico/U.S. Virgin Islands fruits and vegetables manuals \4\ and
the documentation supporting their approval would be made available on
the Internet; we also would remove from the regulations those listed
commodities that are currently approved for interstate movement subject
only to one or more of the designated measures described earlier in
this document. Consequently, we would remove the lists of commodities
contained in current Sec. Sec. 318.13-2, 318.13-4b, 318.13-4f, and
318.58-2 and the provisions in Sec. 318.58-4b, ``Irradiation treatment
of regulated articles from Puerto Rico and the U.S. Virgin Islands,''
and Sec. 318.13-4c, ``Administrative instructions approving methyl
bromide fumigation as a condition for certification of tomatoes for
movement from Hawaii.''
---------------------------------------------------------------------------

\4\ Currently, APHIS does not maintain a fruits and vegetables
manual for Guam because there are no regulated articles being moved
from Guam (see proposed Sec. 318.13-17 ``Regulated articles from
Guam''). If as a result of this proposed rule, it becomes necessary
to maintain a list of fruits and vegetables from Guam outside of the
regulations, APHIS would list such information on the PPQ Internet
Web site.
---------------------------------------------------------------------------

We recognize that removing a large number of commodities from the
regulations may cause some confusion as to whether a particular fruit
or vegetable is approved for interstate movement in the United States,
and under what conditions. However, for many years, APHIS has
maintained Hawaii/CNMI and Puerto Rico/U.S. Virgin Islands fruits and
vegetables manuals that were designed to be a hands-on reference for
our inspectors. The manuals are a complete reference for all fruits and
vegetables approved for interstate movement from those States and may
be viewed on the APHIS Web site at http://www.aphis.usda.gov/import_
export/plants/manuals/ports/downloads/hawaii.pdf and http://
www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/
puerto_rico.pdf. These manuals are frequently used by shippers and
other interested persons, in addition to APHIS personnel.
Under this proposal, commodities that have been authorized for
interstate movement under the provisions of Sec. 318.13-4 would be
added to the manuals for their State or territory of origin, but not
the regulations. Furthermore, the manual would list those designated
measures that apply to each of those commodities. We also plan to
incorporate commodities that have been approved for interstate movement
into a searchable database at some point in the future. We are
currently developing a database for commodities in our imported fruits
and vegetables manual. The new database will allow interested persons
to search by regulated article or by country, and will list clearly the
conditions that apply to each particular regulated article from a
specified country. We envision the database as a comprehensive source
for all types of users--inspectors, importers, shippers, and other
members of the public.
We would also include in proposed Sec. 318.13-4 provisions that
would allow APHIS to amend interstate movement requirements or withdraw
approval of particular commodities whose movement is approved under
Sec. 318.13-4. Specifically, APHIS could amend interstate movement
requirements if we determine that the currently assigned designated
phytosanitary measures are not sufficient to mitigate the risk posed by
the particular fruit or vegetable. This could occur due to
interceptions of new pests in moved fruits or vegetables or evidence of
other risks. Under this provision, APHIS would announce that it was
prohibiting or further restricting the interstate movement of the
particular fruit or vegetable by publishing a notice in the Federal
Register. In such cases, APHIS would take immediate action as
appropriate at ports of entry, and would follow such action as quickly
as practicable with notice in the Federal Register. The notice would
specify the amended interstate movement requirements, provide an
effective date for the change, and would invite public comment on the
subject. It is likely that most such actions would be effective
immediately, in order to address newly identified risks in a timely
fashion; however, if there is uncertainty as to the risk posed, APHIS
may request comment on a change in interstate movement requirements
prior to making such a change effective.

Pest-Free Areas (Proposed Sec. 318.13-5)

Currently, there are no provisions for establishing pest-free areas
for Hawaii, Puerto Rico, Guam, the U.S. Virgin Islands, or CNMI. In
this document, we are proposing to add a process for establishing pest-
free areas and would provide for pest-free areas to be recognized using
a notice-based approach. Proposed Sec. 318.13-5, paragraph (a) would
provide that APHIS would make a determination of an area's pest-free
status based on information provided by the State. The information
APHIS would use in its determination would include trapping and
surveillance data, survey protocols, and protocols for actions to be
taken upon discovery of a pest. If warranted, APHIS would publish a
notice in the Federal Register, making the information used to make the
determination available to the public and solicit comment for 60 days.
Following the comment period, if appropriate, APHIS would begin
allowing movement of the regulated article from the pest-free area
without mitigations for the particular pest because:
1. No comments were received on the notice or
2. The comments on the notice did not affect the overall
conclusions of the

[[Page 34208]]

notice and the Administrator's determination of risk.
A comprehensive list of pest-free areas would be made available by
APHIS on the Internet, but no such list would be contained in the
regulations. Rather, the regulations would simply identify the
standards an area must meet to be considered pest free, as shown in
proposed Sec. 318.13-5.
In conjunction with this proposed change, we would also include a
provision in proposed Sec. 318.13-5 regarding how we would acknowledge
the decertification of pest-free areas. Specifically, paragraph (d) of
that section would provide that in the event of pest infestation in an
approved pest-free area, APHIS will publish in the Federal Register a
notice announcing that the pest-free status of the area in question has
been withdrawn, and that movement of host crops for the pest in
question are subject to additional mitigations, if any exist. If an
alternative mitigation for the pest is not available, the interstate
movement would be prohibited. In order for a decertified pest-free area
to be reinstated, a State would have to submit new information
supporting its pest-free status as discussed in paragraph (b) of this
section to be approved by APHIS.
Paragraph (e) would set forth general requirements for the
interstate movement of regulated articles from pest-free areas in
Hawaii, Puerto Rico, Guam, CNMI, or the U.S. Virgin Islands.
Specifically, paragraph (e) would provide that each box of fruits or
vegetables that is moved interstate from a pest-free area under this
subpart be labeled with the name of the orchard or grove or origin, or
the name of the grower; the name of the municipality and State or
territory in which the fruits or vegetables were produced; and the type
and amount of fruit the box contains. Paragraph (e) would further
provide that persons wishing to move fruits or vegetables from Hawaii,
Puerto Rico, Guam, CNMI, or the U.S. Virgin Islands enter into a
compliance agreement with APHIS in accordance with the provisions for
compliance agreements in Sec. 318.13-3(d). Finally, paragraph (e)
would require that fruits or vegetables moved from a pest-free area
into or through a non-free area be safeguarded during the time they are
present in a non-free area by insect-proof mesh screens or plastic
tarpaulins, including while in transit to the packinghouse and while
awaiting packaging. Further, we would require fruits or vegetables that
are moved through a non-free area during transit to a port to be packed
in insect-proof cartons or containers or be covered by insect-proof
mesh or plastic tarpaulins during transit to the port and subsequent
movement to the continental United States. These safeguards would
provide necessary protection of commodities moved interstate against
pest infestation while they are in transit through the United States
and are consistent with standard operating procedures of all current
programs for the export of fruits or vegetables from foreign pest-free
areas.

General Requirements

Transit of Regulated Articles From Hawaii or the Territories Into or
Through the Continental United States (Proposed Sec. 318.13-6)

Proposed Sec. 318.13-6 contains provisions for fruits and
vegetables from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, and
Guam to transit through the United States en route to another country.
These provisions were drawn from and are consistent with the provisions
that appear in the corresponding sections of each of the Hawaiian and
territorial subparts.

Products as Ships' Stores or in the Possession of Passengers or Crew
(Proposed Sec. 318.13-7)

Proposed Sec. 318.13-7 contains provisions for certain regulated
articles from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, and
Guam to be moved interstate as ships' stores or in the possession of
passengers and crew on ships. These provisions were drawn from and are
consistent with the provisions that appear in the corresponding
sections of each of the Hawaiian and territorial subparts.

Articles and Persons Subject to Inspection (Proposed Sec. 318.13-8)

Proposed Sec. 318.13-8 contains provisions related to the
inspection of persons, means of conveyance, baggage, cargo, and any
other articles destined for movement from Hawaii, Puerto Rico, the U.S.
Virgin Islands, CNMI, and Guam to a destination elsewhere in the United
States. These provisions were drawn from and are consistent with the
provisions that appear in the corresponding sections of each of the
Hawaiian and territorial subparts.

Inspection and Disinfection of Means of Conveyance (Proposed Sec.
318.13-9)

Proposed Sec. 318.13-9 contains provisions for inspecting aircraft
prior to departure from Hawaii, Puerto Rico, the U.S. Virgin Islands,
CNMI, and Guam; inspection of aircraft moving to Guam; and inspection
of ships upon arrival in the United States. Proposed Sec. 318.13-9
also contains provisions for disinfecting means of conveyance. These
provisions were drawn from and are consistent with the provisions that
appear in the corresponding sections of each of the Hawaiian and
territorial subparts.

Inspection of Baggage, Other Personal Effects, and Cargo (Proposed
Sec. 318.13-10)

Proposed Sec. 318.13-10 contains provisions for inspecting
aircraft passengers, aircraft crew, persons traveling to Guam, persons
traveling by ship as well as provisions for accepting baggage and
loading on aircraft, loading of certain cargoes, removing certain
cargoes in Guam, and providing space and facilities for baggage and
cargo inspection. These provisions were drawn from and are consistent
with the provisions that appear in the corresponding sections of each
of the Hawaiian and territorial subparts.

Posting of Warning Notice and Distribution of Baggage Declarations
(Proposed Sec. 318.13-11)

Proposed Sec. 318.13-11 contains provisions for distributing
baggage declarations to passengers on aircrafts, ships, vessels, or
other surface craft moving to Guam, CNMI, or American Samoa. In
addition, proposed Sec. 318.13-11 contains requirements for posting
warning notices directing attention to the regulations in the Hawaii
and territorial subparts on docks, harbors, or landing fields in
Hawaii, Puerto Rico, Guam, CNMI, or the U.S. Virgin Islands. These
provisions were drawn from and are consistent with the provisions that
appear in the corresponding section in the Hawaii subpart; except that
we are proposing to amend some of those provisions to reflect current
APHIS practices. Specifically, we are proposing to amend those
provisions to require that baggage declarations be distributed to
passengers on aircraft, ships, vessels, or other surface crafts moving
to Guam, CNMI, or American Samoa. Hawaii does not distribute baggage
declarations to passengers on all outgoing aircraft, ships, vessels, or
other surface crafts; therefore we are also proposing to remove those
requirements. Paragraph (b) of Sec. 318.13-12 of the current
regulations contains instructions for posting warning notices in docks,
harbors, or landing fields in Hawaii, which direct the passengers'
attention to the quarantine and regulations in 7 CFR part 318. We would
not include footnotes 5 and 6 in proposed Sec. 318.13-11 because the
footnotes reference form PPQ 232, which no longer exists.

[[Page 34209]]

Movement by the U.S. Department of Agriculture (Proposed Sec. 318.13-
12)

Proposed Sec. 318.13-12 contains provisions under which the USDA
may move articles whose interstate movement is otherwise prohibited or
restricted to move interstate from Hawaii, Puerto Rico, the U.S. Virgin
Islands, CNMI, or Guam. These provisions were drawn from and are
consistent with the provisions that appear in the corresponding
sections of each of the Hawaiian and territorial subparts.

Movement of Frozen Fruits and Vegetables (Proposed Sec. 318.13-13)

Proposed Sec. 318.13-13 provides conditions under which frozen
fruits and vegetables may be certified for interstate movement from
Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, or Guam. These
provisions were drawn from and are consistent with the provisions that
appear in the corresponding sections of each of the Hawaiian and
territorial subparts.

Movement of Processed Fruits, Vegetables, and Other Products (Proposed
Sec. 318.13-14)

The Hawaii/territorial fruits and vegetables manuals currently
place restrictions on the interstate movement of processed fruits,
vegetables, and other products from those areas; however, there are no
corresponding requirements in the regulations. In this document, we are
proposing to add general requirements regarding the interstate movement
of processed products from Hawaii, Puerto Rico, the U.S. Virgin
Islands, CNMI, and Guam in proposed Sec. 318.13-14. Specifically,
proposed Sec. 318.13-14(a) would provide that fruits, vegetables, and
other products that are processed sufficiently as to preclude the
survival of any live pests can be moved interstate from Hawaii, Puerto
Rico, the U.S. Virgin Islands, CNMI, and Guam. A listing of processed
products that are currently approved for interstate movement from those
States can be found in the Hawaii/territorial manuals. Proposed
paragraph (b) of this section provides that consignments of dried
fruits, vegetables, or other products that are capable of harboring
fruit flies will be subject to the same interstate movement conditions
that apply to the fruit or vegetable in its unprocessed state.

Parcel Post Inspection (Proposed Sec. 318.13-15)

Proposed Sec. 318.13-15 provides conditions under which inspectors
are authorized to inspect parcel post packages placed in the mail in
Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, or Guam. These
provisions were drawn from and are consistent with the provisions that
appear in the corresponding sections of each of the Hawaiian and
territorial subparts.

Regulated Articles Allowed Interstate Movement Subject to Specific
Conditions (Proposed Sec. 318.13-16)

Currently, the regulations contain provisions for interstate
movement of certain regulated articles from Hawaii, Puerto Rico, the
U.S. Virgin Islands, and Guam to other locations in the United States
subject to inspection and other requirements. As explained elsewhere in
this document, most such commodities would no longer be listed in the
regulations under this proposal. However, as also explained earlier in
this document, some commodities listed in the current regulations are
allowed interstate movement subject to additional measures beyond the
designated measures used in the notice-based process. We are proposing
to list those commodities, and any requirements that apply to their
interstate movement beyond the general requirements of Sec. 318.13-3,
in proposed Sec. 318.13-16. Such commodities would remain subject to
the same restrictions that currently apply to their interstate
movement. In some cases, restrictions that apply to the movement of
specific fruits, vegetables, and other products from Hawaii, Puerto
Rico, the U.S. Virgin Islands, CNMI, and Guam are contained in each
State's respective fruits and vegetables manual, but not in the
regulations. Consequently, we are proposing to add some commodities to
the regulations that are currently listed, along with applicable
movement restrictions, only in one of those manuals. A table with those
commodities and the location of their current interstate movement
requirements follows. See proposed Sec. 318.13-16 for a list of
commodities and applicable requirements. Authorization of additional
commodities subject to any of these additional measures or measures
other than the designated measures described earlier in this document
would continue to require prior specific rulemaking.

----------------------------------------------------------------------------------------------------------------
Location of current interstate
State of origin Common name Botanical name movement requirements
----------------------------------------------------------------------------------------------------------------
Hawaii....................... Bananas..................... Musa spp......... Hawaii/CNMI fruits and
vegetables manual (``Additional
fruits and vegetables approved
for movement from Hawaii to
Alaska only'' table on page 6-
13).
Edible flowers (Pot Calendula spp.... Hawaii/CNMI fruits and
marigold, johnny-jump-ups, vegetables manual (page 6-12).
pansies, and violets).
Pineapple................... Ananas comosus... Hawaii/CNMI fruits and
vegetables manual (page 6-12).
Puerto Rico.................. Cactus...................... Cactaceae........ Puerto Rico/U.S. Virgin Islands
fruits and vegetables manual
(table 7-3-19).
Okra........................ Abelmoschus Puerto Rico/U.S. Virgin Islands
escuelentus. fruits and vegetables manual
(tables 7-3-1 and 7-3-3).
Edible flowers (pot Calendula spp.... Puerto Rico/U.S. Virgin Islands
marigold, johnny-jump-ups, fruits and vegetables manual
pansies, and violets). (table 7-3-1).
U.S. Virgin Islands.......... Cactus...................... Cactaceae........ Puerto Rico/U.S. Virgin Islands
fruits and vegetables manual
(table 7-3-19) and Sec.
318.58-2(b)(3).
Okra........................ Abelmoschus Puerto Rico/U.S. Virgin Islands
escuelentus. fruits and vegetables manual
(tables 7-3-1 and 7-3-3).
Edible flowers (pot Calendula spp.... Puerto Rico/U.S. Virgin Islands
marigold, johnny-jump-ups, fruits and vegetables manual
pansies, and violets). (table 7-3-1).
----------------------------------------------------------------------------------------------------------------

[[Page 34210]]

Regulated Articles From Guam (Proposed Sec. 318.13-17)

Proposed Sec. 318.13-17 contains interstate movement requirements
that would apply specifically to regulated articles from Guam. These
provisions were drawn from and are consistent with the provisions that
appear in the Guam subpart; except that the reference to part 321 would
be removed because part 321, ``Restricted Entry Orders,'' has been
removed (see 62 FR 50237-50239, Docket No. 97-010-2).
Sections 318.13-18 through 318.13-20 would be reserved to provide
additional space in ``Subpart-Hawaiian and Territorial Quarantine
Notices'' for future amendments, should such amendments be needed.

Regulated Article-Specific Provisions (Proposed Sec. Sec. 318.13-21
through 318.13-25)

Sections 318.13-4a through 318.13-4j and Sec. Sec. 318.58-4a
through 318.58-4c contain restrictions on the movement of specific
commodities. As explained elsewhere in this document, a number of these
sections will be removed if this proposal is adopted. However, all or
part of the following sections would be retained under this proposal:
Sec. 318.13-4d, ``Vapor heat treatment of sweetpotatoes
from Hawaii.''
Sec. 318.13-4g, ``Administrative instructions governing
movement of avocados from Hawaii to Alaska.''
Sec. 318.13-4i, ``Conditions governing the movement of
bananas from Hawaii.''
Sec. 318.13-4j, ``Administrative instructions governing
the interstate movement of cut blooms of gardenia from Hawaii.''
Sec. 318.58-4c, ``Movement of sweetpotatoes from Puerto
Rico to certain ports.''
Under this proposal, some or all of the provisions contained in the
sections listed above would be relocated to new sections of the
proposed regulations, as shown in the cross reference document. As
would be the case with requirements of general applicability, we would
make no changes to the content of the sections, but simply change
paragraph and section designations. In other cases, we are proposing to
amend the text to make the regulations easier to understand, to correct
errors, or to update them to reflect current APHIS operating
procedures. None of these changes would represent a substantive change
in interstate movement policy.
Current Sec. 318.13-4d contains restrictions on the interstate
movement of sweetpotatoes from Hawaii. Under this proposal, all
provisions contained in current Sec. 318.13-4d would be relocated to
proposed Sec. 318.13-25, except that the new section would not include
a statement that vapor heat treatment is an authorized treatment for
sweetpotatoes from Hawaii, as part 305 already lists vapor treatment as
an approved treatment.
Current Sec. 318.13-3(b)(1) contains conditions governing the
interstate movement of cut flowers from Hawaii except for cut blooms
and leis of mauna loa and jade vine and except for cut blooms of
gardenia not grown in accordance with Sec. 318.13-4j, ``Administrative
instructions governing the interstate movement of cut blooms of
gardenia from Hawaii.'' Under this proposal, the cut flower-related
provisions of Sec. 318.13-3(b)(1) and the conditions for the
interstate movement of gardenia in Sec. 318.13-4j would be relocated
to proposed Sec. 318.13-23.
Current Sec. 318.13-4i contains conditions governing the
interstate movement of bananas from Hawaii, including a requirement
that the fruit be safeguarded from fruit fly infestation during
transit. Under this proposal, all provisions contained in current Sec.
318.13-4i would be relocated to proposed Sec. 318.13-22, except that
the new section would specifically provide that bananas being moved
interstate must be safeguarded from fruit fly infestation by being
covered with insect-proof packaging, such as insect-proof mesh screens
or plastic tarpaulins. This change is necessary to clarify the
safeguarding requirement in this section.
Current Sec. 318.58-4c contains conditions governing the
interstate movement of sweetpotatoes from Puerto Rico. The current
regulations provide that the fields in which sweetpotatoes have been
grown must be treated with an approved soil insecticide and that before
planting in treated fields, the sweetpotato draws and vine cuttings
must be dipped in an approved insecticidal solution. Under this
proposal, all provisions contained in current Sec. 318.58-4c would be
relocated to proposed Sec. 318.13-24, except that we would clarify
that the soil insecticide and insecticidal solution must be approved by
APHIS.

Miscellaneous Changes

In addition to the changes described elsewhere in this document, we
propose to update references to contact points for APHIS program units
as appropriate. We would also update, as necessary, various references
to sections of the fruits and vegetables regulations located elsewhere
in 7 CFR chapter III.

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been reviewed under Executive Order 12866.
The rule has been determined to be not significant for the purposes of
Executive Order 12866 and, therefore, has not been reviewed by the
Office of Management and Budget.
We have prepared an initial regulatory flexibility analysis that
considers the potential economic effects of this proposed rule on small
entities, as required by the Regulatory Flexibility Act. The economic
analysis is summarized below. Copies of the full analysis are available
from the person listed under FOR FURTHER INFORMATION CONTACT. Please
refer to Docket No. APHIS-2007-0052 when requesting copies. The full
analysis is also available on the Regulations.gov Web site and in our
reading room (instructions for accessing Regulations.gov and
information on the location and hours of the reading room are provided
under the heading ADDRESSES at the beginning of this document).
This proposed rule would revise and reorganize the regulations
pertaining to the interstate movement of fruits and vegetables from
Hawaii, Puerto Rico, the U.S. Virgin Islands, and Guam. This would be
done to consolidate requirements of general applicability and eliminate
redundant requirements, update terms and remove outdated requirements
and references, make various editorial and nonsubstantive changes to
the regulations to make them easier to use, and expand their
applicability to include the CNMI and all other territories and
possessions of the United States.
APHIS is also proposing to make substantive changes to the
regulations. This proposed rule would establish criteria within the
regulations that, if met, would allow APHIS to approve certain fruits
and vegetables for interstate movement and to acknowledge pest-free
areas in Hawaii and U.S. territories without undertaking rulemaking.
Currently, these commodities may only be brought into the continental
United States after completion of a pest risk analysis, risk management
document, and rulemaking, if the commodities are not currently included
on the list of regulated articles. A similar type of notice-based
procedure has been implemented by APHIS for approving imports.
Implementing this rule would establish a similar approach for
authorizing the interstate movement of certain fruits and vegetables
and other

[[Page 34211]]

articles. This proposed rule would also result in certain regulated
articles no longer being listed in the regulations. These changes would
simplify and expedite the APHIS processes for approving certain
regulated articles for interstate movement and pest-free areas while
continuing to allow for public participation in the process.
APHIS expects little impact on the total supply of fruits and
vegetables available in the continental United States, and little
change in the movement of fruits and vegetables from Hawaii and the
territories; effects on U.S. producers, marketers, and consumers are
expected to be small. The main provision of this proposed rule
represents a structural revision of the regulations pertaining to the
movement of fruits and vegetables from Hawaii, Puerto Rico, the U.S.
Virgin Islands, Guam, and CNMI, and establishes a new process for
approving commodities for movement into the continental United States.
However, those commodity movement requests most likely to qualify for
the notice-based process are specialty crops having limited markets.
The proposed rule would not alter the conditions that apply to
currently approved fruits or vegetables.
Of particular note with respect to the approval process, the change
would allow a newly approved commodity to move more quickly into
commerce to the benefit of consumers and Hawaiian and territorial
producers once it has been determined that the commodity can be safely
moved interstate subject to one or more designated risk management
measures. This proposal, itself, would not allow for the interstate
movement of any specific fruits or vegetables, nor would it alter the
conditions for interstate movement of currently approved fruits or
vegetables except as specifically described in the proposed rule. These
proposed changes would not alter the manner in which the risk
associated with a commodity interstate movement request is evaluated,
nor would it alter the manner in which those risks are ultimately
mitigated. Consumers would have quicker access to some fruits and
vegetables, while risks would still be evaluated and appropriate
mitigations required, as they are currently.
The requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.) for this rulemaking are met through the following analysis. The
economic effects of approving specific commodities for interstate
movement using the streamlined approach would not be analyzed at the
time of their approval, since such approval would occur without
additional rulemaking.

Fruit and Vegetable Production

The fruit and tree nut and the vegetable and melon sectors are
vibrant in the United States, for both consumers and producers. The
United States is one of the world's leading producers and consumers of
vegetables and melons. The annual sale of vegetables and melons earned
farmers $17.3 billion on average during 2001-03, more than 8 percent of
all farm cash receipts (crops and livestock) and 17 percent of crop
receipts. Similarly, the U.S. fruit and tree nuts industry is an
important component of the U.S. farm sector. It generated over $12
billion in U.S. farm cash receipts annually in the early 2000s,
averaging 6 percent of all farm cash receipts and 12 percent of all
crop receipts.
The typical American annually consumes over 280 pounds of fruit and
tree nuts (fresh and processed products) each year, ranking third in
per capita consumption of major food groups, next to dairy and
vegetables. Annual per capita consumption of all vegetables and melons
rose 4 percent from 1991-93 to 2001-03, reaching 440 pounds as fresh
consumption increased and processed fell. Consumer expenditures for
fruit and vegetables are growing faster than for any food group other
than meats. Increased domestic and world supplies, rising disposable
incomes, and a growing and more culturally diverse population will
continue to expand consumer demand for fruits and vegetables in the
United States over the next decade. Another important stimulus is
continued emphasis on health and nutrition. The fruit and vegetable
industries have been very active in promoting the health benefits of
fruit and vegetable consumption.
Hawaii and the U.S. territories are important sources of fresh
fruits and vegetables for the rest of the United States. In 2002, 666
Hawaiian farms produced more than $55 million in vegetables, melons,
potatoes, and sweet potatoes, equal to about 10 percent of total
Hawaiian agricultural sales; and 2,582 Hawaiian farms produced more
than $179 million in fruits, tree nuts, and berries, accounting for
more than 33 percent of total Hawaiian agricultural sales. In 2002,
Hawaii ranked seventh among the States in the production of fruits,
tree nuts, and berries, and 28th in the production of vegetables,
melons, potatoes and sweet potatoes. Hawaii's growers of tropical
specialty fruit produced and sold an estimated 1.5 million pounds of
fresh fruit in 2005, according to the USDA's National Agricultural
Statistics Services (NASS) Hawaii field office. This amount was half
again as large as the revised 2004 output of 1 million pounds and the
highest on record for fresh tropical specialty fruit since records
began to be published for this group.

Initial Regulatory Flexibility Analysis

The Regulatory Flexibility Act requires agencies to evaluate the
potential effects of proposed and final rules on small businesses,
small organizations, and small governmental jurisdictions.

Description of the Rreasons Why Action by APHIS is Being Considered

This proposed rule would revise and reorganize the regulations
pertaining to the interstate movement of fruits and vegetables from
Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, and Guam to
consolidate requirements of general applicability and eliminate
redundant requirements, update terms and remove outdated requirements
and references, and make various editorial and nonsubstantive changes
to the regulations to make them easier to use. It would also establish
criteria within the regulations that, if met, would allow APHIS to
approve certain fruits and vegetables for interstate movement and to
acknowledge pest-free areas in Hawaii and U.S. territories without
undertaking rulemaking. These changes would simplify the regulations
and expedite the APHIS processes for approving certain regulated
articles for interstate movement and pest-free areas while continuing
to allow for public participation in the process.

Objectives of, and Legal Basis for, the Proposed Rule

By eliminating the need for specific prior rulemaking for
commodities for which the notice-based process would be appropriate,
considerable time savings could be reaped. The current process for
approving fruits and vegetables for interstate movement takes a notable
period of time, ranging on average from 18 months to 3 years (beginning
with the initial request and ending with the publication of a final
rule).
Consumers benefit from the ability to purchase fruits and
vegetables from a wide variety of sources. Many of the commodities that
are likely to be covered by this rule are niche products, unavailable
or limited in availability in the continental United States. This rule
would allow producers in Hawaii and the U.S. territories to more
quickly meet continental U.S. consumer demand for those niche products.
In addition, climate causes most fruit and vegetable production in the
continental United

[[Page 34212]]

States to be seasonal, with the largest harvests occurring during the
summer and fall. Speeding up the process of approving the interstate
movement of fruits and vegetables from Hawaii and the U.S. territories
would allow continental supplies to be more quickly supplemented,
especially of fresh products during the winter; increased choices for
consumers and more markets for producers would occur sooner than under
the rulemaking process.
The Plant Protection Act (7 U.S.C. 7701 et seq.) gives authority to
the Secretary of Agriculture to prohibit or restrict the importation,
entry, exportation, or movement in interstate commerce of any plant,
plant product, biological control organism, noxious weed, article, or
means of conveyance if the Secretary determines that the prohibition or
restriction is necessary to prevent the introduction of a plant pest or
noxious weed within the United States. The Secretary has delegated this
authority to the APHIS Administrator.

Description and Estimate of the Number of Small Entities to Which the
Proposed Rule Will Apply

Those entities most likely to be economically affected by the rule
are wholesalers and producers of fruits and vegetables. The Small
Business Administration (SBA) has established guidelines for
determining which establishments are to be considered small. A firm
primarily engaged in wholesaling fresh fruits and vegetables is
considered small if it employs not more than 100 persons. In 2002,
about 95 percent (4,044 of 4,244) of fresh fruit and vegetable
wholesalers in the United States were small by SBA standards.\5\ All
types of fruit and vegetable farms are considered small if they have
annual receipts of $0.75 million or less. With some exceptions,
vegetable and melon farms are largely individually owned and relatively
small, with two-thirds harvesting fewer than 25 acres. In 2002, between
80 and 84 percent of U.S. vegetable and melon farms were considered
small. Similarly, although numbers have declined, fruit and tree nut
production is still dominated by small, family, or individually run
farm operations. In 2002, between 92 and 95 percent of all fruit and
tree nut farms were considered small.\6\
---------------------------------------------------------------------------

\5\ 2002 Economic Census. Department of Commerce. U.S. Bureau of
the Census. North American Industry Classification system (NAICS)
Category 424480; Fresh fruit & Vegetables wholesalers.
\6\ 2002 Census of Agriculture, USDA-NASS. NAICS Categories-
1112: Vegetable and melon farming; 1113: Fruit and tree nut farming.
---------------------------------------------------------------------------

Based on the information that is available, the effects of this
rule should be small whether the entity affected is small or large.
Those commodity interstate movement requests most likely to qualify for
the notice-based process would be for specialty crops with limited
markets. This proposal would merely allow certain commodities to move
more quickly into interstate commerce to the benefit of consumers and
Hawaiian and territorial producers, once it has been determined that
the commodity can be safely moved subject to one or more designated
risk management measures. Hence, we expect little impact on the total
volume of U.S. fruits and vegetables, or on U.S. producers, marketers,
and consumers.
Nevertheless, we invite public comment on the proposed rule,
including any comment on the expected impacts for small entities, and
on how the proposed rule could be modified to reduce expected costs or
burdens for small entities consistent with its objectives. Any comment
suggesting changes to the proposed criteria should be supported by an
explanation of why the changes should be considered.

Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities

The proposed rule contains, under the heading ``Paperwork Reduction
Act,'' a description of the information collection and recordkeeping
requirements associated with the proposed rule.

Duplication, Overlap, or Conflict With Other Federal Rules

APHIS has not identified any duplication, overlap, or conflict of
the proposed rule with other Federal rules.

Description of Any Significant Alternatives to the Proposed Rule

An alternative to this rule would be to simply continue under
APHIS' current process for authorizing the interstate movement of
fruits and vegetables. In this case, we would continue to list all
newly approved fruits and vegetables in the regulations through notice-
and-comment rulemaking. A notice-based procedure has been implemented
by APHIS for approving imports and is working successfully, and we
believe a similar process for approving the interstate movement of
certain articles would be appropriate. Thus, we believe that
maintaining the current process for all regulated articles is
unnecessary. We believe that the new approach would enable us to be
more responsive to interstate movement requests while maintaining
transparent decisionmaking. Therefore this alternative was rejected.

Future Analyses

If this proposed rule is adopted as a final rule, the requirements
of Executive Order 12866 or the Regulatory Flexibility Act will be met
through the analyses that accompany the final rule. The economic
effects of the interstate movement of the specific commodities that are
approved using the streamlined approach would not be analyzed at the
point of approval, since such approval would occur without additional
rulemaking.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. If this proposed rule is adopted: (1) State and
local laws and regulations will not be preempted; (2) no retroactive
effect will be given to this rule; and (3) administrative proceedings
will not be required before parties may file suit in court challenging
this rule.

National Environmental Policy Act

The majority of the regulatory changes proposed in this document
are nonsubstantive, and would therefore have no effects on the
environment. However, this proposal, if adopted, would allow APHIS to
approve certain new articles for interstate movement without
undertaking rulemaking. Despite the fact that those fruits and
vegetable imports would no longer be contingent on the completion of
rulemaking, the requirements of the National Environmental Policy Act
of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), would still apply.
As such, for each additional regulated article approved for interstate
movement, APHIS would make available to the public documentation
related to our analysis of the potential environmental effects of the
interstate movement of new regulated articles. This documentation would
likely be made available at the same time and via the same Federal
Register notice as the risk analysis for the proposed article.

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

[[Page 34213]]

collection or recordkeeping requirements included in this proposed rule
have been submitted for approval to the Office of Management and Budget
(OMB). Please send written comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,
DC 20503. Please state that your comments refer to Docket No. APHIS-
2007-0052. Please send a copy of your comments to: (1) Docket No.
APHIS-2007-0052, Regulatory Analysis and Development, PPD, APHIS,
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238,
and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and
Independence Avenue, SW., Washington, DC 20250. A comment to OMB is
best assured of having its full effect if OMB receives it within 30
days of publication of this proposed rule.
APHIS is proposing to revise and reorganize the regulations
pertaining to the interstate movement of fruits and vegetables to
consolidate requirements of general applicability and eliminate
redundant requirements, update terms and remove outdated requirements
and references, and make various editorial and nonsubstantive changes
to the regulations to make them easier to use. APHIS is also proposing
to make substantive changes to the regulations including: Establishing
criteria within the regulations that, if met, would allow us to approve
certain new fruits and vegetables for interstate movement in the United
States and to acknowledge pest-free areas in Hawaii and U.S.
territories expeditiously; and doing away with the practice of listing
in the regulations specific commodities as regulated articles. These
changes are intended to simplify and expedite our processes for
approving certain regulated articles for interstate movement and pest-
free areas while continuing to allow for the public participation in
the processes.
Implementing this rule will necessitate the use of limited permits,
transit permits, compliance agreements, and additional information
collection procedures such as inspection/certification, labeling, and
trapping surveillance.
We are soliciting comments from the public (as well as affected
agencies) concerning our proposed information collection and
recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is
necessary for the proper performance of our agency's functions,
including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed information collection, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated to average 0.4280 hour per response.
Respondents: Wholesalers and producers of fruits and vegetables,
State officials.
Estimated annual number of respondents: 600.
Estimated annual number of responses per respondent: 33.6666.
Estimated annual number of responses: 20,200.
Estimated total annual burden on respondents: 8,646 hours. (Due to
averaging, the total annual burden hours may not equal the product of
the annual number of responses multiplied by the reporting burden per
response.)
Copies of this information collection can be obtained from Mrs.
Celeste Sickles, APHIS's Information Collection Coordinator, at (301)
851-2908.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government Act to promote the use of the Internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this proposed rule, please contact Mrs. Celeste
Sickles, APHIS's Information Collection Coordinator, at (301) 851-2908.

Lists of Subjects

7 CFR Part 305

Irradiation, Phytosanitary treatment, Plant diseases and pests,
Quarantine, Reporting and recordkeeping requirements.

7 CFR Part 318

Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and
pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin
Islands.
Accordingly, we propose to amend 7 CFR parts 305 and 318 as
follows:

PART 305-PHYTOSANITARY TREATMENTS

1. The authority citation for part 305 continues to read as
follows:

Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and
136a; 7 CFR 2.22, 2.80, and 371.3.

2. In Sec. 305.17, paragraph (a) is revised to read as follows:

Sec. 305.17 Authorized treatments; exceptions.

(a) Quick freeze is an authorized treatment for all fruits and
vegetables imported into the United States or moved interstate from
Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana
Islands, or the U.S. Virgin Islands, except for those fruits and
vegetables listed in paragraph (b) of this section. Quick freeze for
fruits and vegetables imported into the United States or moved
interstate from Hawaii, Puerto Rico, Guam, the Commonwealth of the
Northern Mariana Islands, or the U.S. Virgin Islands must be conducted
in accordance with Sec. 319.56-12 of this subchapter for imported
fruits and vegetables and Sec. 318.13-13 of this subchapter for fruits
and vegetables moved interstate.
* * * * *

Sec. 305.34 [Amended]

In Sec. 305.34, paragraph (b)(2)(iii) is amended by removing the
citation ``Sec. 318.13-4(d)'' and adding the citation ``Sec. 318.13-
3(d)'' in its place.

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

3. The authority citation for part 318 continues to read as
follows:

Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80,
and 371.3.

4. Subpart-Hawaiian Fruits, Vegetables, and Flowers, consisting of
Sec. Sec. 318.13 through 318.13-17, is removed and a new Subpart--
Regulated Articles From Hawaii and the Territories, Sec. Sec. 318.13-1
through 318.13-25, is added to read as follows:
Subpart--Regulated Articles From Hawaii and the Territories
Sec.
318.13-1 Notice of quarantine.
318.13-2 Definitions.
318.13-3 General requirements for all regulated articles.
318.13-4 Approval of certain fruits and vegetables for interstate
movement.
318.13-5 Pest-free areas.
318.13-6 Transit of regulated articles from Hawaii or the
territories into or through the continental United States.

[[Page 34214]]

318.13-7 Products as ships' stores or in the possession of
passengers or crew.
318.13-8 Articles and persons subject to inspection.
318.13-9 Inspection and disinfection of means of conveyance.
318.13-10 Inspection of baggage, other personal effects, and cargo.
318.13-11 Posting of warning notice and distribution of baggage
declarations.
318.13-12 Movement by the U.S. Department of Agriculture.
318.13-13 Movement of frozen fruits and vegetables.
318.13-14 Movement of processed fruits, vegetables, and other
products.
318.13-15 Parcel post inspection.
318.13-16 Regulated articles allowed interstate movement subject to
specified conditions.
318.13-17 Regulated articles from Guam.
318.13-18 through 318.13-20 [Reserved]
318.13-21 Avocados from Hawaii to Alaska.
318.13-22 Bananas from Hawaii.
318.13-23 Cut flowers from Hawaii.
318.13-24 Sweetpotatoes from Puerto Rico.
318.13-25 Sweetpotatoes from Hawaii.

Subpart--Regulated Articles From Hawaii and the Territories

Sec. 318.13-1 Notice of quarantine.

(a) Under the authority of section 412 of the Plant Protection Act,
the Secretary of Agriculture may prohibit or restrict the movement in
interstate commerce of any plant or plant product if the Secretary
determines that the prohibition or restriction is necessary to prevent
the introduction into the United States or the dissemination within the
United States of a plant pest or noxious weed.
(b) The Secretary has determined that it is necessary to prohibit
the interstate movement of cut flowers and fruits and vegetables and
plants and portions of plants from Hawaii, Puerto Rico, the U.S. Virgin
Islands, Guam, and the Commonwealth of the Northern Mariana Islands
except as provided in this subpart.

Sec. 318.13-2 Definitions.

Administrator. The Administrator of the Animal and Plant Health
Inspection Service (APHIS), U.S. Department of Agriculture, or any
other employee of APHIS to whom authority has been delegated to act in
the Administrator's stead.
Animal and Plant Health Inspection Service. The Animal and Plant
Health Inspection Service (APHIS) of the U.S. Department of
Agriculture.
Approved growing media. Agar or other translucent tissue culture
media, buckwheat hulls, clean ocean sand, excelsior, exfoliated
vermiculite, ground cork, ground peat, ground rubber, paper, polymer
stabilized cellulose, quarry gravel, sawdust, wood shavings, cork
shavings, sphagnum moss, tree fern slab (approved only for orchids),
and vegetable fiber (free of pulp) including coconut and osmunda, but
excluding cotton and sugarcane.
Certification (certified). A type of authorization, issued by an
inspector, evidencing freedom from infestation, to allow the movement
of certain regulated articles in accordance with the regulations in
this subpart. ``Certified'' shall be construed accordingly.
Commercial consignment. A lot of fruits or vegetables that an
inspector identifies as having been produced for sale or distribution
in mass markets. Such identification will be based on a variety of
indicators, including, but not limited to: Quantity of produce, type of
packaging, identification of grower and packinghouse on the packaging,
and documents consigning the fruits or vegetables to a wholesaler or
retailer.
Compliance agreement. Any agreement to comply with stipulated
conditions as prescribed under Sec. 318.13-3 or Sec. 318.13-4 of this
subpart or Sec. 305.34 of this chapter, executed by any person to
facilitate the interstate movement of regulated articles under this
subpart.
Continental United States. The 48 contiguous States, Alaska, and
the District of Columbia.
Cut flower. Any cut blooms, fresh foliage, and dried decorative
plant material customarily used in the florist trade and not planting;
and being the severed portion of a plant, including the inflorescence,
and any parts of the plant attached thereto, in a fresh state.
Disinfection (disinfect and disinfected). The application to parts
or all of a ship, vessel, other surface craft, or aircraft of a
treatment that may be designated by the inspector as effective against
such plant pests as may be present. (``Disinfect'' and ``disinfected''
shall be construed accordingly.)
Fruits and vegetables. A commodity class for fresh parts of plants
intended for consumption or processing and not planting.
Inspector. A State agricultural inspector or any individual
authorized by the Administrator of APHIS or the Commissioner of Customs
and Border Protection, Department of Homeland Security, to enforce the
regulations in this subpart.
Interstate. From one State into or through any other State; or
within the District of Columbia, Guam, the Virgin Islands of the United
States, or any other territory or possession of the United States.
Limited permit. A document issued by an inspector or a person
operating under a compliance agreement for the interstate movement of
regulated articles to a specified destination for:
(1) Consumption, limited utilization or processing, or treatment;
or
(2) Movement into or through the continental United States in
conformity with a transit permit.
Lot. A number of units of a single commodity, identifiable by its
homogeneity of composition and origin, forming all or part of a
consignment.
Means of conveyance. A ship, truck, aircraft, or railcar.
Moved (move and movement). 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,
directly or indirectly, from Hawaii, Puerto Rico, Guam, the
Commonwealth of the Northern Marina Islands, or the U.S. Virgin Islands
into or through the continental United States or any other State or
territory of the United States (or from or into or through other places
as specified in this subpart). (``Move'' and ``movement'' shall be
construed accordingly.)
Packing materials. Any plant or plant product, soil, or other
substance associated with or accompanying any commodity or consignment
to serve for filling, wrapping, ties, lining, mats, moisture retention,
protection, or any other auxiliary purpose. The word ``packing,'' as
used in the expression ``packing materials,'' includes the presence of
such materials within, in contact with, or accompanying a consignment.
Person. Any individual, partnership, corporation, association,
joint venture, or other legal entity.
Plant debris. Detached leaves, twigs, or other portions of plants,
or plant litter or rubbish as distinguished from approved parts of
clean fruits and vegetables, or other commercial articles.
Plant pests. Any living stage of any of the following that can
directly or indirectly injure, cause damage to, or cause disease in any
plant or plant product: A protozoan, nonhuman animal, parasitic plant,
bacterium, fungus, virus or viroid, infectious agent or other pathogen,
or any article similar to or allied with any of those articles.
Regulated articles. Fruits or vegetables in the raw or unprocessed
state; cut flowers; seeds; and plants or plant products for
nonpropagative or propagative use.
Sealed (sealable) container. A completely enclosed container
designed for the storage and/or transportation of commercial air, sea,
rail, or truck cargo, and constructed of metal or fiberglass,

[[Page 34215]]

or other similarly sturdy and impenetrable material, providing an
enclosure accessed through doors that are closed and secured with a
lock or seal. Sealed (sealable) containers used for sea consignments
are distinct and separable from the means of conveyance carrying them
when arriving in and in transit through the continental United States.
Sealed (sealable) containers used for air consigments are distinct and
separable from the means of conveyance carrying them before any
transloading in the continental United States. Sealed (sealable)
containers used for air consignments after transloading in the
continental United States or for overland consignments in the
continental United States may either be distinct and separable from the
means of conveyance carrying them, or be the means of conveyance
itself.
Soil. The loose surface material of the earth in which plants grow,
in most cases consisting of disintegrated rock with an admixture of
organic material and soluble salts.
State. Each of the 50 States of the United States, the District of
Columbia, Guam, the Commonwealth of the Northern Mariana Islands,
Puerto Rico, the U.S. Virgin Islands, and all other territories and
possessions of the United States.
Transit permit. A written authorization issued by the Administrator
for the movement of fruits and vegetables en route to a foreign
destination that are otherwise prohibited movement by this subpart into
the continental United States. Transit permits authorize one or more
consignments over a designated period of time.
Transloading. The transfer of cargo from one sealable container to
another, from one means of conveyance to another, or from a sealable
container directly into a means of conveyance.
United States. All of the States of the United States, the
Commonwealth of Northern Mariana Islands, the Commonwealth of Puerto
Rico, the District of Columbia, Guam, the U.S. Virgin Islands, and all
other territories and possessions of the United States.

Sec. 318.13-3 General requirements for all regulated articles.

All regulated articles that are allowed movement under this subpart
must be moved in accordance with the following requirements, except as
specifically provided otherwise in this subpart.
(a) Freedom from plant debris. All regulated articles moved under
this subpart must be free from plant debris.
(b) Certification. Certification may be issued for the movement of
regulated articles under the following conditions:
(1) Certification on basis of inspection or nature of lot involved.
Regulated articles may be certified when they have been inspected by an
inspector and found apparently free from infestation and infection, or
without such inspection when the inspector determines that the lot for
consignment is of such a nature that no danger of infestation or
infection is involved.
(i) Persons intending to move any articles that may be certified
must contact the local Plant Protection and Quarantine office as far as
possible in advance of the contemplated date of shipment in order to
request an inspection.
(ii) Persons intending to move any articles that may be certified
must prepare, handle, and safeguard such articles from infestation or
reinfestation, and assemble them at such points as the inspector may
designate, placing them so that inspection may be readily made.
(2) Certification on basis of treatment. (i) Regulated articles for
which treatments are approved in part 305 of this chapter may be
certified if such treatments have been applied in accordance with part
305 of this chapter and if the articles were handled after such
treatment in accordance with a compliance agreement executed by the
applicant for certification or under the supervision of an inspector.
(ii) Regulated articles certified after treatment in accordance
with part 305 of this chapter that are taken aboard any ship, vessel,
other surface craft, or aircraft must be segregated and protected in a
manner as required by the inspector.
(c) Limited permits. (1) Limited permits \1\ may be issued by an
inspector for the movement of certain noncertified regulated articles
to restricted destinations.
---------------------------------------------------------------------------

\1\ Limited permits can be obtained from each State or
territory's local Plant Protection and Quarantine office.
---------------------------------------------------------------------------

(2) Limited permits may be issued by an inspector for the movement
of regulated articles that would otherwise be prohibited movement under
this subpart, if the articles are to be moved in accordance with Sec.
318.13-6.
(3) Except when the regulations specify that an inspector must
issue the limited permit, limited permits may be issued by a person
operating under a compliance agreement.
(d) Compliance agreements. As a condition for the movement of
regulated articles for which a compliance agreement is required, the
person entering the compliance agreement must agree to the following:
(1) That he or she will use any permit or certification issued to
him or her in accordance with the provisions in the permit, the
requirements in this subpart, and the compliance agreement;
(2) That he or she will maintain at his or her establishment such
safeguards against the establishment and spread of infestation and
infection and comply with such conditions as to the maintenance of
identity, handling (including post-treatment handling), and interstate
movement of regulated articles and the cleaning and treatment of means
of conveyance and containers used in such movement of the articles, as
may be required by the inspector in each specific case to prevent the
spread of infestation or infection; and
(3) That he or she will allow inspectors to inspect the
establishment and its operations.
(e) Attachment of limited permit or verification of certification.
Except as otherwise provided for certain air cargo and containerized
cargo on ships moved in accordance with Sec. 318.13-10, each box,
bale, crate, or other container of regulated articles moved under
certification or limited permit shall have the limited permit attached
to the outside of the container or bear a U.S. Department of
Agriculture stamp or inspection sticker verifying that the consignment
has been certified in accordance with paragraph (b) of this section:
Provided, That if a limited permit or certification is issued for a
consignment of more than one container or for bulk products,
certification shall be stamped on or the limited permit shall be
attached to the accompanying waybill, manifest, or bill of lading.
(f) Withdrawal of certification, transit permits, limited permits,
or compliance agreements. Any certification, transit permit, limited
permit, or compliance agreement which has been issued or authorized may
be withdrawn by an inspector orally or in writing, if such inspector
determines that the holder thereof has not complied with all conditions
under the regulations for the use of such document. If the cancellation
is oral, the decision and the reasons for the withdrawal shall be
confirmed in writing as promptly as circumstances allow. Any person
whose certification, transit permit, limited permit, or compliance
agreement has been withdrawn may appeal the decision in writing to the
Administrator within 10 days after receiving the written notification
of the withdrawal. The appeal shall state all of the facts and reasons
upon which the person relies to show that the certification,

[[Page 34216]]

transit permit, limited permit, or compliance agreement was wrongfully
withdrawn. The Administrator shall grant or deny the appeal, in
writing, stating the reasons for such decision, as promptly as
circumstances allow. If there is a conflict as to any material fact, a
hearing shall be held to resolve such conflict. Rules of practice
concerning such a hearing will be adopted by the Administrator.
(g) Container marking and identity. Except as provided in Sec.
318.13-6(c), consignments of regulated articles moved in accordance
with this subpart must have the following information clearly marked on
each container or on the waybill, manifest, or bill of lading
accompanying the articles: Nature and quantity of contents; name and
address of shipper, owner, or person shipping or forwarding the
articles; name and address of consignee; shipper's identifying mark and
number; and the certification stamp or number of the limited permit
authorizing movement, if one was issued.
(h) Refusal of movement. An inspector may refuse to allow the
interstate movement of a regulated article if the inspector finds that
the regulated article is prohibited, is not accompanied by required
documentation, is so infested with a plant pest or noxious weed that,
in the judgment of the inspector, it cannot be cleaned or treated, or
contains soil or other prohibited contaminants.
(i) Costs and charges. Services of the inspector during regularly
assigned hours of duty at the usual places of duty shall be furnished
without cost to the one requesting such services. APHIS will not assume
responsibility for any costs or charges, other than those indicated in
this section, in connection with the inspection, treatment,
conditioning, storage, forwarding, or any other operation of any
character incidental to the physical movement of regulated articles or
plant pests.
(j) APHIS not responsible for damage. APHIS assumes no
responsibility for any damage to regulated articles that results from
the application of treatment or other measures required under this
subpart (or under part 305 of this chapter) to protect against the
dissemination of plant pests within the United States.
(Approved by the Office of Management and Budget under control
number 0579-0088)

Sec. 318.13-4 Approval of certain fruits and vegetables for
interstate movement.

(a) Determination by the Administrator. The Administrator has
determined that the application of one or more of the designated
phytosanitary measures cited in paragraph (b) of this section to
certain fruits and vegetables mitigates the risk posed by those
commodities, and that such articles may be moved interstate subject to
one or more of those measures, as provided in paragraphs (c) and (d) of
this section. The name and origin of all fruits and vegetables
authorized movement under this section, as well as the applicable
requirements for their movement, may be found on the Internet at http:/
/www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/
hawaii.pdf or http://www.aphis.usda.gov/import_export/plants/manuals/
ports/downloads/puerto_rico.pdf. Fruits or vegetables that require
phytosanitary measures other than one or more of the designated
phytosanitary measures cited in paragraph (b) of this section may only
be moved in accordance with applicable requirements in Sec. 318.13-3
and regulated article-specific requirements contained elsewhere in this
subpart.
(b) Designated phytosanitary measures. (1) The fruits and
vegetables are inspected in the first State of arrival.
(2) The fruits and vegetables originated from a pest-free area in
the State of origin and the grower from which the fruit or vegetable
originated has entered into a compliance agreement with the
Administrator.
(3) The fruits and vegetables are treated in accordance with part
305 of this chapter and the treatment is certified by an inspector.
(4) The fruits and vegetables articles are inspected and certified
in the State of origin by an inspector and have been found free of one
or more specific quarantine pests identified by risk analysis as likely
to follow the pathway.
(5) The fruits and vegetables are moved as commercial consignments
only.
(6) The fruits and vegetables may be distributed only within a
defined area and the boxes or containers in which the fruit or
vegetables are distributed must be marked to indicate the applicable
distribution restrictions.
(c) Fruits and vegetables authorized for interstate movement under
this section.
(1) Previously approved fruits and vegetables. Fruits and
vegetables that were authorized movement under this subpart either
administratively or by specific regulation as of [Insert effective date
of final rule] and that were subject only to one or more of the
designated phytosanitary measures cited in paragraph (b) of this
section and the general requirements of Sec. 318.13-3 may continue to
be moved interstate under the same requirements that applied before
[Insert effective date of final rule], except as provided in paragraph
(d) of this section. The interstate movement conditions for those
fruits and vegetables that were authorized movement under this subpart
subject to additional measures beyond the designated measures in
paragraph (b) of this section can be found in Sec. 318.13-16 or one of
the commodity-specific sections in this subpart.
(2) Other fruits and vegetables. Fruits and vegetables that do not
meet the criteria in paragraph (c)(1) of this section may be authorized
movement under this section as follows:
(i) Pest risk analysis. The risk posed by the particular article
from a specified State has been evaluated and publicly communicated as
follows:
(A) Availability of pest risk analysis. APHIS published in the
Federal Register, for a public comment period of 60 days, a notice
announcing the availability of a pest risk analysis that evaluated the
risks associated with the movement of the particular fruit or
vegetable.
(B) Determination of risk; factors considered. The Administrator
determined, and announced in the notice referred to in the previous
paragraph, that, based on the information available, the application of
one or more of the designated phytosanitary measures described in
paragraph (b) of this section is sufficient to mitigate the risk that
plant pests or noxious weeds could be introduced into or disseminated
elsewhere within the United States by the fruit or vegetable. In order
for the Administrator to make the determination described in this
paragraph, he or she must conclude based on the information presented
in the risk analysis for the fruit or vegetable that the risk posed by
each quarantine pest associated with the fruit or vegetable in the
State of origin is mitigated by one or more of the following factors:
(1) Inspection. A quarantine pest is associated with the fruit or
vegetable in the State of origin, but the pest can be easily detected
via inspection in the State of first arrival;
(2) Pest freedom. No quarantine pests are known to be associated
with the fruit or vegetable in the State of origin, or a quarantine
pest is associated with the fruit or vegetable in the State of origin
but the fruit or vegetable originates from an area that meets the
requirements of Sec. 318.13-5 for pest freedom;
(3) Effectiveness of treatment. A quarantine pest is associated
with the fruit or vegetable in the State of origin, but the risk posed
by the pest can be

[[Page 34217]]

reduced by applying an approved post-harvest treatment to the fruit or
vegetable;
(4) Predeparture inspection. A quarantine pest is associated with
the fruit or vegetable in the State of origin, but the fruit or
vegetable is subject to predeparture inspection;
(5) Commercial consignments. A quarantine pest is associated with
the fruit or vegetable in the State of origin, but the risk posed by
the pest can be reduced by commercial practices.
(6) Limited distribution. A quarantine pest is associated with the
fruit or vegetable in the State of origin, but the risk posed by the
pest can be reduced by limiting distribution of the fruit or vegetable
and labeling boxes containing the fruit or vegetable with those
distribution instructions.
(ii) Administrator's decision. The Administrator will announce his
or her decision in a subsequent Federal Register notice. If
appropriate, APHIS would begin allowing the interstate movement of the
fruits or vegetables subject to requirements specified in the notice
because:
(A) No comments were received on the pest risk analysis;
(B) The comments on the pest risk analysis revealed that no changes
to the pest risk analysis were necessary; or
(C) Changes to the pest risk analysis were made in response to
public comments, but the changes did not affect the overall conclusions
of the analysis and the Administrator's determination of risk.
(d) Amendment of interstate movement requirements. If, after
[Insert effective date of final rule], the Administrator determines
that one or more of the designated phytosanitary measures is not
sufficient to mitigate the risk posed by any fruit or vegetable
authorized interstate movement under this section, APHIS will prohibit
or further restrict the interstate movement of the fruit or vegetable
pending resolution of the situation. If APHIS concludes that a
permanent change to the interstate movement requirements of a
particular fruit or vegetable is necessary, APHIS will also publish a
notice in the Federal Register advising the public of its finding. The
notice will specify the amended interstate movement requirements,
provide an effective date for the change, and invite public comment on
the subject.

Sec. 318.13-5 Pest-free areas.

Certain fruits or vegetables may be moved interstate provided that
the fruits or vegetables originate from an area that is free of a
specific pest or pests. In some cases, fruits or vegetables may only be
moved interstate if the area of origin is free of all plant pests that
attack the fruits or vegetables. In other cases, fruits or vegetables
may be moved interstate if the area of origin is free of one or more
plant pests that attack the fruit or vegetable and the risk posed by
the remaining plant pests that attack the fruit or vegetable is
mitigated by other specific phytosanitary measures contained in the
regulations in this subpart.
(a) Application of standards for pest-free areas. APHIS will make a
determination of an area's pest-free status based on information
provided by the State. The information used to make this determination
will include trapping and surveillance data, survey protocols, and
protocols for actions to be performed upon detection of a pest.
(b) Survey protocols. APHIS must approve the survey protocol used
to determine and maintain pest-free status, as well as protocols for
actions to be performed upon detection of a pest. Pest-free areas are
subject to audit by APHIS to verify their status.
(c) Determination of pest freedom. (1) For an area to be considered
free of a specified pest for the purposes of this subpart, the
Administrator must determine, and announce in a notice published in the
Federal Register for 60 days public comment, that the area meets the
criteria of paragraphs (a) and (b) of this section.
(2) The Administrator will announce his or her decision in a
subsequent Federal Register notice. If appropriate, APHIS will allow
movement of the regulated article from a pest-free area because:
(i) No comments were received on the notice or
(ii) The comments on the notice did not affect the overall
conclusions of the notice and the Administrator's determination of
risk.
(d) Decertification of pest-free areas; reinstatement. If a pest is
detected in an area that is designated as free of that pest, APHIS will
publish in the Federal Register a notice announcing that the pest-free
status of the area in question has been withdrawn and that interstate
movement of host crops for the pest in question is subject to
application of an approved treatment for the pest. If a treatment for
the pest is not available, interstate movement of the host crops would
be prohibited. In order for a decertified pest-free area to be
reinstated, it would have to meet the criteria of paragraphs (a)
through (c) of this section.
(e) General requirements for the interstate movement of regulated
articles from pest-free areas.
(1) Labeling. Each box of fruits or vegetables that is moved
interstate from a pest-free area under this subpart must be clearly
labeled with:
(i) The name of the orchard or grove of origin, or the name of the
grower; and
(ii) The name of the municipality and State or territory in which
the fruits or vegetables were produced; and
(iii) The type and amount of fruits or vegetables the box contains.
(2) Compliance agreement. Persons wishing to move fruits or
vegetables from a pest-free area in Hawaii, Puerto Rico, Guam, the
Commonwealth of the Northern Mariana Islands, or the U.S. Virgin
Islands must enter into a compliance agreement with APHIS in accordance
with Sec. 318.13-3(d).
(3) Safeguarding. If fruits or vegetables are moved from a pest-
free area into or through an area that is not free of that pest, the
fruits or vegetables must be safeguarded during the time they are
present in a non-pest-free area by being covered with insect-proof mesh
screens or plastic tarpaulins, including while in transit to the
packinghouse and while awaiting packaging. If fruits or vegetables are
moved through an area that is not free of that pest during transit to a
port, they must be packed in insect-proof cartons or containers or be
covered by insect-proof mesh or plastic tarpaulins during transit to
the port and subsequent movement into or through the United States.
These safeguards described in this section must remain intact until the
fruits or vegetables reach their final destination.

Sec. 318.13-6 Transit of regulated articles from Hawaii or the
territories into or through the continental United States.

Fruits and vegetables from Hawaii, Puerto Rico, Guam, the
Commonwealth of the Northern Mariana Islands, or the U.S. Virgin
Islands that are otherwise prohibited interstate movement into the
continental United States by this subpart may transit the continental
United States en route to a foreign destination when moved in
accordance with this section.
(a) Transit permit. (1) A transit permit is required for the
arrival, unloading, and movement through the continental United States
of fruits and vegetables otherwise prohibited by this subpart from
being moved through the continental United States from Hawaii, Puerto
Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the
U.S. Virgin Islands. Application for a transit permit may be made in
writing or with PPQ Form 586.\2\ The transit

[[Page 34218]]

permit application must include the following information:
---------------------------------------------------------------------------

\2\ PPQ Form 586 can be obtained from PPQ Permit Services or at
http://www.aphis.usda.gov/plant_health/permits/transit.shtml.
Applications for transit permits should be submitted to USDA, APHIS,
PPQ Permit Services, 4700 River Road Unit 136, Riverdale, MD 20737
or through e-permits http://www.aphis.usda.gov/permits/learn_
epermits.shtml.
---------------------------------------------------------------------------

(i) The specific types of fruits and vegetables to be shipped (only
scientific or English common names are acceptable);
(ii) The means of conveyance to be used to transport the fruit or
vegetable through the continental United States;
(iii) The port of arrival in the continental United States, and the
location of any subsequent stop;
(iv) The location of, and the time needed for, any storage in the
continental United States;
(v) Any location in the continental United States where the fruits
or vegetables are to be transloaded;
(vi) The means of conveyance to be used for transporting the fruits
or vegetables from the port of arrival in the continental United States
to the port of export;
(vii) The estimated time necessary to accomplish exportation, from
arrival at the port of arrival in the continental United States to exit
at the port of export;
(viii) The port of export; and
(ix) The name and address of the applicant and, if the applicant's
address is not within the territorial limits of the continental United
States, the name and address in the continental United States of an
agent whom the applicant names for acceptance of service of process.
(2) A transit permit will be issued only if the following
conditions are met:
(i) APHIS inspectors are available at the port of arrival, port of
export, and any locations at which transloading of cargo will take
place and, in the case of air consignments, at any interim stop in the
continental United States, as indicated on the application for the
transit permit;
(ii) The application indicates that the proposed movement would
comply with the provisions in this section applicable to the transit
permit; and
(iii) During the 12 months prior to receipt of the application by
APHIS, the applicant has not had a transit permit withdrawn under Sec.
318.13-3(f), unless the transit permit has been reinstated upon appeal.
(b) Limited permit. Fruits or vegetables shipped from Hawaii,
Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or
the U.S. Virgin Islands through the continental United States under
this section must be accompanied by a limited permit, a copy of which
must be presented to an inspector at the port of arrival and the port
of export in the continental United States, and at any other location
in the continental United States where an air consignment is authorized
to stop or where overland consignments change means of conveyance. An
inspector will issue a limited permit if the following conditions are
met:
(1) The inspector determines that the specific type and quantity of
the fruits or vegetables being shipped are accurately described by
accompanying documentation, such as the accompanying manifest, waybill,
and bill of lading. (Only scientific or English names are acceptable.)
The fruits or vegetables shall be assembled at whatever point and in
whatever manner the inspector designates as necessary to comply with
the requirements of this section; and
(2) The inspector establishes that the consignment of fruits or
vegetables has been prepared in compliance with the provisions of this
section.
(c) Marking requirements. Each of the smallest units, including
each of the smallest bags, crates, or cartons, containing regulated
articles for transit through the continental United States under this
section must be conspicuously marked, prior to the locking and sealing
of the container in the State of origin, with a printed label that
includes a description of the specific type and quantity of the fruits
or vegetables (only scientific or English common names are acceptable),
the transit permit number under which the regulated articles are to be
shipped, and, in English, the State in which they were grown and the
statement ``Distribution in the United States is Prohibited.''
(d) Handling of fruits and vegetables. Fruits or vegetables shipped
through the United States from Hawaii, Puerto Rico, Guam, the
Commonwealth of the Northern Mariana Islands, or the U.S. Virgin
Islands in accordance with this section may not be commingled in the
same sealed container with fruits or vegetables that are intended for
entry and distribution in the United States. The fruits or vegetables
must be kept in sealed containers from the time the limited permit
required by paragraph (b) of this section is issued, until the fruits
or vegetables exit the United States, except as otherwise provided in
the regulations in this section. Transloading must be carried out in
accordance with the requirements of paragraphs (a), (h), and (i) of
this section.
(e) Area of movement. The port of arrival, the port of export,
ports for air stops, and overland movement within the continental
United States of fruits or vegetables shipped under this section is
limited to a corridor that includes all States of the continental
United States except Alabama, Arizona, California, Florida, Georgia,
Kentucky, Louisiana, Mississippi, Nevada, New Mexico, North Carolina,
South Carolina, Tennessee, Texas, and Virginia, except that movement is
allowed through Dallas/Fort Worth, TX, as an authorized stop for air
cargo, or as a transloading location for consignments that arrive by
air but that are subsequently transloaded into trucks for overland
movement from Dallas/Fort Worth, TX, into the designated corridor by
the shortest route. Movement through the United States must begin and
end at locations staffed by APHIS inspectors.
(f) Movement of regulated articles. Transportation through the
continental United States shall be by the most direct route to the
final destination of the consignment in the country to which it is
exported, as determined by APHIS based on commercial shipping routes
and timetables and set forth in the transit permit. No change in the
quantity of the original consignment from that described in the limited
permit is allowed. No remarking is allowed. No diversion or delay of
the consignment from the itinerary described in the transit permit and
limited permit is allowed unless authorized by an APHIS inspector upon
determination by the inspector that the change will not significantly
increase the risk of plant pests or diseases in the United States, and
unless each port to which the consignment is diverted is staffed by
APHIS inspectors.
(g) Notification in case of emergency. In the case of an emergency
such as an accident, a mechanical breakdown of the means of conveyance,
or an unavoidable deviation from the prescribed route, the person in
charge of the means of conveyance must, as soon as practicable, notify
the APHIS office at the port where the cargo arrived in the United
States.
(h) Consignments by sea. Except as authorized by this paragraph,
consignments arriving in the United States by sea from Hawaii, Puerto
Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the
U.S. Virgin Islands may be transloaded once from a ship to another ship
or, alternatively, once to a truck or railcar at the port of arrival
and once from a truck or railcar to a ship at the port of export, and
must remain in the original sealed container, except under extenuating
circumstances and when authorized by an inspector upon determination by
the inspector that the transloading would not significantly

[[Page 34219]]

increase the risk of the introduction of plant pests or diseases into
the United States, and provided that APHIS inspectors are available to
provide supervision. No other transloading of the consignment is
allowed, except under extenuating circumstances (e.g., equipment
breakdown) and when authorized by an inspector upon determination by
the inspector that the transloading would not significantly increase
the risk of the introduction of plant pests or diseases into the
continental United States, and provided that APHIS inspectors are
available to provide supervision.
(i) Consignments by air. (1) Consignments arriving in the United
States by air from Hawaii, Puerto Rico, Guam, the Commonwealth of the
Northern Mariana Islands, or the U.S. Virgin Islands may be transloaded
only once in the United States. Transloading of air consignments must
be carried out in the presence of an APHIS inspector. Consignments
arriving by air that are transloaded may be transloaded either into
another aircraft or into a truck trailer for export by the most direct
route to the final destination of the consignment through the
designated corridor set forth in paragraph (e) of this section. This
may be done at either the port of arrival in the United States or at
the second air stop within the designated corridor, as authorized in
the transit permit and as provided in paragraph (i)(2) of this section.
No other transloading of the consignment is allowed, except under
extenuating circumstances (e.g., equipment breakdown) and when
authorized by an APHIS inspector upon determination by the inspector
that the transloading would not significantly increase the risk of the
introduction of plant pests or diseases into the United States, and
provided that APHIS inspectors are available to provide supervision.
Transloading of air consignments will be authorized only if the
following conditions are met:
(i) The transloading is done into sealable containers;
(ii) The transloading is carried out within the secure area of the
airport (i.e., that area of the airport that is open only to personnel
authorized by the airport security authorities);
(iii) The area used for any storage is within the secure area of
the airport; and
(iv) APHIS inspectors are available to provide the supervision
required by paragraph (i)(1) of this section.
(2) Except as authorized by paragraph (f) of this section,
consignments that continue by air from the port of arrival in the
continental United States may be authorized by APHIS for only one
additional stop in the continental United States, provided the second
stop is within the designated corridor set forth in paragraph (e) of
this section and is staffed by APHIS inspectors. As an alternative to
transloading a consignment arriving in the United States into another
aircraft, consignments that arrive by air may be transloaded into a
truck trailer for export by the most direct route to the final
destination of the consignment through the designated corridor set
forth in paragraph (e) of this section. This may be done at either the
port of arrival in the United States or at the second authorized air
stop within the designated corridor. No other transloading of the
consignment is allowed, except under extenuating circumstances (e.g.,
equipment breakdown) and when authorized by an APHIS inspector upon
determination by the inspector that the transloading would not
significantly increase the risk of the introduction of plant pests or
diseases into the United States, and provided that APHIS inspectors are
available to provide supervision.
(j) Duration and location of storage. Any storage in the United
States of fruits or vegetables shipped under this section must be for a
duration and in a location authorized in the transit permit required by
paragraph (a) of this section. Areas where such fruits or vegetables
are stored must be either locked or guarded at all times the fruits and
vegetables are present. Cargo shipped under this section must be kept
in a sealed container while stored in the continental United States.
(k) Temperature requirement. Except for time spent on aircraft and
except during storage and transloading of air consignments, the
temperature in the sealed containers containing fruits and vegetables
moved under this section must be 60 [deg]F or lower from the time the
regulated articles leave Hawaii, Puerto Rico, Guam, the Commonwealth of
the Northern Mariana Islands, the U.S. Virgin Islands, or any other
territory or possession of the United States until they exit the United
States.
(l) Prohibited materials. (1) The person in charge of or in
possession of a sealed container used for movement into or through the
United States under this section must ensure that the sealed container
is carrying only those fruits or vegetables authorized by the transit
permit required under paragraph (a) of this section; and
(2) The person in charge of or in possession of any means of
conveyance or container returned to the United States without being
reloaded after being used to export fruits or vegetables from the
United States under this section must ensure that the means of
conveyance or container is free of materials prohibited importation
into the United States under this chapter.
(m) Authorization by APHIS of the movement of fruits or vegetables
through the United States under this section does not imply that such
fruits or vegetables are enterable into the destination country.
Consignments returned to the United States from the destination country
shall be subject to all applicable regulations, including ``Subpart--
Fruits and Vegetables'' of part 319 and ``Plant Quarantine Safeguard
Regulations'' of part 352 of this chapter.
(n) Any restrictions and requirements with respect to the arrival,
temporary stay, unloading, transloading, transiting, exportation, or
other movement or possession in the United States of any fruits or
vegetables under this section shall apply to any person who brings
into, maintains, unloads, transloads, transports, exports, or otherwise
moves or possesses in the United States such fruits or vegetables,
whether or not that person is the one who was required to have a
transit permit or limited permit for the fruits or vegetables or is a
subsequent custodian of the fruits or vegetables. Failure to comply
with all applicable restrictions and requirements under this section by
such a person shall be deemed to be a violation of this section.

(Approved by the Office of Management and Budget under control
number 0579-0088)

Sec. 318.13-7 Products as ships' stores or in the possession of
passengers or crew.

(a) In the possession of passengers or crew members. Small
quantities of fruits, vegetables, or cut flowers subject to the
quarantine and regulations in this subpart, when loose and free of
packing materials, may be taken aboard any ship, vessel, or other
surface craft by passengers or members of the crew without inspection
and certification in the State of origin. However, if such articles are
not eligible for certification under Sec. 318.13-3, they must be
entirely consumed or disposed of before arrival within the territorial
waters of the continental United States, Hawaii, Puerto Rico, Guam, the
Commonwealth of the Northern Mariana Islands, or the U.S. Virgin
Islands.
(b) As ships' stores or decorations. Fruits, vegetables, or cut
flowers subject to the quarantine and regulations in this subpart may
be taken aboard a ship, vessel, or other surface craft in Hawaii,
Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or
the

[[Page 34220]]

U.S. Virgin Islands without inspection or certification. Fruits,
vegetables, and cut flowers that are so taken aboard such a carrier
must be either:
(1) Entirely consumed or removed from the ship, vessel, or other
surface craft before arrival within the territorial waters of the
continental United States, Hawaii, Puerto Rico, Guam, the Commonwealth
of the Northern Mariana Islands, the U.S. Virgin Islands, or any other
territory or possession of the United States; or
(2) In the case of a surface carrier, retained aboard such carrier
under seal or otherwise disposed of subject to safeguards equivalent to
those imposed on other prohibited or restricted products by paragraphs
(b) and (c) of Sec. 352.10 of this chapter.

Sec. 318.13-8 Articles and persons subject to inspection.

Persons, means of conveyance (including ships, other ocean-going
craft, and aircraft), baggage, cargo, and any other articles, that are
destined for movement, are moving, or have been moved from Hawaii,
Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or
the U.S. Virgin Islands to a destination elsewhere in the United States
are subject to agricultural inspection at the port of departure, the
port of arrival, or any other authorized port. If an inspector finds
any article prohibited movement by the quarantine and regulations of
this subpart, he or she, taking the least drastic action, shall order
the return of the article to the place of origin, or the exportation of
the article, under safeguards satisfactory to him or her, or otherwise
dispose of it, in whole or part, to comply with the quarantine and
regulations of this subpart.

Sec. 318.13-9 Inspection and disinfection of means of conveyance.

(a) Inspection of aircraft prior to departure. No person shall move
any aircraft from Hawaii, Puerto Rico, Guam, the Commonwealth of the
Northern Mariana Islands, or the U.S. Virgin Islands to any other State
unless the person moving the aircraft has contacted an inspector and
offered the inspector the opportunity to inspect the aircraft prior to
departure and the inspector has informed the person proposing to move
the aircraft that the aircraft may depart.
(b) Inspection of aircraft moving to Guam. Any person who has moved
an aircraft from Hawaii, Puerto Rico, the Commonwealth of the Northern
Mariana Islands, or the U.S. Virgin Islands to Guam shall contact an
inspector and offer the inspector the opportunity to inspect the
aircraft upon the aircraft's arrival in Guam.
(c) Inspection of ships upon arrival. Any person who has moved a
ship or other ocean-going craft from Hawaii, Puerto Rico, Guam, the
Commonwealth of the Northern Mariana Islands, or the U.S. Virgin
Islands to any other State shall contact an inspector and offer the
inspector the opportunity to inspect the ship or other ocean-going
craft upon its arrival.
(d) Disinfection of means of conveyance. If an inspector finds that
a means of conveyance is infested with or contains plant pests, and the
inspector orders disinfection of the means of conveyance, then the
person in charge or in possession of the means of conveyance shall
disinfect the means of conveyance and its cargo in accordance with an
approved method contained in part 305 of this chapter under the
supervision of an inspector and in a manner prescribed by the
inspector, prior to any movement of the means of conveyance or its
cargo.

Sec. 318.13-10 Inspection of baggage, other personal effects, and
cargo.

(a) Offer for inspection by aircraft passengers. Passengers
destined for movement by aircraft from Hawaii, Puerto Rico, Guam, the
Commonwealth of the Northern Mariana Islands, or the U.S. Virgin
Islands to any other State shall offer their carry-on baggage and other
personal effects for inspection at the place marked for agricultural
inspections, which will be located at the airport security checkpoint
or the aircraft boarding gate, at the time they pass through the
checkpoint or the gate. Passengers shall offer their check-in baggage
for inspection at agricultural inspection stations prior to submitting
their baggage to the check-in baggage facility. When an inspector has
inspected and passed such baggage or personal effects, he or she shall
apply a U.S. Department of Agriculture stamp, inspection sticker, or
other identification to such baggage or personal effects to indicate
that such baggage or personal effects have been inspected and passed as
required. Passengers shall disclose any fruits, vegetables, plants,
plant products, or other articles that are requested to be disclosed by
the inspector. When an inspection of a passenger's baggage or personal
effects discloses an article in violation of the regulations in this
part, the inspector shall seize the article. The passenger shall state
his or her name and address to the inspector, and provide the inspector
with corroborative identification. The inspector shall record the name
and address of the passenger, the nature of the identification
presented for corroboration, the nature of the violation, the types of
articles involved, and the date, time, and place of the violation.
(b) Offer for inspection by aircraft crew. Aircraft crew members
destined for movement by aircraft from Hawaii, Puerto Rico, Guam, the
Commonwealth of the Northern Mariana Islands, or the U.S. Virgin
Islands to any other State, shall offer their baggage and personal
effects for inspection at the inspection station designated for the
employing airline not less than 20 minutes prior to the scheduled
departure time of the aircraft or the rescheduled departure time as
posted in the public areas of the airport. When an inspector has
inspected and passed such baggage or personal effects, he or she shall
apply a U.S. Department of Agriculture stamp, inspection sticker, or
other identification to the baggage or personal effects to indicate
that such baggage or personal effects have been inspected and passed as
required. Aircraft crew members shall disclose any fruits, vegetables,
plants, plant products, or other articles that are requested to be
disclosed by the inspector. When an inspection of a crew member's
baggage or personal effects discloses an article in violation of the
regulations in this part, the inspector shall seize the article. The
crew member shall state his or her name and address to the inspector,
and provide the inspector with corroborative identification. The
inspector shall record the name and address of the crew member, the
nature of the identification presented for corroboration, the nature of
the violation, the types of articles involved, and the date, time, and
place of the violation.
(c) Baggage inspection for persons traveling to Guam on aircraft.
No person who has moved from Hawaii, Puerto Rico, or the U.S. Virgin
Islands to Guam on an aircraft shall remove or attempt to remove any
baggage or other personal effects from the area secured for customs
inspections before the person has offered to an inspector, and has had
passed by the inspector, his or her baggage and other personal effects.
Persons shall disclose any fruits, vegetables, plants, plant products,
or other articles that are requested to be disclosed by the inspector.
When an inspection of a person's baggage or personal effects discloses
an article in violation of the regulations in this part, the inspector
shall seize the article. The person shall state his or her name and
address to the inspector, and provide the inspector with corroborative
identification. The inspector shall

[[Page 34221]]

record the name and address of the person, the nature of the
identification presented for corroboration, the nature of the
violation, the types of articles involved, and the date, time, and
place of the violation.
(d) Baggage acceptance and loading on aircraft. No person shall
accept or load any check-in aircraft baggage destined for movement from
Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana
Islands, or the U.S. Virgin Islands to any other State unless the
baggage bears a U.S. Department of Agriculture stamp, inspection
sticker, or other indication applied by an inspector representing that
the baggage has been inspected and certified.
(e) Offer for inspection by persons moving by ship. No person who
has moved on any ship or other oceangoing craft from Hawaii, Puerto
Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the
U.S. Virgin Islands to any other territory, State, or District of the
United States, shall remove or attempt to remove any baggage or other
personal effects from the designated inspection area as provided in
paragraph (h) of this section on or off the ship or other ocean-going
craft unless the person has offered to an inspector for inspection, and
has had passed by the inspector, the baggage and other personal
effects. Persons shall disclose any fruits, vegetables, plants, plant
products, or other articles that are requested to be disclosed by the
inspector. When an inspection of a person's baggage or personal effects
discloses an article in violation of the regulations in this part, the
inspector shall seize the article. The person shall state his or her
name and address to the inspector, and provide the inspector with
corroborative identification. The inspector shall record the name and
address of the person, the nature of the identification presented for
corroboration, the nature of the violation, the types of articles
involved, and the date, time, and place of the violation.
(f) Loading of certain cargoes. (1) Except as otherwise provided in
paragraph (f)(2) of this section, no person shall present to any common
carrier or contract carrier for movement, and no common carrier or
contract carrier shall load, any cargo containing fruits, vegetables,
or other articles regulated under this subpart that are destined for
movement from Hawaii, Puerto Rico, Guam, or the U.S. Virgin Islands to
any other State unless the cargo has been offered for inspection,
passed by an inspector, and bears a U.S. Department of Agriculture
stamp or inspection sticker, or unless a limited permit is attached to
the cargo as specified in Sec. 318.13-3(e).
(2) Cargo designated may be loaded without a U.S. Department of
Agriculture stamp or inspection sticker attached to the cargo or a
limited permit attached to the cargo if the cargo is moved:
(i) As containerized cargo on ships or other oceangoing craft or as
air cargo;
(ii) The carrier has on file documentary evidence that a valid
limited permit was issued for the movement or that the cargo was
certified; and
(iii) A notation of the existence of these documents is made by the
carrier on the waybill, manifest, or bill of lading that accompanies
the consignment.
(3) Cargo moved in accordance with Sec. 318.13-6(b) that does not
have a limited permit attached to the cargo must have a limited permit
attached to the waybill, manifest, or bill of lading accompanying the
consignment.
(g) Removal of certain cargoes in Guam. No person shall remove or
attempt to remove from a designated inspection area as provided in
paragraph (h) of this section, on or off the means of conveyance, any
cargo moved from Hawaii, Puerto Rico, the Commonwealth of the Northern
Mariana Islands, or the U.S. Virgin Islands to Guam containing fruits,
vegetables, or other articles regulated under this subpart, unless the
cargo has been inspected and passed by an inspector in Guam.
(h) Space and facilities for baggage and cargo inspection. Baggage
and cargo inspection will not be performed until the person in charge
or possession of the ship, other oceangoing craft, or aircraft provides
space and facilities on the means of conveyance, pier, or airport that
are adequate, in the inspector's judgment, for the performance of
inspection.

Sec. 318.13-11 Posting of warning notice and distribution of baggage
declarations.

(a) Before any aircraft or any ship, vessel, or other surface craft
moving to Guam, the Commonwealth of Northern Mariana Islands, or
American Samoa from Hawaii or any other territory or possession of the
United States arrives in Guam, the Commonwealth of Northern Mariana
Islands, or American Samoa, a baggage declaration, to be furnished by
the U.S. Department of Agriculture, calling attention to the provisions
of the Plant Protection Act, and the quarantine and regulations in this
subpart, must be distributed to each adult passenger. These baggage
declarations shall be executed and signed by the passengers and shall
be collected and delivered by the master or other responsible officer
of the aircraft, ship, vessel, or other surface craft to the inspector
on arrival at the quarantine or inspection area.
(b) Every person owning or controlling any dock, harbor, or landing
field in Hawaii, Puerto Rico, Guam, the Commonwealth of Northern
Mariana Islands, or the U.S. Virgin Islands from which ships, vessels,
other surface craft, or aircraft leave for ports in any other State
shall post, and keep posted at all times, in one or more conspicuous
places in passenger waiting rooms on or in said dock, harbor, or
landing field a warning notice directing attention to the quarantine
and regulations in this subpart. Every master, or other responsible
officer of any ship, vessel, other surface craft, or aircraft leaving
Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana
Islands, or the U.S. Virgin Islands destined to a port in any other
State, shall similarly post, and keep posted at all times, such a
warning notice in the ship, vessel, other surface craft, or aircraft
under his charge.

Sec. 318.13-12 Movement by the U.S. Department of Agriculture.

Notwithstanding any other restrictions of this subpart, regulated
articles may be moved if they are moved by the U.S. Department of
Agriculture for experimental or scientific purposes and are moved under
conditions found by the Administrator to be adequate to prevent the
spread of plant pests and diseases.

Sec. 318.13-13 Movement of frozen fruits and vegetables.

Frozen fruits and vegetables may be certified for movement from
Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana
Islands, or the U.S. Virgin Islands, into or through any other
territory, State, or District of the United States in accordance with
Sec. 318.13-3. Such fruits and vegetables must be held at a
temperature not higher than 20 [deg]F during shipping and upon arrival
in the continental United States, and in accordance with the
requirements for the interstate movement of frozen fruits and
vegetables in part 305 of this chapter. Paragraph (b) of Sec. 305.17
lists frozen fruits and vegetables for which quick freezing is not an
authorized treatment.

Sec. 318.13-14 Movement of processed fruits, vegetables, and other
products.

(a) Fruits, vegetables, and other products that are processed
sufficiently as to preclude the survival of any live

[[Page 34222]]

pests can be moved interstate from Hawaii, Puerto Rico, the U.S. Virgin
Islands, Guam, and the Commonwealth of the Northern Mariana Islands.
Those processed products which are approved for interstate movement
from those States can be found in the fruits and vegetables manuals for
those States.
(b) Consignments of processed fruits, vegetables, or other products
that have not been processed sufficiently as to be incapable of
harboring fruit flies, are subject to the interstate movement
requirements which apply to the fruit, vegetable, or other product in
its unprocessed state.

Sec. 318.13-15 Parcel post inspection.

Inspectors are authorized to inspect, with the cooperation of the
U.S. Postal Service, parcel post packages placed in the mails in
Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana
Islands, or the U.S. Virgin Islands to determine whether such packages
contain products whose movement is not authorized under this subpart,
to examine any such products that are found for insect infestation, and
to notify the postmaster in writing of any violations of this subpart
that are found as a result of an inspection.

Sec. 318.13-16 Regulated articles allowed interstate movement subject
to specified conditions.

(a) The following regulated articles may be moved interstate in
accordance with Sec. 318.13-3 and any additional requirements
specified in paragraph (b) of this section.

----------------------------------------------------------------------------------------------------------------
State, territory, or district
of origin Common name Botanical name Plant part(s) Additional requirements
----------------------------------------------------------------------------------------------------------------
Hawaii....................... Bananas\1\...... Musa spp........ Fruit.......... (b)(1)(i), (b)(2)(ii)
Pot marigold, Calendula spp... Flower......... (b)(2)(iii)
johnny-jump-
ups, pansies,
and violets.
Pineapple \2\... Ananas comosus.. Fruit.......... (b)(2)(i)
Puerto Rico.................. Cactus.......... Cactaceae....... Whole plant.... (b)(2)(iv), (b)(3)(ii)
Okra............ Abelmoschus Fruit.......... (b)(3)(i)
escuelentus.
Pot marigold, Calendula spp... Flower......... (b)(2)(iii)
johnny-jump-
ups, pansies,
and violets.
U.S. Virgin Islands.......... Cactus.......... Cactaceae....... Whole plant.... (b)(2)(iv), (b)(3)(ii)
Okra............ Abelmoschus Fruit.......... (b)(3)(i)
escuelentus.
Pot marigold, Calendula spp... Flower......... (b)(2)(iii)
johnny-jump-
ups, pansies,
and violets.
----------------------------------------------------------------------------------------------------------------
\1\ Fruit may also be moved interstate in accordance with Sec. 318.13-17.
\2\ Fruit may also be moved interstate with treatment in accordance with part 305 of this chapter.

(b) Additional restrictions for applicable regulated articles as
specified in paragraph (a) of this section.
(1) Restricted movement and distribution.
(i) Allowed movement into Alaska. Cartons must be labeled, ``For
distribution in Alaska only.''
(ii) [Reserved]
(2) Plant types.
(i) Smooth cayenne variety and hybrids with 50 percent or more
smooth cayenne parentage only.
(ii) Green bananas of the cultivars ``Williams,'' ``Valery,''
``Grand Nain,'' and standard and dwarf ``Brazilian'' only.
(iii) Inflorescences only with no stems or leaves attached.
(iv) Bare-rooted plants or plants rooted in approved growing media
only.
(3) Other conditions.
(i) If destined to States other than Alabama, Arizona, Arkansas,
California, Florida, Georgia, Illinois, Kentucky, Louisiana,
Mississippi, Missouri, Nevada, New Mexico, North Carolina, Oklahoma,
South Carolina, Tennessee, Texas, or Virginia, the consignment must be
treated in accordance with part 305 of this chapter unless the
consignment is for immediate consumption or processing.
(ii) Must be treated in accordance with part 305 of this chapter.

Sec. 318.13-17 Regulated articles from Guam.

(a)(1) Regulated articles, other than soil, may be moved from Guam
into or through any other State only if, they meet the strictest plant
quarantine requirements under part 319 of this chapter for similar
articles offered for entry into such States from the countries of East
and Southeast Asia, including Cambodia, India, Japan, Korea, Laos, the
northeastern provinces of Manchuria, the Philippines, Taiwan, and
Vietnam or the islands of the Central and South Pacific, including
Micronesia, Melanesia, and Polynesia, as well as Australia, New
Zealand, and the Malay Archipelago, except requirements for permits,
phytosanitary certificates, notices of arrival, and notices of
consignment from port of arrival. Soil must meet the requirements of
Sec. 330.300 of this chapter.
(2) Regulated articles that do not meet the requirements of
paragraph (a)(1) of this section are prohibited movement from Guam into
or through any other State.
(b)(1) Regulated articles moved from Guam into or through any other
State shall be subject to inspection at the port of first arrival in
another part of the United States to determine whether they are free of
plant pests and otherwise meet the requirements applicable to them
under this subpart, and shall be subject to release, in accordance with
Sec. 330.105(a) of this chapter as if they were foreign arrivals. Such
articles shall be released only if they meet all applicable
requirements under this subpart.
(2) A release shall be issued in writing unless the inspection
involves small quantities of regulated articles, in which case a
release may be issued orally by the inspector.

Sec. Sec. 318.13-18 through 318.13-20 [Reserved]

Sec. 318.13-21 Avocados from Hawaii to Alaska.

Avocados may be moved interstate from Hawaii to Alaska without
treatment only under the following conditions:
(a) Distribution and marking requirements. The avocados may be
moved interstate for distribution in Alaska only, the boxes of avocados
must be clearly marked with the statement ``Distribution limited to the
State of Alaska,'' and the consignment must be identified in accordance
with the requirements of Sec. 318.13-3.
(b) Commercial consignments. The avocados may be moved in
commercial consignments only.
(c) Packing requirements. The avocados must have been sealed in the

[[Page 34223]]

packinghouse in Hawaii in boxes with a seal that will break if the box
is opened.
(d) Ports. The avocados may enter the continental United States
only at the following ports: Portland, OR; Seattle, WA; or any port in
Alaska.
(e) Shipping requirements. The avocados must be moved either by air
or ship and in a sealed container. The avocados may not be commingled
in the same sealed container with articles that are intended for entry
and distribution in any State other than Alaska. If the avocados arrive
at either Portland, OR, or Seattle, WA, they may be transloaded only
under the following conditions:
(1) Consignments by sea. The avocados may be transloaded from one
ship to another ship at the port of arrival, provided they remain in
the original sealed container and that APHIS inspectors supervise the
transloading. If the avocados are stored before reloading, they must be
kept in the original sealed container and must be in an area that is
either locked or guarded at all times the avocados are present.
(2) Consignments by air. The avocados may be transloaded from one
aircraft to another aircraft at the port of arrival, provided the
following conditions are met:
(i) The transloading is done into sealable containers;
(ii) The transloading is carried out within the secure area of the
airport (i.e., that area of the airport that is open only to personnel
authorized by the airport security authorities);
(iii) The area used for any storage of the consignment is within
the secure area of the airport, and is either locked or guarded at all
times the avocados are present. The avocados must be kept in a sealed
container while stored in the continental United States en route to
Alaska; and
(iv) APHIS inspectors supervise the transloading.
(3) Exceptions. No transloading other than that described in
paragraphs (e)(1) and (e)(2) of this section is allowed except under
extenuating circumstances (such as equipment breakdown) and when
authorized and supervised by an APHIS inspector.
(f) Limited permit. Consignments of avocados must be accompanied by
a limited permit issued by an APHIS inspector in accordance with Sec.
318.13-3(c). The limited permit will be issued only if the inspector
examines the consignment and determines that the consignment has been
prepared in compliance with the provisions of this section.

Sec. 318.13-22 Bananas from Hawaii.

(a) Green bananas (Musa spp.) of the cultivars ``Williams,''
``Valery,'' ``Grand Nain,'' and standard and dwarf ``Brazilian'' may be
moved interstate from Hawaii with certification in accordance with
Sec. 318.13-3 of this subpart if the bananas meet the following
conditions:\3\
---------------------------------------------------------------------------

\3\ Bananas from Hawaii may also be moved to Alaska under Sec.
318.13-16.
---------------------------------------------------------------------------

(1) The bananas must be picked while green and packed for shipment
within 24 hours after harvest. If the green bananas will be stored
overnight during that 24-hour period, they must be stored in a facility
that prevents access by fruit flies;
(2) No bananas from bunches containing prematurely ripe fingers
(i.e., individual yellow bananas in a cluster of otherwise green
bananas) may be harvested or packed for shipment;
(3) The bananas must be inspected by an inspector and found free of
plant pests as well as any of the following defects: Prematurely ripe
fingers, fused fingers, or exposed flesh (not including fresh cuts made
during the packing process); and
(4) To safeguard from fruit fly infestation, the bananas must be
covered with insect proof packaging, such as insect-proof mesh screens
or plastic tarpaulins, from the time that they are packaged for
shipment until they reach the port of arrival on the mainland United
States.
(b) Bananas of any cultivar or ripeness that do not meet the
conditions of paragraph (a) of this section may also be moved
interstate from Hawaii in accordance with the following conditions:
(1) The bananas are irradiated at the minimum dose listed in Sec.
305.31(a) of this chapter and in accordance with the other requirements
in Sec. 305.34 of this chapter for the Mediterranean fruit fly
(Ceratitis capitata), the melon fruit fly (Bactrocera curcurbitae), the
Oriental fruit fly (Bactrocera dorsalis), and the green scale (Coccus
viridis) and are inspected, after removal from the stalk, in Hawaii and
found to be free of the banana moth (Opogona sacchari (Bojen)) by an
inspector before or after undergoing irradiation treatment; or
(2) The bananas are irradiated at the minimum dose listed in Sec.
305.31(a) of this chapter and in accordance with the other requirements
in Sec. 305.34 of this chapter for the Mediterranean fruit fly
(Ceratitis capitata), the melon fruit fly (Bactrocera curcurbitae), and
the Oriental fruit fly (Bactrocera dorsalis) and are inspected, after
removal from the stalk, in Hawaii and found to be free of the green
scale (Coccus viridis) and the banana moth (Opogona sacchari (Bojen))
before or after undergoing irradiation treatment.
(3) Untreated bananas from Hawaii may be moved interstate for
treatment on the mainland United States under a limited permit issued
by an inspector. To be eligible for a limited permit under this
paragraph, bananas from Hawaii must be inspected prior to interstate
movement from Hawaii and found free of banana moth if they are to be
treated in accordance with the requirements of paragraph (b)(1) of this
section or inspected and found free of banana moth and green scale if
they are to be treated in accordance with the requirements of paragraph
(b)(2) of this section.

Sec. 318.13-23 Cut flowers from Hawaii.

(a) Except for cut blooms and leis of mauna loa and jade vine and
except for cut blooms of gardenia not grown in accordance with
paragraph (b) of this section, cut flowers may be moved interstate from
Hawaii under limited permit, to a destination specified in the permit,
directly from an establishment operated in accordance with the terms of
a compliance agreement executed by the operator of the establishment,
if the articles have not been exposed to infestation and they are not
accompanied by any articles prohibited interstate movement under this
subpart.
(b) Cut blooms of gardenia may be moved interstate from Hawaii if
grown and inspected in accordance with the provisions of this
section.\4\
---------------------------------------------------------------------------

\4\ Cut blooms of gardenia are also eligible for interstate
movement with treatment in accordance with part 305 of this chapter.
---------------------------------------------------------------------------

(1) The grower's production area must be inspected annually by an
inspector and found free of green scale. If green scale is found during
an inspection, a 2-month ban will be placed on the interstate movement
of cut blooms of gardenia from that production area. Near the end of
the 2 months, an inspector will reinspect the grower's production area
to determine whether green scale is present. If reinspection determines
that the production area is free of green scale, shipping may resume.
If reinspection determines that green scale is still present in the
production area, another 2-month ban on shipping will be placed on the
interstate movement of gardenia from that production area. Each ban
will be followed by reinspection in the manner specified, and the
production area must be found free of green scale prior to interstate
movement.

[[Page 34224]]

(2) The grower must establish a buffer area surrounding gardenia
production areas. The buffer area must extend 20 feet from the edge of
the production area. Within the buffer area, the growing of gardenias
and the following green scale host plants is prohibited: Ixora, ginger
(Alpinia purpurata), plumeria, coffee, rambutan, litchi, guava, citrus,
anthurium, avocado, banana, cocoa, macadamia, celery, Pluchea indica,
mango, orchids, and annona.
(3) An inspector must visually inspect the cut blooms of gardenias
in each consignment prior to interstate movement from Hawaii to the
mainland United States. If the inspector does not detect green scale in
the consignment, the inspector will certify the consignment in
accordance with Sec. 318.13-3(b). If the inspector finds green scale
in a consignment, that consignment will be ineligible for interstate
movement from Hawaii. (Approved by the Office of Management and Budget
under control number 0579-0197)

Sec. 318.13-24 Sweetpotatoes from Puerto Rico.

Sweetpotatoes from Puerto Rico may be moved interstate to Atlantic
Coast ports north of and including Baltimore, MD, under limited permit
if treated in accordance with part 305 of this chapter or if the
following conditions are met:
(a) The sweetpotatoes must be certified by an inspector of Puerto
Rico as having been grown under the following conditions:
(1) Fields in which the sweetpotatoes have been grown must have
been given a preplanting treatment with an APHIS-approved soil
insecticide.
(2) Before planting in such treated fields, the sweetpotato draws
and vine cuttings must have been dipped in an APHIS-approved
insecticidal solution.
(3) During the growing season an approved insecticide must have
been applied to the vines at prescribed intervals.
(b) An inspector of Puerto Rico must certify that the sweetpotatoes
have been washed.
(c) The sweetpotatoes must be graded by inspectors of Puerto Rico
in accordance with Puerto Rican standards which do not provide a
tolerance for insect infestation or evidence of insect injury and found
by such inspectors to comply with such standards prior to movement from
Puerto Rico.
(d) The sweetpotatoes must be inspected by an inspector and found
to be free of the sweetpotato scarabee (Euscepes postfasciatus Fairm).

Sec. 318.13-25 Sweetpotatoes from Hawaii.

(a) Sweetpotatoes may be moved interstate from Hawaii in accordance
with this section only if the following conditions are met: \5\
---------------------------------------------------------------------------

\5\ Sweetpotatoes may also be moved interstate from Hawaii with
irradiation in accordance with Sec. 305.34 of this chapter or after
fumigation with methyl bromide according to treatment schedule T-
101-b-3-1, as provided for in Sec. 305.6(a) of this chapter.
---------------------------------------------------------------------------

(1) The sweetpotatoes must be treated in accordance with the vapor
heat treatment schedule specified in Sec. 305.24.
(2) The sweetpotatoes must be sampled, cut, and inspected and found
to be free of the ginger weevil (Elytrotreinus subtruncatus). Sampling,
cutting, and inspection must be performed under conditions that will
prevent any pests that may emerge from the sampled sweetpotatoes from
infesting any other sweetpotatoes intended for interstate movement in
accordance with this section.
(3) The sweetpotatoes must be inspected and found to be free of the
gray pineapple mealybug (Dysmicoccus neobrevipes) and the Kona coffee-
root knot nematode (Meloidogyne konaensis).
(4)(i) Sweetpotatoes that are treated in Hawaii must be packaged in
the following manner:
(A) The cartons must have no openings that will allow the entry of
fruit flies and must be sealed with seals that will visually indicate
if the cartons have been opened. They may be constructed of any
material that prevents the entry of fruit flies and prevents
oviposition by fruit flies into the fruit in the carton.\6\
---------------------------------------------------------------------------

\6\ If there is a question as to the adequacy of a carton, send
a request for approval of the carton, together with a sample carton,
to the Animal and Plant Health Inspection Service, Plant Protection
and Quarantine, Center for Plant Health Science and Technology, 1730
Varsity Drive, Suite 400, Raleigh, NC 27606.
---------------------------------------------------------------------------

(B) The pallet-load of cartons must be wrapped before it leaves the
treatment facility in one of the following ways:
(1) With polyethylene sheet wrap;
(2) With net wrapping; or
(3) With strapping so that each carton on an outside row of the
pallet load is constrained by a metal or plastic strap.
(C) Packaging must be labeled with treatment lot numbers, packing
and treatment facility identification and location, and dates of
packing and treatment.
(ii) Cartons of untreated sweetpotatoes that are moving to the
mainland United States for treatment must be shipped in shipping
containers sealed prior to interstate movement with seals that will
visually indicate if the shipping containers have been opened.
(5)(i) Certification on basis of treatment. Certification shall be
issued by an inspector for the movement of sweetpotatoes from Hawaii
that have been treated in accordance with part 305 of this chapter and
handled in Hawaii in accordance with this section.
(ii) Limited permit. A limited permit shall be issued by an
inspector for the interstate movement of untreated sweetpotato from
Hawaii for treatment on the mainland United States in accordance with
this section.
(b) [Reserved]

(Approved by the Office of Management and Budget under control
number 0579-0281)

Subpart--Fruits and Vegetables From Puerto Rico or Virgin Islands
[Removed]

5. Subpart--Fruits and Vegetables From Puerto Rico or Virgin
Islands, consisting of Sec. Sec. 318.58 through 318.58-16, is removed.

Subpart--Guam [Removed]

6. Subpart--Guam, consisting of Sec. Sec. 318.82 through 318.82-3,
is removed.

Done in Washington, DC, this 10th day of June 2008.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E8-13480 Filed 6-16-08; 8:45 am]
BILLING CODE 3410-34-P