[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 2770-2786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-762]
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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: Final rule.
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SUMMARY: We are revising and reorganizing 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eliminate redundant requirements, update terms and remove outdated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 making substantive changes to the regulations including
establishing criteria within the regulations that, if met, will 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
acknowledging pest-free areas while continuing to allow for public
participation in the processes. This final rule does not allow for the
interstate movement of any specific new fruits or vegetables, nor does
it alter the conditions for interstate movement of currently approved
fruits or vegetables. These changes will make our domestic interstate
movement regulations more consistent with our fruits and vegetables
import regulations. The changes in this final rule will not alter the
manner in which the risk associated with a regulated article interstate
movement request is evaluated, nor will they alter the manner in which
those risks are ultimately mitigated.
DATES: Effective Date: February 17, 2009.
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.
On June 17, 2008, we published in the Federal Register (73 FR
34202-34224, Docket No. APHIS-2007-0052) a proposal \1\ to amend the
regulations by revising and reorganizing those portions of the
regulations pertaining to the interstate movement of fruits and
vegetables to consolidate requirements of general applicability and
eliminate redundant requirements, updating terms and remove outdated
requirements and references, and making various editorial and
nonsubstantive changes to the regulations to make them easier to use.
We also proposed 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
[[Page 2771]]
articles. These changes were 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.
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\1\ To view the proposed rule and the comments we received, go
to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0052.
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We solicited comments concerning our proposal for 60 days ending
August 18, 2008. We received three comments by that date. They were
from private citizens. They are discussed below.
One commenter raised concerns about actions taken at Guam ports of
entry with regard to plants moved interstate from Hawaii. The commenter
stated that inspectors in Guam are requiring treatment or destruction
of plants due to the presence on the plants of a black fungus that is
already present in Guam. The commenter stated that the fungus occurs on
plants after they have been treated to ensure that the coqui frog is
not introduced into Guam. The commenter also stated that the fungus is
present in Guam and can be easily controlled by wiping it off the
plant.
The issues raised by the commenter did not relate to any specific
requirements for treatments that are included in the regulations or
that were addressed by the proposal. We will ensure that inspectors in
Guam use the least restrictive measure necessary to prevent the
introduction of plant pests into Guam.
One commenter opposed the use of irradiation as a phytosanitary
treatment.
Irradiation has been proven to be an effective phytosanitary
treatment for certain plant pests. Therefore, it is appropriate to
provide for its use as an option in mitigating the risk associated with
those plant pests. We did not propose to change the pests for which
irradiation is an approved treatment or to allow the interstate
movement of any new fruits or vegetables with irradiation treatment.
One commenter recommended the use of Hazard Analysis and Critical
Control Point plans in phytosanitary systems to prevent risks to health
and the environment.
We perform a pest risk analysis when determining whether to
authorize the interstate movement of a fruit or vegetable from Hawaii
or the territories. Our pest risk analysis process takes such risks
into account.
We are making no changes in response to these comments. However, we
are making minor changes to the proposal in this final rule.
We proposed to establish a performance-based process for approving
the interstate movement of commodities that, based on the findings of a
pest risk analysis, can be safely moved interstate subject to one or
more of certain designated phytosanitary measures. One of the
designated measures we proposed to use in this process was inspection
in the first State of arrival. This proposed designated measure was
similar to a designated measure used in the performance-based process
for approving the importation of fruits and vegetables in Sec. 319.56-
4. That designated measure is inspection upon arrival in the United
States.
However, while imported fruits and vegetables are first subject to
U.S. Government inspectors upon arrival in the United States, fruits
and vegetables moved interstate are always subject to State or Federal
inspection, whether inspected in the State of origin or in the State of
arrival. Indeed, the primary inspection for fruits and vegetables moved
interstate is often performed in the State of origin. Therefore, we are
changing the designated measure we proposed to establish in Sec.
318.13-4(b)(1) by referring to inspection either in the State of origin
or in the State of first arrival. We are making a similar change to
proposed paragraph (c)(2)(i)(B)(1) of Sec. 318.13-4, which referred to
this designated measure.
We proposed to amend Sec. 305.17 to indicate that quick freezing
treatment is approved for fruits and vegetables moved interstate from
Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana
Islands (CNMI), or the U.S. Virgin Islands, except for the fruits and
vegetables listed in paragraph (b) of Sec. 305.17. However, we
neglected to propose to amend paragraph (b) to indicate that quick
freezing is not an authorized treatment for mango with seeds from
Hawaii, although mango with seeds is listed in the Hawaii fruits and
vegetables manual as a fruit for which quick freezing treatment is not
authorized. In this final rule, we are amending paragraph (b) of Sec.
305.17 to indicate that quick freezing treatment is not authorized for
mango with seeds from Hawaii.
We are also making some nonsubstantive editorial changes:
The part heading for 7 CFR part 318 has read ``Hawaiian
and Territorial Quarantine Notices.'' We are changing this part heading
to read ``State of Hawaii and Territories Quarantine Notices.''
In paragraph (b) of proposed Sec. 318.13-1, ``Notice of
quarantine,'' we indicated that the movement of (among other things)
plants and portions of plants from Hawaii and the territories would be
prohibited except as provided in the proposed subpart ``Regulated
Articles From Hawaii and the Territories.'' However, the movement of
cotton plants and plant parts under certain conditions is authorized
under ``Subpart--Territorial Cotton, Cottonseed, and Cottonseed
Products'' (Sec. Sec. 318.47 through 318.47-4), and we did not propose
to change that subpart or those requirements. Accordingly, in this
final rule, paragraph (b) of Sec. 318.13-1 refers to the movement of
plants and portions of plants being authorized under ``Subpart--
Territorial Cotton, Cottonseed, and Cottonseed Products'' as well as
under ``Subpart--Regulated Articles From Hawaii and the Territories.''
In the proposed regulatory text, we made several
references to the term ``consignment'' and to the Plant Protection and
Quarantine (PPQ) program, but did not define those terms. In this final
rule, we are adding definitions of those terms. The definition of
``consignment'' is identical to the definition of that term in our
imported fruits and vegetables regulations (in Sec. 319.56-2) except
that it refers to certificates and limited permits rather than to
phytosanitary certificates.
We proposed to amend the definition of ``cut flowers'' to
indicate that such flowers are customarily used in the florist trade
and not planting. In this final rule, we are changing the proposed
definition by adding the word ``for'' before ``planting,'' to further
clarify the intended use of cut flowers.
We proposed to retain the definitions of ``State'' and
``United States'' that have been set out in Sec. 318.13-1. However,
these definitions are not consistent with the definitions of those
terms in the Plant Protection Act (7 U.S.C. 7701 et seq.). In this
final rule, we are adding definitions of these terms that are based on
the Plant Protection Act definitions. The new definitions are
substantively identical to the previous ones.
The regulations in Sec. Sec. 318.13-17 and 318.58-12 have
provided certain general conditions for transit of fruits and
vegetables into or through the continental United States from Hawaii
and from Puerto Rico and the U.S. Virgin Islands, respectively. We
proposed to consolidate these provisions in Sec. 318.13-6. In the
context of labeling requirements, proposed Sec. 318.13-6 referred both
to ``English common names'' and ``English names.'' In this final rule,
Sec. 318.13-6 refers only to ``English common names'' for consistency
and clarity.
The regulations in Sec. Sec. 318.13-8 and 318.54-8 have
stated that 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 interstate
[[Page 2772]]
from Hawaii and Puerto Rico, respectively, are subject to agricultural
inspection at various points during movement. We proposed to
consolidate these requirements in Sec. 318.13-8 but otherwise did not
propose to change them. In this final rule, we are adding the words
``In addition to the inspection requirements in Sec. Sec. 318.13-9 and
318.13-10'' to the beginning of Sec. 318.13-8, to ensure that the
reader is aware of all the provisions related to inspection.
We proposed to add restrictions on the interstate movement
of processed fruits, vegetables, and other products in a new Sec.
318.13-14. In our proposed regulatory text, we referred the reader to
the fruits and vegetables manuals to find which processed products are
approved for interstate movement. In the final rule, we are adding to
the new Sec. 318.13-14 the Web addresses where those manuals can be
found.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, with the
changes discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This final 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.
In accordance with the Regulatory Flexibility Act, we have analyzed
the potential economic effects of this action on small entities.
This rule revises and reorganizes the regulations pertaining to the
interstate movement of fruits and vegetables to consolidate
requirements of general applicability and eliminates redundant
requirements, updates terms and removes outdated requirements and
references, makes various editorial and nonsubstantive changes to
regulations to make them easier to use, and expand their applicability
to include CNMI and all other territories and possessions of the United
States.
APHIS is also making substantive changes to the regulations. This
rule establishes criteria within the regulations that, if met, 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.\2\ A similar type of notice-based process has been
implemented by APHIS for approving imports. Implementing this rule
ensures equitable treatment for domestic producers. This rule also does
away with the process of listing in the regulations specific
commodities as regulated articles. These changes 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.
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\2\ Regulated articles are fruits and vegetables that APHIS has
determined to not involve the risk of spreading plant pests as
ordinarily packaged or after treatment.
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Description and Estimate of the Number of Small Entities Affected by
the Rule
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.\3\ 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.\4\
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\3\ 2002 Economic Census. Department of Commerce. U.S. Bureau of
the Census. North American Industry Classification System (NAICS)
Category--424480: Fresh fruit and vegetable merchant wholesalers.
\4\ 2002 Census of Agriculture. U.S. Department of Agriculture.
National Agricultural Statistics Service. NAICS Categories--1112:
Vegetable and melon farming; 1113: Fruit and tree nut farming.
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Expected Effects of the Rule
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 National Agricultural Statistics
Service 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.
[[Page 2773]]
Notice-Based Process
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 regulated article. 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
introduction or dissemination of plant pests or noxious weeds into the
United States.
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 universal requirements.
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 commodity.
This rule establishes a new regulatory approach whereby APHIS will
approve or reject certain fruits and vegetables for movement into the
continental United States from Hawaii and the U.S. territories without
specific prior rulemaking, but in a manner that still provides for
public review and comment on the scientific documentation on which such
decisions are based. This notice-based process involves a risk analysis
that identifies all the pests of concern, documents how all quarantine
pests will be removed from the movement pathway through inspection and/
or treatment, and allows for public comment.
Currently, exceptions are made to the prohibition for specific
commodities moving from Hawaii and the territories provided that the
pest risk they pose is mitigated by specific phytosanitary measures.
For the vast majority of commodities listed in 7 CFR part 318,
inspection and/or treatment are the phytosanitary measures applied to
ensure that a commodity does not convey plant pests. For other
commodities, APHIS requires a more complex risk mitigation strategy
(i.e., a systems approach).
In considering whether to newly authorize the movement of a
commodity, APHIS identifies the phytosanitary measures necessary to
address the pest risk posed by the commodity. As a matter of current
APHIS policy, any decision made on whether to allow the movement of a
commodity from Hawaii or the U.S. territories into the continental
United States proceeds through the rulemaking process before the
decision can be implemented and the movement allowed.
The notice-based process will apply only to fruits and vegetables
that, based on the findings of a risk analysis, APHIS determines can be
safely moved interstate subject to one or more designated risk
management measures. These designated measures are: (1) Inspection in
the State of origin or in the State of first arrival and compliance
with all applicable provisions of 318.13-3; (2) treatment in accordance
with part 305 and certification of the treatment by an inspector; (3)
inspection and certification in the State of origin by an inspector or
a State agricultural inspector and found free of one or more specific
quarantine pests identified by risk analysis as likely to follow the
pathway; (4) commercial consignments only; (5) originating from a pest-
free area in the State of origin and the grower from which the
commodity originated has entered into a compliance agreement with the
Administrator; and (6) subject to box marking or labeling requirements.
Fruits and vegetables that require additional risk management beyond
one or more of the designated measures cited above will follow the
current rulemaking-based process.
By eliminating the need for specific rulemaking for commodities for
which the notice-based process is appropriate, considerable time
savings could be reaped. The current process for approving commodities
takes a notable period of time, ranging on average from 18 months to
upwards of 3 years (beginning with the initial request and ending with
the publication of the final rule). A significant portion of this time
is devoted to the rulemaking process. This rule will reduce the time
needed for approval for interstate movement of some fruits and
vegetables without eliminating the opportunity for public participation
in our analysis of risk.
Consumers benefit from the opportunity to purchase fruits and
vegetables from a variety of sources. Consumer expenditures for fruit
and vegetables are growing faster than for any food group other than
meats. Many of the commodities that will be covered by this rule are
likely to be niche products, such as tropical specialty fruits that are
unavailable or limited in availability in the continental United
States. This rule will allow producers to more quickly meet consumer
demand for those niche products. In addition, most fruit and vegetable
production in the continental United States is seasonal, with the
largest harvests occurring during the summer and fall. Hawaiian and
territorial produce supplement the supply of fruits and vegetables in
the continental United States, especially fresh products during the
winter, resulting in increased choices for consumers. Hawaiian and
territorial producers will also benefit from the ability to more
quickly respond to the demands of consumers.
In the current process, APHIS proceeds through rulemaking once it
has conducted a risk analysis and identified what phytosanitary
measures are necessary to address the pest risk posed by the commodity
for which permission for movement into the continental United States
has been requested. This rule amends the fruits and vegetables
regulations to allow the commodity to be listed as eligible for
movement under specified conditions. We expect that requests under this
process will lead relatively quickly to the interstate shipment of
particular fruits and vegetables that would otherwise face delay under
the rulemaking process. There are certain statutory, executive branch,
and departmental process requirements that are typically not required
under a notice-based process.
The movement requests most likely to qualify for the notice-based
process will be for specialty crops having limited markets. These
requests, when their risk analyses have been completed and needed
phytosanitary measures have been identified, are currently often
grouped together for rulemaking. We estimate that by using a notice-
based approach, commodity interstate movement approvals could be
accomplished 6 to 12 months sooner than when using the rulemaking
approach.
This rule does not alter the manner in which the risks associated
with a commodity movement request are evaluated, nor does it alter the
manner in which those risks are ultimately mitigated. The change merely
creates a process whereby certain fruits and vegetables from Hawaii and
the territories will be able to more quickly be approved for movement
into the continental United States, once it has been determined that
the commodity can be safely moved subject to one or more designated
risk management measures.
[[Page 2774]]
Approval of Pest-Free Areas
APHIS currently recognizes changes in pest-free areas via
rulemaking. For example, if an area where fruit flies are known to
exist is determined to be free of fruit flies, in order for a fruit or
vegetable that is a fruit fly host to move out of that area into the
continental United States without treatment or other mitigation for
fruit flies, APHIS must list the specific area in the regulations as a
fruit-fly free area. If changes in the pest-free status of such areas
occur, APHIS must revise the regulations to recognize the changes.
Given that such changes in the regulations can only be made via
rulemaking, the regulations may not reflect the actual status of a
particular area given the time it takes to propose a change to the
regulations, respond to comments on the proposal, and to publish a
final rule amending the regulations.
Under this rule, when provided with evidence that the pest-free
status of an area has changed, APHIS will publish in the Federal
Register a notice of the proposed change in status and take public
comment for 60 days. If no comments submitted to APHIS provide evidence
that its determination of pest freedom is incorrect, APHIS will
announce that it considers the area to be free of the specified pest
and that the area in question meets certain criteria.
This provision will have no immediate impact because there are
currently no designated pest-free areas in Hawaii or the territories.
However, it will allow APHIS to more quickly recognize changes in the
pest-free status of such areas, if any are established in Hawaii or the
U.S. territories in the future.
Listing of Specific Commodities Allowed To Move Into the Continental
United States
Under this rule, currently approved commodities will no longer be
listed in the regulations, nor will commodities that are approved for
movement subject to one or more of the designated measures described
previously be listed. Consequently, the lists of commodities will be
removed from the Code of Federal Regulations, as will a number of other
provisions in current commodity-specific sections in the regulations
that authorize movement of specific fruits and vegetables in accordance
with one or more of the designated measures.
APHIS' Hawaii/CNMI and Puerto Rico/U.S. Virgin Islands fruits and
vegetable manuals will list approved commodities, and the documentation
supporting their approval will be made available 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. These changes will not
alter how or whether a commodity is approved for movement, merely how
that status is presented. Therefore, these changes should therefore
have little, if any, impact.
Regulated Articles Allowed Interstate Movement Subject to Specific
Conditions
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 universal requirements. Most such
commodities will no longer be listed in the regulations under this
rule. Those commodities that are allowed interstate movement subject to
additional measures beyond the notice-based process measures will be
listed. Such commodities will remain subject to the same restrictions
that currently apply to their interstate movement.
In many cases, the fruits, vegetables, and other products from
Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam, and CNMI subject to
additional measures for movement have not been specifically listed in
the regulations. This rule will therefore add some commodities to the
regulations. However, these measures are currently being enforced
administratively. Therefore, these additions to the regulations do not
represent a significant change to interstate movement policy, and
should have little, if any, impact.
Reorganization of the Regulations and Consolidation of Similar
Provisions
This rule will also 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. These changes will not,
however, represent a change in program operations, and should therefore
have little, if any, impact.
Conclusion
In sum, 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 rule represents a
significant 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 will be for specialty crops having limited
markets. This rule will not alter the conditions that apply to
currently approved fruits or vegetables.
Of particular note with respect to the approval process, the change
will 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 rule, itself, will not allow for the interstate movement
of any specific fruits or vegetables, nor will it alter the conditions
for interstate movement of currently approved fruits or vegetables.
These changes do not alter the manner in which the risk associated with
a commodity interstate movement request is evaluated, nor do they alter
the manner in which those risks are ultimately mitigated. Consumers
will have quicker access to fruits and vegetables approved for movement
using the notice-based process, while risks will still be evaluated and
appropriate mitigations required, as they are currently.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
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 final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
[[Page 2775]]
before parties may file suit in court challenging this rule.
National Environmental Policy Act
The majority of the regulatory changes in this document are
nonsubstantive, and would therefore have no effects on the environment.
However, this rule will allow APHIS to approve certain new articles for
interstate movement without undertaking rulemaking. Despite the fact
that the interstate movement of these fruits and vegetables will no
longer be contingent on the completion of rulemaking, the requirements
of the National Environmental Policy Act of 1969, as amended (42 U.S.C.
4321 et seq.), will still apply. As such, for each additional regulated
article approved for interstate movement, APHIS will 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 the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this rule have been approved by the Office of Management
and Budget (OMB) under OMB control number 0579-0346.
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 rule, please contact Mrs. Celeste Sickles,
APHIS' 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.
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Accordingly, we are amending 7 CFR parts 305 and 318 as follows:
PART 305--PHYTOSANITARY TREATMENTS
0
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.
0
2. Section 305.17 is amended as follows:
0
a. By revising paragraph (a) to read as set forth below.
0
b. In paragraph (b)(3), by adding the words ``from Hawaii and'' after
the word ``seeds''.
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]
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3. 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--STATE OF HAWAII AND TERRITORIES QUARANTINE NOTICES
0
4. 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.
0
5. The part heading for part 318 is revised to read as set forth above.
0
6. 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.
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 or as provided in ``Subpart--
Territorial Cotton, Cottonseed, and Cottonseed Products'' in this part.
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
[[Page 2776]]
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 or
Sec. 305.34 of this chapter, executed by any person to facilitate the
interstate movement of regulated articles under this subpart.
Consignment. A quantity of plants, plant products, and/or other
articles, including fruits or vegetables, being moved from one country
to another and covered, when required, by a single certificate or
limited permit (a consignment may be composed of one or more
commodities or lots).
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 for
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.
Plant Protection and Quarantine (PPQ). The Plant Protection and
Quarantine program of APHIS.
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, 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. Any of the several States of the United States, the
Commonwealth of the Northern Mariana Islands, the Commonwealth of
Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the
United States, or any other territory or possession 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,
[[Page 2777]]
from one means of conveyance to another, or from a sealable container
directly into a means of conveyance.
United States. All of the 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.
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\1\ Limited permits can be obtained from each State or
territory's local Plant Protection and Quarantine office.
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(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, 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
[[Page 2778]]
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 0579-0346)
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 State of origin or 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 February 17, 2009 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 February 17, 2009,
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 origin or 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 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
February 17, 2009, 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
[[Page 2779]]
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.
(Approved by the Office of Management and Budget under control
number 0579-0346)
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 a public comment period of 60 days, 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.
(Approved by the Office of Management and Budget under control
number 0579-0346)
Sec. 318.13-6 Transit of fruits and vegetables 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 permit application must
include the following information:
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\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.
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(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
[[Page 2780]]
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 common 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 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
[[Page 2781]]
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 0579-0346)
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 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.
In addition to the inspection requirements in Sec. Sec. 318.13-9
and 318.13-10, persons, means of conveyance (including ships, other
oceangoing 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
[[Page 2782]]
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 oceangoing 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 oceangoing 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 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 oceangoing
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
[[Page 2783]]
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 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.
These manuals are available on the Internet 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.
(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.
[[Page 2784]]
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 Additional
origin Common name Botanical name Plant part(s) 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
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
[[Page 2785]]
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 if the bananas meet the following conditions:\3\
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\3\ Bananas from Hawaii may also be moved to Alaska under Sec.
318.13-16.
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(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\
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\4\ Cut blooms of gardenia are also eligible for interstate
movement with treatment in accordance with part 305 of this chapter.
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(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.
(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
[[Page 2786]]
consignment will be ineligible for interstate movement from Hawaii.
(Approved by the Office of Management and Budget under control
number 0579-0198)
Sec. 318.13-24 Sweet potatoes from Puerto Rico.
Sweet potatoes 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 sweet potatoes must be certified by an inspector of Puerto
Rico as having been grown under the following conditions:
(1) Fields in which the sweet potatoes have been grown must have
been given a preplanting treatment with an APHIS-approved soil
insecticide.
(2) Before planting in such treated fields, the sweet potato 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 sweet
potatoes have been washed.
(c) The sweet potatoes 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 sweet potatoes must be inspected by an inspector and found
to be free of the sweet potato scarabee (Euscepes postfasciatus
Fairm.).
Sec. 318.13-25 Sweet potatoes from Hawaii.
(a) Sweet potatoes may be moved interstate from Hawaii in
accordance with this section only if the following conditions are met:
\5\
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\5\ Sweet potatoes 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.
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(1) The sweet potatoes must be treated in accordance with the vapor
heat treatment schedule specified in Sec. 305.24.
(2) The sweet potatoes 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 sweet
potatoes from infesting any other sweet potatoes intended for
interstate movement in accordance with this section.
(3) The sweet potatoes 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) Sweet potatoes 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\
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\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.
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(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 sweet potatoes 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 sweet potatoes 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]
0
7. 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]
0
8. Subpart--Guam, consisting of Sec. Sec. 318.82 through 318.82-3, is
removed.
Done in Washington, DC, this 9th day of January 2009.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-762 Filed 1-15-09; 8:45 am]
BILLING CODE 3410-34-P