2770 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

1To view the proposed rule and the comments 

we received, go to http://www.regulations.gov/ 

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2007-0052. 

the posting of vacancy announcements; 

however, employees must be made 

aware that these processes may be 

utilized via newsletters, bulletin boards, 

websites, or other common methods of 

employee communication. Use of these 

alternative procedures is subject to the 

requirements of the DoD Priority 

Placement Program and the 

Reemployment Priority List. Employees 

within the area of consideration who are 

absent for legitimate reason (e.g., on 

detail, on leave, at training courses, in 

the military service, or serving in public 

international organizations or on 

Intergovernmental Personnel Act 

assignments) must receive appropriate 

consideration, i.e., they cannot be 

excluded from consideration because 

they are absent. 

(i) Assessment boards. (A) Boards 

may convene to assess internal 

candidates for current and future 

advancement opportunities based on 

pre-established criteria. Pre-established 

criteria may include experience, 

training, awards, education, 

performance evaluation scores (ratings 

of record) or other appropriate 

information consistent with merit 

system principles and the ‘‘Uniformed 

Guidelines on Employee Selection 

Procedures.’’ 

(B) Boards will categorize employees 

into specific levels of candidates to 

generate referral lists of ranked 

candidates for occupational groups. 

These referral lists are valid for one year 

from the date generated. Selection from 

the referral list should be further 

justified based on specific job-related 

factors unique to the actual vacancy. 

(C) Boards, which should be 

comprised of senior level managers 

(subject matter experts for each 

particular occupational group), may be 

convened on an ad hoc basis or may be 

held annually in conjunction with the 

performance evaluation process. 

(ii) Alternate certification. A selecting 

official may make a by-name request for 

an individual from any appropriate 

source of Department or Component 

employees. The employee may be 

selected if ranked within the highest 

quality group as determined by rating 

factors established for the position. 

(iii) Exceptional performance 

promotion. (A) An employee whose 

most recent rating of record is a Level 

5 performance rating may be promoted 

to a vacant position in a higher pay 

band when the vacant position has the 

same occupational series (or related 

interdisciplinary/interoccupational 

series) and similar function as the 

position the employee held at the time 

he or she received the Level 5 rating. 

(B) Selecting officials must determine 

and document the area of consideration, 

and must consider all employees in the 

area of consideration whose current 

Level 5 rating was based on 

performance in the same occupational 

series and similar function as the 

vacancy being filled. 

(9) Grievances. Employees have the 

right to file a complaint relating to a 

promotion action. Such complaints will 

be resolved under appropriate grievance 

procedures. The standards for 

adjudicating complaints are set forth in 

5 CFR part 300, subpart A. There is no 

right of appeal to OPM, but OPM may 

conduct investigations of substantial 

violations of OPM requirements. 

[FR Doc. E9–899 Filed 1–15–09; 8:45 am] 

BILLING CODE 5001–06–P 

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. 

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 


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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 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. 

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 § 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 § 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 

§ 318.13–4, which referred to this 

designated measure. 

We proposed to amend § 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 

§ 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 § 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 

§ 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’’ 

(§§ 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 § 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 § 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 

§ 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 §§ 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 § 318.13–6. In the context 

of labeling requirements, proposed 

§ 318.13–6 referred both to ‘‘English 

common names’’ and ‘‘English names.’’ 

In this final rule, § 318.13–6 refers only 

to ‘‘English common names’’ for 

consistency and clarity. 

• The regulations in §§ 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 


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2772 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

2Regulated articles are fruits and vegetables that 

APHIS has determined to not involve the risk of 

spreading plant pests as ordinarily packaged or after 

treatment. 

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. 

from Hawaii and Puerto Rico, 

respectively, are subject to agricultural 

inspection at various points during 

movement. We proposed to consolidate 

these requirements in § 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 §§ 318.13–9 and 

318.13–10’’ to the beginning of 

§ 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 § 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 § 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. 

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

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. 


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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 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 rulemakingbased 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. 


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2774 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

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 commodityspecific 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 


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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. 

■ Accordingly, we are amending 7 CFR 

parts 305 and 318 as follows: 

PART 305—PHYTOSANITARY 

TREATMENTS 

■ 1. The authority citation for part 305 

continues to read as follows: 

Authority: 7 U.S.C. 7701–7772 and 7781– 

7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 

2.80, and 371.3. 

■ 2. Section 305.17 is amended as 

follows: 

■ a. By revising paragraph (a) to read as 

set forth below. 

■ b. In paragraph (b)(3), by adding the 

words ‘‘from Hawaii and’’ after the word 

‘‘seeds’’. 

§ 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 § 319.56–12 of this 

subchapter for imported fruits and 

vegetables and § 318.13–13 of this 

subchapter for fruits and vegetables 

moved interstate. 

* * * * * 

§ 305.34 [Amended] 

■ 3. In § 305.34, paragraph (b)(2)(iii) is 

amended by removing the citation 

‘‘§ 318.13–4(d)’’ and adding the citation 

‘‘§ 318.13–3(d)’’ in its place. 

PART 318—STATE OF HAWAII AND 

TERRITORIES QUARANTINE NOTICES 

■ 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. 

■ 5. The part heading for part 318 is 

revised to read as set forth above. 

■ 6. Subpart—Hawaiian Fruits, 

Vegetables, and Flowers, consisting of 

§§ 318.13 through 318.13–17, is 

removed and a new Subpart—Regulated 

Articles From Hawaii and the 

Territories, §§ 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 

§ 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. 

§ 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 


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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 

§ 318.13–3 or § 318.13–4 or § 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, 


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1Limited permits can be obtained from each State 

or territory’s local Plant Protection and Quarantine 

office. 

from one means of conveyance to 

another, or from a sealable container 

directly into a means of conveyance. 

United States. All of the States. 

§ 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. 

(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 § 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 § 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 § 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 


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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) 

§ 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 § 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 

§ 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 § 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 § 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 postharvest 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 


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2PPQ 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. 

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) 

§ 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 pestfree 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 § 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 insectproof 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) 

§ 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: 

(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 


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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 § 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 


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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 °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) 

§ 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 § 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 

§ 352.10 of this chapter. 

§ 318.13–8 Articles and persons subject to 

inspection. 

In addition to the inspection 

requirements in §§ 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 


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quarantine and regulations of this 

subpart. 

§ 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. 

§ 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 


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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 § 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 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 318.13–3. Such fruits and vegetables 

must be held at a temperature not higher 

than 20 °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 § 305.17 lists frozen 

fruits and vegetables for which quick 

freezing is not an authorized treatment. 

§ 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. 

§ 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. 


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2784 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

§ 318.13–16 Regulated articles allowed 

interstate movement subject to specified 

conditions. 

(a) The following regulated articles 

may be moved interstate in accordance 

with § 318.13–3 and any additional 

requirements specified in paragraph (b) 

of this section. 

State, territory, or district of origin Common name Botanical name Plant part(s) Additional 

requirements 

Hawaii ........................................... Bananas 1 ..................................... Musa spp ..................................... Fruit ................... (b)(1)(i), (b)(2)(ii) 

Pot marigold, johnny-jump-ups, 

pansies, and violets.

Calendula spp .............................. Flower ............... (b)(2)(iii) 

Pineapple 2 ................................... Ananas comosus ......................... Fruit ................... (b)(2)(i) 

Puerto Rico ................................... Cactus .......................................... Cactaceae .................................... Whole plant ....... (b)(2)(iv), 

(b)(3)(ii) 

Okra ............................................. Abelmoschus escuelentus ........... Fruit ................... (b)(3)(i) 

Pot marigold, johnny-jump-ups, 

pansies, and violets.

Calendula spp .............................. Flower ............... (b)(2)(iii) 

U.S. Virgin Islands ........................ Cactus .......................................... Cactaceae .................................... Whole plant ....... (b)(2)(iv), 

(b)(3)(ii) 

Okra ............................................. Abelmoschus escuelentus ........... Fruit ................... (b)(3)(i) 

Pot marigold, johnny-jump-ups, 

pansies, and violets.

Calendula spp .............................. Flower ............... (b)(2)(iii) 

1Fruit may also be moved interstate in accordance with § 318.13–17. 

2Fruit 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. 

§ 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 § 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 

§ 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. 

§§ 318.13–18 through 318.13–20 

[Reserved] 

§ 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 § 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 


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3Bananas from Hawaii may also be moved to 

Alaska under § 318.13–16. 

4Cut blooms of gardenia are also eligible for 

interstate movement with treatment in accordance 

with part 305 of this chapter. 

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 § 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. 

§ 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 § 318.13–3 if the 

bananas meet the following conditions:3

(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 § 305.31(a) of 

this chapter and in accordance with the 

other requirements in § 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 § 305.31(a) of 

this chapter and in accordance with the 

other requirements in § 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. 

§ 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

(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 

§ 318.13–3(b). If the inspector finds 

green scale in a consignment, that 


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2786 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

5Sweet potatoes may also be moved interstate 

from Hawaii with irradiation in accordance with 

§ 305.34 of this chapter or after fumigation with 

methyl bromide according to treatment schedule 

T–101–b–3–1, as provided for in § 305.6(a) of this 

chapter. 

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. 

consignment will be ineligible for 

interstate movement from Hawaii. 

(Approved by the Office of Management and 

Budget under control number 0579–0198) 

§ 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 APHISapproved 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.). 

§ 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

(1) The sweet potatoes must be treated 

in accordance with the vapor heat 

treatment schedule specified in 

§ 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

(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] 

■ 7. Subpart—Fruits and Vegetables 

From Puerto Rico or Virgin Islands, 

consisting of §§ 318.58 through 318.58– 

16, is removed. 

Subpart—Guam [Removed] 

■ 8. Subpart—Guam, consisting of 

§§ 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 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

7 CFR Part 636 

RIN 0578–AA49 

Wildlife Habitat Incentive Program 

AGENCY: Natural Resources 

Conservation Service, United States 

Department of Agriculture. 

ACTION: Interim final rule with request 

for comment. 

SUMMARY: Section 2602 of the Food, 

Conservation, and Energy Act of 2008 

(2008 Act) amended the Wildlife Habitat 

Incentive Program (WHIP) by: 

Narrowing the program’s applicability 

to private agricultural lands, 

nonindustrial private forestland, and 

Indian land; identifying habitat on pivot 

corners and irregular areas as ‘‘other 

types of wildlife habitat’’ eligible for 

cost-share; increasing, from 15 to 25, the 

percentage of funds that may be used for 

agreements that have a term of at least 

15 years; providing the Secretary of the 

United States Department of Agriculture 

(USDA) authority to give priority to 

projects that would address issues 

raised by State, regional, and national 

conservation initiatives; and instituting 

an annual $50,000 in direct or indirect 

aggregate payment limitations per 

person or legal entity. The Natural 

Resources Conservation Service (NRCS), 

an agency of USDA, issues this interim 

final rule with request for comment to 

incorporate statutory changes resulting 

from the 2008 Act authorization. The 

Agency is also using this rule to 

simplify the regulation and make 

administrative changes to improve 

program efficiency. Cost-share 

agreements entered into on or following 

January 16, 2009 will be administered 

according to this interim final rule. 

DATES: Effective date: The rule is 

effective January 16, 2009. Comment 

date: Submit comments on or before 

March 17, 2009. 


sroberts on PROD1PC70 with RULES