Revision of the Hawaiian and Territorial Fruits and Vegetables Regulations, 2770-2786 [E9-762]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 2770-2786]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-762]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 305 and 318

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


Revision of the Hawaiian and Territorial Fruits and Vegetables 
Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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eliminate redundant requirements, update terms and remove outdated 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

DATES: Effective Date: February 17, 2009.

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

SUPPLEMENTARY INFORMATION: 

Background

    Under the regulations in 7 CFR part 318, ``Hawaiian and Territorial 
Quarantine Notices'' (referred to below as the regulations), the Animal 
and Plant Health Inspection Service (APHIS) of the U.S. Department of 
Agriculture (USDA or the Department) prohibits or restricts the 
interstate movement of fruits, vegetables, and other products from 
Hawaii, Puerto Rico, the U.S. Virgin Islands, and Guam to the 
continental United States to prevent the spread of plant pests and 
noxious weeds that occur in Hawaii and the territories.
    On June 17, 2008, we published in the Federal Register (73 FR 
34202-34224, Docket No. APHIS-2007-0052) a proposal \1\ to amend the 
regulations by revising and reorganizing those portions of the 
regulations pertaining to the interstate movement of fruits and 
vegetables to consolidate requirements of general applicability and 
eliminate redundant requirements, updating terms and remove outdated 
requirements and references, and making various editorial and 
nonsubstantive changes to the regulations to make them easier to use. 
We also proposed to make substantive changes to the regulations 
including: Establishing criteria within the regulations that, if met, 
would allow us to approve certain new fruits and vegetables for 
interstate movement in the United States and to acknowledge pest-free 
areas in Hawaii and U.S. territories expeditiously; and removing the 
listing in the regulations of some specific commodities as regulated

[[Page 2771]]

articles. These changes were intended to simplify and expedite our 
processes for approving certain regulated articles for interstate 
movement and pest-free areas while continuing to allow for public 
participation in the processes.
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    \1\ To view the proposed rule and the comments we received, go 
to https://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0052.
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    We solicited comments concerning our proposal for 60 days ending 
August 18, 2008. We received three comments by that date. They were 
from private citizens. They are discussed below.
    One commenter raised concerns about actions taken at Guam ports of 
entry with regard to plants moved interstate from Hawaii. The commenter 
stated that inspectors in Guam are requiring treatment or destruction 
of plants due to the presence on the plants of a black fungus that is 
already present in Guam. The commenter stated that the fungus occurs on 
plants after they have been treated to ensure that the coqui frog is 
not introduced into Guam. The commenter also stated that the fungus is 
present in Guam and can be easily controlled by wiping it off the 
plant.
    The issues raised by the commenter did not relate to any specific 
requirements for treatments that are included in the regulations or 
that were addressed by the proposal. We will ensure that inspectors in 
Guam use the least restrictive measure necessary to prevent the 
introduction of plant pests into Guam.
    One commenter opposed the use of irradiation as a phytosanitary 
treatment.
    Irradiation has been proven to be an effective phytosanitary 
treatment for certain plant pests. Therefore, it is appropriate to 
provide for its use as an option in mitigating the risk associated with 
those plant pests. We did not propose to change the pests for which 
irradiation is an approved treatment or to allow the interstate 
movement of any new fruits or vegetables with irradiation treatment.
    One commenter recommended the use of Hazard Analysis and Critical 
Control Point plans in phytosanitary systems to prevent risks to health 
and the environment.
    We perform a pest risk analysis when determining whether to 
authorize the interstate movement of a fruit or vegetable from Hawaii 
or the territories. Our pest risk analysis process takes such risks 
into account.
    We are making no changes in response to these comments. However, we 
are making minor changes to the proposal in this final rule.
    We proposed to establish a performance-based process for approving 
the interstate movement of commodities that, based on the findings of a 
pest risk analysis, can be safely moved interstate subject to one or 
more of certain designated phytosanitary measures. One of the 
designated measures we proposed to use in this process was inspection 
in the first State of arrival. This proposed designated measure was 
similar to a designated measure used in the performance-based process 
for approving the importation of fruits and vegetables in Sec.  319.56-
4. That designated measure is inspection upon arrival in the United 
States.
    However, while imported fruits and vegetables are first subject to 
U.S. Government inspectors upon arrival in the United States, fruits 
and vegetables moved interstate are always subject to State or Federal 
inspection, whether inspected in the State of origin or in the State of 
arrival. Indeed, the primary inspection for fruits and vegetables moved 
interstate is often performed in the State of origin. Therefore, we are 
changing the designated measure we proposed to establish in Sec.  
318.13-4(b)(1) by referring to inspection either in the State of origin 
or in the State of first arrival. We are making a similar change to 
proposed paragraph (c)(2)(i)(B)(1) of Sec.  318.13-4, which referred to 
this designated measure.
    We proposed to amend Sec.  305.17 to indicate that quick freezing 
treatment is approved for fruits and vegetables moved interstate from 
Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana 
Islands (CNMI), or the U.S. Virgin Islands, except for the fruits and 
vegetables listed in paragraph (b) of Sec.  305.17. However, we 
neglected to propose to amend paragraph (b) to indicate that quick 
freezing is not an authorized treatment for mango with seeds from 
Hawaii, although mango with seeds is listed in the Hawaii fruits and 
vegetables manual as a fruit for which quick freezing treatment is not 
authorized. In this final rule, we are amending paragraph (b) of Sec.  
305.17 to indicate that quick freezing treatment is not authorized for 
mango with seeds from Hawaii.
    We are also making some nonsubstantive editorial changes:
     The part heading for 7 CFR part 318 has read ``Hawaiian 
and Territorial Quarantine Notices.'' We are changing this part heading 
to read ``State of Hawaii and Territories Quarantine Notices.''
     In paragraph (b) of proposed Sec.  318.13-1, ``Notice of 
quarantine,'' we indicated that the movement of (among other things) 
plants and portions of plants from Hawaii and the territories would be 
prohibited except as provided in the proposed subpart ``Regulated 
Articles From Hawaii and the Territories.'' However, the movement of 
cotton plants and plant parts under certain conditions is authorized 
under ``Subpart--Territorial Cotton, Cottonseed, and Cottonseed 
Products'' (Sec. Sec.  318.47 through 318.47-4), and we did not propose 
to change that subpart or those requirements. Accordingly, in this 
final rule, paragraph (b) of Sec.  318.13-1 refers to the movement of 
plants and portions of plants being authorized under ``Subpart--
Territorial Cotton, Cottonseed, and Cottonseed Products'' as well as 
under ``Subpart--Regulated Articles From Hawaii and the Territories.''
     In the proposed regulatory text, we made several 
references to the term ``consignment'' and to the Plant Protection and 
Quarantine (PPQ) program, but did not define those terms. In this final 
rule, we are adding definitions of those terms. The definition of 
``consignment'' is identical to the definition of that term in our 
imported fruits and vegetables regulations (in Sec.  319.56-2) except 
that it refers to certificates and limited permits rather than to 
phytosanitary certificates.
     We proposed to amend the definition of ``cut flowers'' to 
indicate that such flowers are customarily used in the florist trade 
and not planting. In this final rule, we are changing the proposed 
definition by adding the word ``for'' before ``planting,'' to further 
clarify the intended use of cut flowers.
     We proposed to retain the definitions of ``State'' and 
``United States'' that have been set out in Sec.  318.13-1. However, 
these definitions are not consistent with the definitions of those 
terms in the Plant Protection Act (7 U.S.C. 7701 et seq.). In this 
final rule, we are adding definitions of these terms that are based on 
the Plant Protection Act definitions. The new definitions are 
substantively identical to the previous ones.
     The regulations in Sec. Sec.  318.13-17 and 318.58-12 have 
provided certain general conditions for transit of fruits and 
vegetables into or through the continental United States from Hawaii 
and from Puerto Rico and the U.S. Virgin Islands, respectively. We 
proposed to consolidate these provisions in Sec.  318.13-6. In the 
context of labeling requirements, proposed Sec.  318.13-6 referred both 
to ``English common names'' and ``English names.'' In this final rule, 
Sec.  318.13-6 refers only to ``English common names'' for consistency 
and clarity.
     The regulations in Sec. Sec.  318.13-8 and 318.54-8 have 
stated that persons, means of conveyance (including ships, other ocean-
going craft, and aircraft), baggage, cargo, and any other articles that 
are destined for movement, are moving, or have been moved interstate

[[Page 2772]]

from Hawaii and Puerto Rico, respectively, are subject to agricultural 
inspection at various points during movement. We proposed to 
consolidate these requirements in Sec.  318.13-8 but otherwise did not 
propose to change them. In this final rule, we are adding the words 
``In addition to the inspection requirements in Sec. Sec.  318.13-9 and 
318.13-10'' to the beginning of Sec.  318.13-8, to ensure that the 
reader is aware of all the provisions related to inspection.
     We proposed to add restrictions on the interstate movement 
of processed fruits, vegetables, and other products in a new Sec.  
318.13-14. In our proposed regulatory text, we referred the reader to 
the fruits and vegetables manuals to find which processed products are 
approved for interstate movement. In the final rule, we are adding to 
the new Sec.  318.13-14 the Web addresses where those manuals can be 
found.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been reviewed under Executive Order 12866. The 
rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities.
    This rule revises and reorganizes the regulations pertaining to the 
interstate movement of fruits and vegetables to consolidate 
requirements of general applicability and eliminates redundant 
requirements, updates terms and removes outdated requirements and 
references, makes various editorial and nonsubstantive changes to 
regulations to make them easier to use, and expand their applicability 
to include CNMI and all other territories and possessions of the United 
States.
    APHIS is also making substantive changes to the regulations. This 
rule establishes criteria within the regulations that, if met, allow 
APHIS to approve certain fruits and vegetables for interstate movement 
and to acknowledge pest-free areas in Hawaii and U.S. territories 
without undertaking rulemaking. Currently, these commodities may only 
be brought into the continental United States after completion of a 
pest risk analysis, risk management document, and rulemaking, if the 
commodities are not currently included on the list of regulated 
articles.\2\ A similar type of notice-based process has been 
implemented by APHIS for approving imports. Implementing this rule 
ensures equitable treatment for domestic producers. This rule also does 
away with the process of listing in the regulations specific 
commodities as regulated articles. These changes simplify and expedite 
the APHIS processes for approving certain regulated articles for 
interstate movement and pest-free areas while continuing to allow for 
public participation in the process.
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    \2\ Regulated articles are fruits and vegetables that APHIS has 
determined to not involve the risk of spreading plant pests as 
ordinarily packaged or after treatment.
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Description and Estimate of the Number of Small Entities Affected by 
the Rule

    Those entities most likely to be economically affected by the rule 
are wholesalers and producers of fruits and vegetables. The Small 
Business Administration (SBA) has established guidelines for 
determining which establishments are to be considered small. A firm 
primarily engaged in wholesaling fresh fruits and vegetables is 
considered small if it employs not more than 100 persons. In 2002, 
about 95 percent (4,044 of 4,244) of fresh fruit and vegetable 
wholesalers in the United States were small by SBA standards.\3\ All 
types of fruit and vegetable farms are considered small if they have 
annual receipts of $0.75 million or less. With some exceptions, 
vegetable and melon farms are largely individually owned and relatively 
small, with two-thirds harvesting fewer than 25 acres. In 2002, between 
80 and 84 percent of U.S. vegetable and melon farms were considered 
small. Similarly, although numbers have declined, fruit and tree nut 
production is still dominated by small, family, or individually run 
farm operations. In 2002, between 92 and 95 percent of all fruit and 
tree nut farms were considered small.\4\
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    \3\ 2002 Economic Census. Department of Commerce. U.S. Bureau of 
the Census. North American Industry Classification System (NAICS) 
Category--424480: Fresh fruit and vegetable merchant wholesalers.
    \4\ 2002 Census of Agriculture. U.S. Department of Agriculture. 
National Agricultural Statistics Service. NAICS Categories--1112: 
Vegetable and melon farming; 1113: Fruit and tree nut farming.
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Expected Effects of the Rule

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

[[Page 2773]]

Notice-Based Process

    Currently, the regulations prohibit the interstate movement of 
fruits, vegetables, and other products from Hawaii, Puerto Rico, the 
U.S. Virgin Islands, and Guam into the continental United States or any 
other territory or possession of the United States unless the 
regulations specifically allow the interstate movement of the 
particular fruit, vegetable, or regulated article. As a condition of 
interstate movement under the regulations, all approved fruits, 
vegetables, and other products are subject to some type of restriction 
to ensure that the regulated article does not act as a pathway for the 
introduction or dissemination of plant pests or noxious weeds into the 
United States.
    Typically, certain products may be moved interstate if the movement 
is authorized by a limited permit or a valid certificate issued on the 
basis of inspection and verification of pest freedom, or on the basis 
of treatment. These requirements are considered universal requirements. 
Certain other fruits, vegetables, or products must meet additional 
requirements to be eligible for movement including distribution 
restrictions, packing requirements, and other measures determined to be 
necessary to mitigate the pest risk posed by the particular commodity. 
This rule establishes a new regulatory approach whereby APHIS will 
approve or reject certain fruits and vegetables for movement into the 
continental United States from Hawaii and the U.S. territories without 
specific prior rulemaking, but in a manner that still provides for 
public review and comment on the scientific documentation on which such 
decisions are based. This notice-based process involves a risk analysis 
that identifies all the pests of concern, documents how all quarantine 
pests will be removed from the movement pathway through inspection and/
or treatment, and allows for public comment.
    Currently, exceptions are made to the prohibition for specific 
commodities moving from Hawaii and the territories provided that the 
pest risk they pose is mitigated by specific phytosanitary measures. 
For the vast majority of commodities listed in 7 CFR part 318, 
inspection and/or treatment are the phytosanitary measures applied to 
ensure that a commodity does not convey plant pests. For other 
commodities, APHIS requires a more complex risk mitigation strategy 
(i.e., a systems approach).
    In considering whether to newly authorize the movement of a 
commodity, APHIS identifies the phytosanitary measures necessary to 
address the pest risk posed by the commodity. As a matter of current 
APHIS policy, any decision made on whether to allow the movement of a 
commodity from Hawaii or the U.S. territories into the continental 
United States proceeds through the rulemaking process before the 
decision can be implemented and the movement allowed.
    The notice-based process will apply only to fruits and vegetables 
that, based on the findings of a risk analysis, APHIS determines can be 
safely moved interstate subject to one or more designated risk 
management measures. These designated measures are: (1) Inspection in 
the State of origin or in the State of first arrival and compliance 
with all applicable provisions of 318.13-3; (2) treatment in accordance 
with part 305 and certification of the treatment by an inspector; (3) 
inspection and certification in the State of origin by an inspector or 
a State agricultural inspector and found free of one or more specific 
quarantine pests identified by risk analysis as likely to follow the 
pathway; (4) commercial consignments only; (5) originating from a pest-
free area in the State of origin and the grower from which the 
commodity originated has entered into a compliance agreement with the 
Administrator; and (6) subject to box marking or labeling requirements. 
Fruits and vegetables that require additional risk management beyond 
one or more of the designated measures cited above will follow the 
current rulemaking-based process.
    By eliminating the need for specific rulemaking for commodities for 
which the notice-based process is appropriate, considerable time 
savings could be reaped. The current process for approving commodities 
takes a notable period of time, ranging on average from 18 months to 
upwards of 3 years (beginning with the initial request and ending with 
the publication of the final rule). A significant portion of this time 
is devoted to the rulemaking process. This rule will reduce the time 
needed for approval for interstate movement of some fruits and 
vegetables without eliminating the opportunity for public participation 
in our analysis of risk.
    Consumers benefit from the opportunity to purchase fruits and 
vegetables from a variety of sources. Consumer expenditures for fruit 
and vegetables are growing faster than for any food group other than 
meats. Many of the commodities that will be covered by this rule are 
likely to be niche products, such as tropical specialty fruits that are 
unavailable or limited in availability in the continental United 
States. This rule will allow producers to more quickly meet consumer 
demand for those niche products. In addition, most fruit and vegetable 
production in the continental United States is seasonal, with the 
largest harvests occurring during the summer and fall. Hawaiian and 
territorial produce supplement the supply of fruits and vegetables in 
the continental United States, especially fresh products during the 
winter, resulting in increased choices for consumers. Hawaiian and 
territorial producers will also benefit from the ability to more 
quickly respond to the demands of consumers.
    In the current process, APHIS proceeds through rulemaking once it 
has conducted a risk analysis and identified what phytosanitary 
measures are necessary to address the pest risk posed by the commodity 
for which permission for movement into the continental United States 
has been requested. This rule amends the fruits and vegetables 
regulations to allow the commodity to be listed as eligible for 
movement under specified conditions. We expect that requests under this 
process will lead relatively quickly to the interstate shipment of 
particular fruits and vegetables that would otherwise face delay under 
the rulemaking process. There are certain statutory, executive branch, 
and departmental process requirements that are typically not required 
under a notice-based process.
    The movement requests most likely to qualify for the notice-based 
process will be for specialty crops having limited markets. These 
requests, when their risk analyses have been completed and needed 
phytosanitary measures have been identified, are currently often 
grouped together for rulemaking. We estimate that by using a notice-
based approach, commodity interstate movement approvals could be 
accomplished 6 to 12 months sooner than when using the rulemaking 
approach.
    This rule does not alter the manner in which the risks associated 
with a commodity movement request are evaluated, nor does it alter the 
manner in which those risks are ultimately mitigated. The change merely 
creates a process whereby certain fruits and vegetables from Hawaii and 
the territories will be able to more quickly be approved for movement 
into the continental United States, once it has been determined that 
the commodity can be safely moved subject to one or more designated 
risk management measures.

[[Page 2774]]

Approval of Pest-Free Areas

    APHIS currently recognizes changes in pest-free areas via 
rulemaking. For example, if an area where fruit flies are known to 
exist is determined to be free of fruit flies, in order for a fruit or 
vegetable that is a fruit fly host to move out of that area into the 
continental United States without treatment or other mitigation for 
fruit flies, APHIS must list the specific area in the regulations as a 
fruit-fly free area. If changes in the pest-free status of such areas 
occur, APHIS must revise the regulations to recognize the changes. 
Given that such changes in the regulations can only be made via 
rulemaking, the regulations may not reflect the actual status of a 
particular area given the time it takes to propose a change to the 
regulations, respond to comments on the proposal, and to publish a 
final rule amending the regulations.
    Under this rule, when provided with evidence that the pest-free 
status of an area has changed, APHIS will publish in the Federal 
Register a notice of the proposed change in status and take public 
comment for 60 days. If no comments submitted to APHIS provide evidence 
that its determination of pest freedom is incorrect, APHIS will 
announce that it considers the area to be free of the specified pest 
and that the area in question meets certain criteria.
    This provision will have no immediate impact because there are 
currently no designated pest-free areas in Hawaii or the territories. 
However, it will allow APHIS to more quickly recognize changes in the 
pest-free status of such areas, if any are established in Hawaii or the 
U.S. territories in the future.

Listing of Specific Commodities Allowed To Move Into the Continental 
United States

    Under this rule, currently approved commodities will no longer be 
listed in the regulations, nor will commodities that are approved for 
movement subject to one or more of the designated measures described 
previously be listed. Consequently, the lists of commodities will be 
removed from the Code of Federal Regulations, as will a number of other 
provisions in current commodity-specific sections in the regulations 
that authorize movement of specific fruits and vegetables in accordance 
with one or more of the designated measures.
    APHIS' Hawaii/CNMI and Puerto Rico/U.S. Virgin Islands fruits and 
vegetable manuals will list approved commodities, and the documentation 
supporting their approval will be made available on the Internet at 
https://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/hawaii.pdf or https://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/puerto_rico.pdf. These changes will not 
alter how or whether a commodity is approved for movement, merely how 
that status is presented. Therefore, these changes should therefore 
have little, if any, impact.

Regulated Articles Allowed Interstate Movement Subject to Specific 
Conditions

    Currently, the regulations contain provisions for interstate 
movement of certain regulated articles from Hawaii, Puerto Rico, the 
U.S. Virgin Islands, and Guam to other locations in the United States 
subject to inspection and other universal requirements. Most such 
commodities will no longer be listed in the regulations under this 
rule. Those commodities that are allowed interstate movement subject to 
additional measures beyond the notice-based process measures will be 
listed. Such commodities will remain subject to the same restrictions 
that currently apply to their interstate movement.
    In many cases, the fruits, vegetables, and other products from 
Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam, and CNMI subject to 
additional measures for movement have not been specifically listed in 
the regulations. This rule will therefore add some commodities to the 
regulations. However, these measures are currently being enforced 
administratively. Therefore, these additions to the regulations do not 
represent a significant change to interstate movement policy, and 
should have little, if any, impact.

Reorganization of the Regulations and Consolidation of Similar 
Provisions

    This rule will also revise and reorganize the regulations 
pertaining to the interstate movement of fruits and vegetables to 
consolidate requirements of general applicability and eliminate 
redundant requirements, update terms and remove outdated requirements 
and references, and make various editorial and nonsubstantive changes 
to the regulations to make them easier to use. These changes will not, 
however, represent a change in program operations, and should therefore 
have little, if any, impact.

Conclusion

    In sum, APHIS expects little impact on the total supply of fruits 
and vegetables available in the continental United States, and little 
change in the movement of fruits and vegetables from Hawaii and the 
territories; effects on U.S. producers, marketers and consumers are 
expected to be small. The main provision of this rule represents a 
significant structural revision of the regulations pertaining to the 
movement of fruits and vegetables from Hawaii, Puerto Rico, the U.S. 
Virgin Islands, Guam, and CNMI, and establishes a new process for 
approving commodities for movement into the continental United States. 
However, those commodity movement requests most likely to qualify for 
the notice-based process will be for specialty crops having limited 
markets. This rule will not alter the conditions that apply to 
currently approved fruits or vegetables.
    Of particular note with respect to the approval process, the change 
will allow a newly approved commodity to move more quickly into 
commerce to the benefit of consumers and Hawaiian and territorial 
producers once it has been determined that the commodity can be safely 
moved interstate subject to one or more designated risk management 
measures. This rule, itself, will not allow for the interstate movement 
of any specific fruits or vegetables, nor will it alter the conditions 
for interstate movement of currently approved fruits or vegetables. 
These changes do not alter the manner in which the risk associated with 
a commodity interstate movement request is evaluated, nor do they alter 
the manner in which those risks are ultimately mitigated. Consumers 
will have quicker access to fruits and vegetables approved for movement 
using the notice-based process, while risks will still be evaluated and 
appropriate mitigations required, as they are currently.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

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

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings

[[Page 2775]]

before parties may file suit in court challenging this rule.

National Environmental Policy Act

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

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0346.

E-Government Act Compliance

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

Lists of Subjects

7 CFR Part 305

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

7 CFR Part 318

    Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and 
pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin 
Islands.


0
Accordingly, we are amending 7 CFR parts 305 and 318 as follows:

PART 305--PHYTOSANITARY TREATMENTS

0
1. The authority citation for part 305 continues to read as follows:

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


0
2. Section 305.17 is amended as follows:
0
a. By revising paragraph (a) to read as set forth below.
0
b. In paragraph (b)(3), by adding the words ``from Hawaii and'' after 
the word ``seeds''.


Sec.  305.17  Authorized treatments; exceptions.

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

Sec.  305.34  [Amended]

0
3. In Sec.  305.34, paragraph (b)(2)(iii) is amended by removing the 
citation ``Sec.  318.13-4(d)'' and adding the citation ``Sec.  318.13-
3(d)'' in its place.

PART 318--STATE OF HAWAII AND TERRITORIES QUARANTINE NOTICES

0
4. The authority citation for part 318 continues to read as follows:

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


0
5. The part heading for part 318 is revised to read as set forth above.

0
6. Subpart--Hawaiian Fruits, Vegetables, and Flowers, consisting of 
Sec. Sec.  318.13 through 318.13-17, is removed and a new Subpart--
Regulated Articles From Hawaii and the Territories, Sec. Sec.  318.13-1 
through 318.13-25, is added to read as follows:
Subpart--Regulated Articles From Hawaii and the Territories
Sec.
318.13-1 Notice of quarantine.
318.13-2 Definitions.
318.13-3 General requirements for all regulated articles.
318.13-4 Approval of certain fruits and vegetables for interstate 
movement.
318.13-5 Pest-free areas.
318.13-6 Transit of regulated articles from Hawaii or the 
territories into or through the continental United States.
318.13-7 Products as ships' stores or in the possession of 
passengers or crew.
318.13-8 Articles and persons subject to inspection.
318.13-9 Inspection and disinfection of means of conveyance.
318.13-10 Inspection of baggage, other personal effects, and cargo.
318.13-11 Posting of warning notice and distribution of baggage 
declarations.
318.13-12 Movement by the U.S. Department of Agriculture.
318.13-13 Movement of frozen fruits and vegetables.
318.13-14 Movement of processed fruits, vegetables, and other 
products.
318.13-15 Parcel post inspection.
318.13-16 Regulated articles allowed interstate movement subject to 
specified conditions.
318.13-17 Regulated articles from Guam.
318.13-18 through 318.13-20 [Reserved]
318.13-21 Avocados from Hawaii to Alaska.
318.13-22 Bananas from Hawaii.
318.13-23 Cut flowers from Hawaii.
318.13-24 Sweetpotatoes from Puerto Rico.
318.13-25 Sweetpotatoes from Hawaii.

Subpart--Regulated Articles From Hawaii and the Territories


Sec.  318.13-1  Notice of quarantine.

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


Sec.  318.13-2  Definitions.

    Administrator. The Administrator of the Animal and Plant Health 
Inspection Service (APHIS), U.S. Department of Agriculture, or any 
other employee of APHIS to whom authority has been

[[Page 2776]]

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

[[Page 2777]]

from one means of conveyance to another, or from a sealable container 
directly into a means of conveyance.
    United States. All of the States.


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

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

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

    (2) Limited permits may be issued by an inspector for the movement 
of regulated articles that would otherwise be prohibited movement under 
this subpart, if the articles are to be moved in accordance with Sec.  
318.13-6.
    (3) Except when the regulations specify that an inspector must 
issue the limited permit, limited permits may be issued by a person 
operating under a compliance agreement.
    (d) Compliance agreements. As a condition for the movement of 
regulated articles for which a compliance agreement is required, the 
person entering the compliance agreement must agree to the following:
    (1) That he or she will use any permit or certification issued to 
him or her in accordance with the provisions in the permit, the 
requirements in this subpart, and the compliance agreement;
    (2) That he or she will maintain at his or her establishment such 
safeguards against the establishment and spread of infestation and 
infection and comply with such conditions as to the maintenance of 
identity, handling (including post-treatment handling), and interstate 
movement of regulated articles and the cleaning and treatment of means 
of conveyance and containers used in such movement of the articles, as 
may be required by the inspector in each specific case to prevent the 
spread of infestation or infection; and
    (3) That he or she will allow inspectors to inspect the 
establishment and its operations.
    (e) Attachment of limited permit or verification of certification. 
Except as otherwise provided for certain air cargo and containerized 
cargo on ships moved in accordance with Sec.  318.13-10, each box, 
bale, crate, or other container of regulated articles moved under 
certification or limited permit shall have the limited permit attached 
to the outside of the container or bear a U.S. Department of 
Agriculture stamp or inspection sticker verifying that the consignment 
has been certified in accordance with paragraph (b) of this section: 
Provided, That if a limited permit or certification is issued for a 
consignment of more than one container or for bulk products, 
certification shall be stamped on or the limited permit shall be 
attached to the accompanying waybill, manifest, or bill of lading.
    (f) Withdrawal of certification, transit permits, limited permits, 
or compliance agreements. Any certification, transit permit, limited 
permit, or compliance agreement which has been issued or authorized may 
be withdrawn by an inspector orally or in writing, if such inspector 
determines that the holder thereof has not complied with all conditions 
under the regulations for the use of such document. If the cancellation 
is oral, the decision and the reasons for the withdrawal shall be 
confirmed in writing as promptly as circumstances allow. Any person 
whose certification, transit permit, limited permit, or compliance 
agreement has been withdrawn may appeal the decision in writing to the 
Administrator within 10 days after receiving the written notification 
of the withdrawal. The appeal shall state all of the facts and reasons 
upon which the person relies to show that the certification, transit 
permit, limited permit, or compliance agreement was wrongfully 
withdrawn. The Administrator shall grant or deny the appeal, in 
writing, stating the reasons for such decision, as promptly as 
circumstances allow. If there is a conflict as to any material fact, a 
hearing shall be held to resolve such conflict. Rules of practice 
concerning such a hearing will be adopted by the Administrator.
    (g) Container marking and identity. Except as provided in Sec.  
318.13-6(c), consignments of regulated articles moved in accordance 
with this subpart must have the following information clearly marked on 
each container or on the waybill, manifest, or bill of lading 
accompanying the articles: Nature and quantity of contents; name and 
address of shipper, owner, or person shipping or forwarding the 
articles; name and address of consignee; shipper's identifying mark and 
number; and the certification stamp or number of the limited permit 
authorizing movement, if one was issued.
    (h) Refusal of movement. An inspector may refuse to allow the 
interstate movement of a regulated article if the inspector finds that 
the regulated article is prohibited, is not accompanied by required 
documentation, is so infested with a plant pest or noxious weed that, 
in the judgment of the inspector, it cannot be cleaned or treated, or 
contains soil or other prohibited contaminants.
    (i) Costs and charges. Services of the inspector during regularly 
assigned hours of duty at the usual places of duty shall be furnished 
without cost to the one requesting such services. APHIS will not assume 
responsibility for any costs or charges, other than those indicated in 
this section, in connection with the inspection, treatment, 
conditioning, storage, forwarding, or any other operation of any 
character incidental to the physical movement of regulated articles or 
plant pests.
    (j) APHIS not responsible for damage. APHIS assumes no 
responsibility for any damage to regulated articles that

[[Page 2778]]

results from the application of treatment or other measures required 
under this subpart (or under part 305 of this chapter) to protect 
against the dissemination of plant pests within the United States.

(Approved by the Office of Management and Budget under control 
number 0579-0346)


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

    (a) Determination by the Administrator. The Administrator has 
determined that the application of one or more of the designated 
phytosanitary measures cited in paragraph (b) of this section to 
certain fruits and vegetables mitigates the risk posed by those 
commodities, and that such articles may be moved interstate subject to 
one or more of those measures, as provided in paragraphs (c) and (d) of 
this section. The name and origin of all fruits and vegetables 
authorized movement under this section, as well as the applicable 
requirements for their movement, may be found on the Internet at https://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/hawaii.pdf or https://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/puerto_rico.pdf. Fruits or vegetables that require 
phytosanitary measures other than one or more of the designated 
phytosanitary measures cited in paragraph (b) of this section may only 
be moved in accordance with applicable requirements in Sec.  318.13-3 
and regulated article-specific requirements contained elsewhere in this 
subpart.
    (b) Designated phytosanitary measures. (1) The fruits and 
vegetables are inspected in the State of origin or in the first State 
of arrival.
    (2) The fruits and vegetables originated from a pest-free area in 
the State of origin and the grower from which the fruit or vegetable 
originated has entered into a compliance agreement with the 
Administrator.
    (3) The fruits and vegetables are treated in accordance with part 
305 of this chapter and the treatment is certified by an inspector.
    (4) The fruits and vegetables articles are inspected and certified 
in the State of origin by an inspector and have been found free of one 
or more specific quarantine pests identified by risk analysis as likely 
to follow the pathway.
    (5) The fruits and vegetables are moved as commercial consignments 
only.
    (6) The fruits and vegetables may be distributed only within a 
defined area and the boxes or containers in which the fruit or 
vegetables are distributed must be marked to indicate the applicable 
distribution restrictions.
    (c) Fruits and vegetables authorized for interstate movement under 
this section.
    (1) Previously approved fruits and vegetables. Fruits and 
vegetables that were authorized movement under this subpart either 
administratively or by specific regulation as of February 17, 2009 and 
that were subject only to one or more of the designated phytosanitary 
measures cited in paragraph (b) of this section and the general 
requirements of Sec.  318.13-3 may continue to be moved interstate 
under the same requirements that applied before February 17, 2009, 
except as provided in paragraph (d) of this section. The interstate 
movement conditions for those fruits and vegetables that were 
authorized movement under this subpart subject to additional measures 
beyond the designated measures in paragraph (b) of this section can be 
found in Sec.  318.13-16 or one of the commodity-specific sections in 
this subpart.
    (2) Other fruits and vegetables. Fruits and vegetables that do not 
meet the criteria in paragraph (c)(1) of this section may be authorized 
movement under this section as follows:
    (i) Pest risk analysis. The risk posed by the particular article 
from a specified State has been evaluated and publicly communicated as 
follows:
    (A) Availability of pest risk analysis. APHIS published in the 
Federal Register, for a public comment period of 60 days, a notice 
announcing the availability of a pest risk analysis that evaluated the 
risks associated with the movement of the particular fruit or 
vegetable.
    (B) Determination of risk; factors considered. The Administrator 
determined, and announced in the notice referred to in the previous 
paragraph, that, based on the information available, the application of 
one or more of the designated phytosanitary measures described in 
paragraph (b) of this section is sufficient to mitigate the risk that 
plant pests or noxious weeds could be introduced into or disseminated 
elsewhere within the United States by the fruit or vegetable. In order 
for the Administrator to make the determination described in this 
paragraph, he or she must conclude based on the information presented 
in the risk analysis for the fruit or vegetable that the risk posed by 
each quarantine pest associated with the fruit or vegetable in the 
State of origin is mitigated by one or more of the following factors:
    (1) Inspection. A quarantine pest is associated with the fruit or 
vegetable in the State of origin, but the pest can be easily detected 
via inspection in the State of origin or in the State of first arrival;
    (2) Pest freedom. No quarantine pests are known to be associated 
with the fruit or vegetable in the State of origin, or a quarantine 
pest is associated with the fruit or vegetable in the State of origin 
but the fruit or vegetable originates from an area that meets the 
requirements of Sec.  318.13-5 for pest freedom;
    (3) Effectiveness of treatment. A quarantine pest is associated 
with the fruit or vegetable in the State of origin, but the risk posed 
by the pest can be reduced by applying an approved post-harvest 
treatment to the fruit or vegetable;
    (4) Predeparture inspection. A quarantine pest is associated with 
the fruit or vegetable in the State of origin, but the fruit or 
vegetable is subject to predeparture inspection;
    (5) Commercial consignments. A quarantine pest is associated with 
the fruit or vegetable in the State of origin, but the risk posed by 
the pest can be reduced by commercial practices.
    (6) Limited distribution. A quarantine pest is associated with the 
fruit or vegetable in the State of origin, but the risk posed by the 
pest can be reduced by limiting distribution of the fruit or vegetable 
and labeling boxes containing the fruit or vegetable with those 
distribution instructions.
    (ii) Administrator's decision. The Administrator will announce his 
or her decision in a subsequent Federal Register notice. If 
appropriate, APHIS would begin allowing the interstate movement of the 
fruits or vegetables subject to requirements specified in the notice 
because:
    (A) No comments were received on the pest risk analysis;
    (B) The comments on the pest risk analysis revealed that no changes 
to the pest risk analysis were necessary; or
    (C) Changes to the pest risk analysis were made in response to 
public comments, but the changes did not affect the overall conclusions 
of the analysis and the Administrator's determination of risk.
    (d) Amendment of interstate movement requirements. If, after 
February 17, 2009, the Administrator determines that one or more of the 
designated phytosanitary measures is not sufficient to mitigate the 
risk posed by any fruit or vegetable authorized interstate movement 
under this section, APHIS will prohibit or further restrict the 
interstate movement of the fruit or vegetable pending resolution of the 
situation. If APHIS concludes that a

[[Page 2779]]

permanent change to the interstate movement requirements of a 
particular fruit or vegetable is necessary, APHIS will also publish a 
notice in the Federal Register advising the public of its finding. The 
notice will specify the amended interstate movement requirement