With the exception of the provisions regarding the posting of warning notices and distribution of baggage declarations, which appear only in the Hawaii subpart, there is little to no variation between the subparts in these 17 sections; any differences are more editorial then substantive. Each subpart also contains commodityspecific instructions for the movement of certain regulated articles. As explained later in this document, if this proposal is adopted, all of those sections would be removed from or relocated in the regulations. (See ``Regulated ArticleSpecific Provisions'' section later in this document.) While the interstate movement of regulated articles from Guam is covered within the scope of the Guam subpart, that subpart is outdated and most interstate movement requirements for Guam are not accurately reflected in the subpart.

We are proposing to reorganize the regulations by combining the three Hawaiian and territorial subparts into one single subpart, ``Regulated Articles From Hawaii and the Territories'' (Sec. Sec. 318.131 through 318.1325). In doing so, we would consolidate the generally applicable provisions that now appear in each subpart. We would also explicitly include the Commonwealth of the Northern Mariana Islands (CNMI) within the scope of the regulations and update the regulations to reflect administrative and procedural processes that have been modified or established since we last updated the regulations.

In some cases, we would make no changes to the content of the current sections, but simply change their paragraph and section designations. In other cases, we would amend the text to make the regulations easier to understand, to correct errors, or to update them to reflect current APHIS operating procedures.

In order to facilitate review of this proposal, which, if adopted, would relocate all current provisions to new sections within the regulations, we have prepared a crossreference table that links the current provisions with the proposed provisions. The crossreference document may be viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov) and may be obtained by contacting the person listed under FOR FURTHER INFORMATION CONTACT. The crossreference document may also be viewed in our reading room (information on the location and hours of the reading room is provided under the heading ADDRESSES at the beginning of this proposed rule).

SectionbySection Discussion of Additional Amendments

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

Notice of Quarantine (Proposed Sec. 318.131)

Proposed Sec. 318.131 describes the authority held by the Secretary of Agriculture to regulate the interstate movement of fruits, vegetables, and other regulated articles.\1\ Proposed Sec. 318.131 would continue to prohibit the interstate movement of fruits and vegetables and associate plants and portions of plants and other regulated articles except as provided in the Hawaii and territorial quarantine regulations or elsewhere in part 318. These proposed provisions were all drawn from and are consistent with those found in the existing Hawaiian and territorial subparts.
\1\ The Secretary of Agriculture has delegated authority for the formulation, direction, and supervision of APHIS policies, programs, and activities to the Administrator of APHIS.
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Definitions (Proposed Sec. 318.132)

Proposed Sec. 318.132 contains definitions of terms used in the subpart. All the terms and their definitions were drawn from the existing Hawaiian and territorial subparts; however, we are proposing to make some substantive changes, including revising, adding, and removing certain definitions. Specifically, we are proposing to revise definitions for fruits and vegetables, interstate, and person. These new definitions would clarify the meaning of those terms in the context of the revised regulations.

We are also proposing to add definitions for approved growing media, lot, regulated article, and soil. We are proposing to replace the current definition of certificate with a definition for certification. As explained later in this document under the section titled ``General Requirements for All Regulated Articles (Proposed Sec. 318.133),'' the term certification more accurately reflects current operating procedures. We are proposing to replace the current definition of commercial shipment with a definition of commercial consignment in order to eliminate confusion over what constitutes a ``shipment.'' We are also proposing to replace the current definition of plant litter with a definition of plant debris in order to provide the most uptodate term. All new and revised definitions may be found in Sec. 318.132 in the regulatory text at the end of this document.

We are proposing to remove the definitions for administrative instructions; cactus plants; cereals; cotton and cotton covers; mango seeds; rice straw; seeds; State, territory, or district of the United States; and sugarcane or parts or byproducts thereof because these terms are not used in the proposed new subpart.
General Requirements for All Regulated Articles (Proposed Sec. 318.13 3)

As explained earlier in this document, we are proposing to consolidate all existing general requirements for the interstate movement of regulated articles into Sec. 318.133. These requirements include provisions that pertain to:

The current provisions for these requirements are contained in Sec. Sec. 318.13 through 318.134, Sec. Sec. 318.135 through 318.13 17, Sec. Sec. 318.58 through 318.584, Sec. Sec. 318.585 through 318.5816, Sec. 318.822, and Sec. 318.823. In consolidating those provisions into a single section, we would set out the general requirements as follows:

Freedom From Plant Debris

Proposed Sec. 318.133(a) would require that fruits and vegetables moved interstate from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, or Guam must be free from plant debris. These proposed provisions are drawn from and are consistent with those found in the existing Hawaiian and territorial subparts.

Certification

Proposed Sec. 318.133(b) contains provisions under which certificates or limited permits may be issued for the movement of regulated articles under certain conditions. These proposed provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts. However, while the regulations refer to the issuance of certificates, APHIS inspectors do not issue certificates, but rather stamp shipping boxes and/or containers or accompanying documents with a release stamp as a verification of certification. Therefore, we are proposing to amend the regulations by removing all references to issuing certificates, and we would instead use the term certification. Limited Permits

Proposed Sec. 318.133(c) contains provisions for the issuance of limited permits. These proposed provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.

Compliance Agreements

Proposed Sec. 318.133(d) contains provisions for entering into compliance agreements with APHIS. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts. We are also proposing to require persons wishing to move fruits and vegetables interstate under certain approved noticebased measures to enter into a compliance agreement with APHIS. Specifically, we would require compliance agreements for persons wishing to move fruits and vegetables from fruit flyfree areas, in commercial consignments, or with inspection in the State of origin. The compliance agreement would help APHIS to trace back consignments should problems occur with the shipment as well as to monitor the establishment in which the fruits and vegetables are grown, packed, and otherwise processed.
Attachment of Limited Permit or Verification of Certification

Proposed Sec. 318.133(e) contains provisions pertaining to the attachment of certification and limited permits. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.
Withdrawal of Transit Permits, Limited Permits, or Compliance Agreements

Proposed Sec. 318.133(f) contains conditions under which APHIS will withdraw certification, transit permits, limited permits, or compliance agreements. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.

Container Marking and Identity

Proposed Sec. 318.133(g) contains provisions regarding container marking and identity. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.

Refusal of Entry

Proposed Sec. 318.133(h) explains conditions under which APHIS would refuse entry of a regulated article. Specifically, paragraph (h) provides that if an inspector finds that a regulated article is prohibited, or is not accompanied by required documentation, or is so infested with a plant pest or noxious weed that, in the judgment of the inspector, it cannot be cleaned or treated, or contains soil or other prohibited contaminants, the entire lot or consignment may be refused movement elsewhere in the United States. This change would clearly state our existing authority in the regulations and would not affect program operations in any way.

Costs and Charges for APHIS Services

Proposed Sec. 318.133(i) contains provisions related to costs and charges for APHIS services. These provisions were drawn from and are consistent
[[Page 34205]]
with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.

APHIS Not Responsible for Damage

Proposed Sec. 318.133(j) contains provisions pertaining to responsibility for damages to regulated articles resulting from required treatments. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.
Approval of Certain Fruits and Vegetables for Interstate Movement (Proposed Sec. 318.134)

Under our current process, in order for a fruit or vegetable to be approved for interstate movement from Hawaii, Puerto Rico, Guam, the U.S. Virgin Islands, the Commonwealth of Northern Mariana Islands, or any other territory or possession of the United States, APHIS, after receiving the movement request from a State or territory, first gathers information on the fruit or vegetable and then performs a pest risk analysis. The pest risk analysis usually contains two main components: (1) A risk assessment, to determine what pests of quarantine significance are associated with the fruit or vegetable and which of those are likely to follow the import pathway, and (2) a risk management analysis, to identify phytosanitary measures that could be applied to the fruit or vegetable and evaluate the potential effectiveness of those measures. When the risk analysis is complete, APHIS may then propose to allow the interstate movement of the fruit or vegetable through a proposed rule published in the Federal Register. Following its evaluation of public comments on the proposal and any other supporting documentation, APHIS may then issue a final rule that specifically lists the fruit or vegetable, and any applicable phytosanitary measures, in the regulations. The results of a pest risk analysis may also reveal that the risks posed by a fruit or vegetable cannot be sufficiently mitigated for a variety of reasons, and such movement continues to be prohibited. The current process for approving new commodities for interstate movement takes a significant period of time, ranging on average from 18 months to over 3 years (beginning with the initial request and ending with the publication of a final rule).

In a final rule published on July 18, 2007 (72 FR 3948239528, Docket No. APHIS20050106) and effective on August 17, 2007, we established a performancebased process for approving the importation of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the designated phytosanitary measures listed in Sec. 319.564(b) of the regulations. These measures are:

In response to comments received on our proposed rule that preceded the July 2007 final rule, and in order to make our domestic regulations consistent with our import regulations, we are proposing to establish a similar regulatory approach that would allow APHIS to approve or reject certain fruits and vegetables for interstate movement from Hawaii and the territories. The process, which would be codified in proposed Sec. 318.134, would entail the publication of notices in the Federal Register to advise the public of the findings of pest risk analyses and invite comment on those analyses prior to authorizing the interstate movement of any fruit or vegetable. The proposed measures, which are referred to as ``designated measures'' elsewhere in this document, would be similar, but not identical to those which are located in Sec. 319.564, given that the proposed designated measures have been modified to account for the differences between interstate movement and importation. For example, in the current Hawaii/territorial regulations, inspectors must certify consignments through inspection or treatment before consignments may move interstate. Therefore, we have included certification as part of two designated measurestreatment and inspection in the State of origin. Also, Sec. 319.564 lists inspection upon arrival in the United States as a designated measure for imports. In proposed Sec. 318.134 we require that the inspection take place in the State of first arrival, which more accurately reflects the fact that the consignment is already in commerce in the United States. In Sec. 319.564, inspection in the country of origin by an inspector or an official of the national plant protection organization (NPPO) of the exporting country is listed as a designated measure, while this proposed rule would provide that inspection and certification take place in the State of origin by an inspector. The inspector could be a State agricultural inspector or an individual authorized by APHIS or the Department of Homeland Security. Finally, Sec. 319.564 provides that fruits or vegetables coming from approved pestfree areas be accompanied by a phytosanitary certificate. States do not issue phytosanitary certificates, nor do they issue any comparable document; therefore, the proposed equivalent measure would not provide for the issuance of additional documentation for consignments moving from pestfree areas. The proposed designated measures are as follows:

This proposed process for approving interstate movement would apply only to fruits and vegetables, not propagative material or other products (i.e., cut flowers, seeds, etc.) that are regulated under 7 CFR part 318. Further, the proposed process would apply only to those fruits and vegetables that, based on the findings of risk analysis, we determine can be safely moved subject to one or more of the designated measures.

We believe the proposed process would measurably speed up the evaluation and approval or denial of requests for interstate movement of fruits and vegetables, while continuing to provide opportunity for public analysis of and comment on the evidence used in our evaluation of the potential pest risks associated with the fruit or vegetable.

In addition to the phytosanitary measures added to the regulations for the noticebased approach in the July
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2007 final rule, we have evaluated one additional measure, limited distribution, for the noticebased process in this proposal. Limited distribution would be applied if the results of the pest risk analysis indicated that the risk of introducing specific pests of concern could be mitigated by limiting the geographical area within which the fruit or vegetable could be moved interstate. For example, based on the quarantine pest(s) identified, a pest risk analysis may determine that a mitigation measure should be to limit distribution of the fruit or vegetable to Alaska because the climate there would not be conducive for the particular pest's establishment. There are also box marking requirements that are associated with this measure to ensure that consignments are not misdirected. Using the previous example, we would require the shipping containers be marked as ``For Distribution in Alaska Only.''

We have determined that limited distribution has a good track record of efficacy when used in combination with one or more of the other proposed designated measures. There are a number of regulated articles that currently move from Hawaii under distribution limitations (e.g., litchi and longan may not be moved interstate into Florida, and avocados may only be moved interstate to Alaska). Therefore, we are proposing to include this measure in the list of designated measures in this proposed rule.

The interstate movement of fruits and vegetables that require additional phytosanitary measures beyond one or more of the designated measures cited above would continue to be authorized through specific prior rulemaking. For ease of discussion in this document, we refer to the proposed streamlined process as the ``noticebased process'' and the existing process as the ``rulemakingbased process.'' Note that the determination as to which process to follow (rulemaking or the notice based process) would be based exclusively on the conclusions of a risk analysis.

Using the proposed noticebased process, when APHIS receives a request from a State Department of Agriculture to allow interstate movement of an additional fruit or vegetable, it would gather information on the fruit or vegetable and conduct a pest risk assessment. When the assessment is complete, if quarantine pests are associated with the fruit or vegetable in the State of origin,\2\ we would evaluate whether the risk posed by each quarantine pest can be mitigated by one or more of the designated measures cited previously in this document.\3\ If the designated measures alone are not sufficient to mitigate the risk posed by the fruit or vegetablei.e., if additional risk mitigation is required beyond one or more of the designated phytosanitary measuresany further action on approving the fruit or vegetable for interstate would be undertaken using the rulemakingbased process for authorizing new fruits and vegetables for interstate movement. However, if APHIS determines in a risk management analysis that the risk posed by each identified quarantine pest associated with the fruit or vegetable in the State of origin can be mitigated by one or more of the designated measures, our findings would be communicated using the noticebased process; APHIS would publish in the Federal Register, for a public comment period of a minimum of 60 days, a notice announcing the availability of the pest risk analysis. Each pest risk analysis made available for public comment will specify which of the designated phytosanitary measures would be required to be applied by APHIS.
\2\ Risk analyses could consider a State or territory, part of a State or territory, or all or parts of several States or
territories.
\3\ If no quarantine pests are identified in the pest risk analysis as likely to follow the pathway, a detailed risk management analysis would likely not be performed, but the interstate movement of the commodity would still be subject to the general requirements of proposed Sec. 318.133.

Under the noticebased process, APHIS would evaluate the comments we received in response to our notice of availability of the risk analysis. In the event that we receive no comments, or in the event that commenters do not provide APHIS with information that shows that the conclusions of the pest risk analysis are incorrect and that changes to the pest risk analysis are necessary, APHIS would then publish another notice in the Federal Register announcing that the Administrator has determined that, based on the information available, the application of one or more of the designated measures described above (and as specified in a given pest risk analysis) is sufficient to mitigate the risk that plant pests or noxious weeds could be introduced into or disseminated within the United States via the moved fruit or vegetable. APHIS would also respond to all substantive comments received on the initial notice in this second notice. APHIS would begin allowing the interstate movement of the particular fruit or vegetable, subject to the conditions described in the pest risk analysis, beginning on the date the Federal Register notice is published.

In the event that commenters provide APHIS with information that shows that changes to the pest risk analysis are necessary, and if the changes made affect the conclusions of the analysis (i.e., that the application of the identified phytosanitary measures will not be sufficient to mitigate the risk posed by the identified pests), APHIS would proceed as follows:

Note that APHIS does not set policy or regulatory requirements based on issues of economic competitiveness; our authority is tied to pest risk, and therefore our decisionmaking is based on an analysis of risk. While the proposed process would not preclude
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the submission of comments regarding issues unrelated to risk, comments on issues such as economic competitiveness (e.g., comments that the proposed fruit or vegetable movement would result in decreased sales for continental U.S. producers of the same fruit or vegetable) would not merit a detailed response by APHIS. This proposal would allow APHIS to focus public discussion on the analysis of pest risk, which is the primary basis for our decisionmaking. We believe this policy is consistent with the provisions of the Plant Protection Act.

The noticebased process would employ the use of Federal Register notices to communicate APHIS's consideration and approval or denial of requests that were previously only approved via rulemaking. As described above, Federal Register notices would be used to announce the availability of pest risk analyses for public comment. Federal Register notices would also be used to announce when the Administrator has determined that a particular fruit or vegetable that has been subject to risk analysis and public comment can, based on the findings of pest risk analysis, be approved for interstate movement in the United States. These notices would make clear the conditions under which such movement could occur, and would state that APHIS will immediately begin allowing the interstate movement of the fruit or vegetable. As described later in this document, these notices would also be used to make available any documentation of our consideration of the potential effects of the interstate movement of a fruit or vegetable on the environment, as required under the National Environmental Policy Act, as well as any other analyses determined by APHIS to be necessary under other Federal statutes, such as the Endangered Species Act.

If the noticebased process is adopted for use by APHIS, we would not list commodities approved under this approach in the regulations, though such commodities would be listed in APHIS' Hawaii/CNMI and Puerto Rico/U.S. Virgin Islands fruits and vegetables manuals \4\ and the documentation supporting their approval would be made available on the Internet; we also would remove from the regulations those listed commodities that are currently approved for interstate movement subject only to one or more of the designated measures described earlier in this document. Consequently, we would remove the lists of commodities contained in current Sec. Sec. 318.132, 318.134b, 318.134f, and 318.582 and the provisions in Sec. 318.584b, ``Irradiation treatment of regulated articles from Puerto Rico and the U.S. Virgin Islands,'' and Sec. 318.134c, ``Administrative instructions approving methyl bromide fumigation as a condition for certification of tomatoes for movement from Hawaii.''
\4\ Currently, APHIS does not maintain a fruits and vegetables manual for Guam because there are no regulated articles being moved from Guam (see proposed Sec. 318.1317 ``Regulated articles from Guam''). If as a result of this proposed rule, it becomes necessary to maintain a list of fruits and vegetables from Guam outside of the regulations, APHIS would list such information on the PPQ Internet Web site.

We recognize that removing a large number of commodities from the regulations may cause some confusion as to whether a particular fruit or vegetable is approved for interstate movement in the United States, and under what conditions. However, for many years, APHIS has maintained Hawaii/CNMI and Puerto Rico/U.S. Virgin Islands fruits and vegetables manuals that were designed to be a handson reference for our inspectors. The manuals are a complete reference for all fruits and vegetables approved for interstate movement from those States and may be viewed on the APHIS Web site at http://www.aphis.usda.gov/import_ export/plants/manuals/ports/downloads/hawaii.pdf and http:// www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/ puerto_rico.pdf. These manuals are frequently used by shippers and other interested persons, in addition to APHIS personnel.

Under this proposal, commodities that have been authorized for interstate movement under the provisions of Sec. 318.134 would be added to the manuals for their State or territory of origin, but not the regulations. Furthermore, the manual would list those designated measures that apply to each of those commodities. We also plan to incorporate commodities that have been approved for interstate movement into a searchable database at some point in the future. We are currently developing a database for commodities in our imported fruits and vegetables manual. The new database will allow interested persons to search by regulated article or by country, and will list clearly the conditions that apply to each particular regulated article from a specified country. We envision the database as a comprehensive source for all types of usersinspectors, importers, shippers, and other members of the public.

We would also include in proposed Sec. 318.134 provisions that would allow APHIS to amend interstate movement requirements or withdraw approval of particular commodities whose movement is approved under Sec. 318.134. Specifically, APHIS could amend interstate movement requirements if we determine that the currently assigned designated phytosanitary measures are not sufficient to mitigate the risk posed by the particular fruit or vegetable. This could occur due to interceptions of new pests in moved fruits or vegetables or evidence of other risks. Under this provision, APHIS would announce that it was prohibiting or further restricting the interstate movement of the particular fruit or vegetable by publishing a notice in the Federal Register. In such cases, APHIS would take immediate action as appropriate at ports of entry, and would follow such action as quickly as practicable with notice in the Federal Register. The notice would specify the amended interstate movement requirements, provide an effective date for the change, and would invite public comment on the subject. It is likely that most such actions would be effective immediately, in order to address newly identified risks in a timely fashion; however, if there is uncertainty as to the risk posed, APHIS may request comment on a change in interstate movement requirements prior to making such a change effective.

PestFree Areas (Proposed Sec. 318.135)

Currently, there are no provisions for establishing pestfree areas for Hawaii, Puerto Rico, Guam, the U.S. Virgin Islands, or CNMI. In this document, we are proposing to add a process for establishing pest free areas and would provide for pestfree areas to be recognized using a noticebased approach. Proposed Sec. 318.135, paragraph (a) would provide that APHIS would make a determination of an area's pestfree status based on information provided by the State. The information APHIS would use in its determination would include trapping and surveillance data, survey protocols, and protocols for actions to be taken upon discovery of a pest. If warranted, APHIS would publish a notice in the Federal Register, making the information used to make the determination available to the public and solicit comment for 60 days. Following the comment period, if appropriate, APHIS would begin allowing movement of the regulated article from the pestfree area without mitigations for the particular pest because:

1. No comments were received on the notice or

2. The comments on the notice did not affect the overall conclusions of the
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notice and the Administrator's determination of risk.

A comprehensive list of pestfree areas would be made available by APHIS on the Internet, but no such list would be contained in the regulations. Rather, the regulations would simply identify the standards an area must meet to be considered pest free, as shown in proposed Sec. 318.135.

In conjunction with this proposed change, we would also include a provision in proposed Sec. 318.135 regarding how we would acknowledge the decertification of pestfree areas. Specifically, paragraph (d) of that section would provide that in the event of pest infestation in an approved pestfree area, APHIS will publish in the Federal Register a notice announcing that the pestfree status of the area in question has been withdrawn, and that movement of host crops for the pest in question are subject to additional mitigations, if any exist. If an alternative mitigation for the pest is not available, the interstate movement would be prohibited. In order for a decertified pestfree area to be reinstated, a State would have to submit new information supporting its pestfree status as discussed in paragraph (b) of this section to be approved by APHIS.

Paragraph (e) would set forth general requirements for the interstate movement of regulated articles from pestfree areas in Hawaii, Puerto Rico, Guam, CNMI, or the U.S. Virgin Islands. Specifically, paragraph (e) would provide that each box of fruits or vegetables that is moved interstate from a pestfree area under this subpart be labeled with the name of the orchard or grove or origin, or the name of the grower; the name of the municipality and State or territory in which the fruits or vegetables were produced; and the type and amount of fruit the box contains. Paragraph (e) would further provide that persons wishing to move fruits or vegetables from Hawaii, Puerto Rico, Guam, CNMI, or the U.S. Virgin Islands enter into a compliance agreement with APHIS in accordance with the provisions for compliance agreements in Sec. 318.133(d). Finally, paragraph (e) would require that fruits or vegetables moved from a pestfree area into or through a nonfree area be safeguarded during the time they are present in a nonfree area by insectproof mesh screens or plastic tarpaulins, including while in transit to the packinghouse and while awaiting packaging. Further, we would require fruits or vegetables that are moved through a nonfree area during transit to a port to be packed in insectproof cartons or containers or be covered by insectproof mesh or plastic tarpaulins during transit to the port and subsequent movement to the continental United States. These safeguards would provide necessary protection of commodities moved interstate against pest infestation while they are in transit through the United States and are consistent with standard operating procedures of all current programs for the export of fruits or vegetables from foreign pestfree areas.
General Requirements
Transit of Regulated Articles From Hawaii or the Territories Into or Through the Continental United States (Proposed Sec. 318.136)

Proposed Sec. 318.136 contains provisions for fruits and vegetables from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, and Guam to transit through the United States en route to another country. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.
Products as Ships' Stores or in the Possession of Passengers or Crew (Proposed Sec. 318.137)

Proposed Sec. 318.137 contains provisions for certain regulated articles from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, and Guam to be moved interstate as ships' stores or in the possession of passengers and crew on ships. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.
Articles and Persons Subject to Inspection (Proposed Sec. 318.138)

Proposed Sec. 318.138 contains provisions related to the inspection of persons, means of conveyance, baggage, cargo, and any other articles destined for movement from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, and Guam to a destination elsewhere in the United States. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.
Inspection and Disinfection of Means of Conveyance (Proposed Sec. 318.139)

Proposed Sec. 318.139 contains provisions for inspecting aircraft prior to departure from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, and Guam; inspection of aircraft moving to Guam; and inspection of ships upon arrival in the United States. Proposed Sec. 318.139 also contains provisions for disinfecting means of conveyance. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.
Inspection of Baggage, Other Personal Effects, and Cargo (Proposed Sec. 318.1310)

Proposed Sec. 318.1310 contains provisions for inspecting aircraft passengers, aircraft crew, persons traveling to Guam, persons traveling by ship as well as provisions for accepting baggage and loading on aircraft, loading of certain cargoes, removing certain cargoes in Guam, and providing space and facilities for baggage and cargo inspection. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.
Posting of Warning Notice and Distribution of Baggage Declarations (Proposed Sec. 318.1311)

Proposed Sec. 318.1311 contains provisions for distributing baggage declarations to passengers on aircrafts, ships, vessels, or other surface craft moving to Guam, CNMI, or American Samoa. In addition, proposed Sec. 318.1311 contains requirements for posting warning notices directing attention to the regulations in the Hawaii and territorial subparts on docks, harbors, or landing fields in Hawaii, Puerto Rico, Guam, CNMI, or the U.S. Virgin Islands. These provisions were drawn from and are consistent with the provisions that appear in the corresponding section in the Hawaii subpart; except that we are proposing to amend some of those provisions to reflect current APHIS practices. Specifically, we are proposing to amend those provisions to require that baggage declarations be distributed to passengers on aircraft, ships, vessels, or other surface crafts moving to Guam, CNMI, or American Samoa. Hawaii does not distribute baggage declarations to passengers on all outgoing aircraft, ships, vessels, or other surface crafts; therefore we are also proposing to remove those requirements. Paragraph (b) of Sec. 318.1312 of the current regulations contains instructions for posting warning notices in docks, harbors, or landing fields in Hawaii, which direct the passengers' attention to the quarantine and regulations in 7 CFR part 318. We would not include footnotes 5 and 6 in proposed Sec. 318.1311 because the footnotes reference form PPQ 232, which no longer exists.
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Movement by the U.S. Department of Agriculture (Proposed Sec. 318.13 12)

Proposed Sec. 318.1312 contains provisions under which the USDA may move articles whose interstate movement is otherwise prohibited or restricted to move interstate from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, or Guam. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.
Movement of Frozen Fruits and Vegetables (Proposed Sec. 318.1313)

Proposed Sec. 318.1313 provides conditions under which frozen fruits and vegetables may be certified for interstate movement from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, or Guam. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.
Movement of Processed Fruits, Vegetables, and Other Products (Proposed Sec. 318.1314)

The Hawaii/territorial fruits and vegetables manuals currently place restrictions on the interstate movement of processed fruits, vegetables, and other products from those areas; however, there are no corresponding requirements in the regulations. In this document, we are proposing to add general requirements regarding the interstate movement of processed products from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, and Guam in proposed Sec. 318.1314. Specifically, proposed Sec. 318.1314(a) would provide that fruits, vegetables, and other products that are processed sufficiently as to preclude the survival of any live pests can be moved interstate from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, and Guam. A listing of processed products that are currently approved for interstate movement from those States can be found in the Hawaii/territorial manuals. Proposed paragraph (b) of this section provides that consignments of dried fruits, vegetables, or other products that are capable of harboring fruit flies will be subject to the same interstate movement conditions that apply to the fruit or vegetable in its unprocessed state. Parcel Post Inspection (Proposed Sec. 318.1315)

Proposed Sec. 318.1315 provides conditions under which inspectors are authorized to inspect parcel post packages placed in the mail in Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, or Guam. These provisions were drawn from and are consistent with the provisions that appear in the corresponding sections of each of the Hawaiian and territorial subparts.
Regulated Articles Allowed Interstate Movement Subject to Specific Conditions (Proposed Sec. 318.1316)

Currently, the regulations contain provisions for interstate movement of certain regulated articles from Hawaii, Puerto Rico, the U.S. Virgin Islands, and Guam to other locations in the United States subject to inspection and other requirements. As explained elsewhere in this document, most such commodities would no longer be listed in the regulations under this proposal. However, as also explained earlier in this document, some commodities listed in the current regulations are allowed interstate movement subject to additional measures beyond the designated measures used in the noticebased process. We are proposing to list those commodities, and any requirements that apply to their interstate movement beyond the general requirements of Sec. 318.133, in proposed Sec. 318.1316. Such commodities would remain subject to the same restrictions that currently apply to their interstate movement. In some cases, restrictions that apply to the movement of specific fruits, vegetables, and other products from Hawaii, Puerto Rico, the U.S. Virgin Islands, CNMI, and Guam are contained in each State's respective fruits and vegetables manual, but not in the regulations. Consequently, we are proposing to add some commodities to the regulations that are currently listed, along with applicable movement restrictions, only in one of those manuals. A table with those commodities and the location of their current interstate movement requirements follows. See proposed Sec. 318.1316 for a list of commodities and applicable requirements. Authorization of additional commodities subject to any of these additional measures or measures other than the designated measures described earlier in this document would continue to require prior specific rulemaking.
Location of current interstate State of origin Common name Botanical name movement requirements Hawaii....................... Bananas..................... Musa spp......... Hawaii/CNMI fruits and vegetables manual (``Additional fruits and vegetables approved for movement from Hawaii to Alaska only'' table on page 6 13). Edible flowers (Pot Calendula spp.... Hawaii/CNMI fruits and marigold, johnnyjumpups, vegetables manual (page 612). pansies, and violets).
Pineapple................... Ananas comosus... Hawaii/CNMI fruits and vegetables manual (page 612). Puerto Rico.................. Cactus...................... Cactaceae........ Puerto Rico/U.S. Virgin Islands fruits and vegetables manual (table 7319). Okra........................ Abelmoschus Puerto Rico/U.S. Virgin Islands escuelentus. fruits and vegetables manual (tables 731 and 733). Edible flowers (pot Calendula spp.... Puerto Rico/U.S. Virgin Islands marigold, johnnyjumpups, fruits and vegetables manual pansies, and violets). (table 731). U.S. Virgin Islands.......... Cactus...................... Cactaceae........ Puerto Rico/U.S. Virgin Islands fruits and vegetables manual (table 7319) and Sec. 318.582(b)(3). Okra........................ Abelmoschus Puerto Rico/U.S. Virgin Islands escuelentus. fruits and vegetables manual (tables 731 and 733). Edible flowers (pot Calendula spp.... Puerto Rico/U.S. Virgin Islands marigold, johnnyjumpups, fruits and vegetables manual pansies, and violets). (table 731). [[Page 34210]]

Regulated Articles From Guam (Proposed Sec. 318.1317)

Proposed Sec. 318.1317 contains interstate movement requirements that would apply specifically to regulated articles from Guam. These provisions were drawn from and are consistent with the provisions that appear in the Guam subpart; except that the reference to part 321 would be removed because part 321, ``Restricted Entry Orders,'' has been removed (see 62 FR 5023750239, Docket No. 970102).

Sections 318.1318 through 318.1320 would be reserved to provide additional space in ``SubpartHawaiian and Territorial Quarantine Notices'' for future amendments, should such amendments be needed. Regulated ArticleSpecific Provisions (Proposed Sec. Sec. 318.1321 through 318.1325)

Sections 318.134a through 318.134j and Sec. Sec. 318.584a through 318.584c contain restrictions on the movement of specific commodities. As explained elsewhere in this document, a number of these sections will be removed if this proposal is adopted. However, all or part of the following sections would be retained under this proposal:

Under this proposal, some or all of the provisions contained in the sections listed above would be relocated to new sections of the proposed regulations, as shown in the cross reference document. As would be the case with requirements of general applicability, we would make no changes to the content of the sections, but simply change paragraph and section designations. In other cases, we are proposing to amend the text to make the regulations easier to understand, to correct errors, or to update them to reflect current APHIS operating procedures. None of these changes would represent a substantive change in interstate movement policy.

Current Sec. 318.134d contains restrictions on the interstate movement of sweetpotatoes from Hawaii. Under this proposal, all provisions contained in current Sec. 318.134d would be relocated to proposed Sec. 318.1325, except that the new section would not include a statement that vapor heat treatment is an authorized treatment for sweetpotatoes from Hawaii, as part 305 already lists vapor treatment as an approved treatment.

Current Sec. 318.133(b)(1) contains conditions governing the interstate movement of cut flowers from Hawaii except for cut blooms and leis of mauna loa and jade vine and except for cut blooms of gardenia not grown in accordance with Sec. 318.134j, ``Administrative instructions governing the interstate movement of cut blooms of gardenia from Hawaii.'' Under this proposal, the cut flowerrelated provisions of Sec. 318.133(b)(1) and the conditions for the interstate movement of gardenia in Sec. 318.134j would be relocated to proposed Sec. 318.1323.

Current Sec. 318.134i contains conditions governing the interstate movement of bananas from Hawaii, including a requirement that the fruit be safeguarded from fruit fly infestation during transit. Under this proposal, all provisions contained in current Sec. 318.134i would be relocated to proposed Sec. 318.1322, except that the new section would specifically provide that bananas being moved interstate must be safeguarded from fruit fly infestation by being covered with insectproof packaging, such as insectproof mesh screens or plastic tarpaulins. This change is necessary to clarify the safeguarding requirement in this section.

Current Sec. 318.584c contains conditions governing the interstate movement of sweetpotatoes from Puerto Rico. The current regulations provide that the fields in which sweetpotatoes have been grown must be treated with an approved soil insecticide and that before planting in treated fields, the sweetpotato draws and vine cuttings must be dipped in an approved insecticidal solution. Under this proposal, all provisions contained in current Sec. 318.584c would be relocated to proposed Sec. 318.1324, except that we would clarify that the soil insecticide and insecticidal solution must be approved by APHIS.

Miscellaneous Changes

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

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We have prepared an initial regulatory flexibility analysis that considers the potential economic effects of this proposed rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available from the person listed under FOR FURTHER INFORMATION CONTACT. Please refer to Docket No. APHIS20070052 when requesting copies. The full analysis is also available on the Regulations.gov Web site and in our reading room (instructions for accessing Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this document).

This proposed rule would revise and reorganize the regulations pertaining to the interstate movement of fruits and vegetables from Hawaii, Puerto Rico, the U.S. Virgin Islands, and Guam. This would be done to consolidate requirements of general applicability and eliminate redundant requirements, update terms and remove outdated requirements and references, make various editorial and nonsubstantive changes to the regulations to make them easier to use, and expand their applicability to include the CNMI and all other territories and possessions of the United States.

APHIS is also proposing to make substantive changes to the regulations. This proposed rule would establish criteria within the regulations that, if met, would allow APHIS to approve certain fruits and vegetables for interstate movement and to acknowledge pestfree areas in Hawaii and U.S. territories without undertaking rulemaking. Currently, these commodities may only be brought into the continental United States after completion of a pest risk analysis, risk management document, and rulemaking, if the commodities are not currently included on the list of regulated articles. A similar type of noticebased procedure has been implemented by APHIS for approving imports. Implementing this rule would establish a similar approach for authorizing the interstate movement of certain fruits and vegetables and other
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articles. This proposed rule would also result in certain regulated articles no longer being listed in the regulations. These changes would simplify and expedite the APHIS processes for approving certain regulated articles for interstate movement and pestfree areas while continuing to allow for public participation in the process.

APHIS expects little impact on the total supply of fruits and vegetables available in the continental United States, and little change in the movement of fruits and vegetables from Hawaii and the territories; effects on U.S. producers, marketers, and consumers are expected to be small. The main provision of this proposed rule represents a structural revision of the regulations pertaining to the movement of fruits and vegetables from Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam, and CNMI, and establishes a new process for approving commodities for movement into the continental United States. However, those commodity movement requests most likely to qualify for the noticebased process are specialty crops having limited markets. The proposed rule would not alter the conditions that apply to currently approved fruits or vegetables.

Of particular note with respect to the approval process, the change would allow a newly approved commodity to move more quickly into commerce to the benefit of consumers and Hawaiian and territorial producers once it has been determined that the commodity can be safely moved interstate subject to one or more designated risk management measures. This proposal, itself, would not allow for the interstate movement of any specific fruits or vegetables, nor would it alter the conditions for interstate movement of currently approved fruits or vegetables except as specifically described in the proposed rule. These proposed changes would not alter the manner in which the risk associated with a commodity interstate movement request is evaluated, nor would it alter the manner in which those risks are ultimately mitigated. Consumers would have quicker access to some fruits and vegetables, while risks would still be evaluated and appropriate mitigations required, as they are currently.

The requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) for this rulemaking are met through the following analysis. The economic effects of approving specific commodities for interstate movement using the streamlined approach would not be analyzed at the time

FOR FURTHER INFORMATION CONTACT Mr. David Lamb, Import Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 207371231; (301) 7348758.