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Title 7—Agriculture–Volume 5

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Title 7—Agriculture–Volume 5



SUBTITLE B—Regulations of the Department of Agriculture (Continued)

Part


chapter iii—Animal and Plant Health Inspection Service, Department of Agriculture

300


Subtitle B—Regulations of the Department of Agriculture (Continued)

CHAPTER III—ANIMAL AND PLANT HEALTH INSPECTION SERVICE, DEPARTMENT OF AGRICULTURE

PART 300—INCORPORATION BY REFERENCE


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


Source:67 FR 8463, Feb. 25, 2002, unless otherwise noted.


Editorial Note:Nomenclature changes to part 300 appear at 69 FR 18803, Apr. 9, 2004.

§ 300.1 [Reserved]

§ 300.2 Dry Kiln Operator’s Manual.

(a) The Dry Kiln Operator’s Manual, which was published in August 1991 as Agriculture Handbook No. 188 by the United States Department of Agriculture, Forest Service, has been approved for incorporation by reference in 7 CFR chapter III by the Director of the Office of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.


(b) The kiln drying schedules specified in the Dry Kiln Operator’s Manual provide a method by which certain articles regulated by “Subpart I—Logs, Lumber, and Other Wood Articles

” (7 CFR 319.40–1 through 319.40–11) may be imported into the United States.


(c) Availability. Copies of the Dry Kiln Operator’s Manual:


(1) Are available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html; or


(2) Are for sale as ISBN 0–16–035819–1 by the U.S. Government Printing Office, Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402–9328.


[67 FR 8463, Feb. 25, 2002 as amended at 84 FR 2427, Feb. 7, 2019]


§ 300.3 Reference Manual A.

(a) The Reference Manual for Administration, Procedures, and Policies of the National Seed Health System, which was published on February 25, 2000, by the National Seed Health System (NSHS), has been approved for incorporation by reference in 7 CFR chapter III by the Director of the Office of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.


(b) Availability. Copies of Reference Manual A:


(1) Are available for inspection at the APHIS Library, U.S. Department of Agriculture, 4700 River Road, Riverdale, MD or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html; or


(2) May be obtained by writing to Phytosanitary Issues Management, Operational Support, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737–1236; or


(3) May be viewed on the APHIS Web site at http://www.aphis.usda.gov/ppq/pim/accreditation.


§ 300.4 Reference Manual B.

(a) The Reference Manual for Seed Health Testing and Phytosanitary Field Inspection Methods, which was published on February 27, 2001, by the National Seed Health System (NSHS), has been approved for incorporation by reference in 7 CFR chapter III by the Director of the Office of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.


(b) Availability. Copies of Reference Manual B:


(1) Are available for inspection at the APHIS Library, U.S. Department of Agriculture, 4700 River Road, Riverdale, MD or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html; or


(2) May be obtained by writing to Phytosanitary Issues Management, Operational Support, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737–1236; or


(3) May be viewed on the APHIS Web site at http://www.aphis.usda.gov/ppq/pim/accreditation.


§ 300.5 International Standards for Phytosanitary Measures.

(a) The International Standards for Phytosanitary Measures Publication No. 4, “Requirements for the Establishment of Pest Free Areas,” which was published February 1996 by the International Plant Protection Convention of the United Nations’ Food and Agriculture Organization has been approved for incorporation by reference in 7 CFR chapter III by the Director of the Office of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.


(b) Availability. Copies of International Standards for Phytosanitary Measures Publication No. 4:


(1) Are available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html; or


(2) May be obtained by writing to Phytosanitary Issues Management, Operational Support, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737–1236; or


(3) May be viewed on the APHIS Web site at http://www.aphis.usda.gov/ppq/pim/standards/.


[68 FR 37915, June 25, 2003]


PART 301—DOMESTIC QUARANTINE NOTICES


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

Section 301.75–15 issued under Sec. 204, Title II, Public Law 106–113, 113 Stat. 1501A–293; sections 301.75–15 and 301.75–16 issued under Sec. 203, Title II, Public Law 106–224, 114 Stat. 400 (7 U.S.C. 1421 note).

Subpart A—Preemption and Special Need Requests


Source:73 FR 63064, Oct. 23, 2008, unless otherwise noted. Redesignated at 84 FR 2427, Feb. 7, 2019

§ 301.1 Purpose and scope.

(a) Under section 436 of the Plant Protection Act (7 U.S.C. 7756), a State or political subdivision of a State may not impose prohibitions or restrictions upon the movement in interstate commerce of articles, means of conveyance, plants, plant products, biological control organisms, plant pests, or noxious weeds if the Secretary has issued a regulation or order to prevent the dissemination of the biological control organism, plant pest, or noxious weed within the United States. The only exceptions to this are:


(1) If the prohibitions or restrictions issued by the State or political subdivision of a State are consistent with and do not exceed the regulations or orders issued by the Secretary, or


(2) If the State or political subdivision of a State demonstrates to the Secretary and the Secretary finds that there is a special need for additional prohibitions or restrictions based on sound scientific data or a thorough risk assessment.


(b) The regulations in this subpart provide for the submission and consideration of special need requests when a State or a political subdivision of a State seeks to impose prohibitions or restrictions on the movement in interstate commerce of articles, means of conveyance, plants, plant products, biological control organisms, plant pests, or noxious weeds that are in addition to the prohibitions or restrictions imposed by this part or by a Federal Order.


§ 301.1-1 Definitions.

Administrator. The Administrator, Animal and Plant Health Inspection Service (APHIS), or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service (APHIS). The Animal and Plant Health Inspection Service of the United States Department of Agriculture.


Biological control organism. Any enemy, antagonist, or competitor used to control a plant pest or noxious weed.


Interstate commerce. Trade, traffic, or other commerce


(1) From one State into or through any other State or


(2) Within the District of Columbia, Guam, the Virgin Islands of the United States, or any other territory or possession of the United States.


Move (moved, movement). Shipped, offered to a common carrier for shipment, received for transportation or transported by a common carrier, or carried, transported, moved or allowed to be moved.


Noxious weed. Any plant or plant product that can directly or indirectly injure or cause damage to crops (including nursery stock or plant products), livestock, poultry, or other interests of agriculture, irrigation, navigation, the natural resources of the United States, the public health or the environment.


Plant pest. Any living stage of any insects, mites, nematodes, slugs, snails, protozoa, or other invertebrate animals, bacteria, fungi, other parasitic plants or reproductive parts thereof, viruses, or any organisms similar to or allied with any of the foregoing, or any infectious substances which can directly or indirectly injure or cause disease or damage in any plants or parts thereof or any processed, manufactured, or other products of plants.


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States.


§ 301.1-2 Criteria for special need requests.

(a) A special need request, as described in § 301.1, may be generated by a State or a political subdivision of a State. If the request is generated by a political subdivision of a State, the request must be submitted to APHIS through the State. States may also collaborate with other States to submit multi-State special need requests. However, if submitted, the multi-State special need request must include information in sufficient detail to allow APHIS to analyze the impacts on each State on an individual basis. All special need requests must be signed by the executive official or officials or by a plant protection official or officials of the State(s) making the request and must contain the following:


(1) Data drawn from a scientifically sound detection survey, showing that the biological control organism, noxious weed, or plant pest of concern does not exist in the State or political subdivision or, if already present in the State or political subdivision, the distribution of the biological control organism, noxious weed, or plant pest of concern;


(2) If the biological control organism, noxious weed, or plant pest is not present in the State or political subdivision, a risk analysis or other scientific data showing that the biological control organism, noxious weed, or plant pest could enter the State or political subdivision and become established;


(3) Specific information showing that, if introduced into or allowed to spread within the State or political subdivision, the biological control organism, noxious weed, or plant pest would harm or injure the environment or agricultural resources in the State or political subdivision. The request should contain detailed information, including quantitative estimates, if available, about what harm or injury would result from the introduction or dissemination of the biological control organism, noxious weed, or plant pest in the State or political subdivision;


(4) Specific information showing that the State or political subdivision has characteristics that make it particularly vulnerable to the biological control organism, noxious weed, or plant pest, such as unique plants, diversity of flora, historical concerns, or any other special basis for the request for additional restrictions or prohibitions; and


(5) Information detailing the proposed additional prohibitions or restrictions and scientific data demonstrating that the proposed additional prohibitions or restrictions are necessary and adequate, and that there is no less drastic action that is feasible and that would be adequate, to prevent the introduction or spread of the biological control organism, noxious weed, or plant pest in the State or political subdivision.


(b) All special need requests must be submitted to the Deputy Administrator for Plant Protection and Quarantine, APHIS, USDA, Jamie L. Whitten Federal Building, 14th Street and Independence Avenue, SW., Room 301–E, Washington, DC 20250.


§ 301.1-3 Action on special need requests.

(a) Upon receipt of a complete special need request submitted in accordance with § 301.1–2, APHIS will publish a notice in the Federal Register to inform the public of the special need request and to make the request and its supporting information available for review and comment for at least 60 days.


(b) Following the close of the comment period, APHIS will publish another notice announcing the Administrator’s decision to either grant or deny the special need request. The Administrator’s determination will be based upon the evaluation of the information submitted by the State or political subdivision of a State in support of its request and would take into account any comments received.


(1) If the Administrator grants the special need request, the State or political subdivision of a State will be authorized to impose only the specific prohibitions or restrictions identified in the request and approved by APHIS. APHIS will coordinate with the State, or with the State on behalf of the political subdivision of the State, to ensure that the additional prohibitions or restrictions are in accord with the special need exception granted by the Administrator.


(2) If the Administrator denies the special need request, the State or political subdivision of a State will be notified in writing of the reason for the denial and may submit any additional information the State or political subdivision of a State may have in order to request a reconsideration.


(c) If granted, a special need exception will be applicable for 2 years, at the end of which the State or political subdivision of a State must submit a request for renewal of the exception. A special need renewal request must address the same criteria as the initial request submitted under § 301.1–2 and must show that a special need still exists that warrants the continuation of the special need exception. The renewal must be submitted no sooner than 6 months and no later than 3 months prior to the end of the 2-year applicability period for the initial exception. Once a special need renewal request has been received, APHIS will follow the same notice and comment process outlined in paragraphs (a) and (b) of this section. If, by the end of the 2-year applicability period, the State or political subdivision of a State does not submit a special need renewal request, the State’s or political subdivision’s special need exception will lapse and the State or political subdivision of a State will have to reapply for the special need exception.


(d) If the Administrator determines that there is a need for the withdrawal of a special need exception before the renewal date of the special need exception, the reasons for the withdrawal would be communicated to the State or to the political subdivision of the State and APHIS will publish a notice in the Federal Register to inform the public of the withdrawal of the special need exception and to make the information supporting the withdrawal available for review and comment for at least 60 days. Reasons for withdrawal of approval of a special need exception may include, but are not limited to, the availability of new scientific data or changes in APHIS regulations. Following the close of the comment period, APHIS will publish another notice announcing the Administrator’s decision to either withdraw or uphold the special need exception. The Administrator’s determination will be based upon the evaluation of the information submitted in support of the withdrawal and would take into account any comments received.


(Approved by the Office of Management and Budget under control number 0579–0291)


Subpart B—Imported Plants and Plant Parts


Source:62 FR 61212, Nov. 17, 1997, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 301.10 Definitions.

Move (moved, movement). Shipped, offered to a common carrier for shipment, received for transportation or transported by a common carrier, or carried, transported, moved, or allowed to be moved.


State. Any State, territory, district, or possession of the United States.


§ 301.11 Notice of quarantine; prohibition on the interstate movement of certain imported plants and plant parts.

(a) In accordance with part 319 of this chapter, some plants and plant parts may only be imported into the United States subject to certain destination restrictions. That is, under part 319, some plants and plant parts may be imported into some States or areas of the United States but are prohibited from being imported into, entered into, or distributed within other States or areas, as an additional safeguard against the introduction and establishment of foreign plant pests and diseases.


(b) Under this quarantine notice, whenever any imported plant or plant part is subject to destination restrictions under part 319:


(1) The State(s) or area(s) into which the plant or plant part is allowed to be imported is quarantined with respect to that plant or plant part; and


(2) No person shall move any plant or plant part from any such quarantined State or area into or through any State or area not quarantined with respect to that plant or plant part.


Subpart C—Fruit Flies


Source:73 FR 32432, June 9, 2008, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 301.32 Restrictions on interstate movement of regulated articles.

(a) No person may move interstate from any quarantined area any regulated article except in accordance with this subpart.
1




1 Permit and other requirements for the interstate movement of any of the fruit flies regulated under this subpart are contained in part 330 of this chapter.


(b) Section 414 of the Plant Protection Act (7 U.S.C. 7714) provides that the Secretary of Agriculture may, under certain conditions, hold, seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of any plant, plant pest, plant product, article, or means of conveyance that is moving, or has moved into or through the United States or interstate if the Secretary has reason to believe the article is a plant pest or is infested with a plant pest at the time of movement.


§ 301.32-1 Definitions.

Administrator. The Administrator, Animal and Plant Health Inspection Service, or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service. The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture.


Certificate. A document in which an inspector or person operating under a compliance agreement affirms that a specified regulated article is free of fruit flies and may be moved interstate to any destination.


Commercially produced. Fruits and vegetables that an inspector identifies as having been produced for sale and distribution in mass markets. Such identification will be based on a variety of indicators, including, but not limited to: Quantity of produce, monocultural practices, pest management programs, good sanitation practices including destruction of culls, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the shipment to a wholesaler or retailer.


Compliance agreement. A written agreement between APHIS and a person engaged in growing, handling, or moving regulated articles, wherein the person agrees to comply with this subpart.


Core area. The area within a circle surrounding each site where fruit flies have been detected using a
1/2-mile radius with the detection site as a center point.


Day degrees. A unit of measurement used to measure the amount of heat required to further the development of fruit flies through their life cycle. Day-degree life cycle requirements are calculated through a modeling process specific for each species of fruit fly.


Departmental permit. A document issued by the Administrator in which he or she affirms that interstate movement of the regulated article identified on the document is for scientific or experimental purposes and that the regulated article is eligible for interstate movement in accordance with § 301.32–4(c).


Dripline. The line around the canopy of a plant.


Fruit fly (fruit flies). The melon fruit fly, Mexican fruit fly, Mediterranean fruit fly, Oriental fruit fly, peach fruit fly, sapote fruit fly, or West Indian fruit fly, or other species of insects found in the family Tephritidae, collectively.


Infestation. The presence of fruit flies or the existence of circumstances that makes it reasonable to believe that fruit flies are present.


Inspector. Any employee of APHIS or other person authorized by the Administrator to enforce this subpart.


Interstate. From any State into or through any other State.


Limited permit. A document in which an inspector or person operating under a compliance agreement affirms that the regulated article identified on the document is eligible for interstate movement in accordance with § 301.32–5(b) only to a specified destination and only in accordance with specified conditions.


Mediterranean fruit fly. The insect known as Mediterranean fruit fly, Ceratitis capitata (Wiedemann), in any stage of development.


Melon fruit fly. The insect known as the melon fruit fly, Bactrocera cucurbitae (Coquillett), in any stage of development.


Mexican fruit fly. The insect known as Mexican fruit fly, Anastrepha ludens (Loew), in any stage of development.


Move (moved, movement). Shipped, offered to a common carrier for shipment, received for transportation or transported by a common carrier, or carried, transported, moved, or allowed to be moved.


Oriental fruit fly. The insect known as Oriental fruit fly, Bactrocera dorsalis (Hendel), in any stage of development.


Peach fruit fly. The insect known as peach fruit fly, Anastrepha zonata (Saunders), in any stage of development.


Person. Any individual, partnership, corporation, association, joint venture, or other legal entity.


Plant Protection and Quarantine. The organizational unit within the Animal and Plant Health Inspection Service that has been delegated responsibility for enforcing provisions of the Plant Protection Act and related legislation, quarantines, and regulations.


Quarantined area. Any State, or any portion of a State, designated as a quarantined area in accordance with § 301.32–3.


Regulated article. Any article identified as a regulated article under § 301.32–2 as follows: listed as of January 30, 2023, added in accordance with § 301.32–2(b), or otherwise designated in accordance with § 301.32–2(c) or (d).


Sapote fruit fly. The insect known as the sapote fruit fly, Anastrepha serpentina, in any stage of development.


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.


West Indian fruit fly. The insect known as the West Indian fruit fly, Anastrepha obliqua (Macquart), in any stage of development.


[73 FR 32432, June 9, 2008, as amended at 87 FR 80003, Dec. 29, 2023]


§ 301.32-2 Regulated articles.

(a) List of regulated articles. Certain berries, fruits, nuts, and vegetables are regulated articles for one or more species of fruit fly unless the berries, fruits, nuts, or vegetables are canned, dried, or frozen below −17.8 °C (0 °F). The relevant commodity (both botanical name and common name), as well as the fruit fly species for which it is a regulated article, is found at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/fruit-flies/fruit-flies-home.


(b) Normal process for adding regulated articles. (1) If the Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/fruit-flies/fruit-flies-home presents a risk of spreading one or more species of fruit flies, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for the relevant species of fruit flies. The notice will provide the basis for this determination and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for the relevant species of fruit flies and listing it.


(c) Soil and plants as regulated articles. Soil is a regulated article if it is within the dripline of a regulated article that is listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/fruit-flies/fruit-flies-home and that is annotated with an asterisk. Plants are regulated articles if they are producing or have produced species in the family Cucurbitaceae that are listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/fruit-flies/fruit-flies-home as regulated articles for melon fruit fly.


(d) Immediate designation of other regulated articles. Any other product, article, or means of conveyance not listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/fruit-flies/fruit-flies-home is a regulated article, if an inspector determines it presents a risk of spreading fruit flies, when the inspector notifies the person in possession of the product, article, or means of conveyance that it is subject to the restrictions of this subpart.


[88 FR 80003, Dec. 29, 2022]


§ 301.32-3 Quarantined areas.

(a) Designation of quarantined areas. In accordance with the criteria listed in paragraph (c) of this section, the Administrator will designate as a quarantined area each State, or each portion of a State, in which a fruit fly population subject to the regulations in this subpart has been found by an inspector, or in which the Administrator has reason to believe that a fruit fly population is present, or that the Administrator considers necessary to quarantine because of its inseparability for quarantine enforcement purposes from localities in which a fruit fly population has been found. The Administrator will publish the description of the quarantined area on the Plant Protection and Quarantine Web site, http://www.aphis.usda.gov/plant_health/plant_pest_info/fruit_flies/index.shtml. The description of the quarantined area will include the date the description was last updated and a description of the changes that have been made to the quarantined area. The description of the quarantined area may also be obtained by request from any local office of PPQ; local offices are listed in telephone directories. After a change is made to the quarantined area, we will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined area.


(b) Designation of an area less than an entire State as a quarantined area. Less than an entire State will be designated as a quarantined area only if the Administrator determines that:


(1) The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and


(2) The designation of less than the entire State as a quarantined area will prevent the interstate spread of the fruit fly.


(c) Criteria for designation of a State, or a portion of a State, as a quarantined area. A State, or a portion of a State, will be designated as a quarantined area when a fruit fly population has been found in that area by an inspector, when the Administrator has reason to believe that the fruit fly is present in that area, or when the Administrator considers it necessary to quarantine that area because of its inseparability for quarantine enforcement purposes from localities in which the fruit fly has been found.


(d) Removal of a State, or a portion of a State, from quarantine. A State, or a portion of a State, will be removed from quarantine when the Administrator determines that sufficient time has passed without finding additional flies or other evidence of infestation in the area to conclude that the fruit fly no longer exists in that area.


§ 301.32-4 Conditions governing the interstate movement of regulated articles from quarantined areas.

Any regulated article may be moved interstate from a quarantined area
1
only if moved under the following conditions:




1 Requirements under all other applicable Federal domestic plant quarantines and regulations must also be met.


(a) With a certificate or limited permit issued and attached in accordance with §§ 301.32–5 and 301.32–8;


(b) Without a certificate or limited permit if:


(1) The regulated article originated outside the quarantined area and is either moved in an enclosed vehicle or is completely enclosed by a covering adequate to prevent access by fruit flies (such as canvas, plastic, or other closely woven cloth) while moving through the quarantined area; and


(2) The point of origin of the regulated article is indicated on the waybill, and the enclosed vehicle or the enclosure that contains the regulated article is not opened, unpacked, or unloaded in the quarantined area; and


(3) The regulated article is moved through the quarantined area without stopping except for refueling or for traffic conditions, such as traffic lights or stop signs.


(c) Without a certificate or limited permit if the regulated article is moved:


(1) By the United States Department of Agriculture for experimental or scientific purposes;


(2) Pursuant to a permit issued by the Administrator for the regulated article;


(3) Under conditions specified on the permit and found by the Administrator to be adequate to prevent the spread of fruit flies; and


(4) With a tag or label bearing the number of the permit issued for the regulated article attached to the outside of the container of the regulated article or attached to the regulated article itself if not in a container.


(d) Hass avocados that are grown or packed in an area quarantined for Mediterranean, Mexican, or sapote fruit fly and that are moving interstate from such an area are subject to the following additional requirements:


(1) Orchard sanitation and safeguarding requirements. (i) Hass avocado fruit that has fallen from the trees may not be included in field boxes of fruit to be packed for shipping.


(ii) Harvested Hass avocados must be placed in field boxes or containers of field boxes that are marked to show the location of the orchard. The avocados must be moved from the orchard to the packinghouse within 3 hours of harvest or they must be protected from fruit fly infestation until moved.


(iii) Hass avocados must be protected from fruit fly infestations during their movement from the orchard to the packinghouse and must be accompanied by a field record indicating the location of the orchard where the avocados originated.


(2) Packinghouse requirements for Hass avocados packed within a quarantined area. (i) All openings to the outside of the packinghouse must be covered by screening with openings of not more than 1.6 mm or by some other barrier that prevents insects from entering the packinghouse.


(ii) The packinghouse must have double doors at the entrance to the facility and at the interior entrance to the area where the avocados are packed.


(iii) If the Hass avocados were grown in an orchard within the quarantined area, the identity of the avocados must be maintained from field boxes or containers to the shipping boxes in the packinghouse so that the avocados can be traced back to the orchard in which they were grown. The avocados must be packed in boxes or crates that are clearly marked with the identity of the grower and the packinghouse.


(iv) Any boxes of Hass avocados packed in the quarantined area must be placed in a refrigerated truck or refrigerated container and remain in that truck or container while in transit through the quarantined area. Prior to leaving the packinghouse, the truck or container must be secured with a seal that will be broken when the truck or container is opened. Once sealed, the refrigerated truck or refrigerated container must remain unopened until it is outside the quarantined area.


(v) Any avocados that have not been packed or loaded into a refrigerated truck or refrigerated container by the end of the workday must be kept inside the screened packinghouse.


(3) Packinghouse requirements for Hass avocados packed outside a quarantined area but grown within a quarantined area. Hass avocados grown in an orchard within a quarantined area but packed in a packinghouse outside the quarantined area must meet the requirements of paragraph (d)(2)(iii) of this section.


(Approved by the Office of Management and Budget under control numbers 0579–0088 and 0579–0336)

[73 FR 32432, June 9, 2008, as amended at 74 FR 31159, June 30, 2009; 75 FR 12962, Mar. 18, 2010; 76 FR 43807, July 22, 2011; 88 FR 80004, Dec. 29, 2022]


§ 301.32-5 Issuance and cancellation of certificates and limited permits.

(a) A certificate may be issued by an inspector
1
for the interstate movement of a regulated article if the inspector determines that:




1 Services of an inspector may be requested by contacting local PPQ offices, which are listed in telephone directories.


(1)(i) The regulated article has been treated under the direction of an inspector in accordance with § 301.32–10; or


(ii) Based on inspection of the premises of origin, the premises are free from fruit flies; or


(iii) Based on inspection of the regulated article, the regulated article is free of fruit flies; or


(iv) The regulated articles are Hass variety avocados that have been harvested, safeguarded, and packed in accordance with the conditions in § 301.32–4(d); and


(2) The regulated article will be moved through the quarantined area in an enclosed vehicle or will be completely enclosed by a covering adequate to prevent access by fruit flies; and


(3) The regulated article is to be moved in compliance with any additional emergency conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of fruit flies; and


(4) The regulated article is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.


(b) An inspector
2
will issue a limited permit for the interstate movement of a regulated article if the inspector determines that:




2 See footnote 1 of this section.


(1) The regulated article is to be moved interstate to a specified destination for specified handling, processing, or utilization (the destination and other conditions to be listed in the limited permit), and this interstate movement will not result in the spread of fruit flies because life stages of the fruit flies will be destroyed by the specified handling, processing, or utilization;


(2) The regulated article is to be moved in compliance with any additional emergency conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of fruit flies; and


(3) The regulated article is eligible for interstate movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.


(c) Certificates and limited permits for the interstate movement of regulated articles may be issued by an inspector or person operating under a compliance agreement. A person operating under a compliance agreement may issue a certificate for the interstate movement of a regulated article if an inspector has determined that the regulated article is eligible for a certificate in accordance with paragraph (a) of this section. A person operating under a compliance agreement may issue a limited permit for interstate movement of a regulated article when an inspector has determined that the regulated article is eligible for a limited permit in accordance with paragraph (b) of this section.


(d) Any certificate or limited permit that has been issued may be withdrawn, either orally or in writing, by an inspector if he or she determines that the holder of the certificate or limited permit has not complied with all conditions in this subpart for the use of the certificate or limited permit. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal will be confirmed in writing as promptly as circumstances allow. Any person whose certificate or limited permit 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 must state all of the facts and reasons upon which the person relies to show that the certificate or limited permit was wrongfully withdrawn. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator.


(Approved by the Office of Management and Budget under control numbers 0579–0088 and 0579–0336)

[73 FR 32432, June 9, 2008, as amended at 74 FR 31160, June 30, 2009; 87 FR 80004, Dec. 29, 2022]


§ 301.32-6 Compliance agreements and cancellation.

(a) Any person engaged in growing, handling, or moving regulated articles may enter into a compliance agreement when an inspector determines that the person is aware of this subpart, agrees to comply with its provisions, and agrees to comply with all the provisions contained in the compliance agreement.
1




1 Compliance agreement forms are available without charge from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Emergency and Domestic Programs, 4700 River Road Unit 134, Riverdale, MD 20737–1236, and from local PPQ offices, which are listed in telephone directories.


(b) Any compliance agreement may be canceled, either orally or in writing, by an inspector whenever the inspector finds that the person who has entered into the compliance agreement has failed to comply with any of the conditions of this subpart or with any of the provisions of the compliance agreement. If the cancellation is oral, the cancellation and the reasons for the cancellation will be confirmed in writing as promptly as circumstances allow. Any person whose compliance agreement has been canceled may appeal the decision, in writing, within 10 days after receiving written notification of the cancellation. The appeal must state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully canceled. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator.


[73 FR 32432, June 9, 2008, as amended at 87 FR 80004, Dec. 29, 2022]


§ 301.32-7 Assembly and inspection of regulated articles.

(a) Any person, other than a person authorized to issue certificates or limited permits under § 301.32–5(c), who desires to move a regulated article interstate accompanied by a certificate or limited permit must notify an inspector
1
as far in advance of the desired interstate movement as possible, but no less than 48 hours before the desired interstate movement.




1 See footnote 1 to § 301.32–5(a).


(b) The regulated article must be assembled at the place and in the manner the inspector designates as necessary to comply with this subpart.


[73 FR 32432, June 9, 2008, as amended 87 FR 80004, Dec. 29, 2022]


§ 301.32-8 Attachment and disposition of certificates and limited permits.

(a) A certificate or limited permit required for the interstate movement of a regulated article must, at all times during the interstate movement, be:


(1) Attached to the outside of the container containing the regulated article; or


(2) Attached to the regulated article itself if not in a container; or


(3) Attached to the consignee’s copy of the accompanying waybill: Provided, however, that if the certificate or limited permit is attached to the consignee’s copy of the waybill, the regulated article must be sufficiently described on the certificate or limited permit and on the waybill to identify the regulated article.


(b) The certificate or limited permit for the interstate movement of a regulated article must be furnished by the carrier to the consignee listed on the certificate or limited permit upon arrival at the location provided on the certificate or limited permit.


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


§ 301.32-9 Costs and charges.

The services of the inspector during normal business hours (8 a.m. to 4:30 p.m., Monday through Friday, except holidays) will be furnished without cost. The user will be responsible for all costs and charges arising from inspection and other services provided outside normal business hours.


§ 301.32-10 Treatments.

Regulated articles may be treated in accordance with part 305 of this chapter to neutralize fruit flies. The following treatments also may be used for the regulated articles indicated:


(a) Soil within the dripline of plants that are producing or have produced regulated articles listed § 301.32(a) or (b). The following soil treatments may be used: Apply diazinon at the rate of 5 pounds active ingredient per acre to the soil within the dripline with sufficient water to wet the soil to at least a depth of 0.5 inch. Both immersion and pour-on treatment procedures are also acceptable.


(b) Premises. Fields, groves, or areas that are located within a quarantined area but outside the infested core area and that produce regulated articles may receive regular treatments with either malathion or spinosad bait spray as an alternative to treating fruits and vegetables as provided in part 305 of this chapter. These treatments must take place at 6- to 10-day intervals, starting a sufficient time before harvest (but not less than 30 days before harvest) to allow for development of fruit fly egg and larvae. Determination of the time period must be based on the day degrees model for the specific fruit fly. Once treatment has begun, it must continue through the harvest period. The malathion bait spray treatment must be applied by aircraft or ground equipment at a rate of 2.4 oz of technical grade malathion and 9.6 oz of protein hydrolysate per acre. The spinosad bait spray treatment must be applied by aircraft or ground equipment at a rate of 0.01 oz of a USDA-approved spinosad formulation and 48 oz of protein hydrolysate per acre. For ground applications, the mixture may be diluted with water to improve coverage.


[73 FR 32432, June 9, 2008, as amended at 75 FR 4240, Jan. 26, 2010]


Subpart D—Black Stem Rust


Source:54 FR 32791, Aug. 10, 1989, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 301.38 Notice of quarantine; restrictions on interstate movement of regulated articles.

The conterminous 48 States and the District of Columbia are quarantined in order to prevent the spread of black stem rust. No person shall move interstate any regulated article except in accordance with this subpart.
1




1 Any properly identified employee of the Animal and Plant Health Inspection Service is authorized to stop and inspect persons and means of conveyance, and to seize, quarantine, treat, apply other remedial measures to destroy, or otherwise dispose of regulated articles as provided in sections 414 and 421 of the Plant Protection Act (7 U.S.C. 7714 and 7731).


[54 FR 32791, Aug. 10, 1989, as amended at 66 FR 21050, Apr. 27, 2001]


§ 301.38-1 Definitions.

In this subpart the following definitions apply:


Administrator. The Administrator, Animal and Plant Health Inspection Service (APHIS), or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service (APHIS). The Animal and Plant Health Inspection Service of the United States Department of Agriculure.


Black stem rust. The disease commonly known as the black stem rust of grains (Puccinia graminis).


Certificate. A document in which an inspector, or a person operating under a compliance agreement, affirms that a specified regulated article has met the criteria in § 301.38–5(b) and may be moved interstate to any destination.


Clonally propagated. Reproduced asexually through cuttings, tissue culture, suckers, or crown division. For the purposes of this subpart, a Berberis plant will be considered clonally propagated only if its parent stock is, or was derived from, a seed-propagated black stem rust-resistant plant of more than 2 years’ growth.


Compliance agreement. A written agreement between a State that is a protected area or that encompasses a protected area and a person who moves regulated articles interstate, or in a non-protected area between APHIS and such person, in which that person agrees to comply with this subpart.


Departmental permit. A document issued by the Administrator in which he or she affirms that interstate movement of the regulated article identified on the document is for scientific or experimental purposes, and that the regulated article is eligible for interstate movement under the conditions specified on the Departmental permit and found by the Administrator to be adequate to prevent the introduction of rust-susceptible varieties of the genera Berberis, Mahoberberis, and Mahonia into protected areas.


Inspector. Any APHIS employee or other person authorized by the Administrator in accordance with law to enforce this subpart.


Interstate. From any State into or through any other State.


Limited permit. A document issued by an inspector to allow the interstate movement into or through a protected area of regulated articles not eligible for certification under this subpart to a specified destination outside the protected area.


Moved (movement, move). Shipped, offered to a common carrier for shipment, received for transportation or transported by a common carrier, or carried, transported, moved, or allowed to be moved. “Movement” and “move” shall be construed in accordance with this definition.


Person. Any association, company, corporation, firm, individual, joint stock company, partnership, society, or any other legal entity.


Regulated article. Any article identified as a regulated article under § 301.38–2 as follows: listed as of January 30, 2023, added in accordance with § 301.38–2(c), or otherwise designated in accordance with § 301.38–2(d).


Rust-resistant plants. All plants of the genera Berberis, Mahoberberis, and Mahonia, and their progeny, that have proven resistant to black stem rust during testing by the United States Department of Agriculture,
1
and that are listed as rust-resistant in accordance with § 301.38–2.




1 Testing is performed by the Agricultural Research Service of USDA as follows: In a greenhouse, the suspect plant, or test subject, is placed under a screen with a control plant, i.e., a known rust-susceptible variety of Berberis, Mahoberberis, or Mahonia. Infected wheat stems, a primary host of black stem rust, are placed on top of the screen. The plants are moistened and maintained in 100% humidity, causing the spores to swell and fall on the plants lying under the screen. The plants are then observed for 7 days at 20–80% relative humidity. This test procedure is repeated 12 times. If in all 12 tests, the rust-susceptible plant shows signs of infection after 7 days and the test plants do not, USDA will declare the test plant variety rust-resistant. The tests must be performed on new growth, just as the leaves are unfolding.


Rust-susceptible plants. All plants of the genera Berberis, Mahoberberis, and Mahonia not listed as rust-resistant in accordance with § 301.38–2.


Seedling. Any plant of the genera Berberis, Mahoberberis, and Mahonia grown from seed and having less than 2 years’ growth.


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory or possession of the United States.


Two years’ growth. The growth of a plant during all growing seasons of 2 successive calendar years.


[54 FR 32791, Aug. 10, 1989; 54 FR 38494, Sept. 18, 1989; 67 FR 8178, Feb. 22, 2002; 71 FR 5778, Feb. 3, 2006; 87 FR 80004, Dec. 29, 2022]


§ 301.38-2 Regulated articles.

(a) Rust-resistant regulated articles. The Administrator has determined that certain Berberis species and varieties are rust-resistant. A list of all such articles is located at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/barberry/ct_barberry.


(b) Berberis, Mahoberberis, and Mahonia. All plants, seeds, fruits, and other plant parts capable of propagation from rust-susceptible species and varieties of the genera Berberis, Mahoberberis, and Mahonia, except Mahonia cuttings for decorative purposes, are regulated articles.


(c) Process for adding rust-resistant regulated articles—(1) Normal process. (i) If the Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/barberry/ct_barberry meets the definition of rust-resistant plants found in this subpart, APHIS will publish a notice in the Federal Register proposing to designate the article as a rust-resistant regulated article for black stem rust. The notice will provide the basis for this determination, and will request public comment.


(ii) If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a rust-resistant regulated article for black stem rust and listing it.


(2) Requested process. A person may request that an additional rust-resistant variety be added to the list at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/barberry/ct_barberry. The person requesting that a rust-resistant variety be added to the list must provide APHIS with a description of the variety, including a written description and color pictures that can be used by an inspector to clearly identify the variety and distinguish it from other varieties. If APHIS determines the variety should be added to the list, APHIS will propose to add it to the list pursuant to paragraph (c)(1) of this section.


(d) Immediate designation of regulated articles. Any other product or article not listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/barberry/ct_barberry is a regulated article if an inspector determines it presents a risk of spread of black stem rust. The inspector must notify the person in possession of the product or article that it is subject to the provisions of this subpart.


(Approved by the Office of Management and Budget under control number 0579–0186)


[87 FR 80004, Dec. 29, 2022]


§ 301.38-3 Protected areas.

(a) The Administrator may designate as a protected area in accordance with paragraph (d)of this section any State that has eradicated rust-susceptible plants of the genera Berberis, Mahoberberis, and Mahonia under the cooperative Federal-State eradication program. In addition, the State must employ personnel with responsibility for the issuance and withdrawal of certificates in accordance with § 301.38–5, and maintain and enforce an inspection program under which every plant nursery within the State is inspected at least once each year to ensure that they are free of rust-susceptible plants. During the requisite nursery inspections, all nursery stock shall be examined to determine that it consists only of rust-resistant varieties of the genera Berberis, Mahoberberis, and Mahonia, and that the plants are true to type. Plants that do not meet this criteria must be destroyed.


(b) The Administrator may designate as a protected area any county within a State, rather than the entire State, if areas within the State have eradicated rust-susceptible plants of the genera Berberis, Mahoberberis, and Mahonia under the cooperative Federal-State program, and;


(1) The State employs personnel with responsibility for the issuance and withdrawal of certificates in accordance with § 301.38–5;


(2) The State is enforcing restrictions on the intrastate movement of the regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles, as determined by the Administrator; and


(3) The State maintains and enforces an inspection program under which every plant nursery within the county is inspected at least once each year to ensure that plant nurseries within that area are free of rust-susceptible plants of the genera Berberis, Mahoberberis, and Mahonia. During the requisite nursery inspections, all nursery stock shall be examined to determine that it consists only of rust-resistant varieties of the genera Berberis, Mahoberberis, and Mahonia, and that the plants are true to type. Plants that do not meet this criteria must be destroyed.


(c) All seed used to propagate plants of the genera Berberis, Mahoberberis, and Mahonia in protected areas, and all seed used to propagate plants of the genera Berberis, Mahoberberis, and Mahonia that are certified as rust-resistant for interstate movement into protected areas, must be produced at properties where a State inspector has verified that no wild or domesticated rust-susceptible plants are growing at or within one-half mile of the property.
1




1 Persons performing the inspections must be able to recognize rust-susceptible varieties of Berberis, Mahoberberis, and Mahonia. Inspectors must work side by side, 10 to 20 feet apart, and walk outward away from the property a distance of one-half mile measured from the edge of the property, and observe all plants growing in the half-mile band. The distance between the inspectors may vary within this range, depending upon the visibility of the plant growth. In areas with low brush and flat terrain, the inspectors may be the maximum distance of 20 feet apart if they can observe all plants growing within 10 feet of them. In areas of high plant growth or hilly terrain, the inspectors must be closer together due to limited or obstructed visibility. Inspectors must observe all plants growing between themselves and the mid-point of the distance between themselves and the next inspector. This process must be repeated so that the entire band, measured from the border of the property to the circumference of an imaginary circle having the property as its mid-point, is visually inspected in this manner.


(d) The Administrator will publish a list of all protected areas on the Plant Protection and Quarantine (PPQ) website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/barberry/ct_barberry. The list will include the date that the list was last updated. Lists of all protected areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of protected areas in accordance with this section, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the protected areas.


(e) Each State that is a protected area or that encompasses a protected area must submit annually to the Administrator a written statement, signed by an inspector, assuring APHIS that all nursery inspections have been performed in accordance with this section. The statement must be submitted by January 1st of each year, and must include a list of the nurseries inspected and found free of rust-susceptible plants.


(f) The Administrator may remove a protected area from the list of designated protected areas at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/barberry/ct_barberry if he or she determines that it no longer meets the criteria of paragraph (a) or (b)(1) through (3) of this section. A hearing will be held to resolve any conflict as to any material fact. Rules of practice for the hearing shall be adopted by the Administrator.


[54 FR 32791, Aug. 10, 1989, as amended at 55 FR 29558, July 20, 1990; 57 FR 3118, Jan. 28, 1992; 71 FR 5778, Feb. 3, 2006; 87 FR 80004, Dec. 29, 2022]


§ 301.38-4 Interstate movement of regulated articles.

(a) Non-protected areas. Interstate movement of regulated articles into or through any State or area that is not designated as a protected area under § 301.38–3(d) is allowed without restriction under this subpart.


(b) Protected areas—(1) Prohibited movement. The following regulated articles are prohibited from moving interstate into or through any protected area:


(i) All rust-susceptible Berberis, Mahoberberis, and Mahonia plants, seeds, fruits, and other plant parts capable of propagation, except Mahonia cuttings for decorative purposes.


(ii) All seed-propagated plants of the Berberis species and varieties designated as rust-resistant in § 301.38–2(a)(1) that are of less than 2 years’ growth, and any seeds, fruits, and other plant parts capable of propagation from such plants.


(2) Restricted movement. The following regulated articles may be moved interstate into or through a protected area with a certificate issued and attached in accordance with §§ 301.38–5 and 301.38–7:


(i) Seed-propagated plants of at least 2 years’ growth, clonally propagated plants of any age, seeds, fruits, and other plant parts capable of propagation of the Berberis species and varieties designated as rust-resistant in § 301.38–2(a)(1);


(ii) Plants, seeds, fruits, and other plant parts capable of propagation of the Mahoberberis and Mahonia species and varieties designated as rust-resistant in accordance with § 301.38–2.


(c) An inspector may issue a limited permit to allow a regulated article not eligible for certification under § 301.38–4(b)(2) to move interstate into or through a protected area to a specified destination that is stated in the permit and is outside the protected area, if the requirements of all other applicable Federal domestic plant quarantines are met. A regulated article moved interstate under a limited permit must be placed in a closed sealed container that prevents unauthorized removal of the regulated article, and that remains sealed until the regulated article reaches the final destination stated in the permit. At the final destination, the sealed container must be opened only in the presence of an inspector or with the authorization of an inspector obtained expressly for that shipment.


(d) The United States Department of Agriculture may move any regulated article interstate into or through a protected area in accordance with the conditions determined necessary to prevent the introduction or spread of black stem rust in protected areas, as specified in a Departmental permit issued for this purpose.


[54 FR 32791, Aug. 10, 1989, as amended at 67 FR 8180, Feb. 22, 2002; 71 FR 5778, Feb. 3, 2006; 87 FR 80005, Dec. 29, 2022]


§ 301.38-5 Assembly and inspection of regulated articles: issuance and cancellation of certificates.

(a) Any person, other than a person authorized to issue certificates under paragraph (c) of this section, who desires to move interstate a regulated article that must be accompanied by a certificate under § 301.38–4(b), shall, as far in advance of the desired interstate movement as possible (and no less than 48 hours before the desired interstate movement), request an inspector
1
to issue a certificate. To expedite the issuance of a certificate, an inspector may direct that the regulated articles be assembled in a manner that facilitates inspection.




1 Services of an inspector may be requested by contacting a local APHIS office (listed in telephone directories under Animal and Plant Health Inspection Service (APHIS), Plant Protection and Quarantine). The addresses and telephone numbers of local offices may also be obtained by writing to the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.


(b) An inspector may issue a certificate for the interstate movement of a regulated article if he or she:


(1) Determines, upon examination, that the regulated article may be moved interstate in accordance with this subpart; and


(2) Determines that the regulated article may be moved interstate in accordance with all other Federal domestic plant quarantines and regulations applicable to the regulated article.


(c) Certificates for interstate movement of regulated articles may be issued by an inspector to a person operating under a compliance agreement for use with subsequent shipments of regulated articles to facilitate their movement. A person operating under a compliance agreement must make the determinations set forth in paragraph (b) of this section before shipping any regulated articles.


(d) Any certificate that has been issued may be withdrawn by an inspector, orally or in writing, if he or she determines that the holder of the certificate has not complied with the conditions of this subpart for the use of the certificate. If the withdrawal is oral, the inspector will confirm the withdrawal and the reasons for the withdrawal, in writing, within 20 days of oral notification of the withdrawal. Any person whose certificate has been withdrawn may appeal the decision, in writing within 10 days after receiving written notification of the withdrawal. The appeal must state all of the facts and reasons upon which the person relies to show that the certificate was wrongfully withdrawn. A hearing will be held to resolve any conflict as to any material fact. An appeal shall be granted or denied, in writing, as promptly as circumstances allow, and the reasons for the decision shall be stated. In a non-protected area, appeal shall be made to the Administrator. The Administrator shall adopt rules of practice for the hearing. The certificate will remain withdrawn pending decision of the appeal.


[54 FR 32791, Aug. 10, 1989, as amended at 59 FR 67608, Dec. 30, 1994; 67 FR 8180, Feb. 22, 2002; 88 FR 80005, Dec. 29, 2022]


§ 301.38-6 Compliance agreements and cancellation.

(a) Any State may enter into a written compliance agreement with any person who grows or handles regulated articles in a protected area, or moves interstate regulated articles from a protected area, under which that person agrees to comply with this subpart, to provide inspectors with information concerning the source of any regulated articles acquired each year, and to prevent the unauthorized use of certificates issued for future use under the compliance agreement.
1




1 In non-protected areas, compliance agreements may be arranged by contacting a local office of the Animal and Plant Health Inspection Service (APHIS), Plant Protection and Quarantine, or by writing to the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.


(b) A compliance agreement may be cancelled by an inspector, orally or in writing, whenever he or she determines that the person who has entered into the compliance agreement has failed to comply with the agreement or this subpart. If the cancellation is oral, the cancellation and the reasons for the cancellation will be confirmed, in writing, within 20 days of oral notification of the cancellation. Any person whose compliance agreement has been cancelled may appeal the decision, in writing, within 10 days after receiving written notification of the cancellation. The appeal must state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully cancelled. A hearing will be held to resolve any conflict as to any material fact. An appeal shall be granted or denied, in writing, as promptly as circumstances allow, and the reasons for the decision shall be stated. In a non-protected area, appeal shall be made to the Administrator. The Administrator shall adopt rules of practice for the hearing. The compliance agreement will remain cancelled pending decision of the appeal.


[54 FR 32791, Aug. 10, 1989; 54 FR 38494, Sept. 18, 1989, as amended at 57 FR 3118, Jan. 28, 1992; 59 FR 67608, Dec. 30, 1994; 87 FR 80005, Dec. 29, 2022]


§ 301.38-7 Attachment and disposition of certificates.

(a) The certificate required for the interstate movement of a regulated article must, at all times during the interstate movement, be attached to the outside of the container containing the regulated article except as follows:


(1) The certificate may be attached to the regulated article itself if it is not in container; or


(2) The certificate may be attached to the accompanying waybill or other shipping document if the regulated article is identified and described on the certificate or waybill.


(b) The carrier must furnish the certificate to the consignee at the destination of the regulated article.


§ 301.38-8 Costs and charges.

The services of an inspector
1
during normal business hours, Monday through Friday, 8 a.m. to 4:30 p.m., will be furnished without cost to persons requiring the services. The United States Department of Agriculture will not be responsible for any other costs or charges.




1 See footnote 1 in § 301.38–3.


[54 FR 32791, Aug. 10, 1989; 54 FR 38494, Sept. 18, 1989; 87 FR 80005, Dec. 29, 2022]


Subpart E—Gypsy Moth


Source:58 FR 39423, July 23, 1993, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.


Editorial Note:Nomenclature changes to part appear at 87 FR 80005, Dec. 29, 2022.

§ 301.45 Notice of quarantine; restriction on interstate movement of specified regulated articles.

(a) Notice of quarantine. Pursuant to the provisions of sections 411, 412, 414, 431, and 434 of the Plant Protection Act (7 U.S.C. 7711, 7712, 7714, 7751, and 7754), the Secretary of Agriculture hereby establishes a quarantine within the United States to prevent the spread of the gypsy moth, Lymantria dispar (Linnaeus), a dangerous insect injurious to forests and shade trees and not widely prevalent or distributed throughout the United States, and establishes regulations governing the interstate movement of regulated articles and outdoor household articles from quarantined areas of the United States.


(b) Restrictions on the interstate movement of regulated articles and outdoor household articles. No common carrier or other person may move interstate from any quarantined area any regulated article or outdoor household article except in accordance with the conditions prescribed in this subpart.


[58 FR 39423, July 23, 1993, as amended at 62 FR 29287, May 30, 1997; 63 FR 38280, July 16, 1998; 66 FR 21050, Apr. 27, 2001; 66 FR 37114, July 17, 2001; 87 FR 80005, Dec. 29, 2022]


§ 301.45-1 Definitions.

Terms used in the singular form in this subpart shall be construed as the plural, and vice versa, as the case may demand. The following terms, when used in this subpart, shall be construed, respectively, to mean:


Administrator. The Administrator, Animal and Plant Health Inspection Service, or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service. The Animal and Plant Health Inspection Service of the U.S. Department of Agriculture (APHIS).


Associated equipment. Articles associated and moved with mobile homes and recreational vehicles, such as, but not limited to, awnings, tents, outdoor furniture, trailer blocks, and trailer skirts.


Bark. The tough outer covering of the woody stems of trees, shrubs, and other woody plants as distinguished from the cambium and inner wood.


Bark products. Products containing pieces of bark including bark chips, bark nuggets, bark mulch, and bark compost.


Certificate. A Plant Protection and Quarantine-approved form, stamp, or document issued and signed by an inspector, or by a qualified certified applicator or by any other person operating in accordance with a compliance agreement, affirming that a specified regulated article is eligible for interstate movement in accordance with this subpart.


Compliance agreement. A written agreement between APHIS and a person engaged in growing, handling, or moving regulated articles, in which the person agrees to comply with the provisions of this subpart.


Effectively diminishing. An eradication program is considered to be effectively diminishing the gypsy moth population of an area if the results of two successive annual Federal or State delimiting trapping surveys of the area conducted in accordance with Section II, “Survey Procedures—Gypsy Moth,” of the Gypsy Moth Treatment Manual show that the average number of gypsy moths caught per trap in the second delimiting survey (when comparable geographical areas and trapping densities are used) is: (1) Less than 10, and (2) less than the average number of gypsy moths caught per trap in the first survey.


Eradication program. A program that uses pesticide application, biological controls, or other methods with the goal of eliminating gypsy moth from a particular area.


General infestation. (1) The detection of gypsy moth egg masses through visual inspection by an inspector during a 10-minute walk through the area; however, it does not include the presence of gypsy moth egg masses which are found as a result of hitchhiking on transitory means of conveyance; or


(2) The detection of gypsy moth through multiple catches of adult gypsy moths at multiple trapping locations in the area over a period of 2 or more consecutive years, if the Administrator determines, after consulting with the State plant regulatory official, that gypsy moth is established in the area.


Gypsy moth. The live insect known as the gypsy moth, Lymantria dispar (Linnaeus), in any life stage (egg, larva, pupa, adult).


Inspector. Any employee of APHIS, a State government, or any other person, authorized by the Administrator in accordance with law to enforce the provisions of the quarantine and regulations in this subpart. A person operating under a compliance agreement is not an inspector.


Interstate. From any State into or through any other State.


Limited permit. A document in which an inspector or a person operating under a compliance agreement affirms that the regulated article identified on the document is eligible for interstate movement in accordance with § 301.45–5 only to the specified destination and only in accordance with the specified conditions.


Mobile home. Any vehicle, other than a recreational vehicle, designed to serve, when parked, as a dwelling or place of business.


Move (movement, moved). 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 by any means. “Movement” and “moved” shall be construed in accordance with this definition.


OHA document. The self-inspection checklist portion of USDA–APHIS Program Aid Number 2065, “Don’t Move Gypsy Moth,” completed and signed by the owner of an outdoor household article (OHA) affirming that the owner has inspected the OHA for life stages of gypsy moth in accordance with the procedures in the program aid.


Outdoor household articles. Articles associated with a household that have been kept outside the home such as awnings, barbecue grills, bicycles, boats, dog houses, firewood, garden tools, hauling trailers, outdoor furniture and toys, recreational vehicles and associated equipment, and tents.


Person. Any individual, partnership, corporation, company, society, association, or other organized group.


Qualified certified applicator. Any individualcertified pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136i) as a certified commercial applicator in a category allowing use of the restricted use pesticides Spray N Kill (EPA Registration No. 8730–30), Ficam W (EPA Registration No. 45639–1), and acephate (Orthene ®); who has attended and completed a workshop approved by the Administrator on the identification and treatment of gypsy moth life stages on outdoor household articles and mobile homes; and who has entered into a compliance agreement in accordance with § 301.45–6 for the purpose of inspecting, treating, and issuing certificates for the movement of outdoor household articles and mobile homes.
1




1 Names of qualified certified applicators may be obtained from State departments of agriculture.


Quarantine area. Any State, or portion thereof, listed as a generally infested area in accordance with § 301.45–2 or temporarily designated as a generally infested area in accordance with § 301.45–2(c).


Recreational vehicles. Highway vehicles, including pickup truck campers, one-piece motor homes, and travel trailers, designed to serve as temporary places of dwelling.


Regulated articles. (1) Trees without roots (e.g., Christmas trees), trees with roots, and shrubs with roots and persistent woody stems, unless they are greenhouse grown throughout the year.


(2) Logs, pulpwood, and bark and bark products.


(3) Mobile homes and associated equipment.


(4) Any other products, articles, or means of conveyance, of any character whatsoever, when it is determined by an inspector that any life stage of gypsy moth is in proximity to such articles and the articles present a high risk of artificial spread of gypsy moth infestation and the person in possession thereof has been so notified.


State. Any State, Territory, or District of the United States including Puerto Rico.


Treatment manual. The provisions currently contained in the Gypsy Moth Program Manual.
2




2 The Gypsy Moth Program Manual may be viewed on the Internet at http://www.aphis.usda.gov/import_export/plants/manuals/domestic/downloads/gypsy_moth.pdf.


Under the direction of. Monitoring treatments to assure compliance with the requirements in this subpart.


Under the direct supervision of a qualified certified applicator. An inspection or treatment is considered to be applied under the direct supervision of a qualified certified applicator if the inspection or treatment is performed by a person acting under the instructions of a qualified certified applicator who is available if and when needed, even though such qualified certified applicator is not physically present at the time and place the inspection or treatment occurred.


[58 FR 39423, July 23, 1993, as amended at 59 FR 67608, Dec. 30, 1994; 67 FR 8464, Feb. 25, 2002; 70 FR 33268, June 7, 2005; 71 FR 40878, July 19, 2006; 72 FR 70764, Dec. 13, 2007; 78 FR 24666, Apr. 26, 2013; 87 FR 80005, Dec. 29, 2022]


§ 301.45-2 Authorization to designate and terminate designation of quarantined areas.

(a) Except as provided in paragraphs (a)(1) and (2) of this section, the Administrator will designate as a quarantined area each State or each portion of a State in which a gypsy moth infestation has been found by an inspector, or each portion of a State which the Administrator deems necessary to regulate because of its proximity to infestation or its inseparability for quarantine enforcement purposes from infested localities. The Administrator will publish a list of all quarantined areas on the Plant Protection and Quarantine (PPQ) website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/gypsy-moth/ct_gypsy_moth. The list will include the date that the list was last updated. Lists of all quarantined areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of quarantined areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined areas. Notwithstanding the criteria in the preceding sentences, an area will not be listed as a quarantined area if the Administrator determines that:


(1) The area is subject to a gypsy moth eradication program conducted by the Federal Government or a State government in accordance with the Eradication, Suppression, and Slow the Spread alternative of the Final Environmental Impact Statement (FEIS) on Gypsy Moth Suppression and Eradication Projects that was filed with the United States Environmental Protection Agency on January 16, 1996; and


(2) State or Federal delimiting trapping surveys conducted in accordance with Section II, “Survey Procedures—Gypsy Moth” of the Gypsy Moth Treatment Manual show that the average number of gypsy moths caught per trap is less than 10 and that the trapping surveys show that the eradication program is effectively diminishing the gypsy moth population of the area.


(b) Less than an entire State will be designated as a quarantined area only if the Administrator has determined that:


(1) The State has adopted and is enforcing a quarantine or regulation which imposes restrictions on the intrastate movement of the regulated articles which are substantially the same as those which are imposed with respect to the interstate movement of such articles under this subpart; and,


(2) The designation of less than the entire State as a quarantined area will be adequate to prevent the artificial interstate spread of infestations of the gypsy moth.


(c) Temporary designation of areas as quarantined areas. The Administrator or an inspector may temporarily designate any area in any State as a quarantined area in accordance with the criteria specified in paragraph (a) of this section. An inspector will give written notice of the designation to the owner or person in possession of the area and thereafter, the interstate movement of any regulated article from such areas is subject to the applicable provisions of this subpart. As soon as practicable, each quarantined area will be added to the list at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/gypsy-moth/ct_gypsy_moth or the designation will be terminated by the Administrator or an authorized inspector, and notice thereof shall be given to the owner or person in possession of the areas.


(d) Termination of designation as a quarantined area. The Administrator shall terminate the designation of any area as a quarantined area whenever the Administrator determines that the area no longer requires designation under the criteria specified in paragraph (a) of this section. APHIS will publish a notice in the Federal Register informing the public that the change has occurred.


[58 FR 39423, July 23, 1993, as amended at 72 FR 70764, Dec. 13, 2007; 87 FR 80005, Dec. 29, 2022]


§ 301.45-3 [Reserved]

§ 301.45-4 Conditions governing the interstate movement of regulated articles and outdoor household articles from quarantined areas.

(a) Regulated articles and outdoor household articles from areas. (1) A regulated article, except for an article moved in accordance with paragraph (c) of this section, shall not be moved interstate from any quarantined area into or through any area that is not quarantined unless a certificate or permit has been issued and attached to such regulated article in accordance with §§ 301.45–5 and 301.45–8.
1




1 Requirements under all other applicable Federal domestic plant quarantines must also be met.


(2) An outdoor household article shall not be moved interstate from any quarantined area into or through any area that is not quarantined unless a certificate or OHA document has been issued and attached to such outdoor household article in accordance with §§ 301.45–5 and 301.45–8.


(b) A regulated article originating outside of any quarantined area may be moved interstate directly through anyquarantined area without a certificate or permit if the point of origin of the article is clearly indicated by shipping documents, its identity has been maintained, and it has been safeguarded against infestation while in any quarantined area during the months of April through August.


(c) A regulated article originating in a quarantined area may be moved interstate from a quarantined area without a certificate if it complies with (1) or (2) of this paragraph:


(1) The article is moved by the U.S. Department of Agriculture for experimental or scientific purposes, and:


(i) Is moved pursuant to a permit issued for each article by the Administrator;


(ii) Is moved in accordance with conditions specified on the permit and found by the Administrator to be adequate to prevent the dissemination of the gypsy moth, i.e., conditions of treatment, processing, shipment, and disposal; and


(iii) Is moved with a tag or label securely attached to the outside of the container containing the article or securely attached to the article itself if not in a container, and with such tag or label bearing a permit number corresponding to the number of the permit issued for such article.


(2) The article is logs, pulpwood, or bark and bark products, and the person moving the article has attached a signed accurate statement to the waybill or other shipping documents accompanying the article stating that he or she has inspected the article in accordance with the Gypsy Moth Program Manual no more than 5 days prior to the date of movement and has found no life stages of gypsy moth on the article.


[58 FR 39423, July 23, 1993, as amended at 70 FR 33268, June 7, 2005; 71 FR 40878, July 19, 2006; 72 FR 70764, Dec. 13, 2007; 80 FR 12917, Mar. 12, 2015; 87 FR 80006, Dec. 29, 2022]


§ 301.45-5 Issuance and cancellation of certificates, limited permits, and outdoor household article documents.

(a) A certificate may be issued by an inspector for the movement of a regulated article or an outdoor household article (OHA) if the inspector determines that it is eligible for certification for movement to any destination under all Federal domestic plant quarantines applicable to such article and:


(1) It has originated in noninfested premises in a quarantined area and has not been exposed to the gypsy moth while within the quarantined area; or


(2) The inspector inspects the article no more than 5 days prior to the date of movement during the months of April through August (14 days prior to the date of movement from September through March) and finds it to be free of the gypsy moth; or


(3) It has been treated under the direction of an inspector to destroy the gypsy moth in accordance with the treatment manual and part 305 of this chapter; or


(4) It has been grown, produced, manufactured, stored, or handled in such a manner that no infestation would be transmitted thereby as determined by an inspector.


(b) Limited permits may be issued by an inspector to allow interstate movement of any regulated article under this subpart to specified destinations for specified handling, utilization, processing, or treatment in accordance with the treatment manual, when, upon evaluation of all of the circumstances involved in each case, the Administrator determines that such movement will not result in the spread of the gypsy moth because life stages of the moths will be destroyed by such specified handling, utilization, processing or treatment, or the pest will not survive in areas to which shipped, and the requirements of all other applicable Federal domestic plant quarantines have been met.


(c) Certificate and limited permit forms may be issued by an inspector to any person for use for subsequent shipments of regulated articles provided the person is operating under a compliance agreement. Any person operating under a compliance agreement may reproduce the forms as needed to attach them to regulated articles moved under a compliance agreement. Any person operating under a compliance agreement may execute and issue the certificate forms or reproduction of such forms, for the interstate movement of regulated articles from the premises of such person identified in the compliance agreement, if the person has treated such regulated articles as specified in the compliance agreement, and if the regulated articles are eligible for certification for movement to any destination under all applicable Federal domestic plant quarantines. Any person operating under a compliance agreement may execute and issue the limited permit forms, or reproductions of such forms, for the interstate movement of regulated articles to specified destinations when an inspector has made the determinations specified in paragraph (b) of this section.


(d) A certificate may be issued by a qualified certified applicator for the interstate movement of any outdoor household article or mobile home if such qualified certified applicator determines the following:


(1) That the article has been inspected by the qualified certified applicator and found to be free of any life stage of the gypsy moth; or


(2) That the article has been treated by, or treated under the direct supervision of, the qualified certified applicator to destroy any life stage of the gypsy moth in accordance with methods and procedures prescribed in section III of the Gypsy Moth Program Manual.


(e) An OHA document may be issued by the owner of an outdoor household article for the interstate movement of the article if such person has inspected the outdoor household article and has found it to be free of any life stage of gypsy moth.


(f) Any certificate or permit which has been issued or authorized may be withdrawn by an inspector if he determines that the holder thereof has not complied with any condition for the use of such document. The reasons for the withdrawal shall be confirmed in writing as promptly as circumstances permit. Any person whose certificate or permit has been withdrawn may appeal the decision in writing to the Administrator within ten (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 certificate or permit was wrongfully withdrawn. The Administrator shall grant or deny the appeal, in writing, stating the reasons for his decision as promptly as circumstances permit. 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.


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

[58 FR 39423, July 23, 1993, as amended at 59 FR 46902, Sept. 13, 1994; 70 FR 33268, June 7, 2005]


§ 301.45-6 Compliance agreement and cancellation thereof.

(a) Any person engaged in the business of growing, handling, or moving regulated articles may enter into a compliance agreement to facilitate the movement of such articles under this subpart. Qualified certified applicators must enter into compliance agreements, in accordance with the definition of qualified certified applicator in § 301.45–1. A compliance agreement shall specify safeguards necessary to prevent spread of the gypsy moth, such as disinfestation practices or application of chemical materials in accordance with the treatment manual and part 305 of this chapter. Compliance agreement forms may be obtained from the Administrator or an inspector.


(b) Any compliance agreement may be canceled by the inspector who is supervising its enforcement, orally or in writing, whenever the inspector finds that such person has failed to comply with the conditions of the agreement. If the cancellation is oral, the decision and the reasons therefore shall be confirmed in writing, as promptly as circumstances permit. Any person whose compliance agreement has been canceled may appeal the decision in writing to the Administrator within ten (10) days after receiving written notification of the cancellation. The appeal shall state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully canceled. The Administrator shall grant or deny the appeal, in writing, stating the reasons for such decision, as promptly as circumstances permit. 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.


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

[58 FR 39423, July 23, 1993, as amended at 59 FR 46902, Sept. 13, 1994; 70 FR 33268, June 7, 2005]


§ 301.45-7 Assembly and inspection of regulated articles and outdoor household articles.

Persons (other than those authorized to use certificates or limited permits, or reproductions thereof, under § 301.45–5(c)) who desire to move interstate a regulated article which must be accompanied by a certificate or permit shall, at least 7 days before the desired movement, request an inspector to examine the article prior to movement. Persons who desire to move interstate an outdoor household article accompanied by a certificate issued in accordance with § 301.45–5 shall, at least 14 days before the desired movement, request an inspector to examine the article prior to movement. Persons who desire to move interstate an outdoor household article or a mobile home accompanied by a certificate issued by a qualified certified applicator in accordance with § 301.45–5(d) shall request a qualified certified applicator to examine the article prior to movement. Such articles shall be assembled at such point and in such manner as the inspector or qualified certified applicator designates to facilitate inspection. An owner who wants to move outdoor household articles interstate may self-inspect the articles and issue an OHA document in accordance with § 301.45–5(e).


[58 FR 39423, July 23, 1993, as amended at 72 FR 70764, Dec. 13, 2007]


§ 301.45-8 Attachment and disposition of certificates, limited permits, and outdoor household article documents.

(a) A certificate, limited permit, or OHA document required for the interstate movement of a regulated article or outdoor household article must at all times during such movement be securely attached to the outside of the container containing the regulated article or outdoor household article, securely attached to the article itself if not in a container, or securely attached to the consignee’s copy of the waybill or other shipping document: Provided, however, That the requirements of this section may be met by attaching the certificate, limited permit, or OHA document to the consignee’s copy of the waybill or other shipping document only if the regulated article or outdoor household article is sufficiently described on the certificate, limited permit, OHA document or shipping document to identify such article.


(b) The certificate, limited permit, or OHA document for the movement of a regulated article or outdoor household article shall be furnished by the carrier to the consignee at the destination of the shipment.


(c) Any qualified certified applicator who issues a certificate or OHA document shall at the time of issuance send a copy of the certificate or OHA document to the APHIS State Plant Health Director for the State in which the document is issued.


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

[58 FR 39423, July 23, 1993, as amended at 59 FR 46902, Sept. 13, 1994; 72 FR 70764, Dec. 13, 2007]


§ 301.45-9 Inspection and disposal of regulated articles and pests.

Any properly identified inspector is authorized to stop and inspect, and to seize, destroy, or otherwise dispose of, or require disposal of regulated articles, outdoor household articles, and gypsy moths as provided in sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


[58 FR 39423, July 23, 1993, as amended at 66 FR 21050, Apr. 27, 2001]


§ 301.45-10 Movement of live gypsy moths.

Regulations requiring a permit for, and otherwise governing the movement of, live gypsy moths in interstate or foreign commerce are contained in the Federal Plant Pest Regulations in part 330 of this chapter.


§ 301.45-11 Costs and charges.

The services of the inspector shall be furnished without cost. The U.S. Department of Agriculture will not be responsible for any costs or charges incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.


§ 301.45-12 Disqualification of qualified certified applicator to issue certificates.

(a) Any qualified certified applicator may be disqualified from issuing certificates by the Administrator if he determines that one of the following has occurred:


(1) Such person is not certified by a State and/or the Federal government as a commercial certified applicator under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136i) in a category allowing the application of restricted use pesticides.


(2) Noncompliance with any of the provisions of this subpart or with stipulations agreed on in the compliance agreement between the certified applicator and the Administrator.


(b) The disqualification is effective upon oral or written notification, whichever is earlier. The reasons for the disqualification shall be confirmed in writing as promptly as circumstances permit, unless contained in the written notification. Any qualified certified applicator who is disqualified from issuing certificates may appeal the decision in writing to the Administrator within ten (10) days after receiving written notification of the disqualification. The appeal shall state all of the facts and reasons upon which the person relies to show that the disqualification was a wrongful action. The Administrator shall grant or deny the appeal, in writing, stating the reasons for his decision as promptly as circumstances permit. 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.


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

[58 FR 39423, July 23, 1993, as amended at 59 FR 46902, Sept. 13, 1994; 72 FR 70764, Dec. 13, 2007]


Subpart F—Japanese Beetle


Source:44 FR 24035, Apr. 24, 1979, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

Quarantine and Regulations

§ 301.48 Notice of quarantine; quarantine restrictions on interstate movement of regulated articles.

(a) Pursuant to the provisions of sections 411, 412, 414, 431, and 434 of the Plant Protection Act (7 U.S.C. 7711, 7712, 7714, 7751, and 7754), the Secretary of Agriculture heretofore determined after public hearing to quarantine the States of Alabama, Arkansas, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, West Virginia, Wisconsin, and the District of Columbia in order to prevent the spread of the Japanese beetle, a dangerous insect injurious to cultivated crops and not theretofore widely prevalent or distributed within or throughout the United States.


(b) No person shall move any regulated article interstate from any regulated airport destined to any of the following States except in accordance with the conditions prescribed in this subpart: Arizona, California, Colorado, Idaho, Montana, Nevada, Oregon, Utah, and Washington.


[44 FR 24035, Apr. 24, 1979, as amended at 61 FR 32640, June 25, 1996; 66 FR 21050, Apr. 27, 2001; 68 FR 43614, July 24, 2003; 69 FR 40534, July 6, 2004; 71 FR 35493, June 21, 2006]


§ 301.48-1 Definitions.

Terms used in the singular form in this subpart shall be deemed to import the plural and vice versa, as the case may demand. The following terms, when used in this subpart shall be construed, respectively, to mean:


Administrator. The Administrator of the Animal and Plant Health Inspection Service or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service (APHIS). The Animal and Plant Health Inspection Service of the U.S. Department of Agriculture.


Compliance agreement. A written agreement between the Animal and Plant Health Inspection Service and a person engaged in the business of moving regulated articles interstate, in which the person agrees to comply with the provisions of this subpart.


Inspector. Any employee of the Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or other person, authorized by the Administrator to enforce the provisions of the quarantine and regulations in this subpart.


Interstate. From any State into or through any other State.


Japanese beetle. The live insect known as the Japanese beetle (Popillia japonica Newm.) in any stage of development (egg, larva, pupa, or adult).


Person. Any individual, corporation, company, partnership, society, or association, or other organized group of any of the foregoing.


Regulated airport. Any airport or portions of an airport in a quarantined State declared regulated in accordance with provisions in § 301.48–2.


Regulated articles. Aircraft at or from regulated airports.


State. Any State, territory, or district of the United States, including Puerto Rico.


State Plant Regulatory Official. The authorized official of a State who has responsibility for the operation of the State plant regulatory program.


[44 FR 24035, Apr. 24, 1979, as amended at 61 FR 32640, June 25, 1996; 70 FR 33268, June 7, 2005; 87 FR 80006, Dec. 29, 2022]


§ 301.48-2 Authorization to designate, and terminate designation of, regulated airports.

(a) An inspector may declare any airport within a quarantined State to be a regulated airport when he or she determines that adult populations of Japanese beetle exist during daylight hours at the airport to the degree that aircraft constitute a threat to spread the Japanese beetle and aircraft destined for the States listed in § 301.48(b) may be leaving the airport.


(b) An inspector shall terminate the designation provided for under paragraph (a) of this section when he or she determines that adult populations of Japanese beetle no longer exist at the airport to the degree that the aircraft pose a threat to spread the Japanese beetle.


[44 FR 24035, Apr. 24, 1979, as amended at 61 FR 32640, June 25, 1996]


§ 301.48-3 Notification of designation, and termination of designation, of regulated airports.

Upon designating, or terminating the designation of, an airport as regulated, the inspector shall give written notice to the official in charge of the airport that the airport has been designated as a regulated airport or that the designation has been terminated. The inspector shall also give the same information in writing to the official at the airport in charge of each airline or the operator of any other aircraft, which will move a regulated article to any State designated in § 301.48(b). The Administrator shall also give the same information to the State Plant Regulatory Official of each State designated in § 301.48(b) to which any regulated article will move.


[44 FR 24035, Apr. 24, 1979, as amended at 61 FR 32640, June 25, 1996]


§ 301.48-4 Conditions governing the interstate movement of regulated articles from quarantined States.

A regulated article may be moved interstate from a regulated airport to any State
1
designated in § 301.48(b) only if:




1 Requirements under all other applicable Federal domestic plant quarantines must be met.


(a) An inspector, upon visual inspection of the airport and/or the aircraft, determines that the regulated article does not present a threat to spread the Japanese beetle because adult beetle populations are not present; or


(b) The aircraft is opened and loaded only while it is enclosed inside a hangar that an inspector has determined to be free of and safeguarded against Japanese beetle; or


(c) The aircraft is loaded during the hours of 8:00 p.m. to 7:00 a.m. only or lands and departs during those hours and, in either situation, is kept completely closed while on the ground during the hours of 7:00 a.m. to 8:00 p.m.; or


(d) If opened and loaded between the hours of 7:00 a.m. to 8:00 p.m., the aircraft is inspected, treated, and safeguarded. Inspection, treatment, and safeguarding must be done either under a compliance agreement in accordance with § 301.48–8 or under the direct supervision of an inspector. On a case-by-case basis, inspectors will determine which of the following conditions, and any supplemental conditions deemed necessary by the Administrator to prevent the spread of Japanese beetle, are required:


(1) All openings of the aircraft must be closed or safeguarded during the hours of 7:00 a.m. to 8:00 p.m. by exclusionary devices or by other means approved by the Administrator.


(2) All cargo containers that have not been safeguarded in a protected area must be inspected immediately prior to and during the loading process. All personnel must check their clothing immediately prior to entering the aircraft. All Japanese beetles found must be removed and destroyed.


(3) All areas around doors and hatches or other openings in the aircraft must be inspected prior to removing the exclusionary devices. All Japanese beetles found must be removed and destroyed. All doors and hatches must be closed immediately after the exclusionary devices are moved away from the aircraft.


(4) Aircraft must be treated in accordance with part 305 of this chapter no more than 1 hour before loading. Particular attention should be paid to the ball mat area and the holes around the main entrance. The aircraft must then be aerated under safeguard conditions as required by part 305 of this chapter.


(5) Aircraft treatment records must be maintained by the applicator completing or supervising the treatment for a period of 2 years. These records must be provided upon request for review by an inspector. Treatment records shall include the pesticide used, the date of application, the location where the pesticide was applied (airport and aircraft), the amount of pesticide applied, and the name of the applicator.


(6) When a designated aircraft is replaced with an alternate one just prior to departure (the procedure known as “tail swapping”), the alternate aircraft must be inspected and all Japanese beetles must be removed. The aircraft must be safeguarded by closing all openings and hatches or by equipping the aircraft with exclusionary devices until the aircraft is ready for use. During loading, all treatment and safeguard requirements applicable to regularly scheduled aircraft must be implemented.


(7) Aircraft may be retreated in the noninfested State if live Japanese beetles are found.


(8) Notification of unscheduled commercial flights and of all military flights must be given at least 1 hour before departure to the appropriate person in the destination airport of any of the States listed in § 301.48(b). Notification of arriving military flights should also be given to base commanders to facilitate the entrance of Federal and/or State inspectors onto the base if necessary.


[61 FR 32640, June 25, 1996, as amended at 61 FR 56404, Nov. 1, 1996; 70 FR 33268, June 7, 2005]


§ 301.48-5 Inspection and disposal of regulated articles and pests.

Any properly identified inspector is authorized to stop and inspect, and to seize, destroy, or otherwise dispose of or require disposal of regulated articles and Japanese beetles as provided in sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754) in accordance with instructions issued by the Administrator.


[44 FR 24035, Apr. 24, 1979, as amended at 61 FR 32641, June 25, 1996; 66 FR 21051, Apr. 27, 2001]


§ 301.48-6 Movement of live Japanese beetles.

Regulations requiring a permit for and otherwise governing the movement of live Japanese beetles in interstate or foreign commerce are contained in the Federal Plant Pest Regulations in part 330 of this chapter. Applications for permits for the movement of the pest may be made to the Administrator.


[44 FR 24035, Apr. 24, 1979, as amended at 61 FR 32641, June 25, 1996]


§ 301.48-7 Nonliability of the Department.

The U.S. Department of Agriculture disclaims liability for any costs incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart other than for the services of the inspector.


§ 301.48-8 Compliance agreements and cancellation.

(a) Any person engaged in the business of moving regulated articles may enter into a compliance agreement to facilitate the movement of such articles under this subpart. Any person who enters into a compliance agreement, and employees or agents of that person, must allow an inspector access to all records regarding treatment of aircraft and to all areas where loading, unloading, and treatment of aircraft occurs.


(b) A compliance agreement may be canceled by an inspector, orally or in writing, whenever he or she determines that the person who has entered into the compliance agreement has failed to comply with the agreement or this subpart. If the cancellation is oral, the cancellation and the reasons for the cancellation will be confirmed in writing within 20 days of oral notification. Any person whose compliance agreement has been canceled may appeal the decision, in writing, to the Administrator within 10 days after receiving written notification of the cancellation. The appeal must state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully canceled. A hearing will be held to resolve any conflict as to any material fact. The Administrator shall adopt rules of practice for the hearing. An appeal shall be granted or denied, in writing, as promptly as circumstances allow, and the reasons for the decision shall be stated. The compliance agreement will remain canceled pending the decision on the appeal.


[61 FR 32641, June 25, 1996]


Subpart G—Pine Shoot Beetle [Reserved]

Subpart H—Asian Longhorned Beetle


Source:62 FR 10416, Mar. 7, 1997, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 301.51-1 Definitions.

Administrator. The Administrator, Animal and Plant Health Inspection Service, or any individual authorized to act for the Administrator.


Animal and Plant Health Inspection Service (APHIS). The Animal and Plant Health Inspection Service of the United States Department of Agriculture.


Asian longhorned beetle. The insect known as Asian longhorned beetle (Anoplophora glabripennis) in any stage of development.


Certificate. A document which is issued for a regulated article by an inspector or by a person operating under a compliance agreement, and which represents that such article is eligible for interstate movement in accordance with § 301.51–5(a).


Compliance agreement. A written agreement between APHIS and a person engaged in growing, handling, or moving regulated articles that are moved interstate, in which the person agrees to comply with the provisions of this subpart and any conditions imposed under this subpart.


Infestation. The presence of the Asian longhorned beetle in any life stage.


Inspector. Any employee of the Animal and Plant Health Inspection Service, or other individual authorized by the Administrator to enforce the provisions of this subpart.


Interstate. From any State into or through any other State.


Limited permit. A document in which an inspector affirms that the regulated article not eligible for a certificate is eligible for interstate movement only to a specified destination and in accordance with conditions specified on the permit.


Moved (movement, move). Shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried.


Person. Any association, company, corporation, firm, individual, joint stock company, partnership, society, or any other legal entity.


Quarantined area. Any State, or any portion of a State, listed in accordance with § 301.51–2 or otherwise designated as a quarantined area in accordance with § 301.51–3(b).


Regulated article. Any article identified as a regulated article under § 301.51–2 as follows: listed as of January 30, 2023, added in accordance with § 301.51–2(b), or otherwise designated in accordance with § 301.51–2(c).


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States.


[62 FR 10416, Mar. 7, 1997, as amended at 87 FR 80006, Dec. 29, 2022]


§ 301.51-2 Regulated articles.

(a) List of regulated articles. The Administrator has determined that certain articles present a risk of spreading Asian longhorned beetle. A list of all such articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/asian-longhorned-beetle/asian-longhorned-beetle. Lists of all regulated articles may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(b) Normal process for designating additional regulated articles. (1) If the Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/asian-longhorned-beetle/asian-longhorned-beetle presents a risk of spreading Asian longhorned beetle, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for Asian longhorned beetle. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for Asian longhorned beetle and listing it.


(c) Immediate designation of regulated articles. Any other article, product, or means of conveyance not already listed in accordance with paragraph (a) of this section may be designated a regulated article on an immediate basis if an inspector determines that it presents a risk of spreading Asian longhorned beetle and notifies the person in possession of the article, product, or means of conveyance that it is now subject to the restrictions of this subpart.


[87 FR 80006, Dec. 29, 2022]


§ 301.51-3 Quarantined areas.

(a) Except as otherwise provided in paragraph (b) of this section, the Administrator will list as a quarantined area each State or portion of a State in which the Asian longhorned beetle is present, in which the Administrator has reason to believe that the Asian longhorned beetle is present, or that the Administrator considers necessary to regulate because of its inseparability for quarantine enforcement purposes from localities where the Asian longhorned beetle has been found. The Administrator will publish a list of all quarantined areas (the quarantine list) on the Plant Protection and Quarantine (PPQ) website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/asian-longhorned-beetle/asian-longhorned-beetle. The list will include the date that the list was last updated. Lists of all quarantined areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of quarantined areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined areas. Less than an entire State will be designated as a quarantined area only if the Administrator determines that:


(1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and


(2) The designation of less than an entire State as a quarantined area will be adequate to prevent the artificial interstate spread of the Asian longhorned beetle.


(b) The Administrator may temporarily designate any nonquarantined area as a quarantined area in accordance with the criteria specified in paragraph (a) of this section. The Administrator will give written notice of this designation to owner or person in possession of the nonquarantined area, or in the case of publicly owned land, to the person responsible for the management of nonquarantined area. Thereafter, the interstate movement of any regulated articles from an area temporarily designated as quarantined area is subject to this subpart. As soon as practicable, this area will either be added to the quarantine list or the Administrator will terminate the designation. The owner or, in the case of publicly owned land, the person responsible for the management of, an area for which the designation has terminated will be given written notice of the termination as soon as practicable.


[87 FR 80006, Dec. 29, 2022]


[62 FR 10416, Mar. 7, 1997, as amended at 87 FR 80006, Dec. 29, 2022]


§ 301.51-5 Issuance and cancellation of certificates and limited permits.

(a) An inspector
1
or person operating under a compliance agreement will issue a certificate for the interstate movement of a regulated article if he or she determines that the regulated article:




1 Inspectors are assigned to local offices of APHIS, which are listed in local telephone directories. Information concerning such local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.


(1)(i) Is apparently free of Asian longhorned beetle in any stage of development, based on inspection of the regulated article; or


(ii) Has been grown, produced, manufactured, stored, or handled in such a manner that, in the judgment of the inspector, the regulated article does not present a risk of spreading Asian longhorned beetle; and


(2) Is to be moved in compliance with any additional conditions deemed necessary under section 414 of the Plant Protection Act (7 U.S.C. 7714)
2
to prevent the artificial spread of the Asian longhorned beetle; and




2 An inspector may hold, seize, quarantine, treat, apply other remedial measures to, destory, or otherwise dispose of plants, plant pests, or other articles in accordance with sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


(3) Is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated articles.


(b) An inspector or a person operating under a compliance agreement will issue a limited permit for the interstate movement of a regulated article not eligible for a certificate if he or she determines that the regulated article:


(1) Is to be moved interstate to a specified destination for specific processing, handling, or utilization (the destination and other conditions to be listed on the limited permit), and this interstate movement will not result in the spread of Asian longhorned beetle because Asian longhorned beetle will be destroyed by the specific processing, handling, or utilization; and


(2) It is to be moved in compliance with any additional conditions that the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) in order to prevent the spread of the Asian longhorned beetle; and


(3) Is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.


(c) An inspector shall issue blank certificates and limited permits to a person operating under a compliance agreement in accordance with § 301.51–6 or authorize reproduction of the certificates or limited permits on shipping containers, or both, as requested by the person operating under the compliance agreement. These certificates and limited permits may then be completed and used, as needed, for the interstate movement of regulated articles that have met all of the requirements of paragraph (a) or (b), respectively, of this section.


(d) Any certificate or limited permit may be canceled orally or in writing by an inspector whenever the inspector determines that the holder of the certificate or limited permit has not complied with this subpart or any conditions imposed under this subpart. If the cancellation is oral, the cancellation will become effective immediately, and the cancellation and the reasons for the cancellation will be confirmed in writing as soon as circumstances permit. Any person whose certificate or limited permit has been cancelled may appeal the decision in writing to the Administrator within 10 days after receiving the written cancellation notice. The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal. A hearing may be held to resolve a conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator. As soon as practicable, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision.


[62 FR 10416, Mar. 7, 1997, as amended at 66 FR 21051, Apr. 27, 2001]


§ 301.51-6 Compliance agreements and cancellation.

(a) Persons engaged in growing, handling, or moving regulated articles interstate may enter into a compliance agreement
1
if such persons review with an inspector each stipulation of the compliance agreement. Any person who enters into a compliance agreement with APHIS must agree to comply with the provisions of this subpart and any conditions imposed under this subpart.




1 Compliance agreements may be initiated by contacting a local office of APHIS. The addresses and telephone numbers of local offices are listed in local telephone directories and may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.


(b) Any compliance agreement may be canceled orally or in writing by an inspector whenever the inspector determines that the person who has entered into the compliance agreement has not complied with this subpart or any conditions imposed under this subpart. If the cancellation is oral, the cancellation will become effective immediately, and the cancellation and the reasons for the cancellation will be confirmed in writing as soon as circumstances permit. Any person whose compliance agreement has been cancelled may appeal the decision in writing to the Administrator within 10 days after receiving the written cancellation notice. The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal. A hearing may be held to resolve a conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator. As soon as practicable, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision.


[62 FR 10416, Mar. 7, 1997, as amended at 87 FR 80006, Dec. 29, 2022]


§ 301.51-7 Assembly and inspection of regulated articles.

(a) Persons requiring certification or other services must request the services from an inspector
1
at least 48 hours before the services are needed.




1 See footnote 1 to § 301.51–5.


(b) The regulated articles must be assembled at the place and in the manner that the inspector designates as necessary to comply with this subpart.


[62 FR 10416, Mar. 7, 1997, as amended at 87 FR 80006, Dec. 29, 2022]


§ 301.51-8 Attachment and disposition of certificates and limited permits.

(a) A regulated article must be plainly marked with the name and address of the consignor and the name and address of the consignee and must have the certificate or limited permit issued for the interstate movement of a regulated article securely attached at all times during interstate movement to:


(1) The outside of the container encasing the regulated article;


(2) The article itself, if it is not in a container; or


(3) The consignee’s copy of the accompanying waybill; Provided, that the description of the regulated article on the certificate or limited permit, and on the waybill, are sufficient to identify the regulated article; and


(b) The carrier must furnish the certificate or limited permit authorizing interstate movement of a regulated article to the consignee at the destination of the shipment.


§ 301.51-9 Costs and charges.

The services of the inspector during normal business hours will be furnished without cost to persons requiring the services. The user will be responsible for all costs and charges arising from inspection and other services provided outside of normal business hours.


Subpart I—Pink Bollworm


Source:32 FR 16385, Nov. 30, 1967, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

Quarantine and Regulations

§ 301.52 Quarantine; restriction on interstate movement of specified regulated articles.

(a) Notice of quarantine. The following States are quarantined to prevent the spread of the pink bollworm (Pectinophora gossypiella (Saund.)): Florida.


(b) List of regulated articles. The Deputy Administrator has determined that certain articles present a risk of spreading pink bollworm. A list of all such regulated articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/cotton-pests/cotton-pests. Lists of all regulated articles may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(c) Normal process for designating additional regulated articles. (1) If the Deputy Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/cotton-pests/cotton-pests presents a risk of spreading pink bollworm, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for pink bollworm. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Deputy Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for pink bollworm and listing it.


(d) Immediate designation of regulated articles. An inspector may designate any other product, article, or means of conveyance as a regulated article for pink bollworm, if the inspector determines that it presents a risk of spreading pink bollworm, and after the inspector provides actual notification to the person in possession of the product, article, or means of conveyance that it is subject to the restrictions of this subpart.


[87 FR 80006, Dec. 29, 2022]


§ 301.52-1 Definitions.

Terms used in the singular form in this subpart shall be deemed to import the plural, and vice versa, as the case may demand. The following terms, when used in this subpart, shall be construed, respectively to mean:


Certificate. A document issued or authorized to be issued under this subpart by an inspector to allow the interstate movement of regulated articles to any destination.


Compliance agreement. A written agreement between a person engaged in growing, handling, or moving regulated articles, and the Plant Protection and Quarantine Programs, wherein the former agrees to comply with the requirements of this subpart identified in the agreement by the inspector who executes the agreement on behalf of the Plant Protection and Quarantine Programs as applicable to the operations of such person.


Deputy Administrator. The Deputy Administrator of the Plant Protection and Quarantine Programs, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or any other officer or employee of said Service to whom authority to act in his stead has been or may hereafter be delegated.


Generally infested area. Any part of a regulated area not designated as a suppressive area in accordance with § 301.52–2.


Infestation. The presence of the pink bollworm or the existence of circumstances that make it reasonable to believe that pink bollworm is present.


Inspector. Any employee of the Plant Protection and Quarantine Programs, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or other person authorized by the Deputy Administrator to enforce the provisions of the quarantine and regulations in this subpart.


Interstate. From any State, territory, or district of the United States into or through any other State, territory, or district of the United States (including Puerto Rico).


Limited permit. A document issued or authorized to be issued by an inspector to allow the interstate movement of noncertified regulated articles to a specified destination for limited handling, utilization, or processing or for treatment.


Moved (movement, move). 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 by any means. “Movement” and “move” shall be construed accordingly.


Person. Any individual, corporation, company, society, or association, or other organized group of any of the foregoing.


Pink bollworm. The live insect known as the pink bollworm of cotton (Pectinophora gossypiella Saund.), in any stage of development.


Regulated area. Any quarantined State, territory, or district, or any portion thereof, listed in accordance with § 301.52–2.


Regulated articles. Any article identified as a regulated article under § 301.52 as follows: listed as of January 30, 2023, added in accordance with § 301.52(c), or otherwise designated in accordance with § 301.52(d).


Restricted destination permit. A document issued or authorized to be issued by an inspector to allow the interstate movement of regulated articles not certified under all applicable Federal domestic plant quarantines to a specified destination for other than scientific purposes.


Scientific permit. A document issued by the Deputy Administrator to allow the interstate movement to a specified destination of regulated articles for scientific purposes.


Suppressive area. That part of a regulated area where eradication of infestation is undertaken as an objective, as designated by the Deputy Administrator in accordance with § 301.52–2.


[32 FR 16385, Nov. 30, 1967, as amended at 35 FR 2859, Feb. 12, 1970; 36 FR 24917, Dec. 24, 1971; 37 FR 10554, May 25, 1972; 52 FR 26943, July 17, 1987; 67 FR 34818, May 16, 2002; 70 FR 33268, June 7, 2005; 87 FR 80007, Dec. 29, 2022]


§ 301.52-2 Authorization for the Deputy Administrator to list regulated areas and suppressive or generally infested areas.

(a) The Deputy Administrator will list as a regulated area each State or portion of a State in which evidence of a reproducing population of pink bollworm is present, or in which there is reason to believe that pink bollworm is present, or which it is deemed necessary to regulate because of their proximity to infestation or their inseparability for quarantine enforcement purposes from infested localities. The Deputy Administrator may divide any regulated area into a suppressive area and a generally infested area in accordance with the definitions of these terms in § 301.52–1. The Deputy Administrator will publish a list of all regulated areas, including the suppressive and generally infested areas therein, at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/cotton-pests/cotton-pests. The list will include the date that the list was last updated. Lists of all regulated areas, including the suppressive and generally infested areas therein, may also be obtained by request from any local office of PPQ; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of regulated areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the regulated areas. Less than an entire State will be designated as a regulated area only if the Deputy Administrator determines that:


(1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and


(2) The designation of less than an entire State as a regulated area will be adequate to prevent the artificial interstate spread of pink bollworm.


(b) [Reserved]


[87 FR 80007, Dec. 29, 2022]


§ 301.52-2a [Reserved]

§ 301.52-3 Conditions governing the interstate movement of regulated articles from quarantined States.

Any regulated articles may be moved interstate from any quarantined State under the following conditions:
1



1 Requirements under all other applicable Federal domestic plant quarantines must also be met.


(a) From any regulated area, with certificate or permit issued and attached in accordance with §§ 301.52–4 and 301.52–7 if moved:


(1) From any regulated area into or through any point outside of the regulated areas; or


(2) From any generally infested area into or through any suppressive area; or


(3) Between any noncontiguous suppressive areas; or


(4) Between contiguous suppressive areas when it is determined by the inspector that the regulated articles present a hazard of the spread of the pink bollworm and the person in possession thereof has been so notified; or


(b) From any regulated area, without certificate or permit if moved;


(1) From a generally infested area to a contiguous generally infested area; or


(2) From a suppressive area to a contiguous generally infested area; or


(3) Between contiguous suppressive areas unless the person in possession of the articles has been notified by an inspector that a hazard of spread of the pink bollworm exists; or


(4) Through or reshipped from any regulated area if the articles originated outside of any regulated area and if the point of origin of the articles is clearly indicated, their identity has been maintained and they have been safeguarded against infestation while in the regulated area in a manner satisfactory to the inspector; or


(c) From any area outside the regulated areas, without a certificate or permit if the point of origin of such movement is clearly indicated on the articles or shipping document which accompanies the articles and if the movement is not made through any regulated area.


[32 FR 16385, Nov. 30, 1967, as amended at 52 FR 26943, July 17, 1987; 70 FR 33268, June 7, 2005; 87 FR 80007, Dec. 29, 2022]


§ 301.52-4 Issuance and cancellation of certificates and permits.

(a) Certificates may be issued for any regulated articles by any inspector if he determines that they are eligible for certification for movement to any destination under all Federal domestic plant quarantines applicable to such articles and:


(1) Have originated in noninfested premises in a regulated area and have not been exposed to infestation while within the regulated areas; or


(2) Upon examination, have been found to be free of infestation; or


(3) Have been treated to destroy infestation in accordance with part 305 of this chapter; or


(4) Have been grown, produced, manufactured, stored, or handled in such manner that no infestation would be transmitted thereby.


(b) Limited permits may be issued by an inspector to allow interstate movement of regulated articles, not eligible for certification under this subpart, to specified destinations for limited handling, utilization, or processing, or for treatment in accordance with part 305 of this chapter, when upon evaluation of the circumstances involved in each specific case the inspector determines that such movement will not result in the spread of the pink bollworm and requirements of other applicable Federal domestic plant quarantines have been met.


(c) Restricted destination permits may be issued by an inspector to allow the interstate movement of regulated articles to any destination permitted under all applicable Federal domestic plant quarantines (for other than scientific purposes) if such articles are not eligible for certification under all such quarantines but would otherwise qualify for certification under this subpart.


(d) Scientific permits may be issued by the Deputy Administrator to allow the interstate movement of regulated articles for scientific purposes under such conditions as may be prescribed in each specific case by the Deputy Administrator.


(e) Certificate, limited permit, and restricted destination permit forms may be issued by an inspector to any person for use by the latter for subsequent shipments provided such person is operating under a compliance agreement; and any such person may be authorized by an inspector to reproduce such forms on shipping containers or otherwise. Any such person may use the certificate forms, or reproductions of such forms, for the interstate movement of regulated articles from the premises of such person identified in the compliance agreement if such person has made one of the determination specified in paragraph (a) of this section with respect to such articles. Any such person may use the limited permit forms, or reproductions of such forms, for interstate movement of regulated articles to specific destinations authorized by the inspector in accordance with paragraph (b) of this section. Any such person may use the restricted destination permit forms, or reproductions of such forms, for the interstate movement of regulated articles not eligible for certification under all Federal domestic plant quarantines applicable to such articles, under the conditions specified in paragraph (c) of this section.


(f) Any certificate or permit which has been issued or authorized may be withdrawn by the inspector if the inspector determines that the holder thereof has not complied with any condition for the use of such document imposed by this subpart.


[32 FR 16385, Nov. 30, 1967, as amended at 70 FR 33268, June 7, 2005]


§ 301.52-5 Compliance agreements; and cancellation thereof.

(a) Any person engaged in the business of growing, handling, or moving regulated articles may enter into a compliance agreement to facilitate the movement of such articles under this subpart. Compliance agreement forms may be obtained from the Deputy Administrator or an inspector.


(b) Any compliance agreement may be cancelled by the inspector who is supervising its enforcement whenever the inspector finds, after notice and reasonable opportunity to present views has been accorded to the other party thereto, that such other party has failed to comply with the conditions of the agreement.


[32 FR 16385, Nov. 30, 1967, as amended at 70 FR 33268, June 7, 2005]


§ 301.52-6 Assembly and inspection of regulated articles.

Persons (other than those authorized to use certificates, limited permits, or restricted destination permits, or reproductions thereof, under § 301.52–4(e)) who desire to move interstate regulated articles which must be accompanied by a certificate or permit shall, as far in advance as possible, request an inspector to examine the articles prior to movement. Such articles shall be assembled at such points and in such manner as the inspector designates to facilitate inspection.


§ 301.52-7 Attachment and disposition of certificates or permits.

(a) If a certificate or permit is required for the interstate movement of regulated articles, the certificate or permit shall be securely attached to the outside of the container in which such articles are moved, except that, where the certificate or permit is attached to the waybill or other shipping document, and the regulated articles are adequately described on the certificate, permit, or shipping document, the attachment of the certificate or permit to each container of the articles is not required.


(b) In all cases, certificates or permits shall be furnished by the carrier to the consignee at the destination of the shipment.


§ 301.52-8 Inspection and disposal of regulated articles and pests.

Any properly identified inspector is authorized to stop and inspect, and to seize, destroy, or otherwise dispose of, or require disposal of regulated articles and pink bollworms as provided sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754), in accordance with instructions issued by the Deputy Administrator.


[32 FR 16385, Nov. 30, 1967, as amended at 66 FR 21051, Apr. 27, 2001]


§ 301.52-9 Movement of live pink bollworms.

Regulations requiring a permit for, and otherwise governing the movement of live pink bollworms in interstate or foreign commerce are contained in the Federal Plant Pest regulations in part 330 of this chapter. Applications for permits for the movement of the pest may be made to the Deputy Administrator.


§ 301.52-10 Nonliability of the Department.

The U.S. Department of Agriculture disclaims liability for any costs incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.


Subpart J—Emerald Ash Borer [Reserved]

Subpart K—South American Cactus Moth


Source:74 FR 27073, June 8, 2009, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 301.55 Restrictions on interstate movement of regulated articles.

No person may move interstate from any quarantined area any regulated article except in accordance with this subpart.
1




1 Any properly identified inspector is authorized, upon probable cause, to stop and inspect persons and means of conveyance moving in interstate commerce and to hold, seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of regulated articles as provided in sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


§ 301.55-1 Definitions.

Administrator. The Administrator, Animal and Plant Health Inspection Service, or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service (APHIS). The Animal and Plant Health Inspection Service of the United States Department of Agriculture.


Cactus plants. Any of various fleshy-stemmed plants of the botanical family Cactaceae.


Certificate. A document in which an inspector or person operating under a compliance agreement affirms that a specified regulated article is free of South American cactus moth and may be moved interstate to any destination.


Compliance agreement. A written agreement between APHIS and a person engaged in growing, handling, or moving regulated articles, wherein the person agrees to comply with this subpart.


Departmental permit. A document issued by the Administrator in which he or she affirms that interstate movement of the regulated article identified on the document is for scientific or experimental purposes and that the regulated article is eligible for interstate movement in accordance with § 301.55–4(c).


Infestation. The presence of the South American cactus moth or the existence of circumstances that makes it reasonable to believe that the South American cactus moth may be present.


Inspector. Any employee of APHIS or other person authorized by the Administrator to perform the duties required under this subpart.


Interstate. From any State into or through any other State.


Limited permit. A document in which an inspector or person operating under a compliance agreement affirms that the regulated article identified on the document is eligible for interstate movement in accordance with § 301.55–5(b) only to a specified destination and only in accordance with specified conditions.


Moved (move, movement). Shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried.


Person. Any association, company, corporation, firm, individual, joint stock company, partnership, society, or other entity.


Plant Protection and Quarantine (PPQ). The Plant Protection and Quarantine program of the Animal and Plant Health Inspection Service, United States Department of Agriculture.


Quarantined area. Any State, or any portion of a State, listed in accordance with § 301.55–3(a) or otherwise designated as a quarantined area in accordance with § 301.55–3(b).


Regulated article. Any article identified as a regulated article under § 301.55–2 as follows: listed as of January 30, 2023, added in accordance with § 301.55–2(b), or otherwise designated in accordance with § 301.55–2(c).


South American cactus moth. The live insect known as the South American cactus moth, Cactoblastis cactorum, in any life stage (egg, larva, pupa, adult).


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States.


[74 FR 27073, June 8, 2009, as amended at 87 FR 80007, Dec. 29, 2022]


§ 301.55-2 Regulated articles.

(a) List of regulated articles. The Administrator has determined that certain articles present a risk of spreading the South American cactus moth. A list of all such regulated articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/sa_insects/south-american-cactus-moth. Lists of all regulated articles may also be obtained by request from any local office of PPQ; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(b) Normal process for designating additional regulated articles. (1) If the Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/sa_insects/south-american-cactus-moth presents a risk of spreading South American cactus moth, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for South American cactus moth. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for South American cactus moth and listing it.


(c) Immediate designation of regulated articles. An inspector may designate any other product, article, or means of conveyance not listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/sa_insects/south-american-cactus-moth as a regulated article if the inspector determines it presents a risk of spreading the South American cactus moth, after the inspector provides written notification to the person in possession of the product, article, or means of conveyance that it is subject to the restrictions of this subpart.


[87 FR 80007, Dec. 29, 2022]


§ 301.55-3 Quarantined areas.

(a) Except as otherwise provided in paragraph (b) of this section, the Administrator will list as a quarantined area each State, or each portion of a State, in which the South American cactus moth has been found by an inspector, in which the Administrator has reason to believe that the South American cactus moth is present, or that the Administrator considers necessary to quarantine because of its inseparability for quarantine enforcement purposes from localities where South American cactus moth has been found. The Administrator will publish a list of all quarantined areas (the quarantine list) on the Plant Protection and Quarantine (PPQ) website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/sa_insects/south-american-cactus-moth. The list will include the date that the list was last updated. Lists of all quarantined areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of quarantined areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined areas. Less than an entire State will be designated as a quarantined area only if the Administrator determines that:


(1) The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and


(2) The designation of less than the entire State as a quarantined area will be adequate to prevent the interstate spread of the South American cactus moth.


(b) The Administrator or an inspector may temporarily designate any nonquarantined area in a State as a quarantined area in accordance with the criteria specified in paragraph (a) of this section. The Administrator will give a copy of this subpart along with written notice of the temporary designation to the owner or person in possession of the nonquarantined area, or, in the case of publicly owned land, to the person responsible for the management of the nonquarantined area. Thereafter, the interstate movement of any regulated article from an area temporarily designated as a quarantined area will be subject to this subpart. As soon as practicable, the area will be added to the quarantine list or the designation will be terminated by the Administrator or an inspector. The owner or person in possession of, or, in the case of publicly owned land, the person responsible for the management of, an area for which designation is terminated will be given written notice of the termination as soon as practicable.


[87 FR 80007, Dec. 29, 2022]


§ 301.55-4 Conditions governing the interstate movement of regulated articles from quarantined areas.

Any regulated article may be moved interstate from a quarantined area
1
only if moved under the following conditions:




1 Requirements under all other applicable Federal domestic plant quarantines and regulations must also be met.


(a) With a certificate or limited permit issued and attached in accordance with §§ 301.555 and 301.55–8;


(b) Without a certificate or limited permit if:


(1) The regulated article originated outside the quarantined area and is either moved in an enclosed vehicle or is completely enclosed by a covering (such as canvas, plastic, or closely woven cloth) adequate to prevent access by South American cactus moths while moving through the quarantined area; and


(2) The point of origin of the regulated article is indicated on the waybill, and the enclosed vehicle or the enclosure that contains the regulated article is not opened, unpacked, or unloaded in the quarantined area; and


(3) The regulated article is moved through the quarantined area without stopping except for refueling or for traffic conditions, such as traffic lights or stop signs.


(c) Without a certificate or limited permit if the regulated articles are cactus pads and fruits for consumption from outside the quarantined area that are being moved in accordance with the protocols described in a compliance agreement (see § 301.55–6(a)) to a commercial food warehouse or distribution center within the quarantined area and the regulated articles remain enclosed by a covering (such as canvas, plastic, or closely woven cloth) adequate to prevent access by South American cactus moths while within the quarantined area: and


(d) Without a certificate or limited permit if the regulated article is moved:


(1) By the United States Department of Agriculture for experimental or scientific purposes;


(2) Pursuant to a departmental permit issued by the Administrator for the regulated article;


(3) Under conditions specified on the departmental permit and found by the Administrator to be adequate to prevent the spread of the South American cactus moth; and


(4) With a tag or label bearing the number of the departmental permit issued for the regulated article attached to the outside of the container of the regulated article or attached to the regulated article itself if not in a container.


[74 FR 27073, June 8, 2009, as amended at 87 FR 80008, Dec. 29, 2022]


§ 301.55-5 Issuance and cancellation of certificates and limited permits.

(a) An inspector
1
may issue a certificate for the interstate movement of a regulated article if the inspector determines that:




1 Services of an inspector may be requested by contacting local offices of Plant Protection and Quarantine, which are listed in telephone directories.


(1) The regulated article to be moved and all other regulated articles on the premises have been grown and maintained indoors in a shadehouse or greenhouse and no other cactus moth host material exists on the premises outside of a shadehouse or greenhouse;


(2) The regulated article to be moved and all other regulated articles on the premises are maintained on benches that are kept separate from benches containing non-host material;


(3) The regulated article to be moved and all other regulated articles on the premises have been placed on a 21-day insecticide spray cycle and have been sprayed with Bacillus thuringiensis subsp. kurstaki, carbaryl, spinosad, or imidaploprid if maintained in the nursery for longer than 21 days;


(4) The regulated article to be moved has been sprayed with Bacillus thuringiensis subsp. kurstaki, carbaryl, spinosad, or imidaploprid 3 to 5 days prior to shipment and inspected and found free of cactus moth egg sticks and larval damage; and


(5) If the regulated article was moved into the premises from another premises in a quarantined area listed in § 301.55–3, it was immediately placed inside the shadehouse or greenhouse and sprayed with Bacillus thuringiensis subsp. kurstaki, carbaryl, spinosad, or imidaploprid within 24 hours.


(b) An inspector will issue a limited permit for the interstate movement of a regulated article if the inspector determines that:


(1) The regulated article is to be moved interstate to a specified destination for specified handling, processing, or utilization (the destination and other conditions to be listed in the limited permit), and this interstate movement will not result in the spread of the South American cactus moth because life stages of the South American cactus moth will be destroyed by the specified handling, processing, or utilization;


(2) It is to be moved in compliance with any additional conditions that the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) in order to prevent the spread of the South American cactus moth; and


(3) It is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.


(c) Certificates and limited permits for the interstate movement of regulated articles may be issued by an inspector or person operating under a compliance agreement. A person operating under a compliance agreement may issue a certificate or limited permit for interstate movement of a regulated article after an inspector has determined that the regulated article is eligible for a certificate or limited permit in accordance with paragraphs (a) or (b) of this section.


(d) Any certificate or limited permit that has been issued may be canceled, either orally or in writing, by an inspector whenever the inspector determines that the holder of the limited permit has not complied with this subpart or any conditions imposed under this subpart. If the cancellation is oral, the cancellation will become effective immediately, and the cancellation and the reasons for the cancellation will be confirmed in writing as soon as circumstances permit. Any person whose certificate or limited permit has been canceled may appeal the decision in writing to the Administrator within 10 days after receiving the written cancellation notice. The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal. A hearing may be held to resolve a conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator. As soon as practicable, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision.


(Approved by the Office of Management and Budget under control number 0579–0337)


[74 FR 27073, June 8, 2009, as amended at 87 FR 80008, Dec. 29, 2022]


§ 301.55-6 Compliance agreements and cancellation.

(a) Any person engaged in growing, handling, or moving regulated articles may enter into a compliance agreement when an inspector determines that the person is aware of this subpart, agrees to comply with its provisions, and agrees to comply with all the provisions contained in the compliance agreement.
1




1 Compliance agreement forms are available without charge from local Plant Protection and Quarantine offices, which are listed in telephone directories.


(b) Any compliance agreement may be canceled, either orally or in writing, by an inspector whenever the inspector finds that the person who has entered into the compliance agreement has failed to comply with this subpart or the terms of the compliance agreement. If the cancellation is oral, the cancellation and the reasons for the cancellation will be confirmed in writing as promptly as circumstances allow. Any person whose compliance agreement has been canceled may appeal the decision, in writing, to the Administrator, within 10 days after receiving written notification of the cancellation. The appeal must state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully canceled. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator.


(Approved by the Office of Management and Budget under control number 0579–0337)


[74 FR 27073, June 8, 2009, as amended at 87 FR 80008, Dec. 29, 2022]


§ 301.55-7 Assembly and inspection of regulated articles.

(a) Any person (other than a person authorized to issue limited permits under § 301.555(c)) who desires a certificate or limited permit to move a regulated article interstate must request an inspector
1
to examine the articles as far in advance of the desired interstate movement as possible, but no less than 48 hours before the desired interstate movement.




1 See footnote 1 in § 301.55–5.


(b) The regulated article must be assembled at the place and in the manner the inspector designates as necessary to comply with this subpart.


[74 FR 27073, June 8, 2009, as amended at 87 FR 80008, Dec. 29, 2022]


§ 301.55-8 Attachment and disposition of certificates and limited permits.

(a) A certificate or limited permit required for the interstate movement of a regulated article must, at all times during the interstate movement, be:


(1) Attached to the outside of the container containing the regulated article; or


(2) Attached to the regulated article itself if not in a container; or


(3) Attached to the consignee’s copy of the accompanying waybill. If the certificate or limited permit is attached to the consignee’s copy of the waybill, the regulated article must be sufficiently described on the certificate or limited permit and on the waybill to identify the regulated article.


(b) The certificate or limited permit for the interstate movement of a regulated article must be furnished by the carrier or the carrier’s representative to the consignee listed on the certificate or limited permit upon arrival at the location provided on the certificate or limited permit.


(Approved by the Office of Management and Budget under control number 0579–0337)


§ 301.55-9 Costs and charges.

The services of the inspector during normal business hours (8 a.m. to 4:30 p.m., Monday through Friday, except holidays) will be furnished without cost. APHIS will not be responsible for all costs or charges incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.


Subpart L—Plum Pox


Source:65 FR 35264, June 2, 2000, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 301.74 Restrictions on interstate movement of regulated articles.

No person may move interstate from any quarantined area any regulated article except in accordance with this subpart.
1




1 Any properly identified inspector is authorized to stop and inspect persons and means of conveyance and to seize, qurantine, treat, apply other remedial measures to, destroy, or otherwise dispose of regulated articles a provided in sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


[65 FR 35264, June 2, 2000, as amended at 66 FR 21051, Apr. 27, 2001]


§ 301.74-1 Definitions.

The following definitions apply to this subpart.


Administrator. The Administrator, Animal and Plant Health Inspection Service, or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service. The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture.


Departmental permit. A document issued by the Administrator in which he or she affirms that interstate movement of the regulated article identified on the document is for scientific or experimental purposes and that the regulated article is eligible for interstate movement in accordance with § 301.74–4.


Infestation (infested, infected). The presence of plum pox or circumstances or symptoms that makes it reasonable to believe that plum pox is present.


Inspector. Any employee of the Animal and Plant Health Inspection Service, United States Department of Agriculture, or other person authorized by the Administrator to enforce this subpart.


Interstate. From any State into or through any other State.


Moved (move, movement). Shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried.


Person. Any association, company, corporation, firm, individual, joint stock company, partnership, society, or other entity.


Plant Protection and Quarantine. Plant Protection and Quarantine, Animal and Plant Health Inspection Service, United States Department of Agriculture.


Plum pox. A plant disease caused by plum pox potyvirus that can affect many Prunus (stone fruit) species, including, but not limited to, almond, apricot, nectarine, peach, plum, and sweet and tart cherry. The strain of plum pox in Pennsylvania does not affect cherry trees.


Quarantined area. Any State, or any portion of a State, listed in accordance with § 301.74–3(a) or otherwise designated as a quarantined area in accordance with § 301.74–3(b).


Regulated article. Any article identified as a regulated article under § 301.74–2 as follows: listed as of January 30, 2023, added in accordance with § 301.74–2(a)(1) and (2), or otherwise designated in accordance with § 301.74–2(b), based on its susceptibility to the form or strain of plum pox detected in the quarantined area.


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States.


[74 FR 27073, June 8, 2009, as amended at 87 FR 80008, Dec. 29, 2022]


§ 301.74-2 Regulated articles.

(a) The Administrator has determined that certain articles present a risk of spreading plum pox. A list of all such articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/plum-pox/plumpox. Lists of all regulated articles may also be obtained by request from any local Plant Protection and Quarantine (PPQ) office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(1) If the Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/plum-pox/plumpox presents a risk of spreading plum pox, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for plum pox. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for plum pox and listing it.


(b) An inspector may designate any other product or article as a regulated article, if the inspector determines it to present a risk of spreading plum pox, and after the inspector notifies the person in possession of the product or article that it is subject to the restrictions in this subpart.


[87 FR 80008, Dec. 29, 2022]


§ 301.74-3 Quarantined areas.

(a) Except as otherwise provided in paragraph (b) of this section, the Administrator will list as a quarantined area each State, or each portion of a State, in which plum pox has been detected through inspection and laboratory testing, or in which the Administrator has reason to believe that plum pox is present, or that the Administrator considers necessary to quarantine because of its inseparability for quarantine enforcement purposes from localities in which plum pox has been detected. The Administrator will publish a list of all quarantined areas (the quarantine list) on the PPQ website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/plum-pox/plumpox. The list will include the date that the list was last updated. Lists of all quarantined areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of quarantined areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined areas. Less than an entire State will be designated as a quarantined area only if the Administrator determines that:


(1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and


(2) The designation of less than an entire State as a quarantined area will be adequate to prevent the interstate spread of plum pox.


(b) The Administrator or an inspector may temporarily designate any nonquarantined area in a State as a quarantined area in accordance with paragraph (a) of this section. The Administrator will give a copy of this subpart along with a written notice for the temporary designation to the owner or person in possession of the nonquarantined area. Thereafter, the interstate movement of any regulated article from an area temporarily designated as a quarantined area will be subject to this subpart. As soon as practicable, this area will be added to the quarantine list or the designation will be terminated by the Administrator or an inspector. The owner or person in possession of an area for which the quarantine designation is terminated will be given notice of the termination as soon as practicable.


[87 FR 80008, Dec. 29, 2022]


§ 301.74-4 Conditions governing the interstate movement of regulated articles from quarantined areas.

The interstate movement of any regulated article from a quarantined area
1
is prohibited except when:




1 Requirements under all other applicable Federal domestic plant quarantines and regulations must also be met.


(a) The regulated article is moved by the United States Department of Agriculture:


(1) For an experimental or scientific purpose;


(2) Pursuant to a Departmental permit issued by the Administrator for the regulated article;


(3) Under conditions specified on the Departmental permit and found by the Administrator to be adequate to prevent the spread of plum pox; and


(4) With a tag or label bearing the number of the Departmental permit issued for the regulated article attached to the outside of the container of the regulated article or attached to the regulated article itself if not in a container; or


(b) The regulated article originated outside the quarantined area and:


(1) Is moved in an enclosed vehicle or is completely enclosed by a covering (such as canvas, plastic, or other closely woven cloth) adequate to prevent access by aphids or other transmission agents of plum pox while in the quarantined area;


(2) The regulated article’s point of origin is indicated on the waybill; and


(3) The regulated article must not be uncovered, unpacked, or unloaded while moving through the quarantined area.


[74 FR 27073, June 8, 2009, as amended at 87 FR 80009, Dec. 29, 2022]


§ 301.74-5 Compensation.

(a) Eligibility. The following individuals are eligible to receive compensation from the U.S. Department of Agriculture to mitigate losses or expenses incurred because of the plum pox quarantine and emergency actions:


(1) Owners of commercial stone fruit orchards. Owners of commercial stone fruit orchards are eligible to receive compensation for losses associated with the destruction of trees in order to control plum pox pursuant to an emergency action notification issued by the Animal and Plant Health Inspection Service (APHIS).


(i) Direct marketers. Orchard owners eligible for compensation under this paragraph who market all fruit they produce under the conditions described in this paragraph may receive compensation at the rates specified in paragraph (b)(1)(i) of this section. In order to be eligible to receive compensation at the rates specified in paragraph (b)(1)(i) of this section, orchard owners must have marketed fruit produced in orchards subsequently destroyed because of plum pox under the following conditions:


(A) The fruit must have been sold exclusively at farmers markets or similar outlets that require orchard owners to sell only fruit that they produce;


(B) The fruit must not have been marketed wholesale or at reduced prices in bulk to supermarkets or other retail outlets;


(C) The fruit must have been marketed directly to consumers; and


(D) Orchard owners must have records documenting that they have met the requirements of this section, and must submit those records to APHIS as part of their application submitted in accordance with paragraph (c) of this section.


(ii) All other orchard owners. Orchard owners eligible for compensation under this paragraph who do not meet the requirements of paragraph (a)(1)(i) of this section are eligible for compensation only in accordance with paragraph (b)(1)(ii) of this section.


(2) Owners of fruit tree nurseries. The owner of a fruit tree nursery will be eligible to receive compensation for net revenue losses associated with the prohibition on the movement or sale of nursery stock as a result of the issuance of an emergency action notification by APHIS with respect to regulated articles within the nursery in order to control plum pox.


(3) Owners of non-fruit-bearing ornamental tree nurseries. The owner of a non-fruit-bearing ornamental tree nursery will be eligible to receive compensation for net revenue losses associated with the prohibition on the movement or sale of nursery stock as a result of the issuance of an emergency action notification by APHIS with respect to regulated articles within the nursery in order to control plum pox.


(b) Amount of payment. Upon approval of a claim submitted in accordance with paragraph (c) of this section, individuals eligible for compensation under paragraph (a) of this section will be paid at the rates indicated in this paragraph.


(1) Owners of commercial stone fruit orchards—(i) Direct marketers. Owners of commercial stone fruit orchards who APHIS has determined meet the eligibility requirements of paragraph (a)(1)(i) of this section will be compensated according to the following table on a per-acre basis at a rate based on the age of the trees destroyed. If the trees were not destroyed by the date specified on the emergency action notification, the compensation payment will be reduced by 10 percent and by any tree removal costs incurred by the State or the U.S. Department of Agriculture (USDA). The maximum USDA compensation rate is 85 percent of the loss in value, adjusted for any State-provided compensation to ensure total compensation from all sources does not exceed 100 percent of the loss in value.


Age of trees (years)
Maximum compensation

rate ($/acre, equal to 85% of loss in value) based on 3-year fallow period
Maximum additional

compensation ($/acre, equal to 85% of loss in value) for 4th fallow year
Maximum additional

compensation ($/acre, equal to 85% of loss in value) for 5th fallow year
Less than 1$3,302$954$842
111,6391,9361,721
216,3271,9361,721
320,7251,9361,721
426,2221,9361,721
528,8201,9361,721
629,5921,9361,721
729,7431,9361,721
829,1961,9361,721
928,5811,9361,721
1027,8891,9361,721
1127,1101,9361,721
1226,2341,9361,721
1325,2481,9361,721
1424,1401,9361,721
1522,8921,9361,721
1621,4891,9361,721
1720,0541,9361,721
1818,5821,9361,721
1917,0701,9361,721
2015,5131,9361,721
2113,9051,9361,721
2212,3821,9361,721
2310,9551,9361,721
249,6381,9361,721
258,4421,9361,721

(ii) All other orchard owners. Owners of commercial stone fruit orchards who meet the eligibility requirements of paragraph (a)(1)(ii) of this section will be compensated according to the following table on a per-acre basis at a rate based on the age of the trees destroyed. If the trees were not destroyed by the date specified on the emergency action notification, the compensation payment will be reduced by 10 percent and by any tree removal costs incurred by the State or the U.S. Department of Agriculture (USDA). The maximum USDA compensation rate is 85 percent of the loss in value, adjusted for any State-provided compensation to ensure total compensation from all sources does not exceed 100 percent of the loss in value.


Age of trees (years)
Maximum compensation

rate ($/acre, equal to 85% of loss in value) based on 3-year fallow period
Maximum additional

compensation ($/acre, equal to 85% of loss in value) for 4th fallow year
Maximum additional

compensation ($/acre, equal to 85% of loss in value) for 5th fallow year
Less than 1$3,302$954$842
16,9591,072953
210,0901,072953
312,7371,072953
416,2631,072953
517,9291,072953
618,4231,072953
718,5191,072953
818,1671,072953
917,7711,072953
1017,3251,072953
1116,8231,072953
1216,2591,072953
1315,6251,072953
1414,9111,072953
1514,1071,072953
1613,2041,072953
1712,2791,072953
1811,3311,072953
1910,3561,072953
209,3521,072953
218,3141,072953
227,3301,072953
236,4081,072953
245,5541,072953
254,7771,072953

(2) Owners of fruit tree nurseries. Owners of fruit tree nurseries who meet the eligibility requirements of paragraph (a)(2) of this section will be compensated for up to 85 percent of the net revenues lost from their first and second year crops as the result of the issuance of an emergency action notification which will be calculated as follows:


(i) First year crop. The net revenue loss for trees that were expected to be sold in the year during which the emergency action notification was issued (i.e., the first year crop) will be calculated as (expected number of trees to be sold) × (average price per tree) − (digging, grading, and storage costs) = net revenue lost for first year crop, where:


(A) The expected number of trees to be sold equals the number of trees in the field minus 2 percent culls minus 3 percent unsold trees; and


(B) The average price per tree is $5.22 for plum and apricot trees and $3.69 for peach and nectarine trees; and


(C) Digging, grading and storage costs are $0.10 per tree.


(ii) Second year crop. The net revenue loss for trees that would be expected to be sold in the year following the year during which the emergency action notification was issued (i.e., the second year crop) will be calculated as (expected number of trees to be sold) × (average price per tree) = net revenue lost for second year crop, where:


(A) The expected number of trees to be sold equals the number of budded trees in the field minus 20 percent death loss minus 2 percent culls; and


(B) The average price per tree is $5.22 for plum and apricot trees and $3.69 for peach and nectarine trees.


(3) Owners of non-fruit-bearing ornamental tree nurseries. Owners of non-fruit-bearing ornamental tree nurseries who meet the eligibility requirements of paragraph (a)(3) of this section will be compensated for up to 85 percent of the net revenues lost from their crop as the result of the issuance of an emergency action notification. Net revenues will be calculated using an average price of $10.80 per tree or shrub.


(c) How to apply. The form necessary to submit a claim for compensation may be obtained from the National Director of the Plum Pox Eradication Program contact listed at http://www.aphis.usda.gov/plant_health/plant_pest_info/plum_pox/index.shtml. Claims for trees or nursery stock destroyed on or before February 3, 2012 must be received within 60 days after February 3, 2012. Claims for trees or nursery stock destroyed after February 3, 2012 must be received within 60 days after the destruction of the trees or nursery stock. Claims must be submitted as follows:


(1) Claims by owners of stone fruit orchards who are direct marketers. The completed application must be accompanied by:


(i) A copy of the emergency action notification ordering the destruction of the trees and its accompanying inventory that describes the acreage and ages of trees removed;


(ii) Documentation verifying that the destruction of trees has been completed and the date of that destruction; and


(iii) Records documenting that the grower meets the eligibility requirements of paragraph (a)(1)(i) of this section.


(2) Claims by owners of commercial stone fruit orchards who are not direct marketers. The completed application must be accompanied by a copy of the emergency action notification ordering the destruction of the trees, its accompanying inventory that describes the acreage and ages of trees removed, and documentation verifying that the destruction of trees has been completed and the date of that destruction.


(3) Claims by owners of fruit tree nurseries and owners of non-fruit-bearing ornamental tree nurseries. The completed application must be accompanied by a copy of the order prohibiting the sale or movement of the nursery stock, its accompanying inventory that describes the total number of trees and the age and variety, and documentation describing the final disposition of the nursery stock.


(d) Replanting. Trees of susceptible Prunus species (i.e., Prunus species identified as regulated articles) may not be replanted on premises within a contiguous quarantined area until 3 years from the date the last trees within that area were destroyed because of plum pox pursuant to an emergency action notification issued by APHIS.


(Approved by the Office of Management and Budget under control numbers 0579–0159 and 0579–0251)

[65 FR 55435, Sept. 14, 2000, as amended at 69 FR 30816, June 1, 2004; 77 FR 5383, Feb. 3, 2012]


Subpart M—Citrus Canker


Source:50 FR 51231, Dec. 13, 1985, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

Notice of Quarantine and Regulations

§ 301.75-1 Definitions.

ACC coverage. The crop insurance coverage against Asiatic citrus canker (ACC) provided under the Florida Fruit Tree Pilot Crop Insurance Program authorized by the Federal Crop Insurance Corporation.


Administrator. The Administrator of the Animal and Plant Health Inspection Service or any individual authorized to act for the Administrator.


Animal and Plant Health Inspection Service. The Animal and Plant Health Inspection Service of the United States Department of Agriculture.


Budded citrus nursery stock. Liners or rootstock citrus plants that have been grafted with a portion of a stem or branch with a vegetative bud (also known as budwood) that are maintained 1 month after grafting or until the plant reaches marketability.


Budded container/greenhouse grown citrus plants. Individual, budded citrus nursery stock maintained in climate-controlled greenhouses in 4-or 6-inch diameter pots until it is sold for commercial use.


Budded field grown citrus plants. Individual, budded citrus nursery stock maintained in the fields until it is sold for commercial use.


Certificate. An official stamp, form, or other document of the United States Department of Agriculture authorizing the interstate movement of a regulated article from a quarantined area into any area of the United States.


Certified citrus nursery stock. Citrus nursery stock, such as trees or plants, grown at a nursery that is in compliance with State certification requirements and approved for producing citrus nursery stock for commercial sale.


Citrus canker. A plant disease caused by strains of the bacterium Xanthomonas citri. subsp. citri.


Commercial citrus grove. An establishment maintained for the primary purpose of producing citrus fruit for commercial sale.


Commercial citrus nursery. An establishment engaged in, but not limited to, the production of certified citrus nursery stock, including plants for planting or replanting in commercial groves or for wholesale or retail sales.


Commercial citrus-producing area. Any area designated as a commercial citrus-producing area in accordance with § 301.75–5.


Commercial packinghouse. An establishment in which space and equipment are maintained for the primary purpose of disinfecting and packing citrus fruit for commercial sale. A commercial packinghouse must also be licensed, registered, or certified for handling citrus fruit with the State in which it operates and meet all the requirements for the license, registration, or certification that it holds.


Compliance agreement. A written agreement between the Animal and Plant Health Inspection Service and a person engaged in the business of growing, maintaining, processing, handling, packing, or moving regulated articles for interstate movement, in which the person pledges to comply with this subpart.


Departmental permit. An official document of the United States Department of Agriculture authorizing the movement of a regulated article from a quarantined area.


Departmental tag or label. An official tag or label of the United States Department of Agriculture, which, attached to a regulated article or its container, indicates that the regulated article is eligible for interstate movement with a Departmental permit.


Exposed. Determined by an inspector to be at risk for developing citrus canker because of proximity during the past 2 years to infected plants, or to personnel, vehicles, equipment, or other articles that may have been contaminated with bacteria that cause citrus canker.


Grove. Any tree or stand of trees maintained to produce fruit and separated from other trees by a boundary, such as a fence, stream, road, canal, irrigation ditch, hedgerow, open space, or sign or marker denoting change of fruit variety.


Infected. Containing bacteria that cause citrus canker.


Infestation. The presence of a plant or plants infected with citrus canker at a particular location, except when the plant or plants contracted the infection at a previous location and the infection has not spread to any other plant at the present location.


Inspector. An individual authorized by the Administrator to perform the specified duties.


Interstate. From any State into or through any other State.


Limited permit. An official stamp, form, or other document of the United States Department of Agriculture authorizing the interstate movement of a regulated article from a quarantined area, but restricting the areas of the United States into which the regulated article may be moved.


Liner or rootstock. Culled seedlings in the growing stage prior to the budding process.


Lot. The inspectional unit for fruit composed of a single variety of fruit that has passed through the entire packing process in a single continuous run not to exceed a single workday (i.e., a run started one day and completed the next is considered two lots).


Move. Ship, carry, transport, offer for shipment, receive for shipment, or allow to be transported by any means.


Movement. The act of shipping, carrying, transporting, offering for shipment, receiving for shipment, or allowing to be transported by any means.


Nursery. Any premises, including greenhouses but excluding any grove, at which nursery stock is grown or maintained.


Nursery stock. Living plants and plant parts intended to be planted, to remain planted, or to be replanted.


Person. Any individual, partnership, corporation, company, society, association, or other organized group.


Public order. Either an “Agreement to Destroy and Covenant Not to Sue” signed by the grove owner and the Florida Department of Food and Consumer Services, Division of Plant Industry (DPI), or an “Immediate Final Order” issued by DPI, both of which identify citrus trees infected with or exposed to citrus canker and order their destruction.


Quarantined area. Any area designated as a quarantined area in accordance with § 301.75–4.


Regulated article. Any article identified as a regulated article under § 301.75–3 as follows: listed as of January 30, 2023, added in accordance with § 301.75–3(b), or otherwise designated in accordance with § 301.75–3(c).


Regulated fruit, regulated nursery stock, regulated plant, regulated seed, regulated tree. Any fruit, nursery stock, plant, seed, or tree defined as a regulated article.


Seedlings. Certified citrus seeds densely planted in seed beds and allowed to germinate and grow until their viability as liners or rootstock can be assessed.


State. Each of the 50 States of the United States, the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, the Virgin Islands of the United States, and all other territories and possessions of the United States.


United States. All of the States, the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, the Virgin Islands of the United States, and all other territories and possessions of the United States.


[55 FR 37450, Sept. 11, 1990, as amended at 61 FR 1521, Jan. 22, 1996; 65 FR 61080, Oct. 16, 2000; 66 FR 32717, June 18, 2001; 71 FR 33172, June 8, 2006; 72 FR 13427, Mar. 22, 2007; 72 FR 65203, Nov. 19, 2007; 74 FR 54444, Oct. 22, 2009; 76 FR 23457, Apr. 27, 2011; 87 FR 80009, Dec. 29, 2022; 88 FR 85470, Dec. 8, 2023]


§ 301.75-2 General prohibitions.

(a) Regulated articles may not be moved interstate from a quarantined area except in accordance with a protocol in §§ 301.75–6, 301.75–7, or 301.75–8, or in accordance with § 301.75–4 if less than an entire State is designated as a quarantined area. Regulated articles may be moved in accordance with the regulations in § 301.75–9 for scientific or experimental purposes only.


(b) Regulated articles moved from a quarantined area with a limited permit may not be moved interstate into any commercial citrus-producing area, except as follows: The regulated articles may be moved through a commercial citrus-producing area if they are covered, or enclosed in containers or in a compartment of a vehicle, while in the commercial citrus-producing area, and are not unloaded in the commercial citrus-producing area without the permission of an inspector.


(c) Regulated articles moved interstate with a limited permit to an area of the United States that is not a commercial citrus-producing area may not subsequently be moved interstate into any commercial citrus-producing area.


[55 FR 37450, Sept. 11, 1990; 55 FR 48208, Nov. 19, 1990; 72 FR 13427, Mar. 22, 2007]


§ 301.75-3 Regulated articles.

(a) List of regulated articles. The Administrator has determined that certain articles present a risk of spread of citrus canker. A list of all such regulated articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/citrus/citrus-canker. Lists of all regulated articles may also be obtained by request from any local Plant Protection and Quarantine (PPQ) office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(b) Normal process for designating additional regulated articles. (1) If the Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/citrus/citrus-canker presents a risk of spread of citrus canker, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for citrus canker. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for citrus canker and listing it.


(c) Immediate designation of regulated articles. An inspector may designate any other product, article, or means of conveyance as a regulated article, if the inspector determines that it presents a risk of spread of citrus canker and the person in possession thereof has actual notice that the product, article, or means of conveyance is subject to the provisions of this subpart.


[87 FR 80009, Dec. 29, 2022]


§ 301.75-4 Quarantined areas.

(a) Quarantined areas. The Administrator will list as a quarantined area each State or portion of a State in which an infestation of citrus canker is found. The Administrator will publish a list of all quarantined areas (the quarantine list) on the PPQ website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/citrus/citrus-canker. The list will include the date that the list was last updated. Lists of all quarantined areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of quarantined areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined areas. Less than an entire State will be designated as a quarantined area only if the Administrator determines that:


(1) Survey. No area has been designated a survey area.


(2) Intrastate movement of regulated articles. The State enforces restrictions on the intrastate movement of regulated articles from the quarantined area that are at least as stringent as those on the interstate movement of regulated articles from the quarantined area, except as follows:


(i) Regulated fruit may be moved intrastate from a quarantined area for processing into a product other than fresh fruit if all of the following conditions are met:


(A) The regulated fruit is accompanied by a document that states the location of the grove in which the regulated fruit was produced, the variety and quantity of regulated fruit being moved intrastate, the address to which the regulated fruit will be delivered for processing, and the date the intrastate movement began;


(B) The regulated fruit and any leaves and litter are completely covered, or enclosed in containers or in a compartment of a vehicle, during the intrastate movement;


(C) The vehicles, covers, and any containers used to carry the regulated fruit intrastate are treated in accordance with part 305 of this chapter before leaving the premises where the regulated fruit is unloaded for processing; and


(D) All leaves, litter, and culls collected from the shipment of regulated fruit at the processing facility are either incinerated at the processing facility or buried at a public landfill that is fenced, prohibits the removal of dumped material, and covers dumped material with dirt at the end of every day that dumping occurs.


(ii) Regulated fruit may be moved intrastate from a quarantined area for packing, either for subsequent interstate movement with a limited permit or for export from the United States, if all of the following conditions are met:


(A) The regulated fruit is accompanied by a document that states the location of the grove in which the regulated fruit was produced, the variety and quantity of regulated fruit being moved intrastate, the address to which the regulated fruit will be delivered for packing, and the date the intrastate movement began;


(B) The regulated fruit and any leaves and litter are completely covered, or enclosed in containers or in a compartment of a vehicle, during the intrastate movement;


(C) The vehicles, covers, and any containers used to carry the regulated fruit intrastate are treated in accordance with part 305 of this chapter before leaving the premises where the regulated fruit is unloaded for packing;


(D) Any equipment that comes in contact with the regulated fruit at the packing plant is treated in accordance with part 305 of this chapter before being used to handle any fruit eligible for interstate movement to commercial citrus-producing areas; and


(E) All leaves and litter collected from the shipment of regulated fruit at the packing plant are either incinerated at the packing plant or buried at a public landfill that is fenced, prohibits the removal of dumped material, and covers dumped material with dirt at the end of every day that dumping occurs. All culls collected from the shipment of regulated fruit are either processed into a product other than fresh fruit, incinerated at the packing plant, or buried at a public landfill that is fenced, prohibits the removal of dumped material, and covers dumped material with dirt at the end of every day that dumping occurs. Any culls moved intrastate for processing must be completely covered, or enclosed in containers or in a compartment of a vehicle, during the intrastate movement, and the vehicles, covers, and any containers used to carry the regulated fruit must be treated in accordance with part 305 of this chapter before leaving the premises where the regulated fruit is unloaded for processing.


(iii) Grass, tree, and plant clippings may be moved intrastate from the quarantined area for disposal in a public landfill or for composting in a recycling facility, if all of the following conditions are met:


(A) The public landfill or recycling facility is located within the survey area described in paragraph (d)(1) of this section;


(B) The grass, tree, or plant clippings are completely covered during the movement from the quarantined area to the public landfill or recycling facility; and


(C) Any public landfill used is fenced, prohibits the removal of dumped material, and covers dumped material with dirt at the end of every day that dumping occurs.


(3) Inspections. (i) In the quarantined area, every regulated plant and regulated tree, except indoor houseplants and regulated plants and regulated trees at nurseries, is inspected for citrus canker at least once a year, between May 1 through December 31, by an inspector.


(ii) In the quarantined area, every regulated plant and regulated tree at every nursery containing regulated plants or regulated trees is inspected for citrus canker by an inspector at intervals of no more than 45 days.


(4) Treatment of personnel, vehicles, and equipment. In the quarantined area, all vehicles, equipment, and other articles used in providing inspection, maintenance, harvesting, or related services in any grove containing regulated plants or regulated trees, or in providing landscaping or lawn care services on any premises containing regulated plants or regulated trees, must be treated in accordance with part 305 of this chapter upon leaving the grove or premises. All personnel who enter the grove or premises to provide these services must be treated in accordance with part 305 of this chapter upon leaving the grove or premises.


(5) Destruction of infected plants and trees. No more than 7 days after a State or Federal laboratory confirms that a regulated plant or regulated tree is infected, the State must provide written notice to the owner of the infected plant or infected tree that the infected plant or infected tree must be destroyed. The owner must have the infected plant or infected tree destroyed within 45 days after receiving the written notice.


(b) Designation change. The Administrator may designate any non-quarantined area as a quarantined area in accordance with paragraph (a) of this section upon giving written notice of this designation to the owner or persons in possession of the non-quarantined area. Thereafter, regulated articles may be moved interstate from that area only in accordance with this subpart. As soon as practicable, this area will be added to the quarantine list, or the Administrator will terminate the designation. The owner or person in possession of an area for which designation is terminated will be given written notice as soon as practicable.


(c) Removal of areas from quarantine. An area on the quarantine list will be removed from quarantine if the area has been without infestation for 2 years. The list will be changed, and the public informed of this change, in accordance with the process specified in paragraph (a) of this section.


[87 FR 80009, Dec. 29, 2022]


§ 301.75-5 Commercial citrus-producing areas.

(a) The areas as shown in the following table are designated as commercial citrus-producing areas:


Table 1 to Paragraph (a)

Commercial citrus-producing areas
Alabama.
American Samoa.
Arizona.
California.
Florida.
Guam.
Hawaii.
Louisiana.
Northern Mariana Islands.
Puerto Rico.
Texas.
Virgin Islands of the United States.

(b) The list in paragraph (a) of this section is intended to include jurisdictions which have commercial citrus-producing areas. Less than an entire State may be designated as a commercial citrus-producing area only if the Administrator determines that the area not included as a commercial citrus-producing area does not contain commercial citrus plantings; that the State has adopted and is enforcing a prohibition on the intrastate movement from areas not designated as commercial citrus-producing areas to commercial citrus-producing areas of fruit which are designated as regulated articles and which were moved interstate from a quarantined State pursuant to a limited permit; and that the designation of less than the entire State as a commercial citrus-producing area will otherwise be adequate to prevent the interstate spread of citrus canker.


[50 FR 51231, Dec. 13, 1985, 51 FR 2873, Jan. 22, 1986, as amended at 53 FR 13242, Apr. 22, 1988; 53 FR 44173, Nov. 2, 1988. Redesignated at 55 FR 37450, Sept. 11, 1990; 88 FR 85470, Dec. 8, 2023]


§ 301.75-6 Interstate movement of regulated nursery stock from a quarantined area.

(a) Regulated nursery stock may not be moved interstate from a quarantined area unless such movement is authorized in this section.


(b) Kumquat (Fortunella spp.) plants, with or without fruit attached, may be moved interstate from a quarantined area into any area of the United States except commercial citrus-producing areas if all of the following conditions are met:


(1) The plants are own-root-only and have not been grafted or budded;


(2) The plants are started, are grown, and have been maintained solely at the nursery from which they will be moved interstate.


(3) If the plants are not grown from seed, then the cuttings used for propagation of the plants are taken from plants located on the same nursery premises or from another nursery that is eligible to produce kumquat plants for interstate movement under the requirements of this paragraph (b). Cuttings may not be obtained from properties where citrus canker is present.


(4) All citrus plants at the nursery premises have undergone State inspection and have been found to be free of citrus canker no less than three times. The inspections must be at intervals of 30 to 45 days, with the most recent inspection being within 30 days of the date on which the plants are removed and packed for shipment.


(5) All vehicles, equipment, and other articles used in providing inspection, maintenance, or related services in the nursery must be treated in accordance with part 305 of this chapter before entering the nursery to prevent the introduction of citrus canker. All personnel who enter the nursery to provide these services must be treated in accordance with part 305 of this chapter before entering the nursery to prevent the introduction of citrus canker.


(6) If citrus canker is found in the nursery, all regulated plants and plant material must be removed from the nursery and all areas of the nursery’s facilities where plants are grown and all associated equipment and tools used at the nursery must be treated in accordance with part 305 of this chapter in order for the nursery to be eligible to produce kumquat plants to be moved interstate under this paragraph (b). Fifteen days after these actions are completed, the nursery may receive new kumquat seed or cuttings from a nursery that is eligible to produce kumquat plants for interstate movement under this paragraph (b).


(7) The plants, except for plants that are hermetically sealed in plastic bags before leaving the nursery, are completely enclosed in containers or vehicle compartments during movement through the quarantined area.


(8) The kumquat plants or trees are accompanied by a limited permit issued in accordance with § 301.75–12. The statement “Limited permit: Not for distribution in AZ, CA, HI, LA, TX, and American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and Virgin Islands of the United States” must be displayed on a plastic or metal tag attached to each plant, or on the box or container if the plant is sealed in plastic. In addition, this statement must be displayed on the outside of any shipping containers used to transport these plants, and the limited permit must be attached to the bill of lading or other shipping document that accompanies the plants.


(c) Regulated nursery stock produced in a nursery within a quarantined area may be moved interstate to any area within the United States, if all of the following conditions are met:


(1) The nursery in which the nursery stock is produced has entered into a compliance agreement in which it agrees to meet the relevant construction standards, sourcing and certification requirements, cleaning, disinfecting, and safeguarding requirements, labeling requirements, and recordkeeping and inspection requirements specified in a PPQ protocol document. The protocol document will be provided to the person at the time he or she enters into the compliance agreement.
1
The compliance agreement may also specify additional conditions determined by APHIS to be necessary in order to prevent the dissemination of citrus canker under which the nursery stock must be grown, maintained, and shipped in order to obtain a certificate for its movement. The compliance agreement will also specify that APHIS may amend the agreement.




1 The protocol document is also available on the Internet at http://www.aphis.usda.gov/plant_health/plant_pest_info/citrus/index.shtml and may be obtained from local Plant Protection and Quarantine offices, which are listed in telephone directories.


(2) An inspector has determined that the nursery has adhered to all terms and conditions of the compliance agreement.


(3) The nursery stock is accompanied by a certificate issued in accordance with § 301.75–12.


(4) The nursery stock is completely enclosed in a sealed container that is clearly labeled with the certificate and is moved interstate in that container.


(5) A copy of the certificate is attached to the consignee’s copy of the accompanying waybill.


(d) Regulated nursery stock produced in a nursery located in a quarantined area that is not eligible for movement under paragraph (b) or paragraph (c) of this section may be moved interstate only for immediate export. The regulated nursery stock must be accompanied by a limited permit issued in accordance with § 301.75–12 and must be moved in a container sealed by APHIS directly to the port of export in accordance with the conditions of the limited permit.


(Approved by the Office of Management and Budget under control number 0579–0363)


[72 FR 13427, Mar. 22, 2007, as amended at 74 FR 16104, Apr. 9, 2009; 75 FR 4240, Jan. 26, 2010; 76 FR 23457, Apr. 27, 2011; 88 FR 85470, Dec. 8 2023]


§ 301.75-7 Interstate movement of regulated fruit from a quarantined area.

(a) Regulated fruit produced in a quarantined area or moved into a quarantined area for packing may be moved interstate with a certificate issued and attached in accordance with § 301.75-12 if all of the following conditions are met:


(1) The regulated fruit was packed in a commercial packinghouse whose owner or operator has entered into a compliance agreement with APHIS in accordance with § 301.75-13.


(2) The regulated fruit was treated in accordance with part 305 of this chapter.


(3) The regulated fruit is free of leaves, twigs, and other plant parts, except for stems that are less than 1 inch long and attached to the fruit.


(4) If the fruit is repackaged after being packed in a commercial packinghouse and before it is moved interstate from the quarantined area, the person that repackages the fruit must enter into a compliance agreement with APHIS in accordance with § 301.75-13 and issue and attach a certificate for the interstate movement of the fruit in accordance with § 301.75-12.


(b) Regulated fruit that is not eligible for movement under paragraph (a) of this section may be moved interstate only for immediate export. The regulated fruit must be accompanied by a limited permit issued in accordance with § 301.75-12 and must be moved in a container sealed by APHIS directly to the port of export in accordance with the conditions of the limited permit.


(Approved by the Office of Management and Budget under control number 0579–0363)


[74 FR 54444, Oct. 22, 2009, as amended at 75 FR 4240, Jan. 26, 2010; 88 FR 85470, Dec. 8, 2023]


§ 301.75-8 Interstate movement of regulated seed from a quarantined area.

Regulated seed may be moved interstate from a quarantined area into any area of the United States if all of the following conditions are met:


(a) During the 2 years before the interstate movement, no plants or plant parts infected with or exposed to citrus canker were found in the grove or nursery producing the fruit from which the regulated seed was extracted.


(b) The regulated seed was treated in accordance with part 305 of this chapter.


(c) The regulated seed is accompanied by a certificate issued in accordance with § 301.75–12.


[55 FR 37452, Sept. 11, 1990, as amended at 75 FR 4240, Jan. 26, 2010; 87 FR 80010, Dec. 29, 2022]


§ 301.75-9 Interstate movement of regulated articles from a quarantined area for experimental or scientific purposes.

A regulated article may be moved interstate from a quarantined area if:


(a) Moved by the United States Department of Agriculture for experimental or scientific purposes;


(b) Moved pursuant to a Departmental permit issued for such article by the Administrator;


(c) Moved in accordance with conditions specified on the Departmental permit and determined by the Administrator to be adequate to prevent the spread of citrus canker, i.e., conditions of treatment, processing, growing, shipment, disposal; and


(d) Moved with a Departmental tag or label securely attached to the outside of the container containing the article or securely attached to the article itself if not in a container, with such tag or label bearing a Departmental permit number corresponding to the number of the Departmental permit issued for such article.


[50 FR 51231, Dec. 13, 1985. Redesignated and amended at 55 FR 37450, Sept. 11, 1990]


§ 301.75-10 Interstate movement of regulated articles through a quarantined area.

Any regulated article not produced in a quarantined area may be moved interstate through a quarantined area, without a certificate, limited permit, or Departmental permit, if all of the following conditions are met:


(a) The regulated article is accompanied by either: A receipt showing that the regulated article was purchased outside the quarantined area, or a bill of lading stating the location of the premises where the shipment originated, the type and quantity of regulated articles being moved interstate, and the date the interstate movement began.


(b) The regulated article is moved through the quarantined area without being unloaded, and no regulated article, except regulated fruit that qualifies for interstate movement from the quarantined area in accordance with § 301.75–7, is added to the shipment in the quarantined area.


(c) The regulated article is completely covered, or enclosed in containers or in a compartment of a vehicle, during movement through the quarantined area, except that, covering or enclosure is not required if the regulated article is moved through the quarantined area without stopping, except for refueling or for traffic conditions, such as traffic lights or stop signs.


[55 FR 37452, Sept. 11, 1990, as amended at 87 FR 80010, Dec. 29, 2022]


§ 301.75-11 [Reserved]

§ 301.75-12 Certificates and limited permits.

(a) Issuance and withdrawal. (1) Certificates and limited permits may be issued for the interstate movement of regulated articles only by an inspector or by persons operating under a compliance agreement.


(2) A certificate or limited permit may be withdrawn by an inspector if the inspector determines that any of the applicable requirements of this subpart have not been met. The decision of the inspector and the reason for the withdrawal must be confirmed in writing as promptly as circumstances allow. Any person whose certificate or limited permit is withdrawn may appeal the decision in writing to the Administrator within 10 days after receiving the written notification. The appeal must state all of the facts and reasons upon which the person relies to show that the certificate or limited permit was wrongfully withdrawn. The Administrator must grant or deny the appeal in writing, stating the reasons for the decision, as promptly as circumstances allow. If there is a conflict as to any material fact, a hearing will be held to resolve the conflict. Rules of practice concerning the hearing will be adopted by the Administrator.


(b) Attachment and disposition. (1) Except as provided in § 301.75–6(b)(8) for kumquat plants, or in § 301.75–6(c)(4) through (c)(5) for any regulated nursery stock, certificates and limited permits accompanying regulated articles interstate must be attached during the interstate movement to one of the following:


(i) The outside of the regulated article, if the regulated article is not packed in a container, or


(ii) The outside of the container in which the regulated article is packed, or


(iii) The consignee’s copy of the accompanying waybill, but only if the regulated article is described on the certificate, limited permit, or waybill in a way that allows the regulated article to be identified.


(2) Certificates and limited permits accompanying regulated articles interstate must be given to the consignee at the point of destination.


(Approved by the Office of Management and Budget under control number 0579–0363)


[55 FR 37453, Sept. 11, 1990, as amended at 72 FR 13428, Mar. 22, 2007; 74 FR 16104, Apr. 9, 2009; 76 FR 23457, Apr. 27, 2011; 88 FR 85470, Dec. 8, 2023]


§ 301.75-13 Compliance agreements.

(a) Eligibility. Any person engaged in the business of growing or handling regulated articles for interstate movement may enter into a compliance agreement with the Animal and Plant Health Inspection Service to facilitate the interstate movement of regulated articles in accordance with this subpart. Compliance agreements may be arranged by contacting a local office of Plant Protection and Quarantine, Animal and Plant Health Inspection Service (listed in local telephone directories), or by contacting the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.


(b) Cancellation. Any compliance agreement may be cancelled orally or in writing by an inspector if the inspector finds that the person who entered into the compliance agreement has failed to comply with this subpart, or any term or condition of the compliance agreement itself. If the person is given notice of cancellation orally, written confirmation of the decision and the reasons for it must be provided as promptly as circumstances allow. Any person whose compliance agreement is cancelled may appeal the decision in writing to the Administrator within 10 days after receiving the written notification. The appeal must state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully cancelled. The Administrator must grant or deny the appeal, in writing, stating the reasons for the decision, as promptly as circumstances allow. If there is a conflict as to any material fact, a hearing will be held to resolve the conflict. Rules of practice concerning the hearing will be adopted by the Administrator.


(Approved by the Office of Management and Budget under control number 0579–0363)


[55 FR 37453, Sept. 11, 1990, as amended at 59 FR 67608, Dec. 30, 1994; 76 FR 23457, Apr. 27, 2011; 88 FR 85470, Dec. 8, 2023]


§ 301.75-14 Costs and charges.

The services of the inspector shall be furnished without cost. The United States Department of Agriculture will not be responsible for any costs or charges incident to inspections or compliance with the provisions in this subpart, other than for the services of the inspector.


[50 FR 51231, Dec. 13, 1985. Redesignated at 55 FR 37450, Sept. 11, 1990]


§ 301.75-15 Funds for the replacement of commercial citrus trees.

Subject to the availability of appropriated funds, the owner of a commercial citrus grove may be eligible to receive funds to replace commercial citrus trees in accordance with the provisions of this section.


(a) Eligibility. The owner of a commercial citrus grove may be eligible to receive funds to replace commercial citrus trees removed to control citrus canker if the trees were removed pursuant to a public order between 1986 and 1990 or on or after September 28, 1995.


(b) Tree replacement payments. The owner of a commercial citrus grove who is eligible under paragraph (a) of this section to receive funds to replace commercial citrus trees will, upon approval of an application submitted in accordance with paragraph (c) of this section, receive a payment of $26 per tree up to the following per-acre maximum payments:


Variety
Maximum payment per acre
Grapefruit, red seedless$2,704
Orange, Valencia3,198
Orange, early/midseason/navel3,068
Tangelo2,964
Lime4,004
Other or mixed citrus2,704

(c) How to apply for tree replacement funds. The form necessary to apply for funds to replace commercial citrus trees may be obtained from any local citrus canker eradication program office in Florida, or from the USDA Citrus Canker Eradication Program, 6901 West Sunrise Boulevard, Plantation, FL 33313. The completed application should be accompanied by a copy of the public order directing the destruction of the trees and its accompanying inventory that describes the number and the variety of trees removed. Your completed application must be sent to the USDA Citrus Canker Eradication Program, Attn: Commercial Tree Replacement Program, c/o Division of Plant Industry, 3027 Lake Alfred Road, Winter Haven, FL 33881. Claims for trees destroyed on or before October 16, 2000, must have been received on or before December 15, 2000. Claims for trees destroyed after October 16, 2000, must be received within 60 days after the destruction of the trees. The Administrator may, on a case-by-case basis, approve the consideration of late claims when it appears that the claim was late through no fault of the owner of the trees, in the opinion of the Administrator. However, any request for consideration of a late claim must be submitted to the Administrator on or before August 19, 2002 for trees destroyed on or before August 17, 2001, and within 1 year after the destruction of the trees for trees destroyed after August 17, 2001.


(Approved by the Office of Management and Budget under control number 0579–0163)

[65 FR 61080, Oct. 16, 2000, as amended at 66 FR 43066, Aug. 17, 2001]


§ 301.75-16 Payments for the recovery of lost production income.

Subject to the availability of appropriated funds, the owner of a commercial citrus grove may be eligible to receive payments in accordance with the provisions of this section to recover income from production that was lost as the result of the removal of commercial citrus trees to control citrus canker.


(a) Eligibility. The owner of a commercial citrus grove may be eligible to receive payments to recover income from production that was lost as the result of the removal of commercial citrus trees to control citrus canker if the trees were removed pursuant to a public order between 1986 and 1990 or on or after September 28, 1995.


(b) Calculation of payments. (1) The owner of a commercial citrus grove who is eligible under paragraph (a) of this section to receive payments to recover lost production income will, upon approval of an application submitted in accordance with paragraph (c) of this section, receive a payment calculated using the following rates:


Citrus variety
Payment

(per acre)
Grapefruit$3,342
Orange, Valencia, and tangerine6,446
Orange, navel (includes early and midseason oranges)6,384
Tangelo1,989
Lime6,503
Other or mixed citrus3,342

(2) Payment adjustments. (i) In cases where the owner of a commercial citrus grove had obtained ACC coverage for trees in his or her grove and received crop insurance payments following the destruction of the insured trees, the payment provided for under paragraph (b)(1) of this section will be reduced by the total amount of the crop insurance payments received by the commercial citrus grove’s owner for the insured trees.


(ii) In cases where ACC coverage was available for trees in a commercial citrus grove but the owner of the grove had not obtained ACC coverage for his or her insurable trees, the per-acre payment provided for under paragraph (b)(1) of this section will be reduced by 5 percent.


(c) How to apply for lost production payments. The form necessary to apply for lost production payments may be obtained from any local citrus canker eradication program office in Florida, or from the USDA Citrus Canker Eradication Program, 6901 West Sunrise Boulevard, Plantation, FL 33313. The completed application should be accompanied by a copy of the public order directing the destruction of the trees and its accompanying inventory that describes the acreage, number, and the variety of trees removed. Your completed application must be sent to the USDA Citrus Canker Eradication Program, Attn: Lost Production Payments Program, c/o Division of Plant Industry, 3027 Lake Alfred Road, Winter Haven, FL 33881. Claims for losses attributable to the destruction of trees on or before the effective date of this rule must be received on or before September 17, 2001. Claims for losses attributable to the destruction of trees after the effective date of this rule must be received within 60 days after the destruction of the trees. The Administrator may, on a case-by-case basis, approve the consideration of late claims when the circumstances appear, in the opinion of the Administrator, to warrant such consideration. However, any request for consideration of a late claim must be submitted to the Administrator on or before July 18, 2002 for trees destroyed on or before July 18, 2001, and within 1 year after the destruction of the trees for trees destroyed after July 18, 2001.


[66 FR 32717, June 18, 2001; 66 FR 33740, June 25, 2001; 71 FR 33172, June 8, 2006]


§ 301.75-17 Funds for the replacement of certified citrus nursery stock.

Subject to the availability of appropriated funds, a commercial citrus nursery may be eligible to receive funds to replace certified citrus nursery stock in accordance with the provisions of this section.


(a) Eligibility. A commercial citrus nursery may be eligible to receive funds to replace certified citrus nursery stock removed to control citrus canker if the nursery stock was removed pursuant to a public order after September 30, 2001, and before January 10, 2006.


(b) Certified citrus nursery stock payments. A commercial citrus nursery that is eligible under paragraph (a) of this section to receive funds to replace certified citrus nursery stock will, upon approval of an application submitted in accordance with paragraph (c) of this section, receive a payment calculated using the following rates:


Type of certified nursery stock
Payment

(dollars)
Seedlings0.18/plant.
Liners or rootstock1.50/plant.
Budded field grown citrus plants4.00/plant.
Budded container/greenhouse citrus plants4.50/plant.
Citrus nursery stock in containers for wholesale or retail sale:
1 gallon5.00/container.
3 gallon10.00/container.
5 gallon15.00/container.
7 gallon20.00/container.
Larger than 7 gallon26.00/container.

(c) How to apply for certified nursery stock replacement funds. The form necessary to apply for funds to replace certified nursery stock may be obtained from any local citrus canker eradication program office in Florida, or from the USDA Citrus Canker Eradication Program, 6901 West Sunrise Boulevard, Plantation, FL 33313. The completed application should be accompanied by a copy of the public order directing the destruction of the trees and its accompanying inventory that describes the number and type of the certified nursery stock removed. If the certified nursery stock was planted in pots, the inventory should specify the size of the container. If the certified nursery stock was bare root plants or in a temporary container, the inventory should specify whether the plant was non-budded or budded. The completed application must be sent to the USDA Citrus Canker Eradication Program, Attn: Commercial Compensation, 10300 Sunset Dr., Suite 150, Miami, FL 33173. Claims for certified nursery stock must be received by August 7, 2006.


[71 FR 33172, June 8, 2006]


Subpart N—Citrus Greening and Asian Citrus Psyllid


Source:75 FR 34332, June 17, 2010, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 301.76 Restrictions on the interstate movement of regulated articles.

No person may move interstate from any quarantined area any articles regulated for citrus greening and Asian citrus psyllid, except in accordance with this subpart.
1




1 In order to enforce this section, any properly identified inspector is authorized to stop and inspect persons and means of conveyance and to seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of host articles as provided in sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


§ 301.76-1 Definitions.

Administrator. The Administrator of the Animal and Plant Health Inspection Service or any individual authorized to act for the Administrator.


Animal and Plant Health Inspection Service (APHIS). The Animal and Plant Health Inspection Service of the United States Department of Agriculture.


Asian citrus psyllid. The insect known as Asian citrus psyllid (Diaphorina citri Kuwayama) in any stage of development.


Certificate. A document, stamp, or other means of identification approved by APHIS and issued by an inspector or person operating under a compliance agreement when he or she finds that, because of certain conditions, a regulated article can be moved safely from an area quarantined for Asian citrus psyllid and/or citrus greening without spreading the psyllid or the disease.


Citrus greening. A plant disease, also commonly referred to as Huanglongbing disease of citrus, that is caused by several strains of the uncultured, phloem-limited bacterial pathogen “Candidatus Liberibacter asiaticus”.


Commercial citrus grove. A solid-set planting of trees maintained for the primary purpose of producing citrus fruit for commercial sale.


Compliance agreement. A written agreement between APHIS and a person engaged in the business of growing, maintaining, processing, handling, packing, or moving regulated articles for interstate movement, in which the person agrees to comply with this subpart. For the purposes of this subpart, a memorandum of understanding is considered a compliance agreement.


EPA. The U.S. Environmental Protection Agency.


Established population. Presence of Asian citrus psyllid within an area that the Administrator determines is likely to persist for the foreseeable future.


Inspector. An individual authorized by the Administrator to perform the duties required under this subpart.


Interstate. From any State into or through any other State.


Limited permit. A document issued by an inspector or person operating under a compliance agreement to allow the interstate movement of regulated articles to a specified destination, for specified handling, processing, or utilization.


Moved (move, movement). Shipped, offered for shipment, received for transportation, transported, carried (whether on one’s person or by any other means of conveyance), or allowed to be moved, shipped, transported, or carried. For the purposes of this subpart, movements include any type of shipment, including mail and Internet commerce.


Nursery. Any commercial location where nursery stock is grown, propagated, stored, maintained, or sold, or any location from which nursery stock is distributed.


Nursery stock. Any plants or plant parts, excluding fruit, intended to be planted, to remain planted, or to be replanted. Nursery stock includes, but is not limited to, trees, shrubs, cuttings, grafts, scions, and buds.


Person. Any association, company, corporation, firm, individual, joint stock company, partnership, society, or other entity.


Port. Any place designated by the President, Secretary of the Treasury, or Congress at which a Customs officer is assigned with authority to accept entries of merchandise, to collect duties, and to enforce the various provisions of the Customs and Navigation laws in force at that place.


Quarantined area. Any State or portion of a State designated as a quarantined area for Asian citrus psyllid or citrus greening in accordance with § 301.76-3.


Regulated article. Any article identified as a regulated article under § 301.76–2 as follows: listed as of January 30, 2023, added in accordance with § 301.76–2(b), or otherwise designated in accordance with § 301.76–2(c).


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States.


[75 FR 34332, June 17, 2010, as amended at 77 FR 59712, Oct. 1, 2012; 87 FR 80010, Dec. 29, 2022]


§ 301.76-2 Regulated articles for Asian citrus psyllid and citrus greening.

(a) List of regulated articles. The Administrator has determined that certain articles present a risk of spreading Asian citrus psyllid and/or citrus greening. A list of all such regulated articles is located at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/citrus/acp and www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/citrus/citrus-greening, respectively. The list indicates whether the article is a regulated article for both citrus greening and Asian citrus psyllid, or just one of these two pests. Lists of all regulated articles may also be obtained by request from any local Plant Protection and Quarantine office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(b) Normal process for designating additional regulated articles. (1) If the Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/citrus/acpand/ or www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/citrus/citrus-greeningpresentsariskofspreadingAsiancitruspsyllidand/ or citrus greening, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for either or both of these pests. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article and listing it.


(c) Immediate designation of regulated articles. An inspector may designate any other product, article, or means of conveyance as a regulated article for Asian citrus psyllid and/or citrus greening, if the inspector determines that it presents a risk of spreading these pests, and after the inspector provides written notification to the person in possession of the product, article, or means of conveyance that it is subject to the restrictions of this subpart.


(d) Exemption after certain methods of processing. The Administrator may determine that certain methods of processing render regulated articles such that they no longer present a risk of spreading Asian citrus psyllid or citrus greening. Such methods are found at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/citrus. Articles processed in such a manner are exempt from the regulations in this subpart.


[87 FR 80010, Dec. 29, 2022]


§ 301.76-3 Quarantined areas; citrus greening and Asian citrus psyllid.

(a) The Administrator will designate an area as a quarantined area for citrus greening or as a quarantined area for Asian citrus psyllid in accordance with the criteria listed in paragraph (c) of this section. The Administrator will publish a description of all areas quarantined for citrus greening or Asian citrus psyllid on the Plant Protection and Quarantine (PPQ) Web site: (http://www.aphis.usda.gov/plant_health/plant_pest_info/citrus_greening/index.shtml). The description of each quarantined area will include the date the description was last updated and a description of any changes that have been made to the quarantined area. Lists of all quarantined areas may also be obtained by request from any local office of PPQ; local offices are listed in telephone directories and on the Internet at (http://www.aphis.usda.gov/services/report_pest_disease/report_pest_disease.shtml). After a change is made to the description of quarantined areas, we will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined areas.


(b) Designation of an area less than an entire State as a quarantined area. Less than an entire State will be designated as a quarantined area for citrus greening or the Asian citrus psyllid only if the Administrator determines that:


(1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and


(2) The designation of less than the entire State as a quarantined area will prevent the interstate spread of citrus greening or Asian citrus psyllid.


(c) Criteria for designation of a State, or a portion of a State, as a quarantined area for citrus greening or Asian citrus psyllid. (1) A State, or portion of a State, will be designated as a quarantined area for citrus greening when the presence of citrus greening is confirmed within the area by an APHIS-administered test.


(2) A State, or portion of a State, will be designated as a quarantined area for Asian citrus psyllid in which an established population of Asian citrus psyllids has been detected.


(3) A State, or portion of a State, will be designated as a quarantined area for either citrus greening or Asian citrus psyllid if the Administrator considers it necessary to quarantine the area because of its inseparability for quarantine enforcement purposes from localities in which citrus greening or an established population of Asian citrus psyllids has been found.


§ 301.76-4 Labeling requirements for regulated nursery stock produced within an area quarantined for citrus greening.

(a) Effective September 15, 2010, except as provided in paragraphs (b) and (c) of this section, all regulated nursery stock offered for commercial sale within an area quarantined for citrus greening must have an APHIS-approved plastic or metal tag on which a statement alerting consumers to Federal prohibitions regarding the interstate movement of the article is prominently and legibly displayed. Alternatively, if the article is destined for commercial sale in a box or container, the statement may be printed on the box or container, or printed on a label permanently affixed to the box or container, provided that, in either case, the statement is prominently and legibly displayed. The operator of the site of propagation of the nursery stock and the person offering the plants for commercial sale are jointly responsible for all such labeling.


(b) Nursery stock produced within a quarantined area for planting in a commercial citrus grove within that same area and moved directly to that grove, without movement outside of the quarantined area, may be moved without being labeled in accordance with paragraph (a) of this section.


(c) Nursery stock that will be moved interstate in accordance with § 301.76–7 may be moved without being labeled in accordance with paragraph (a) of this section.


(Approved by the Office of Management and Budget under control number 0579-0363)

[75 FR 34332, June 17, 2010, as amended at 76 FR 23457, Apr. 27, 2011]


§ 301.76-5 General conditions governing the issuance of any certificate or limited permit; provisions for cancellation of a certificate or limited permit.

(a) Certificates. In addition to all other relevant conditions within this subpart, an inspector or person operating under a compliance agreement will issue a certificate only if a regulated article:


(1) Will be moved in compliance with any additional emergency conditions that the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714)
1
to prevent the spread of Asian citrus psyllid; and




1 An inspector may hold seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of plants, plant pests, or other articles in accordance with sections 414, 421, and 423 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


(2) Is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the article.


(b) Limited permits. In addition to all other relevant conditions within this subpart, an inspector or person operating under a compliance agreement may issue a limited permit for the interstate movement of a regulated article only if the regulated article:


(1) Is to be moved interstate to a specified destination for specified handling, processing, or utilization (the destination and other conditions to be listed in the limited permit) and this movement of the regulated article will not result in the spread of citrus greening or the Asian citrus psyllid;


(2) Is to be moved in compliance with any additional emergency conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of citrus greening and the Asian citrus psyllid; and


(3) Is eligible for interstate movement under all other Federal domestic plant quarantines and regulations applicable to the article.


(c) Certificates and limited permits for the interstate movement of a regulated article may be issued by an inspector or person operating under a compliance agreement. A person operating under a compliance agreement may issue a certificate for the interstate movement of a regulated article after he or she has determined that the article is eligible for a certificate in accordance with paragraph (a) of this section and all other relevant conditions of this subpart. A person operating under a compliance agreement may issue a limited permit for interstate movement of a regulated article after he or she has determined that the article is eligible for a limited permit in accordance with paragraph (b) of this section and all other relevant conditions of this subpart.


(d) Any certificate or limited permit that has been issued may be withdrawn, either orally or in writing, by an inspector if he or she determines that the holder of the certificate or limited permit has not complied with all of the provisions in this subpart or has not complied with all the conditions contained in the certificate or limited permit. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal will be confirmed in writing as soon as circumstances allow. Any person whose certificate or limited permit 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 must state all of the facts and reasons upon which the person relies to show that the certificate or limited permit was wrongfully withdrawn. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator.


(e) Unless specific provisions exist in § 301.76-6 or § 301.76-7 to allow the interstate movement of a certain regulated article, the interstate movement of that article is prohibited.


(Approved by the Office of Management and Budget under control number 0579-0363)


[75 FR 34332, June 17, 2010, as amended at 87 FR 80011, Dec. 29, 2022]


§ 301.76-6 Additional conditions for issuance of certificates and limited permits for regulated articles moved interstate from areas quarantined for Asian citrus psyllid, but not for citrus greening.

(a) Additional conditions for issuance of a certificate; any regulated article. In addition to the general conditions for issuance of a certificate contained in § 301.76-5(a), an inspector or person operating under a compliance agreement may issue a certificate for the interstate movement of any regulated article to any State if:


(1) The article is treated with methyl bromide
1
in accordance with 7 CFR part 305 of this chapter.




1 EPA and State and local environmental authorities may restrict the use of methyl bromide on certain articles.


(2) The article is shipped in a container that has been sealed with an agricultural seal placed by an inspector.


(3) The container that will be moved interstate is clearly labeled with the certificate.


(4) A copy of the certificate will be attached to the consignee’s copy of the accompanying waybill.


(b) Additional conditions for issuance of a certificate; regulated nursery stock. In addition to the general conditions for issuance of a certificate contained in § 301.76–5(a), an inspector or person operating under a compliance agreement may issue a certificate for interstate movement of regulated nursery stock to any State if:


(1) The nursery in which the nursery stock is produced has entered into a compliance agreement with APHIS in which it agrees to meet the relevant construction standards, sourcing and certification requirements, cleaning, disinfecting, and safeguarding requirements, labeling requirements, and recordkeeping and inspection requirements specified in a PPQ protocol document. The protocol document will be provided to the person at the time he or she enters into the compliance agreement.
2
The compliance agreement may also specify additional conditions determined by APHIS to be necessary in order to prevent the spread of Asian citrus psyllid under which the nursery stock must be grown, maintained, and shipped in order to obtain a certificate for its movement. The compliance agreement will also specify that APHIS may amend the agreement.




2 The protocol document is also available on the Internet at http://www.aphis.usda.gov/plant_health/plant_pest_info/citrus/index.shtml and may be obtained from local Plant Protection and Quarantine offices, which are listed in telephone directories.


(2) An inspector determines that the nursery has adhered to all terms and conditions of the compliance agreement.


(3) The nursery stock is completely enclosed in a sealed container that is clearly labeled with the certificate and is moved interstate in that container.


(4) A copy of the certificate is attached to the consignee’s copy of the accompanying waybill.


(c) Additional conditions for issuance of a limited permit; regulated nursery stock. (1) Nursery stock that will not be moved through American Samoa, Arizona, California, Florida, Guam, Hawaii, the Northern Mariana Islands, Puerto Rico, Texas, or the U.S. Virgin Islands. In addition to the general conditions for the issuance of a limited permit contained in § 301.76–5(b), an inspector or person operating under a compliance agreement, other than the operator of the nursery in which the nursery stock was produced and his or her employees, may issue a limited permit for the interstate movement of regulated nursery stock through areas of the United States other than American Samoa, Arizona, California, Florida, Guam, Hawaii, Louisiana, the Northern Mariana Islands, Puerto Rico, Texas, or the U.S. Virgin Islands, and to areas of the United States other than those portions of Arizona and California that are not quarantined due to the presence of Asian citrus psyllid or citrus greening, if:


(i) The nursery in which the nursery stock is produced has entered into a compliance agreement with APHIS in accordance with § 301.76–8;


(ii) All citrus nursery stock at the nursery has been inspected by an inspector every 30 days, and any findings of Asian citrus psyllid during an inspection have been reported to APHIS immediately;


(iii) The nursery stock is treated for Asian citrus psyllid with an APHIS-approved soil drench or in-ground granular application no more than 90 days and no fewer than 30 days before shipment, followed by an APHIS-approved foliar spray no more than 10 days before shipment. All treatments must be applied according to their EPA label, including directions on application, restrictions on place of application and other restrictions, and precautions, and including statements pertaining to Worker Protection Standards;


(iv) The nursery stock is affixed prior to movement with a plastic or metal tag on which the statement “Limited permit: USDA–APHIS–PPQ. Not for distribution in those portions of AZ and CA not quarantined due to the presence of Asian citrus psyllid or citrus greening” is prominently and legibly displayed on the obverse, and adequate information as determined by APHIS regarding the identity of the nursery stock and its source of production to conduct traceback to the nursery in which the nursery stock was produced is prominently and legibly printed on the reverse. If the nursery stock is destined for movement or sale in boxes or containers, the statement and the identifying information may be printed on the box or container, or printed on a label permanently affixed to the box or container, provided that, in either case, the statement and the identifying information are prominently and legibly displayed;


(v) A copy of the limited permit will be attached to the consignee’s copy of the accompanying waybill; and


(vi) The nursery stock is shipped in accordance with the conditions specified on the limited permit to the destination specified on the permit.


(2) Nursery stock that will be moved through American Samoa, Arizona, California, Florida, Guam, Hawaii, Louisiana, the Northern Mariana Islands, Puerto Rico, Texas, or the U.S. Virgin Islands. In addition to the general conditions for the issuance of a limited permit contained in § 301.76–5(b), an inspector or person operating under a compliance agreement may issue a permit for the interstate movement of regulated nursery stock through American Samoa, Arizona, California, Florida, Guam, Hawaii, Louisiana, the Northern Mariana Islands, Puerto Rico, Texas, or the U.S. Virgin Islands, and to areas of the United States other than those portions of Arizona and California that are not quarantined due to the presence of Asian citrus psyllid or citrus greening, if:


(i) All conditions for movement of regulated nursery stock in paragraphs (c)(1)(i) through (iv) of this section are fulfilled;


(ii) The nursery stock is inspected by an inspector on the date of shipment and found free of Asian citrus psyllid;


(iii) The nursery stock is completely enclosed in a container sealed with an agricultural seal and is moved interstate in that container;


(iv) The container prominently and legibly displays the statement and identifying information specified in paragraph (c)(1)(iv) of this section;


(v) The agricultural seal remains intact throughout movement to the destination specified on the limited permit; and


(vi) The agricultural seal is removed at the destination specified on the limited permit by an inspector.


(d) Additional conditions for issuance of a limited permit; regulated articles intended for consumption, as apparel or as a similar personal accessory, or for other decorative use.
3
In addition to the general conditions for issuance of a limited permit contained in § 301.76–5(b), an inspector or person operating under a compliance agreement may issue a limited permit for the interstate movement of regulated articles intended for consumption, as apparel or as a similar personal accessory, or for other decorative use if:




3 Examples of such articles include Bergera (=Murraya) koenigii leaves, as well as Murraya paniculata flowers or foliage.


(1) The articles are treated with irradiation in accordance with part 305 of this chapter at an irradiation facility that is not located in an area quarantined for citrus greening.


(2) The container that will be used to move the articles interstate is clearly labeled with the limited permit, which must contain the name of the State or portion of a State where the articles were produced and a statement that the articles were treated in accordance with 305 of this chapter.


(3) A copy of the limited permit is attached to the consignee’s copy of the accompanying waybill.


(Approved by the Office of Management and Budget under control number 0579–0369)

[75 FR 34332, June 17, 2010, as amended at 76 FR 23457, Apr. 27, 2011; 77 FR 59712, Oct. 1, 2012; 78 FR 63367, Oct. 24, 2013; 87 FR 80011, Dec. 29, 2022]


§ 301.76-7 Additional conditions for issuance of certificates and limited permits for regulated articles moved interstate from areas quarantined for citrus greening.

(a) Additional conditions for the issuance of a certificate; regulated nursery stock produced within a nursery located in the quarantined area. In addition to the general conditions for issuance of a certificate contained in § 301.76–5(a), an inspector or person operating under a compliance agreement may issue a certificate for interstate movement of regulated nursery stock to any State if all of the following conditions are met:


(1) The nursery in which the nursery stock is produced has entered into a compliance agreement with APHIS in which it agrees to meet the relevant construction standards, sourcing and certification requirements, cleaning, disinfecting, and safeguarding requirements, labeling requirements, and recordkeeping and inspection requirements specified in a PPQ protocol document. The protocol document will be provided to the person at the time he or she enters into the compliance agreement.
1
The compliance agreement may also specify additional conditions determined by APHIS to be necessary in order to prevent the dissemination of citrus greening under which the nursery stock must be grown, maintained, and shipped in order to obtain a certificate for its movement. The compliance agreement will also specify that APHIS may amend the agreement.




1 The protocol document is also available on the Internet at http://www.aphis.usda.gov/plant_health/plant_pest_info/citrus/index.shtml and may be obtained from local Plant Protection and Quarantine offices, which are listed in telephone directories.


(2) An inspector has determined that the nursery has adhered to all terms and conditions of the compliance agreement.


(3) The nursery stock is completely enclosed in a sealed container that is clearly labeled with the certificate and is moved interstate in that container.


(4) A copy of the certificate is attached to the consignee’s copy of the accompanying waybill.


(b) Additional conditions for issuance of a limited permit; regulated nursery stock grown, produced, or maintained at a nursery or other facility located in the quarantined area. In addition to the general conditions for issuance of a limited permit contained in § 301.76-5(b), an inspector or person operating under a compliance agreement may issue a limited permit for the interstate movement for immediate export of regulated nursery stock grown, produced, or maintained at a nursery or other facility located in the quarantined area if:


(1) The nursery stock is treated for Asian citrus psyllid with an APHIS-approved soil drench or in-ground granular application, followed by an APHIS-approved foliar spray, in accordance with § 301.76-6(b)(1), or with methyl bromide, in accordance with 305 of this chapter.


(2) The nursery stock is inspected by an inspector in accordance with § 301.76–9 and found free of Asian citrus psyllid, if treated in accordance with § 301.76–6(b)(1).


(3) The nursery stock is affixed prior to movement with a plastic or metal tag on which the statement “Limited permit: USDA-APHIS-PPQ. For immediate export only” is prominently and legibly displayed. If the nursery stock is destined for movement or sale in a box or container, the statement may be printed on the box or container, or printed on a label permanently affixed to the box or container, provided that, in either case, the statement is prominently and legibly displayed.


(4) The nursery stock is accompanied by a copy of this limited permit attached to the consignee’s copy of the waybill.


(5) The nursery stock is moved in accordance with the conditions specified on the limited permit directly to the port of export specified on the limit permit, in a container sealed with an agricultural seal placed by an inspector.


(6) A copy of the limited permit is attached to or legibly printed on this container.


(7) The nursery stock remains in this container, and the container remains sealed, as long as the plants are within the United States.


(c) Except for nursery stock for which a limited permit has been issued in accordance with the conditions of paragraph (a) or (b) of this section, no other regulated article may be moved interstate from an area quarantined for citrus greening.


(Approved by the Office of Management and Budget under control number 0579–0369)

[75 FR 34332, June 17, 2010, as amended at 76 FR 23458, Apr. 27, 2011; 77 FR 59712, Oct. 1, 2012; 87 FR 80011, Dec. 29, 2022]


§ 301.76-8 Compliance agreements and cancellation.

(a) Any person involved in the growing, maintaining, processing, handling, packing, treating, or moving of regulating articles from areas quarantined for citrus greening or Asian citrus psyllid may enter into a compliance agreement when an inspector determines that the person understands this subpart, agrees to comply with its provisions, and agrees to comply with all the provisions contained in the compliance agreement. The person must also agree to maintain and offer for inspection such records as are necessary to demonstrate continual adherence to the requirements of the regulations and the provisions of the compliance agreement.
1




1 Compliance agreement forms are available without charge from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, MD 20737–1236, and from local offices of the Plant Protection and Quarantine offices, which are listed in telephone directories.


(b) Any compliance agreement may be canceled, either orally or in writing, by an inspector whenever the inspector finds that the person who has entered into the compliance agreement has failed to comply with this subpart, or any term or condition of the compliance agreement itself. If the cancellation is oral, the cancellation and the reasons for the cancellation will be confirmed in writing as promptly as circumstances allow. Any person whose compliance agreement has been canceled may appeal the decision, in writing, within 10 days after receiving written notification of the cancellation. The appeal must state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongly canceled. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator.


(Approved by the Office of Management and Budget under control numbers 0579–0363 and 0579–0369)

[75 FR 34332, June 17, 2010, as amended at 76 FR 23457, 23459, Apr. 27, 2011; 77 FR 59712, Oct. 1, 2012; 87 FR 80011, Dec. 29, 2022]


§ 301.76-9 Inspection of regulated nursery stock.

All nursery stock intended for interstate movement for immediate export from an area quarantined for citrus greening, must be inspected by an inspector
1
no more than 72 hours prior to movement. The person who desires to move the articles interstate must notify the inspector as far in advance of the desired interstate movement as possible. The articles must be inspected at the place and in the manner the inspector designates as necessary to comply with this subpart. If the inspector has reason to believe that the interstate movement of the articles may lead to the artificial spread of citrus greening or Asian citrus psyllid, he or she may deny issuance of a limited permit for interstate movement of the article or take other remedial measures to prohibit such spread.




1 Inspectors are assigned to local offices of APHIS, which are listed in local telephone directories. Information concerning local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, MD 20737–1236.


(Approved by the Office of Management and Budget under control number 0579-0363)

[75 FR 34332, June 17, 2010, as amended at 76 FR 23457, 23459, Apr. 27, 2011; 77 FR 59712, Oct. 1, 2012; 87 FR 80011, Dec. 29, 2022]


§ 301.76-10 Attachment and disposition of certificates and limited permits.

(a) A certificate or limited permit required for the interstate movement of a regulated article, or a copy thereof, must, at all times during the interstate movement, be:


(1) Attached to or legibly printed on the outside of the container containing the regulated article or attached to the regulated article itself, if the article is not packed in a container; and


(2) Attached to or legibly printed on the sealed container in which the article is shipped; and


(3) Attached to the consignee’s copy of the accompanying waybill. The host article must be sufficiently described on the certificate or limited permit and on the waybill to identify the article.


(b) The certificate or limited permit for the interstate movement of a host article must be furnished by the carrier or the carrier’s representative to the consignee listed on the certificate or limited permit upon arrival at the location provided on the certificate or limited permit.


§ 301.76-11 Costs and charges.

The services of the inspector during normal business hours (8 a.m. to 4:30 p.m., Monday through Friday, except holidays) will be furnished without cost. APHIS will not be responsible for any costs or charges incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.


Subpart O—Witchweed

Quarantine and Regulations

§ 301.80 Quarantine; restriction on interstate movement of specified regulated articles.

(a) Notice of quarantine. Under the authority of sections 411, 412, 414, and 434 of the Plant Protection Act (7 U.S.C. 7711, 7712, 7714, and 7754), the Secretary of Agriculture quarantines the States of North Carolina and South Carolina in order to prevent the spread of witchweed (Striga spp.), a parasitic plant that causes a dangerous disease of corn, sorghum, and other crops of the grass family and is not widely prevalent or distributed within and throughout the United States. Through the aforementioned authorities, the Secretary imposes a quarantine on the States of North Carolina and South Carolina with respect to the interstate movement from those States of regulated articles, issues regulations in this subpart governing the movement of such articles, and gives notice of this quarantine action.


(b) Quarantine restrictions on the interstate movement of regulated articles. No common carrier or other person shall move interstate from any quarantined State any regulated articles, except in accordance with the conditions prescribed in this subpart.


(c) List of regulated articles. The Deputy Administrator has determined that certain articles present a hazard of spread of witchweed. A list of all such regulated articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/SA_Weeds/SA_Noxious_Weeds_Program. Lists of all regulated articles may also be obtained by request from any local Plant Protection and Quarantine (PPQ) office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(d) Normal process for designating additional regulated articles. (1) If the Deputy Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/SA_Weeds/SA_Noxious_Weeds_Program presents a hazard of spread of witchweed, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for witchweed. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Deputy Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for witchweed and listing it.


(e) Immediate designation of regulated articles. An inspector may designate any other article, product, or means of conveyance as a regulated article, if the inspector determines that it presents a hazard of spread of witchweed, and after the person in possession of the article has been so notified.


[87 FR 80011, Dec. 29, 2022]


§ 301.80-1 Definitions.

Terms used in the singular form in this subpart shall be deemed to import the plural, and vice versa, as the case may demand. The following terms, when used in this subpart, shall be construed, respectively, to mean:


Certificate. A document issued or authorized to be issued under this subpart by an inspector to allow the interstate movement of regulated articles to any destination.


Compliance agreement. A written agreement between a person engaged in growing, handling, or moving regulated articles, and the Plant Protection and Quarantine Programs, wherein the former agrees to comply with the requirements of this subpart identified in the agreement by the inspector who executes the agreement on behalf of the Plant Protection and Quarantine Programs as applicable to the operations of such person.


Deputy Administrator. The Deputy Administrator of the Plant Protection and Quarantine Programs, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or any other officer or employee of said Service to whom authority to act in his stead has been or may hereafter be delegated.


Farm tools. An instrument worked or used by hand, e.g., hoes, rakes, shovels, axes, hammers, and saws.


Generally infested area. Any part of a regulated area not designated as a suppressive area in accordance with § 301.80–2.


Infestation. The presence of witchweed or the existence of circumstances that make it reasonable to believe that witchweed is present.


Inspector. Any employee of the Plant Protection and Quarantine Programs, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or other person, authorized by the Deputy Administrator to enforce the provisions of the quarantine and regulations in this subpart.


Interstate. From any State into or through any other State.


Limited permit. A document issued or authorized to be issued by an inspector to allow the interstate movement of noncertifiable regulated articles to a specified destination for limited handling, utilization, or processing, or for treatment.


Mechanized cultivating equipment; and mechanized harvesting equipment. Mechanized equipment used for soil tillage, including tillage attachments for farm tractors, e.g., tractors, disks, plows, harrows, planters, and subsoilers; mechanized equipment used for harvesting purposes, e.g., mechanical cotton harvesters, hay balers, corn pickers, and combines.


Mechanized soil-moving equipment. Mechanized equipment used to move or transport soil, e.g., draglines, bulldozers, road scrapers, and dumptrucks.


Moved (movement, move). 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 by any means. “Movement” and “move” shall be construed accordingly.


Person. Any individual, corporation, company, society, or association, or other organized group of any of the foregoing.


Plant Protection and Quarantine Programs. The organizational unit with the Animal and Plant Health Inspection Service, U.S. Department of Agriculture, delegated responsibility for enforcing provisions of the Plant Protection Act and related legislation, quarantines, and regulations.


Regulated area. Any quarantined State, or any portion thereof, designated as a regulated area in accordance with § 301.80–2.


Regulated articles. Any article identified as a regulated article under § 301.80 as follows: listed as of January 30, 2023, added in accordance with § 301.80(d), or otherwise designated in accordance with § 301.80(e).


Restricted destination permit. A document issued or authorized to be issued by an inspector to allow the interstate movement of regulated articles not certifiable under all applicable Federal domestic plant quarantines to a specified destination for other than scientific purposes.


Scientific permit. A document issued by the Deputy Administrator to allow the interstate movement to a specified destination of regulated articles for scientific purposes.


Soil. That part of the upper layer of earth in which plants can grow.


State. Any State, territory, or district of the United States, including Puerto Rico.


Suppressive area. That portion of a regulated area where eradication of infestation is undertaken as an objective.


Treatment Manual. The provisions currently contained in the “Manual of Administratively Authorized Procedures to be Used Under the Witchweed Quarantine” and the “Fumigation Procedures Manual” and any amendments thereto.
1




1 Pamphlets containing such provisions are available upon request to the Deputy Administrator, Plant Protection and Quarantine Programs, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, Washington, DC 20250, or from an inspector.


Witchweed. Parasitic plants of the genus Striga and reproductive parts thereof, including seeds.


[41 FR 27372, July 2, 1976, as amended at 66 FR 21052, Apr. 27, 2001; 87 FR 80011, Dec. 29, 2022]


§ 301.80-2 Authorization to designate, and terminate designation of, regulated areas and suppressive or generally infested areas; and to exempt articles from certification, permit, or other requirements.

(a) List of regulated areas and suppressive or generally infested areas. The Deputy Administrator will list as a regulated area each quarantined State, or portion of a State, in which witchweed has been found or in which there is reason to believe that witchweed is present or which it is deemed necessary to regulate because of its proximity to infestation or its inseparability for quarantine enforcement purposes from infested localities. The Deputy Administrator may divide any regulated area into a suppressive area and generally infested area in accordance with definitions of these terms in § 301.80–1. The Deputy Administrator will publish a list of all regulated areas (the regulated areas list) on the PPQ website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/SA_Weeds/SA_Noxious_Weeds_Program. The list will include the date that the list was last updated. Lists of all regulated areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of regulated areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the regulated areas. Less than an entire quarantined State will be designated as a regulated area only if the Deputy Administrator determines that:


(1) The State has adopted and is enforcing a quarantine which imposes restrictions on the intrastate movement of the regulated articles which are substantially the same as those which are imposed with respect to the interstate movement of such articles under this subpart; and


(2) The designation of less than the entire State as a regulated area will otherwise be adequate to prevent the interstate spread of witchweed.


(b) Temporary designation of regulated areas and suppressive or generally infested areas. The Deputy Administrator or an authorized inspector may temporarily designate any other premises in a quarantined State as a regulated area and may designate the regulated area or portions thereof as a suppressive or generally infested area, in accordance with the criteria specified in paragraph (a) of this section for designating such area, by serving written notice thereof on the owner or person in possession of such premises, and thereafter the interstate movement of regulated articles from such premises by any person having notice of the designation shall be subject to the applicable provisions of this subpart. As soon as practicable, such premises shall be added to the regulated areas list.


(c) Termination of designation as a regulated area and a suppressive or generally infested area. The Deputy Administrator shall terminate the designation provided for under paragraph (a) of this section of any area designated as a regulated area, or a suppressive or a generally infested area within a regulated area, when the Deputy Administrator determines that such designation is no longer required under the criteria specified in paragraph (a) of this section. Notification of this change in the list of regulated areas, or suppressive or generally infested areas within a regulated area, will be made in accordance with the process set forth in paragraph (a) of this section. The Deputy Administrator or an inspector shall terminate the designation provided for under paragraph (b) of this section of any premises designated as a regulated area or a suppressive or a generally infested area when the Deputy Administrator determines that such designation is no longer required under the criteria specified in paragraph (a) of this section, and notice thereof shall be given to the owner or person in possession of the premises.


(d) Exemption of articles from certification, permit, or other requirements. The Deputy Administrator may determine that a regulated article has been produced, processed, cleaned, or otherwise handled in a manner that is sufficient to allow the article to move interstate without hazard of spread of witchweed, provided that the article is not exposed to infestation after production, processing, cleaning, or other handling. The Deputy Administrator may also determine that a regulated article’s intended use is such that it may be moved interstate without hazard of spread of witchweed. Such articles are exempt from the restrictions of this subpart. The list of regulated articles at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/SA_Weeds/SA_Noxious_Weeds_Program is annotated to indicate the exemptions under this subpart.


[87 FR 80012, Dec. 29, 2022]


§ 301.80-2a [Reserved]

§ 301.80-2b [Reserved]

§ 301.80-3 Conditions governing the interstate movement of regulated articles from quarantined States.

(a) Any regulated articles, except soil samples for processing, testing, or analysis, may be moved interstate from any quarantined State under the following conditions:
1


(1) With certificate or permit issued and attached in accordance with §§ 301.80–4 and 301.80–7, if moved:


(i) From any generally infested area or any suppressive area into or through any point outside of the regulated areas; or


(ii) From any generally infested area into or through any suppressive area; or


(iii) Between any noncontiguous suppressive areas; or


(iv) Between contiguous suppressive areas when it is determined by an inspector that the regulated articles present a hazard of the spread of the witchweed and the person in possession thereof has been so notified; or


(v) Through or reshipped from any regulated area when such movement is not authorized under paragraph (a)(2)(v) of this section; or


(2) Without certificate or permit if moved:


(i) From any regulated area under the provisions of § 301.80–2 which exempt certain articles from certificate and permit requirements; or


(ii) From a generally infested area to a contiguous generally infested area; or


(iii) From a suppressive area to a contiguous generally infested area; or


(iv) Between contiguous suppressive areas unless the person in possession of the articles has been notified by an inspector that a hazard of spread of the witchweed exists; or


(v) Through or reshipped from any regulated area if the articles originated outside of any regulated area and if the point of origin of the articles is clearly indicated, their identity has been maintained, and they have been safeguarded against infestation while in the regulated area in a manner satisfactory to the inspector; or


(3) From any area outside the regulated areas, if moved:


(i) With a certificate or permit attached; or


(ii) Without a certificate or permit, if:


(A) The regulated articles are exempt from certification and permit requirements under the provisions of § 301.80–2; or


(B) The point of origin of such movement is clearly indicated on the articles or shipping document which accompanies the articles and if the movement is not made through any regulated area.


(b) Unless specifically authorized by the Deputy Administrator in emergency situations, soil samples for processing, testing, or analysis may be moved interstate from any regulated area only to laboratories approved
2
by the Deputy Administrator. A certificate or permit will not be required to be attached to such soil samples except in those emergency situations where the Deputy Administrator has authorized such movement to another destination with a certificate or permit issued and attached in accordance with §§ 301.80–4(d) and 301.80–7. Soil samples originating in areas outside of the regulated areas will not require such a certificate or permit and their movement is not restricted to approved laboratories if the point of origin of such samples is clearly indicated on the articles or shipping document which accompanies the articles and if the movement is not made through any regulated area.




2 Provisions for laboratory approval may be obtained from your State’s State Plant Health Director. Contact information can be found at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/CT_SPHD.


[41 FR 27373, July 2, 1976, as amended at 87 FR 80012, Dec. 29, 2022]


§ 301.80-4 Issuance and cancellation of certificates and permits.

(a) Certificates may be issued for any regulated articles (except soil samples for processing, testing, or analysis) by an inspector if he determines that they are eligible for certification for movement to any destination under all Federal domestic plant quarantines applicable to such articles and:


(1) Have originated in noninfested premises in a regulated area and have not been exposed to infestation while within the regulated areas; or


(2) Have been treated to destroy infestation in accordance with the treatment manual; or


(3) Have been grown, produced, manufactured, stored, or handled in such a manner that no infestation would be transmitted thereby.


(b) Limited permits may be issued by an inspector to allow interstate movement of regulated articles (except soil samples for processing, testing, or analysis) not eligible for certification under this subpart, to specified destinations for limited handling, utilization, or processing, or for treatment in accordance with the treatment manual, when upon evaluation of the circumstances involved in each specific case he determines that such movement will not result in the spread of witchweed and requirements of other applicable Federal domestic plant quarantines have been met.


(c) Restricted destination permits may be issued by an inspector to allow the interstate movement (for other than scientific purposes) of regulated articles (except soil samples for processing, testing, or analysis) to any destination permitted under all applicable Federal domestic plant quarantines if such articles are not eligible for certification under all such quarantines but would otherwise qualify for certification under this subpart.


(d) Scientific permits to allow the interstate movement of regulated articles, and certificates or permits to allow the movement of soil samples for processing, testing, or analysis in emergency situations, may be issued by the Deputy Administrator under such conditions as may be prescribed in each specific case by the Deputy Administrator to prevent the spread of witchweed.


(e) Certificate, limited permit, and restricted destination permit forms may be issued by an inspector to any person for use by the latter for subsequent shipments of regulated articles (except soil samples for processing, testing, or analysis) provided such person is operating under a compliance agreement; and any such person may be authorized by an inspector to reproduce such forms on shipping containers or otherwise. Any such person may execute and issue the certificate forms, or reproductions of such forms, for the interstate movement of regulated articles from the premises of such person identified in the compliance agreement if such person has treated such regulated articles to destroy infestation in accordance with the treatment manual, and if such regulated articles are eligible for certification for movement to any destination under all Federal domestic plant quarantines applicable to such articles. Any such person may execute and issue the limited permit forms, or reproductions of such forms, for interstate movement of regulated articles to specified destinations when the inspector has made the determinations specified in paragraph (b) of this section. Any such person may execute and issue the restricted destination permit forms, or reproductions of such forms, for the interstate movement of regulated articles not eligible for certification under all Federal domestic plant quarantines applicable to such articles, under the conditions specified in paragraph (c) of this section.


(f) Any certificate or permit which has been issued or authorized may be withdrawn by the inspector or the Deputy Administrator if he determines that the holder thereof has not complied with any condition for the use of such document imposed by this subpart. As soon as possible after such withdrawal, the holder of the certificate or permit shall be notified in writing by the Deputy Administrator or an inspector of the reason therefor and afforded reasonable opportunity to present his views thereon, and if there is a conflict as to any material fact, a hearing shall be held to resolve such conflict.


[35 FR 10553, June 30, 1970, as amended at 36 FR 24917, Dec. 24, 1971; 41 FR 27374, July 2, 1976]


§ 301.80-5 Compliance agreements; and cancellation thereof.

(a) Any person engaged in the business of growing, handling, or moving regulated articles may enter into a compliance agreement to facilitate the movement of such articles under this subpart. Compliance agreement forms may be obtained from the Deputy Administrator or an inspector.


(b) Any compliance agreement may be canceled by the inspector who is supervising its enforcement whenever he finds that such other party has failed to comply with the conditions of the agreement. As soon as possible after such cancellation, such party shall be notified in writing by the Deputy Administrator or an inspector of the reason therefor and afforded reasonable opportunity to present views thereon, and if there is a conflict as to any material fact, a hearing shall be held to resolve such conflict.


[35 FR 10553, June 30, 1970, as amended at 36 FR 24917, Dec. 24, 1971; 41 FR 27374, July 2, 1976]


§ 301.80-6 Assembly and inspection of regulated articles.

Persons (other than those authorized to use certificates, limited permits, or restricted destination permits, or reproductions thereof, under § 301.80–4(e)) who desire to move interstate regulated articles which must be accompanied by a certificate or permit shall, as far in advance as possible, request an inspector to examine the articles prior to movement. Such articles shall be assembled at such points and in such a manner as the inspector designates to facilitate inspection.


[35 FR 10553, June 30, 1970, as amended at 36 FR 24917, Dec. 24, 1971; 41 FR 27374, July 2, 1976]


§ 301.80-7 Attachment and disposition of certificates or permits.

(a) If a certificate or permit is required for the interstate movement of regulated articles, the certificates or permit shall be securely attached to the outside of the container in which such articles are moved except that, where the certificate or permit is attached to the waybill or other shipping document, and the regulated articles are adequately described on the certificate, permit or shipping document, the attachment of the certificate or permit to each container of the articles is not required.


(b) In all cases, certificates or permits shall be furnished by the carrier to the consignee at the destination of the shipment.


[35 FR 10553, June 30, 1970, as amended at 36 FR 24917, Dec. 24, 1971]


§ 301.80-8 Inspection and disposal of regulated articles and pests.

Any properly identified inspector is authorized to stop and inspect, and to seize, destroy, or otherwise dispose of, or require disposal of regulated articles and witchweed as provided in sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754), in accordance with instructions issued by the Deputy Administrator.


[35 FR 10553, June 30, 1970, as amended at 36 FR 24917, Dec. 24, 1971; 41 FR 27374, July 2, 1976; 66 FR 21052, Apr. 27, 2001]


§ 301.80-9 Movement of witchweed.

Regulations requiring a permit for, and otherwise governing the movement of witchweed in interstate or foreign commerce are contained in the Federal plant pest regulations in part 330 of this chapter. Applications for permits for the movement of the pest may be made to the Deputy Administrator.


[35 FR 10553, June 30, 1970, as amended at 36 FR 24917, Dec. 24, 1971]


§ 301.80-10 Nonliability of the Department.

The U.S. Department of Agriculture disclaims liability for any costs incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.


[35 FR 10553, June 30, 1970, as amended at 36 FR 24917, Dec. 24, 1971]


Subpart P—Imported Fire Ant


Source:57 FR 57327, Dec. 4, 1992, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

Quarantine and Regulations

§ 301.81 Restrictions on interstate movement of regulated articles.

No person may move interstate from any quarantined area any regulated article except in accordance with this subpart.


§ 301.81-1 Definitions.

Administrator. The Administrator, Animal and Plant Health Inspection Service, or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service. The Animal and Plant Health Inspection Service of the U.S. Department of Agriculture (APHIS).


Certificate. A document in which an inspector or a person operating under a compliance agreement affirms that a specified regulated article meets the requirements of this subpart and may be moved interstate to any destination.


Compliance agreement. A written agreement between APHIS and a person engaged in growing, handling, or moving regulated articles that are moved interstate, in which the person agrees to comply with the provisions of this subpart and any conditions imposed under this subpart.


Imported fire ant. Living imported fire ants of the species Solenopsis invicta Buren and Solenopsis richteri Forel, and hybrids of these species.


Infestation (infested). The presence of an imported fire ant queen or a reproducing colony of imported fire ants, except that on grass sod and plants with roots and soil attached, an infestation is the presence of any life form of the imported fire ant.


Inspector. An APHIS employee or other person authorized by the Administrator to enforce the provisions of this subpart.


Interstate. From any State into or through any other State.


Limited permit. A document in which an inspector affirms that a specified regulated article not eligible for a certificate is eligible for interstate movement only to a specified destination and in accordance with conditions specified on the permit.


Movement (moved). The act of shipping, transporting, delivering, or receiving for movement, or otherwise aiding, abetting, inducing or causing to be moved.


Noncompacted soil. Soil that can be removed from an article by brisk brushing or washing with water under normal city water pressure (at least 4 gallons per minute at 40 to 50 pounds per square inch through a
1/2-inch orifice).


Person. Any association, company, corporation, firm, individual, joint stock company, partnership, society, or any other legal entity.


Reproducing colony. A combination of one or more imported fire ant workers and one or more of the following immature imported fire ant forms: Eggs, larvae, or pupae.


Soil. Any non-liquid combination of organic and/or inorganic material in which plants can grow.


Soil-moving equipment. Equipment used for moving or transporting soil, including, but not limited to, bulldozers, dump trucks, or road scrapers.


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States.


§ 301.81-2 Regulated articles.

(a) List of regulated articles. The Administrator has determined that certain articles present a risk of spread of the imported fire ant. A list of all such articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/imported-fire-ants/ct_imported_fire_ants. Lists of all regulated articles may also be obtained by request from any local Plant Protection and Quarantine (PPQ) office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(b) Normal process for designating additional regulated articles. (1) If the Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/imported-fire-ants/ct_imported_fire_ants presents a risk of spread of the imported fire ant, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for imported fire ant. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for the imported fire ant and listing it.


(c) Immediate designation of regulated articles. An inspector may designate any other article or means of conveyance as a regulated article if the inspector determines that it presents a risk of spread of the imported fire ant due to its proximity to an infestation of the imported fire ant, and after the inspector provides notification to the person in possession of the article or means of conveyance that it is now regulated under this subpart.


[87 FR 80012, Dec. 29, 2022]


§ 301.81-3 Quarantined areas.

(a) Except as otherwise provided in paragraph (b) of this section, the Administrator will list as a quarantined area each State or portion of a State determined to be infested with the imported fire ant. The Administrator will also list as a quarantined area an area that is uninfested but determined to be in proximity to an infestation or that is determined to be inseparable from an infested locality for quarantine purposes; such a determination will be based on projections of spread of imported fire ant around the periphery of the infestation, as determined by previous years’ surveys; availability of natural habitats and host materials, within the uninfested acreage, suitable for establishment and survival of imported fire ant populations; and the necessity of including uninfested acreage within the quarantined area in order to establish readily identifiable boundaries. The Administrator will publish a list of all quarantined areas (the quarantine list) on the PPQ website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/imported-fire-ants/ct_imported_fire_ants. The list will include the date that the list was last updated. Lists of all quarantined areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of quarantined areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined areas. Less than an entire State will be designated as a quarantined area only if the Administrator determines that:


(1) The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles that are equivalent to the interstate movement restrictions imposed by this subpart; and


(2) Designating less than the entire State as a quarantined area will prevent the spread of the imported fire ant.


(b) The Administrator or an inspector may temporarily designate any nonquarantined area as a quarantined area in accordance with the criteria specified in paragraph (a) of this section. The Administrator will give written notice of this designation to the owner or person in possession of the nonquarantined area, or, in the case of publicly owned land, to the person responsible for the management of the nonquarantined area; thereafter, the interstate movement of any regulated article from an area temporarily designated as a quarantined area is subject to this subpart. As soon as practicable, this area either will be added to the quarantine list, or the Administrator will terminate the designation. The owner or person in possession of, or, in the case of publicly owned land, the person responsible for the management of, an area for which the designation is terminated will be given written notice of the termination as soon as practicable.


[87 FR 80012, Dec. 29, 2022]


§ 301.81-4 Interstate movement of regulated articles from quarantined areas.

(a) Any regulated article may be moved interstate from a quarantined area into or through an area that is not quarantined only if moved under the following conditions:


(1) With a certificate or limited permit issued and attached in accordance with §§ 301.81–5 and 301.81–9;


(2) Without a certificate or limited permit, provided that each of the following conditions is met:


(i) The regulated article was moved into the quarantined area from an area that is not quarantined;


(ii) The point of origin is indicated on a waybill accompanying the regulated article;


(iii) The regulated article is moved through the quarantined area (without stopping except for refueling, or for traffic conditions, such as traffic lights or stop signs), or has been stored, packed, or parked in locations inaccessible to the imported fire ant, or in locations that have been treated in accordance with part 305 of this chapter, while in or moving through any quarantined area; and


(iv) The article has not been combined or commingled with other articles so as to lose its individual identity; or


(3) Without a certificate or limited permit provided the regulated article is a soil sample being moved to a laboratory approved by the Administrator
1
to process, test, or analyze soil samples.




1 Provisions for laboratory approval may be obtained from your State’s State Plant Health Director. Contact information can be found at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/CT_SPHD.


(b) Inspectors are authorized to stop any person or means of conveyance moving in interstate commerce they have probable cause to believe is moving regulated articles, and to inspect the articles being moved and the means of conveyance. Articles found to be infested by an inspector, and articles not in compliance with the regulations in this subpart, may be seized, quarantined, treated, subjected to other remedial measures, destroyed, or otherwise disposed of. Any treatments will be in accordance with part 305 of this chapter.


(Approved by the Office of Management and Budget under control number 0579–0102)

[57 FR 57327, Dec. 4, 1992, as amended at 59 FR 67133, Dec. 29, 1994; 59 FR 67609, Dec. 30, 1994; 67 FR 8464, Feb. 25, 2002; 70 FR 33268, June 7, 2005; 75 FR 4240, Jan. 26, 2010; 87 FR 80013, Dec. 29, 2022]


§ 301.81-5 Issuance of a certificate or limited permit.

(a) An inspector
1
or person operating under a compliance agreement will issue a certificate for the interstate movement of a regulated article approved under such compliance agreement if he or she determines that the regulated article:




1 Inspectors are assigned to local offices of APHIS, which are listed in local telephone directories. Information on local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.


(1) Is eligible for unrestricted movement under all other applicable Federal domestic plant quarantines and regulations;


(2) Is to be moved interstate in compliance with any additional conditions deemed necessary under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of the imported fire ant;
2
and




2 An inspector may hold, seize, quarantine, treat, apply other remedial measures to, destory, or otherwise dispose of plants, plant pests, or other articles in accordance with sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


(3)(i) Is free of an imported fire ant infestation, based on his or her visual examination of the article;


(ii) Has been grown, produced, manufactured, stored, or handled in a manner that would prevent infestation or destroy all life stages of the imported fire ant;


(iii) Has been treated in accordance with part 305 of this chapter; or.


(iv) If the article is containerized nursery stock, it has been produced in accordance with § 301.81-11.


(b) An inspector will issue a limited permit for the interstate movement of a regulated article not eligible for a certificate if the inspector determines that the regulated article:


(1) Is to be moved interstate to a specified destination for specified handling, utilization, or processing (the destination and other conditions to be listed in the limited permit), and this interstate movement will not result in the spread of the imported fire ant because the imported fire ant will be destroyed by the specified handling, utilization, or processing;


(2) Is to be moved interstate in compliance with any conditions that the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of the imported fire ant; and


(3) Is eligible for interstate movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.


(c) An inspector shall issue blank certificates to a person operating under a compliance agreement (in accordance with § 301.81–6) or authorize reproduction of the certificates on shipping containers, or both, as requested by the person operating under the compliance agreement. These certificates may then be completed and used, as needed, for the interstate movement of regulated articles that have met all of the requirements of paragraph (a) of this section.


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

[57 FR 57327, Dec. 4, 1992, as amended at 59 FR 67133, Dec. 29, 1994; 59 FR 67609, Dec. 30, 1994; 66 FR 21052, Apr. 27, 2001; 75 FR 4240, Jan. 26, 2010; 87 FR 80013, Dec. 29, 2022]


§ 301.81-6 Compliance agreements.
–>

Persons who grow, handle, or move regulated articles interstate may enter into a compliance agreement
1
if such persons review with an inspector each stipulation of the compliance agreement, have facilities and equipment to carry out disinfestation procedures or application of chemical materials in accordance with part 305 of this chapter, and meet applicable State training and certification standards as authorized by the Federal Insecticide, Fungicide, and Rodenticide Act (86 Stat. 983; 7 U.S.C. 136b). Any person who enters into a compliance agreement with APHIS must agree to comply with the provisions of this subpart and any conditions imposed under this subpart.




1 Compliance agreements may be initiated by contacting a local office of Plant Protection and Quarantine, which are listed in telephone directories. The addresses and telephone numbers of local offices of Plant Protection and Quarantine may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.


[57 FR 57327, Dec. 4, 1992, as amended at 59 FR 67609, Dec. 30, 1994; 75 FR 4240, Jan. 26, 2010; 87 FR 80013, Dec. 29, 2022]


§ 301.81-7 Cancellation of a certificate, limited permit, or compliance agreement.

Any certificate, limited permit, or compliance agreement may be canceled orally or in writing by an inspector whenever the inspector determines that the holder of the certificate or limited permit, or the person who has entered into the compliance agreement, has not complied with this subpart or any conditions imposed under this subpart. If the cancellation is oral, the cancellation will become effective immediately and the cancellation and the reasons for the cancellation will be confirmed in writing as soon as circumstances allow within 20 days after oral notification of the cancellation. Any person whose certificate, limited permit, or compliance agreement has been canceled may appeal the decision, in writing, within 10 days after receiving the written cancellation notice. The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal. A hearing may be held to resolve any conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator. As soon as practicable, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision.


(Approved by the Office of Management and Budget under control number 0579–0102)

[57 FR 57327, Dec. 4, 1992, as amended at 59 FR 67133, Dec. 29, 1994]


§ 301.81-8 Assembly and inspection of regulated articles.

(a) Persons requiring certification or other services must request the services from an inspector
1
at least 48 hours before the services are needed.




1 See footnote 1 of § 301.81–5(a).


(b) The regulated articles must be assembled at the place and in the manner the inspector designates as necessary to comply with this subpart.


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

[57 FR 57327, Dec. 4, 1992, as amended at 59 FR 67133, Dec. 29, 1994; 87 FR 80013, Dec. 29, 2022]


§ 301.81-9 Attachment and disposition of certificates and limited permits.

(a) The consignor must ensure that the certificate or limited permit authorizing interstate movement of a regulated article is, at all times during interstate movement, attached to:


(1) The outside of the container encasing the regulated article;


(2) The article itself, if it is not in a container; or


(3) The consignee’s copy of the accompanying waybill: Provided, that the descriptions of the regulated article on the certificate or limited permit, and on the waybill, are sufficient to identify the regulated article; and


(b) The carrier must furnish the certificate or limited permit authorizing interstate movement of a regulated article to the consignee at the shipment’s destination.


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

[57 FR 57327, Dec. 4, 1992, as amended at 59 FR 67133, Dec. 29, 1994]


§ 301.81-10 Costs and charges.

The services of the inspector during normal business hours will be furnished without cost to persons requiring the services. The United States Department of Agriculture will not be responsible for any other costs or charges.


§ 301.81-11 Imported fire ant detection, control, exclusion, and enforcement program for nurseries producing containerized plants.

This detection, control, exclusion, and enforcement program is designed to keep nurseries free of the imported fire ant and provides a basis to certify containerized nursery stock for interstate movement. Participating regulated establishments must be operating under a compliance agreement in accordance with § 301.81-6. Such compliance agreements shall state the specific requirements that a shipper agrees to follow to move plants in accordance with the requirements of the program. Certificates and a nursery identification number may be issued to the nursery for use on shipments of regulated articles.


(a) Detection. (1) Nursery owners are required to visually survey their entire premises twice monthly for the presence of imported fire ants.


(2) Nurseries participating in this program will be inspected by Federal or State inspectors at least twice per year. More frequent inspections may be necessary depending upon imported fire ant infestation levels immediately surrounding the nursery, the thoroughness of nursery management in maintaining imported-fire-ant-free premises, and the number of previous detections of imported fire ants in or near containerized plants. Inspections by Federal and State inspectors should be more frequent just before and during the peak shipping season. Any nurseries determined during nursery inspections to have imported fire ant colonies must be immediately treated to the extent necessary to eliminate the colonies.


(b) Control. Nursery plants that are shipped under this program must originate in a nursery that meets the requirements of this section. Nursery owners must implement a treatment program with registered bait and contact insecticides. The premises, including growing and holding areas, must be maintained free of the imported fire ant. As part of this treatment program, all exposed soil surfaces (including sod and mulched areas) on property where plants are grown, potted, stored, handled, loaded, unloaded, or sold must be treated in accordance with part 305 of this chapter at least once every 6 months. The first application must be performed early in the spring. Followup treatments with a contact insecticide in accordance with part 305 of this chapter must be applied to eliminate all remaining colonies.


(c) Exclusion. (1) For plants grown on the premises, treatment of soil or potting media in accordance with part 305 of this chapter prior to planting is required.


(2) For plants received from outside sources, to prevent the spread into a nursery free of the imported fire ant by newly introduced, infested nursery plants, all plants must be:


(i) Obtained from nurseries that comply with the requirements of this section and that operate under a compliance agreement in accordance with § 301.81-6; or


(ii) Treated upon delivery in accordance with part 305 of this chapter, and within the specified number of days be either:


(A) Repotted in treated potting soil media;


(B) Retreated in accordance with part 305 of this chapter at the specified interval; or


(C) Shipped.


(d) Enforcement. (1) The nursery owner must maintain records of the nursery’s surveys and treatments for the imported fire ant. These records must be made available to State and Federal inspectors upon request.


(2) If imported fire ants are detected in nursery stock during an inspection by a Federal or State inspector, issuance of certificates for movement will be suspended until necessary treatments are applied and the plants and nursery premises are determined to be free of the imported fire ant. A Federal or State inspector may declare a nursery to be free of the imported fire ant upon reinspection of the premises. This inspection must be conducted no sooner than 30 days after treatment. During this period, certification may be based upon treatments for plants in accordance with part 305 of this chapter.


(3) Upon notification by the department of agriculture in any State of destination that a confirmed imported fire ant infestation was found on a shipment from a nursery considered free of the imported fire ant, the department of agriculture in the State of origin must cease its certification of shipments from that nursery. An investigation by Federal or State inspectors will commence immediately to determine the probable source of the problem and to ensure that the problem is resolved. If the problem is an infestation, issuance of certification for movement on the basis of imported-fire-ant-free premises will be suspended until treatment and elimination of the infestation is completed. Reinstatement into the program will be granted upon determination that the nursery premises are free of the imported fire ant, and that all other provisions of this subpart are being followed.


(4) In cases where the issuance of certificates is suspended through oral notification, the suspension and the reasons for the suspension will be confirmed in writing within 20 days of the oral notification of the suspension. Any person whose issuance of certificates has been suspended may appeal the decision, in writing, within 10 days after receiving the written suspension notice. The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal. A hearing may be held to resolve any conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator. As soon as practicable, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision.


[75 FR 4240, Jan. 26, 2010]


Subpart Q—Unshu Oranges [Reserved]

Subpart R—Golden Nematode


Source:37 FR 24330, Nov. 16, 1972, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

Quarantine and Regulations

§ 301.85 Quarantine; restriction on interstate movement of specified regulated articles.

(a) Notice of quarantine. Under the authority of sections 411, 412, 414, and 434 of the Plant Protection Act (7 U.S.C. 7711, 7712, 7714, and 7754), the Secretary of Agriculture quarantines the State of New York in order to prevent the spread of the golden nematode (Globodera rostochiensis), which causes a dangerous disease of potatoes and certain other plants and is not widely prevalent or distributed within and throughout the United States. Through the aforementioned authorities, the Secretary imposes a quarantine on the State of New York with respect to the interstate movement from that State of regulated articles, issues regulations in this subpart governing the movement of such articles, and gives notice of this quarantine action.


(b) Quarantine restrictions on the interstate movement of regulated articles. No common carrier or other person shall move interstate from any quarantined State any regulated articles, except in accordance with the conditions prescribed in this subpart.


(c) List of regulated articles. The Deputy Administrator has determined that certain articles present a hazard of spread of golden nematodes. A list of all such regulated articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/golden-nematode/nematodes. Lists of all regulated articles may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(d) Normal process for designating additional regulated articles. (1) If the Deputy Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/golden-nematode/nematodes presents a hazard of spread of golden nematodes, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for golden nematode. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Deputy Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for golden nematode and listing it.


(e) Immediate designation of regulated articles. An inspector may designate any other article, product, or means of conveyance as a regulated article, if the inspector determines that it presents a hazard of spread of golden nematodes, and after the person in possession of the article has been so notified.


[87 FR 80013, Dec. 29, 2022]


§ 301.85-1 Definitions.

Terms used in the singular form in this subpart shall be deemed to import the plural and vice versa, as the case may demand. The following terms, when used in this subpart shall be construed respectively to mean:


Certificate. A document issued or authorized to be issued under this subpart by an inspector to allow the interstate movement of regulated articles to any destination.


Compliance agreement. A written agreement between a person engaged in growing, handling, or moving regulated articles, and the Plant Protection and Quarantine Programs, wherein the former agrees to comply with the requirements of this subpart identified in the agreement by the inspector who executes the agreement on behalf of the Plant Protection and Quarantine Programs as applicable to the operations of such person.


Deputy Administrator. The Deputy Administrator of the Plant Protection and Quarantine Programs, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or any other officer or employee of said service to whom authority to act in his stead has been or may hereafter be delegated.


Farm tools. An instrument worked or used by hand, e.g., hoes, rakes, shovels, axes, hammers, and saws.


Generally infested area. Any part of a regulated area not designated as a suppressive area.


Golden nematode. The nematode known as the golden nematode (Globodera rostochiensis), in any stage of development.


Infestation. The presence of the golden nematode or the existence of circumstances that make it reasonable to believe that the golden nematode is present.


Inspector. Any employee of the Plant Protection and Quarantine Programs, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or other person, authorized by the Deputy Administrator to enforce the provisions of the Quarantine and regulations in this subpart.


Interstate. From any State into or through any other State.


Limited permit. A document issued or authorized to be issued by an inspector to allow the interstate movement of noncertifiable regulated articles to a specified destination for limited handling, utilization or processing or for treatment.


Mechanized cultivating equipment; and mechanized harvesting equipment. Mechanized equipment used for soil tillage, including tillage attachments for farm tractors, e.g., tractors, disks, plows, harrows, planters, and subsoilers; mechanized equipment used for harvesting purposes, e.g., combines, potato conveyors, and harvesters and hay balers.


Mechanized soil-moving equipment. Equipment used for moving or transporting soil, e.g., draglines, bulldozers, dump trucks, road scrapers, etc.


Moved (movement, move). Shipped, deposited for transmission in the mail, otherwise offered for shipment, received for transportation, carried, or otherwise transported, or moved, or allowed to be moved, by mail or otherwise. “Movement” and “move” shall be construed in accordance with this definition.


Person. Any individual, corporation, company, society, or association, or other organized group of any of the foregoing.


Plant Protection and Quarantine Programs. The organizational unit within the Animal and Plant Health Inspection Service, U.S. Department of Agriculture, delegated responsibility for enforcing provisions of the Plant Protection Act and related legislation, quarantines, and regulations.


Regulated area. Any quarantined State, or any portion thereof, listed as a regulated area in accordance with § 301.85–2.


Regulated article. Any article identified as a regulated article under § 301.85 as follows: listed as of January 30, 2023, added in accordance with § 301.85(d), or otherwise designated in accordance with § 301.85(e).


Restricted destination permit. A document issued or authorized to be issued by an inspector to allow the interstate movement of regulated articles not certifiable under all applicable Federal domestic plant quarantines to a specified destination for other than scientific purposes.


Scientific permit. A document issued by the Deputy Administrator to allow the interstate movement to a specified destination of regulated articles for scientific purposes.


Soil. That part of the upper layer of earth in which plants can grow.


State. Any State, territory, or district of the United States, including Puerto Rico.


Suppressive area. That portion of a regulated area where eradication of infestation is undertaken as an objective.


[37 FR 24330, Nov. 16, 1972, as amended at 47 FR 12331, Mar. 23, 1982; 66 FR 21052, Apr. 27, 2001; 67 FR 8465, Feb. 25, 2002; 70 FR 33268, June 7, 2005; 87 FR 80014, Dec. 29, 2022]


§ 301.85-2 Authorization for the Deputy Administrator to list regulated areas and suppressive or generally infested areas.

(a) Criteria for designation and process for listing. The Deputy Administrator will list as a regulated area each State or portion of a State in which golden nematode has been determined to be found or in which there is reason to believe that golden nematode is present, or which it is deemed necessary to regulate because of their proximity to infestation or their inseparability for quarantine enforcement purposes from infested localities. The Deputy Administrator may divide any regulated area into a suppressive area and a generally infested area in accordance with the definitions of these terms in § 301.85–1. The Deputy Administrator will publish a list of all regulated areas, including the suppressive and generally infested areas therein, at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/golden-nematode/nematodes. The list will include the date that the list was last updated. Lists of all regulated areas, including the suppressive and generally infested areas therein, may also be obtained by request from any local Plant Protection and Quarantine office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of regulated areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the regulated areas. Less than an entire State will be designated as a regulated area only if the Deputy Administrator determines that:


(1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and


(2) The designation of less than an entire State as a regulated area will be adequate to prevent the interstate spread of golden nematodes.


(b) Temporary designation of regulated areas and suppressive or generally infested areas. The Deputy Administrator or an authorized inspector may temporarily designate any other premises in a quarantined State as a regulated area and a suppressive or generally infested area, in accordance with the criteria specified in paragraph (a) of this section for listing such area, by serving written notice thereof on the owner or person in possession of such premises, and thereafter the interstate movement of regulated articles from such premises by any person having notice of the designation shall be subject to the applicable provisions of this subpart. As soon as practicable, such premises shall be added to the list of regulated areas if a basis then exists for their designation; otherwise the designation shall be terminated by the Deputy Administrator or an authorized inspector and notice thereof shall be given to the owner or person in possession of the premises.


(c) Termination of designation as a regulated area and a suppressive or generally infested area. The Deputy Administrator shall terminate the designation provided for under paragraph (a) of this section of any area listed as a regulated area and suppressive or generally infested area when he or she determines that such designation is no longer required under the criteria specified in paragraph (a) of this section.


(d) Exemption of articles from certification, permit, or other requirements. The Deputy Administrator may determine that a regulated article has been produced, processed, cleaned, or otherwise handled in a manner that is sufficient to allow the article to move interstate without hazard of spread of golden nematodes, provided that the article is not exposed to infestation after production, processing, cleaning, or other handling. The Deputy Administrator may also determine that a regulated article’s intended use is such that it may be moved interstate without hazard of spread of golden nematodes. Such articles are exempt from the restrictions of this subpart. The list of regulated articles at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/golden-nematode/nematodes is annotated to indicate the exemptions under this subpart.


[87 FR 80014, Dec. 29, 2022]


§ 301.85-2a [Reserved]

§ 301.85-2b [Reserved]

§ 301.85-3 Conditions governing the interstate movement of regulated articles from quarantined States.

(a) Any regulated articles except soil samples for processing, testing, or analysis may be moved interstate from any quarantined State under the following conditions:
1




1 Requirements under all other applicable Federal domestic plant quarantines must also be met.


(1) With certificate or permit issued and attached in accordance with §§ 301.85–4 and 301.85–7 if moved:


(i) From any generally infested area or any suppressive area into or through any point outside of the regulated areas; or


(ii) From any generally infested area into or through any suppressive area; or


(iii) Between any noncontiguous suppressive areas; or


(iv) Between contiguous suppressive areas when it is determined by an inspector that the regulated articles present a hazard of the spread of the golden nematode and the person in possession thereof has been so notified; or


(v) Through or reshipped from any regulated area when such movement is not authorized under paragraph (a)(2)(v) of this section; or


(2) From any regulated area, without certificate or permit if moved:


(i) Under the provisions of § 301.85–2(d) which exempts certain articles from certificate and permit requirements; or


(ii) From a generally infested area to a contiguous generally infested area; or


(iii) From a suppressive area to a contiguous generally infested area; or


(iv) Between contiguous suppressive areas unless the person in possession of the articles has been notified by an inspector that a hazard of spread of the golden nematode exists; or


(v) Through or reshipped from any regulated area if the articles originated outside of any regulated area and if the point of origin of the articles is clearly indicated, their identity has been maintained, and they have been safeguarded against infestation while in the regulated area in a manner satisfactory to the inspector; or


(3) From any area outside the regulated areas, if moved:


(i) With a certificate or permit attached; or


(ii) Without a certificate or permit, if:


(A) The regulated articles are exempt from certification and permit requirements under the provisions of § 301.85–2(d); or


(B) The point of origin of such movement is clearly indicated on the articles or shipping document which accompanies the articles and if the movement is not made through any regulated area.


(b) Unless specifically authorized by the Deputy Administrator in emergency situations, soil samples for processing, testing or analysis may be moved interstate from any regulated area only to laboratories approved
2
by the Deputy Administrator. A certificate or permit is not required to be attached to such soil samples except in those situations where the Deputy Administrator has authorized such movement only with a certificate or permit issued and attached in accordance with §§ 301.85–4 and 301.85–7. A certificate or permit is not required to be attached to soil samples originating in areas outside of the regulated areas if the point of origin of such movement is clearly indicated on the articles or shipping document which accompanies the articles and if the movement is not made through any regulated area.




2 Provisions for laboratory approval may be obtained from your State’s State Plant Health Director. Contact information can be found at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/CT_SPHD.


[37 FR 24330, Nov. 16, 1972, as amended at 67 FR 8465, Feb. 25, 2002; 87 FR 80014, Dec. 29, 2022]


§ 301.85-4 Issuance and cancellation of certificates and permits.

(a) Certificates may be issued for any regulated articles (except soil samples for processing, testing, or analysis) by an inspector if the inspector determines that they are eligible for certification for movement to any destination under all Federal domestic plant quarantines applicable to such articles and:


(1) Have originated in noninfested premises in a regulated area and have not been exposed to infestation while within the regulated areas; or


(2) Have been treated to destroy infestation in accordance with part 305 of this chapter; or


(3) Have been grown, produced, manufactured, stored, or handled in such a manner that no infestation would be transmitted thereby.


(b) Limited permits may be issued by an inspector to allow interstate movement of regulated articles (except soil samples for processing, testing or analysis) not eligible for certification under this subpart, to specified destinations for limited handling, utilization, or processing, or for treatment in accordance with part 305 of this chapter, when, upon evaluation of the circumstances involved in each specific case he determines that such movement will not result in the spread of the golden nematode and requirements of other applicable Federal domestic plant quarantines have been met.


(c) Restricted destination permits may be issued by an inspector to allow the interstate movement (for other than scientific purposes) of regulated articles (except soil samples for processing, testing, or analysis) to any destination permitted under all applicable Federal domestic plant quarantines if such articles are not eligible for certification under all such quarantines but would otherwise qualify for certification under this subpart.


(d) Scientific permits to allow the interstate movement of regulated articles and certificates or permits to allow the movement of soil samples for processing, testing, or analysis in emergency situations may be issued by the Deputy Administrator under such conditions as may be prescribed in each specific case by the Deputy Administrator to prevent the spread of the golden nematode.


(e) Certificate, limited permit, and restricted destination permit forms may be issued by an inspector to any person for use for subsequent shipments of regulated articles (except for soil samples for processing, testing, or analysis) provided such person is operating under a compliance agreement; and any such person may be authorized by an inspector to reproduce such forms on shipping containers or otherwise. Any such person may execute and issue the certificate forms, or reproductions of such forms, for the interstate movement of regulated articles from the premises of such person identified in the compliance agreement if such person has treated such regulated articles to destroy infestation in accordance with part 305 of this chapter, and if such regulated articles are eligible for certification for movement to any destination under all Federal domestic plant quarantines applicable to such articles. Any such person may execute and issue the limited permit forms, or reproductions of such forms, for interstate movement of regulated articles to specified destinations when the inspector has made the determinations specified in paragraph (b) of this section. Any such person may execute and issue the restricted destination permit forms, or reproductions of such forms, for the interstate movement of regulated articles not eligible for certification under all Federal domestic plant quarantines applicable to such articles, under the conditions specified in paragraph (c) of this section.


(f) Any certificate or permit which has been issued or authorized may be withdrawn by the inspector or the Deputy Administrator if he or she determines that the holder thereof has not complied with any condition for the use of such document imposed by this subpart. Prior to such withdrawal, the holder of the certificate of permit shall be notified of the proposed action and the reason therefor and afforded reasonable opportunity to present his or her views thereon.


[37 FR 24330, Nov. 16, 1972, as amended at 70 FR 33268, June 7, 2005]


§ 301.85-5 Compliance agreement and cancellation thereof.

(a) Any person engaged in the business of growing, handling, or moving regulated articles may enter into a compliance agreement to facilitate the movement of such articles under this subpart. Compliance agreement forms may be obtained from the Deputy Administrator or an inspector.


(b) Any person engaged in the business of removing soil from Irish potatoes by the process of grading, washing, or fluming may enter into a compliance agreement concerning such operations. The compliance agreement shall be a written agreement between the person conducting such operations and Plant Protection and Quarantine wherein such person agrees to conduct such operations in a manner which, in the judgment of the inspector supervising enforcement of the quarantine and regulations, will substantially remove the soil from the potatoes.


(c) Any compliance agreement may be canceled by the inspector who is supervising its enforcement whenever the inspector finds, after notice and reasonable opportunity to present views has been accorded to the other party thereto, that such other party has failed to comply with the conditions of the agreement.


[37 FR 24330, Nov. 16, 1972, as amended at 47 FR 12332, Mar. 23, 1982; 70 FR 33268, June 7, 2005]


§ 301.85-6 Assembly and inspection of regulated articles.

Persons (other than those authorized to use certificates, limited permits, or restricted destination permits, or reproductions thereof, under § 301.85–4(e)) who desire to move interstate regulated articles which must be accompanied by a certificate or permit shall, as far in advance as possible, request an inspector to examine the articles prior to movement. Such articles shall be assembled at such points and in such manner as the inspector designates to facilitate inspection.


§ 301.85-7 Attachment and disposition of certificates and permits.

(a) If a certificate or permit is required for the interstate movement of regulated articles, the certificate or permit shall be securely attached to the outside of the container in which such articles are moved, except that, where the certificate or permit is attached to the waybill or other shipping document, and the regulated articles are adequately described on the certificate, permit, or shipping document, the attachment of the certificate or permit to each container of the articles is not required.


(b) In all cases, certificates or permits shall be furnished by the carrier to the consignee at the destination of the shipment.


§ 301.85-8 Inspection and disposal of regulated articles and pests.

Any properly identified inspector is authorized to stop and inspect, and to seize, destroy, or otherwise dispose of, or require disposal of regulated articles and golden nematodes as provided in sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754) in accordance with instructions issued by the Deputy Administrator.


[37 FR 24330, Nov. 16, 1972, as amended at 66 FR 21052, Apr. 27, 2001]


§ 301.85-9 Movement of live golden nematodes.

Regulations requiring a permit for and otherwise governing the movement of live golden nematodes in interstate or foreign commerce are contained in the Federal Plant Pest Regulations in part 330 of this chapter. Applications for permits for the movement of the pest may be made to the Deputy Administrator.


§ 301.85-10 Nonliability of the Department.

The U.S. Department of Agriculture disclaims liability for any costs incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.


Subpart S—Pale Cyst Nematode


Source:72 FR 51984, Sept. 12, 2007, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 301.86 Restrictions on interstate movement of regulated articles.

No person may move interstate from any quarantined area any regulated article except in accordance with this subpart.
1




1 Any properly identified inspector is authorized to stop and inspect persons and means of conveyance and to seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of regulated articles as provided in section 414 of the Plant Protection Act (7 U.S.C. 7714).


§ 301.86-1 Definitions.

Administrator. The Administrator, Animal and Plant Health Inspection Service, or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service. The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture.


Associated field. A field that has been found to be at risk for infestation with pale cyst nematode in accordance with § 301.86–3(c)(2).


Certificate. A document in which an inspector or person operating under a compliance agreement affirms that a specified regulated article is free of pale cyst nematode and may be moved interstate to any destination.


Compliance agreement. A written agreement between APHIS and a person engaged in growing, handling, or moving regulated articles, wherein the person agrees to comply with this subpart.


Departmental permit. A document issued by the Administrator in which he or she affirms that interstate movement of the regulated article identified on the document is for scientific or experimental purposes and that the regulated article is eligible for interstate movement in accordance with § 301.86–4.


Field. A defined production site that is managed separately from surrounding areas for phytosanitary purposes.


Infestation (infested). The presence of the pale cyst nematode or the existence of circumstances that makes it reasonable to believe that the pale cyst nematode is present.


Infested field. A field that has been found to be infested with pale cyst nematode in accordance with § 301.86–3(c)(1).


Inspector. Any employee of APHIS or other person authorized by the Administrator to perform the duties required under this subpart.


Interstate. From any State into or through any other State.


Limited permit. A document in which an inspector or person operating under a compliance agreement affirms that the regulated article identified on the document is eligible for interstate movement in accordance with § 301.86–5(b) only to a specified destination and only in accordance with specified conditions.


Moved (move, movement). Shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried.


Nursery stock. Living plants and plant parts intended to be planted, to remain planted, or to be replanted.


Pale cyst nematode. The pale cyst nematode (Globodera pallida), in any stage of development.


Person. Any association, company, corporation, firm, individual, joint stock company, partnership, society, or other entity.


Plant Protection and Quarantine. The Plant Protection and Quarantine program of the Animal and Plant Health Inspection Service, United States Department of Agriculture.


Quarantined area. Any State or portion of a State designated as a quarantined area in accordance with the provisions in § 301.86–3.


Regulated article. Any article listed in § 301.86–2 or otherwise designated as a regulated article in accordance with § 301.86–2(i).


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States.


[72 FR 51984, Sept. 12, 2007, as amended at 74 FR 19381, Apr. 29, 2009]


§ 301.86-2 Regulated articles.

The following are regulated articles:


(a) Pale cyst nematodes.
1




1 Permit and other requirements for the interstate movement of pale cyst nematodes are contained in part 330 of this chapter.


(b) The following pale cyst nematode host crops:



Eggplant (Solanum melongena L.)

Pepper (Capsicum spp.)

Potato (Solanum tuberosum L.)

Tomatillo (Physalis philadelphica)

Tomato (Lycopersicon esculentum L.)

(c) Root crops.


(d) Garden and dry beans (Phaseolus spp.) and peas (Pisum spp.).


(e) All nursery stock.


(f) Soil, compost, humus, muck, peat, and manure, and products on or in which soil is commonly found, including grass sod and plant litter.


(g) Hay, straw, and fodder.


(h) Any equipment or conveyance used in an infested or associated field that can carry soil if moved out of the field.


(i) Any other product, article, or means of conveyance not listed in paragraphs (a) through (h) of this section that an inspector determines presents a risk of spreading the pale cyst nematode, after the inspector provides written notification to the person in possession of the product, article, or means of conveyance that it is subject to the restrictions of this subpart.


[72 FR 51984, Sept. 12, 2007, as amended at 74 FR 19381, Apr. 29, 2009; 87 FR 80015, Dec. 29, 2022]


§ 301.86-3 Quarantined areas.

(a) Designation of quarantined areas. In accordance with the criteria listed in paragraph (c) of this section, the Administrator will designate as a quarantined area each field that has been found to be infested with pale cyst nematode, each field that has been found to be associated with an infested field, and any area that the Administrator considers necessary to quarantine because of its inseparability for quarantine enforcement purposes from infested or associated fields. The Administrator will publish the description of the quarantined area on the Plant Protection and Quarantine Web site, https://www.aphis.usda.gov/planthealth/pcn”.

The description of the quarantined area will include the date the description was last updated and a description of the changes that have been made to the quarantined area. The description of the quarantined area may also be obtained by request from any local office of PPQ; local offices are listed in telephone directories. After a change is made to the quarantined area, we will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined area.


(b) Designation of an area less than an entire State as a quarantined area. Less than an entire State will be designated as a quarantined area only if the Administrator determines that:


(1) The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and


(2) The designation of less than the entire State as a quarantined area will prevent the interstate spread of the pale cyst nematode.


(c) Criteria for designation of fields as infested fields and associated fields. (1) Infested fields. A field will be designated as an infested field for pale cyst nematode upon a determination that viable pale cyst nematode is present in the field. The determination will be made in accordance with the criteria established by the Administrator for the designation of infested fields. The criteria are presented in a protocol document that may be viewed at https://www.aphis.usda.gov/planthealth/pcn. The protocol may also be obtained by request from any local office of Plant Protection and Quarantine; local offices are listed in telephone directories. Any substantive changes we propose to make to the protocol will be published for comment in the Federal Register. After we review the comments received, we will publish another notice in the Federal Register informing the public of any changes to the protocol.


(2) Associated fields. The Administrator will designate a field as an associated field when pale cyst nematode host crops, as listed in § 301.86–2(b), have been grown in the field in the last 10 years and


(i) The field shares a border with an infested field; or


(ii) The field came into contact with a regulated article listed in § 301.86–2 from an infested field within the last 10 years; or


(iii) Within the last 10 years, the field shared ownership, tenancy, seed, drainage or runoff, farm machinery, or other elements of shared cultural practices with an infested field that could allow spread of the pale cyst nematode, as determined by the Administrator.


(d) Removal of fields from quarantine. (1) Infested fields. An infested field will be removed from quarantine for pale cyst nematode upon a determination that no viable pale cyst nematode is detected in the field. The determination will be made in accordance with criteria established by the Administrator and sufficient to support removal of infested fields from quarantine. The criteria are presented in a protocol document as provided in paragraph (d)(4) of this section along with information for viewing the protocol.


(2) Associated fields. An associated field will be removed from quarantine for pale cyst nematode once surveys are completed and pale cyst nematode is not detected in the field. The determination will be made in accordance with criteria established by the Administrator and sufficient to support removal of associated fields from quarantine. The criteria are presented in a protocol document as provided in paragraph (d)(4) of this section along with information for viewing the protocol.


(3) Removal of other areas from quarantine. If the Administrator has quarantined any area other than infested or associated fields because of its inseparability for quarantine enforcement purposes from infested or associated fields, as provided in paragraph (a) of this section, that area will be removed from quarantine when the relevant infested or associated fields are removed from quarantine.


(4) Protocol for removal of fields from quarantine. The Administrator will remove infested and associated fields, and other areas as provided in this section, from quarantine for pale cyst nematode in accordance with the protocols published on the Plant Protection and Quarantine website at https://www.aphis.usda.gov/planthealth/pcn. The protocols may also be obtained by request from any local office of Plant Protection and Quarantine; local offices are listed in telephone directories. Any substantive changes we propose to make to the protocols

will be published for comment in the Federal Register. After we review the comments received, we will publish another notice in the Federal Register informing the public of any changes to the protocols.


[72 FR 51984, Sept. 12, 2007, as amended at 74 FR 19381, Apr. 29, 2009; 85 FR 85503, Dec. 29, 2020]


§ 301.86-4 Conditions governing the interstate movement of regulated articles from quarantined areas.

(a) Any regulated article may be moved interstate from a quarantined area only if moved under the following conditions:


(1) With a certificate or limited permit issued and attached in accordance with §§ 301.86–5 and 301.86–8;


(2) Without a certificate or limited permit if:


(i) The regulated article is moved by the United States Department of Agriculture for experimental or scientific purposes; or


(ii) The regulated article originates outside the quarantined area and is moved interstate through the quarantined area under the following conditions:


(A) The points of origin and destination are indicated on a waybill accompanying the regulated article; and


(B) The regulated article is moved through the quarantined area without stopping (except for refueling and for traffic conditions such as traffic lights and stop signs); and


(C) The regulated article is not unpacked or unloaded in the quarantined area; and


(D) The article has not been combined or commingled with other articles so as to lose its individual identity.


(b) When an inspector has probable cause to believe a person or means of conveyance is moving a regulated article interstate, the inspector is authorized to stop the person or means of conveyance to determine whether a regulated article is present and to inspect the regulated article. Articles found to be infested by an inspector, and articles not in compliance with the regulations in this subpart, may be seized, quarantined, treated, subjected to other remedial measures, destroyed, or otherwise disposed of.


§ 301.86-5 Issuance and cancellation of certificates and limited permits.

(a) Certificates. An inspector
1
or person operating under a compliance agreement may issue a certificate for the interstate movement of a regulated article if the inspector determines that the regulated article satisfies the general requirements for a certificate in paragraph (a)(1) of this section and any requirements that may apply to the regulated article under paragraphs (a)(2) through (a)(7) of this section.




1 Inspectors are assigned to local offices of APHIS, which are listed in local telephone directories. Information concerning such local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.


(1) Certification requirements for all regulated articles. The regulated article must be moved in compliance with any additional emergency conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714)
2
to prevent the spread of the pale cyst nematode. In addition, the regulated article must be eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.




2 Section 414 of the Plant Protection Act (7 U.S.C. 7714) provides that the Secretary of Agriculture may, under certain conditions, hold, seize, quarantine, treat, apply other remedial measures to destroy or otherwise dispose of any plant, plant pest, plant product, article, or means of conveyance that is moving, or has moved into or through the United States or interstate if the Secretary has reason to believe the article is a plant pest or is infested with a plant pest at the time of movement.


(2) Certification requirements for nursery stock—(i) Potatoes. Potatoes intended for use as nursery stock (i.e., seed potatoes) are prohibited from being moved interstate from the quarantined area.


(ii) Nursery stock of other host crops. An inspector may issue a certificate for the interstate movement of nursery stock of pale cyst nematode host crops other than potatoes, as listed in § 301.86–2(b), if the nursery stock was grown in a field that meets the following requirements:


(A) The field has been surveyed by an inspector for pale cyst nematode at least once in the last 3 years;


(B) The pale cyst nematode has not been found in the field; and


(C) No more than one pale cyst nematode host crop, as listed in § 301.86–2(b), has been grown in the last 3 years.


(iii) Nursery stock of non-host crops—(A) With soil. An inspector may issue a certificate for the interstate movement of nursery stock of non-host crops moved with soil if the nursery stock was grown in a field that meets the following requirements:


(1) The field has been surveyed by an inspector for pale cyst nematode at least once in the last 3 years;


(2) The pale cyst nematode has not been found in the field; and


(3) No more than one pale cyst nematode host crop, as listed in § 301.86–2(b), has been grown in the field in the last 3 years.


(B) Without soil (bare-rooted). An inspector may issue a certificate for the interstate movement of nursery stock of non-host crops moved without soil if the inspector finds the nursery stock to be free of soil on its roots and on all other parts of the plant.


(3) Certification requirements for potatoes for consumption, root crops for consumption, garden or dry beans, and peas. An inspector may issue a certificate for the movement of potatoes intended for consumption, root crops intended for consumption, garden or dry beans, or peas from the quarantined area only if the field in which the potatoes, root crops, garden or dry beans, or peas were grown meets the following requirements:


(i) The field has been surveyed by an inspector for pale cyst nematode at least once in the last 3 years and prior to the planting of the potatoes or root crops;


(ii) Pale cyst nematode has not been found in the field; and


(iii) No more than one pale cyst nematode host crop, as listed in § 301.86–2(b), has been grown in the field in the last 3 years.


(4) Certification requirements for soil and associated products. An inspector may issue a certificate for the interstate movement of a regulated article listed in § 301.86–2(e) only if the article originated in a field that meets the following requirements:


(i) The field has been surveyed by an inspector for pale cyst nematode at least once in the last 3 years;


(ii) The pale cyst nematode has not been found in the field; and


(iii) No more than one pale cyst nematode host crop, as listed in § 301.86–2(b), has been grown in the last 3 years.


(5) Certification requirements for hay, straw, and fodder. An inspector may issue a certificate for the movement of hay, straw, or fodder from the quarantined area only if:


(i) The field where the hay, straw, or fodder was produced meets the following requirements:


(A) The field has been surveyed by an inspector for pale cyst nematode at least once in the last 3 years;


(B) The pale cyst nematode has not been found in the field; and


(C) No more than one pale cyst nematode host crop, as listed in § 301.86–2(b), has been grown in the field in the last 3 years; or


(ii) The hay, straw, or fodder is produced according to procedures judged by an inspector to be sufficient to isolate it from soil throughout its production.


(6) Certification requirements for equipment used in infested or associated fields. An inspector may issue a certificate for the interstate movement of equipment that has been used in an infested or associated field and that can carry soil if moved out of the field only after the equipment has been pressure-washed under the supervision of an inspector to remove all soil or steam-treated in accordance with part 305 of this chapter.


(b) Limited permits—(1) General conditions. An inspector
3
may issue a limited permit for the interstate movement of a regulated article if the inspector determines that:




3 See footnote 1 of this section.


(i) The regulated article is to be moved interstate to a specified destination for specified handling, processing, or utilization (the destination and other conditions to be listed in the limited permit), and this interstate movement will not result in the spread of the pale cyst nematode because life stages of the pale cyst nematode will be destroyed by the specified handling, processing, or utilization;


(ii) The regulated article is to be moved in compliance with any additional emergency conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of the pale cyst nematode; and


(iii) The regulated article is eligible for interstate movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.


(2) Specific conditions for potatoes for consumption. An inspector may issue a limited permit to allow the interstate movement of potatoes from the quarantined area for processing or packing only if:


(i) The potatoes are transported in a manner that prevents the potatoes and soil attached to the potatoes from coming into contact with agricultural premises outside the quarantined area; and


(ii) The potatoes are processed or packed at facilities that handle potatoes, waste, and waste water in a manner approved by APHIS to prevent the spread of pale cyst nematode.


(c) Certificates and limited permits for the interstate movement of regulated articles may be issued by an inspector or person operating under a compliance agreement. A person operating under a compliance agreement may issue a certificate for the interstate movement of a regulated article after an inspector has determined that the regulated article is eligible for a certificate in accordance with paragraph (a) of this section. A person operating under a compliance agreement may issue a limited permit for interstate movement of a regulated article after an inspector has determined that the regulated article is eligible for a limited permit in accordance with paragraph (b) of this section.


(d) Any certificate or limited permit that has been issued may be withdrawn, either orally or in writing, by an inspector if he or she determines that the holder of the certificate or limited permit has not complied with all provisions in this subpart for the use of the certificate or limited permit or has not complied with all the conditions contained in the certificate or limited permit. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal will be confirmed in writing as promptly as circumstances allow. Any person whose certificate or limited permit 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 must state all of the facts and reasons upon which the person relies to show that the certificate or limited permit was wrongfully withdrawn. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator.


(Approved by the Office of Management and Budget under control number 0579–0322)

[72 FR 51984, Sept. 12, 2007, as amended at 74 FR 19381, Apr. 29, 2009; 87 FR 80015, Dec. 29, 2022]


§ 301.86-6 Compliance agreements and cancellation.

(a) Any person engaged in growing, handling, or moving regulated articles may enter into a compliance agreement when an inspector determines that the person is aware of this subpart, agrees to comply with its provisions, and agrees to comply with all the provisions contained in the compliance agreement.
1




1 Compliance agreement forms are available without charge from local Plant Protection and Quarantine offices, which are listed in telephone directories.


(b) Any compliance agreement may be canceled, either orally or in writing, by an inspector whenever the inspector finds that the person who has entered into the compliance agreement has failed to comply with any of the provisions of this subpart. If the cancellation is oral, the cancellation and the reasons for the cancellation will be confirmed in writing as promptly as circumstances allow. Any person whose compliance agreement has been canceled may appeal the decision, in writing, to the Administrator, within 10 days after receiving written notification of the cancellation. The appeal must state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully canceled. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator.


[72 FR 51984, Sept. 12, 2007, as amended at 87 FR 80015, Dec. 29, 2022]


§ 301.86-7 Assembly and inspection of regulated articles.

(a) Any person (other than a person authorized to issue certificates or limited permits under § 301.86–5(c)) who desires a certificate or limited permit to move a regulated article interstate must notify an inspector
1
as far in advance of the desired interstate movement as possible, but no less than 48 hours before the desired interstate movement.




1 See footnote 1 in § 301.86–5.


(b) The regulated article must be assembled at the place and in the manner the inspector designates as necessary to comply with this subpart.


[72 FR 51984, Sept. 12, 2007, as amended at 87 FR 80015, Dec. 29, 2022]


§ 301.86-8 Attachment and disposition of certificates and limited permits.

(a) A certificate or limited permit required for the interstate movement of a regulated article must, at all times during the interstate movement, be:


(1) Attached to the outside of the container containing the regulated article; or


(2) Attached to the regulated article itself if not in a container; or


(3) Attached to the consignee’s copy of the accompanying waybill. If the certificate or limited permit is attached to the consignee’s copy of the waybill, the regulated article must be sufficiently described on the certificate or limited permit and on the waybill to identify the regulated article.


(b) The certificate or limited permit for the interstate movement of a regulated article must be furnished by the carrier or the carrier’s representative to the consignee listed on the certificate or limited permit upon arrival at the location provided on the certificate or limited permit.


(Approved by the Office of Management and Budget under control number 0579–0322)


§ 301.86-9 Costs and charges.

The services of the inspector during normal business hours (8 a.m. to 4:30 p.m., Monday through Friday, except holidays) will be furnished without cost. APHIS will not be responsible for any costs or charges incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.


Subpart T—Sugarcane Diseases


Source:48 FR 50059, Oct. 31, 1983, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

Quarantine and Regulations

§ 301.87 Quarantine; restrictions on interstate movement of specified articles.

(a) Notice of quarantine. Under the authority of sections 411, 412, 414, and 434 of the Plant Protection Act (7 U.S.C. 7711, 7712, 7714, and 7754),1 2 the Secretary of Agriculture establishes quarantines within the United States to prevent the artificial spread of leaf scald disease and gummosis disease. The regulations in this subpart govern the interstate movement from regulated areas of regulated articles.


(b) Quarantine restrictions on interstate movement of regulated articles. No common carrier or other person shall move interstate from any regulated area any regulated article except in accordance with the conditions prescribed in this subpart.


[48 FR 50059, Oct. 31, 1983, as amended at 66 FR 21052, Apr. 27, 2001; 87 FR 80015, Dec. 29, 2022]


§ 301.87-1 Definitions.

Terms used in the singular form in this subpart shall be construed as the plural and vice versa, as the case may demand. The following terms, when used in this subpart, shall be construed, respectively, to mean:


Certificate. A document which is issued for a regulated article by an inspector or by a person operating under a compliance agreement, and which represents that the article is eligible for interstate movement in accordance with § 301.87–5(a).


Compliance agreement. A written agreement between Plant Protection and Quarantine and a person engaged in the business of growing, handling, or moving regulated articles, in which the person agrees to comply with the provisions of this subpart and any conditions imposed pursuant to such provisions.


Deputy Administrator. The Deputy Administrator of the Animal and Plant Health Inspection Service, U.S. Department of Agriculture for Plant Protection and Quarantine, or any officer or employee of the Department to whom authority to act in his or her stead has been or may hereafter be delegated.


Gummosis disease. A dangerous plant disease of sugarcane which is caused by the highly infectious bacterium, Xanthomonas vasculorum (Cobb) Dowson, and which is not widely prevalent or distributed within and throughout the United States.


Inspector. Any employee of Plant Protection and Quarantine, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or other person, authorized by the Deputy Administrator in accordance with law to enforce the provisions of the quarantine and regulations in this subpart.


Interstate. From any State into or through any other State.


Leaf scald disease. A dangerous plant disease of sugarcane which is caused by the highly infectious bacterium, Xanthomonas albilineans (Ashby) Dowson, and which is not widely prevalent or distributed within and throughout the United States.


Limited permit. A document which is issued for a regulated article by an inspector or by a person operating under a compliance agreement, and which represents that the regulated article is eligible for interstate movement in accordance with § 301.87–5(b).


Moved (movement, move). Shipped, offered for shipment to a common carrier, received for transportation or transported by a common carrier, or carried, transported, moved, or caused or allowed to be moved by any means. “Movement” and “move” shall be construed in accordance with this definition.


Person. Any individual, partnership, corporation, company, society, association, or other organized group.


Plant Protection and Quarantine. The organizational unit within the Animal and Plant Health Inspection Service, U.S. Department of Agriculture, delegated responsibility for enforcing provisions of the Plant Protection Act and related legislation, quarantines, and regulations.


Regulated area. Any quarantined State, or any portion thereof, listed as a regulated area in accordance with § 301.87–3, or otherwise designated as a regulated area in accordance with § 301.87–3(b).


Regulated article. Any article identified as a regulated article under § 301.87–2 as follows: listed as of January 30, 2023, added in accordance with § 301.87–2(b), or otherwise designated in accordance with § 301.87–2(c).


State. Any State, Territory, or District of the United States, including the Commonwealth of Puerto Rico.


Sugarcane disease. This means leaf scald disease with respect to activities in Hawaii, and means gummosis disease or leaf scald disease with respect to activities in Puerto Rico.


[48 FR 50059, Oct. 31, 1983, as amended at 52 FR 31374, Aug. 20, 1987; 66 FR 21052, Apr. 27, 2001; 87 FR 80015, Dec. 29, 2022]


§ 301.87-2 Regulated articles.

(a) List of regulated articles. The Deputy Administrator has determined that certain articles present a risk of spread of sugarcane diseases. A list of all such articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/plant-disease/sugarcane. Lists of all regulated articles may also be obtained by request from any local Plant Protection and Quarantine (PPQ) office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(b) Normal process for designating additional regulated articles. (1) If the Deputy Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/plant-disease/sugarcane presents a risk of spread of sugarcane diseases, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for sugarcane diseases. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Deputy Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for sugarcane diseases and listing it.


(c) Immediate designation of regulated articles. Any other article, product, or means of conveyance not already listed in accordance with paragraph (a) of this section may be designated a regulated article on an immediate basis if an inspector determines that it presents a risk of spread of sugarcane diseases and provides actual notification to the person in possession of the article, product, or means of conveyance that it is now subject to the restrictions of this subpart.


[87 FR 80015, Dec. 29, 2022]


§ 301.87-3 Regulated areas.

(a) Except as otherwise provided in paragraph (b) of this section, the Deputy Administrator will list as a regulated area each State or portion of a State in which a sugarcane disease has been found by an inspector, or in which the Deputy Administrator has reason to believe a sugarcane disease is present, or that the Deputy Administrator deems necessary to regulate based on its proximity to a sugarcane disease or its inseparability for enforcement purposes from localities where a sugarcane disease occurs. The Deputy Administrator will publish a list of all regulated areas (the regulated areas list) on the PPQ website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/plant-disease/sugarcane. The list will include the date that the list was last updated. Lists of all quarantined areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directors and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of regulated areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to regulated areas. Less than an entire State will be designated as a regulated area only if the Administrator determines that:


(1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are substantially the same as those that are imposed by this subpart on the interstate movement of regulated articles; and


(2) The designation of less than the entire State as a regulated area will be adequate to prevent the artificial interstate spread of a sugarcane disease.


(b) The Deputy Administrator or an inspector may temporarily designate any nonregulated area as a regulated area in accordance with the criteria specified in paragraph (a) of this section for listing such an area. Written notice of the designation will be given to the owner or person in possession of the nonregulated area. Thereafter, the interstate movement of any regulated article from the area will be subject to this subpart. As soon as practicable, the area will either be added to the regulated areas list, or the Deputy Administrator or an inspector will terminate the designation. Notice thereof will be given the owner or person in possession of the area.


[87 FR 80015, Dec. 29, 2022]


§ 301.87-4 Conditions governing the interstate movement of regulated articles from regulated areas in quarantined States.

Any regulated article may be moved interstate from any regulated area in a quarantined State if moved under the following conditions:
1


(a) With a certificate or limited permit issued and attached in accordance with §§ 301.87–5 and 301.87–8; or


(b) Without a certificate or limited permit, if


(1) Moved directly through any regulated area, and


(2) The article originated outside of any regulated area, and


(3) The point of origin of the article is clearly indicated by shipping documents, its identity has been maintained, and it has not been used for the production of sugarcane while in the regulated area.


[48 FR 50059, Oct. 31, 1983, as amended at 87 FR 80016, Dec. 29, 2022]


§ 301.87-5 Issuance and cancellation of certificates and limited permits.

(a) A certificate shall be issued by an inspector for the movement of a regulated article if the inspector:


(1)(i) Determines that it has been treated under the direction of an inspector
1
in accordance with part 305 of this chapter; or




1 Treatments shall be monitored by inspectors in order to assure compliance with requirements in this subpart.


(ii) Determines based on inspection of the article and the premises of origin that it is free from sugarcane diseases. The term sugarcane diseases means leaf scald disease with respect to movement of regulated articles from Hawaii and means gummosis disease and leaf scald disease with respect to movements of regulated articles from Puerto Rico;


(2) Determines that it is to be moved in compliance with any additional conditions deemed necessary under section 414 of the Plant Protection Act (7 U.S.C. 7714)
2
to prevent the spread of sugarcane diseases; and




2 An inspector may hold, seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of plants, plant pests, or other articles in accordance with sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


(3) Determines that it is eligible for unrestricted movement under all other Federal domestic plant quarantines applicable to the article.


(b) A limited permit shall be issued by an inspector for the movement of a regulated article if the inspector:


(1) Determines, in consultation with the Deputy Administrator, that it is to be moved:


(i) For a specified purpose (such as for consumption or manufacturing) stated on the limited permit, other than for processing or harvesting sugarcane; and


(ii) To a specified destination stated on the limited permit, which is not in a county or parish where sugarcane is produced, and which is not within 10 miles of a sugarcane field;


(2) Determines that it is to be moved in compliance with any additional conditions deemed necessary under section 414 of the Plant Protection Act (7 U.S.C. 7714)
2 to prevent the spread of sugarcane diseases; and


(3) Determines that it is eligible for such movement under all other Federal domestic plant quarantines applicable to the article.


(c) Certificates and limited permits for shipments of regulated articles may be issued by an inspector or by any person engaged in the business of growing, handling, or moving regulated articles provided such person is operating under a compliance agreement. Any such person may execute and issue a certificate for the interstate movement of a regulated article if the person has treated the regulated article to destroy infection in accordance with the provisions of § 301.87–10 and the inspector has made the determination that the article is otherwise eligible for a certificate in accordance with paragraph (a) of this section; or if the inspector has made the determination that the article is eligible for a certificate in accordance with paragraph (a) of this section without such treatment. Any such person may execute and issue a limited permit for interstate movement of a regulated article when the inspector has made the determination that the article is eligible for a limited permit in accordance with paragraph (b) of this section.


(d) Any certificate or limited permit which has been issued or authorized may be withdrawn by an inspector if the inspector determines that its holder has not complied with any condition under the regulations for its use. The reasons for the withdrawal shall be confirmed in writing as promptly as circumstances allow. Any person whose certificate or limited permit has been withdrawn may appeal the decision in writing to the Deputy Administrator within ten 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 certificate or limited permit was wrongfully withdrawn. The Deputy Administrator shall grant or deny the appeal in writing, stating the reasons for the decision as promptly as circumstances allow. If there is a conflict as to any material fact, a hearing shall be held to resolve the conflict under rules of practice which shall be adopted by the Administrator of the Animal and Plant Health Inspection Service, USDA, for the proceeding.


[48 FR 50059, Oct. 31, 1983, as amended at 66 FR 21053, Apr. 27, 2001; 75 FR 4241, Jan. 26, 2010; 87 FR 80016, Dec. 29, 2022]


§ 301.87-6 Compliance agreement; cancellation.

(a) Any person engaged in the business of growing, handling, or moving regulated articles may enter into a compliance agreement to facilitate the movement of regulated articles under this subpart.
1
The compliance agreement shall be a written agreement between a person engaged in such a business and Plant Protection and Quarantine, in which the person agrees to comply with the provisions of this subpart and any conditions imposed pursuant to such provisions.




1 Compliance Agreement forms are available without charge from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236, and from local offices of Plant Protection and Quarantine. (Local offices are listed in telephone directories.)


(b) Any compliance agreement may be canceled orally or in writing by the inspector who is supervising its enforcement whenever the inspector finds that such person has failed to comply with the provisions of this subpart or any conditions imposed pursuant to such provisions. If the cancellation is oral, the decision and the reasons for the cancellation shall be confirmed in writing as promptly as circumstances allow. Any person whose compliance agreement has been canceled may appeal the decision, in writing, to the Deputy Administrator within ten days after receiving written notification of the cancellation. The appeal shall state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully cancelled. The Deputy Administrator shall grant or deny the appeal, in writing, stating the reasons for the decision, as promptly as circumstances allow. If there is a conflict as to any material fact, a hearing shall be held to resolve the conflict under rules of practice which shall be adopted by the Administrator of the Animal and Plant Health Inspection Service, USDA, for the proceeding.


[48 FR 50059, Oct. 31, 1983, as amended at 59 FR 67609, Dec. 30, 1994; 87 FR 80016, Dec. 29, 2022]


§ 301.87-7 Assembly and inspection of regulated articles.

(a) Any person (other than a person authorized to issue certificates or limited permits under § 301.87–5(c)) who desires to move interstate a regulated article accompanied by a certificate or limited permit shall, as far in advance as possible (should be no less than 48 hours before the desired movement), request an inspector
1
to take any necessary action under this subpart prior to movement of the regulated article.




1 Inspectors are assigned to local offices of Plant Protection and Quarantine, which are listed in telephone directories. Information concerning local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.


(b) The regulated article shall be assembled at whatever point and in whatever manner the inspector designates as necessary to comply with the requirements of this subpart.


[48 FR 50059, Oct. 31, 1983, as amended at 59 FR 67609, Dec. 30, 1994; 87 FR 80016, Dec. 29, 2022]


§ 301.87-8 Attachment and disposition of certificates and limited permits.

(a) A certificate or limited permit required for the interstate movement of a regulated article, at all times during such movement, shall be securely attached to the outside of the container containing the regulated article, securely attached to the article itself if not in a container, or securely attached to the consignee’s copy of the accompanying waybill or other shipping document; provided however, that the requirements of this section may be met by attaching the certificate or limited permit to the consignee’s copy of the waybill or other shipping document only if the regulated article is sufficiently described on the certificate, limited permit, or shipping document to identify the article.


(b) The certificate or limited permit for the movement of a regulated article shall be furnished by the carrier to the consignee at the destination of the shipment.


§ 301.87-9 Costs and charges.

The services of the inspector shall be furnished without cost. The U.S. Department of Agriculture will not be responsible for any costs or charges incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.


§ 301.87-10 [Reserved]

Subpart U—Karnal Bunt


Source:61 FR 52207, Oct. 4, 1996, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 301.89-1 Definitions.

Actual price received. The net price after adjustment for any premiums or discounts stated on the sales receipt.


Administrator. The Administrator, Animal and Plant Health Inspection Service, or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service (APHIS). The Animal and Plant Health Inspection Service of the U.S. Department of Agriculture.


Certificate. A document in which an inspector or a person operating under a compliance agreement affirms that a specified regulated article meets the requirements of this subpart and may be moved to any destination.


Compliance agreement. A written agreement between APHIS and a person engaged in growing, handling, or moving regulated articles, in which the person agrees to comply with the provisions of this subpart and any conditions imposed under this subpart.


Contaminated seed. Seed from sources in which the Karnal bunt pathogen (Tilletia indica (Mitra) Mundkur) has been determined to exist by the presence of bunted kernels or teliospores.


Contract price. The net price after adjustment for any premiums or discounts stated in the contract.


Conveyances. Containers used to move wheat, durum wheat, or triticale, or their products, including trucks, trailers, railroad cars, bins, and hoppers.


Distinct definable area. A commercial wheat production area of contiguous fields that is separated from other wheat production areas by desert, mountains, or other nonagricultural terrain as determined by an inspector, based on survey results.


Grain. Wheat, durum wheat, and triticale used for consumption or processing.


Grain storage facility. That part of a grain handling operation or unit or a grain handling operation, consisting or structures, conveyances, and equipment that receive, unload, and store, grain, and that is able to operate as an independent unit from other units of the grain handling operation. A grain handling operation may be one grain storage facility or may be comprised of many grain storage facilities on a single premises.


Hay. Host crops cut and dried for feeding to livestock. Hay cut after reaching the dough stage may contain mature kernels of the host crop.


Host crops. Plants or plant parts, including grain, seed, or hay, of wheat, durum wheat, and triticale.


Infestation (infected). The presence of Karnal bunt, or any identifiable stage of development (i.e., bunted kernels in grain, bunted kernels or teliospores in seed) of the fungus Tilletia indica (Mitra) Mundkur, or the existence of circumstances that make it reasonable to believe that Karnal bunt is present.


Inspector. An APHIS employee or designated cooperator/collaborator authorized by the Administrator to enforce the provisions of this subpart.


Karnal bunt. A plant disease caused by the fungus Tilletia indica (Mitra) Mundkur.


Limited permit. A document in which an inspector affirms that a specified regulated article not eligible for a certificate is eligible for movement only to a specified destination and in accordance with conditions specified on the permit.


Mechanized cultivating equipment and mechanized harvesting equipment. Mechanized equipment used for soil tillage, including tillage attachments for farm tractors—e.g., tractors, disks, plows, harrows, planters, and subsoilers; mechanized equipment used for harvesting purposes—e.g., combines, grain buggies, trucks, swathers, and hay balers.


Movement (moved). The act of shipping, transporting, delivering, or receiving for movement, or otherwise aiding, abetting, inducing or causing to be moved.


Person. Any association, company, corporation, firm, individual, joint stock company, partnership, society, or any other legal entity.


Plant. Any plant (including any plant part) for or capable of propagation, including a tree, a tissue culture, a plantlet culture, pollen, a shrub, a vine, a cutting, a graft, a scion, a bud, a bulb, a root, and a seed.


Seed. Wheat, durum wheat, and triticale used for propagation.


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.


Soil-moving equipment. Equipment used for moving or transporting soil, including, but not limited to, bulldozers, dump trucks, or road scrapers.


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States.


Straw. The vegetative material left after the harvest of host crops. Straw is generally used as animal feed, bedding, mulch, or for erosion control.


Tilling. The turning of a minimum of the top 6 inches of soil.


[61 FR 52207, Oct. 4, 1996, as amended at 62 FR 23624, May 1, 1997; 62 FR 24751, May 6, 1997; 63 FR 31599, June 10, 1998; 64 FR 23752, May 4, 1999; 69 FR 8095, Feb. 23, 2004]


§ 301.89-2 Regulated articles.

(a) List of regulated articles. The Administrator has determined that certain articles present a risk of spreading Karnal bunt. A list of all such articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/karnal-bunt/ct_karnal_bunt. Lists of all regulated articles may also be obtained by request from any local Plant Protection and Quarantine (PPQ) office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(b) Normal process for designating additional regulated articles. (1) If the Administrator determines that an article not already listed presents a risk of spreading Karnal bunt, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for Karnal bunt. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for Karnal bunt and listing it.


(c) Immediate designation of regulated articles. Any other article, product, or means of conveyance not already listed in accordance with paragraph (a) of this section may be designated a regulated article on an immediate basis if an inspector determines that it presents a risk of spreading Karnal bunt, and notifies the person in possession of the article, product, or means of conveyance that it is now subject to the restrictions of this subpart.


[87 FR 80016, Dec. 29, 2022]


§ 301.89-3 Regulated areas.

(a) Designation. Except as otherwise provided in paragraph (b) of this section, the Administrator will list as a regulated area each State or portion of a State if it is determined to be infected with Karnal bunt or if it is in proximity to an infestation or inseparable from the infected locality for regulatory purposes based on the following: Projections of the spread of Karnal bunt along the periphery of the infestation, the availability of natural habitats and host materials within the noninfected acreage that are suitable for establishment and survival of Karnal bunt, and the necessity of including uninfected acreage within the regulated area in order to establish readily identifiable boundaries. The Administrator will publish a list of all regulated areas (the regulated areas list) on the PPQ website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/karnal-bunt/ct_karnal_bunt. The list will include the date that the list was last updated. Lists of all regulated areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directors and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of regulated areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to regulated areas.


(b) Designation of less than an entire State as a regulated area. Less than an entire State will be designated as a regulated area only if the Administrator:


(1)(i) Determines that the State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles that are equivalent to the movement restrictions imposed by this subpart; and


(ii) Determines that designating less than the entire State as a regulated area will prevent the spread of Karnal bunt; or


(2) Exercises his or her extraordinary emergency authority under 7 U.S.C. 7715.


(c) Temporary designation of regulated areas. The Administrator or an inspector may temporarily designate any nonregulated area as a regulated area in accordance with the criteria specified in paragraph (a) or (b) of this section. The Administrator will give written notice of this designation to the owner or person in possession of the nonregulated area, or, in the case of publicly owned land, to the person responsible for the management of the nonregulated area. Thereafter, the movement of any regulated article from an area temporarily designated as a regulated area is subject to this subpart. As soon as practicable, this area either will be added to the regulated areas list, or the Administrator will terminate the designation. The owner or person in possession of, or, in the case of publicly owned land, the person responsible for the management of, an area for which the designation is terminated will be given written notice of the termination as soon as practicable.


(d) Regulated fields. The Administrator will classify a field or area as a regulated area when:


(1) It is a field planted with seed from a lot found to contain a bunted wheat kernel; or


(2) It is a distinct definable area that contains at least one field that was found during survey to contain a bunted wheat kernel (the distinct definable area may include an area where Karnal bunt is not known to exist but where intensive surveys are required because of the area’s proximity to a field found during survey to contain a bunted kernel); or


(3) It is a distinct definable area that contains at least one field that has been determined to be associated with grain at a handling facility containing a bunted kernel of a host crop (the distinct definable area may include an area where Karnal bunt is not known to exist but where intensive surveys are required because of the area’s proximity to the field associated with the bunted kernel at the handling facility).


(e) Release from regulation. A field known to have been infected with Karnal bunt, as well as any non-infected acreage surrounding the field, will be released from regulation if:


(1) The field has been permanently removed from crop production; or


(2) The field is tilled at least once per year for a total of 5 years (the years need not be consecutive). After tilling, the field may be planted with a crop or left fallow. If the field is planted with a host crop, the crop must test negative, through the absence of bunted kernels, for Karnal bunt.


[87 FR 80016, Dec. 29, 2022]


§ 301.89–4

Planting.

Any wheat, durum wheat, or triticale that originates within a regulated area must be tested and found free from bunted wheat kernels and spores before it may be used as seed within or outside a regulated area.


[69 FR 8096, Feb. 23, 2004]

§ 301.89-5 Movement of regulated articles from regulated areas.

(a) Any regulated article may be moved from a regulated area into or through an area that is not regulated only if moved under the following conditions:


(1) With a certificate or limited permit issued and attached in accordance with §§ 301.89–6 and 301.89–10;


(2) Without a certificate or limited permit, provided that each of the following conditions is met:


(i) The regulated article was moved into the regulated area from an area that is not regulated;


(ii) The point of origin is indicated on a waybill accompanying the regulated article;


(iii) The regulated article is moved through the regulated area without stopping, or has been stored, packed, or handled at locations approved by an inspector as not posing a risk of contamination with Karnal bunt, or has been treated in accordance with part 305 of this chapter while in or moving through any regulated area; and


(iv) The article has not been combined or commingled with other articles so as to lose its individual identity;


(b) When an inspector has probable cause to believe a person or means of conveyance is moving a regulated article, the inspector is authorized to stop the person or means of conveyance to determine whether a regulated article is present and to inspect the regulated article. Articles found to be infected by an inspector, and articles not in compliance with the regulations in this subpart, may be seized, quarantined, treated, subjected to other remedial measures, destroyed, or otherwise disposed of. Any treatments will be in accordance with part 305 of this chapter.


[61 FR 52207, Oct. 4, 1996, as amended at 62 FR 23627, May 1, 1997; 63 FR 50751, Sept. 23, 1998; 69 FR 8096, Feb. 23, 2004; 75 FR 4241, Jan. 26, 2010; 75 FR 68945, Nov. 10, 2010]


§ 301.89-6 Issuance of a certificate or limited permit.

(a) An inspector
1
or person operating under a compliance agreement will issue a certificate for the movement of a regulated article outside a regulated area if he or she determines that the regulated article:




1 Inspectors are assigned to local offices of APHIS, which are listed in local telephone directories. Information concerning such local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Surveillance and Emergency Programs Planning and Coordination, 4700 River Road Unit 98, Riverdale, Maryland 20737–1236.


(1) Is eligible for unrestricted movement under all other applicable Federal domestic plant quarantines and regulations;


(2) Is to be moved in compliance with any conditions deemed necessary under section 414 of the Plant Protection Act (7 U.S.C. 7714)
2
to prevent the artificial spread of Karnal bunt; and




2 An inspector may hold, seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of plants, plant pests, or other articles in accordance with sections 414, 421, and 431 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


(3)(i) Is free of Karnal bunt infestation, based on laboratory results of testing, and history of previous infestation;


(ii) Has been grown, produced, manufactured, stored, or handled in a manner that would prevent infestation or destroy all life stages of Karnal bunt; or


(iii) Has been treated in accordance with part 305 of this chapter.


(b) To be eligible for movement under a certificate, hay cut after the dough stage or grain from a field within a regulated area must be tested prior to its movement from the field or before it is commingled with similar commodities and must be found free from bunted kernels. If bunted kernels are found, the grain or hay will be eligible for movement only under a limited permit issued in accordance with paragraph (c) of this section, and the field of production will be considered positive for Karnal bunt.


(c) An inspector or a person operating under a compliance agreement will issue a limited permit for the movement outside the regulated area of a regulated article not eligible for a certificate if the inspector determines that the regulated article:


(1) Is to be moved to a specified destination for specified handling, utilization, or processing (the destination and other conditions to be listed in the limited permit and/or compliance agreement), and this movement will not result in the artificial spread of Karnal bunt because Karnal bunt will be destroyed or the risk mitigated by the specified handling, utilization, or processing;


(2) Is to be moved in compliance with any additional conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the artificial spread of Karnal bunt; and


(3) Is eligible for movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.


(d) An inspector shall issue blank certificates and limited permits to a person operating under a compliance agreement in accordance with § 301.89–7 or authorize reproduction of the certificates or limited permits on shipping containers, or both, as requested by the person operating under the compliance agreement. These certificates and limited permits may then be completed and used, as needed, for the movement of regulated articles that have met the applicable requirements of paragraphs (a) and (b) of this section for the issuance of certificates or of paragraph (c) of this section for the issuance of limited permits.


[61 FR 52207, Oct. 4, 1996, as amended at 62 FR 23627, May 1, 1997; 63 FR 50751, Sept. 23, 1998; 64 FR 23754, May 4, 1999; 66 FR 21053, Apr. 27, 2001; 67 FR 21161, Apr. 30, 2002; 69 FR 8096, Feb. 23, 2004; 75 FR 4241, Jan. 26, 2010; 75 FR 68945, Nov. 10, 2010]


§ 301.89-7 Compliance agreements.

Persons who grow, handle, or move regulated articles may enter into a compliance agreement
1
if such persons review with an inspector each provision of the compliance agreement, have facilities and equipment to carry out disinfestation procedures or application of chemical materials in accordance with part 305 of this chapter, and meet applicable State training and certification standards under the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136b). Any person who enters into a compliance agreement with APHIS must agree to comply with the provisions of this subpart and any conditions imposed under this subpart.




1 Compliance agreements may be initiated by contacting a local office of Plant Protection and Quarantine, which are listed in telephone directories. The addresses and telephone numbers of local offices of Plant Protection and Quarantine may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Surveillance and Emergency Program Planning and Coordination, 4700 River Road Unit 98, Riverdale, Maryland 20737–1236.


[61 FR 52207, Oct. 4, 1996, as amended at 62 FR 23628, May 1, 1997; 69 FR 8096, Feb. 23, 2004; 75 FR 4241, Jan. 26, 2010; 75 FR 68945, Nov. 10, 2010; 87 FR 80017, Dec. 29, 2022]


§ 301.89-8 Cancellation of a certificate, limited permit, or compliance agreement.

Any certificate, limited permit, or compliance agreement may be canceled orally or in writing by an inspector whenever the inspector determines that the holder of the certificate or limited permit, or the person who has entered into the compliance agreement, has not complied with this subpart or any conditions imposed under this subpart. If the cancellation is oral, the cancellation will become effective immediately and the cancellation and the reasons for the cancellation will be confirmed in writing as soon as circumstances allow, but within 20 days after oral notification of the cancellation. Any person whose certificate, limited permit, or compliance agreement has been canceled may appeal the decision, in writing, within 10 days after receiving the written cancellation notice. The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal. A hearing may be held to resolve any conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator. As soon as practicable, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision.


§ 301.89-9 Assembly and inspection of regulated articles.

(a) Persons requiring certification or other services must request the services of an inspector
1
at least 24 hours before the services are needed.




1 See footnote 1 in § 301.89–6.


(b) The regulated articles must be assembled at the place and in the manner the inspector designates as necessary to comply with this subpart.


[61 FR 52207, Oct. 4, 1996, as amended at 62 FR 23628, May 1, 1997; 64 FR 29550, June 2, 1999; 75 FR 68945, Nov. 10, 2010; 87 FR 80017, Dec. 29, 2022]


§ 301.89-10 Attachment and disposition of certificates and limited permits.

(a) The consignor must ensure that the certificate or limited permit authorizing movement of a regulated article is, at all times during movement, attached to:


(1) The outside of the container encasing the regulated article;


(2) The article itself, if it is not in a container; or


(3) The consignee’s copy of the accompanying waybill: Provided, that the descriptions of the regulated article on the certificate or limited permit, and on the waybill, are sufficient to identify the regulated article; and


(b) The carrier must furnish the certificate or limited permit authorizing movement of a regulated article to the consignee at the shipment’s destination.


§ 301.89-11 Costs and charges.

The services of the inspector during normal business hours will be furnished without cost to persons requiring the services.


The user will be responsible for all costs and charges arising from inspection and other services provided outside of normal business hours.


§ 301.89-12 Cleaning, disinfection, and disposal.

(a) Mechanized harvesting equipment that has been used to harvest host crops that test positive for Karnal bunt based on the presence of bunted kernels must be cleaned and, if disinfection is determined to be necessary by an inspector, disinfected in accordance with part 305 of this chapter prior to movement from a regulated area.


(b) Seed conditioning equipment that was used in the conditioning of seed that was tested and found to contain spores or bunted kernels of Tilletia indica must be cleaned and disinfected in accordance with part 305 of this chapter prior to being used in the conditioning of seed that has tested negative for the spores of Tilletia indica or to being moved from a regulated area.


(c) Any grain storage facility, including on-farm storage, that is used to store seed that has tested bunted-kernel or spore positive or grain that has tested bunted-kernel positive must be cleaned and, if disinfection is determined to be necessary by an inspector, disinfected in accordance with part 305 of this chapter if the facility will be used to store grain or seed in the future.


(d) Conveyances used to move bunted-kernel-positive host crops, including trucks, railroad cars, and other containers, that have sloping metal sides leading directly to a bottom door or slide chute, are self cleaning, and will not be required to be cleaned and disinfected.


(e) Spore-positive wheat, durum wheat, or triticale seed that has been treated with any chemical that renders it unfit for human or animal consumption must be disposed of by means of burial under a minimum of 24 inches of soil in a nonagricultural area that will not be cultivated or in an approved landfill.


[69 FR 8096, Feb. 23, 2004, as amended at 75 FR 4241, Jan. 26, 2010]


§§ 301.89-13–301.89-14 [Reserved]

§ 301.89-15 Compensation for growers, handlers, and seed companies in the 1999–2000 and subsequent crop seasons.

Growers, handlers, and seed companies are eligible to receive compensation from the United States Department of Agriculture (USDA) for the 1999–2000 and subsequent crop seasons to mitigate losses or expenses incurred because of the Karnal bunt regulations and emergency actions, as follows:


(a) Growers, handlers, and seed companies in areas under first regulated crop season. Growers, handlers, and seed companies are eligible to receive compensation for the loss in value of their wheat in accordance with paragraphs (a)(1) and (a)(2) of this section if: The wheat was grown in a State where the Secretary has declared an extraordinary emergency; and the wheat was grown in an area of that State that became regulated for Karnal bunt after the crop was planted, or for which an Emergency Action Notification (PPQ Form 523) was issued after the crop was planted; and the wheat was grown in an area that remained regulated or under Emergency Action Notification at the time the wheat was sold. Growers and handlers of wheat grown in Oklahoma during the 2000–2001 growing season are eligible to receive compensation if the wheat was commingled in storage with wheat that meets the above requirements of this paragraph. Growers, handlers, and seed companies in areas under the first regulated crop season are eligible for compensation for 1999–2000 or subsequent crop season wheat and for wheat inventories in their possession that were unsold at the time the area became regulated. The compensation provided in this paragraph is for wheat grain, certified wheat seed, wheat held back from harvest by a grower in the 2000–2001 growing season for use as seed in the next growing season, and wheat grown with the intention of producing certified wheat seed.


(1) Growers. Growers of wheat in an area under the first regulated crop season, who sell wheat that was tested by APHIS and found positive for Karnal bunt prior to sale, or that was tested by APHIS and found positive for Karnal bunt after sale and the price received by the grower is contingent on the test results, are eligible to receive compensation as described in paragraphs (a)(1)(i) and (a)(1)(ii) of this section. However, compensation for positive-testing wheat will not exceed $1.80 per bushel under any circumstances.


(i) If the wheat was grown under contract and a price was determined in the contract before the area where the wheat was grown became regulated, compensation will equal the contract price minus the actual price received by the grower.


(ii) If the wheat was not grown under contract or a price was determined in the contract after the area where the wheat was grown became regulated, compensation will equal the estimated market price for the relevant class of wheat (meaning type of wheat, such as durum or hard red winter) minus the actual price received by the grower. The estimated market price will be calculated by APHIS for each class of wheat, taking into account the prices offered by relevant terminal markets (animal feed, milling, or export) during the harvest months for the area, with adjustments for transportation and other handling costs. Separate estimated market prices will be calculated for certified wheat seed and wheat grown with the intention of producing certified wheat seed, and wheat grain.


(2) Handlers and seed companies. Handlers and seed companies who sell wheat grown in an area under the first regulated crop season are eligible to receive compensation only if the wheat was not tested by APHIS prior to purchase by the handler or seed company, but was tested by APHIS and found positive for Karnal bunt after purchase by the handler or seed company, as long as the price to be paid is not contingent on the test results. Compensation will equal the estimated market price for the relevant class of wheat (meaning type of wheat, such as durum or hard red winter) minus the actual price received by the handler or seed company. The estimated market price will be calculated by APHIS for each class of wheat, taking into account the prices offered by relevant terminal markets (animal feed, milling, or export) during the harvest months for the area, with adjustments for transportation and other handling costs. Separate estimated market prices will be calculated for certified wheat seed and wheat grown with the intention of producing certified wheat seed, and wheat grain. However, compensation will not exceed $1.80 per bushel under any circumstances.


(b) Growers, handlers, and seed companies in previously regulated areas. For the 1999–2000 crop season and the 2000–2001 crop season only, growers, handlers, and seed companies are eligible to receive compensation for the loss in value of their wheat in accordance with paragraphs (b)(1) and (b)(2) of this section if: The wheat was grown in a State where the Secretary has declared an extraordinary emergency; and the wheat was grown in an area of that State that became regulated for Karnal bunt before the crop was planted, or for which an Emergency Action Notification (PPQ Form 523) was issued before the crop was planted; and the wheat was grown in an area that remained regulated or under Emergency Action Notification at the time the wheat was sold. Growers, handlers, and seed companies in previously regulated areas will not be eligible for compensation for wheat from the 2001–2002 and subsequent crop seasons; except that, for growers or handlers of wheat harvested in any field in the Texas counties of Archer, Baylor, Throckmorton, and Young during the 2000–2001 crop season that has not been found to contain a bunted wheat kernel, this requirement applies to compensation for wheat from the 2002–2003 and subsequent crop seasons. The compensation provided in this paragraph is for wheat grain, certified wheat seed, and wheat grown with the intention of producing certified wheat seed.


(1) Growers. Growers of wheat in a previously regulated area who sell wheat that was tested by APHIS and found positive for Karnal bunt prior to sale, or that was tested by APHIS and found positive for Karnal bunt after sale and the price received by the grower is contingent on the test results, are eligible to receive compensation at the rate of $.60 per bushel of positive testing wheat.


(2) Handlers and seed companies. Handlers and seed companies who sell wheat grown in a previously regulated area are eligible to receive compensation only if the wheat was not tested by APHIS prior to purchase by the handler, but was tested by APHIS and found positive for Karnal bunt after purchase by the handler or seed company, as long as the price to be paid by the handler or seed company is not contingent on the test results. Compensation will be at the rate of $.60 per bushel of positive testing wheat.


(c) To claim compensation. Compensation payments to growers, handlers, and seed companies under paragraphs (a) and (b) of this section will be issued by the Farm Service Agency (FSA). Claims for compensation for the 1999–2000 crop season must be received by FSA on or before December 4, 2001. Claims for compensation for subsequent crop seasons must be received by FSA on or before March 1 of the year following that crop season. The Administrator may extend the deadline, upon request in specific cases, when unusual and unforeseen circumstances occur that prevent or hinder a claimant from requesting compensation on or before these dates. To claim compensation, a grower, handler, or seed company must complete and submit to the local FSA county office the following documents:


(1) Growers, handlers, and seed companies. A grower, handler, or seed company must submit a Karnal Bunt Compensation Claim form, provided by FSA. If the wheat was grown in an area that is not a regulated area, but for which an Emergency Action Notification (PPQ Form 523) (EAN) has been issued, the grower, handler, or seed company must submit a copy of the EAN. Growers, handlers, and seed companies must also submit a copy of the Karnal bunt certificate issued by APHIS that shows the Karnal bunt test results, and verification as to the actual (not estimated) weight of the wheat that tested positive (such as a copy of a facility weigh ticket, or other verification). For compensation claims for wheat seed, a grower or seed company must submit documentation showing that the wheat is either certified seed or was grown with the intention of producing certified seed (this documentation may include one or more of the following types of documents: an application to the State seed certification agency for field inspection; a bulk sale certificate; certification tags or labels issued by the State seed certification agency; or a document issued by the State seed certification agency verifying that the wheat is certified seed);


(2) Growers. In addition to the documents required in paragraph (c)(1) of this section, growers must submit a copy of the receipt for the final sale of the wheat, showing the total bushels sold and the total price received by the grower. Growers compensated under paragraph (b)(1) of this section (previously regulated areas) whose wheat was not tested prior to sale must submit documentation showing that the price paid to the grower was contingent on test results (such as a copy of the receipt for the final sale of the wheat or a copy of the contract the grower has for the wheat, if this information appears on those documents).


(3) Handlers and seed companies. In addition to the documents required in paragraph (c)(1) of this section, handlers and seed companies must submit a copy of the receipt for the final sale of the wheat, showing the total bushels sold and the total price received by the handler or seed company. The handler or seed company must also submit documentation showing that the price paid or to be paid to the grower is not contingent on the test results (such as a copy of the receipt for the purchase of the wheat or a copy of the contract the handler or seed company has with the grower, if this information appears on those documents).


(d) Special allowance for negative wheat grown in Archer, Baylor, Throckmorton, and Young Counties, TX, in the 2000–2001 growing season. Notwithstanding any other provision of this section, wheat that was harvested from fields in Archer, Baylor, Throckmorton, or Young Counties, TX, in the 2000–2001 growing season, and that tested negative for Karnal bunt after harvest, is eligible for compensation in accordance with paragraph (a) of this section.


(e) Special allowance for disposal costs for treated uncertified wheat seed in Archer, Baylor, Throckmorton, and Young Counties, TX, in the 2000–2001 growing season. Notwithstanding any other provision of this section, growers in Archer, Baylor, Throckmorton, or Young Counties, TX, who own treated uncertified wheat seed that tested positive for Karnal bunt spores during the 2000–2001 growing season are eligible for compensation in accordance with this paragraph. The grower is eligible for compensation for the costs of disposing of such wheat seed, by burial on the grower’s premises, by burial at a landfill, or through another means approved by APHIS. The compensation for disposing of wheat seed by burial on the grower’s premises is $1.00 per bushel. The compensation for disposing of wheat seed by burial at a landfill, or through another means approved by APHIS, is the actual cost of disposal, up to $1.20 per bushel, as verified by receipts for disposal costs. To apply for this compensation, the grower must submit a Karnal Bunt Compensation Claim form, provided by FSA, and must also submit a copy of the Karnal bunt certificate issued by APHIS that shows the Karnal bunt test results, and verification as to the actual (not estimated) weight of the uncertified wheat seed that tested positive for spores (such as a copy of a facility weigh ticket, or other verification). For seed disposed of by burial at a landfill the grower must also submit one or more receipts for the disposal costs of the uncertified wheat seed, showing the total bushels destroyed and the total disposal costs (landfill fees, transportation costs, etc.).


[63 FR 31599, June 10, 1998, as amended at 64 FR 34113, June 25, 1999; 66 FR 40842, Aug. 6, 2001; 67 FR 21566, May 1, 2002]


§ 301.89-16 Compensation for grain storage facilities, flour millers, National Survey participants, and certain custom harvesters and equipment owners or lessees for the 1999–2000 and subsequent crop seasons.

Owners of grain storage facilities, flour millers, and participants in the National Karnal Bunt Survey are eligible to receive compensation from the United States Department of Agriculture (USDA) for the 1999–2000and subsequent crop seasons to mitigate losses or expenses incurred because of the Karnal bunt regulations and emergency actions, as follows:


(a) Decontamination of grain storage facilities. Owners of grain storage facilities that are in States where the Secretary has declared an extraordinary emergency, and who have decontaminated their grain storage facilities pursuant to either an Emergency Action Notification (PPQ Form 523) issued by an inspector or a letter issued by an inspector ordering decontamination of the facilities, are eligible to be compensated, on a one time only basis for each facility for each covered crop year wheat, for up to 50 percent of the direct cost of decontamination. However, compensation will not exceed $20,000 per grain storage facility (as defined in § 301.89–1). General clean-up, repair, and refurbishment costs are excluded from compensation. Compensation payments will be issued by APHIS. To claim compensation, the owner of the grain storage facility must submit to an inspector records demonstrating that decontamination was performed on all structures, conveyances, or materials ordered by APHIS to be decontaminated. The records must include a copy of the Emergency Action Notification or the letter from an inspector ordering decontamination, contracts with individuals or companies hired to perform the decontamination, receipts for equipment and materials purchased to perform the decontamination, time sheets for employees of the grain storage facility who performed activities connected to the decontamination, and any other documentation that helps show the cost to the owner and that decontamination has been completed. Claims for compensation for the 1999–2000 crop season must be received by APHIS on or before December 4, 2001. Claims for compensation for the 2000–2001 crop season and beyond must be received by March 1 of the year following that crop season. The Administrator may extend these deadlines upon written request in specific cases, when unusual and unforeseen circumstances occur that prevent or hinder a claimant from requesting compensation on or before these dates.


(b) Flour millers. Flour millers who, in accordance with a compliance agreement with APHIS, heat treat millfeed that is required by APHIS to be heat treated are eligible to be compensated at the rate of $35.00 per short ton of millfeed. The amount of millfeed compensated will be calculated by multiplying the weight of wheat from the regulated area received by the miller by 25 percent (the average percent of millfeed derived from a short ton of grain). Compensation payments will be issued by APHIS. To claim compensation, the miller must submit to an inspector verification as to the actual (not estimated) weight of the wheat (such as a copy of a facility weigh ticket or a copy of the bill of lading for the wheat, if the actual weight appears on those documents, or other verification). Flour millers must also submit verification that the millfeed was heat treated (such as a copy of the limited permit under which the wheat was moved to a treatment facility and a copy of the bill of lading accompanying that movement; or a copy of PPQ Form 700 (which includes certification of processing) signed by the inspector who monitors the mill). Claims for compensation for the 1999–2000 crop season must be received by APHIS on or before December 4, 2001. Claims for compensation for the 2000–2001 crop season and beyond must be received by March 1 of the year following that crop season. The Administrator may extend these deadlines upon written request in specific cases, when unusual and unforeseen circumstances occur that prevent or hinder a claimant from requesting compensation on or before these dates.


(c) National Karnal Bunt Survey participants. If a grain storage facility participating in the National Karnal Bunt Survey tests positive for Karnal bunt, the facility will be regulated, and may be ordered decontaminated, pursuant to either an Emergency Action Notification (PPQ Form 523) issued by an inspector or a letter issued by an inspector ordering decontamination of the facility. If the Secretary has declared an extraordinary emergency in the State in which the grain storage facility is located, the owner will be eligible for compensation as follows:


(1) Loss in value of positive wheat. The owner of the grain storage facility will be compensated for the loss in value of positive wheat. Compensation will equal the estimated market price for the relevant class of wheat minus the actual price received for the wheat. The estimated market price will be calculated by APHIS for each class of wheat, taking into account the prices offered by relevant terminal markets (animal feed, milling, or export) during the relevant time period for that facility, with adjustments for transportation and other handling costs. However, compensation will not exceed $1.80 per bushel under any circumstances. Compensation payments for loss in value of wheat will be issued by the Farm Service Agency (FSA). To claim compensation, the owner of the facility must submit to the local FSA office a Karnal Bunt Compensation Claim form, provided by FSA. The owner of the facility must also submit to FSA a copy of the Emergency Action Notification or letter from an inspector under which the facility is or was quarantined; verification as to the actual (not estimated) weight of the wheat (such as a copy of a facility weigh ticket or a copy of the bill of lading for the wheat, if the actual weight appears on those documents, or other verification); and a copy of the receipt for the final sale of the wheat, showing the total bushels sold and the total price received by the owner of the grain storage facility. Claims for compensation for the 1999–2000 crop season must be received by APHIS on or before December 4, 2001. Claims for compensation for the 2000–2001 crop season and beyond must be received by March 1 of the year following that crop season. The Administrator may extend these deadlines upon written request in specific cases, when unusual and unforeseen circumstances occur that prevent or hinder a claimant from requesting compensation on or before these dates.


(2) Decontamination of grain storage facilities. The owner of the facility will be compensated on a one time only basis for each grain storage facility for each covered crop year wheat for the direct costs of decontamination of the facility at the same rate described under paragraph (a) of this section (up to 50 per cent of the direct costs of decontamination, not to exceed $20,000 per grain storage facility). Compensation payments for decontamination of grain storage facilities will be issued by APHIS, and claims for compensation must be submitted in accordance with the provisions in paragraph (a) of this section. Claims for compensation for the 1999–2000 crop season must be received by APHIS on or before December 4, 2001. Claims for compensation for the 2000–2001 crop season and beyond must be received by March 1 of the year following that crop season. The Administrator may extend these deadlines upon written request in specific cases, when unusual and unforeseen circumstances occur that prevent or hinder a claimant from requesting compensation on or before these dates.


(d) Special allowances for custom harvesters and equipment owners or lessees for costs related to cleaning and disinfection of mechanized harvesting and other equipment in Archer, Baylor, Throckmorton, and Young Counties, TX, in the 2000–2001 crop season. All claims for compensation under this paragraph § 301.89–16(d) must be received by APHIS on or before September 6, 2005. The Administrator may extend this deadline upon written request in specific cases, when unusual and unforeseen circumstances occur that prevent or hinder a claimant from requesting compensation on or before this date. All compensation payments made under this paragraph § 301.89–16(d) will be issued by APHIS. Claims for compensation should be sent to Plant Protection and Quarantine, APHIS, USDA, 304 West Main Street, Olney, TX 76374.


(1) Custom harvesters. (i) Cleaning and disinfection of mechanized harvesting equipment. Custom harvesters who harvested host crops that an inspector determined to be infected with Karnal bunt and that were grown in Archer, Baylor, Throckmorton, or Young Counties, TX, during the 2000–2001 crop season are eligible to receive compensation for the cost of cleaning and disinfecting their mechanized harvesting equipment as required by § 301.89–12(a). Compensation for the cost of cleaning and disinfection mechanized harvesting equipment used to harvest Karnal bunt-infected host crops will be either the actual cost or $750 per cleaned machine, whichever is less. To claim compensation, a custom harvester must provide copies of a contract or other signed agreement for harvesting in Archer, Baylor, Throckmorton, or Young County during the 2000–2001 crop season, signed on a date prior to the designation of the county as a regulated area for Karnal bunt, or an affidavit stating that the custom harvester entered into an agreement to harvest in Archer, Baylor, Throckmorton, or Young County during the 2000–2001 crop season prior to the designation of the county as a regulated area for Karnal bunt, signed by the customer with whom the custom harvester entered into the agreement; a copy of the PPQ–540 certificate issued to allow the movement of mechanized harvesting equipment from a regulated area after it had been used to harvest host crops that an inspector determined to be infected with Karnal bunt and had been subsequently cleaned and disinfected; and a receipt showing the cost of the cleaning and disinfection.


(ii) Contracts lost due to cleaning and disinfection. Custom harvesters who harvested host crops that an inspector determined to be infected with Karnal bunt and that were grown in Archer, Baylor, Throckmorton, or Young Counties, TX, during the 2000–2001 crop season are also eligible to be compensated for the revenue lost if they lost one contract due to downtime necessitated by cleaning and disinfection, if the contract to harvest Karnal bunt-infected host crops in a previously nonregulated area was signed before the area was declared a regulated area for Karnal bunt. Compensation will only be provided for one contract lost due to cleaning and disinfection. Compensation for any contract that was lost due to cleaning and disinfection will be either the full value of the contract or $23.48 for each acre that was to have been harvested under the contract, whichever is less. To claim compensation, a custom harvester must provide copies of a contract or other signed agreement for harvesting in Archer, Baylor, Throckmorton, or Young County during the 2000–2001 crop season, signed on a date prior to the designation of the county as a regulated area for Karnal bunt, or an affidavit stating that the custom harvester entered into an agreement to harvest in Archer, Baylor, Throckmorton, or Young County during the 2000–2001 crop season prior to the designation of the county as a regulated area for Karnal bunt, signed by the customer with whom the custom harvester entered into the agreement; a copy of the PPQ–540 certificate issued to allow the movement of mechanized harvesting equipment from a regulated area after it has been used to harvest host crops that an inspector determined to be infected with Karnal bunt and had been subsequently cleaned and disinfected; and the contract for harvesting in an area not regulated for Karnal bunt that had been lost due to time lost to cleaning and disinfecting harvesting equipment, signed on a date prior to the designation of the relevant county as a regulated area for Karnal bunt, for which the custom harvester will receive compensation, or an affidavit stating that the custom harvester entered into an agreement to harvest in an area not regulated for Karnal bunt prior to the designation of the county as a regulated area for Karnal bunt and stating the number of acres that were to have been harvested and the amount the custom harvester was to have been paid under the agreement, signed by the customer with whom the custom harvester entered into the agreement.


(iii) Fixed costs incurred during cleaning and disinfection. Custom harvesters who harvested host crops that an inspector determined to be infected with Karnal bunt and that were grown in Archer, Baylor, Throckmorton, or Young Counties, TX, during the 2000–2001 crop season who do not apply for compensation for a contract lost due to cleaning and disinfection as described in paragraph (d)(1)(ii) of this section are eligible for compensation for fixed costs incurred during cleaning and disinfection. Compensation for fixed costs incurred during cleaning and disinfection will be $2,000. To claim compensation, a custom harvester must provide copies of a contract or other signed agreement for harvesting in Archer, Baylor, Throckmorton, or Young County during the 2000–2001 crop season, signed on a date prior to the designation of the county as a regulated area for Karnal bunt, or an affidavit stating that the custom harvester entered into an agreement to harvest in Archer, Baylor, Throckmorton, or Young County during the 2000–2001 crop season prior to the designation of the county as a regulated area for Karnal bunt, signed by the customer with whom the custom harvester entered into the agreement; and a copy of the PPQ–540 certificate issued to allow the movement of mechanized harvesting equipment from a regulated area after it has been used to harvest host crops that an inspector determined to be infected with Karnal bunt and has been subsequently cleaned and disinfected.


(2) Other equipment; cleaning and disinfection. Owners or lessees of equipment other than mechanized harvesting equipment and seed conditioning equipment that came into contact with host crops that an inspector determined to be infected with Karnal bunt in Archer, Baylor, Throckmorton, or Young Counties, TX, during the 2000–2001 crop season and that was required by an inspector to be cleaned and disinfected are eligible for compensation for the cost of cleaning and disinfection. Compensation for the cleaning and disinfection of such equipment will be $100. To receive this compensation, owners or lessees must submit a copy of the PPQ–540 certificate issued to allow the movement of the equipment from a regulated area after it had been in contact with host crops that an inspector determined to be infected with Karnal bunt and had been subsequently cleaned and disinfected.


(Approved by the Office of Management and Budget under control number 0579–0248)

[63 FR 31600, June 10, 1998, as amended at 64 FR 34113, June 25, 1999; 66 FR 40842, Aug. 6, 2001; 69 FR 24915, May 5, 2004; 69 FR 41181, July 8, 2004; 70 FR 24302, May 9, 2005]


Subpart V—Corn Cyst Nematode [Reserved]

Subpart W—European Larch Canker


Source:49 FR 18992, May 4, 1984, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

Quarantine and Regulations

§ 301.91 Quarantine and regulations; restrictions on interstate movement of regulated articles.

(a) Notice of quarantine. Under the authority of sections 411, 412, 414, and 434 of the Plant Protection Act (7 U.S.C. 7711, 7712, 7714, and 7754),
1 the Secretary of Agriculture establishes a quarantine within the United States to prevent the artificial spread of European larch canker (Lachnellula willkommi (Dasycypha)). The regulations in this subpart govern the interstate movement from regulated areas of regulated articles.


(b) Restrictions on interstate movement of regulated articles. No common carrier or other person shall move interstate from any regulated area any regulated article except in accordance with the conditions prescribed in this subpart.


[49 FR 18992, May 4, 1984, as amended at 66 FR 21053, Apr. 27, 2001; 87 FR 80017, Dec. 29, 2022]


§ 301.91-1 Definitions.

Terms used in the singular form in this subpart shall be construed as the plural and vice versa, as the case may demand. The following terms, when used in this subpart, shall be construed, respectively, to mean:


Certificate. A document which is issued for a regulated article by an inspector or by a person operating under a compliance agreement, and which represents that such article is eligible for interstate movement in accordance with § 301.91–5(a).


Compliance agreement. A written agreement between Plant Protection and Quarantine and a person engaged in the business of growing, handling, or moving regulated articles, wherein the person agrees to comply with the provisions of this subpart and any conditions imposed pursuant thereto.


Deputy Administrator. The Deputy Administrator of the Animal and Plant Health Inspection Service for Plant Protection and Quarantine, or any officer or employee of the Department to whom authority to act in his/her stead has been or may hereafter be delegated.


European larch canker. The plant disease known as European larch canker, Lachnellula willkommi (Dasycypha), in any stage of development.


Infestation. The presence of European larch canker or the existence of circumstances that make it reasonable to believe that the European larch canker is present.


Inspector. Any employee of Plant Protection and Quarantine, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or other person, authorized by the Deputy Administrator in accordance with law to enforce the provisions of the quarantines and regulations in this subpart.


Interstate. From any State into or through any other State.


Limited permit. A document which is issued for a regulated article by an inspector or by a person operating under a compliance agreement, and which represents that such regulated article is eligible for interstate movement in accordance with § 301.91–5(b).


Moved (movement, move). 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 or caused to be moved by any means. “Movement” and “move” shall be construed accordingly.


Person. Any individual, partnership, corporation, company, society, association, or other organized group.


Plant Protection and Quarantine. The organizational unit within the Animal and Plant Health Inspection Service, U.S. Department of Agriculture, delegated responsibility for enforcing provisions of the Plant Protection Act and related legislation, quarantines, and regulations.


Regulated area. Any State, or any portion thereof, listed in accordance with § 301.91–3.


Regulated article. Any article identified as a regulated article under § 301.91–2 as follows: listed as of January 30, 2023, added in accordance with § 301.91–2(b), or otherwise designated in accordance with § 301.91–2(c).


State. Each of the several States of the United States, the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, the Virgin Islands of the United States and all other Territories and Possessions of the United States.


[49 FR 18992, May 4, 1984, as amended at 66 FR 21053, Apr. 27, 2001; 87 FR 80017, Dec. 29, 2022]


§ 301.91-2 Regulated articles.

(a) List of regulated articles. The Deputy Administrator has determined that certain articles present a risk of spreading European larch canker. A list of all such regulated articles is found on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/plant-disease/elc/european-larch-canker. Lists of all regulated articles may also be obtained by request from any local Plant Protection and Quarantine (PPQ) office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd.


(b) Normal process for designating additional regulated articles. (1) If the Deputy Administrator determines that an article not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/plant-disease/elc/european-larch-canker presents a risk of spreading European larch canker, APHIS will publish a notice in the Federal Register proposing to designate the article as a regulated article for European larch canker. The notice will provide the basis for this determination, and will request public comment.


(2) If no comments are received on the notice, or if the comments do not change the Deputy Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for European larch canker and listing it.


(c) Immediate designation of regulated articles. An inspector may designate any other product, article, or means of conveyance as a regulated article for European larch canker, if the inspector determines that it presents a risk of spreading European larch canker, and after the inspector provides actual notification to the person in possession of the product, article, or means of conveyance that it is subject to the restrictions of this subpart.


[87 FR 80017, Dec. 29, 2022]


§ 301.91-3 Regulated areas.

(a) Except as otherwise provided in paragraph (b) of this section, the Deputy Administrator will list as a regulated area each State, or each portion of a State, in which European larch canker has been found by an inspector, or in which the Deputy Administrator has reason to believe that European larch canker is present, or any portion of a quarantined State which the Deputy Administrator deems necessary to regulate because of its proximity to a European larch canker infestation or its inseparability for quarantine enforcement purpose from localities in which European larch canker occurs. The Deputy Administrator will publish a list of all regulated areas (the regulated areas list) on the PPQ website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/plant-disease/elc/european-larch-canker. The list will include the date that the list was last updated. Lists of all regulated areas may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of regulated areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the regulated areas. Less than an entire quarantined State will be designated as a regulated area only if the Deputy Administrator determines that:


(1) The State has adopted and is enforcing a quarantine or regulation which imposes restrictions on the intrastate movement of the regulated articles which are substantially the same as those which are imposed with respect to the interstate movement of such articles under this subpart; and


(2) The designation of less than the entire State as a regulated area will otherwise be adequate to prevent the artificial interstate spread of European larch canker.


(b) The Deputy Administrator or an inspector may temporarily designate any nonregulated area in a quarantined State as a regulated area in accordance with the criteria specified in paragraph (a) of this section. The Deputy Administrator will give a copy of this subpart along with written notice of the temporary designation to the owner or person in possession of the nonregulated area, or, in the case of publicly owned land, to the person responsible for the management of the nonregulated area. Thereafter, the interstate movement of any regulated article from an area temporarily designated as a regulated area will be subject to this subpart. As soon as practicable, the area will be added to the regulated areas list or the designation will be terminated by the Deputy Administrator or an inspector. The owner or person in possession of, or, in the case of publicly owned land, the person responsible for the management of, an area for which designation is terminated will be given written notice of the termination as soon as practicable.


[87 FR 80017, Dec. 29, 2022]


§ 301.91-4 Conditions governing the interstate movement of regulated articles from regulated areas in quarantined States.

Any regulated article may be moved interstate from any regulated area in a quarantined State only if moved under the following conditions:
1




1 Requirements under all other applicable Federal domestic plant quarantines must also be met.


(a) With a certificate or limited permit issued and attached in accordance with §§ 301.91–5 and 301.91–8; or


(b) Without a certificate or limited permit;


(1) If moved to a contiguous regulated area; or


(2)(i) If moved directly through (moved without stopping except under normal traffic conditions such as traffic lights or stop signs) any regulated area in an enclosed vehicle or in an enclosed container on a vehicle to prevent the introduction of European larch canker;


(ii) If the article originated outside of any regulated area; and


(iii) If the point of origin of any article is clearly indicated by shipping documents and its identity has been maintained.


[49 FR 18992, May 4, 1984, as amended at 87 FR 80018, Dec. 29, 2022]


§ 301.91-5 Issuance and cancellation of certificates and limited permits.

(a) A certificate shall be issued by an inspector, except as provided in paragraph (c) of this section, for the movement of a regulated article if such inspector:


(1)(i) Determines based on inspection of the premises of origin that the premises are free from European larch canker; or


(ii) Determines that it has been grown, processed, stored, or handled in such a manner that the regulated article is free of European larch canker; and


(2) Determines that it is to be moved in compliance with any additional conditions deemed necessary under section 414 of the Plant Protection Act (7 U.S.C. 7714)
1
to prevent the spread of European larch canker; and




1 An inspector may hold, seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of plants, plant pests, or other articles in accordance with sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


(3) Determines that it is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to such article.


(b) A limited permit shall be issued by an inspector, except as provided in paragraph (c) of this section, for the movement of a regulated article if such inspector:


(1) Determines, in consultation with the Deputy Administrator, that it is to be moved to a specified destination for specified handling, utilization, or processing (such destination and other conditions to be specified on the limited permit), when, upon evaluation of all of the circumstances involved in each case, it is determined that such movement will not result in the spread of European larch canker because the disease will be destroyed by such specified handling, utilization, or processing;


(2) Determines that it is to be moved in compliance with any additional conditions deemed necessary under section 414 of the Plant Protection Act (7 U.S.C. 7714)
1 to prevent the spread of European larch canker; and


(3) Determines that it is eligible for such movement under all other Federal domestic plant quarantines and regulations applicable to such article.


(c) Certificates and limited permits may be issued by any person engaged in the business of growing, handling, or moving regulated articles provided such person has entered into and is operating under a compliance agreement. Any such person may execute and issue a certificate or limited permit for the interstate movement of a regulated article if an inspector has previously made the determination that the article is eligible for a certificate in accordance with § 301.91–5(a) or is eligible for a limited permit in accordance with § 301.91–5(b).


(d) Any certificate or limited permit which has been issued or authorized may be withdrawn by an inspector if such inspector determines that the holder thereof has not complied with any conditions under the regulations for the use of such document. The reasons for the withdrawal shall be confirmed in writing as promptly as circumstances permit. Any person whose certificate or limited permit has been withdrawn may appeal the decision in writing to the Deputy Administrator within ten (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 certificate or limited permit was wrongfully withdrawn. The Deputy Administrator shall grant or deny the appeal, in witing, stating the reasons for such decision, as promptly as circmstances permit. 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 Deputy Administrator.


[49 FR 18992, May 4, 1984, as amended at 66 FR 21053, Apr. 27, 2001; 87 FR 80018, Dec. 29, 2022]


§ 301.91-6 Compliance agreement and cancellation thereof.

(a) Any person engaged in the business of growing, handling, or moving regulated articles may enter into a compliance agreement to facilitate the movement of regulated articles under this subpart.
1
The compliance agreement shall be a written agreement between a person engaged in such a business and Plant Protection and Quarantine, wherein the person agrees to comply with the provisions of this subpart and any conditions imposed pursuant thereto.




1 Compliance agreement forms are available without charge from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236, and from local offices of the Plant Protection and Quarantine. (Local offices are listed in telephone directories).


(b) Any compliance agreement may be cancelled orally or in writing by the inspector who is supervising its enforcement whenever the inspector finds that such person has failed to comply with the provisions of this subpart or any conditions imposed pursuant thereto. If the cancellation is oral, the decision and the reasons therefor shall be confirmed in writing, as promptly as circumstances permit. Any person whose compliance agreement has been cancelled may appeal the decision, in writing, to the Deputy Administrator within ten (10) days after receiving written notification of the cancellation. The appeal shall state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully cancelled. The Deputy Administrator shall grant or deny the appeal, in writing, stating the reasons for such decision, as promptly as circumstances permit. 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 Deputy Administrator.


[49 FR 18992, May 4, 1984, as amended at 59 FR 67609, Dec. 30, 1994; 87 FR 80018, Dec. 29, 2022]


§ 301.91-7 Assembly and inspection of regulated articles.

(a) Any person (other than a person authorized to issue certificates or limited permits under § 301.91–5(c)), who desires to move interstate a regulated article accompanied by a certificate or limited permit shall, as far in advance as possible (should be no less than 48 hours before the desired movement), request an inspector
1
to take any necessary action under this subpart prior to movement of the regulated article.




1 Inspectors are assigned to local offices of Plant Protection and Quarantine which are listed in telephone directories. Information concerning such local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737–1236.


(b) Such articles shall be assembled at such point and in such manner as the inspector designates as necessary to comply with the requirements of this subpart.


[49 FR 18992, May 4, 1984, as amended at 59 FR 67609, Dec. 30, 1994; 87 FR 80018, Dec. 29, 2022]


§ 301.91-8 Attachment and disposition of certificates and limited permits.

(a) A certificate or limited permit required for the interstate movement of a regulated article, at all times during such movement, shall be securely attached to the outside of the containers containing the regulated article, securely attached to the article itself if not in a container, or securely attached to the consignee’s copy of the accompanying waybill or other shipping document; Provided, however, That the requirements of this section may be met by attaching the certificate or limited permit to the consignee’s copy of the waybill or other shipping documents only if the regulated article is sufficiently described on the certificate, limited permit, or shipping document to identify such article.


(b) The certificate or limited permit for the movement of a regulated article shall be furnished by the carrier to the consignee at the destination of the shipment.


§ 301.91-9 Costs and charges.

The services of the inspector shall be furnished without cost, except as provided in 7 CFR part 354. The U.S. Department of Agriculture will not be responsible for any costs or charges incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.


Subpart X—Phytophthora Ramorum


Source:72 FR 8597, Feb. 27, 2007, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 301.92 Restrictions on interstate movement.

(a) No person may move interstate from any quarantined area any regulated, restricted, or associated article or any other nursery stock except in accordance with this subpart.
1




1 Any properly identified inspector is authorized to stop and inspect persons and means of conveyance and to seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of regulated or restricted articles as provided in sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


(b) No person may move interstate from any regulated establishment any regulated, restricted, or associated articles except in accordance with this subpart.


(c) No person may move interstate from any quarantined area or regulated establishment any regulated restricted, or associated article or nursery stock that has been tested with a test approved by APHIS and found infected with Phytophthora ramorum, or that is part of a plant that was found infected with Phytophthora ramorum, unless such movement is in accordance with part 330 of this chapter.


[72 FR 8597, Feb. 27, 2007, as amended at 84 FR 16192, Apr. 18, 2019]


§ 301.92-1 Definitions.

Administrator. The Administrator, Animal and Plant Health Inspection Service, or any person authorized to act for the Administrator.


Animal and Plant Health Inspection Service. The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture.


Associated article. Any article listed in § 301.92–2(c).


Bark chips. Bark fragments broken or shredded from a log or tree.


Certificate. A document, stamp, or imprint by which an inspector or person operating under a compliance agreement affirms that a specified regulated or associated article meets applicable requirements of this subpart and may be moved interstate to any destination.


Compliance agreement. A written agreement between APHIS and a person engaged in growing, processing, handling, or moving regulated or associated articles, wherein the person agrees to comply with this subpart.


Duff. Decaying plant matter that includes leaf litter, green waste, stem material, bark, and any other plant material that, upon visual inspection, does not appear to have completely decomposed.


Firewood. Wood that has been cut, sawn, or chopped into a shape and size commonly used for fuel, or other wood intended for fuel.


Forest stock. All flowers, trees, shrubs, vines, scions, buds, or other plants that are wild-grown, backyard-grown, or naturally occurring.


From. An article is considered to be “from” a specific site or location for the purposes of this subpart if it was grown or propagated in, stored or sold, or distributed from the site or location.


Growing media. Any material in which plant roots are growing or intended for that purpose.


Inspector. Any employee of APHIS, the U.S. Department of Agriculture, or other person authorized by the Administrator to perform the duties required under this subpart.


Interstate. From any State into or through any other State.


Log. The bole of a tree; trimmed timber that has not been sawn further than to form cants.


Lot. A contiguous block of plants of the same species or cultivar, of the same container size and from the same source, if known.


Lumber. Logs that have been sawn into boards, planks, or structural members such as beams.


Moved (move, movement). Shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried.


Mulch. Bark chips, wood chips, wood shavings, or sawdust, or a mixture thereof, that could be used as a protective or decorative ground cover or as part of a growing media mixture.


Non-host nursery stock. Any taxa of nursery stock not listed in accordance with § 301.92–2 as a regulated or associated article.


Nursery. Any location where nursery stock is grown, propagated, stored, or sold, or any location from which nursery stock is distributed. Locations that grow trees for sale without roots (e.g., as Christmas trees) are considered to be nurseries for the purposes of this subpart.


Nursery stock. All plants for planting, including houseplants, propagative material that is grown in a nursery, and tree seedlings for reforestation, except the following: Seeds; turf or sod; bulbs, tubers, corms, or rhizomes;
1
greenhouse grown cactus, succulents, and orchids; aquarium grown aquatic plants; greenhouse, container, or field grown palms; greenhouse, container, or field grown cycads, and tissue culture plants grown in vitro; and plants meeting the definition of forest stock.




1 Bulbs, tubers, corms, or rhizomes are only considered nursery stock (and therefore, regulated under this subpart) if they are of plant taxa listed in accordance with § 301.92–2 as regulated articles or associated articles.


Permit. A written authorization issued by APHIS to allow the interstate movement of restricted articles in accordance with part 330 of this chapter.


Person. Any association, company, corporation, firm, individual, joint stock company, partnership, society, or other entity.


Plant Protection and Quarantine. The Plant Protection and Quarantine program of the Animal and Plant Health Inspection Service, United States Department of Agriculture.


Quarantined area. Any State, or any portion of a State, designated as a quarantined area in accordance with § 301.92–3.


Regulated article. Any article listed in § 301.92–2(b).


Restricted article. Any article listed in § 301.92–2(a).


Regulated establishment. Any nursery regulated by APHIS pursuant to § 301.92–3(b).


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.


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States.


[72 FR 8597, Feb. 27, 2007, as amended at 84 FR 16192, Apr. 18, 2019; 87 FR 80018, Dec. 29, 2022]


§ 301.92-2 Restricted, regulated, and associated articles; lists of proven hosts and associated plant taxa.

(a) Restricted articles. The following are restricted articles:


(1) Bark chips or mulch located in a quarantined area and that are proven host plant taxa listed in accordance with paragraph (d) of this section.


(2) Forest stock located or grown in a quarantined area and that are proven host plant taxa or associated plant taxa listed in accordance with paragraph (d) or (e) of this section.


(3) Any other product or article that an inspector determines to present a risk of spreading Phytophthora ramorum, if an inspector notifies the person in possession of the product or article that it is a restricted article.


(b) Regulated articles. The following are regulated articles:


(1) Nursery stock, decorative trees without roots, unprocessed wood and wood products, and plant products, including firewood, logs, lumber, wreaths, garlands, and greenery of proven host plant taxa listed in accordance with paragraph (d) of this section.


(2) Soil and growing media.


(3) Any other product or article that an inspector determines to present a risk of spreading Phytophthora ramorum if an inspector notifies the person in possession of the product or article that it is subject to the restrictions in the regulations.


(c) Associated articles. The following are associated articles: Nursery stock of associated plant taxa listed in accordance with paragraph (e) of this section.


(d) Proven host plant taxa. The Administrator has determined that certain taxa of plants are proven hosts of Phytophthora ramorum. A list of all such proven host taxa is located on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/phytophthora-ramorum/sod. Lists of all proven host taxa may also be obtained by request from any local Plant Protection and Quarantine (PPQ) office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. If the Administrator determines that a taxon not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/phytophthora-ramorum/sod is a proven host of Phytophthora ramorum, APHIS will publish a notice in the Federal Register proposing to designate the taxon as a proven host of Phytophthora ramorum. The notice will provide the basis for this determination, and will request public comment. If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the taxon as a proven host of Phytophthora ramorum and listing it.


(e) Associated plant taxa. The Administrator has determined that certain plant taxa are associated with Phytophthora ramorum. A list of all such taxa is located on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/phytophthora-ramorum/sod. Lists of all associated taxa may also be obtained by request from any local PPQ office; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. If the Administrator determines that a taxon not already listed at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/phytophthora-ramorum/sod is associated with Phytophthora ramorum, APHIS will publish a notice in the Federal Register proposing to designate the taxon as associated with Phytophthora ramorum. The notice will provide the basis for this determination, and will request public comment. If no comments are received on the notice, or if the comments do not change the Administrator’s determination, APHIS will publish a second notice in the Federal Register designating the taxon as associated with Phytophthora ramorum and listing it.


[72 FR 8597, Feb. 27, 2007, as amended at 84 FR 16192, Apr. 18, 2019; 87 FR 80018, Dec. 29, 2022]


§ 301.92-3 Quarantined areas and regulated establishments.

(a) Quarantined areas. (1) Except as otherwise provided in paragraph (a)(2) of this section, the Administrator will designate as a quarantined area each State or portion of a State in which Phytophthora ramorum has been confirmed by an inspector to be established in the natural environment, in which the Administrator has reason to believe that Phytophthora ramorum is present in the natural environment, or that the Administrator considers it necessary to quarantine because of its inseparability for quarantine enforcement purposes from localities in which Phytophthora ramorum has been found in the natural environment. The Administrator will publish a list of all quarantined areas (the quarantine list) on the PPQ website at www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/phytophthora-ramorum/sod. The list will include the date that the list was last updated. Lists of all quarantined areas may also be obtained by request from any local office of PPQ; local offices are listed in telephone directories and on the internet at www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/sphd. After a change is made to the list of quarantined areas, APHIS will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined areas. Less than an entire State will be designated as a quarantined area only if the Administrator determines that:


(i) The State has adopted and is enforcing restrictions on the intrastate movement of regulated, restricted, and associated articles that are substantially the same as those imposed by this subpart on the interstate movement of regulated, restricted, and associated articles; and


(ii) The designation of less than the entire State as a quarantined area will prevent the interstate spread of Phytophthora ramorum.


(2) The Administrator or an inspector may temporarily designate any nonquarantined area as a quarantined area in accordance with the criteria in paragraph (a)(1) of this section. The Administrator or the inspector will give a copy of this subpart along with a written notice for the temporary designation to the owner or person in possession of the nonquarantined area. Thereafter, the interstate movement of any regulated, restricted, or associated article from the area temporarily designated as a quarantined area will be subject to this subpart. As soon as practicable, this area will be added to the quarantine list or the designation will be terminated by the Administrator or an inspector. The owner or person in possession of an area for which designation is terminated will be given notice of the termination as soon as practicable.


(b) Regulated establishments—(1) Designation. The Administrator will designate a nursery that is not located in a quarantined area for Phytophthora ramorum as a regulated establishment for Phytophthora ramorum if the nursery ships regulated, restricted, or associated articles interstate and sources of Phytophthora ramorum are detected on nursery stock, or in soil, growing media, pots used for nursery stock, standing water, drainage water, water used for irrigation, or any other regulated, restricted, or associated articles at the nursery.


(2) Deregulation. The Administrator will withdraw regulation of a regulated establishment if, for 3 consecutive years, each time the nursery is inspected by an inspector, it is found free of sources of Phytophthora ramorum inoculum.


(Approved by the Office of Management and Budget under control number 0579–0310)

[84 FR 16193, Apr. 18, 2019, as amended at 87 FR 80019, Dec. 29, 2022]


§ 301.92-4 Conditions governing the interstate movement of regulated, restricted, and associated articles, and non-host nursery stock from quarantined and regulated establishments.

(a) Interstate movement of regulated and associated articles from quarantined areas. Regulated and associated articles may be moved interstate from a quarantined area
1
only in accordance with this subpart.




1 Requirements under all other applicable Federal domestic plant quarantines and regulations must also be met.


(1) With a certificate. Any regulated or associated article may be moved interstate from a quarantined area if accompanied by a certificate issued and attached in accordance with §§ 301.92–5 and 301.92–8, and provided that the regulated or associated article is moved through the quarantined area without stopping except for refueling, rest stops, emergency repairs, and for traffic conditions, such as traffic lights or stop signs.


(2) Without a certificate. (i)(A) The regulated article or associated article originated outside the quarantined area and the point of origin of the article is indicated on the waybill of the vehicle transporting the article; and


(B) The regulated or associated article is moved from outside of the quarantined area through the quarantined area without stopping except for refueling or for traffic conditions, such as traffic lights or stop signs, and the article is not unpacked or unloaded in the quarantined area.


(ii) Soil samples may be moved from a quarantined area for Phytophthora ramorum for chemical or physical (compositional) analysis provided that they are moved to a laboratory; and that laboratory:


(A) Has entered into and is operating under a compliance agreement with APHIS in accordance with § 301.92–6;


(B) Is abiding by all terms and conditions of that compliance agreement; and


(C) Is approved by APHIS to test and/or analyze such samples.


(b) Interstate movement of restricted articles from quarantined areas. Restricted articles may be moved interstate from a quarantined area only in accordance with this section.


(1) With a permit. Any restricted article may be moved interstate from a quarantined area only if the article is moved pursuant to a permit issued by the Administrator in accordance with part 330 of this chapter.


(2) Without a permit. (i) The restricted article originated outside the quarantined area and the point of origin of the article is indicated on the waybill of the vehicle transporting the article; and


(ii) The restricted article is moved from outside the quarantined area through the quarantined area without stopping except for refueling or for traffic conditions, such as traffic lights or stop signs, and the article is not unpacked or unloaded in the quarantined area.


(c) Interstate movement of nursery stock from nurseries in quarantined areas—(1) Regulated articles of nursery stock and associated articles. Regulated articles of nursery stock and associated articles may only be moved interstate from nurseries in quarantined areas in accordance with paragraph (a) of this section.


(2) Non-host nursery stock. Any nursery stock of a taxon not listed in accordance with § 301.92–2 as a regulated or associated article may only be moved interstate from nurseries in quarantined areas as follows:


(i) With a certificate. If the non-host nursery stock originates from a nursery in a quarantined area that contains regulated or associated articles, the nursery stock must be accompanied by a certificate issued and attached in accordance with §§ 301.92–5 and 301.92–8, and be moved through the quarantined area without stopping except for refueling, rest stops, emergency repairs, and for traffic conditions, such as traffic lights or stop signs.


(ii) Without a certificate. If the non-host nursery stock originates from a nursery in a quarantined area that does not contain regulated or associated articles, the nursery stock may be moved interstate without a certificate, provided that:


(A) The nursery from which plants originate has been inspected and found free of evidence of Phytophthora ramorum in accordance with § 301.92–11(b)(3), and


(B) The nursery stock is not rooted in soil or growing media. To be eligible for interstate movement, non-host nursery stock that is rooted in soil or growing media requires certification that the soil or growing media meets the requirements of § 301.92–5(a)(1)(iii).


(d) Interstate movement of regulated, restricted, and associated articles from regulated establishments. Regulated, restricted, and associated articles may be moved interstate from a regulated establishment if the regulated establishment has entered into a compliance agreement with APHIS in accordance with § 301.92–6, and the articles are accompanied by a certificate issued in accordance with § 301.92–5.


[72 FR 8597, Feb. 27, 2007, as amended at 84 FR 16193, Apr. 18, 2019; 87 FR 80019, Dec. 29, 2022]


§ 301.92-5 Issuance and cancellation of certificates.

(a) Movements from quarantined areas. (1) An inspector
1
may issue a certificate for the interstate movement of regulated articles, associated articles, or non-host nursery stock
2
from a quarantined area if the inspector determines that:




1 Services of an inspector may be requested by contacting local offices of Plant Protection and Quarantine, which are listed in telephone directories. The addresses and telephone numbers of local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Invasive Species and Pest Management, 4700 River Road Unit 160, Riverdale, MD 20737, or the APHIS Web site at http://www.aphis.usda.gov/ppq/sphd/.




2 Paragraph (d)(2)(ii) of § 301.92–4 allows the interstate movement of non-host nursery stock without a certificate under certain conditions.


(i) The regulated articles have been treated under the direction of an inspector in accordance with part 305 of this chapter; or


(ii) The regulated articles are wood products such as firewood, logs, or lumber that are free of bark;
3
or




3 Firewood, logs, lumber of species listed in accordance with § 301.92–2(d) and marked with an asterisk are not regulated articles, as noted in § 301.92–2(b)(1).


(iii) The regulated article is soil or growing media that has not been in direct physical contact with any article infected with Phytophthora ramorum, and from which all duff has been removed; or


(iv) The articles are nursery stock or regulated articles of decorative trees without roots, wreaths, garlands, or greenery that:


(A)(1) Are shipped from a nursery that has been inspected in accordance with the inspection and sampling protocol described in § 301.92–11(a)(1), and the nursery is free of evidence of Phytophthora ramorum infestation; or


(2) Are shipped from a nursery that has been inspected in accordance with the inspection and sampling protocol described in § 301.92–11(a)(2), and the nursery is free of evidence of Phytophthora ramorum infestation; or


(3) Are shipped from a nursery that has been inspected in accordance with the inspection and sampling protocol described in § 301.92–11(a)(2), is not free of evidence of Phytophthora ramorum infestation, but has entered into and is operating under a compliance agreement with APHIS, and is determined by an inspector to be abiding by all terms and conditions of that agreement; and


(B) Are part of a shipment of nursery stock, decorative trees without roots, wreaths, garlands, or greenery that has been inspected prior to interstate movement in accordance with § 301.92–11(a)(2), and the regulated articles in the shipment are free of evidence of Phytophthora ramorum infection; and


(C) Have been kept separate from regulated and associated articles and non-host nursery stock not inspected between the time of the inspection and the time of interstate movement; and


(D) Have not been grown in, or moved from, other areas within a quarantined area except nurseries that are annually inspected for Phytophthora ramorum in accordance with § 301.92–11 and that have been found free of evidence of Phytophthora ramorum infestation, except that certified nurseries which receive articles from a non-certified nursery in a quarantined or regulated area may continue to ship other plants interstate, provided that the uncertified plants are safeguarded, segregated, and withheld from interstate movement until the plants are inspected and tested and found free of evidence of Phytophthora ramorum.


(v) The regulated or associated article or non-host nursery stock is to be moved in compliance with any additional emergency conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714)
4
to prevent the spread of Phytophthora ramorum; and




4 Sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754) provide that the Secretary of Agriculture may, under certain conditions, hold, seize, quarantine, treat, apply other remedial measures to destroy or otherwise dispose of any plant, plant pest, plant product, article, or means of conveyance that is moving, or has moved into or through the United States or interstate if the Secretary has reason to believe the article is a plant pest or is infested with a plant pest at the time of movement.


(vi) The regulated or associated article or non-host nursery stock is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated or associated article.


(2) [Reserved]


(b) Movements from regulated establishments. An inspector may issue a certificate for the movement of regulated, restricted, and/or associated articles from a regulated establishment if the inspector determines that:


(1) The nursery has entered into a compliance agreement APHIS in accordance with § 301.92–6 and is abiding by all terms and conditions of that agreement; and


(2) The nursery has been inspected in accordance with § 301.92–11(c); and


(3) The articles to be shipped interstate are free from Phytophthora ramorum inoculum; and


(4) The movement of the articles is not subject to additional restriction under section 414 of the Plant Protection Act (7 U.S.C. 7714) or other Federal domestic plant quarantines and regulations.


(c) Certificates issued under paragraphs (a) and (b) of this section may be issued by any person engaged in the business of growing, processing, handling, or moving regulated or associated articles or nursery stock provided such person has entered into and is operating under a compliance agreement in accordance with § 301.92–6. Any such person may execute and issue a certificate for the interstate movement of regulated or associated articles or nursery stock if an inspector has previously made the determination that the article is eligible for a certificate in accordance with any applicable section of this subpart.


(d) Any certificate that has been issued may be withdrawn, either orally or in writing, by an inspector if he or she determines that the holder of the certificate has not complied with all conditions in this subpart for the use of the certificate. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal will be confirmed in writing as promptly as circumstances allow. Any person whose certificate 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 must state all of the facts and reasons upon which the person relies to show that the certificate was wrongfully withdrawn. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator.


(Approved by the Office of Management and Budget under control numbers 0579–0310 and 0579–0088)

[72 FR 8597, Feb. 27, 2007, as amended at 75 FR 4241, Jan. 26, 2010; 84 FR 16193, Apr. 18, 2019; 87 FR 80019, Dec. 29, 2022]


§ 301.92-6 Compliance agreements and cancellation.

(a) Any person engaged in growing, processing, handling, or moving regulated articles, associated articles, or non-host nursery stock may enter into a compliance agreement when an inspector determines that the person understands this subpart, agrees to comply with its provisions, and agrees to comply with all the provisions contained in the compliance agreement.
1




1 Compliance agreement forms are available without charge from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Invasive Species and Pest Management, 4700 River Road Unit 160, Riverdale, MD 20737–1236, and from local offices of the Plant Protection and Quarantine, which are listed in telephone directories. Forms are also available on the Internet at http://www.aphis.usda.gov/ppq/ispm/pramorum/resources.html.


(b) Any compliance agreement may be canceled, either orally or in writing, by an inspector whenever the inspector finds that the person who has entered into the compliance agreement has failed to comply with this subpart. If the cancellation is oral, the cancellation and the reasons for the cancellation will be confirmed in writing as promptly as circumstances allow. Any person whose compliance agreement has been canceled may appeal the decision, in writing, within 10 days after receiving written notification of the cancellation. The appeal must state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully canceled. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator.


(Approved by the Office of Management and Budget under control numbers 0579–0088 and 0579–0310)

[72 FR 8597, Feb. 27, 2007, as amended at 84 FR 16194, Apr. 18, 2019; 87 FR 80019, Dec. 29, 2022]


§ 301.92-7 Availability of inspectors; assembly for inspection.

(a) Any person (other than a person authorized to issue certificates under § 301.92–5(c)) who desires to move a regulated or associated article or non-host nursery stock interstate accompanied by a certificate must notify an inspector
1
as far in advance of the desired interstate movement as possible, but no less than 48 hours before the desired time of inspection.




1 See footnote 2 in § 301.92–4.


(b) The regulated or associated article or non-host nursery stock must be assembled at the place and in the manner the inspector designates as necessary to comply with this subpart.


[72 FR 8597, Feb. 27, 2007, as amended at 84 FR 16194, Apr. 18, 2019; 87 FR 80019, Dec. 29, 2022]


§ 301.92-8 Attachment and disposition of certificates and recordkeeping.

(a) A certificate required for the interstate movement of a regulated article, associated article, or non-host nursery stock must, at all times during the interstate movement, be:


(1) Attached to the outside of the container containing the regulated article, associated article, or non-host nursery stock; or


(2) Attached to the regulated article, associated article, or non-host nursery stock itself if not in a container; or


(3) Attached to the consignee’s copy of the accompanying waybill. If the certificate is attached to the consignee’s copy of the waybill, the regulated article, associated article, or non-host nursery stock must be sufficiently described on the certificate and on the waybill to identify the regulated article, associated article, or non-host nursery stock.


(b) The certificate for the interstate movement of a regulated article, associated article, or non-host nursery stock must be furnished by the carrier to the consignee listed on the certificate upon arrival at the location provided on the certificate.


(c) All nurseries that are operating under compliance agreements must maintain records of all incoming shipments of plants for a minimum of 24 months and must make them available to inspectors upon request. In addition, all nurseries that are operating under compliance agreements, except retail dealers, must maintain records of outgoing shipments for a minimum of 24 months and must make them available to inspectors upon request.


(Approved by the Office of Management and Budget under control numbers 0579–0088 and 0579–0310)


§ 301.92-9 Costs and charges.

The services of the inspector during normal business hours (8 a.m. to 4:30 p.m., Monday through Friday, except holidays) will be furnished without cost. The user will be responsible for all costs and charges arising from inspection and other services provided outside normal business hours.


§ 301.92-10 [Reserved]

§ 301.92-11 Inspection and sampling protocols.

(a) Nurseries in quarantined areas shipping regulated articles of nursery stock and associated articles interstate—(1) Nurseries in which Phytophthora ramorum has not been detected since March 31, 2011. To meet the requirements of § 301.92–5(a)(1)(iv), nurseries that are located in quarantined areas, that move regulated articles of nursery stock, decorative trees without roots, wreaths, garlands, or greenery, associated articles, or non-host nursery stock interstate, and in which Phytophthora ramorum has not been detected since March 31, 2011, must meet the following requirements. Any such nurseries in quarantined areas that do not meet the following requirements are prohibited from moving regulated articles and associated articles interstate. Any such nurseries in quarantined areas that do not meet the following requirements or those in paragraph (b) of this section are prohibited from moving non-host nursery stock interstate.


(i) Annual inspection, sampling, and testing—(A) Inspection. The nursery must be inspected annually for symptoms of Phytophthora ramorum by an inspector. Inspectors will visually inspect for symptomatic plants throughout the nursery, and inspection will focus on, but not be limited to, regulated articles and associated articles.


(B) Sampling. A minimum of 40 plant samples must be tested per nursery location. Samples must be taken from all symptomatic plants if symptomatic plants are present. If fewer than 40 symptomatic plants are present, each symptomatic plant must be sampled and the remainder of the 40 sample minimum must be taken from asymptomatic plants. If no symptomatic plants are present, 40 asymptomatic plants must be sampled; biased toward proven hosts. Each sample may contain more than one leaf, and may come from more than one plant, but all plants in the sample must be from the same lot. Asymptomatic samples, if collected, must be taken from regulated and associated articles and nearby plants. Inspectors must conduct inspections at times when the best expression of symptoms is anticipated and must take nursery fungicide programs into consideration. Nursery owners must keep records of fungicide applications for 2 years and must make them available to inspectors upon request.


(C) Testing. Samples must be labeled and sent for testing to a laboratory approved by APHIS and must be tested using a test method approved by APHIS, in accordance with § 301.92–12.


(D) Annual certification. If all plant samples tested in accordance with this section and § 301.92–12 return negative results for Phytophthora ramorum, an inspector may certify that the nursery is free of evidence of Phytophthora ramorum infestation at the time of the inspection, and the nursery is eligible to enter into or maintain its compliance agreement in accordance with § 301.92–6.


(ii) Pre-shipment inspection, sampling, and testing—(A) Inspection. During the 30 days prior to interstate movement from a nursery in a quarantined area, regulated articles or associated articles intended for interstate movement must be inspected for symptoms of Phytophthora ramorum by an inspector. Inspection will focus on, but not be limited to, regulated articles and associated articles. No inspections of shipments will be conducted unless the nursery from which the shipment originates has a current and valid annual certification in accordance with this section.


(1) If no symptomatic plants are found upon inspection, the shipment may be considered free from evidence of Phytophthora ramorum and is eligible for interstate movement, provided that the nursery is operating under a compliance agreement with APHIS in accordance with § 301.92–6.


(2) If symptomatic plants are found upon inspection, the inspector will collect at least one sample per symptomatic plant, and one sample per regulated article or associated article that is in close proximity to, or that has had physical contact with, a symptomatic plant.


(B) Testing and withholding from interstate movement. Samples taken in accordance with this paragraph (a)(1) must be labeled and sent for testing to a laboratory approved by APHIS and must be tested using a test method approved by APHIS, in accordance with § 301.92–12. The interstate movement of plants in the shipment is prohibited until the plants in the shipment are determined to be free of evidence of Phytophthora ramorum infection in accordance with § 301.92–12.


(2) Nurseries in which Phytophthora ramorum has been detected since March 31, 2011. To meet the requirements of § 301.92–5(a)(1)(iv), nurseries that are located in quarantined areas, that move regulated articles of nursery stock, decorative trees without roots, wreaths, garlands, or greenery, associated articles, or non-host nursery stock interstate, and in which Phytophthora ramorum has been detected since March 31, 2011, must meet the following requirements. Any such nurseries in quarantined areas that do not meet the following requirements are prohibited from moving regulated articles and associated articles interstate. Any such nurseries in quarantined areas that do not meet the following requirements or those in paragraph (b) of this section are prohibited from moving non-host nursery stock interstate.


(i) Inspections. The nursery must be inspected at least twice annually for symptoms of Phytophthora ramorum infestation by an inspector. The inspection will focus on regulated plants and other potential sources of Phytophthora ramorum inoculum.


(ii) Sampling. Samples must be taken from host plants, soil, standing water, drainage water, water for irrigation, and any other articles determined by the inspector to be possible sources of Phytophthora ramorum inoculum. The number of samples taken may vary depending on the possible sources of inoculum identified at the nursery, as well as the number of host articles in the nursery.


(iii) Testing. Samples must be labeled and sent for testing to a laboratory approved by APHIS and must be tested using a test method approved by APHIS in accordance with § 301.92–12.


(iv) Negative results; certification. If all samples tested in accordance with this section and § 301.92–12 return negative results for Phytophthora ramorum, an inspector may certify that the nursery is free of Phytophthora ramorum at the time of the inspection. If the nursery is inspected and determined by an inspector to be free of Phytophthora ramorum inoculum each time it is inspected for 3 consecutive years, the nursery will thereafter be inspected in accordance with paragraph (a)(1) of this section.


(v) Positive results. If any samples tested in accordance with this section and § 301.92–12 return positive results for Phytophthora ramorum, the nursery may ship lots of regulated, restricted, and associated articles interstate pursuant to § 301.92–5(b) only if the lot is determined to be free from Phytophthora ramorum inoculum. The method for this determination will be specified in the nursery’s compliance agreement with APHIS.


(b) Nurseries in quarantined areas shipping non-host nursery stock interstate. Nurseries located in quarantined areas and that move non-host nursery stock interstate must meet the requirements of this paragraph or the requirements of paragraph (a) of this section. If such nurseries contain any regulated or restricted articles, the nursery must meet the requirements of paragraph (a) of this section. This paragraph (b) only applies if there are no regulated or associated articles or nursery stock at the nursery. Nurseries that do not meet the requirements of paragraph (a) of this section or this paragraph (b) are prohibited from moving non-host nursery stock interstate.


(1) Annual visual inspection. The nursery must be visually inspected annually for symptoms of Phytophthora ramorum. Inspections and determinations of freedom from evidence of Phytophthora ramorum infestation must occur at the time when the best expression of symptoms is anticipated.


(2) Sampling. All plants showing symptoms of infection with Phytophthora ramorum upon inspection will be sampled and tested in accordance with § 301.92–12. If symptomatic plants are found upon inspection, the following plants must be withheld from interstate shipment until testing is completed and the nursery is found free of evidence of Phytophthora ramorum in accordance with this paragraph (b) and § 301.92–12: All symptomatic plants, any plants located in the same lot as the suspect plant, and any plants located within 2 meters of this lot of plants.


(3) Certification. If all plant samples tested in accordance with this section and § 301.92–12 return negative results for Phytophthora ramorum, or if an inspector at the nursery determines that plants in a nursery exhibit no signs of infection with Phytophthora ramorum, the inspector may certify that the nursery free of evidence of Phytophthora ramorum infestation at the time of inspection. Certification is valid for 1 year and must be renewed each year to continue shipping plants interstate.


(c) Regulated establishments shipping regulated, restricted, or associated articles of interstate—(1) Inspections. To meet the conditions of § 301.92–5(b), the regulated establishment must be inspected at least twice annually for symptoms of Phytophthora ramorum infestation by an inspector. The inspection will focus on regulated plants and other potential sources of Phytophthora ramorum inoculum.


(2) Sampling. Samples must be taken from host plants, soil, standing water, drainage water, water for irrigation, growing media, and any other articles determined by the inspector to be possible sources of Phytophthora ramorum inoculum. The number of samples taken may vary depending on the possible sources of inoculum identified at the nursery, as well as the number of host articles in the nursery.


(3) Testing. Samples must be labeled and sent for testing to a laboratory approved by APHIS and must be tested using a test method approved by APHIS in accordance with § 301.92–12.


(4) Negative results; certification. If all samples tested in accordance with this section and § 301.92–12 return negative results for Phytophthora ramorum, an inspector may certify that the nursery is free of Phytophthora ramorum at the time of the inspection. For purposes of § 301.92–5(b), regulated, restricted, and associated articles at a certified nursery are considered free from Phytophthora ramorum until the time of the next inspection.


(5) Positive results. If any samples tested in accordance with this section and § 301.92–12 return positive results for Phytophthora ramorum, the nursery may ship lots of regulated, restricted, and associated articles interstate pursuant to § 301.92–5(b) only if the lot is determined to be free from Phytophthora ramorum inoculum. The method for this determination will be specified in the nursery’s compliance agreement with APHIS.


(Approved by the Office of Management and Budget under control number 0579–0310)

[84 FR 16194, Apr. 18, 2019]


§ 301.92-12 Testing protocols.

Samples must be analyzed using a methodology approved by APHIS at a laboratory approved by APHIS. The following methodology is approved by APHIS.


(a) Optional ELISA Prescreening. An APHIS-approved ELISA may be used to prescreen samples to determine the presence of Phytophthora spp.


(1) Negative prescreening results. If all samples from a single nursery are found to be negative through APHIS-approved ELISA prescreening, no further testing is required. The nursery may be considered free of evidence of Phytophthora ramorum, and plants in the nursery are eligible for interstate movement under certificate in accordance with § 301.92–5.


(2) Positive prescreening results. If ELISA prescreening reveals the presence of Phytophthora spp. in any plants, each sample that returns positive ELISA results must be tested as provided in paragraph (b) of this section.


(b) Mandatory testing procedures. If ELISA prescreening is not performed, or if results of ELISA prescreening are positive for Phytophthora spp. in any sample, the sample must be analyzed using an APHIS-approved test. Samples will be considered positive for Phytophthora ramorum based on positive results of any approved test. Positive PCR or other molecular tests do not require confirmatory culture tests, nor do positive culture tests require confirmatory PCR or other molecular tests; however, if culture tests return other than positive results, an APHIS-approved PCR or other molecular test must be conducted, as provided in paragraph (b)(1) of this section.


(1) PCR or other molecular tests—(i) Negative results. If the results of PCR or other molecular tests are negative for all samples in a nursery, no further testing is required. The nursery may be considered free of evidence of Phytophthora ramorum and plants in the nursery are eligible for interstate movement under certificate in accordance with § 301.92–5.


(ii) Positive results. If any samples tested using PCR or other molecular tests return positive results for Phytophthora ramorum, the nursery from which they originate is prohibited from moving plants interstate. The nursery will be eligible to ship certain plants interstate when an inspector determines that those plants are free of evidence of Phytophthora ramorum.


(2) Culture Test—(i) Negative results. If the results of culture tests are other than positive for any samples taken from a single nursery, plants in the nursery must continue to be withheld from shipment in accordance with § 301.92–11 and each plant sample must be tested again using a PCR or other molecular test, as described in this section.


(ii) Positive results. If any culture tests return positive results for Phytophthora ramorum, the nursery from which they originate is prohibited from moving plants interstate as directed by an inspector. The nursery will be eligible to ship certain plants interstate when an inspector determines that those plants are free of evidence of Phytophthora ramorum.


(c) Other test methods. Other test methods may be acceptable if approved by APHIS.


[72 FR 8597, Feb. 27, 2007, as amended at 84 FR 16195, Apr. 18, 2019]


PART 302—DISTRICT OF COLUMBIA; MOVEMENT OF PLANTS AND PLANT PRODUCTS


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


Source:66 FR 1016, Jan. 5, 2001, unless otherwise noted.

§ 302.1 Definitions.

Inspector. Any employee of the Animal and Plant Health Inspection Service or other person authorized by the Administrator to inspect and certify the plant health status of plants and products under this part.


Interstate. From any State into or through any other State.


State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States.


§ 302.2 Movement of plants and plant products.

Inspection or documentation of the plant health status of plants or plant products to be moved interstate from the District of Columbia may be obtained by contacting the State Plant Health Director, Plant Protection and Quarantine, APHIS, Wayne A. Cawley, Jr. Building, Room 350, 50 Harry S. Truman Parkway, Annapolis, MD 21401–7080; phone: (410) 224–3452; fax: (410) 224–1142.


[66 FR 54641, Oct. 30, 2001]


PART 305—PHYTOSANITARY TREATMENTS


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.


Source:75 FR 4241, Jan. 26, 2010, unless otherwise noted.

§ 305.1 Definitions.

Administrator. The Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture, or any person delegated to act for the Administrator in matters affecting this part.


APHIS. The Animal and Plant Health Inspection Service, United States Department of Agriculture.


Cold treatment. Exposure of a commodity to a specified cold temperature that is sustained for a specific time period to kill targeted pests, especially fruit flies.


Dose mapping. Measurement of absorbed dose within a process load using dosimeters placed at specified locations to produce a one-, two-, or three-dimensional distribution of absorbed dose, thus rendering a map of absorbed-dose values.


Dosimeter. A device that, when irradiated, exhibits a quantifiable change in some property of the device that can be related to absorbed dose in a given material using appropriate analytical instrumentation and techniques.


Dosimetry system. A system used for determining absorbed dose, consisting of dosimeters, measurement instruments and their associated reference standards, and procedures for the system’s use.


Fumigant. A gaseous chemical that easily diffuses and disperses in air and is toxic to the target organism.


Fumigation. Releasing and dispersing a toxic chemical in the air so that it reaches the target organism in a gaseous state.


Inspector. 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 part.


Irradiation. Treatment with any type of ionizing radiation.


Methyl bromide. A colorless, odorless biocide used to fumigate a wide range of commodities.


Neutralize. To prevent the establishment of a plant pest by killing it, sterilizing it, preventing its development from an immature stage, or preventing its emergence from its host.


Plant Protection and Quarantine (PPQ). The Plant Protection and Quarantine program of APHIS.


PPQ Treatment Manual. A document that contains treatment schedules that are approved by the Administrator for use under this part. The Treatment Manual is available on the Internet at (http://www.aphis.usda.gov/import_export/plants/manuals/index.shtml) or by contacting the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Manuals Unit, 92 Thomas Johnson Drive, Suite 200, Frederick, MD 21702.


Quick freeze. A commercially acceptable method of quick freezing at subzero temperatures with subsequent storage and transportation at not higher than 20 °F. Methods that accomplish this are known as quick freezing, sharp freezing, cold pack, or frozen pack, but may be any equivalent commercially acceptable freezing method.


Section 18 of Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). An emergency exemption granted by the U.S. Environmental Protection Agency to Federal or State agencies authorizing an unregistered use of a pesticide for a limited time.


Treatment facility. Any APHIS-certified place, warehouse, or approved enclosure where a treatment is conducted to mitigate a plant pest.


Vacuum fumigation. Fumigation performed in a gas-tight enclosure. Most air in the enclosure is removed and replaced with a small amount of fumigant. The reduction in pressure reduces the required duration of the treatment.


[75 FR 4241, Jan. 26, 2010, as amended at 76 FR 60360, Sept. 29, 2011; 83 FR 5876, Feb. 12, 2018]


§ 305.2 Approved treatments.

(a) Certain commodities or articles require treatment, or are subject to treatment, prior to interstate movement within the United States or importation or entry into the United States. Treatment is required as indicated in parts 301, 318, and 319 of this chapter, on a permit, or by an inspector.


(b) Treatments may only be administered in accordance with the requirements of this part and in accordance with treatment schedules approved by the Administrator as effective at neutralizing quarantine pests. The treatment schedules found in the PPQ Treatment Manual have been approved by the Administrator. Treatment schedules may be added to the PPQ Treatment Manual in accordance with § 305.3. Treatment schedules may also be approved by the Administrator in accordance with paragraph (c) of this section.


(c) Persons who wish to have a treatment schedule approved by the Administrator as effective at neutralizing a quarantine pest or pests may apply for approval by submitting the treatment schedule, along with any supporting information and data, to the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Center for Plant Health Science and Technology, 1730 Varsity Drive, Suite 400, Raleigh, NC 27606–5202. Upon receipt of such an application, the Administrator will review the schedule and the supporting information and data and respond with approval or denial of the treatment schedule. If the Administrator determines the treatment schedule to be of potential general use, the Administrator may add the new treatment schedule to the PPQ Treatment Manual or revise an existing schedule, as appropriate, in accordance with § 305.3.


(d) APHIS is not responsible for losses or damages incurred during treatment and recommends that a sample be treated first before deciding whether to treat the entire shipment.


[75 FR 4241, Jan. 26, 2010, as amended at 76 FR 60360, Sept. 29, 2011]


§ 305.3 Processes for adding, revising, or removing treatment schedules in the PPQ Treatment Manual.

(a) Normal process for adding, revising, or removing treatment schedules. Unless there is a need to immediately add, revise, or remove a treatment schedule, as provided in paragraph (b)(1) of this section, a treatment schedule may be added to the PPQ Treatment Manual, revised, or removed from the PPQ Treatment Manual as follows:


(1) Notice of change to treatment schedule. APHIS will publish in the Federal Register a notice describing the reasons we have determined that it is necessary to add, revise, or remove a treatment schedule and, if necessary, making available the new or revised treatment schedule as it would be added to the PPQ Treatment Manual. In our notice, we will provide for a public comment period on the new or revised treatment schedule or on the removal of the treatment schedule from the PPQ Treatment Manual.


(2) Response to comments. (i) APHIS will issue a notice after the close of the public comment period indicating that the treatment schedule specified in the initial notice will be added to the PPQ Treatment Manual, revised as described in the notice, or removed from the PPQ Treatment Manual if:


(A) No comments were received on the notice;


(B) The comments on the notice supported our action; or


(C) The comments on the notice were evaluated but did not change our determination that it is necessary to add, revise, or remove the treatment schedule, as described in the notice.


(ii) If the notice issued after the close of the public comment period indicates that a change will be made to the PPQ Treatment Manual, APHIS will make available a new version of the PPQ Treatment Manual that reflects the addition, revision, or removal of the particular treatment schedule.


(iii) If comments present information that causes us to determine that the change described in the notice is not appropriate, APHIS will issue a notice informing the public of this determination after the close of the comment period.


(b) Process for immediately adding, revising, or removing treatment schedules. Treatment schedules may be immediately added to the PPQ Treatment Manual, revised, or removed from the PPQ Treatment Manual under the circumstances described in paragraph (b)(1) of this section and in accordance with the process described in paragraphs (b)(2) and (b)(3) of this section.


(1) Circumstances in which the immediate process may be used. Treatment schedules may be immediately added to the PPQ Treatment Manual, revised, or removed from the PPQ Treatment Manual if any of the following circumstances apply:


(i) PPQ has determined that an approved treatment schedule is ineffective at neutralizing the targeted plant pest(s);


(ii) PPQ has determined that, in order to neutralize the targeted plant pest(s), the treatment schedule must be administered using a different process than was previously used;


(iii) PPQ has determined that a new treatment schedule is effective, based on efficacy data, and that ongoing trade in an article or articles may be adversely impacted unless the new treatment schedule is approved for use; or


(iv) The use of a treatment schedule is no longer authorized by the U.S. Environmental Protection Agency or by any other Federal entity.


(2) Process for immediate change to treatment schedules. If PPQ determines that one or more of the circumstances in paragraph (b)(1) of this section applies and that it is necessary to take immediate action, APHIS will publish in the Federal Register a notice describing the reasons we have determined that it is necessary to immediately add, revise, or remove a treatment schedule and, if necessary, making available the new or revised treatment schedule as it has been added to the PPQ Treatment Manual. Treatment schedules that have been added to the PPQ Treatment Manual or revised under this process will be identified in the PPQ Treatment Manual as having been added or revised through the immediate process described in this paragraph (b). The PPQ Treatment Manual will indicate that these treatment schedules are subject to change or removal based on public comment. In our notice, we will provide for a public comment period on the new or revised treatment schedule or on the removal of the treatment schedule from the PPQ Treatment Manual.


(3) Response to comments. (i) APHIS will issue a notice after the close of the public comment period affirming the action described in the initial notice if:


(A) No comments were received on the notice;


(B) The comments on the notice supported our action; or


(C) The comments on the notice were evaluated but did not change our determination that it was necessary to add, revise, or remove the treatment schedule, as described in the notice.


(ii) If the notice issued after the close of the public comment period indicates that the initial change to the PPQ Treatment Manual is affirmed, APHIS will make available a new version of the PPQ Treatment Manual that will reflect the addition, revision, or removal of the particular treatment schedule in the main body of the PPQ Treatment Manual.


(iii) If comments present information that causes us to determine that it is necessary to change a treatment schedule added to the PPQ Treatment Manual under this process or to further revise a treatment schedule that was revised under this process, APHIS will publish a notice in the Federal Register informing the public of this determination after the close of the comment period and will revise the treatment schedule accordingly.


(iv) If comments present information that causes us to determine that the change described in the initial notice was not appropriate, APHIS will publish a notice in the Federal Register informing the public of this determination after the close of the comment period and will, if necessary, remove the new or revised treatment schedule from the separate section of the PPQ Treatment Manual.


§ 305.4 Monitoring and certification of treatments.

(a) All treatments approved under part 305 are subject to monitoring and verification by APHIS.


(b) Any treatment performed outside the United States must be monitored and certified by an inspector or an official authorized by APHIS. During the entire interval between treatment and export, the consignment must be stored and handled in a manner that prevents any infestation by pests and noxious weeds.


§ 305.5 Chemical treatment requirements.

(a) Certified facility. The fumigation treatment facility must be certified by APHIS. Facilities are required to be inspected and recertified annually, or as often as APHIS directs, depending upon treatments performed, commodities handled, and operations conducted at the facility. In order to be certified, a fumigation facility must:


(1) Be capable of administering the required dosage range for the required duration and at the appropriate temperature, as specified in the treatment schedules in the PPQ Treatment Manual or in another treatment schedule approved in accordance with § 305.2.


(2) Be adequate to contain the fumigant and be constructed from material that is not reactive to the fumigant.


(3) For vacuum fumigation facilities, be constructed to withstand required negative pressure.


(b) Monitoring. Treatment must be monitored by an official authorized by APHIS to ensure proper administration of the treatment, including that the correct amount of gas reaches the target organism and that an adequate number and placement of blowers, fans, sampling tubes, or monitoring lines are used in the treatment enclosure. An official authorized by APHIS approves, adjusts, or rejects the treatment.


(c) Compliance agreements. Any person who conducts a fumigation in the United States or operates a facility where fumigation is conducted in the United States for phytosanitary purposes must sign a compliance agreement with APHIS.


(1) Fumigation treatment facilities treating imported articles; compliance agreements with facility operators for fumigation in the United States. If fumigation treatment of imported articles is conducted in the United States, the fumigation treatment facility operator or the person who conducts fumigation must sign a compliance agreement with APHIS. The fumigation facility operator or the person who conducts fumigation must agree to comply with the requirements of this section and any additional requirements found necessary by APHIS to prevent the escape of any pests of concern that may be associated with the articles to be treated.


(2) Fumigation treatment facilities treating articles moved interstate from Hawaii and U.S. territories. Fumigation treatment facilities treating articles moved interstate from Hawaii and U.S. territories must complete a compliance agreement with APHIS as provided in § 318.13–3(d) of this chapter.


(3) Fumigation treatment facilities treating articles moved interstate from areas quarantined for fruit flies. Fumigation treatment facilities treating articles moved interstate from areas quarantined for fruit flies must complete a compliance agreement with APHIS as provided in § 301.32–6 of this chapter.


(4) Fumigation treatment facilities treating articles moved interstate from areas quarantined for Asian citrus psyllid. Fumigation treatment facilities treating articles moved interstate from areas quarantined only for Asian citrus psyllid, and not for citrus greening, must complete a compliance agreement with APHIS as provided in § 301.76–8 of this chapter.


(d) Treatment procedures. (1) To kill the pest, all chemical applications must be administered in accordance with an Environmental Protection Agency (EPA) approved pesticide label and the APHIS-approved treatment schedule prescribed in the PPQ Treatment Manual or in another treatment schedule approved in accordance with § 305.2. If EPA cancels approval for the use of a pesticide on a commodity, then the treatment schedule prescribed in the PPQ Treatment Manual or approved in accordance with § 305.2 is no longer authorized for that commodity. If the commodity is not listed on the pesticide label and/or included in a Federal quarantine or crisis exemption in accordance with FIFRA section 18, then no chemical treatment is available.


(2) Temperature/concentration readings must be taken for items known to be sorptive or whose sorptive properties are unknown when treatment is administered in chambers at normal atmospheric pressure.


(3) Unless otherwise specified in the PPQ Treatment Manual or in another approved treatment schedule, the volume of the commodity stacked inside the treatment enclosure must not exceed
2/3 of the volume of the enclosure. Stacking must be approved by an official authorized by APHIS before treatment begins. All commodities undergoing treatment must be listed on the label or authorized under Section 18 of FIFRA.


(4) Recording and measuring equipment must be adequate to accurately monitor the gas concentration, to ensure the correct amount of gas reaches the pests, and to detect any leaks in the enclosure. At least three sampling tubes or monitoring lines must be used in the treatment enclosure.


(5) An adequate number of blowers or fans must be used inside of the treatment enclosure to uniformly distribute gas throughout the enclosure. The circulation system must be able to recirculate the entire volume of gas in the enclosure in 3 minutes or less.


(6) The exposure period begins after all gas has been introduced.


(7) For vacuum fumigation: The vacuum pump must be able to reduce pressure in the treatment enclosure to 1-2 inches of mercury in 15 minutes or less.


(Approved by the Office of Management and Budget under control number 0579–0450)

[75 FR 4241, Jan. 26, 2010, as amended at 76 FR 60361, Sept. 29, 2011; 83 FR 5876, Feb. 12, 2018]


§ 305.6 Cold treatment requirements.

(a) Certification of treatment facilities. All facilities or locations used for refrigerating fruits or vegetables in accordance with the cold treatment schedules in the PPQ Treatment Manual or in another treatment schedule approved in accordance with § 305.2 must be certified by APHIS. Recertification of the facility or carrier is required every 3 years, or as often as APHIS directs, depending on treatments performed, commodities handled, and operations conducted at the facility. A facility will only be certified or recertified if the Administrator determines that the location of the facility is such that those Federal agencies involved in its operation and oversight have adequate resources to conduct the necessary operations at the facility, that the pest risks can be managed at that location, and that the facility meets all criteria for approval. Other agencies that have regulatory oversight and requirements must concur in writing with the establishment of the facility prior to APHIS approval. In order to be certified, facilities and carriers must:


(1) Be capable of keeping treated and untreated fruits, vegetables, or other articles separate so as to prevent reinfestation of articles and spread of pests;


(2) Be capable of preventing the escape and spread of pests while regulated articles are at the facility; and


(3) Have equipment that is adequate to effectively perform cold treatment.


(b)(1) Location of facilities. Where certified cold treatment facilities are available, an approved cold treatment may be conducted for any imported regulated article either prior to shipment to the United States or in the United States. For any regulated article moved interstate from Hawaii or U.S. territories, cold treatment may be conducted either prior to movement to the mainland United States or in the mainland United States. Cold treatment facilities may be located in any State on the mainland United States. For cold treatment facilities located in the area south of 39° latitude and west of 104° longitude, the following additional conditions must be met:


(i) Prospective facility operators must submit a detailed layout of the facility site and its location to APHIS. APHIS will evaluate plant health risks based on the proposed location and layout of the facility site. APHIS will only approve a proposed facility if the Administrator determines that regulated articles can be safely transported to the facility from the port of entry or points of origin in the United States.


(ii) The government of the State in which the facility is to be located must concur in writing with the location of the facility or, if it does not concur, must provide a written explanation of concern based on pest risks. In instances where the State government does not concur with the proposed facility location, and provides a written explanation of concern based on pest risks, APHIS and the State must agree on a strategy to resolve the pest risk concerns prior to APHIS approval. If the State does not provide a written explanation of concern based on pest risks, then State concurrence will not be required before APHIS approves the facility location.


(iii) Untreated articles may not be removed from their packaging prior to treatment under any circumstances.


(iv) The facility must have contingency plans, approved by APHIS, for safely destroying or disposing of regulated articles if the facility is unable to properly treat a shipment.


(v) The facility may only treat articles approved by APHIS for treatment at the facility. Approved articles will be listed in the compliance agreement required in paragraph (f) of this section.


(vi) Arrangements for treatment must be made before the departure of a consignment from its port of entry or points of origin in the United States. APHIS and the facility must agree on all parameters, such as time, routing, and conveyance, by which the consignment will move from the port of entry or points of origin in the United States to the treatment facility. If APHIS and the facility cannot reach agreement in advance on these parameters then no consignments may be moved to that facility until an agreement has been reached.


(vii) Regulated articles must be conveyed to the facility in a refrigerated (via motorized refrigeration equipment) conveyance at a temperature that minimizes the mobility of the pests of concern for the article.


(viii) The facility must apply all post-treatment safeguards required for certification under paragraph (a) of this section before releasing the articles.


(ix) The facility must remain locked when not in operation.


(x) The facility must maintain and provide APHIS with an updated map identifying places where horticultural or other crops are grown within 4 square miles of the facility. Proximity of host material to the facility will necessitate trapping or other pest monitoring activities, funded by the facility, to help prevent establishment of any escaped pests of concern, as approved by APHIS; these activities will be listed in the compliance agreement required in paragraph (f) of this section. The treatment facility must have a pest management plan within the facility.


(xi) The facility must comply with any additional requirements including, but not limited to, the use of pest-proof packaging and container seals, that APHIS may require to prevent the escape of plant pests during transport to and from the cold treatment facility itself, for a particular facility based on local conditions, and for any other risk factors of concern. These activities will be listed in the compliance agreement required in paragraph (f) of this section.


(2) For articles that are moved interstate from areas quarantined for fruit flies, cold treatment facilities may be located either within or outside of the quarantined area. If the articles are treated outside the quarantined area, they must be accompanied to the facility by a limited permit issued in accordance with § 301.32–5(b) of this chapter and must be moved in accordance with any safeguards determined to be appropriate by APHIS.


(c) Cold treatment enclosures. All enclosures, in which cold treatment is performed, including refrigerated containers, must:


(1) Be capable of maintaining the highest temperature of the treatment schedule under which the fruit will be treated specified in the PPQ Treatment Manual or in another approved treatment schedule before the treatment begins and holding fruit at or below the treatment temperature during the treatment.


(2) Maintain fruit pulp temperatures according to treatment schedules with no more than a 0.39 °C (0.7 °F) variation in temperature between two consecutive hourly readings.


(3) Be structurally sound and adequate to maintain required temperatures.


(d) Treatment procedures. (1) All material, labor, and equipment for cold treatment performed on a vessel must be provided by the vessel or vessel agent. An official authorized by APHIS monitors, manages, and advises in order to ensure that the treatment procedures are followed.


(2) Refrigeration must be completed in the container, compartment, or room in which it is begun.


(3) Fruit that may be cold treated must be safeguarded to prevent cross-contamination or mixing with other infested fruit.


(4) Fruit intended for in-transit cold treatment must be precooled to no more than the highest temperature of the treatment schedule under which the fruit will be treated prior to beginning treatment. The in-transit treatment enclosure may not be used for precooling unless an official authorized by APHIS approves the loading of the fruit in the treatment enclosure as adequate to allow for fruit pulp temperatures to be taken prior to beginning treatment. If the fruit is precooled outside the treatment enclosure, an official authorized by APHIS will take pulp temperatures manually from a sample of the fruit as the fruit is loaded for in-transit cold treatment to verify that precooling was completed. If the pulp temperatures for the sample are 0.28 °C (0.5 °F) or more above the highest temperature of the treatment schedule under which the fruit will be treated, the pallet from which the sample was taken will be rejected and returned for additional precooling until the fruit reaches the highest temperature of the treatment schedule under which the fruit will be treated. If fruit is precooled in the treatment enclosure, or if treatment is conducted at a cold treatment facility in the United States, the fruit must be precooled to the highest temperature of the treatment schedule under which the fruit will be treated, as verified by an official authorized by APHIS, prior to beginning treatment.


(5) Breaks, damage, etc., in the treatment enclosure that preclude maintaining correct temperatures must be repaired before the enclosure is used. An official authorized by APHIS must approve loading of compartment, number and placement of temperature probes or sensors, and initial fruit temperature readings before beginning the treatment. Hanging decks and hatch coamings within vessels may not be used as enclosures for in-transit cold treatment without prior written approval from APHIS. Double-stacking of pallets is not allowed.


(6) Only the same type of fruit in the same type of package may be treated together in a container; no mixture of fruits in containers may be treated. A numbered seal must be placed on the doors of the loaded container and may be removed only at the port of destination by an official authorized by APHIS.


(7) Temperature recording devices used during treatment must be secured using measures approved by APHIS as adequate to ensure the security and integrity of cold treatment data. The devices must be able to record the date, time, and sensor number and automatic and continuous records of the temperature during all calibrations and during treatment. Recording devices must be capable of generating temperature charts for verification by an inspector. If records of calibrations or treatments are found to have been manipulated, the vessel or container in which the treatment is performed may be suspended from conducting cold treatments until proper equipment is installed and an official authorized by APHIS has recertified it. APHIS’ decision to recertify a vessel or container will take into account the severity of the infraction that led to suspension.


(8) A minimum of four temperature probes or sensors is required for vessel holds used as treatment enclosures. A minimum of three temperature probes or sensors is required for other treatment enclosures. An official authorized by APHIS will have the option to require that additional temperature probes or sensors be used, depending on the size of the treatment enclosure.


(9) Fruit pulp temperatures must be maintained at the temperature specified in the treatment schedule with no more than a 0.39 °C (0.7 °F) variation in temperature between two consecutive hourly readings. Failure to comply with this requirement will result in invalidation of the treatment unless an official authorized by APHIS can verify that the pulp temperature was maintained at or below the treatment temperature for the duration of the treatment.


(10) The time required to complete the treatment begins when all temperature probes reach the prescribed cold treatment schedule temperature. Refrigeration continues until the vessel arrives at the port of destination and the fruit is released for unloading by an inspector even though this may prolong the period required for the cold treatment.


(11) Temperatures must be recorded at intervals no longer than 1 hour apart. Gaps of longer than 1 hour will invalidate the treatment or indicate treatment failure unless an official authorized by APHIS can verify that the pulp temperature was maintained at or below the treatment temperature for the duration of the treatment.


(12) Cold treatment is not completed until so declared by an official authorized by APHIS or the certifying official of the foreign country; consignments of treated commodities may not be discharged until APHIS clearance has been fully completed, including review and approval of treatment record charts.


(13) Cold treatment of fruits in break bulk vessels or containers must be initiated by an official authorized by APHIS if there is not a treatment technician who has been trained to initiate cold treatments for either break bulk vessels or containers.


(14) An official authorized by APHIS may perform audits to ensure that the treatment procedures comply with the regulations in this section and that the treatment is administered in accordance with the treatment schedules in the PPQ Treatment Manual or in accordance with another approved treatment schedule. The official authorized by APHIS must be given the appropriate materials and access to the facility, container, or vessel necessary to perform the audits.


(15) An inspector will sample and cut fruit from each consignment after it has been cold treated to monitor treatment effectiveness. If a single live pest of concern in any stage of development is found, the consignment will be held until an investigation is completed and appropriate remedial actions have been implemented. If APHIS determines at any time that the safeguards contained in this section do not appear to be effective against the pests of concern, APHIS may suspend the importation of fruits from the originating country and conduct an investigation into the cause of the deficiency. APHIS may waive the sampling and cutting requirement of paragraph (d)(15) of this section, provided that the national plant protection organization (NPPO) of the exporting country has conducted such sampling and cutting in the exporting country as part of a biometric sampling protocol approved by APHIS.


(16) The cold treatments required for the entry of fruit are considered necessary for the elimination of plant pests, and no liability shall attach to the U.S. Department of Agriculture or to any officer or representative of that Department in the event injury results to fruit offered for entry in accordance with these instructions. In prescribing cold treatments of certain fruits, it should be emphasized that inexactness and carelessness in applying the treatments may result in injury to the fruit or its rejection for entry.


(e) Monitoring. Treatment must be monitored by an inspector to ensure proper administration of the treatment. An inspector must also approve the recording devices and sensors used to monitor temperatures and conduct an operational check of the equipment before each use and ensure sensors are calibrated. An inspector may approve, adjust, or reject the treatment. Facilities must be located within the local commuting area for APHIS employees for inspection purposes. Facilities treating imported articles must also be located within an area over which the U.S. Department of Homeland Security is assigned authority to accept entries of merchandise, to collect duties, and to enforce the provisions of the customs and navigation laws in force.


(f) Compliance agreements. Any person who operates a facility where cold treatment is conducted for phytosanitary purposes must sign a compliance agreement with APHIS.


(1) Compliance agreements with importers and facility operators for cold treatment in the United States. If cold treatment of imported articles is conducted in the United States, both the importer and the operator of the cold treatment facility or the person who conducts the cold treatment must sign compliance agreements with APHIS. In the importer compliance agreement, the importer must agree to comply with any additional requirements found necessary by APHIS to ensure the shipment is not diverted to a destination other than an approved treatment facility and to prevent escape of plant pests from the articles to be treated during their transit from the port of first arrival to the cold treatment facility in the United States. In the facility compliance agreement, the facility operator or person conducting the cold treatment must agree to comply with the requirements of this section and any additional requirements found necessary by APHIS to prevent the escape of any pests of concern that may be associated with the articles to be treated.


(2) Compliance agreements with cold treatment facilities outside the United States. If cold treatment of imported articles is conducted outside the United States, the operator of the cold treatment facility must sign a compliance agreement or an equivalent agreement with APHIS and the NPPO of the country in which the facility is located. In this agreement, the facility operator must agree to comply with the requirements of this section, and the NPPO of the country in which the facility is located must agree to monitor that compliance and inform the Administrator of any noncompliance.


(3) Cold treatment facilities treating articles moved interstate from Hawaii and U.S. territories. Cold treatment facilities treating articles moved interstate from Hawaii and the U.S. territories must complete a compliance agreement with APHIS as provided in § 318.13–3(d) of this chapter.


(Approved by the Office of Management and Budget under control number 0579–0450)

[75 FR 4241, Jan. 26, 2010, as amended at 75 FR 52217, Aug. 25, 2010; 76 FR 60361, Sept. 29, 2011; 78 FR 63374, Oct. 24, 2013; 83 FR 5876, Feb. 12, 2018]


§ 305.7 Quick freeze treatment requirements.

Quick freeze treatment for fruits and vegetables imported into the United States or moved interstate from Hawaii or Puerto Rico must be conducted in accordance with §§ 319.56-12 or 318.13-13, respectively, of this chapter. The PPQ Treatment Manual indicates fruits and vegetables for which quick freeze is an authorized treatment. Requests to authorize quick freeze as a treatment for other fruits and vegetables may be made in accordance with § 305.2(c).


[75 FR 4241, Jan. 26, 2010, as amended at 76 FR 60361, Sept. 29, 2011]


§ 305.8 Heat treatment requirements.

(a) Certified facility. The treatment facility must be certified by APHIS. Recertification is required annually, or as often as APHIS directs, depending upon treatments performed, commodities handled, and operations conducted at the facility. In order to be certified, a heat treatment facility must:


(1) Have equipment that is capable of adequately circulating air or water (as relevant to the treatment), changing the temperature, and maintaining the changed temperature sufficient to meet the treatment schedule parameters in the PPQ Treatment Manual or in another treatment schedule approved in accordance with § 305.2.


(2) Have equipment used to record, monitor, or sense temperature, maintained in proper working order.


(3) Keep treated and untreated fruits, vegetables, or articles separate so as to prevent reinfestation and spread of pests.


(b) Monitoring. Treatment must be monitored by an official authorized by APHIS to ensure proper administration of the treatment. An official authorized by APHIS approves, adjusts, or rejects the treatment.


(c) Compliance agreements. Facilities located in the United States must operate under a compliance agreement with APHIS. The compliance agreement must be signed by a representative of the heat treatment facilities located in the United States and APHIS. The compliance agreement must contain requirements for equipment, temperature, water quality, circulation, and other measures for performing heat treatments to ensure that treatments are administered properly. Compliance agreements must allow officials of APHIS to inspect the facility to monitor compliance with the regulations.


(d) Workplans. Facilities located outside the United States must operate in accordance with a workplan. The workplan must be signed by a representative of the heat treatment facilities located outside the United States, the national plant protection organization of the country of origin (NPPO), and APHIS. The workplan must contain requirements for equipment, temperature, water quality, circulation, and other measures to ensure that heat treatments are administered properly. Workplans for facilities outside the United States must include trust fund agreement information regarding payment of the salaries and expenses of APHIS employees on site. Workplans must allow officials of the NPPO and APHIS to inspect the facility to monitor compliance with APHIS regulations.


(e) Treatment procedures. (1) Before each treatment can begin, an official authorized by APHIS must approve the loading of the commodity in the treatment container.


(2) Sensor equipment must be adequate to monitor the treatment, its type and placement must be approved by an official authorized by APHIS, and the equipment must be tested by an official authorized by APHIS prior to beginning the treatment. Sensor equipment must be locked before each treatment to prevent tampering.


(3) Fruits, vegetables, or articles of substantially different sizes must be treated separately; oversized fruit may be rejected by an official authorized by APHIS.


(4) The treatment period begins when the temperature specified by the treatment schedule has been reached. An official authorized by APHIS may abort the treatment if the facility requires an unreasonably long time to achieve the required temperature.


[75 FR 4241, Jan. 26, 2010, as amended at 76 FR 60361, Sept. 29, 2011]


§ 305.9 Irradiation treatment requirements.

Irradiation, carried out in accordance with the provisions of this section, is approved as a treatment for any imported regulated article (i.e., fruits, vegetables, cut flowers, and foliage); for any regulated article moved interstate from Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Marianas Islands (referred to collectively, in this section, as Hawaii and U.S. territories); for any berry, fruit, nut, or vegetable listed as a regulated article in § 301.32–2(a) of this chapter; and for any regulated article listed in 301.76–2 of this chapter and intended for consumption, as apparel or as a similar personal accessory, or for decorative use.


(a) Location of facilities. (1) Where certified irradiation facilities are available, an approved irradiation treatment may be conducted for any imported regulated article either prior to shipment to the United States or in the United States. For any regulated article moved interstate from Hawaii or U.S. territories, irradiation treatment may be conducted either prior to movement to the mainland United States or in the mainland United States. Irradiation facilities may be located in any State on the mainland United States. For irradiation facilities located in the States of Alabama, Arizona, California, Florida, Georgia, Kentucky, Louisiana, Mississippi, Nevada, New Mexico, North Carolina, South Carolina, Tennessee, Texas, and Virginia, the following additional conditions must be met:


(i) Prospective facility operators must submit a detailed layout of the facility site and its location to APHIS. APHIS will evaluate plant health risks based on the proposed location and layout of the facility site. APHIS will only approve a proposed facility if the Administrator determines that regulated articles can be safely transported to the facility from port of entry or points of origin in the United States.


(ii) The government of the State in which the facility is to be located must concur in writing with the location of the facility or, if it does not concur, must provide a written explanation of concern based on pest risks. In instances where the State government does not concur with the proposed facility location, and provides a written explanation of concern based on pest risks, APHIS and the State must agree on a strategy to resolve the pest risk concerns prior to APHIS approval. If the State does not provide a written explanation of concern based on pest risks, then State concurrence will not be required before APHIS approves the facility location.


(iii) Untreated articles may not be removed from their packaging prior to treatment under any circumstances.


(iv) The facility must have contingency plans, approved by APHIS, for safely destroying or disposing of regulated articles if the facility is unable to properly treat a shipment.


(v) The facility may only treat articles approved by APHIS for treatment at the facility. Approved articles will be listed in the compliance agreement required in paragraph (c)(1)(i) of this section.


(vi) Arrangements for treatment must be made before the departure of a consignment from its port of entry or points of origin in the United States. APHIS and the facility must agree on all parameters, such as time, routing, and conveyance, by which the consignment will move from the port of entry or points of origin in the United States to the treatment facility. If APHIS and the facility cannot reach agreement in advance on these parameters then no consignments may be moved to that facility until an agreement has been reached.


(vii) Regulated articles must be conveyed to the facility in a refrigerated (via motorized refrigeration equipment or other methods including ice or insulation) or air-conditioned conveyance at a temperature that minimizes the mobility of the pests of concern for the article.


(viii) The facility must maintain and provide APHIS with an updated map identifying places where horticultural or other crops are grown within 4 square miles of the facility. Proximity of host material to the facility will necessitate trapping or other pest monitoring activities to help prevent establishment of any escaped pests of concern, as approved by APHIS; these activities will be listed in the compliance agreement required in paragraph (c)(1)(i) of this section. The treatment facility must have a pest management plan within the facility.


(ix) The facility must comply with any additional requirements that APHIS may require to prevent the escape of plant pests during transport to and from the irradiation facility itself, for a particular facility based on local conditions, and for any other risk factors of concern. These activities will be listed in the compliance agreement required in paragraph (c)(1)(i) of this section.


(2) For articles that are moved interstate from areas quarantined for fruit flies, irradiation facilities may be located either within or outside of the quarantined area. If the articles are treated outside the quarantined area, they must be accompanied to the facility by a limited permit issued in accordance with § 301.32-5(b) of this chapter and must be moved in accordance with any safeguards determined to be appropriate by APHIS.


(3) For articles that are moved interstate from areas quarantined only for Asian citrus psyllid, and not for citrus greening, irradiation facilities must be located within an area that is not quarantined for citrus greening.


(b) Approved facilities. The irradiation treatment facility must be approved by APHIS. Other agencies that have regulatory oversight and requirements must concur in writing with the establishment of the facility prior to APHIS approval. In order to be approved, a facility must fulfill the requirements in paragraphs (c) and (d) of this section.


(c) Compliance agreements. Compliance agreements for facilities located in States listed in paragraph (a)(1) of this section may also contain additional provisions as described in paragraphs (a)(1)(i) through (a)(1)(ix) of this section. (1) Irradiation facilities treating imported articles. (i) Compliance agreements with importers and facility operators for irradiation in the United States. If irradiation of imported articles is conducted in the United States, both the importer and the operator of the irradiation facility must sign compliance agreements with APHIS. In the facility compliance agreement, the facility operator must agree to comply with any additional requirements found necessary by APHIS to prevent the escape, prior to irradiation, of any pests of concern that may be associated with the articles to be irradiated. In the importer compliance agreement, the importer must agree to comply with any additional requirements found necessary by APHIS to ensure the shipment is not diverted to a destination other than an approved treatment facility and to prevent escape of plant pests from the articles to be irradiated during their transit from the port of first arrival to the irradiation facility in the United States.


(ii) Compliance agreement with irradiation facilities outside the United States. If irradiation of imported articles is conducted outside the United States, the operator of the irradiation facility must sign a compliance agreement with APHIS and the national plant protection organization (NPPO) of the country in which the facility is located. In this agreement, the facility operator must agree to comply with the requirements of this section, and the NPPO of the country in which the facility is located must agree to monitor that compliance and to inform the Administrator of any noncompliance.


(2) Irradiation facilities treating articles moved interstate from Hawaii and U.S. territories. Irradiation facilities treating articles moved interstate from Hawaii and U.S. territories must complete a compliance agreement with APHIS as provided in § 318.13-3(d) of this chapter.


(3) Irradiation facilities treating articles moved interstate from areas quarantined for fruit flies. Irradiation facilities treating articles moved interstate from areas quarantined for fruit flies must complete a compliance agreement with APHIS as provided in § 301.32-6 of this chapter.


(4) Irradiation facilities treating articles moved interstate from areas quarantined only for Asian citrus psyllid, and not for citrus greening, must complete a compliance agreement with APHIS as provided in § 301.76-8 of this chapter.


(d) Certified facility. The irradiation treatment facility must be certified by APHIS. Recertification is required in the event of an increase in the amount of radioisotope, a decrease in the amount of radioisotope for a reason other than natural decay, a major modification to equipment that affects the delivered dose, or a change in the owner or managing entity of the facility. Recertification also may be required in cases where a significant variance in dose delivery has been measured by the dosimetry system. In order to be certified, a facility must:


(1) Be capable of administering the minimum absorbed ionizing radiation doses specified in the PPQ Treatment Manual or in another treatment schedule approved in accordance with § 305.2 to the regulated articles;
1




1 The maximum absorbed ionizing radiation dose and the irradiation of food is regulated by the Food and Drug Administration under 21 CFR part 179.


(2) Be constructed so as to provide physically separate locations for treated and untreated articles, except that articles traveling by conveyor directly into the irradiation chamber may pass through an area that would otherwise be separated. The locations must be separated by a permanent physical barrier such as a wall or chain link fence 6 or more feet high to prevent transfer of cartons, or some other means approved during certification to prevent reinfestation of articles and spread of pests.


(3) If the facility is to be used to treat imported articles and is located in the United States, the facility will only be certified if APHIS determines that regulated articles will be safely transported to the facility from the port of arrival without significant risk that plant pests will escape in transit or while the regulated articles are at the facility.


(e) Monitoring and interagency agreements. Treatment must be monitored by an inspector. This monitoring will include inspection of treatment records and unannounced inspections of the facility by an inspector, and may include inspection of articles prior to or after irradiation. Facilities must be located within the local commuting area for APHIS employees for inspection purposes.


(1) Irradiation facilities treating imported articles; irradiation treatment framework equivalency workplan. Facilities shall be located within an area over which the U.S. Department of Homeland Security is assigned authority to accept entries of merchandise, to collect duties, and to enforce the provisions of the customs and navigation laws in force. The NPPO of a country from which articles are to be imported into the United States in accordance with this section must sign a framework equivalency workplan with APHIS. In this plan, both the NPPO and APHIS will specify the following items for their respective countries:


(A) Citations for any requirements that apply to the importation of irradiated fruits and vegetables;


(B) The type and amount of inspection, monitoring, or other activities that will be required in connection with allowing the importation of irradiated fruits and vegetables into that country; and


(C) Any other conditions that must be met to allow the importation of irradiated fruits and vegetables into that country.


(2) Irradiation facilities located in foreign countries. Facilities in foreign countries that carry out irradiation operations must notify the Director of Preclearance, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737-1236, of scheduled operations at least 30 days before operations commence, except where otherwise provided in the facility preclearance workplan. To ensure the appropriate level of monitoring, before articles may be imported in accordance with this section, the following agreements must be signed, in addition to the irradiation treatment framework equivalency workplan required in paragraph (e)(1) of this section:


(i) Facility preclearance workplan. Prior to commencing importation into the United States of articles treated at a foreign irradiation facility, APHIS and the NPPO of the country from which articles are to be imported must jointly develop a preclearance workplan that details the activities that APHIS and the foreign NPPO will carry out in connection with each irradiation facility to verify the facility’s compliance with the requirements of this section. Typical activities to be described in this workplan may include frequency of visits to the facility by APHIS and foreign plant protection inspectors, methods for reviewing facility records, and methods for verifying that facilities are in compliance with the requirements for separation of articles, packaging, labeling, and other requirements of this section. This facility preclearance workplan will be reviewed and renewed by APHIS and the foreign NPPO on an annual basis.


(ii) Trust fund agreement. Irradiated articles may be imported into the United States in accordance with this section only if the NPPO of the country in which the irradiation facility is located or a private export group has entered into a trust fund agreement with APHIS. That agreement requires the NPPO or the private export group to pay, in advance of each shipping season, all costs that APHIS estimates it will incur in providing inspection and treatment monitoring services at the irradiation facility during that shipping season. Those costs include administrative expenses and all salaries (including overtime and the Federal share of employee benefits), travel expenses (including per diem expenses), and other incidental expenses incurred by APHIS in performing these services. The agreement will describe the general nature and scope of APHIS services provided at irradiation facilities covered by the agreement, such as whether APHIS inspectors will monitor operations continuously or intermittently, and will generally describe the extent of inspections APHIS will perform on articles prior to and after irradiation. The agreement requires the NPPO or private export group to deposit a certified or cashier’s check with APHIS for the amount of those costs, as estimated by APHIS. If the deposit is not sufficient to meet all costs incurred by APHIS, the agreement further requires the NPPO or the private export group to deposit with APHIS a certified or cashier’s check for the amount of the remaining costs, as determined by APHIS, before any more articles irradiated in that country may be imported into the United States. After a final audit at the conclusion of each shipping season, any overpayment of funds would be returned to the NPPO or the private export group or held on account until needed, at the option of the NPPO or the private export group.


(3) Irradiation facilities located within the United States. Facilities located within the United States must notify an inspector at least 24 hours (excluding Saturday, Sunday, and Federal holidays) before scheduled operations.
2
If the facility will be used to treat imported articles, the NPPO of the country from which the articles are to be imported into the United States in accordance with this section must also sign the irradiation treatment framework equivalency workplan required in paragraph (e)(1) of this section.




2 Inspectors are assigned to local offices of the Animal and Plant Health Inspection Service, which are listed in telephone directories.


(f) Packaging. Articles that are irradiated in accordance with this section must be packaged in cartons in the following manner:


(1) Irradiated articles may not be packaged for shipment in a carton with nonirradiated articles.


(2) For all imported articles irradiated prior to arrival in the United States, all articles moved interstate from Hawaii or U.S. territories and irradiated prior to arrival in the mainland United States, and all regulated articles to be moved interstate from an area quarantined for fruit flies or Asian citrus psyllid that are treated within the quarantined area:


(i) The fruits and vegetables must be packaged either:


(A) In insect-proof cartons that have no openings that will allow the entry of the pests of concern. The cartons must be sealed with seals that will visually indicate if the cartons have been opened. The cartons may be constructed of any material that prevents entry or oviposition (if applicable) by the pests of concern into the articles in the carton;
3
or




3 If there is a question as to the adequacy of a carton, send a request for approval of the carton, together with a sample carton, to the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Center for Plant Health Inspection and Technology, 1730 Varsity Drive, Suite 400, Raleigh, NC 27606-5202.


(B) In noninsect-proof cartons that are stored immediately after irradiation in a room completely enclosed by walls or screening that completely precludes access by the pests of concern. If stored in noninsect-proof cartons in a room that precludes access by the pests of concern, prior to leaving the room, each pallet of cartons must be completely enclosed in polyethylene shrink wrap, or another solid or netting covering that completely precludes access to the cartons by the pests of concern.


(ii) To preserve the integrity of treated lots, each pallet-load of cartons containing the fruits and vegetables must be secured before leaving the irradiation facility in one of the following ways:


(A) With polyethylene shrink wrap;


(B) With net wrapping; or


(C) With strapping.


(iii) Packaging must be labeled in a manner that allows an inspector to determine treatment lot numbers, packing and treatment facility identification and location, and dates of packing and treatment.


(A) For imported articles that are treated prior to arrival in the United States, pallets that remain intact as one unit until entry into the United States may have one such label per pallet. Pallets that are broken apart into smaller units prior to or during entry into the United States, or that will be broken apart into smaller units after entry into the United States, must have the required label information on each individual carton.


(B) For articles moved interstate from Hawaii or U.S. territories that are treated prior to arrival in the mainland United States, pallets that remain intact as one unit until entry into the mainland United States may have one such label per pallet. Pallets that are broken apart into smaller units prior to or during entry into the mainland United States, or that will be broken apart into smaller units after entry into the mainland United States, must have the required label information on each individual carton.


(3) For all articles imported to be irradiated upon arrival in the United States, moved interstate from Hawaii or U.S. territories to be irradiated upon arrival in the mainland United States, or moved interstate from areas quarantined for fruit flies or Asian citrus psyllid to be irradiated outside the quarantined area, the articles must be packed in cartons that have no openings that will allow the exit of the pests of concern and that are sealed with seals that will visually indicate if the cartons have been opened. They may be constructed of any material that prevents the pests of concern from exiting the carton. Cartons of untreated articles must be shipped in shipping containers sealed prior to their shipment with seals that will visually indicate if the shipping containers have been opened.


(g) Containers or vans. Containers or vans that will transport treated articles must be free of pests of concern prior to loading the treated articles.


(h) Certification of treatment for articles treated outside the United States. For each consignment treated in an irradiation facility outside the United States, a phytosanitary certificate, with the treatment section completed and issued by the NPPO, must accompany the consignment.


(i) Dosage. The regulated articles must receive the minimum absorbed ionizing radiation dose specified in the PPQ Treatment Manual or in another approved treatment schedule.


(j) Dosimetry systems at the irradiation facility. (1) Dosimetry must indicate the doses needed to ensure that all the articles will receive the minimum dose prescribed.


(2) The absorbed dose, as measured using an accurate dosimetry system, must meet or exceed the absorbed dose for the pest(s) of concern required by the PPQ Treatment Manual or by another approved treatment schedule.


(3) When designing the facility’s dosimetry system and procedures for its operation, the facility operator must address guidance and principles from the International Standards Organization/American Society for Testing and Materials standard
4
or an equivalent standard recognized by APHIS.




4 Designation ISO/ASTM 51261-2002(E), “Standard Guide for Selection and Calibration of Dosimetry Systems for Radiation Processing,” American Society for Testing and Materials, Annual Book of ASTM Standards.


(k) Records. An irradiation processor must maintain records of each treated lot for 1 year following the treatment date, and must make these records available for inspection by an inspector during normal business hours (8 a.m. to 4:30 p.m., Monday through Friday, except holidays). These records must include the lot identification, scheduled process, evidence of compliance with the scheduled process, ionizing energy source, source calibration, dosimetry, dose distribution in the product, and the date of irradiation.


(l) Request for initial certification and inspection of facility. Persons requesting initial certification of an irradiation treatment facility must submit the request for approval in writing to the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Center for Plant Health Inspection and Technology, 1730 Varsity Drive, Suite 400, Raleigh, NC 27606-5202. The initial request must identify the owner, location, and radiation source of the facility, and the applicant must supply additional information about the facility construction, treatment protocols, and operations upon request by APHIS if APHIS requires additional information to evaluate the request. Before the Administrator determines whether an irradiation facility is eligible for certification, an inspector will make a personal inspection of the facility to determine whether it complies with the standards of this section.


(m) Denial and withdrawal of certification. (1) The Administrator will withdraw the certification of any irradiation treatment facility upon written request from the irradiation processor.


(2) The Administrator will deny or withdraw certification of an irradiation treatment facility when any provision of this section is not met. Before withdrawing or denying certification, the Administrator will inform the irradiation processor in writing of the reasons for the proposed action and provide the irradiation processor with an opportunity to respond. The Administrator will give the irradiation processor an opportunity for a hearing regarding any dispute of a material fact, in accordance with rules of practice that will be adopted for the proceeding. However, the Administrator will suspend certification pending final determination in the proceeding if he or she determines that suspension is necessary to prevent the spread of any dangerous insect. The suspension will be effective upon oral or written notification, whichever is earlier, to the irradiation processor. In the event of oral notification, written confirmation will be given to the irradiation processor within 10 days of the oral notification. The suspension will continue in effect pending completion of the proceeding and any judicial review of the proceeding.


(n) Department not responsible for damage. This treatment is approved to assure quarantine security against the plant pests listed in the PPQ Treatment Manual or the plant pests for which another treatment schedule is approved in accordance with § 305.2. From the literature available, the articles authorized for treatment under this section are believed tolerant to the treatment; however, the facility operator and shipper are responsible for determination of tolerance. The Department of Agriculture and its inspectors assume no responsibility for any loss or damage resulting from any treatment prescribed or monitored. Additionally, the Nuclear Regulatory Commission is responsible for ensuring that irradiation facilities are constructed and operated in a safe manner. Further, the Food and Drug Administration is responsible for ensuring that irradiated foods are safe and wholesome for human consumption.


(o) Substitution of irradiation for other treatments. Treatment of fruits and vegetables that are from foreign localities, from Hawaii, Puerto Rico, and the U.S. Virgin Islands, or from domestic areas under quarantine with irradiation in accordance with this section may be substituted for other approved treatments if the target pests of the other approved treatments are approved for treatment with irradiation in the PPQ Treatment Manual or approved for treatment with irradiation in accordance with § 305.2.


(Approved by the Office of Management and Budget under control numbers 0579–0155, 0579–0215, and 0579–0198, 0579–0383)

[75 FR 4241, Jan. 26, 2010, as amended at 75 FR 34336, June 17, 2010; 76 FR 60361, Sept. 29, 2011; 77 FR 42624, July 20, 2012; 83 FR 5878, Feb. 12, 2018]


PART 318—STATE OF HAWAII AND TERRITORIES QUARANTINE NOTICES


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


Source:24 FR 10777, Dec. 29, 1959, unless otherwise noted.

Subpart A—Regulated Articles From Hawaii and the Territories


Source:74 FR 2775, Jan 16, 2009, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 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 B—Territorial Cotton, Cottonseed, and Cottonseed Products” and “Subpart C—Sand, Soil, or Earth, with Plants from Territories and Districts” in this part.


[74 FR 2775, Jan. 16, 2009, as amended at 74 FR 15641, Apr. 7, 2009; 84 FR 2428, Feb. 7, 2019]


§ 318.13-2 Definitions.

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


Animal and Plant Health Inspection Service. The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture.


Certification (certified). A type of authorization, issued by an inspector, evidencing freedom from infestation, to allow the movement of certain regulated articles in accordance with the regulations in this subpart. “Certified” shall be construed accordingly.


Commercial consignment. A lot of fruits or vegetables that an inspector identifies as having been produced for sale or distribution in mass markets. Such identification will be based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower and packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer.


Compliance agreement. Any agreement to comply with stipulated conditions as prescribed under § 318.13–3 or § 318.13–4 or § 305.34 of this chapter, executed by any person to facilitate the interstate movement of regulated articles under this subpart.


Consignment. A quantity of plants, plant products, and/or other articles, including fruits or vegetables, being moved from one country to another and covered, when required, by a single certificate or limited permit (a consignment may be composed of one or more commodities or lots).


Continental United States. The 48 contiguous States, Alaska, and the District of Columbia.


Cut flower. Any cut blooms, fresh foliage, and dried decorative plant material customarily used in the florist trade and not for planting; and being the severed portion of a plant, including the inflorescence, and any parts of the plant attached thereto, in a fresh state.


Disinfection (disinfect and disinfected). The application to parts or all of a ship, vessel, other surface craft, or aircraft of a treatment that may be designated by the inspector as effective against such plant pests as may be present. (“Disinfect” and “disinfected” shall be construed accordingly.)


Fruits and vegetables. A commodity class for fresh parts of plants intended for consumption or processing and not planting.


Inspector. A State agricultural inspector or any individual authorized by the Administrator of APHIS or the Commissioner of Customs and Border Protection, Department of Homeland Security, to enforce the regulations in this subpart.


Interstate. From one State into or through any other State; or within the District of Columbia, Guam, the Virgin Islands of the United States, or any other territory or possession of the United States.


Limited permit. A document issued by an inspector or a person operating under a compliance agreement for the interstate movement of regulated articles to a specified destination for:


(1) Consumption, limited utilization or processing, or treatment; or


(2) Movement into or through the continental United States in conformity with a transit permit.


Lot. A number of units of a single commodity, identifiable by its homogeneity of composition and origin, forming all or part of a consignment.


Means of conveyance. A ship, truck, aircraft, or railcar.


Moved (move and movement). Shipped, offered for shipment to a common carrier, received for transportation or transported by a common carrier, or carried, transported, moved, or allowed to be moved, directly or indirectly, from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Marina Islands, or the U.S. Virgin Islands into or through the continental United States or any other State or territory of the United States (or from or into or through other places as specified in this subpart). “Move” and “movement” shall be construed accordingly.


Packing materials. Any plant or plant product, soil, or other substance associated with or accompanying any commodity or consignment to serve for filling, wrapping, ties, lining, mats, moisture retention, protection, or any other auxiliary purpose. The word “packing,” as used in the expression “packing materials,” includes the presence of such materials within, in contact with, or accompanying a consignment.


Person. Any individual, partnership, corporation, association, joint venture, or other legal entity.


Plant debris. Detached leaves, twigs, or other portions of plants, or plant litter or rubbish as distinguished from approved parts of clean fruits and vegetables, or other commercial articles.


Plant pests. Any living stage of any of the following that can directly or indirectly injure, cause damage to, or cause disease in any plant or plant product: A protozoan, nonhuman animal, parasitic plant, bacterium, fungus, virus or viroid, infectious agent or other pathogen, or any article similar to or allied with any of those articles.


Plant Protection and Quarantine (PPQ). The Plant Protection and Quarantine program of APHIS.


Regulated articles. Fruits or vegetables in the raw or unprocessed state; cut flowers; seeds; and plants or plant products for nonpropagative or propagative use.


Sealed (sealable) container. A completely enclosed container designed for the storage and/or transportation of commercial air, sea, rail, or truck cargo, and constructed of metal or fiberglass, or other similarly sturdy and impenetrable material, providing an enclosure accessed through doors that are closed and secured with a lock or seal. Sealed (sealable) containers used for sea consignments are distinct and separable from the means of conveyance carrying them when arriving in and in transit through the continental United States. Sealed (sealable) containers used for air consigments are distinct and separable from the means of conveyance carrying them before any transloading in the continental United States. Sealed (sealable) containers used for air consignments after transloading in the continental United States or for overland consignments in the continental United States may either be distinct and separable from the means of conveyance carrying them, or be the means of conveyance itself.


Soil. The loose surface material of the earth in which plants grow, in most cases consisting of disintegrated rock with an admixture of organic material and soluble salts.


State. Any of the several States of the United States, the Commonwealth of the Northern Mariana Islands, the Commonwealth of Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the United States, or any other territory or possession of the United States.


Transit permit. A written authorization issued by the Administrator for the movement of fruits and vegetables en route to a foreign destination that are otherwise prohibited movement by this subpart into the continental United States. Transit permits authorize one or more consignments over a designated period of time.


Transloading. The transfer of cargo from one sealable container to another, from one means of conveyance to another, or from a sealable container directly into a means of conveyance.


United States. All of the States.


[74 FR 2775, Jan 16, 2009, as amended at 83 FR 46637, Sept. 14, 2018]


§ 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 underpart 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 § 318.13–6.


(3) Except when the regulations specify that an inspector must issue the limited permit, limited permits may be issued by a person operating under a compliance agreement.


(d) Compliance agreements. As a condition for the movement of regulated articles for which a compliance agreement is required, the person entering the compliance agreement must agree to the following:


(1) That he or she will use any permit or certification issued to him or her in accordance with the provisions in the permit, the requirements in this subpart, and the compliance agreement;


(2) That he or she will maintain at his or her establishment such safeguards against the establishment and spread of infestation and infection and comply with such conditions as to the maintenance of identity, handling (including post-treatment handling), and interstate movement of regulated articles and the cleaning and treatment of means of conveyance and containers used in such movement of the articles, as may be required by the inspector in each specific case to prevent the spread of infestation or infection; and


(3) That he or she will allow inspectors to inspect the establishment and its operations.


(e) Attachment of limited permit or verification of certification. Except as otherwise provided for certain air cargo and containerized cargo on ships moved in accordance with § 318.13–10, each box, bale, crate, or other container of regulated articles moved under certification or limited permit shall have the limited permit attached to the outside of the container or bear a U.S. Department of Agriculture stamp or inspection sticker verifying that the consignment has been certified in accordance with paragraph (b) of this section: Provided, That if a limited permit or certification is issued for a consignment of more than one container or for bulk products, certification shall be stamped on or the limited permit shall be attached to the accompanying waybill, manifest, or bill of lading.


(f) Withdrawal of certification, transit permits, limited permits, or compliance agreements. Any certification, transit permit, limited permit, or compliance agreement which has been issued or authorized may be withdrawn by an inspector orally or in writing, if such inspector determines that the holder thereof has not complied with all conditions under the regulations for the use of such document. If the cancellation is oral, the decision and the reasons for the withdrawal shall be confirmed in writing as promptly as circumstances allow. Any person whose certification, transit permit, limited permit, or compliance agreement has been withdrawn may appeal the decision in writing to the Administrator within 10 days after receiving the written notification of the withdrawal. The appeal shall state all of the facts and reasons upon which the person relies to show that the certification, transit permit, limited permit, or compliance agreement was wrongfully withdrawn. The Administrator shall grant or deny the appeal, in writing, stating the reasons for such decision, as promptly as circumstances allow. If there is a conflict as to any material fact, a hearing shall be held to resolve such conflict. Rules of practice concerning such a hearing will be adopted by the Administrator.


(g) Container marking and identity. Except as provided in § 318.13–6(c), consignments of regulated articles moved in accordance with this subpart must have the following information clearly marked on each container or on the waybill, manifest, or bill of lading accompanying the articles: Nature and quantity of contents; name and address of shipper, owner, or person shipping or forwarding the articles; name and address of consignee; shipper’s identifying mark and number; and the certification stamp or number of the limited permit authorizing movement, if one was issued.


(h) Refusal of movement. An inspector may refuse to allow the interstate movement of a regulated article if the inspector finds that the regulated article is prohibited, is not accompanied by required documentation, is so infested with a plant pest or noxious weed that, in the judgment of the inspector, it cannot be cleaned or treated, or contains soil or other prohibited contaminants.


(i) Costs and charges. Services of the inspector during regularly assigned hours of duty at the usual places of duty shall be furnished without cost to the one requesting such services. APHIS will not assume responsibility for any costs or charges, other than those indicated in this section, in connection with the inspection, treatment, conditioning, storage, forwarding, or any other operation of any character incidental to the physical movement of regulated articles or plant pests.


(j) APHIS not responsible for damage. APHIS assumes no responsibility for any damage to regulated articles that 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)

[74 FR 2775, Jan. 16, 2009, as amended at 75 FR 4249, Jan. 26, 2010]


§ 318.13-4 Authorization of certain fruits and vegetables for interstate movement.

(a) Determination by the Administrator. No fruit or vegetable is authorized for interstate movement from Hawaii or the territories unless the Administrator has determined that the risk posed by each quarantine pest associated with the fruit or vegetable can be reasonably mitigated by the application of one or more phytosanitary measures designated by the Administrator.


(b) Designated phytosanitary measures. (1) The fruits and vegetables are subject to phytosanitary treatments, which could include, but are not limited to, pest control treatments in the field or growing site, and post-harvest treatments.


(2) The fruits and vegetables are subject to growing area pest mitigations, which could include, but are not limited to, detection surveys, trapping requirements, pest exclusionary structures, and field inspections.


(3) The fruits and vegetables are subject to safeguarding and movement mitigations, which could include, but are not limited to, safeguarded transport, box labeling, limited distribution, insect-proof boxes, and importation as commercial consignments only.


(4) The fruits and vegetables are subject to administrative mitigations, which could include, but are not limited to, registered fields or orchards, registered growing sites, registered packinghouses, inspection in the State of origin by an inspector, and operational workplan monitoring.


(5) The fruits and vegetables are subject to any other measures deemed appropriate by the Administrator.


(c) Authorized fruits and vegetables—(1) Comprehensive list. The name and origin of all fruits and vegetables authorized for interstate 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/aphis/ourfocus/planthealth/complete-list-of-electronic-manuals.


(2) Fruits and vegetables authorized for interstate movement prior to October 15, 2018. Fruits and vegetables that were authorized for interstate movement under this subpart as of October 15, 2018 may continue to be moved interstate under the same requirements that applied before October 15, 2018, except as provided in paragraph (c)(4) of this section.


(3) Other fruits and vegetables. Fruits and vegetables not already authorized for interstate movement as described in paragraph (c)(2) of this section may be authorized for interstate movement only after:


(i) APHIS has analyzed the pest risk posed by the interstate movement of a fruit or vegetable and has determined that the risk posed by each quarantine pest associated with the fruit or vegetable can be reasonably mitigated by the application of one or more phytosanitary measures;


(ii) APHIS has made its pest risk analysis and determination available for public comment for at least 60 days through a notice published in the Federal Register; and


(iii) The Administrator has announced his or her decision in a subsequent Federal Register notice to begin allowing interstate movement of the fruit or vegetable subject to the phytosanitary measures specified in the notice.


(4) Changes to phytosanitary measures. (i) If the Administrator determines that the phytosanitary measures required for a fruit or vegetable that has been authorized interstate movement under this subpart are no longer sufficient to reasonably mitigate the pest risk posed by the fruit or vegetable, APHIS will prohibit or further restrict interstate movement of the fruit or vegetable. APHIS will also publish a notice in the Federal Register advising the public of its finding. The notice will specify the amended interstate movement requirements, provide an effective date for the change, and invite public comment on the subject.


(ii) If the Administrator determines that any of the phytosanitary measures required for a fruit or vegetable that has been authorized interstate movement under this subpart are no longer necessary to reasonably mitigate the pest risk posed by the fruit or vegetable, APHIS will make new pest risk documentation available for public comment, in accordance with paragraph (c)(3) of this section, prior to allowing interstate movement of the fruit or vegetable subject to the phytosanitary measures specified in the notice.


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

[83 FR 46637, Sept. 14, 2018]


§ 318.13-5 Pest-free areas.

Certain fruits or vegetables may be moved interstate provided that the fruits or vegetables originate from an area that is free of a specific pest or pests. In some cases, fruits or vegetables may only be moved interstate if the area of origin is free of all plant pests that attack the fruits or vegetables. In other cases, fruits or vegetables may be moved interstate if the area of origin is free of one or more plant pests that attack the fruit or vegetable and the risk posed by the remaining plant pests that attack the fruit or vegetable is mitigated by other specific phytosanitary measures contained in the regulations in this subpart.


(a) Application of standards for pest-free areas. APHIS will make a determination of an area’s pest-free status based on information provided by the State. The information used to make this determination will include trapping and surveillance data, survey protocols, and protocols for actions to be performed upon detection of a pest.


(b) Survey protocols. APHIS must approve the survey protocol used to determine and maintain pest-free status, as well as protocols for actions to be performed upon detection of a pest. Pest-free areas are subject to audit by APHIS to verify their status.


(c) Determination of pest freedom. (1) For an area to be considered free of a specified pest for the purposes of this subpart, the Administrator must determine, and announce in a notice published in the Federal Register for a public comment period of 60 days, that the area meets the criteria of paragraphs (a) and (b) of this section.


(2) The Administrator will announce his or her decision in a subsequent Federal Register notice. If appropriate, APHIS will allow movement of the regulated article from a pest-free area because:


(i) No comments were received on the notice or


(ii) The comments on the notice did not affect the overall conclusions of the notice and the Administrator’s determination of risk.


(d) Decertification of pest-free areas; reinstatement. If a pest is detected in an area that is designated as free of that pest, APHIS will publish in the Federal Register a notice announcing that the pest-free status of the area in question has been withdrawn and that interstate movement of host crops for the pest in question is subject to application of an approved treatment for the pest. If a treatment for the pest is not available, interstate movement of the host crops would be prohibited. In order for a decertified pest-free area to be reinstated, it would have to meet the criteria of paragraphs (a) through (c) of this section.


(e) General requirements for the interstate movement of regulated articles from pest-free areas—(1) Labeling. Each box of fruits or vegetables that is moved interstate from a pest-free area under this subpart must be clearly labeled with:


(i) The name of the orchard or grove of origin, or the name of the grower; and


(ii) The name of the municipality and State or territory in which the fruits or vegetables were produced; and


(iii) The type and amount of fruits or vegetables the box contains.


(2) Compliance agreement. Persons wishing to move fruits or vegetables from a pest-free area in Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands must enter into a compliance agreement with APHIS in accordance with § 318.13–3(d).


(3) Safeguarding. If fruits or vegetables are moved from a pest-free area into or through an area that is not free of that pest, the fruits or vegetables must be safeguarded during the time they are present in a non-pest-free area by being covered with insect-proof mesh screens or plastic tarpaulins, including while in transit to the packinghouse and while awaiting packaging. If fruits or vegetables are moved through an area that is not free of that pest during transit to a port, they must be packed in insect-proof cartons or containers or be covered by insect-proof mesh or plastic tarpaulins during transit to the port and subsequent movement into or through the United States. These safeguards described in this section must remain intact until the fruits or vegetables reach their final destination.


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


§ 318.13-6 Transit of fruits and vegetables from Hawaii or the territories into or through the continental United States.

Fruits and vegetables from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands that are otherwise prohibited interstate movement into the continental United States by this subpart may transit the continental United States en route to a foreign destination when moved in accordance with this section.


(a) Transit permit. (1) A transit permit is required for the arrival, unloading, and movement through the continental United States of fruits and vegetables otherwise prohibited by this subpart from being moved through the continental United States from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands. Application for a transit permit may be made in writing or with PPQ Form 586.
2
The transit permit application must include the following information:




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


(i) The specific types of fruits and vegetables to be shipped (only scientific or English common names are acceptable);


(ii) The means of conveyance to be used to transport the fruit or vegetable through the continental United States;


(iii) The port of arrival in the continental United States, and the location of any subsequent stop;


(iv) The location of, and the time needed for, any storage in the continental United States;


(v) Any location in the continental United States where the fruits or vegetables are to be transloaded;


(vi) The means of conveyance to be used for transporting the fruits or vegetables from the port of arrival in the continental United States to the port of export;


(vii) The estimated time necessary to accomplish exportation, from arrival at the port of arrival in the continental United States to exit at the port of export;


(viii) The port of export; and


(ix) The name and address of the applicant and, if the applicant’s address is not within the territorial limits of the continental United States, the name and address in the continental United States of an agent whom the applicant names for acceptance of service of process.


(2) A transit permit will be issued only if the following conditions are met:


(i) APHIS inspectors are available at the port of arrival, port of export, and any locations at which transloading of cargo will take place and, in the case of air consignments, at any interim stop in the continental United States, as indicated on the application for the transit permit;


(ii) The application indicates that the proposed movement would comply with the provisions in this section applicable to the transit permit; and


(iii) During the 12 months prior to receipt of the application by APHIS, the applicant has not had a transit permit withdrawn under § 318.13–3(f), unless the transit permit has been reinstated upon appeal.


(b) Limited permit. Fruits or vegetables shipped from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands through the continental United States under this section must be accompanied by a limited permit, a copy of which must be presented to an inspector at the port of arrival and the port of export in the continental United States, and at any other location in the continental United States where an air consignment is authorized to stop or where overland consignments change means of conveyance. An inspector will issue a limited permit if the following conditions are met:


(1) The inspector determines that the specific type and quantity of the fruits or vegetables being shipped are accurately described by accompanying documentation, such as the accompanying manifest, waybill, and bill of lading. (Only scientific or English common names are acceptable.) The fruits or vegetables shall be assembled at whatever point and in whatever manner the inspector designates as necessary to comply with the requirements of this section; and


(2) The inspector establishes that the consignment of fruits or vegetables has been prepared in compliance with the provisions of this section.


(c) Marking requirements. Each of the smallest units, including each of the smallest bags, crates, or cartons, containing regulated articles for transit through the continental United States under this section must be conspicuously marked, prior to the locking and sealing of the container in the State of origin, with a printed label that includes a description of the specific type and quantity of the fruits or vegetables (only scientific or English common names are acceptable), the transit permit number under which the regulated articles are to be shipped, and, in English, the State in which they were grown and the statement “Distribution in the United States is Prohibited.”


(d) Handling of fruits and vegetables. Fruits or vegetables shipped through the United States from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands in accordance with this section may not be commingled in the same sealed container with fruits or vegetables that are intended for entry and distribution in the United States. The fruits or vegetables must be kept in sealed containers from the time the limited permit required by paragraph (b) of this section is issued, until the fruits or vegetables exit the United States, except as otherwise provided in the regulations in this section. Transloading must be carried out in accordance with the requirements of paragraphs (a), (h), and (i) of this section.


(e) Area of movement. The port of arrival, the port of export, ports for air stops, and overland movement within the continental United States of fruits or vegetables shipped under this section is limited to a corridor that includes all States of the continental United States except Alabama, Arizona, California, Florida, Georgia, Kentucky, Louisiana, Mississippi, Nevada, New Mexico, North Carolina, South Carolina, Tennessee, Texas, and Virginia, except that movement is allowed through Dallas/Fort Worth, TX, as an authorized stop for air cargo, or as a transloading location for consignments that arrive by air but that are subsequently transloaded into trucks for overland movement from Dallas/Fort Worth, TX, into the designated corridor by the shortest route. Movement through the United States must begin and end at locations staffed by APHIS inspectors.


(f) Movement of regulated articles. Transportation through the continental United States shall be by the most direct route to the final destination of the consignment in the country to which it is exported, as determined by APHIS based on commercial shipping routes and timetables and set forth in the transit permit. No change in the quantity of the original consignment from that described in the limited permit is allowed. No remarking is allowed. No diversion or delay of the consignment from the itinerary described in the transit permit and limited permit is allowed unless authorized by an APHIS inspector upon determination by the inspector that the change will not significantly increase the risk of plant pests or diseases in the United States, and unless each port to which the consignment is diverted is staffed by APHIS inspectors.


(g) Notification in case of emergency. In the case of an emergency such as an accident, a mechanical breakdown of the means of conveyance, or an unavoidable deviation from the prescribed route, the person in charge of the means of conveyance must, as soon as practicable, notify the APHIS office at the port where the cargo arrived in the United States.


(h) Consignments by sea. Except as authorized by this paragraph, consignments arriving in the United States by sea from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands may be transloaded once from a ship to another ship or, alternatively, once to a truck or railcar at the port of arrival and once from a truck or railcar to a ship at the port of export, and must remain in the original sealed container, except under extenuating circumstances and when authorized by an inspector upon determination by the inspector that the transloading would not significantly increase the risk of the introduction of plant pests or diseases into the United States, and provided that APHIS inspectors are available to provide supervision. No other transloading of the consignment is allowed, except under extenuating circumstances (e.g. , equipment breakdown) and when authorized by an inspector upon determination by the inspector that the transloading would not significantly increase the risk of the introduction of plant pests or diseases into the continental United States, and provided that APHIS inspectors are available to provide supervision.


(i) Consignments by air. (1) Consignments arriving in the United States by air from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands may be transloaded only once in the United States. Transloading of air consignments must be carried out in the presence of an APHIS inspector. Consignments arriving by air that are transloaded may be transloaded either into another aircraft or into a truck trailer for export by the most direct route to the final destination of the consignment through the designated corridor set forth in paragraph (e) of this section. This may be done at either the port of arrival in the United States or at the second air stop within the designated corridor, as authorized in the transit permit and as provided in paragraph (i)(2) of this section. No other transloading of the consignment is allowed, except under extenuating circumstances (e.g., equipment breakdown) and when authorized by an APHIS inspector upon determination by the inspector that the transloading would not significantly increase the risk of the introduction of plant pests or diseases into the United States, and provided that APHIS inspectors are available to provide supervision. Transloading of air consignments will be authorized only if the following conditions are met:


(i) The transloading is done into sealable containers;


(ii) The transloading is carried out within the secure area of the airport (i.e., that area of the airport that is open only to personnel authorized by the airport security authorities);


(iii) The area used for any storage is within the secure area of the airport; and


(iv) APHIS inspectors are available to provide the supervision required by paragraph (i)(1) of this section.


(2) Except as authorized by paragraph (f) of this section, consignments that continue by air from the port of arrival in the continental United States may be authorized by APHIS for only one additional stop in the continental United States, provided the second stop is within the designated corridor set forth in paragraph (e) of this section and is staffed by APHIS inspectors. As an alternative to transloading a consignment arriving in the United States into another aircraft, consignments that arrive by air may be transloaded into a truck trailer for export by the most direct route to the final destination of the consignment through the designated corridor set forth in paragraph (e) of this section. This may be done at either the port of arrival in the United States or at the second authorized air stop within the designated corridor. No other transloading of the consignment is allowed, except under extenuating circumstances (e.g., equipment breakdown) and when authorized by an APHIS inspector upon determination by the inspector that the transloading would not significantly increase the risk of the introduction of plant pests or diseases into the United States, and provided that APHIS inspectors are available to provide supervision.


(j) Duration and location of storage. Any storage in the United States of fruits or vegetables shipped under this section must be for a duration and in a location authorized in the transit permit required by paragraph (a) of this section. Areas where such fruits or vegetables are stored must be either locked or guarded at all times the fruits and vegetables are present. Cargo shipped under this section must be kept in a sealed container while stored in the continental United States.


(k) Temperature requirement. Except for time spent on aircraft and except during storage and transloading of air consignments, the temperature in the sealed containers containing fruits and vegetables moved under this section must be 60 °F or lower from the time the regulated articles leave Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands, or any other territory or possession of the United States until they exit the United States.


(l) Prohibited materials. (1) The person in charge of or in possession of a sealed container used for movement into or through the United States under this section must ensure that the sealed container is carrying only those fruits or vegetables authorized by the transit permit required under paragraph (a) of this section; and


(2) The person in charge of or in possession of any means of conveyance or container returned to the United States without being reloaded after being used to export fruits or vegetables from the United States under this section must ensure that the means of conveyance or container is free of materials prohibited importation into the United States under this chapter.


(m) Authorization by APHIS of the movement of fruits or vegetables through the United States under this section does not imply that such fruits or vegetables are enterable into the destination country. Consignments returned to the United States from the destination country shall be subject to all applicable regulations, including “Subpart L—Fruits and Vegetables ” of part 319 and “Plant Quarantine Safeguard Regulations” of part 352 of this chapter.


(n) Any restrictions and requirements with respect to the arrival, temporary stay, unloading, transloading, transiting, exportation, or other movement or possession in the United States of any fruits or vegetables under this section shall apply to any person who brings into, maintains, unloads, transloads, transports, exports, or otherwise moves or possesses in the United States such fruits or vegetables, whether or not that person is the one who was required to have a transit permit or limited permit for the fruits or vegetables or is a subsequent custodian of the fruits or vegetables. Failure to comply with all applicable restrictions and requirements under this section by such a person shall be deemed to be a violation of this section.


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

[74 FR 2775, Jan 16, 2009, as amended at 84 FR 2428, Feb. 7, 2019]


§ 318.13-7 Products as ships’ stores or in the possession of passengers or crew.

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


(b) As ships’ stores or decorations. Fruits, vegetables, or cut flowers subject to the quarantine and regulations in this subpart may be taken aboard a ship, vessel, or other surface craft in Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands without inspection or certification. Fruits, vegetables, and cut flowers that are so taken aboard such a carrier must be either:


(1) Entirely consumed or removed from the ship, vessel, or other surface craft before arrival within the territorial waters of the continental United States, Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands, or any other territory or possession of the United States; or


(2) In the case of a surface carrier, retained aboard such carrier under seal or otherwise disposed of subject to safeguards equivalent to those imposed on other prohibited or restricted products by paragraphs (b) and (c) of § 352.10 of this chapter.


§ 318.13-8 Articles and persons subject to inspection.

In addition to the inspection requirements in §§ 318.13–9 and 318.13–10, persons, means of conveyance (including ships, other oceangoing craft, and aircraft), baggage, cargo, and any other articles, that are destined for movement, are moving, or have been moved from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands to a destination elsewhere in the United States are subject to agricultural inspection at the port of departure, the port of arrival, or any other authorized port. If an inspector finds any article prohibited movement by the quarantine and regulations of this subpart, he or she, taking the least drastic action, shall order the return of the article to the place of origin, or the exportation of the article, under safeguards satisfactory to him or her, or otherwise dispose of it, in whole or part, to comply with the quarantine and regulations of this subpart.


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

(a) Inspection of aircraft prior to departure. No person shall move any aircraft from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands to any other State unless the person moving the aircraft has contacted an inspector and offered the inspector the opportunity to inspect the aircraft prior to departure and the inspector has informed the person proposing to move the aircraft that the aircraft may depart.


(b) Inspection of aircraft moving to Guam. Any person who has moved an aircraft from Hawaii, Puerto Rico, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands to Guam shall contact an inspector and offer the inspector the opportunity to inspect the aircraft upon the aircraft’s arrival in Guam.


(c) Inspection of ships upon arrival. Any person who has moved a ship or other oceangoing craft from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands to any other State shall contact an inspector and offer the inspector the opportunity to inspect the ship or other oceangoing craft upon its arrival.


(d) Disinfection of means of conveyance. If an inspector finds that a means of conveyance is infested with or contains plant pests, and the inspector orders disinfection of the means of conveyance, then the person in charge or in possession of the means of conveyance shall disinfect the means of conveyance and its cargo in accordance with an approved method contained in part 305 of this chapter under the supervision of an inspector and in a manner prescribed by the inspector, prior to any movement of the means of conveyance or its cargo.


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

(a) Offer for inspection by aircraft passengers. Passengers destined for movement by aircraft from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands to any other State shall offer their carry-on baggage and other personal effects for inspection at the place marked for agricultural inspections, which will be located at the airport security checkpoint or the aircraft boarding gate, at the time they pass through the checkpoint or the gate. Passengers shall offer their check-in baggage for inspection at agricultural inspection stations prior to submitting their baggage to the check-in baggage facility. When an inspector has inspected and passed such baggage or personal effects, he or she shall apply a U.S. Department of Agriculture stamp, inspection sticker, or other identification to such baggage or personal effects to indicate that such baggage or personal effects have been inspected and passed as required. Passengers shall disclose any fruits, vegetables, plants, plant products, or other articles that are requested to be disclosed by the inspector. When an inspection of a passenger’s baggage or personal effects discloses an article in violation of the regulations in this part, the inspector shall seize the article. The passenger shall state his or her name and address to the inspector, and provide the inspector with corroborative identification. The inspector shall record the name and address of the passenger, the nature of the identification presented for corroboration, the nature of the violation, the types of articles involved, and the date, time, and place of the violation.


(b) Offer for inspection by aircraft crew. Aircraft crew members destined for movement by aircraft from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands to any other State, shall offer their baggage and personal effects for inspection at the inspection station designated for the employing airline not less than 20 minutes prior to the scheduled departure time of the aircraft or the rescheduled departure time as posted in the public areas of the airport. When an inspector has inspected and passed such baggage or personal effects, he or she shall apply a U.S. Department of Agriculture stamp, inspection sticker, or other identification to the baggage or personal effects to indicate that such baggage or personal effects have been inspected and passed as required. Aircraft crew members shall disclose any fruits, vegetables, plants, plant products, or other articles that are requested to be disclosed by the inspector. When an inspection of a crew member’s baggage or personal effects discloses an article in violation of the regulations in this part, the inspector shall seize the article. The crew member shall state his or her name and address to the inspector, and provide the inspector with corroborative identification. The inspector shall record the name and address of the crew member, the nature of the identification presented for corroboration, the nature of the violation, the types of articles involved, and the date, time, and place of the violation.


(c) Baggage inspection for persons traveling to Guam on aircraft. No person who has moved from Hawaii, Puerto Rico, or the U.S. Virgin Islands to Guam on an aircraft shall remove or attempt to remove any baggage or other personal effects from the area secured for customs inspections before the person has offered to an inspector, and has had passed by the inspector, his or her baggage and other personal effects. Persons shall disclose any fruits, vegetables, plants, plant products, or other articles that are requested to be disclosed by the inspector. When an inspection of a person’s baggage or personal effects discloses an article in violation of the regulations in this part, the inspector shall seize the article. The person shall state his or her name and address to the inspector, and provide the inspector with corroborative identification. The inspector shall record the name and address of the person, the nature of the identification presented for corroboration, the nature of the violation, the types of articles involved, and the date, time, and place of the violation.


(d) Baggage acceptance and loading on aircraft. No person shall accept or load any check-in aircraft baggage destined for movement from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands to any other State unless the baggage bears a U.S. Department of Agriculture stamp, inspection sticker, or other indication applied by an inspector representing that the baggage has been inspected and certified.


(e) Offer for inspection by persons moving by ship. No person who has moved on any ship or other oceangoing craft from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands to any other territory, State, or District of the United States, shall remove or attempt to remove any baggage or other personal effects from the designated inspection area as provided in paragraph (h) of this section on or off the ship or other oceangoing craft unless the person has offered to an inspector for inspection, and has had passed by the inspector, the baggage and other personal effects. Persons shall disclose any fruits, vegetables, plants, plant products, or other articles that are requested to be disclosed by the inspector. When an inspection of a person’s baggage or personal effects discloses an article in violation of the regulations in this part, the inspector shall seize the article. The person shall state his or her name and address to the inspector, and provide the inspector with corroborative identification. The inspector shall record the name and address of the person, the nature of the identification presented for corroboration, the nature of the violation, the types of articles involved, and the date, time, and place of the violation.


(f) Loading of certain cargoes. (1) Except as otherwise provided in paragraph (f)(2) of this section, no person shall present to any common carrier or contract carrier for movement, and no common carrier or contract carrier shall load, any cargo containing fruits, vegetables, or other articles regulated under this subpart that are destined for movement from Hawaii, Puerto Rico, Guam, or the U.S. Virgin Islands to any other State unless the cargo has been offered for inspection, passed by an inspector, and bears a U.S. Department of Agriculture stamp or inspection sticker, or unless a limited permit is attached to the cargo as specified in § 318.13–3(e).


(2) Cargo designated may be loaded without a U.S. Department of Agriculture stamp or inspection sticker attached to the cargo or a limited permit attached to the cargo if the cargo is moved:


(i) As containerized cargo on ships or other oceangoing craft or as air cargo;


(ii) The carrier has on file documentary evidence that a valid limited permit was issued for the movement or that the cargo was certified; and


(iii) A notation of the existence of these documents is made by the carrier on the waybill, manifest, or bill of lading that accompanies the consignment.


(3) Cargo moved in accordance with § 318.13–6(b) that does not have a limited permit attached to the cargo must have a limited permit attached to the waybill, manifest, or bill of lading accompanying the consignment.


(g) Removal of certain cargoes in Guam. No person shall remove or attempt to remove from a designated inspection area as provided in paragraph (h) of this section, on or off the means of conveyance, any cargo moved from Hawaii, Puerto Rico, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands to Guam containing fruits, vegetables, or other articles regulated under this subpart, unless the cargo has been inspected and passed by an inspector in Guam.


(h) Space and facilities for baggage and cargo inspection. Baggage and cargo inspection will not be performed until the person in charge or possession of the ship, other oceangoing craft, or aircraft provides space and facilities on the means of conveyance, pier, or airport that are adequate, in the inspector’s judgment, for the performance of inspection.


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

(a) Before any aircraft or any ship, vessel, or other surface craft moving to Guam, the Commonwealth of Northern Mariana Islands, or American Samoa from Hawaii or any other territory or possession of the United States arrives in Guam, the Commonwealth of Northern Mariana Islands, or American Samoa, a baggage declaration, to be furnished by the U.S. Department of Agriculture, calling attention to the provisions of the Plant Protection Act and the quarantine and regulations in this subpart, must be distributed to each adult passenger. These baggage declarations shall be executed and signed by the passengers and shall be collected and delivered by the master or other responsible officer of the aircraft, ship, vessel, or other surface craft to the inspector on arrival at the quarantine or inspection area.


(b) Every person owning or controlling any dock, harbor, or landing field in Hawaii, Puerto Rico, Guam, the Commonwealth of Northern Mariana Islands, or the U.S. Virgin Islands from which ships, vessels, other surface craft, or aircraft leave for ports in any other State shall post, and keep posted at all times, in one or more conspicuous places in passenger waiting rooms on or in said dock, harbor, or landing field a warning notice directing attention to the quarantine and regulations in this subpart. Every master, or other responsible officer of any ship, vessel, other surface craft, or aircraft leaving Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands destined to a port in any other State, shall similarly post, and keep posted at all times, such a warning notice in the ship, vessel, other surface craft, or aircraft under his charge.


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

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


§ 318.13-13 Movement of frozen fruits and vegetables.

Frozen fruits and vegetables may be certified for movement from Hawaii, Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, or the U.S. Virgin Islands, into or through any other territory, State, or District of the United States in accordance with § 318.13–3. Such fruits and vegetables must be held at a temperature not higher than 20 °F during shipping and upon arrival in the continental United States, and in accordance with the requirements for the interstate movement of frozen fruits and vegetables in part 305 of this chapter.


[74 FR 2775, Jan 16, 2009, as amended at 83 FR 46638, Sept. 14, 2018]


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

(a) Fruits, vegetables, and other products that are processed sufficiently as to preclude the survival of any live pests can be moved interstate from Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands. Those processed products which are approved for interstate movement from those States can be found in the fruits and vegetables manuals for those States. These manuals are available on the Internet at http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/hawaii.pdf and http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/puerto_rico.pdf.


(b) Consignments of processed fruits, vegetables, or other products that have not been processed sufficiently as to be incapable of harboring fruit flies are subject to the interstate movement requirements which apply to the fruit, vegetable, or other product in its unprocessed state.


§ 318.13-15 Parcel post inspection.

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


§ 318.13-16 Regulated articles from Guam.

(a)(1) Regulated articles, other than soil, may be moved from Guam into or through any other State only if they meet the strictest plant quarantine requirements in accordance with part 319 of this chapter for similar articles offered for entry into such States from the countries of East and Southeast Asia, including Cambodia, India, Japan, Korea, Laos, the northeastern provinces of Manchuria, the Philippines, Taiwan, and Vietnam, or the islands of the Central and South Pacific, including Micronesia, Melanesia, and Polynesia, as well as Australia, New Zealand, and the Malay Archipelago, except requirements for permits, phytosanitary certificates, notices of arrival, and notices of consignment from port of arrival. Soil must meet the requirements of § 330.300 of this chapter.


(2) Regulated articles that do not meet the requirements of paragraph (a)(1) of this section are prohibited movement from Guam into or through any other State.


(b)(1) Regulated articles moved from Guam into or through any other State shall be subject to inspection at the port of first arrival in another part of the United States to determine whether they are free of plant pests and otherwise meet the requirements applicable to them under this subpart, and shall be subject to release, in accordance with § 330.105(a) of this chapter as if they were foreign arrivals. Such articles shall be released only if they meet all applicable requirements under this subpart.


(2) A release shall be issued in writing unless the inspection involves small quantities of regulated articles, in which case a release may be issued orally by the inspector.


[74 FR 2775, Jan 16, 2009. Redeisgnated and amended at 83 FR 46638, Sept. 14, 2018]


§ 318.13-17 Cut flowers from Hawaii.

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


(b) Cut blooms of gardenia may be moved interstate from Hawaii if grown and inspected in accordance with the provisions of this section.
4




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


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


(2) The grower must establish a buffer area surrounding gardenia production areas. The buffer area must extend 20 feet from the edge of the production area. Within the buffer area, the growing of gardenias and the following green scale host plants is prohibited: Ixora, ginger (Alpinia purpurata), plumeria, coffee, rambutan, litchi, guava, citrus, anthurium, avocado, banana, cocoa, macadamia, celery, Pluchea indica, mango, orchids, and annona.


(3) An inspector must visually inspect the cut blooms of gardenias in each consignment prior to interstate movement from Hawaii to the mainland United States. If the inspector does not detect green scale in the consignment, the inspector will certify the consignment in accordance with § 318.13–3(b). If the inspector finds green scale in a consignment, that consignment will be ineligible for interstate movement from Hawaii.


(Approved by the Office of Management and Budget under control number 0579–0198)

[74 FR 2775, Jan 16, 2009. Redesignated at 83 FR 46638, Sept. 14, 2018]


Subpart B—Territorial Cotton, Cottonseed, and Cottonseed Products


Source:Redesignated at 84 FR 2428, Feb, 7, 2019.

Quarantine

§ 318.47 Notice of quarantine.

(a) The Secretary of Agriculture having previously quarantined Hawaii and Puerto Rico on account of the pink bollworm of cotton (Pectinophora gossypiella Saunders) and the cotton blister mite (Eriophyes gossypii Banks), insect pests new to and not widely prevalent or distributed within and throughout the United States, now determines that it is necessary to extend the quarantine to prevent the spread of these insects from the Virgin Islands of the United States, where they are known to occur.


(b) Under the authority of sections 411, 412, 414, and 434 of the Plant Protection Act (7 U.S.C. 7711, 7712, 7714, and 7754), Hawaii, Puerto Rico, and the Virgin Islands of the United States are quarantined to prevent the spread of the aforementioned insect pests.


(c) All parts and products of plants of the genus Gossypium, such as seeds including seed cotton; cottonseed; cotton lint, linters, and other forms of cotton fiber; cottonseed hulls, cake, meal, and other cottonseed products, except oil; cotton waste; and all other unmanufactured parts of cotton plants; and all second-hand burlap and other fabric which have been used, or are of the kinds ordinarily used, for wrapping or containing cotton, are hereby prohibited movement from the Hawaii, Puerto Rico, and the Virgin Islands of the United States into or through any other State, Territory or District of the United States, in manner or method or under conditions other than those prescribed in the regulations hereinafter made or amendments thereto: Provided, That whenever the Deputy Administrator of the Plant Protection and Quarantine Programs shall find that existing conditions as to the pest risk involved in the movement of the articles to which the regulations supplemental hereto apply, make it safe to modify, by making less stringent, the restrictions contained in any such regulations, he shall set forth and publish such findings in administrative instructions, specifying the manner in which the regulations should be made less stringent, whereupon such modification shall become effective.


(d) As used in this subpart, unless the context otherwise requires, the term State, Territory, or District of the United States means State, the District of Columbia, Alaska, Guam, Hawaii, Puerto Rico, or the Virgin Islands of the United States.


[24 FR 10777, Dec. 29, 1959, as amended at 66 FR 21054, Apr. 27, 2001]


§ 318.47a Administrative instructions relating to Guam.

The plants, products and articles specified in § 318.47(c) may be moved from Hawaii into or through Guam without restriction under this subpart.


Rules and Regulations


Cross Reference:

For rules and regulations governing the importation of cotton and cottonseed products into the United States, see §§ 319.8 to 319.8–27 of this chapter.

§ 318.47-1 Definitions.

For the purpose of the regulations in this subpart the following words, names, and terms shall be construed, respectively, to mean:


(a) Cotton. Parts and products of plants of the genus Gossypium, including seed cotton; cottonseed; cotton lint, linters and other forms of cotton fiber; cottonseed hulls, cake, meal, and other cottonseed products, except oil; cotton waste; and all other unmanufactured parts of cotton plants; and second-hand burlap and other fabric which have been used, or are of the kinds ordinarily used, for wrapping or containing cotton.


(b) Seed cotton. The unginned lint and seed admixture, just as it is picked from the cotton boll.


(c) Cottonseed. The seed of the cotton plant, either separated from the lint or as a component part of seed cotton.


(d) Lint. All forms of raw or unmanufactured ginned cotton, either baled or unbaled, including all cotton fiber, except linters, which has not been woven or spun, or otherwise manufactured.


(e) Linters. All forms of unmanufactured cotton fiber separated from cottonseed after the lint has been removed, including that form referred to as “hull fiber.”


(f) Waste. All forms of cotton waste derived from the manufacture of cotton lint, in any form or under any trade designation, including gin waste; and waste products derived from the milling of cottonseed.


(g) Seedy waste. Picker waste, gin waste, and oil mill waste, and any other cotton by-products capable of carrying a high percentage of cottonseed.


(h) Clean waste. Wastes derived from the processing of lint in machines after the card machine, including card strips but not card fly.


(i) Bale covers. Second-hand burlap and other second-hand fabric by whatever trade designation, which have been used, or are of the kinds ordinarily used, for wrapping or otherwise containing cotton. Burlap and other fabric of the kinds ordinarily used for wrapping cotton, when new or unused, are excluded from this definition.


(j) Certificate (certification, certified). A type of authorization, evidencing freedom from infestation, issued by the Deputy Administrator of the Plant Protection and Quarantine Programs to allow the movement of lint, linters, waste, seed cotton, cottonseed, cottonseed hulls, cake, and meal, and bale covers in accordance with the regulations in this subpart. “Certification” and “certified” shall be construed accordingly.


(k) Permit. A type of general authorization issued by the Deputy Administrator of the Plant Protection and Quarantine Programs to allow the movement of lint, linters, waste other than seedy waste, cottonseed cake and meal, and bale covers in accordance with the regulations in this subpart.


(l) Fumigated. Fumigated under the supervision of an inspector of the Plant Protection and Quarantine Programs in a fumigation plant approved by the Deputy Administrator of said Programs and in accordance with methods approved by him.


(m) Moved (movement, move). 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, or the Virgin Islands of the United States, into or through any other State, Territory, or District of the United States. “Movement” and “move” shall be construed accordingly.


§ 318.47-2 Articles the movement of which is prohibited or regulated.

(a) Articles prohibited movement. The movement of seed cotton, cottonseed, and seedy waste, when unfumigated, is prohibited except as provided in § 318.47–3(b)(2).


(b) Articles the movement of which is regulated. Lint; linters; waste; seed cotton; cottonseed; cottonseed hulls, cake, and meal; and bale covers may be moved upon compliance with the conditions prescribed in § 318.47–3.


§ 318.47-3 Conditions governing the issuance of certificates and permits.

(a) Fumigated lint; linters; waste; seed cotton; cottonseed; cottonseed hulls, cake, and meal; and bale covers. Lint; linters; waste; seed cotton; cottonseed; cottonseed hulls, cake, and meal; and bale covers, fumigated in the Territory or District of origin in accordance with part 305 of this chapter and so certified, are allowed unrestricted movement to any port.


(b) Unfumigated lint, linters, waste, and bale covers. (1) Unfumigated Hawaiian, Puerto Rican, or Virgin Islands of the United States lint, linters, waste other than seedy waste, and bale covers will be allowed to move under permit, by all-water route, for entry only at the ports of Norfolk, Baltimore, New York, Boston, San Francisco, and Seattle, or other port of arrival designated in the permit, and at such designated port of arrival shall become subject to the regulations governing the handling of cotton imported from foreign countries.


(2) Fumigation may be waived and certificates issued for lint, linters, and waste which have been determined by an inspector of the Plant Protection and Quarantine Programs to have been so manufactured or processed by bleaching, dyeing, or other means, as to have removed all seeds, or to have destroyed all insect life therein.


(c) Cottonseed cake and meal. (1) Cottonseed cake and meal which have been inspected in the Territory or District of origin and certified by an inspector of the Plant Protection and Quarantine Programs as being free from contamination with whole, uncrushed cottonseed, will be allowed unrestricted movement to any port.


(2) Hawaiian, Puerto Rican, and Virgin Islands of the United States cottonseed cake and meal, when neither fumigated nor inspected in accordance with the provisions of this section, will be allowed entry under permit through any port at which the services of an inspector are available, subject to examination by an inspector for freedom from contamination with uncrushed cottonseed. If found to be free from such contamination, the cottonseed cake or meal may be released from further entry restrictions. Cottonseed cake or meal found to be contaminated shall be refused entry or subjected as a condition of entry and release to such safeguards as may be prescribed by the inspector from such administratively approved methods as will, in his judgment, be necessary to eliminate infestations of the pink bollworm or cotton blister mite.


[24 FR 10777, Dec. 29, 1959, as amended at 75 FR 4251, Jan. 26, 2010]


§ 318.47-4 Shipments by the Department of Agriculture.

Cotton may be moved by the Department of Agriculture for experimental or scientific purposes under such conditions as may be prescribed by the Deputy Administrator of the Plant Protection and Quarantine Programs, which conditions may include clearance through the New Crops Research Branch of the Plant Science Research Division, Agricultural Research Service.


Subpart C—Sand, Soil, or Earth, with Plants from Territories and Districts


Source:Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 318.60 Notice of quarantine.

(a) The Secretary of Agriculture, having previously quarantined Hawaii and Puerto Rico to prevent the spread to other parts of the United States, by means of sand, soil, or earth about the roots of plants, of immature stages of certain dangerous insects, including Phyllophaga spp. (White grubs), Phytalus sp., and Adoretus sp., and of several species of termites or white ants, new to and not heretofore widely prevalent or distributed within and throughout the United States, now determines that it is necessary also to quarantine the Virgin Islands of the United States to prevent the spread of such dangerous insects from said Virgin Islands.


(b) Under the authority of sections 411, 412, 414, and 434 of the Plant Protection Act (7 U.S.C. 7711, 7712, 7714, and 7754), Hawaii, Puerto Rico, and the Virgin Islands of the United States are quarantined to prevent the spread of the aforementioned dangerous insects.


(c) Sand (other than clean ocean sand), soil, or earth around the roots of plants must not be 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 by any person from Hawaii, Puerto Rico, or the Virgin Islands of the United States into or through any other State, Territory, or District of the United States: Provided, That the prohibitions in this paragraph (c) do not apply to the movement of soil from Hawaii, Puerto Rico, and the Virgin Islands other than that soil around the roots of plants; movement of soil that is not around the roots of plants is regulated under part 330 of this chapter: Provided further, That the prohibitions of this section shall not apply to the movement of such products in either direction between Puerto Rico and the Virgin Islands of the United States: Provided further, That such prohibitions shall not prohibit the movement of such products by the United States Department of Agriculture for scientific or experimental purposes, nor prohibit the movement of sand, soil, or earth around the roots of plants which are carried, for ornamental purposes, on vessels into mainland ports of the United States and which are not intended to be landed thereat, when evidence is presented satisfactory to the inspector of the Plant Protection and Quarantine Programs of the Department of Agriculture that such sand, soil, or earth has been so processed or is of such nature that no pest risk is involved, or that the plants with sand, soil, or earth around them are maintained on board under such safeguards as will preclude pest escape: And provided further, That such prohibitions shall not prohibit the movement of plant cuttings or plants that have been—


(1) Freed from sand, soil, and earth;


(2) Subsequently potted and established in sphagnum moss or other packing material approved under § 319.37–11 of this chapter that had been stored under shelter and had not been previously used for growing or packing plants;


(3) Grown thereafter in a manner satisfactory to an inspector of the Plant Protection and Quarantine Programs to prevent infestation through contact with sand, soil, or earth; and


(4) Certified by an inspector of the Plant Protection and Quarantine Programs as meeting the requirements of paragraphs (c)(1) through (3) of this section.


(d) As used in this section, the term State, Territory, or District of the United States means “Guam, Hawaii, Puerto Rico, the Virgin Islands of the United States, or the continental United States.”


[24 FR 10777, Dec. 29, 1959, as amended at 66 FR 21054, Apr. 27, 2001; 83 FR 11855, Mar. 19, 2018; 84 FR 29957, June 25, 2019]


PART 319—FOREIGN QUARANTINE NOTICES


Authority:7 U.S.C. 1633, 7701–7772, and 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.


Source:24 FR 10788, Dec. 29, 1959, unless otherwise noted.

Subpart A—Preemption


Source:75 FR 17292, Apr. 6, 2010, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 319.1 Preemption of State and local laws.

(a) Under section 436 of the Plant Protection Act (7 U.S.C. 7756), a State or political subdivision of a State may not regulate in foreign commerce any plant or plant product in order to control, eradicate, or prevent the introduction or dissemination of a biological control organism, plant pest, or noxious weed within the United States.


(b) Therefore, in accordance with section 436 of the Plant Protection Act, the regulations in this part preempt all State and local laws that are inconsistent with or exceed the regulations in this part.


Subpart B—Requests To Amend The Regulations


Source:Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 319.5 Requirements for submitting requests to change the regulations in 7 CFR part 319.

(a) Definitions.


Commodity. A plant, plant product, or other agricultural product being moved for trade or other purpose.


(b) Procedures for submitting requests and supporting information. Persons who request changes to the import regulations contained in this part and who wish to import plants, plant parts, or plant products that are not allowed importation under the conditions of this part must file a request with the Animal and Plant Health Inspection Service (APHIS) in order for APHIS to consider whether the new commodity can be safely imported into the United States. The initial request can be formal (e.g., a letter) or informal (e.g., made during a bilateral discussion between the United States and another country), and can be made by any person. Upon APHIS confirmation that granting a person’s request would require amendments to the regulations in this part, the national plant protection organization of the country from which the commodity would be exported must provide APHIS with the information listed in paragraph (d) of this section before APHIS can proceed with its consideration of the request; requests that are not supported with this information in a timely manner will be considered incomplete and APHIS may not take further action on such requests until all required information is submitted.


(c) Addresses. The national plant protection organization of the country from which commodities would be exported must submit the information listed in paragraph (d) of this section to: Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737.


(d) Information. The following information must be provided to APHIS in order for APHIS to consider a request to change the regulations in part 319:


(1) Information about the party submitting the request. The address, telephone and fax numbers, and e-mail addresses of the national plant protection organization of the country from which commodities would be exported; or, for requests that address a multi-country region, the address, telephone and fax numbers, and e-mail addresses of the exporting countries’ national and regional plant protection plant protection organizations.


(2) Information about the commodity proposed for importation into the United States. (i) A description and/or map of the specific location(s) of the areas in the exporting country where the plants, plant parts, or plant products are produced;


(ii) The scientific name (including genus, species, and author names), synonyms, and taxonomic classification of the commodity;


(iii) Identification of the particular plant or plant part (i.e., fruit, leaf, root, entire plant, etc.) and any associated plant part proposed for importation into the United States;


(iv) The proposed end use of the imported commodity (e.g., propagation, consumption, milling, decorative, processing, etc.); and


(v) The months of the year when the commodity would be produced, harvested, and exported.


(3) Shipping information: (i) Detailed information as to the projected quantity and weight/Volume of the proposed importation, broken down according to varieties, where applicable, and;


(ii) Method of shipping in international commerce and under what conditions, including type of conveyance, and type, size, and capacity of packing boxes and/or shipping containers.


(4) Description of pests and diseases associated with the commodity
1
(i) Scientific name (including genus, species, and author names) and taxonomic classification of arthropods, fungi, bacteria, nematodes, virus, viroids, mollusks, phytoplasmas, spiroplasmas, etc., attacking the crop;




1 When a change is being sought to the conditions governing the importation of a commodity that is already authorized for importation into the United States, an update to or confirmation of previously submitted pest and disease information, rather than a new, complete submission of that information, may be appropriate. Persons seeking such a change may contact APHIS for a determination as to whether an update will be appropriate in a particular case.


(ii) Plant part attacked by each pest, pest life stages associated with each plant part attacked, and location of pest (in, on, or with commodity); and


(iii) References.


(5) Current strategies for risk mitigation or management. (i) Overview of agronomic or horticultural management practices used in production of the commodity, including methods of pest risk mitigation or control programs; and


(ii) Identification of parties responsible for pest management and control.


(e) Additional information. None of the additional information listed in this paragraph need be provided at the same time as information required under paragraphs (a) through (d) of this section; it is required only upon request by APHIS. If APHIS determines that additional information is required in order to complete a pest risk analysis in accordance with international standards for pest risk analysis, we will notify the party submitting the request in writing what specific additional information is required. If this information is not provided, and is not available to APHIS from other sources, a request may be considered incomplete and APHIS may be unable to take further action on the request until the necessary additional information is submitted. The additional information may include one or more of the following types of information:


(1) Contact information: Address, phone and fax numbers, and/or e-mail address for local experts (e.g., academicians, researchers, extension agents) most familiar with crop production, entomology, plant pathology, and other relevant characteristics of the commodity proposed for importation.


(2) Additional information about the commodity: (i) Common name(s) in English and the language(s) of the exporting country;


(ii) Cultivar, variety, or group description of the commodity;


(iii) Stage of maturity at which the crop is harvested and the method of harvest;


(iv) Indication of whether the crop is grown from certified seed or nursery stock, if applicable;


(v) If grown from certified seed or stock, indication of the origin of the stock or seed (country, State); and


(vi) Color photographs of plant, plant part, or plant product itself.


(3) Information about the area where the commodity is grown: (i) Unique characteristics of the production area in terms of pests or diseases;


(ii) Maps of the production regions, pest-free areas, etc.;


(iii) Length of time the commodity has been grown in the production area;


(iv) Status of growth of production area (i.e., acreage expanding or stable); and


(v) Physical and climatological description of the growing area.


(4) Information about post-harvest transit and processing: (i) Complete description of the post-harvest processing methods used; and


(ii) Description of the movement of the commodity from the field to processing to exporting port (e.g., method of conveyance, shipping containers, transit routes, especially through different pest risk areas).


(5) Shipping methods: (i) Photographs of the boxes and containers used to transport the commodity; and


(ii) Identification of port(s) of export and import and expected months (seasons) of shipment, including intermediate ports-of-call and time at intermediate ports-of-call, if applicable.


(6) Additional description of all pests and diseases associated with the commodity to be imported: (i) Common name(s) of the pest in English and local language(s);


(ii) Geographic distribution of the pest in the country, if it is a quarantine pest and it follows the pathway;


(iii) Period of attack (e.g., attacks young fruit beginning immediately after blooming) and records of pest incidence (e.g., percentage of infested plants or infested fruit) over time (e.g., during the different phenological stages of the crops and/or times of the year);


(iv) Economic losses associated with pests of concern in the country;


(v) Pest biology or disease etiology or epidemiology; and


(vi) Photocopies of literature cited in support of the information above.


(7) Current strategies for risk mitigation or management: (i) Description of pre-harvest pest management practices (including target pests, treatments [e.g., pesticides], or other control methods) as well as evidence of efficacy of pest management treatments and other control methods;


(ii) Efficacy of post-harvest processing treatments in pest control;


(iii) Culling percentage and efficacy of culling in removing pests from the commodity; and


(iv) Description of quality assurance activities, efficacy, and efficiency of monitoring implementation.


(8) Existing documentation: Relevant pest risk analyses, environmental assessment(s), biological assessment(s), and economic information and analyses.


(f) Availability of additional guidance. Information related to the processing of requests to change the import regulations contained in this part may be found on the APHIS Web site at http://www.aphis.usda.gov/ppq/pra/.


(Approved by the Office of Management and Budget under control number 0579–0261)

[71 FR 30567, May 30, 2006]


Subpart C—Controlled Import Permits


Source:78 FR 25568, May 2, 2013, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 319.6 Controlled import permits.

(a) Definitions.


Administrator. The Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture, or any employee of the United States Department of Agriculture delegated to act in his or her stead.


Developmental purposes. The evaluation, monitoring, or verification of plant material for plant health risks and/or the adaptability of the material for certain uses or environments.


Experimental purposes. Scientific testing which utilizes collected data and employs analytical processes under controlled conditions to create qualitative or quantitative results.


Therapeutic purposes. The application of specific scientific processes designed to eliminate, isolate, or remove potential plant pests or diseases.


(b) Purpose and scope. The regulations in this part prohibit or restrict the importation into the United States of certain plants, plant products, and other articles to prevent the introduction and dissemination of plant pests and noxious weeds within and throughout the United States. The regulations in this subpart provide a process under which a controlled import permit (CIP) may be issued to authorize the importation, for experimental, therapeutic, or developmental purposes, of an article whose importation is prohibited under this part. A CIP may also be issued to authorize, for those same purposes, the importation of an article under conditions that differ from those prescribed in the relevant regulations in this part.


(c) Application process. Applications for a CIP are available without charge from the Animal and Plant Health Inspection Service (APHIS), Plant Protection and Quarantine (PPQ), Permit Unit, 4700 River Road Unit 136, Riverdale, MD 20737–1236, or from local PPQ offices. Applications may be submitted by mail, by fax, or electronically and must be submitted at least 60 days prior to arrival of the article at the port of entry. Mailed applications must be submitted to the address above, faxed applications may be submitted to 301–734–4300, and electronic applications may be submitted through the ePermits Web site at https://epermits.aphis.usda.gov/epermits.


(1) The completed application for a CIP must provide the following information:


(i) Name, address in the United States, and contact information of the applicant;


(ii) Identity (common and botanical [genus and species] names) of the plant material to be imported, quantity of importation, country of origin, and country shipped from;


(iii) Intended experimental, therapeutic, or developmental purpose for the importation; and


(iv) Intended ports of export and entry, means of conveyance, and estimated date of arrival.


(2) APHIS may issue a CIP if the Administrator determines that the plant pest risks associated with the plant material and its intended experimental, therapeutic, or developmental use can be effectively mitigated. The CIP will contain the applicable conditions for importation and subsequent handling of the plant material if it is deemed eligible to be imported into the United States, including the specifications for the facility where the plant will be held. The plant material may be imported only if all applicable requirements are met.


(d) Shipping conditions. Consignments of plant material to be offered for importation under a CIP must meet the following requirements, unless otherwise specified under the conditions of the CIP:


(1) The plant material must be selected from apparently disease-free and pest-free sources.


(2) The plant material must be free of soil, other foreign matter or debris, other prohibited plants, noxious weed seeds, and living organisms such as parasitic plants, pathogens, insects, snails, and mites.


(3) Fungicides, insecticides, and other treatments such as coatings, dips, or sprayings must not be applied before shipment, unless otherwise specified. Plant materials may be refused entry if they are difficult or hazardous to inspect because of the presence of such treatments. Plant materials must not be wrapped or otherwise packaged in a manner that impedes or prevents adequate inspection or treatment.


(4) The plant material must be moved in an enclosed container or one completely enclosed by a covering adequate to prevent the possible escape or introduction of plant pests during shipment. Any packing material used in the consignment of the plant material must meet the requirements of § 319.37–11, and wood packing material used in the consignment must meet the requirements of § 319.40–3(b) and (c).


(5) Consignments may be shipped as cargo, by mail or air freight, or hand-carried, as specified in the conditions of the CIP.


(6) The plant material must be offered for importation at the port of entry or plant inspection station as specified in the conditions of the CIP.


(7) A copy of the CIP must accompany each consignment, and all consignments must be labeled in accordance with instructions in the CIP.


(8) Each consignment must be accompanied by an invoice or packing list indicating its contents.


(e) Post-importation conditions. (1) At the approved facility where the plant material will be maintained following its importation, plant material imported under a CIP must be identified and labeled as quarantined material to be used only in accordance with a valid CIP.


(2) Plant material must be stored in a secure place or in the manner indicated in the CIP and be under the supervision and control of the permit holder. During regular business hours, properly identified officials, either Federal or State, must be allowed to inspect the plant material and the facilities in which the plant material is maintained.


(3) The permit holder must keep the permit valid for the duration of the authorized experimental, therapeutic, or developmental purpose. The PPQ Permit Unit must be informed of a change in contact information for the permit holder within 10 business days of such change.


(4) Plant material imported under a CIP must not be moved or distributed to another person without prior authorization from the PPQ Permit Unit.


(5) Should the permit holder leave the institution in which the plant material imported under a CIP is kept, the plant material must be destroyed unless, prior to the departure of the original permit holder, another person assumes responsibility for the continued maintenance of the plant material and such person obtains a new CIP for the plant material. Should the permit holder be otherwise unavailable to maintain the plant material for which the CIP was issued, the plant material must be destroyed unless another person assumes responsibility for the continued maintenance of the plant material and such person obtains a new CIP for the plant material. Permission to move or distribute plant material that was authorized for importation under a CIP to another person must be obtained by contacting the PPQ Permit Unit.


(6) CIPs issued by APHIS are valid for a period of 1 year. The permittee may request the existing permit be renewed for up to an additional 2 years prior to the expiration of the CIP and if no adverse indications exist from the previous year.


(f) Failure to comply with all of the conditions specified in the CIP or any applicable regulations or administrative instructions, or forging, counterfeiting, or defacing permits or shipping labels, may result in immediate revocation of the permit, denial of future permits, and civil or criminal penalties for the permit holder.


(g) Denial, withdrawal, cancellation, or revocation of permit. The Administrator may deny a permit application in accordance with § 319.7–3, and a permit may be withdrawn, canceled, or revoked in accordance with § 319.7–4.


(1) Action upon cancellation or revocation of permit. Upon cancellation or revocation of a permit, the permittee must surrender, destroy, or remove all regulated plant material covered by the permit in accordance with § 319.7–4(e).


(2) Appeal of denial or revocation. Any person whose application for a permit has been denied or whose permit has been revoked may appeal the denial or revocation in accordance with § 319.7–5.


(Approved by the Office of Management and Budget under control number 0579–0384)

[78 FR 25568, May 2, 2013, as amended at 79 FR 19807, Apr. 10, 2014; 81 FR 40150, June 21, 2016; 83 FR 11855, Mar. 19, 2018]


Subpart D—Permits: Allocation, Issuance, Denial, and Revocation


Source:78 FR 19807, Apr. 10, 2014, unless otherwise noted. Redesignated at 84 FR 2428, Feb. 7, 2019.

§ 319.7 Definitions.

The following definitions apply to this subpart:


Administrative instructions. Published documents related to the enforcement of this part and issued under authority of the Plant Protection Act, as amended (7 U.S.C. 7701 et seq.), by the Administrator.


Administrator. The Administrator of the Animal and Plant Health Inspection Service or any employee of the United States Department of Agriculture delegated to act in his or her stead.


Animal and Plant Health Inspection Service (APHIS). The Animal and Plant Health Inspection Service of the United States Department of Agriculture.


Applicant. A person at least 18 years of age who, on behalf of him- or herself or another person, submits an application for a permit to import into the United States or move interstate a regulated article in accordance with this part.


Approved. Approved by the Administrator of the Animal and Plant Health Inspection Service.


Article. Any material or tangible objects that could harbor or be a vector of plant pests or noxious weeds.


Consignment. A quantity of plants, plant products, and/or other articles being moved from one country to another authorized when required, by a single permit. A consignment may be composed of one or more commodities or lots.


Country of origin. The country where the plants, or plants from which the plant products are derived, were grown or where the non-plant articles were produced.


Enter, entry. To move into, or the act of movement into, the commerce of the United States.


Import, importation. To move into, or the act of movement into, the territorial limits of the United States.


Inspector. Any individual authorized by the Administrator of the Animal and Plant Health Inspection Service or the Commissioner of the Bureau of Customs and Border Protection, Department of Homeland Security, to enforce the regulations in this part.


Intended use. The purpose for the importation of the regulated article, including, but not limited to, consumption, propagation, or research purposes.


Lot. All the regulated articles on a single means of conveyance that are derived from the same species of plant or are the same type of non-plant article, were subjected to the same treatments prior to importation, and are consigned to the same person.


Means of conveyance. Any personal property used for or intended for use for the movement of any other personal property.


Move. To carry, enter, import, mail, ship, or transport; to aid, abet, cause, or induce the carrying, entering, importing, mailing, shipping, or transporting; to offer to carry, enter, import, mail, ship, or transport; to receive to carry, enter, import, mail, ship, or transport; to release into the environment; or to allow any of the activities described in this definition.


Oral authorization. Verbal permission to import that may be granted by an inspector at the port of entry.


Permit. A written authorization, including by electronic methods, to move plants, plant products, biological control organisms, plant pests, noxious weeds, or articles under conditions prescribed by the Administrator.


Permittee. The person who, on behalf of self or another person, is legally the importer of an article, meets the requirements of § 319.7–2(f), and is responsible for compliance with the conditions for the importation that is the subject of a permit issued in accordance with this part.


Person. Any individual, partnership, corporation, association, joint venture, or other legal entity.


Plant. Any plant (including any plant part) for or capable of propagation, including a tree, a tissue culture, a plantlet culture, pollen, a shrub, a vine, a cutting, a graft, a scion, a bud, a bulb, a root, and a seed.


Plant pest. 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; a nonhuman animal; a parasitic plant; a bacterium; a fungus; a virus or viroid; an infectious agent or other pathogen; or any article similar to or allied with any of the foregoing enumerated articles.


Plant product. Any flower, fruit, vegetable, root, bulb, seed, or other plant part that is not included in the definition of plant, or any manufactured or processed plant or plant part.


Port of entry. A port at which a specified shipment or means of conveyance is accepted for entry or admitted without entry into the United States for transit purposes.


Port of first arrival. The area (such as a seaport, airport, or land border) where a person or means of conveyance first arrives in the United States, and where inspection of regulated articles may be carried out by inspectors.


PPQ. The Plant Protection and Quarantine Program, Animal and Plant Health Inspection Service of the United States Department of Agriculture, delegated responsibility for enforcing provisions of the Plant Protection Act and related legislation, quarantines and regulations.


Regulated article. Any material or tangible object regulated by this part for entry into the United States or interstate movement.


Soil. The unconsolidated material from the earth’s surface that consists of rock and mineral particles mixed with organic material and that supports or is capable of supporting biotic communities.


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.


Treatment. A procedure approved by the Administrator for neutralizing infestations or infections of plant pests or diseases, such as fumigation, application of chemicals or dry or moist heat, or processing, utilization, or storage.


United States. All of the States.


§ 319.7-1 Applying for a permit.

(a) Persons who wish to import regulated articles into the United States must apply for a permit, unless the regulated articles are not subject to a requirement under this part that a permit be issued prior to a consignment’s arrival. An applicant for a permit to import regulated articles into the United States in accordance with this part must be:


(1) Capable of acting in the capacity of the permittee in accordance with § 319.7–2(e), or must designate a permittee who is so capable should the permit be issued;


(2) Applying for a permit on behalf of self or on behalf of another person as permittee; and


(3) At least 18 years of age.


(b) Permit applications must be submitted by the applicant in writing or electronically through one of the means listed at http://www.aphis.usda.gov/plant_health/permits/index.shtml in advance of the action(s) proposed on the permit application.


(c) The application for a permit must contain the following information:


(1) Legal name, address, and contact information of the applicant, and affirmation by the applicant that the applicant is at least 18 years of age;


(2) The same information of the permittee if different from the applicant, and, if the permittee is an individual, affirmation by the permittee that the permittee is at least 18 years of age;


(3) Specific type of regulated article (common and scientific names, if applicable);


(4) Country of origin;


(5) Intended use of the regulated article;


(6) Intended port(s) of first arrival; and


(7) A description of any processing, treatment, or handling of the regulated article to be performed prior to or following importation, including the location where any processing or treatment was or will be performed and the names and dosage of any chemical employed in treatments of the regulated article.


(d) The application for a permit may also require the following information:


(1) Means of conveyance;


(2) Quantity of the regulated article;


(3) Estimated date of arrival;


(4) Name, address, and contact information of any broker or subsequent custodian of the regulated article;


(5) Exporting country from which the article is to be moved, when not the country of origin; and


(6) Any other information determined to be necessary by APHIS to inform the decision to issue the permit.


(e) Application for a permit to import regulated articles into the United States must be submitted at least 30 days prior to arrival of the article at the port of entry.


(1) If, through no fault of the importer, a consignment of regulated articles subject to a requirement under this part that a permit be issued prior to a consignment’s arrival arrives at a U.S. port before a permit is received, the consignment may be held, under suitable safeguards prescribed by the inspector, in custody at the risk and expense of the importer pending issuance of a permit or authorization from APHIS.


(2) An oral authorization may be granted by an inspector at the port of entry for a consignment, provided that:


(i) All applicable entry requirements are met;


(ii) Proof of application for a written permit is provided to the inspector; and


(iii) PPQ verifies that the application for a written permit has been received and that PPQ intends to issue the permit.


§ 319.7-2 Issuance of permits and labels.

(a) Upon receipt of an application, APHIS will issue a permit if, after review of the application, APHIS determines that the regulated articles are eligible to be imported into the United States under any applicable conditions. The permit will specify the applicable conditions of entry and the port of entry, and a copy will be provided to the permittee. The permit will only be valid for the time period indicated on the permit.


(b) The applicant for a permit for the importation of regulated articles into the United States must designate the person who will be named as the permittee upon the permit’s issuance. The applicant and the permittee may be the same person or different persons.


(c) The act, omission, or failure of the permittee as an officer, agent, or person acting for or employed by any other person within the scope of his or her employment or office will be deemed also to be the act, omission, or failure of the other person.


(d) Failure to comply with all of the conditions specified in the permit or any applicable regulations or administrative instructions, or forging, counterfeiting, or defacing permits or shipping labels, may result in immediate revocation of the permit, denial of any future permits, and civil or criminal penalties for the permittee.


(e) The permittee will remain responsible for the consignment regardless of any delegation to a subsequent custodian of the importation.


(f) A permittee must:


(1) If an individual, be at least 18 years of age and have and maintain an address in the United States that is specified on the permit and be physically present during normal business hours at that address during any periods when articles are being imported or moved interstate under the permit; or


(2) If another legal entity, maintain an address or business office in the United States with a designated individual for service of process; and


(3) Serve as the contact for the purpose of communications associated with the movement of the regulated article for the duration of the permit. The PPQ Permit Unit must be informed of a change in contact information for the permittee within 10 business days of such change;


(4) Ensure compliance with the applicable regulatory requirements and permit conditions associated with the movement of the regulated article for the duration of the permit;


(5) Provide written or electronic acknowledgment and acceptance of permit conditions when APHIS requests such acknowledgment;


(6) Serve as the primary contact for communication with APHIS regarding the permit; and


(7) Maintain all conditions of the permit for the entirety of its prescribed duration.


(g) The regulated article may be imported only if all applicable requirements of the permit issued for the importation of the regulated article or any other documents or instructions issued by APHIS are met and complied with as determined by APHIS.


(h) In accordance with the regulations in this part, labels may be issued to the permittee for the importation of regulated articles. Such labels may contain information about the shipment’s nature, origin, movement conditions, or other matters relevant to the permit and will indicate that the importation is authorized under the conditions specified in the permit.


(1) If issued, the quantity of labels will be sufficient for the permittee to attach one to each parcel. Labels must be affixed to the outer packaging of the parcel.


(2) Importations without such required labels will be refused entry into the United States, unless a label is not required and not issued for the importation.


(i) Even if a permit has been issued for the importation of a regulated article, the regulated article may be imported only if an inspector at the port of entry determines that no remedial measures pursuant to the Plant Protection Act are necessary to mitigate or address any plant pest or noxious weed risks.
1




1 An inspector may hold, seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of plants, plant pests, and other articles in accordance with sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


(j) A permit application may be withdrawn at the request of the applicant prior to the issuance of the permit.


(k) A permit may be canceled after issuance at the request of the permittee.


(l) A permit may be amended if APHIS finds that the permit is incomplete or contains factual errors.


(m) In accordance with Section 7734 of the Plant Protection Act, as amended (7 U.S.C. 7701 et seq.), the actions, omissions, or failures of any agent of the permittee may be deemed the actions, omissions, or failures of a permittee as well; and that failure to comply with all of the conditions specified in the permit or any applicable regulations or administrative instructions, or forging, counterfeiting, or defacing permits or shipping labels, may result in immediate revocation of the permit, denial of any future permits, and civil or criminal penalties for the permittee.


§ 319.7-3 Denial of permits.

(a) APHIS may deny an application for a permit to import a regulated article into the United States. A denial, including the reason for the denial, will be provided in writing, including by electronic methods, to the applicant as promptly as circumstances permit. The denial of a permit may be appealed in accordance with § 319.7–5.


(b) APHIS may deny an application for a permit to import a regulated article:


(1) If APHIS determines that the applicant is not likely to abide by permit conditions. Factors that may lead to such a determination include, but are not limited to, the following:


(i) The applicant, or a partnership, firm, corporation, or other legal entity in which the applicant has a substantial interest, financial or otherwise, has not complied with any permit that was previously issued by APHIS;


(ii) APHIS determines that issuing the permit would circumvent any order revoking or denying a permit under the Plant Protection Act;


(iii) APHIS determines that the applicant has previously failed to comply with any APHIS regulation;


(iv) APHIS determines that the applicant has previously failed to comply with any Federal, State, or local law, regulation, or instruction concerning the importation of prohibited or restricted foreign agricultural products;


(v) APHIS determines that the applicant has failed to comply with the laws or regulations of a national plant protection organization or equivalent body, as these pertain to plant health;


(vi) APHIS determines that the applicant has made false or fraudulent statements or provided false or fraudulent records to APHIS; or


(vii) The applicant has been convicted or has pled nolo contendere to any crime involving fraud, bribery, extortion, or any other crime involving a lack of integrity.


(2) If the application for a permit contains information that is found to be materially false, fraudulent, deceptive, or misrepresentative;


(3) If APHIS concludes that the actions proposed under the permit would present an unacceptable risk to plants and plant products because of the potential for introduction or dissemination of a plant pest or noxious weed within the United States;


(4) If the importation is adverse to the conduct of an eradication, suppression, control, or phytosanitary program of APHIS or a program recognized by APHIS;


(5) If the importation is not in compliance with any applicable import regulations or any administrative instructions or measures, including, but not limited to, all the requirements of this part; or


(6) If a State executive official, or a State plant protection official authorized to do so, objects to the movement in writing and provides specific, detailed information that there is a risk the movement will result in the dissemination of a plant pest or noxious weed into the State, and APHIS determines that such plant pest risk cannot be adequately addressed or mitigated.


§ 319.7-4 Withdrawal, cancellation, and revocation of permits.

(a) Withdrawal of an application. If the applicant wishes to withdraw a permit application before issuance of a permit, he or she must provide the request in writing to APHIS. APHIS will provide written notification to the applicant as promptly as circumstances allow regarding reception of the request and withdrawal of the application.


(b) Cancellation of permit by permittee. If a permittee wishes to cancel a permit after its issuance, he or she must provide the request in writing to APHIS. APHIS will provide written notification to the applicant as promptly as circumstances allow regarding reception of the request and cancellation of the permit.


(c) Revocation of permit by APHIS. APHIS may revoke any outstanding permit to import regulated articles into the United States. A revocation, including the reason for the revocation, will be provided in writing, including by electronic methods, to the permittee as promptly as circumstances permit. The revocation of a permit may be appealed in accordance with § 319.7–5.


(d) APHIS may revoke a permit to import a regulated article if:


(1) Information is received subsequent to the issuance of the permit of circumstances that APHIS determines would constitute cause for the denial of an application under § 319.7–3; or


(2) APHIS determines that the permittee has failed to maintain the safeguards or otherwise observe the conditions specified in the permit or in any applicable regulations or administrative instructions, including, but not limited to, all of the requirements of this part.


(e) Upon revocation of a permit, the permittee must, without cost to the Federal Government and in the manner and method APHIS considers appropriate, either:


(1) Surrender all regulated articles covered by the revoked permit and any other affected plant material to an inspector;


(2) Destroy, under the supervision of an inspector, all regulated articles covered by the revoked permit and any other affected plant material; or


(3) Remove all regulated articles covered by the revoked permit and any other affected plant material from the United States.


[78 FR 19807, Apr. 10, 2014, as amended at 81 FR 5888, Feb. 4, 2016]


§ 319.7-5 Appeal of denial or revocation.

(a) All denials of an application for a permit, or revocations of an existing permit, will be provided in writing, including by electronic methods, as promptly as circumstances permit and will include the reasons for the denial or revocation.


(b) Any person whose application for a permit has been denied or whose permit has been revoked may appeal the decision in writing to APHIS within 10 business days from the date the communication of notification of the denial or revocation of the permit was received. The appeal must state all facts and reasons upon which the person is relying to show that the denial or revocation was incorrect.


(c) APHIS will grant or deny the appeal in writing and will state in writing the reason for the decision. The denial or revocation will remain in effect during the resolution of the appeal.


Subpart E—Foreign Cotton and Covers


Source:Redesignated at 84 FR 2428, Feb. 7, 2019.

Quarantine

§ 319.8 Notice of quarantine.

(a) Pursuant to sections 411–414 and 434 of the Plant Protection Act (7 U.S.C. 7711–7714 and 7754), the Administrator of the Animal and Plant Health Inspection Service has determined that the unrestricted importation into the United States from all foreign countries and localities of any parts or products of plants of the genus Gossypium, including seed cotton; cottonseed; cotton lint, linters, and other forms of cotton fiber (not including yarn, thread, and cloth); cottonseed hulls, cake, meal, and other cottonseed products, except oil; cotton waste, including gin waste and thread waste; any other unmanufactured parts of cotton plants; second-hand burlap and other fabrics, shredded or otherwise, that have been used or are of the kinds ordinarily used, for containing cotton, grains (including grain products), field seeds, agricultural roots, rhizomes, tubers, or other underground crops, may result in the entry into the United States of the pink bollworm (Pectinophora gossypiella (Saund.)), the golden nematode of potatoes (Heterodera rostochiensis Wr.), the flag smut disease (Urocystis tritici Koern.), and other injurious plant diseases and insect pests. Accordingly, to prevent the introduction into the United States of plant pests, the importation of those articles into the United States is prohibited unless they are imported in accordance with the regulations in this subpart or their importation has been authorized for experimental, therapeutic, or developmental purposes by a controlled import permit issued in accordance with § 319.6.


(b) The importation of cotton plants (including any plant parts) that are for planting or capable of being planted is restricted in Subpart H—Plants for Planting

of this part.


[78 FR 25569, May 2, 2013, as amended at 83 FR 11855, Mar. 19, 2018; 84 FR 2429, Feb. 7, 2019]


§ 319.8a Administrative instructions relating to the entry of cotton and covers into Guam.

The plants and products specified in § 319.8(a) may be imported into Guam without further permit, other than the authorization contained in this paragraph. Sections 319.8–2 and 319.8–3 shall not be applicable to such importations. In addition, such importations need not comply with the requirements of § 319.8–4 relating to notice of arrival inasmuch as there is available to the inspector the essential information normally supplied by the importer at the time of importation. Sections 319.8–5 through 319.8–27 shall not be applicable to importations into Guam. Inspection of such importations may be made under the general authority of § 330.105(a) of this chapter. If an importation is found infected, infested, or contaminated with any plant pest and is not subject to disposal under this part, disposition may be made in accordance with § 330.106 of this chapter.


Regulations; General

§ 319.8-1 Definitions.

For the purposes of the regulations in this subpart, the following words shall be construed, respectively, to mean:


Administrator. The Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture, or any employee of the United States Department of Agriculture delegated to act in his or her stead.


Approved. Approved by the Administrator.


Approved areas of Mexico. Any areas of Mexico, other than Northwest Mexico and the west coast of Mexico, which are designated by the Administrator as areas in which cotton and cotton products are produced and handled under conditions comparable to those under which like cotton and cotton products are produced and handled in the generally infested pink bollworm regulated area in the United States.


Approved fumigation facilities. Approved vacuum fumigation plant at a port where an inspector is available to supervise the fumigation.


Approved mill or plant. A mill or plant operating under a signed agreement with the Plant Protection and Quarantine Programs required for approval of a mill or plant as specified in § 319.8–8(a)(2).


Authorized. Authorized by the Administrator.


Compressed. Compressed or pressed and baled or packaged to a density greater than approximately 20 pounds and less than approximately 28 pounds per cubic foot.


Compressed to high density. Compressed or pressed and baled or packaged to a density of approximately 28 or more pounds per cubic foot.


Contamination (contaminate). Containing or bearing whole cottonseed or seed cotton or other material which may carry the pink bollworm, the golden nematode of potatoes, the flag smut disease, or other injurious plant diseases or insect pests. (The verb contaminate shall be construed accordingly.)


Cotton. Parts and products of plants of the genus Gossypium, including seed cotton; cottonseed; cotton lint, linters and other forms of cotton fiber, not including yarn, thread and cloth; cottonseed hulls, cake, meal, and other cottonseed products, except oil; waste; and all other unmanufactured parts of cotton plants.


Cottonseed. Cottonseed from which the lint has been removed and that is intended for processing or consumption.


Covers. Second-hand burlap and other fabrics, shredded or otherwise, including any whole bag, any bag that has been slit open, and any part of a bag, which have been used, or are of the kinds ordinarily used, for containing cotton, grains (including grain products), field seeds, agricultural roots, rhizomes, tubers, or other underground crops. Burlap and other fabrics, when new or unused are excluded from this definition.


Gin trash. All of the material produced during the cleaning and ginning of seed cotton, bollies or snapped cotton except the lint, cottonseed, and gin waste.


Inspector. A properly identified employee of the U.S. Department of Agriculture or other person authorized to enforce the provisions of the Plant Protection Act.


Lint. All forms of raw ginned cotton, either baled or unbaled, except linters and waste.


Linters. All forms of cotton fiber separated from cottonseed after the lint has been removed, excluding so-called hull fiber.


North, northern. When used to designate ports of arrival, these terms mean the port of Norfolk, VA, and all Atlantic Coast ports north thereof, ports along the Canadian border, and Pacific Coast ports in the States of Washington and Oregon. When used in a geographic sense to designate areas or locations, these terms mean any State in which cotton is not grown commercially. However, when cotton is grown commercially in certain portions of a State, as is the case in Illinois, Kansas, and Missouri, these terms include those portions of such State as may be determined by the Administrator as remote from the main area of cotton production.


Northwest Mexico. All of the State of Baja California, Mexico, and that part of the State of Sonora, Mexico, lying between San Luis Mesa and the Colorado River.


Permit. A form of authorization to allow the importation of cotton or covers in accordance with the regulations in this subpart and in §§ 319.7 through 319.7–5.


Person. Any individual, firm, corporation, company, society, or association, or any organized group of any of the foregoing.


Pink bollworm regulated area; generally infested pink bollworm regulated area. The pink bollworm regulated area consists of those States or parts thereof designated as regulated area in Administrative Instructions issued under § 301.52–2 of this chapter. The generally infested pink bollworm regulated area is that part of the regulated area designated as generally infested in the said Administrative Instructions.


Plant Protection and Quarantine Programs. The Plant Protection and Quarantine Programs, Animal and Plant Health Inspection Service, of the United States Department of Agriculture.


Root crop. The underground crop portions of any plants.


Samples. Samples of lint, linters, waste, cottonseed cake, and cottonseed meal, of the amount and character usually required for trade purposes.


Seed cotton. Cotton as it comes from the field.


Treatment. Procedures administratively approved by the Administrator for destroying infestations or infections of insect pests or plant diseases, such as fumigation, application of chemicals or dry or moist heat, or processing, utilization, or storage.


Uncompressed. Baled or packaged to a density not exceeding approximately 20 pounds per cubic foot.


United States. Any of the States, the District of Columbia, Guam, Puerto Rico, or the Virgin Islands of the United States.


Utilization. Processing or manufacture, in lieu of fumigation at time of entry, at a mill or plant authorized by APHIS through a compliance agreement for foreign cotton processing or manufacturing.


Waste. All forms of cotton waste derived from the manufacture of cotton lint, in any form or under any trade designation, including gin waste and thread waste; and waste products derived from the milling of cottonseed. Gin trash is not within the definition of waste.


West Coast of Mexico. The State of Sinaloa, the State of Sonora (except that part of the Imperial Valley lying between San Luis Mesa and the Colorado River), and the Southern Territory of Baja California, in Mexico.


[24 FR 10788, Dec. 29, 1959, as amended at 27 FR 5389, June 7, 1962; 36 FR 24917, Dec. 24, 1971; 37 FR 10554, May 25, 1972; 66 FR 21055, Apr. 27, 2001; 78 FR 25569, May 2, 2013; 79 FR 19870, Apr. 10, 2014; 83 FR 11855, Mar. 19, 2018]


Conditions of Importation and Entry of Cotton and Covers

§ 319.8-2 Permit procedure.

(a) Except as otherwise provided for in §§ 319.8–10 and 319.8–18, permits shall be obtained for importations into the United States of all cotton and covers. Permits will be issued only for cotton and covers authorized entry under §§ 319.8–6 through 319.8–20. Persons desiring to import cotton or covers under §§ 319.8–6 through 319.8–20 shall, in advance of departure of such material from a foreign port, submit to the Plant Protection and Quarantine Programs an application for a permit in accordance with §§ 319.7 through 319.7–5 . Applications to import cottonseed shall state the approximate quantity and the proposed United States port of entry. Applications to import lint, linters, or waste shall state whether such materials are compressed.


(b) Applications to import lint, linters, or waste at a port
1
other than one in the North, in California, or on the Mexican Border shall also specify whether the commodity is compressed to high density.




1 Including ports in Guam, Hawaii, Puerto Rico, and the Virgin Islands of the United States.


(c) Upon receipt of an application to import lint, linters, waste, or covers, without treatment, for utilization under agreement as defined in § 319.8–8(a)(2), an investigation will be made by an inspector to determine that the receiving mill or plant is satisfactorily located geographically, is equipped with all necessary safeguards, and is apparently in a position to fulfill all precautionary conditions to which it may agree. Upon determination by the inspector that these qualifications are fulfilled, the owner or operator of the mill or plant may sign an agreement specifying that the required precautionary conditions will be maintained. Such signed agreement will be a necessary requisite to the release at the port of entry of any imported lint, linters, waste, or covers for forwarding to and utilization at such mill or plant in lieu of vacuum fumigation or other treatment otherwise required by this subpart. Permits for the importation of such materials will be issued in accordance with paragraph (a) of this section.


(d) Permits for importation of any cotton or covers are conditioned upon compliance with all of the conditions specified in the permit and any applicable regulations or administrative instructions of this part.


(e) Pending development of adequate treating facilities in Guam, any cotton or covers that are subject to treatment as a condition of entry therein must first be entered and treated in accordance with the requirements of this subpart at a U.S. port of arrival where such treating facilities are available.


(Approved by the Office of Management and Budget under control number 0579–0049)

[24 FR 10788, Dec. 29, 1959, as amended at 48 FR 57466, Dec. 30, 1983; 78 FR 25570, May 2, 2013; 79 FR 19811, Apr. 10, 2014]


§ 319.8-3 Refusal and cancellation of permits.

(a) Permits for entry from the West Coast of Mexico, as authorized in § 319.8–12 of lint, linters, waste, cottonseed, and cottonseed hulls may be refused and existing permits cancelled by the Administrator if he or she has determined that the pink bollworm is present in the West Coast of Mexico or in Northwest Mexico, or that other conditions exist therein that would increase the hazard of pest introduction into the United States.


(b) Permits for entry from Northwest Mexico as authorized in § 319.8–13 of lint, linters, waste, cottonseed, cottonseed hulls, and covers that have been used for cotton, may be refused and existing permits cancelled by the Administrator if he or she has determined that the pink bollworm is present in Northwest Mexico or in the West Coast of Mexico, or that other conditions exist therein that would increase the hazard of pest introduction into the United States.


[27 FR 5389, June 7, 1962, as amended at 36 FR 24917, Dec. 24, 1971; 70 FR 33324, June 7, 2005; 78 FR 25570, May 2, 2013]


§ 319.8-4 Notice of arrival.

Immediately upon arrival at a port of entry of any shipment of cotton or covers, the importer shall submit to an inspector or, in the case of Guam, through the Customs officer of the Government of Guam, notice of such arrival using a form provided for that purpose (Form PPQ–368). Forms will be submitted using a U.S. Government electronic information exchange system or other authorized method.


(Approved by the Office of Management and Budget under control number 0579–0049)

[81 FR 40150, June 21, 2016]


§ 319.8-5 Marking of containers.

Every bale or other container of cotton lint, linters, waste, or covers imported or offered for entry shall be plainly marked or tagged with a bale number or other mark to distinguish it from other bales or containers of similar material. Bales of lint, linters, and waste from approved areas of Mexico, the West Coast of Mexico, or Northwest Mexico shall be tagged or otherwise marked to show the gin or mill of origin unless they are immediately exported.


(Approved by the Office of Management and Budget under control number 0579–0049)

[27 FR 5389, June 7, 1962, as amended at 48 FR 57466, Dec. 30, 1983]


§ 319.8-6 Cottonseed cake and cottonseed meal.

Entry of cottonseed cake and cottonseed meal will be authorized through any port at which the services of an inspector are available, subject to examination by an inspector for freedom from contamination. If found to be free of contamination, importations of such cottonseed cake and cottonseed meal will be released from further plant quarantine entry restrictions. If found to be contaminated such importations will be refused entry or subjected as a condition of entry to such safeguards as the inspector may prescribe, according to a method selected by the inspector from administratively authorized procedures known to be effective under the conditions under which the safeguards are applied.


[24 FR 10788, Dec. 29, 1959, as amended at 70 FR 33324, June 7, 2005]


§ 319.8-7 Processed lint, linters, and waste.

Entry of lint, linters, and waste will be authorized without treatment but upon compliance with other applicable requirements of this subpart when the inspector can determine that such lint, linters, and waste have been so processed by bleaching, dyeing, or other means, as to have removed all cottonseed or to have destroyed all insect life.


§ 319.8-8 Lint, linters, and waste.

(a) Compressed to high density. (1)(i) Entry of lint, linters, and waste, compressed to high density, will be authorized subject to vacuum fumigation by approved methods at any port where approved fumigation facilities are available.


(ii) Importations of such lint, linters, and waste, arriving at a northern port where there are no approved fumigation facilities may be entered for transportation in bond to another northern port where such facilities are available, for the required vacuum fumigation.


(iii) Such lint, linters, and waste compressed to high density arriving at a port in the State of California where there are no approved fumigation facilities may be entered for immediate transportation in bond via an all-water route if available, otherwise by overland transportation in van-type trucks or box cars after approved surface treatment, or under such other conditions as may be deemed necessary and are prescribed by the inspector to (a) any port where approved fumigation facilities are available, there to receive the required vacuum fumigation before release, or (b) to an approved mill or plant for utilization.


(2) Entry of lint, linters, and waste compressed to high density, will be authorized without vacuum fumigation at any northern port, subject to movement to an approved mill or plant, the owner or operator of which has executed an agreement with the Plant Protection and Quarantine Programs to the effect that, in consideration of the waiving, of vacuum fumigation as a condition of entry and the substitution of approved utilization therefor:


(i) The lint, linters, and waste so entered will be processed or manufactured at the mill or plant and until so used will be retained thereat, unless written authority is granted by the Plant Protection and Quarantine Programs to move the material to another mill or plant;


(ii) Sanitary measures satisfactory to the Plant Protection and Quarantine Programs will be taken with respect to the collection and disposal of any waste, residues, and covers, including the collection and disposal of refuse from railroad cars, trucks, or other carriers used in transporting the material to the mill or plant;


(iii) Inspectors of the Plant Protection and Quarantine Programs will have access to the mill or plant at any reasonable time to observe the methods of handling the material, the disposal of refuse, residues, waste, and covers, and otherwise to check compliance with the terms of the agreement;


(iv) Such reports of the receipt and utilization of the material, and disposal of waste therefrom as may be required by the inspector will be submitted to him promptly;


(v) Such other requirements as may be necessary in the opinion of the Administrator to assure retention of the material, including all wastes and residues, at the mill or plant and its processing, utilization or disposal in a manner that will eliminate all pest risk, will be complied with.


(3) Failure to comply with any of the conditions of an agreement specified in paragraph (a)(2) of this section may be cause for immediate cancellation of the agreement by the inspector and refusal to release, without vacuum fumigation, lint, linters, and waste for transportation to the mill or plant.


(4) Agreements specified in paragraph (a)(2) of this section may be executed only with owners or operators of mills or plants located in States in which cotton is not grown commercially and at locations in such other States as may be administratively designated by the Administrator after due consideration of possible pest risk involved and the proximity of growing cotton.


(b) Uncompressed or compressed. (1)(i) Entry of uncompressed or compressed lint, linters, and waste will be authorized, subject to vacuum fumigation by approved methods, through any northern port, through any port in the State of California, and through any port on the Mexican Border, where approved fumigation facilities are available.


(ii) Importations of such lint, linters, and waste arriving at a northern port where there are no approved fumigation facilities may be entered for immediate transportation in bond to another northern port where such facilities are available, for the required vacuum fumigation.


(iii) Compressed lint, linters, and waste arriving at a port in the State of California where there are no approved fumigation facilities may be entered for immediate transportation in bond by an all-water route if available, otherwise by overland transportation in van-type trucks or box cars after approved surface treatment, or under such other conditions as may be deemed necessary and are prescribed by the inspector, to any port in California or any northern port where approved fumigation facilities are available, there to receive the required vacuum fumigation before release, or to any northern port for movement to an approved mill or plant for utilization.


(iv) Uncompressed lint, linters, and waste arriving at a port in the State of California where there are no approved fumigation facilities may be entered for immediate transportation in bond by an all-water route to any port in California or any northern port where approved fumigation facilities are available, there to receive the required vacuum fumigation before release, or to a northern port for movement to an approved mill or plant for utilization.


(2) Entry without vacuum fumigation will be authorized for compressed lint, linters, and waste, and for uncompressed waste derived from cotton milled in countries that do not produce cotton,
2
arriving at a northern port, subject to movement to an approved mill or plant.




2 For the purposes of this subpart the following countries are considered to be those in which cotton is not produced: Austria, Belgium, Canada, Denmark, Republic of Ireland (Eire), Finland, France, Germany (both East and West), Great Britain and Northern Ireland (United Kingdom), Iceland, Liechtenstein, Luxembourg, Netherlands, Norway, Portugal, Sweden, and Switzerland.


[24 FR 10788, Dec. 29, 1959, as amended at 27 FR 5389, June 7, 1962; 36 FR 24917, Dec. 24, 1971; 78 FR 25570, May 2, 2013; 79 FR 19810, Apr. 10, 2014]


§ 319.8-9 Hull fiber and gin trash.

(a) Entry of hull fiber will be authorized under the same conditions as are applicable to waste under this subpart.


(b) Gin trash may be imported only under the provisions of § 319.8–20.


[24 FR 10788, Dec. 29, 1959, as amended at 27 FR 5390, June 7, 1962]


§ 319.8-10 Covers.

(a) Entry of covers (including bags, slit bags, and parts of bags) which have been used as containers for cotton grown or processed in countries other than the United States may be authorized either (1) through a Mexican border port named in the permit for vacuum fumigation by an approved method in that part of the United States within the generally infested pink bollworm regulated area; or (2) through a northern port or a port in the State of California subject to vacuum fumigation by an approved method or without vacuum fumigation when the covers are to be moved to an approved mill or plant for utilization. When such covers are forwarded from a northern port to a mill or plant in California for utilization, or from a California port to another California or northern port for vacuum fumigation thereat or for movement to a mill or plant for utilization such movement shall be made by an all-water route unless the bales are compressed to a density of 20 pounds or more per cubic foot in which case the bales may be moved overland in van-type trucks or box cars if all-water transportation is not available. Such overland movement may be made only after approved surface treatment or under such other conditions as may be deemed necessary and are prescribed by the inspector. When such covers arrive at a port other than a northern, California, or Mexican border port they will be required to be transported therefrom immediately in bond by an all-water route to a northern or California port where approved vacuum fumigation facilities are available for vacuum fumigation thereat by an approved method or for forwarding therefrom to an approved mill or plant for utilization.


(b) American cotton bagging, commonly known as coarse gunny, which has been used to cover only cotton grown or processed in the United States, may be authorized entry at any port under permit and upon compliance with §§ 319.8–4 and 319.8–5, without fumigation or other treatment. Marking patches of the finer burlaps or other fabrics when attached to bales of such bagging may be disregarded if, in the judgment of the inspector, they do not present a risk of carrying live pink bollworms, golden nematode cysts or flag smut spores.


(c) Bags, slit bags, parts of bags, and other covers which have been used as containers for root crops or are of a kind ordinarily used as containers for root crops may be authorized entry subject to immediate treatment in such manner and according to such method as the inspector may select from administratively authorized procedures known to be effective under the conditions under which the treatment is applied, and subject to any additional safeguard measures that may be prescribed by the inspector pursuant to § 319.8–24, or that he may prescribe in regard to the manner of discharge from the carrier and conveyance to the place of treatment: Provided, That such covers may be authorized entry from Canada without treatment as prescribed in this paragraph unless the covers are found to be contaminated.


(d) Bags, slit bags, parts of bags, and other covers that have been used as containers for wheat or wheat products that have not been so processed as to have destroyed all flag smut disease spores, or that have been used as containers for field seeds separated from wheat during the process of screening, and which arrive from a country named in § 319.59–2(a)(2) of this part, if intended for reuse in this country as grain containers may be authorized entry, subject to immediate treatment at the port of arrival. If such covers are not intended to be reused in this country as grain containers their entry may be authorized subject to movement for utilization to an approved mill or plant the owner or operator of which has executed an appropriate agreement with the Plant Protection and Quarantine Programs similar to that described in § 319.8–8(a)(2). Covers coming within this paragraph only, may be entered without permit other than the authorization provided in this paragraph and without other restriction under this subpart upon presentation to an inspector of satisfactory evidence that they have been used only for grains exported from the United States and are being returned empty without use abroad and that while abroad they have been handled in a manner to prevent their contamination.


(e) When upon arrival at a port of entry any shipment of bags, slit bags, parts of bags, or other covers, is found to include one or more bales containing material the importation of which is regulated by paragraph (a), (c), or (d) of this section, the entire shipment, or any portion thereof, may be required by the inspector to be treated as specified in the applicable paragraph.


(f) If upon their arrival at a port of entry covers are classified by the inspector as coming within more than one paragraph of this section, they will be authorized entry only upon compliance with such requirements of the applicable paragraphs as the inspector may deem necessary to prevent the introduction of plant diseases and insect pests.


(g) Notwithstanding the provisions of any other paragraph of this section the entry from any country of bags, slit bags, parts of bags, and other covers will be authorized without treatment but upon compliance with other applicable sections of this subpart if the inspector finds that they have obviously not been used in a manner that would contaminate them or when in the inspector’s opinion there is otherwise no plant pest risk associated with their entry.


[24 FR 10788, Dec. 29, 1959, as amended at 27 FR 5390, June 7, 1962; 36 FR 24917, Dec. 24, 1971; 63 FR 31101, June 8, 1998]


Special Conditions for the Entry of Cotton and Covers From Mexico


Source:Sections 319.8–11 through 319.8–14 appear at 27 FR 5309, June 7, 1962, unless otherwise noted.

§ 319.8-11 From approved areas of Mexico.

(a) Entry of lint, linters, and waste (including gin and oil mill wastes) which were derived from cotton grown in, and which were produced and handled only in approved areas of Mexico
3
may be authorized through Mexican Border ports in Texas named in the permits




3 See § 319.8–1(p) for definition of “Approved areas of Mexico.” These are within that part of Mexico not included in the “West Coast of Mexico” (§ 319.8–1(q)) or “Northwest Mexico” (§ 319.8–1(r)).


(1) For movement into the generally infested pink bollworm regulated area such products becoming subject immediately upon release by the inspector to the requirements, in § 301.52 of this chapter, applicable to like products originating in the pink bollworm regulated area, or


(2) For movement to an approved mill or plant for utilization, or


(3) For movement to New Orleans for immediate vacuum fumigation.


(b) Entry of cottonseed or cottonseed hulls in bulk, or in covers that are new or which have not been used previously to contain cotton or unmanufactured cotton products, may be authorized through Mexican Border ports in Texas named in the permits, for movement into the generally infested pink bollworm regulated area when certified by an inspector as having been produced in an approved area and handled subsequently in a manner satisfactory to the inspector. Upon arrival in the generally infested pink bollworm regulated area such cottonseed or cottonseed hulls will be released from further plant quarantine entry requirements and shall become subject immediately to the requirements in § 301.52 of this chapter.


[27 FR 5309, June 7, 1962, as amended at 63 FR 31101, June 8, 1998; 78 FR 25570, May 2, 2013; 79 FR 19810, Apr. 10, 2014]


§ 319.8-12 From the West Coast of Mexico.

Contingent upon continued freedom of the West Coast of Mexico and of Northwest Mexico from infestations of the pink bollworm, entry of the following products may be authorized under permit subject to inspection to determine freedom from hazardous plant pest conditions:


(a) Compressed lint and linters.


(b) Uncompressed lint and linters for movement into the generally infested pink bollworm regulated area, movement thereafter to be in accordance with § 301.52 of this chapter.


(c) Compressed or uncompressed cotton waste for movement under bond to Fabens, Texas, for vacuum fumigation after which it will be released from further plant quarantine entry requirements.


(d) Cottonseed when certified by an inspector as having been treated, stored, and transported in a manner satisfactory to the Administrator.


(e) Untreated, non-certified cottonseed contained in new bags for movement by special manifest to any destination in the generally infested pink bollworm regulated area, movement thereafter to be in accordance with § 301.52 of this chapter.


(f) Cottonseed hulls when certified by an inspector as having been treated, stored, and transported in a manner satisfactory to the Administrator.


(g) Any cotton products for movement through Mexican border ports in Texas directly into the generally infested pink bollworm regulated area, movement thereafter to be in accordance with § 301.52 of this chapter.


[27 FR 5309, June 7, 1962, as amended at 36 FR 24917, Dec. 24, 1971; 78 FR 25570, May 2, 2013]


§ 319.8-13 From Northwest Mexico.

Contingent upon continued freedom of Northwest Mexico and of the West Coast of Mexico from infestations of the pink bollworm and other plant pest conditions that would increase risk of pest introduction into the United States with importations authorized under this section, entry of the following products may be authorized under permit subject to inspection upon arrival to determine freedom from hazardous plant pest conditions:


(a) Lint, linters, and waste.


(b) Cottonseed.


(c) Cottonseed hulls.


(d) Covers that have been used for cotton only.


§ 319.8-14 Mexican cotton and covers not otherwise enterable.

Mexican cotton and covers not enterable under § 319.8–11, § 319.8–12, or § 319.8–13 may be entered in accordance with §§ 319.8–6 through 319.8–10 and §§ 319.8–16 through 319.8–20 insofar as said sections are applicable.


Miscellaneous Provisions

§ 319.8-16 Importation into United States of cotton and covers exported therefrom.

(a) Cotton and covers grown, produced, or handled in the United States and exported therefrom, and in the original bales or other containers in which such material was exported therefrom, may be imported into the United States at any port under permit, without vacuum fumigation or other treatment or restriction as to utilization, upon compliance with §§ 319.8–2, 319.8–4, and § 319.8–5, and upon the submission of evidence satisfactory to the inspector that such material was grown, produced, or handled in the United States and does not constitute a risk of introducing the pink bollworm into the United States.


(b) Cotton and covers of foreign origin imported into the United States in accordance with this subpart and exported therefrom, when in the original bales or other original containers, may be reimported into the United States under the conditions specified in paragraph (a) of this section.


§ 319.8-17 Importation for exportation, and importation for transportation and exportation; storage.

(a) Importation of cotton and covers for exportation, or for transportation and exportation, in accordance with this subpart shall also be subject to §§ 352.1 through 352.8 of this chapter, as amended.


(b) Importation at northern ports of unfumigated lint, linters, waste, cottonseed cake, cottonseed meal and covers used only for cotton, for exportation or for transportation and exportation through another northern port, may be authorized by the inspector under permit if, in his judgment, such procedures can be authorized without risk of introducing the pink bollworm.


(c) Entry under permit of lint, linters, or waste compressed to high density will be authorized for purposes of storage in the north pending exportation, fumigation, or utilization in an approved mill or plant provided the owner or operator of such proposed storage place has executed an agreement with the Plant Protection and Quarantine Programs similar to those required for mills or plants to utilize lint, linters, and waste as specified in § 319.8–8(a)(2), and provided further that


(1) Inspectors are available to supervise the storage,


(2) The bales of material to be stored are free from surface contamination,


(3) The material is kept segregated from other cotton and covers in a manner satisfactory to the inspector, and


(4) The waste is collected and disposed of in a manner satisfactory to the inspector.


(d) Except as provided in § 319.8–23(a)(4), compressed lint, linters, and waste, uncompressed waste derived from cotton milled in a non-cotton-producing country,
4
and covers, arriving at a port in the north for entry for exportation, vacuum fumigation, or utilization in accordance with the requirements in this subpart, may be allowed movement in Customs custody for storage at a point in the north pending such exportation, or movement to an approved mill or plant for vacuum fumigation or utilization, when there are inspectors available to supervise such storage, if the bales are free of surface contamination, if they are kept segregated from other cotton and covers in a manner satisfactory to the inspector, and if waste is collected and disposed of in a manner satisfactory to the inspector. Such lint, linters, waste, and covers shall remain under Customs custody until released by the inspector.




4 For the purposes of this subpart the following countries are considered as non-cotton-producing countries: Austria, Belgium, Canada, Denmark, Eire, Finland, France, Germany, Great Britain (United Kingdom), Iceland, Liechtenstein, Luxembourg, Netherlands, Norway, Portugal, Sweden and Switzerland.


(e) Importation of lint, linters, and waste from Mexico for transportation and exportation will be authorized under permit if such material is compressed before, or immediately upon entering into the United States, or is compressed while en route to the port of export at a compress specifically authorized in the permit. The ports of export which may be named in the permit shall be limited to those that have been administratively approved for such exportation. Storage of such compressed cotton may be authorized, in approved bonded warehouses in Texas.


(f) Entry of uncompressed lint, linters, and waste from Mexico may be authorized at ports named in the permit for exportation at ports within the generally infested pink bollworm regulated area or for transportation and exportation via rail to Canada under such conditions and over such routes as may be specified in the permit.


[24 FR 10788, Dec. 29, 1959, as amended at 27 FR 5390, June 7, 1962; 36 FR 24917, Dec. 24, 1971; 63 FR 31101, June 8, 1998; 78 FR 25570, May 2, 2013; 79 FR 19810, Apr. 10, 2014]


§ 319.8-18 Samples.

(a) Samples of lint, linters, waste, cottonseed cake, and cottonseed meal may be entered without further permit other than the authorization contained in this section, but subject to inspection and such treatment as the inspector may deem necessary. Samples which represent either such products of United States origin or such products imported into the United States in accordance with the requirements of this subpart, and which were exported from the United States, may be entered into the United States without inspection when the inspector is satisfied as to the identity of the samples.


(b) Samples of cottonseed or seed cotton may be entered subject to the conditions and requirements provided in §§ 319.8–2, 319.8–4, and 319.8–19.


(c) Bales or other containers of cotton shall not be broken or opened for sampling and samples shall not be drawn until the inspector has so authorized and has prescribed the conditions and safeguards under which such samples shall be obtained.


§§ 319.8-19–319.8-20 [Reserved]

§ 319.8-21 Release of cotton and covers after 18 months’ storage.

Cotton and covers, the entry of which has been authorized subject to vacuum fumigation or other treatment because of the pink bollworm only, and which have not received such treatment but have been stored for a period of 18 months or more will be released from further plant quarantine entry restrictions.


§ 319.8-22 Ports of entry or export.

When ports of entry or export are not specifically designated in this subpart but are left to the judgment of the inspector, the inspector shall designate only such ports as have been administratively approved for such entry or export.


§ 319.8-23 Treatment.

(a)(1) Vacuum fumigation as required in this subpart must be conducted in accordance with part 305 of this chapter.


(2) After cotton and covers have been vacuum fumigated they shall be so marked under the supervision of an inspector. Such material may thereafter be distributed, forwarded, or shipped without further plant quarantine entry restriction.


(3) Cotton and covers held by an importer for vacuum fumigation must be stored under conditions satisfactory to the inspector.


(4) Prompt vacuum fumigation of cotton and covers (other than high density cotton free of surface contamination) will be required at non-northern ports. Similar prompt vacuum fumigation will be required at Norfolk, Virginia, during the period June 15 to October 15 of each year, except for covers which have been used to contain only lint, linters, or waste, and the bales of which are compressed to a density of 28 or more pounds per cubic foot and are free of surface contamination.


(b) An inspector may authorize the substitution of processing, utilization, or other form of treatment for vacuum fumigation when in his opinion such other treatment, selected by him from administratively authorized procedures, will be effective in eliminating infestation of the pink bollworm.


[24 FR 10788, Dec. 29, 1959, as amended at 75 FR 4251, Jan. 26, 2010]


§ 319.8-24 Collection and disposal of waste.

(a) Importers shall handle imported, unfumigated cotton and covers in a manner to avoid waste. If waste does occur, the importer or his or her agent shall collect and dispose of such waste in a manner satisfactory to the inspector.


(b) If, in the judgment of an inspector, it is necessary as a safeguard against risk of pest dispersal to clean railway cars, lighters, trucks, and other vehicles and vessels used for transporting such cotton or covers, or to clean piers, warehouses, fumigation plants, mills, or other premises used in connection with importation of such cotton or covers, the importer or his or her agent shall perform such cleaning, in a manner satisfactory to the inspector.


(c) All costs incident to such collection, disposal, and cleaning other than the services of the inspector during his or her regular tour of duty and at the usual place of duty, shall be borne by the importer or his or her agent.


[24 FR 10788, Dec. 29, 1959, as amended at 70 FR 33324, June 7, 2005]


§ 319.8-25 Costs and charges.

The services of the inspector during regularly assigned hours of duty and at the usual places of duty shall be furnished without cost to the importer. The Plant Protection and Quarantine Programs will not assume responsibility for any costs or charges, other than those indicated in this section, in connection with the entry, inspection, treatment, conditioning, storage, forwarding, or any other operation of any character incidental to the physical entry of an importation of a restricted material.


§ 319.8-26 Material refused entry.

Any material refused entry for noncompliance with the requirements of this subpart shall be promptly removed from the United States or abandoned by the importer for destruction, and pending such action shall be subject to the immediate application of such safeguards against escape of plant pests as the inspector may prescribe. If such material is not promptly safeguarded by the importer, removed from the United States, or abandoned for destruction to the satisfaction of the inspector it may be seized, destroyed, or otherwise disposed of in accordance with sections 414 and 421 of the Plant Protection Act (7 U.S.C. 7714 and 7731). Neither the Department of Agriculture nor the inspector will be responsible for any costs accruing for demurrage, shipping charges, cartage, labor, chemicals, or other expenses incidental to the safeguarding or disposal of material refused entry by the inspector, nor will the Department of Agriculture or the inspector assume responsibility for the value of material destroyed.


[24 FR 10788, Dec. 29, 1959, as amended at 66 FR 21055, Apr. 27, 2001]


Subpart F—Sugarcane


Source:Redesignated at 84 FR 2429, Feb. 7, 2019.

§ 319.15 Notice of quarantine.

(a) The importation into the United States of sugarcane and its related products, including cuttings, canes, leaves and bagasse, from all foreign countries and localities is prohibited, except for importations for experimental, therapeutic, or developmental purposes under the conditions specified in a controlled import permit issued in accordance with § 319.6.


(b) The importation of sugarcane plants (including any plant parts) that are for planting or capable of being planted is restricted under Subpart H—Plants for Planting of this part.


(c) As used in this subpart, unless the context otherwise requires, the term “United States” means the States, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands of the United States.


[24 FR 10788, Dec. 29, 1959, as amended at 66 FR 21055, Apr. 27, 2001; 78 FR 25570, May 2, 2013; 83 FR 11855, Mar. 19, 2018; 84 FR 2429, Feb. 7, 2019]


§ 319.15a Administrative instructions and interpretation relating to entry into Guam of bagasse and related sugarcane products.

Bagasse and related sugarcane products have been so processed that, in the judgment of the Department, their importation into Guam will involve no pest risk, and they may be imported into Guam without further permit, other than the authorization contained in this paragraph. Such importations may be made without the submission of a notice of arrival inasmuch as there is available to the inspector the essential information normally supplied by the importer at the time of importation. Inspection of such importations may be made under the general authority of § 330.105(a) of this chapter. If an importation is found infected, infested, or contaminated with any plant pest and is not subject to disposal under this part, disposition may be made in accordance with § 330.106 of this chapter.


Subpart G—Corn Diseases


Source:Redesignated at 84 FR 2429, Feb. 7, 2019.

Quarantine

§ 319.24 Notice of quarantine.

(a) The fact has been determined by the Secretary of Agriculture, and notice is hereby given, that maize or Indian corn (Zea mays L.) and closely related plants are subject to certain injurious diseases, especially Peronospora maydis Raciborski, Sclerospora sacchari Miyake and other downy mildews; also the Physoderma diseases of maize, Physoderma zeae-maydis Shaw, and Physoderma maydis Miyake, new to and not heretofore widely prevalent or distributed within and throughout the United States, and that these diseases occur in southeastern Asia (including India, Siam, Indo-China and China), Malayan Archipelago, Australia, Oceania, Philippine Islands, Formosa, Japan, and adjacent islands.


(b) The importation of corn plants (including any plant parts) that are for planting or capable of being planted is restricted in Subpart H—Plants for Planting of this part.


(c) Except as otherwise provided in this subpart, the importation into the United States of raw or unmanufactured corn seed and all other portions of Indian corn or maize and related plants, including all species of teosinte (Euchlaena), jobs-tears (Coix), Polytoca, Chionachne, and Sclerachne, from southeastern Asia (including India, Indochina, and the People’s Republic of China), Malayan Archipelago, Australia, New Zealand, Oceania, Philippine Islands, Manchuria, Japan, and adjacent islands is prohibited. However, this prohibition does not apply to importations of such items for experimental, therapeutic, or developmental purposes under the conditions specified in a controlled import permit issued in accordance with § 319.6.


(d) As used in this subpart, unless the context otherwise requires, the term “United States” means the States, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands of the United States.


(e) Seed of Indian corn or maize (Zea mays L.) that is free from the cob and from all other parts of corn may be imported into the United States from New Zealand without further restriction.


[24 FR 10788, Dec. 29, 1959, as amended at 58 FR 44745, Aug. 25, 1993; 66 FR 21055, Apr. 27, 2001; 78 FR 25570, May 2, 2013; 83 FR 11855, Mar. 19, 2018; 84 FR 2429, Feb. 7, 2019]


§ 319.24a Administrative instructions relating to entry of corn into Guam.

Corn may be imported into Guam without further permit, other than the authorization contained in this section but subject to compliance with § 319.24–3. Such imports need not comply with the notice of arrival requirements of § 319.24–4 inasmuch as information equivalent to that in a notice of arrival is available to the inspector from another source. Section 319.24–5 shall not be applicable to importations of corn into Guam. Such importations shall be subject to inspection at the port of entry. Corn found upon inspection to contain disease infection will be subject to sterilization in accordance with methods selected by the inspector from administratively authorized procedures known to be effective under the conditions in which applied.


Regulations Governing Entry of Indian Corn or Maize

§ 319.24-1 Application for permits for importation of corn.

Persons contemplating the importation of corn into the United States shall obtain a permit in accordance with §§ 319.7 through 319.7–5.


(Approved by the Office of Management and Budget under control number 0579–0049)

[79 FR 19810, Apr. 10, 2014]


§ 319.24-2 [Reserved]

§ 319.24-3 Marking as condition of entry.

Every bag or other container of corn offered for entry shall be plainly marked with such numbers or marks as will make it easily possible to associate the bags or containers with a particular importation.


(Approved by the Office of Management and Budget under control number 0579–0049)

[24 FR 10788, Dec. 29, 1959, as amended at 48 FR 57466, Dec. 30, 1983]


§ 319.24-4 [Reserved]

§ 319.24-5 Condition of entry.

The corn shall not be removed from the port of entry, nor shall any bag or other container thereof be broken or opened, except for the purpose of sterilization, until a written notice is given to the United States Collector of Customs, or, in the case of Guam, the Customs officer of the Government of Guam, by an inspector of the Plant Protection and Quarantine Programs, that the corn has been properly sterilized and released for entry without further restrictions so far as the jurisdiction of the Department of Agriculture extends thereto. All apparatus and methods for accomplishing such sterilization must be satisfactory to the Plant Protection and Quarantine Programs. Corn will be delivered to the permittee for sterilization, upon the filing with the appropriate customs official of a bond in the amount of $5,000, or in an amount equal to the invoice value of the corn if such value is less than $5,000, with approved sureties, and conditioned upon sterilization of the corn under the supervision and the satisfaction of an inspector of the Plant Protection and Quarantine Programs; and upon the redelivery of the corn to said customs official within 40 days from the arrival of the corn at the port of entry.


Subpart H—Plants for Planting


Source:83 FR 11856, Mar. 19, 2018, unless otherwise noted. Redesignated at 84 FR 2429, Feb. 7, 2019.

§ 319.37-1 Notice of quarantine.

(a) Under section 412(a) of the Plant Protection Act, the Secretary of Agriculture may prohibit or restrict the importation and entry 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 designate the importation of certain taxa of plants for planting as not authorized pending pest risk analysis, as provided in § 319.37–4. The Secretary has determined that it is necessary to restrict the importation into the United States of all other plants for planting and to impose additional restrictions on the importation of specific types of plants for planting, in accordance with this subpart and as described in the Plants for Planting Manual.


(c) The importation of plants that are imported for processing or consumption, as determined by an inspector based on documentation accompanying the articles, is not subject to this subpart but may be subject to restrictions elsewhere in this part.


(d) The importation of taxa of plants for planting that are listed in parts 360 and 361 of this chapter is subject to the restrictions in those parts.


(e) The Plant Protection and Quarantine Programs also enforces regulations promulgated under the Endangered Species Act of 1973 (16 U.S.C. 1531–1544) which contain additional prohibitions and restrictions on importation into the United States of plants for planting subject to this subpart (see 50 CFR parts 17 and 23).


(f) Within the Plants for Planting Manual, one or more common names of plants for planting may be given in parentheses after most scientific names (when common names are known) for the purpose of helping to identify the plants for planting represented by such scientific names; however, unless otherwise specified, a reference to a scientific name includes all plants for planting within the taxon represented by the scientific name regardless of whether the common name or names are as comprehensive in scope as the scientific name. When restrictions apply to the importation of a taxon of plants for planting for which there are taxonomic synonyms, those restrictions apply to the importation of all the synonyms of that taxon as well.


§ 319.37-2 Definitions.

The following definitions apply to this subpart:


Administrator. The Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture, or any other employee of the United States Department of Agriculture authorized to act in his or her stead.


Animal and Plant Health Inspection Service (APHIS). The Animal and Plant Health Inspection Service, United States Department of Agriculture.


Bulb. The portion of a plant commonly known as a bulb, bulbil, bulblet, corm, cormel, rhizome, tuber, or pip, and including fleshy roots or other underground fleshy growths, a unit of which produces an individual plant.


Consignment. A quantity of plants for planting being moved from one country to another and covered, when required, by a single phytosanitary certificate (a consignment may be composed of one or more lots or taxa).


Controlled import permit. A written or electronically transmitted authorization issued by APHIS for the importation into the United States of otherwise prohibited or restricted plant material for experimental, therapeutic, or developmental purposes, under controlled conditions as prescribed by the Administrator in accordance with § 319.6.


Earth. The softer matter composing part of the surface of the globe, in distinction from the firm rock, and including the soil and subsoil, as well as finely divided rock and other soil formation materials down to the rock layer.


From. Plants for planting are considered to be “from” any country or locality in which they are grown. Provided, That plants for planting imported into Canada from another country or locality shall be considered as being solely from Canada if they meet the following conditions:


(1) They are imported into the United States directly from Canada after having been grown for at least 1 year in Canada;


(2) They have never been grown in a country from which their importation would not be authorized pending pest risk analysis under § 319.37–4;


(3) They have never been grown in a country, other than Canada, from which it would be subject to certain restrictions on the importation of specific types of plants for planting under § 319.37–20, which are listed in the Plants for Planting Manual; Provided, that plants for planting that would be subject to postentry quarantine if imported into the United States may be imported from Canada after growth in another country if they were grown in Canada in postentry quarantine under conditions equivalent to those specified in the Plants for Planting Manual; and


(4) They were not imported into Canada in growing media.


Inspector. Any individual authorized by the Administrator or the Commissioner of Customs and Border Protection, Department of Homeland Security, to enforce the regulations in this part.


Lot. A number of units of a single commodity, identifiable by its homogeneity of composition and origin, forming all or part of a consignment.


Mother stock. A group of plants from which plant parts are taken to produce new plants.


National plant protection organization (NPPO). The official service established by a government to discharge the functions specified by the International Plant Protection Convention.


Noxious weed. Any plant or plant product that can directly or indirectly injure or cause damage to crops (including plants for planting or plant products), livestock, poultry, or other interests of agriculture, irrigation, navigation, the natural resources of the United States, the public health, or the environment.


Official control. The active enforcement of mandatory phytosanitary regulations and the application of mandatory phytosanitary procedures with the objective of eradication or containment of quarantine pests.


Person. Any individual, partnership, corporation, association, joint venture, or other legal entity.


Phytosanitary certificate. A document, including electronic versions, that is related to a restricted article and is issued not more than 15 days prior to shipment of the restricted article from the country in which it was grown and that:


(1) Is patterned after the model certificate of the International Plant Protection Convention, a multilateral convention on plant protection under the authority of the Food and Agriculture Organization of the United Nations (FAO);


(2) Is issued by an official of a foreign national plant protection organization in one of the five official languages of the FAO;


(3) Is addressed to the national plant protection organization of the United States (Animal and Plant Health Inspection Service);


(4) Describes the shipment;


(5) Certifies the place of origin for all contents of the shipment;


(6) Certifies that the shipment has been inspected and/or tested according to appropriate official procedures and is considered free from quarantine pests of the United States;


(7) Contains any additional declarations required in the Plants for Planting Manual; and


(8) Certifies that the shipment conforms with the phytosanitary requirements of the United States and is considered eligible for importation pursuant to the laws and regulations of the United States.


Place of production. Any premises or collection of fields operated as a single production or farming unit. This may include production sites that are separately managed for phytosanitary purposes.


Plant. Any plant (including any plant part) for or capable of propagation, including a tree, a tissue culture, a plantlet culture, pollen, a shrub, a vine, a cutting, a graft, a scion, a bud, a bulb, a root, and a seed.


Plant broker. An entity that purchases or takes possession of plants for planting from an approved place of production for the purpose of exporting those plants without further growing beyond maintaining the plants until export.


Plant pest. 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, a nonhuman animal, a parasitic plant, a bacterium, a fungus, a virus or viroid, an infectious agent or other pathogen, or any article similar to or allied with any of these articles.


Plant Protection and Quarantine Programs. The organizational unit within APHIS that is delegated responsibility for enforcing provisions of the Plant Protection Act (7 U.S.C. 7701 et seq.) and related legislation, quarantines, and regulations.


Planting. Any operation for the placing of plants in a growing medium, or by grafting or similar operations, to ensure their subsequent growth, reproduction, or propagation.


Plants for planting. Plants intended to remain planted, to be planted, or replanted.


Plants for Planting Manual. The document that contains restrictions on the importation of specific types of plants for planting, as provided in § 319.37–20, and other information about the importation of plants for planting as provided in this subpart. The Plants for Planting Manual is available on the internet at https://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/plants_for_planting.pdf. or by contacting the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 4700 River Road, Unit 133, Riverdale, MD 20737–1236.


Port of first arrival. The land area (such as a seaport, airport, or land border station) where a person, or a land, water, or air vehicle, first arrives after entering the territory of the United States, and where inspection of plants for planting is carried out by inspectors.


Preclearance. Phytosanitary inspection and/or clearance in the country in which the plants for planting were grown, performed by or under the regular supervision of APHIS.


Production site. A defined portion of a place of production utilized for the production of a commodity that is managed separately for phytosanitary purposes. This may include the entire place of production or portions of it. Examples of portions of places of production are a defined orchard, grove, field, greenhouse, screenhouse, or premises.


Quarantine pest. A plant pest or noxious weed that is of potential economic importance to the United States and not yet present in the United States, or present but not widely distributed and being officially controlled.


Regulated plant. A vascular or nonvascular plant. Vascular plants include gymnosperms, angiosperms, ferns, and fern allies. Gymnosperms include cycads, conifers, and gingko. Angiosperms include any flowering plant. Fern allies include club mosses, horsetails, whisk ferns, spike mosses, and quillworts. Nonvascular plants include mosses, liverworts, hornworts, and green algae.


Secretary. The Secretary of Agriculture, or any other officer or employee of the Department of Agriculture to whom authority to act in his/her stead has been or may hereafter be delegated.


Soil. The loose surface material of the earth in which plants, trees, and shrubs grow, in most cases consisting of disintegrated rock with an admixture of organic material and soluble salts.


Species (spp.). All species, clones, cultivars, strains, varieties, and hybrids of a genus.


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.


State Plant Regulatory Official. The official authorized by the State to sign agreements with Federal agencies involving operations of the State plant protection agency.


Taxon (taxa). Any grouping within botanical nomenclature, such as family, genus, species, or cultivar.


Type of plants for planting. A grouping of plants for planting based on shared characteristics such as biological traits, morphology, botanical nomenclature, or risk factors.


United States. All of the States.


§ 319.37-3 General restrictions on the importation of plants for planting.

(a) The importation of certain taxa of plants for planting is not authorized pending pest risk analysis in accordance with § 319.37–4.


(b) General restrictions that apply to the importation of all plants for planting other than those whose importation is not authorized pending pest risk analysis are found in §§ 319.37–5 through 319.37–11.


(c) In accordance with § 319.37–20, the Administrator may impose restrictions on the importation of specific types of plants for planting. These restrictions are listed in the Plants for Planting Manual. Additional information on restrictions applicable to the importation of specific types of plants for planting can be found in §§ 319.37–20 through 319.37–23.


§ 319.37-4 Taxa of plants for planting whose importation is not authorized pending pest risk analysis.

(a) Determination by the Administrator. The importation of certain taxa of plants for planting poses a risk of introducing quarantine pests into the United States. Therefore, the importation of these taxa is not authorized pending the completion of a pest risk analysis, except as provided in paragraph (f) of this section. These taxa are listed in the Plants for Planting Manual. There are two categories of taxa whose importation is not authorized pending pest risk analysis: Taxa of plants for planting that are quarantine pests, and taxa of plants for planting that are hosts of quarantine pests. For taxa of plants for planting that have been determined to be quarantine pests, the list includes the names of the taxa. For taxa of plants for planting that are hosts of quarantine pests, the list includes the names of the taxa, the foreign places from which the taxa’s importation is not authorized, and the quarantine pests of concern.


(b) Addition of taxa. A taxon of plants for planting may be added to one of the lists of taxa not authorized for importation pending pest risk analysis under this section as follows:


(1) Data sheet. APHIS will publish in the Federal Register a document that announces our determination that a taxon of plants for planting is either a quarantine pest or a host of a quarantine pest. This notice will make available a data sheet that details the scientific evidence APHIS evaluated in making the determination that the taxon is a quarantine pest or a host of a quarantine pest. The data sheet will include references to the scientific evidence that APHIS used in making the determination. In our notice, we will provide for a public comment period of a minimum of 60 days on our additions to the list.


(2) Response to comments. (i) APHIS will issue a notice after the close of the public comment period indicating that the taxon will be added to the list of taxa not authorized for importation pending pest risk analysis if:


(A) No comments were received on the data sheet;


(B) The comments on the data sheet revealed that no changes to the data sheet were necessary; or


(C) Changes to the data sheet were made in response to public comments, but the changes did not affect APHIS’ determination that the taxon poses a risk of introducing a quarantine pest into the United States.


(ii) If comments present information that leads us to determine that the importation of the taxon does not pose a risk of introducing a quarantine pest into the United States, APHIS will not add the taxon to the list of plants for planting whose importation is not authorized pending pest risk analysis. APHIS will issue a notice giving public notice of this determination after the close of the comment period.


(c) Criterion for listing a taxon of plants for planting as a quarantine pest. A taxon will be added to the list of taxa whose importation is not authorized pending pest risk analysis if scientific evidence causes APHIS to determine that the taxon is a quarantine pest.


(d) Criteria for listing a taxon of plants for planting as a host of a quarantine pest. A taxon will be added to the list of taxa whose importation is not authorized pending pest risk analysis if scientific evidence causes APHIS to determine that the taxon is a host of a quarantine pest. The following criteria must be fulfilled in order to make this determination:


(1) The plant pest in question must be determined to be a quarantine pest; and


(2) The taxon of plants for planting must be determined to be a host of that quarantine pest.


(e) Removing a taxon from the list of taxa not authorized pending pest risk analysis. (1) Requests to remove a taxon from the list of taxa whose importation is not authorized pending pest risk analysis (NAPPRA) must be made in accordance with § 319.5. APHIS will conduct a pest risk analysis in response to such a request. The pest risk analysis will examine the risk associated with the importation of that taxon as well as measures available to mitigate that risk. The pest risk analysis may analyze importation of the taxon from a specific area, country, or countries, or from all areas of the world. The conclusions of the pest risk analysis will apply accordingly.


(2) If the pest risk analysis indicates that the taxon is a quarantine pest or a host of a quarantine pest and the Administrator determines that there are no measures available that adequately mitigate the risk of introducing a quarantine pest into the United States through the taxon’s importation, we will continue to list the taxon as not authorized for importation pending pest risk analysis. We will publish a notice making the pest risk analysis available for comment. If comments cause us to change our determination, we will publish another notice in accordance with either paragraph (e)(3) or (4) of this section, as appropriate. If comments do not cause us to change our determination, we will publish a second notice responding to the comments and affirming our determination that the taxon should continue to be listed as NAPPRA.


(3) If the pest risk analysis supports a determination that importation of the taxon be allowed subject to taxon-specific restrictions, APHIS will publish a notice making the pest risk analysis available to the public for comment in accordance with the process in § 319.37–20(c).


(4) If the pest risk analysis supports a determination that importation of the taxon be allowed subject to the general restrictions of this subpart, APHIS will publish a notice announcing our intent to remove the taxon from the list of taxa whose importation is not authorized pending pest risk analysis and making the pest risk analysis supporting the taxon’s removal available for public comment.


(i) APHIS will issue a notice after the close of the public comment period indicating that the importation of the taxon will be subject only to the general restrictions of this subpart if:


(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 that the importation of the taxon does not pose a risk of introducing a quarantine pest into the United States.


(ii) If information presented by commenters indicates that the pest risk analysis needs to be revised, APHIS will issue a notice after the close of the public comment period indicating that the importation of the taxon will continue to be listed as not authorized pending pest risk analysis while the information presented by commenters is analyzed and incorporated into the pest risk analysis. APHIS will subsequently publish a new notice announcing the availability of the revised pest risk analysis.


(5) APHIS may also remove a taxon from the list of taxa whose importation is not authorized pending pest risk analysis when APHIS determines that the evidence used to add the taxon to the list was erroneous (for example, involving a taxonomic misidentification).


(f) Controlled import permits. Any plants for planting whose importation is not authorized pending pest risk analysis in accordance with this section may be imported or offered for entry into the United States if:


(1) Imported for experimental, therapeutic, or developmental purposes under the conditions specified in a controlled import permit issued in accordance with § 319.6;


(2) Imported at the National Plant Germplasm Inspection Station, Building 580, Beltsville Agricultural Research Center East, Beltsville, MD 20705 or through any USDA plant inspection station listed in the Plants for Planting Manual;


(3) Imported pursuant to a controlled import permit issued for such plants for planting and kept on file at the port of entry;


(4) Imported under conditions specified on the controlled import permit and found by the Administrator to be adequate to prevent the introduction into the United States of quarantine pests, i.e., conditions of treatment, processing, growing, shipment, disposal; and


(5) Imported with a controlled import tag or label securely attached to the outside of the container containing the plants for planting or securely attached to the plant itself if not in a container, and with such tag or label bearing a controlled import permit number corresponding to the number of the controlled import permit issued for such plants for planting.


(Approved by the Office of Management and Budget under control number 0579–0380)


§ 319.37-5 Permits.

(a)(1) Plants for planting may be imported or offered for importation into the United States only after issuance of a written permit by the Plant Protection and Quarantine Programs, except as provided in the Plants for Planting Manual. Exceptions from the requirement for a written permit will be added, changed, or removed in accordance with § 319.37–20.


(2) Plants for planting whose importation is subject to postentry quarantine, as listed in the Plants for Planting Manual, must also be imported under an importer postentry quarantine growing agreement in accordance with § 319.37–23(c).


(b) An application for a written permit should be submitted to the Plant Protection and Quarantine Programs (Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Permits, Permit Unit, 4700 River Road, Unit 133, Riverdale, MD 20737–1236) at least 30 days prior to arrival of the plants for planting at the port of entry. Application forms are available without charge from that address or on the internet at http://www.aphis.usda.gov/permits/ppq_epermits.shtml. The completed application shall include the following information:


(1) Name, address, and telephone number of the importer;


(2) The taxon or taxa and the approximate quantity of plants for planting intended to be imported;


(3) Country(ies) or locality(ies) where grown;


(4) Intended United States port of entry;


(5) Means of transportation, e.g., mail, airmail, express, air express, freight, airfreight, or baggage; and


(6) Expected date of arrival.


(c) A permit indicating the applicable conditions for importation under this subpart will be issued by Plant Protection and Quarantine Programs if, after review of the application, the plants for planting are deemed eligible to be imported into the United States under the conditions specified in the permit. However, even if such a permit is issued, the plants for planting may be imported only if all applicable requirements of this subpart are met and only if an inspector at the port of entry determines that no remedial measures pursuant to the Plant Protection Act are necessary with respect to the plants for planting.
1




1 An inspector may hold, seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of plants, plant pests, or other articles in accordance with sections 414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).


(d) Any permit that has been issued may be revoked by an inspector or APHIS in accordance with § 319.7–4.


(e) Any plants for planting not required to be imported with a permit in accordance with paragraph (a) of this section may be imported or offered for importation into the United States only after issuance of an oral authorization for importation issued by an inspector at the port of entry.


(f) An oral authorization for importation of plants for planting shall be issued at a port of entry by an inspector only if all applicable requirements of this subpart are met, such plants for planting are eligible to be imported under an oral authorization, and an inspector at the port of entry determines that no measures pursuant to section 414 of the Plant Protection Act (7 U.S.C. 7714) are necessary with respect to such plants for planting.


(g) Persons wishing to import plants for planting into the United States for experimental, therapeutic, or developmental purposes must apply for a controlled import permit in accordance with §§ 319.6 and 319.37–3.


(Approved by the Office of Management and Budget under control numbers 0579–0190, 0579–0285, and 0579–0319)


§ 319.37-6 Phytosanitary certificates.

(a) Phytosanitary certificates. Any plants for planting offered for importation into the United States must be accompanied by a phytosanitary certificate, except as described in paragraphs (b) and (c) of this section. The phytosanitary certificate must identify the genus of the plants for planting it accompanies. When the importation of individual species or cultivars within a genus is restricted in accordance with § 319.37–20, the phytosanitary certificate must also identify the species or cultivar of the plants for planting it accompanies. Otherwise, identification of the species is strongly preferred, but not required. Intergeneric and interspecific hybrids must be designated by placing the multiplication sign “×” between the names of the parent taxa. If the hybrid is named, the multiplication sign may instead be placed before the name of an intergeneric hybrid or before the epithet in the name of an interspecific hybrid.


(b) Small lots of seed. Lots of seed may be imported without a phytosanitary certificate required by paragraph (a) of this section under the following conditions:


(1) The importation of the seed is authorized by a written permit issued in accordance with § 319.37–5.


(2) The seed is not listed as not authorized pending pest risk analysis, as provided in § 319.37–4; is not of any noxious weed species listed in part 360 of this chapter; is not subject to restrictions on specific types of plants for planting as provided in § 319.37–20; is not restricted under the regulations in parts 330 and 340 of this chapter; and meets the requirements of part 361 of this chapter.


(3) The seed meets the following packaging and shipping requirements:


(i) Each seed packet is clearly labeled with the name of the collector/shipper, the country of origin, and the scientific name at least to the genus, and preferably to the species, level;


(ii) There are a maximum of 50 seeds of 1 taxon (taxonomic category such as genus, species, cultivar, etc.) per packet; or a maximum weight not to exceed 10 grams of seed of 1 taxon per packet;


(iii) There are a maximum of 50 seed packets per shipment;


(iv) The seeds are free from pesticides;


(v) The seeds are securely packaged in packets or envelopes and sealed to prevent spillage;


(vi) The shipment is free from soil, plant material other than seed, other foreign matter or debris, seeds in the fruit or seed pod, and living organisms such as parasitic plants, pathogens, insects, snails, mites; and


(vii) At the time of importation, the shipment is sent to either the Plant Germplasm Quarantine Center in Beltsville, MD, or a USDA plant inspection station.


(c) Importation of other plants for planting without phytosanitary certificates. (1) The Administrator may authorize the importation of types of plants for planting without a phytosanitary certificate if the plants for planting are accompanied by equivalent documentation agreed upon by the Administrator and the NPPO of the exporting country as sufficient to establish the eligibility of the plants for importation into the United States. The documentation must be provided by the NPPO or refer to documentation provided by the NPPO. The documentation must be agreed upon before the plants for planting are exported from the exporting country to the United States.


(2) The Administrator may impose additional restrictions on the importation of plants for planting that are not accompanied by a phytosanitary certificate to ensure that the plants are appropriately identified and free of quarantine pests.


(3) The Plants for Planting Manual lists types of plants for planting that are not required to be accompanied by a phytosanitary certificate; the countries from which their importation without a phytosanitary certificate is authorized; the approved documentation of eligibility for importation; and any additional conditions on their importation.


(4) Types of plants for planting may be added to or removed from the list of plants for planting that are not required to be accompanied by a phytosanitary certificate in accordance with § 319.37–20. The requirements for importing types of plants for planting without a phytosanitary certificate may also be changed by a notice issued in accordance with § 319.37–20. The notice published for comment will describe the documentation agreed upon by the Administrator and the NPPO of the exporting country and any additional restrictions to be imposed on the importation of the type of plants for planting.


(Approved by the Office of Management and Budget under control numbers 0579–0142, 0579–0190, 0579–0285, and 0579–0319)


§ 319.37-7 Marking and identity.

(a) Any consignment of plants for planting for importation, other than by mail at the time of importation, or offer for importation into the United States shall plainly and correctly bear on the outer container (if in a container) or the plants for planting (if not in a container) the following information:


(1) General nature and quantity of the contents;


(2) Country and locality where grown;


(3) Name and address of shipper, owner, or person shipping or forwarding the plants for planting;


(4) Name and address of consignee;


(5) Identifying shipper’s mark and number; and


(6) Number of written permit authorizing the importation, if one was required under § 319.37–5.


(b) Any consignment of plants for planting for importation by mail shall be plainly and correctly addressed and mailed to the Plant Protection and Quarantine Programs at a port of entry listed in the Plants for Planting Manual as approved to receive imported plants for planting, shall be accompanied by a separate sheet of paper within the package plainly and correctly bearing the name, address, and telephone number of the intended recipient, and shall plainly and correctly bear on the outer container the following information:


(1) General nature and quantity of the contents;


(2) Country and locality where grown;


(3) Name and address of shipper, owner, or person shipping or forwarding the plants for planting; and


(4) Number of written permit authorizing the importation, if one was required under § 319.37–5.


(c) Any consignment of plants for planting for importation (by mail or otherwise), at the time of importation or offer for importation into the United States shall be accompanied by an invoice or packing list indicating the contents of the consignment.


(Approved by the Office of Management and Budget under control numbers 0579–0190 and 0579–0319)


§ 319.37-8 Ports of entry: Approved ports, notification of arrival, inspection, and refusal of entry.

(a) Approved ports of entry. Any plants for planting required to be imported under a written permit in accordance with § 319.37–5(a), if not precleared, must be imported or offered for importation only at a USDA plant inspection station, unless the Plants for Planting Manual indicates otherwise. Ports of entry through which plants for planting must pass through before arriving at these USDA plant inspection stations are listed in the Plants for Planting Manual. All other plants for planting may be imported or offered for importation at any Customs designated port of entry indicated in 19 CFR 101.3(b)(1). Exceptions may be listed in § 330.104 of this chapter. Plants for planting that are required to be imported under a written permit that are also precleared in the country of export are not required to enter at an inspection station and may enter through any Customs port of entry. Exceptions may be listed in § 330.104 of this chapter.


(b) Notification upon arrival at the port of entry. Promptly upon arrival of any plants for planting at a port of entry, the importer shall notify the Plant Protection and Quarantine Programs of the arrival by such means as a manifest, Customs entry document, commercial invoice, waybill, a broker’s document, or a notice form provided for that purpose.


(c) Inspection and treatment. Any plants for planting may be sampled and inspected by an inspector at the port of first arrival and/or under preclearance inspection arrangements in the country in which the plants for planting were grown, and must undergo treatment in accordance with part 305 of this chapter if treatment is ordered by the inspector. Any plants for planting found upon inspection to contain or be contaminated with quarantine pests that cannot be eliminated by treatment will be denied entry at the first United States port of arrival and must be destroyed or shipped to a point outside the United States.


(d) Disposition of plants for planting not in compliance with this subpart. The importer of any plants for planting denied entry for noncompliance with this subpart must, at the importer’s expense and within the time specified in an emergency action notification (PPQ Form 523), destroy, ship to a point outside the United States, treat in accordance with part 305 of this chapter, or apply other safeguards to the plants for planting, as prescribed by an inspector, to prevent the introduction into the United States of quarantine pests. In choosing which action to order and in setting the time limit for the action, the inspector shall consider the degree of pest risk presented by the plant pest associated with the plants for planting, whether the plants for planting are a host of the pest, the types of other host materials for the pest in or near the port, the climate and season at the port in relation to the pest’s survival range, and the availability of treatment facilities for the plants for planting.


(e) Removal of plants for planting from port of first arrival. No person shall remove any plants for planting from the port of first arrival unless and until notice is given to the collector of customs by the inspector that the plants for planting has satisfied all requirements under this subpart.


(Approved by the Office of Management and Budget under control numbers 0579–0190, 0579–0310, and 0579–0319)


§ 319.37-9 Treatment of plants for planting; costs and charges for inspection and treatment; treatments applied outside the United States.

(a) The services of a Plant Protection and Quarantine inspector during regularly assigned hours of duty and at the usual places of duty shall be furnished without cost to the importer.
2
No charge will be made to the importer for Government-owned or -controlled special inspection facilities and equipment used in treatment, but the inspector may require the importer to furnish any special labor, chemicals, packing materials, or other supplies required in handling an importation under the regulations in this subpart. The Plant Protection and Quarantine Programs will not be responsible for any costs or charges, other than those indicated in this section.




2 Provisions relating to costs for other services of an inspector are contained in part 354 of this chapter.


(b) Any treatment performed in the United States on plants for planting must be performed at the time of importation into the United States. Treatment shall be performed by an inspector or under an inspector’s supervision at a Government-operated special inspection facility, except that an importer may have such treatment performed at a nongovernmental facility if the treatment is performed at nongovernment expense under the supervision of an inspector and in accordance with part 305 of this chapter and in accordance with any treatment required by an inspector as an emergency measure in order to prevent the dissemination of any quarantine pests. However, treatment may be performed at a nongovernmental facility only in cases of unavailability of government facilities and only if, in the judgment of an inspector, the plants for planting can be transported to such nongovernmental facility without the risk of introduction into the United States of quarantine pests.


(c) Any treatment performed outside the United States must be monitored and certified by an APHIS inspector or an official from the NPPO of the exporting country. If monitored and certified by an official of the NPPO of the exporting country, then a phytosanitary certificate must be issued with the following declaration: “The consignment of (fill in taxon) has been treated in accordance with 7 CFR part 305.” During the entire interval between treatment and export, the consignment must be stored and handled in a manner that prevents any infestation by quarantine pests.


(Approved by the Office of Management and Budget under control number 0579–0190)


§ 319.37-10 Growing media.

(a) Any plants for planting at the time of importation or offer for importation into the United States shall be free of sand, soil, earth, and other growing media, except as provided in paragraph (b), (c), or (d) of this section.


(b)(1) Plants for planting from Canada may be imported in any growing medium, except as restricted in the Plants for Planting Manual. Restrictions on growing media for specific types of plants for planting imported from Canada will be added, changed, or removed in accordance with § 319.37–20.


(2) Plants for planting from an area of Canada regulated by the national plant protection organization of Canada for a soil-borne plant pest may only be imported in an approved growing medium if the phytosanitary certificate accompanying it contains an additional declaration that the plant was grown in a manner to prevent infestation by that soil-borne plant pest.


(c) Certain types of plants for planting growing solely in certain growing media listed in the Plants for Planting Manual may be imported established in such growing media. The Administrator has determined that the importation of the specified types of plants for planting in these growing media does not pose a risk of introducing quarantine pests into the United States. If the Administrator determines that a new growing medium may be added to the list of growing media in which imported plants for planting may be established, or that a growing medium currently listed for such purposes is no longer suitable for establishment of imported plants for planting, APHIS will publish in the Federal Register a notice that announces our proposed determination and requests comment on the change. After the close of the comment period, APHIS will publish another notice informing the public of the Administrator’s decision on the change to the list of growing media in which imported types of plants for planting may be established.


(d) Certain types of plants for planting, as listed in the Plants for Planting Manual, may be imported when they are established in a growing medium approved by the Administrator and they are produced in accordance with additional requirements specified in the Plants for Planting Manual. Changes to the list of plants for planting that may be imported in growing media, and to the requirements for the importation of those types of plants for planting, will be made in accordance with § 319.37–20.


(Approved by the Office of Management and Budget under control numbers 0579–0190, 0579–0439, 0579–0454, 0579–0458, and 0579–0463)

[83 FR 11856, Mar. 19, 2018, as amended at 84 FR 29958, June 25, 2019]


§ 319.37-11 Packing and approved packing material.

(a) Plants for planting for importation into the United States must not be packed in the same container as plants for planting whose importation into the United States is not authorized pending pest risk analysis in accordance with § 319.37–4.


(b) Any plants for planting at the time of importation or offer for importation into the United States shall not be packed in a packing material unless the plants were packed in the packing material immediately prior to shipment; such packing material is free from sand, soil, or earth (except as designated in the Plants for Planting Manual); has not been used previously as packing material or otherwise; and is approved by the Administrator as not posing a risk of introducing quarantine pests. Approved packing materials are listed in the Plants for Planting Manual.


(c) If the Administrator determines that a new packing material may be added to the list of packing materials, or that a packing material currently listed should no longer be approved, APHIS will publish in the Federal Register a notice that announces our proposed determination and requests comment on the change. After the close of the comment period, APHIS will publish another notice informing the public of the Administrator’s decision on the change to the list of approved packing materials.


(Approved by the Office of Management and Budget under control number 0579–0190)


§§ 319.37-12–319.37-19 [Reserved]

§ 319.37-20 Restrictions on the importation of specific types of plants for planting.

(a) Plant type-specific restrictions. In addition to the general restrictions in this subpart, the Administrator may impose additional restrictions on the importation of specific types of plants for planting necessary to effectively mitigate the risk of introducing quarantine pests into the United States through the importation of specific plants for planting. Additional restrictions may be placed on the importation of the entire plant or on certain plant parts. A list of the types of plants for planting whose importation is subject to additional restrictions, and the specific restrictions that apply to the importation of each type of plants for planting, may be found in the Plants for Planting Manual.


(b) Basis for changing restrictions. The Administrator may determine that it is necessary to add, change, or remove restrictions on the importation of a specific type of plants for planting, based on the risk of introducing a quarantine pest through the importation of that type of plants for planting. The Administrator will make this determination based on the findings of a pest risk analysis or on other scientific evidence.


(c) Process for adding, changing, or removing restrictions. Restrictions on the importation of a specific type of plants for planting beyond the general restrictions in §§ 319.37–5 through 319.37–11 will be changed through the following process:


(1) Document describing restrictions. APHIS will publish in the Federal Register a notice that announces our proposed determination that it is necessary to add, change, or remove restrictions on the importation of a specific type of plants for planting. This notice will make available for public comment a document describing the restrictions that the Administrator has determined are necessary and how these restrictions will mitigate the risk of introducing quarantine pests into the United States.


(2) Response to comments. APHIS will issue a second notice after the close of the public comment period on the notice described in paragraph (c)(1) of this section. This notice will inform the public of the specific restrictions, if any, that the Administrator has determined to be necessary in order to mitigate the risk of introducing quarantine pests into the United States through the importation of the type of plants for planting. In response to the public comments submitted, the Administrator may implement the restrictions described in the document made available by the initial notice, amend the restrictions in response to public comment, or determine that changes to the restrictions on the importation of the type of plants for planting are unnecessary.


(d) Previously imposed restrictions on specific types of plants for planting. Types of plants for planting whose importation was subject to specific restrictions by specific regulation as of April 18, 2018, will continue to be subject to those restrictions, except as changed in accordance with the process specified in paragraph (c) of this section. The restrictions are found in the Plants for Planting Manual.


§ 319.37-21 Integrated pest risk management measures.

If a type of plants for planting is a host of a quarantine pest or pests, APHIS may require