[Federal Register Volume 73, Number 28 (Monday, February 11, 2008)]
[Proposed Rules]
[Pages 7679-7686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-2477]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / 
Proposed Rules

[[Page 7679]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2006-0153]
RIN 0579-AC25


South American Cactus Moth; Quarantine and Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the domestic quarantine regulations 
to establish regulations to restrict the interstate movement of South 
American cactus moth host material, including nursery stock and plant 
parts for consumption, from infested areas of the United States. This 
action would help prevent the artificial spread of South American 
cactus moth into noninfested areas of the United States.

DATES: We will consider all comments that we receive on or before April 
11, 2008.

ADDRESSES: You may submit comments by either of the following methods:
    Federal eRulemaking Portal: Go to http://www.regulations.gov/
fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0153 to submit 
or view comments and to view supporting and related materials available 
electronically.
    Postal Mail/Commercial Delivery: Please send two copies of your 
comment to Docket No. APHIS-2006-0153, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2006-0153.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Joel Floyd, Planning and 
Preparedness Team Leader, Emergency and Domestic Programs, PPQ, APHIS, 
4700 River Road Unit 137, Riverdale, MD 20737-1236; (301) 734-4396.

SUPPLEMENTARY INFORMATION:

Background

    The South American cactus moth (Cactoblastis cactorum) is a 
grayish-brown moth with a wingspan of 22 to 35 millimeters 
(approximately 0.86 to 1.4 inches) that is indigenous to Argentina, 
southern Brazil, Paraguay, and Uruguay. It is a serious quarantine pest 
of Opuntia spp., and an occasional pest of Nopalea spp., Cylindropuntia 
spp., and Consolea spp., four closely related genera of the family 
Cactaceae. After an incubation period following mating, the female 
South American cactus moth deposits an egg stick resembling a cactus 
spine on the host plant. The egg stick, which consists of 70 to 90 
eggs, hatches in 25 to 30 days and the larvae bore into the cactus pad 
to feed, eventually hollowing it out and killing the plant. Within a 
short period of time, the South American cactus moth can destroy whole 
stands of cactus.
    In the 1920s, the South American cactus moth was introduced into 
Australia and other areas as a biological control agent of invasive 
prickly pear cactus (Opuntia spp.). Its success led to its introduction 
into the Caribbean and Hawaii in the 1950s. In 1989, it was detected in 
southern Florida, where it was most likely introduced through imported 
infested nursery plants. More recently, South American cactus moth has 
been discovered in other parts of Florida, as well as in Georgia, South 
Carolina, and Alabama, and it continues to spread north and west. It is 
projected that, at the same rate of spread as seen in Florida, without 
any control measures, the moth may reach Texas by 2008 by natural 
spread along the Gulf Coast.
    The Southwestern United States and Mexico are home to 114 native 
species of Opuntia, which are highly valued for their ecological and 
agricultural uses. The rooting characteristics of Opuntia spp. reduce 
wind and rain erosion, encouraging the growth of other plants in 
degraded areas. In addition, many species of birds, mammals, reptiles, 
and insects eat, nest in, or otherwise rely on Opuntia spp. for 
survival. Opuntia spp. are also important sources of food, medicine, 
cosmetics, and dye. In Mexico, Opuntia spp. are an important 
agricultural commodity, and it is estimated that 2 percent of the value 
and production of Mexico's agriculture comes from them. In the 
Southwestern United States, Opuntia spp. are only a minor agricultural 
crop, but are popular plants in the landscaping and ornamental nursery 
industries. Opuntia spp. can also be an important source of emergency 
forage for cattle grazing during drought periods. If the South American 
cactus moth were to spread to these areas, there would be significant 
ecological and economic damage.
    Currently, cactus plants or parts thereof moving from Hawaii, 
Puerto Rico, or the U.S. Virgin Islands into the continental United 
States are prohibited or restricted under 7 CFR part 318 in order to 
prevent the dissemination of South American cactus moth. With limited 
exceptions, all plants, including cacti, imported into the United 
States for propagation from foreign countries are required to be 
accompanied by a phytosanitary certificate and to be inspected at an 
Animal and Plant Health Inspection Service (APHIS), United States 
Department of Agriculture (USDA), plant inspection station in 
accordance with 7 CFR part 319. Any propagative plant material found to 
be infested with the South American cactus moth currently must be 
returned to its place of origin, treated, or destroyed. Since the South 
American cactus moth larvae are internal feeders, they are difficult to 
detect during normal inspection. Therefore, the current regulations 
that require only inspection may not provide an adequate safeguard to 
prevent the introduction and spread of South American cactus moth. 
APHIS is in the process of amending these territorial and foreign 
cactus moth regulations to better

[[Page 7680]]

address the risks associated with the movement of host material from 
areas where South American cactus moth is known to occur.
    In order to provide a barrier to the natural westward spread of 
South American cactus moth, APHIS, in cooperation with the Agricultural 
Research Service, USDA, and funding provided by the Government of 
Mexico, is testing a sterile insect release program along the U.S. Gulf 
Coast. However, without a domestic quarantine program to address the 
artificial spread of the pest by restricting the movement of host 
material from infested States, this barrier alone will not be effective 
in stopping the westward movement of the South American cactus moth. 
Therefore, we are proposing to amend the domestic quarantine notices in 
7 CFR part 301 by adding a new subpart, ``South American Cactus Moth'' 
(Sec. Sec.  301.55 through 301.55-9, referred to below as the 
regulations). The regulations would provide for the designation of 
quarantined areas and would restrict the interstate movement of 
regulated articles from quarantined areas into or through 
nonquarantined areas. These proposed provisions are described in detail 
below.

Restrictions on Interstate Movement of Regulated Articles (Sec.  
301.55)

    Proposed Sec.  301.55 would prohibit the interstate movement of 
regulated articles from any quarantined area except in accordance with 
the regulations. This section would also contain a footnote explaining 
that 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).

Definitions (Sec.  301.55-1)

    Proposed Sec.  301.55-1 would contain definitions of the following 
terms: Administrator, Animal and Plant Health Inspection Service 
(APHIS), cactus plants, certificate, compliance agreement, departmental 
permit, infestation, inspector, interstate, limited permit, moved 
(move, movement), person, Plant Protection and Quarantine (PPQ), 
quarantined area, regulated article, South American cactus moth, and 
State. These proposed terms and their definitions are set out in the 
regulatory text at the end of this document.

Regulated Articles (Sec.  301.55-2)

    Certain articles present a risk of spreading the South American 
cactus moth if they are moved from quarantined areas without 
restrictions. We would call these articles regulated articles, and 
would impose restrictions on their movement because the South American 
cactus moth can survive in these materials if present and could 
possibly be transported to noninfested areas. Paragraphs (a) through 
(c) of proposed Sec.  301.55-2 would list the following as regulated 
articles:
     The South American cactus moth, in any living stage of its 
development;
     Cactus plants or parts thereof (excluding seeds and 
canned, preserved, or frozen pads or fruits) of the following genera: 
Consolea, Cylindropuntia, Nopalea, and Opuntia; and
     Any other product, article, or means of conveyance when an 
inspector determines that it presents a risk of spreading the South 
American cactus moth and the person in possession of the product, 
article, or means of conveyance has been notified in writing that it is 
subject to the restrictions in the regulations.
    The last item listed above, which would provide for the designation 
of ``any other product, article, or means of conveyance'' as a 
regulated article, would be intended to address the risks presented by, 
for example, a truck that may have inadvertently picked up plant 
material or adult South American cactus moths while driving through 
fields, thus enabling an inspector to designate that truck as a 
regulated article in order to ensure that any necessary risk-mitigating 
measures are carried out.

Quarantined Areas (Sec.  301.55-3)

    Paragraph (a) of proposed Sec.  301.55-3 would provide the criteria 
for the inclusion of States, or portions of States, in the list of 
quarantined areas. Under these criteria, any State or portion of a 
State in which the South American cactus moth is 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 regulate due to the area's inseparability for quarantine 
enforcement purposes from localities in which the South American cactus 
moth has been found, would be listed as a quarantined area. These 
proposed criteria would also provide that we would designate less than 
an entire State as a quarantined area only if we determine that the 
State has adopted and is enforcing restrictions on the intrastate 
movement of regulated articles that are equivalent to those imposed on 
the interstate movement of regulated articles and that the designation 
of less than the entire State as a quarantined area would prevent the 
interstate spread of the South American cactus moth. In practice, the 
latter determination--that the designation of less than an entire State 
would prevent the interstate spread of the South American cactus moth--
would be based, at least in part, on our finding that infestations are 
confined to the quarantined areas as a result of natural breaks between 
infested areas and noninfested areas, known as zones, and would 
eliminate the need for designating an entire State as a quarantined 
area. APHIS would likely adopt existing buffer zones that have been 
established under the States' current eradication programs.
    Paragraph (b) of proposed Sec.  301.55-3 would provide that we may 
temporarily designate any nonquarantined area in a State as a 
quarantined area when we determine that the nonquarantined area meets 
the criteria for designation as a quarantined area described in Sec.  
301.55-3(a). In such cases, we would give the owner, person in 
possession of the nonquarantined area, or, in the case of publicly 
owned land, the person responsible for the management of the 
nonquarantined area, a copy of the regulations along with written 
notice of the area's temporary designation as a quarantined area, after 
which time the interstate movement of any regulated article from the 
area would be subject to the regulations. This proposed provision would 
be necessary to prevent the spread of the South American cactus moth 
during the time between the detection of the pest and the time a 
document designating the area as a quarantined area could be made 
effective and published in the Federal Register. In the event that an 
area's designation as a temporary quarantined area is terminated, we 
would provide written notice of that termination to the owner or person 
in possession of the area as soon as would be practicable.
    Paragraph (c) would list the areas quarantined because of the 
presence of the South American cactus moth. Surveys conducted by State 
agriculture departments in the States of Alabama, Florida, Georgia, and 
South Carolina during recent years have confirmed the presence of South 
American cactus moth in both wild and cultivated cactus plants. If 
these States were to delimit their infestations and implement 
intrastate quarantines, we would be able to narrow the scope of the 
quarantine. However, none of these States currently have intrastate 
quarantines in place. Therefore, we are proposing to designate

[[Page 7681]]

the States of Alabama, Florida, Georgia, and South Carolina, in their 
entirety, as quarantined areas.

Conditions Governing the Interstate Movement of Regulated Articles From 
Quarantined Areas (Sec.  301.55-4)

    This section would provide criteria for moving regulated articles 
interstate from quarantined areas. Paragraph (a) would provide that any 
regulated articles from a quarantined area may be moved interstate if 
moved with a certificate or limited permit issued and attached in 
accordance with proposed Sec. Sec.  301.55-5 and 301.55-8. Seeds and 
canned, preserved, or frozen pads or fruits of regulated cactus genera 
would not considered to be regulated articles because the life stages 
of the South American cactus moth either do not inhabit the specified 
plant part (i.e., seeds) or would be destroyed by the specified 
handling, processing, or utilization. As noted previously, we are 
planning to issue a separate rulemaking to address the risks from 
cactus moth host material moving into the continental United States 
from Hawaii and U.S. territories and from foreign countries where South 
American cactus moth is known to occur.
    Paragraph (b) would provide that any regulated articles from a 
quarantined area may be moved interstate without a certificate or 
limited permit if 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 other closely woven cloth) adequate to 
prevent access by South American cactus moths while moving through the 
quarantined area;
     Is kept in an enclosed vehicle or the enclosure that 
contains the regulated article is not opened, unpacked, or unloaded in 
the quarantined area and the point of origin of the regulated article 
is indicated on the waybill; and
     Moved through the quarantined area without stopping except 
for refueling or for traffic conditions, such as traffic lights or stop 
signs.
    Paragraph (c) would provide that a certificate or limited permit 
would also not be required if the regulated article is moved by the 
USDA for experimental or scientific purposes in accordance with 
conditions specified on a departmental permit and 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.

Issuance and Cancellation of Certificates and Limited Permits (Sec.  
301.55-5)

    Certificates would be issued for regulated articles when an 
inspector or other person authorized to issue certificates finds that 
the articles have met the conditions of the regulations and may be 
safely moved interstate without further restrictions.
    Specifically, proposed Sec.  301.55-5(a) would provide that a 
certificate may be issued for the interstate movement of a regulated 
article by an inspector, or a person operating under a compliance 
agreement in accordance with proposed Sec.  301.55-6, if the inspector 
or other authorized person determines that:
     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;
     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;
     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, deltamethrin, spinosad, or imidaploprid if 
maintained in the nursery for longer than 21 days;
     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
     If the regulated article was moved into the premises from 
another premises in a quarantined area listed in Sec.  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.
    Limited permits would be issued for regulated articles when an 
inspector finds that, because of a possible pest risk, the articles may 
be safely moved interstate only subject to further restrictions, such 
as movement to limited areas or movement for limited purposes. Proposed 
Sec.  301.55-5 would explain the conditions under which a limited 
permit would be issued.
    Specifically, proposed Sec.  301.55-5(b) would provide that a 
limited permit may be issued by an inspector for the interstate 
movement of a regulated article if the inspector determines that the 
article (1) is to be moved interstate to a specified destination for 
specified handling, processing or utilization, and that the 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) will be moved in 
compliance with any additional conditions imposed by the Administrator 
under section 414 of the Plant Protection Act (7 U.S.C. 7714) to 
prevent the spread of the South American cactus moth; and (3) is 
eligible for interstate movement under all other Federal domestic plant 
quarantines and regulations applicable to the regulated article.
    We would include a footnote that would provide an address for 
securing the addresses and telephone numbers of the local Plant 
Protection and Quarantine (PPQ) offices from which the services of an 
inspector may be requested.
    Paragraph (c) of proposed Sec.  301.55-5 would provide that any 
person who has entered into and is operating under a compliance 
agreement may issue a certificate or limited permit for the interstate 
movement of a regulated article after an inspector has determined that 
the article is otherwise eligible for a certificate under Sec.  301.55-
5(a) or a limited permit under Sec.  301.55-5(b).
    Also, Sec.  301.55-5(d) would contain provisions for the 
cancellation of a certificate or limited permit by an inspector if the 
inspector determines that the holder of the certificate or limited 
permit has not complied with conditions of the regulations. This 
paragraph would also contain provisions for notifying the holder of the 
reasons for the cancellation and for holding a hearing if there is any 
conflict concerning any material fact in the event that the person 
wishes to appeal the cancellation.

Compliance Agreements and Cancellation (Sec.  301.55-6)

    Proposed Sec.  301.55-6 would provide for the use of and 
cancellation of compliance agreements. Compliance agreements would be 
provided for the convenience of persons who are involved in the 
growing, handling, or moving of regulated articles from quarantined 
areas. A person would be able to enter into a compliance agreement when 
an inspector has determined that the person requesting the compliance 
agreement has been made aware of the requirements of the regulations 
and the person has agreed to comply with the requirements of the 
regulations and the provisions of the

[[Page 7682]]

compliance agreement. This section would contain a footnote that 
explains where compliance agreement forms may be obtained.
    Proposed Sec.  301.55-6 would also provide that an inspector may, 
either orally or in writing, cancel the compliance agreement upon 
finding that a person who has entered into the agreement has failed to 
comply with any of the provisions of the regulations or the terms of 
the compliance agreement. If the cancellation is oral, the cancellation 
and the reasons for the cancellation would be confirmed in writing as 
promptly as circumstances allow. Any person whose compliance agreement 
has been canceled would be able to appeal the decision, in writing, to 
the Administrator, within 10 days after receiving written notification 
of the cancellation and would have to 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 would grant or deny the appeal, in writing, stating 
the reasons for the decision.

Assembly and Inspection of Regulated Articles (Sec.  301.55-7)

    Proposed Sec.  301.55-7 would provide that any person (other than 
an inspector or a person operating under a compliance agreement) who 
desires to move interstate regulated articles which must be accompanied 
by a certificate or limited permit would have to request that an 
inspector inspect the articles for movement at least 48 hours before 
the desired movement. The regulated articles would have to be assembled 
in a place and manner directed by the inspector.

Attachment and Disposition of Certificates and Limited Permits (Sec.  
301.55-8)

    Proposed Sec.  301.55-8 would require the certificate or limited 
permit issued for movement of the regulated article to be attached, 
during the interstate movement, to the regulated article, or to a 
container carrying the regulated article, or 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 
would have to be sufficiently described on the certificate or limited 
permit and on the waybill to identify the regulated article. Further, 
the section would require that the carrier or the carrier's 
representative furnish the certificate or limited permit to the 
consignee listed on the certificate or limited permit upon arrival at 
the location provided on the certificate or limited permit.

Costs and Charges (Sec.  301.55-9)

    Proposed Sec.  301.55-9 would explain the APHIS policy that the 
services of an inspector that are needed to comply with the regulations 
would be provided without cost between 8 a.m. and 4:30 p.m., Monday 
through Friday, except holidays, to persons requiring those services, 
but that APHIS would not be responsible for any other costs or charges 
incident to inspections or compliance with the provisions of the 
quarantine and regulations other than for the services of the 
inspector.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    South American cactus moth is a pest that attacks primarily prickly 
pear cacti that can live in arid and coastal areas. In the continental 
United States, South American cactus moth has been found in Florida, 
Georgia, South Carolina, and Alabama. It has also been found in Hawaii, 
Puerto Rico, and the U.S. Virgin Islands, as well as more than 30 
foreign countries. Hosts for the pest are the live plants and plant 
parts (except seeds) of Consolea, Cylindropuntia, Nopalea, and Opuntia, 
four genera of the botanical family Cactaceae. Opuntia spp. are 
commonly known as prickly pear cactus.
    Opuntia, in particular, has both commercial and ecological value. 
Most of its commercial value lies in its use as an ornamental plant 
material for landscaping projects in the more arid areas of the United 
States Southwest. Opuntia also has a small but growing commercial value 
as a food crop, as there is demand in the United States for edible 
cactus leaves and fruit, especially in the Hispanic community. Other 
uses of Opuntia include emergency forage for cattle during periods of 
drought and wildlife feed for game animals. In the United States 
southwest desert, Opuntia plants play a key role in sustaining 
ecosystems, providing habitat for wildlife and protection against soil 
erosion. A healthy desert ecosystem also has economic benefits, since 
it promotes increased tourism, recreation, and hunting.\1\
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    \1\ Preliminary assessment of the potential impacts and risks of 
the invasive cactus moth, Cactoblastis cactorum Berg, in the United 
States and Mexico; Final Report to the International Atomic Energy 
Agency, April 25, 2005.
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    In this rule we are proposing to establish regulations to restrict 
the interstate movement of South American cactus moth host material 
from quarantined areas on the U.S. mainland to non-quarantined areas. 
Under this rule, such movement would be prohibited, except under 
certain conditions. Currently, there is no restriction on the 
interstate movement of South American cactus moth host material from 
areas on the mainland that have been found to be infested with the 
pest. In addition, the rule would designate the States of Alabama, 
Florida, Georgia, and South Carolina, in their entirety, as quarantined 
areas for South American cactus moth.
    All current growers in the four-State quarantined area are believed 
to produce host materials primarily for use in dish-gardens of mixed 
species. For these growers, the proposed rule should not be 
particularly problematic. This is because other species of cactus could 
easily be substituted for host species cactus in dish-gardens shipped 
to non-quarantined areas. However, the rule could pose a problem for 
would-be growers of prickly pear cactus for the small but growing food 
market.\2\ This is because, if found to be infested with South American 
cactus moth, they might be unable to ship fresh cactus leaves and fruit 
to non-quarantined areas, including some areas with large Hispanic 
populations. Although these growers would be able to ship canned, 
preserved, or frozen cactus food from a quarantined area, consumers 
prefer the fresh varieties.\3\ The number of would-be growers of cactus 
for use as food in the four-State quarantined area is unknown, but it 
is likely to be very small, based on the small number of ornamental 
cactus growers in that area.
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    \2\ The Florida Department of Plant Industry recently promoted 
the use of prickly pear cactus as a niche crop to fill the Hispanic 
market demand.
    \3\ In a 2004 report on cactus leaf pads (nopalitos), the 
Florida Department of Agriculture and Consumer Services stated that 
consumers prefer fresh nopalitos. However, the report also stated 
that shipping them is difficult, a factor that would seem to lessen 
the negative impact of the rule's restriction on the movement of 
fresh cactus from the quarantined areas. The report stated that 
``cactus pads are thorny and the consumer has the unpleasant task of 
cleaning them. If the nopalitos are shipped cleaned of thorns they 
tend to oxidize and have a short shelf life. Some companies dethorn 
and dice the Nopales, seal them in plastic bags and ship them in 
refrigerated trucks to U.S. markets, but the quality is low, the 
price is high, and they spoil within 2-3 days.'' See Nopalitos: 
Florida's New Niche Production Commodity, Final Report for Agreement 
12-25-G-0382.
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    To the extent that it prevents the spread of C. cactorum on the 
mainland, the rule would benefit U.S. entities,

[[Page 7683]]

primarily those in the ornamental nursery and landscape industries in 
the Southwest. Most commercial nurseries that produce prickly pear 
cacti as ornamental plants are located in Arizona, followed by 
California. In Arizona, there are an estimated 40 to 50 such producers 
in the Phoenix area alone; in California, there are an estimated 30 
growers of ornamental cacti. U.S. production of prickly pear cactus for 
edible use is limited largely to California; many, if not most, cactus 
growers are small in size.\4\
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    \4\ Source: Lynn Garrett (APHIS) and Irish, M. 2001. The 
Ornamental Prickly Pear Industry in the Southwestern United States. 
Florida Entomologist 84(4).
---------------------------------------------------------------------------

    Based on available information, we conclude that adoption of the 
rule would not have a significant economic impact on a substantial 
number of small entities, if for no other reason than few entities, 
large or small, are likely to be affected. Although hard data are not 
available, informed APHIS staff estimate that there are no more than 
about five producers of the host material in the four-State quarantined 
area, all of whom are believed to be Florida nurseries that produce 
prickly pear cactus, usually for use in dish-gardens of mixed species. 
The bulk of U.S. prickly pear cactus production, both for use as an 
ornamental plant and for use as an edible food, is concentrated in the 
Southwest, not the four Southeastern States designated as quarantined 
areas.\5\
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    \5\ See footnote 4.
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    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

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

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. If this rule is adopted: (1) All State and local laws 
and regulations that are inconsistent with this rule will be preempted; 
(2) no retroactive effect will be given to this rule; and (3) 
administrative proceedings will not be required before parties may file 
suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501, et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. APHIS-
2006-0153. Please send a copy of your comments to: (1) Docket No. 
APHIS-2006-0153, Regulatory Analysis and Development, PPD, APHIS, 
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, 
and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and 
Independence Avenue, SW., Washington, DC 20250. A comment to OMB is 
best assured of having its full effect if OMB receives it within 30 
days of publication of this proposed rule.
    APHIS is proposing to establish regulations to quarantine the 
States of Alabama, Florida, Georgia, and South Carolina because of 
South American cactus moth and restrict the interstate movement of 
regulated articles from the quarantined areas. In order to move 
regulated articles interstate from the quarantined area, regulated 
parties would have to obtain certificates or limited permits, and they 
would be able to enter into compliance agreements with APHIS. We are 
soliciting comments from the public (as well as affected agencies) 
concerning our information collection and recordkeeping requirements. 
These comments will help us:
    (1) Evaluate whether the information collection is necessary for 
the proper performance of our agency's functions, including whether the 
information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
information collection, including the validity of the methodology and 
assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.6 hours per response.
    Respondents: State plant regulatory officials.
    Estimated annual number of respondents: 3.
    Estimated annual number of responses per respondent: 10.
    Estimated annual number of responses: 30.
    Estimated total annual burden on respondents: 18 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

    Accordingly, we propose to amend 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 continues to read as 
follows:

    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).

    2. Part 301 is amended by adding a new Subpart--South American 
Cactus Moth, Sec. Sec.  301.55 through 301.55-9, to read as follows:
Subpart--South American Cactus Moth
Sec.
301.55 Restrictions on interstate movement of regulated articles.
301.55-1 Definitions.
301.55-2 Regulated articles.
301.55-3 Quarantined areas.

[[Page 7684]]

301.55-4 Conditions governing the interstate movement of regulated 
articles from quarantined areas.
301.55-5 Issuance and cancellation of certificates and limited 
permits.
301.55-6 Compliance agreements and cancellation.
301.55-7 Assembly and inspection of regulated articles.
301.55-8 Attachment and disposition of certificates and limited 
permits.
301.55-9 Costs and charges.

Subpart--South American Cactus Moth


Sec.  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\
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    \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).
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Sec.  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 Sec.  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 Sec.  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 
Sec.  301.55-3(c) or otherwise designated as a quarantined area in 
accordance with Sec.  301.55-3(b).
    Regulated article. Any article listed in Sec.  301.55-2(a) or (b), 
or otherwise designated as a regulated article in accordance with Sec.  
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.


Sec.  301.55-2  Regulated articles.

    The following are regulated articles:
    (a) The South American cactus moth, in any living stage of its 
development.\2\
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    \2\ Permit and other requirements for the interstate movement of 
South American cactus moths are contained in part 330 of this 
chapter.
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    (b) Cactus plants or parts thereof (excluding seeds and canned, 
preserved, or frozen pads or fruits) of the following genera: Consolea, 
Cylindropuntia, Nopalea, and Opuntia.
    (c) Any other product, article, or means of conveyance not listed 
in paragraphs (a) or (b) of this section that an inspector determines 
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.


Sec.  301.55-3  Quarantined areas.

    (a) Except as otherwise provided in paragraph (b) of this section, 
the Administrator will list as a quarantined area in paragraph (c) of 
this section 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. 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 regulation 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 list in paragraph (c) of this section 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.
    (c) The following areas are designated as quarantined areas:
Alabama
    The entire State.
Florida
    The entire State.
Georgia
    The entire State.

[[Page 7685]]

South Carolina
    The entire State.


Sec.  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\3\ only if moved under the following conditions:
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    \3\ Requirements under all other applicable Federal domestic 
plant quarantines and regulations must also be met.
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    (a) With a certificate or limited permit issued and attached in 
accordance with Sec. Sec.  301.55-5 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 other 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 
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.


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

    (a) An inspector \4\ may issue a certificate for the interstate 
movement of a regulated article if the inspector determines that:
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    \4\ Services of an inspector may be requested by contacting 
local offices of Plant Protection and Quarantine, which are listed 
in telephone directories.
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    (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 Sec.  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.


Sec.  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.\5\
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    \5\ Compliance agreement forms are available without charge from 
local Plant Protection and Quarantine offices, which are listed in 
telephone directories.
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    (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

[[Page 7686]]

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.


Sec.  301.55-7  Assembly and inspection of regulated articles.

    (a) Any person (other than a person authorized to issue limited 
permits under Sec.  301.55*5(c)) who desires a certificate or limited 
permit to move a regulated article interstate must request an inspector 
\6\ 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.
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    \6\ See footnote 4.
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    (b) The regulated article must be assembled at the place and in the 
manner the inspector designates as necessary to comply with this 
subpart.


Sec.  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.


Sec.  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.

    Done in Washington, DC, this 5th day of February 2008.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E8-2477 Filed 2-8-08; 8:45 am]
BILLING CODE 3410-34-P