[Federal Register Volume 74, Number 108 (Monday, June 8, 2009)]
[Rules and Regulations]
[Pages 27071-27076]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-13317]



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Rules and Regulations
                                                Federal Register
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having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

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Federal Register / Vol. 74, No. 108 / Monday, June 8, 2009 / Rules 
and Regulations

[[Page 27071]]



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: Final rule.

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SUMMARY: We are amending 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 is intended to help prevent the artificial spread of South 
American cactus moth into noninfested areas of the United States.

DATES: Effective Date: July 8, 2009.

FOR FURTHER INFORMATION CONTACT: Dr. Robyn Rose, National Program Lead, 
Emergency and Domestic Programs, PPQ, APHIS, 4700 River Rd., Unit 26, 
Riverdale, MD 20737-1236; (301) 734-7121.

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.
    On February 11, 2008, we published in the Federal Register (73 FR 
7679-7686, Docket No. APHIS-2006-0153) a proposed rule \1\ in which we 
proposed to establish domestic South American cactus moth regulations 
by adding a new subpart, ``South American Cactus Moth'' (Sec. Sec.  
301.55 through 301.55-9) to our regulations in 7 CFR part 301. Our 
proposed regulations provided for the designation of quarantined areas 
and restrictions on the interstate movement of regulated articles from 
quarantined areas into or through noninfested States.
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    \1\ To view the proposed rule, the EA, and the comments we 
received, go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0153.
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    We solicited comments on our proposal for 60 days ending April 11, 
2008. In a document published in the Federal Register on September 18, 
2008 (73 FR 54082-54083), we announced the availability of an 
environmental assessment (EA) and reopened and extended the deadline 
for comments until October 20, 2008. The notice also announced that we 
planned to add Mississippi to the list of quarantined areas because the 
South American cactus moth had been found in that State. We received a 
total of 10 comments by the close of the comment period. They were from 
private citizens, industry groups, a regional plant protection 
organization, an environmental organization, State Universities, a 
State department of agriculture, a Federal agency, and a Federal 
research laboratory. All the commenters supported the proposed rule. 
However seven commenters raised specific issues or questions regarding 
certain provisions of the proposed rule.
    One commenter stated that APHIS should only quarantine less than an 
entire State for South American cactus moth if the State has imposed 
restrictions for the intrastate movement of regulated articles that are 
at least as stringent as those imposed on the interstate movement of 
regulated articles and where APHIS has found that the designation of a 
more limited range as a quarantined area would effectively prevent the 
interstate spread of South American cactus moth.
    We agree with the commenter. In both the proposed rule and this 
final rule, Sec.  301.55-3 spells out the criteria that must be met in 
order to quarantine less than an entire State. These criteria include 
the considerations raised by the commenter.
    One commenter stated that South American cactus moth was found on 
Petit Bois Island in Mississippi and stated that APHIS should determine 
quickly whether Mississippi should be designated as a quarantined area. 
Another commenter mentioned the possibility that other States may need 
to be quarantined for South American cactus moth in the future if the 
moth cannot be contained.
    Since publication of the proposed rule, South American cactus moth 
has been found to be present in Mississippi, and, as noted previously, 
we stated in our September 2008 notice that we planned to add 
Mississippi to the list of States quarantined for South American cactus 
moth. We will add any additional States or portions of States to the 
South American cactus moth quarantine as necessary in accordance with 
the regulations.
    One commenter asked for clarification of when a limited permit may 
be required for the movement of regulated articles.
    As stated in Sec.  301.55-5(b), a limited permit may 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. Specifically, the regulations 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

[[Page 27072]]

conditions imposed by APHIS 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.
    One commenter disagreed with the explanation in the preamble of the 
proposed rule that stated the South American cactus moth was likely 
introduced into Florida via infested nursery plants.
    While we pointed to infested nursery stock as the most likely route 
of introduction, it is possible that the moth could have spread 
naturally to Florida.
    One commenter stated that the requirements for the interstate 
movement of South American cactus moth host plant material from 
quarantined areas is too restrictive, specifically the requirement that 
host and non-host plants be separated while in the nursery and the 
required frequency of treatments.
    The separation between host and non-host plants is necessary 
because South American cactus moth larvae pupate in soil or debris near 
the plants on which they feed. If host and non-host plants are placed 
close together, the larvae may easily move to a nearby non-host plant 
to pupate and could then be shipped. The treatment regimen was 
developed because South American cactus moth eggs develop and hatch 
within 25 to 30 days. Because of the risk of eggs being laid after a 
single treatment or in between multiple treatments, and because 
inspection may not detect all eggs, spraying is required every 21 days 
as well as 3 days prior to shipment.
    One commenter suggested that APHIS should ban all imports of 
prickly pear cacti from entering the United States because of the risk 
of domestic growers importing prickly pear pads that may be infested 
with South American cactus moth into areas outside of the quarantined 
areas.
    We are developing regulations to address the risks of introducing 
South American cactus moth on host material imported from foreign 
countries where the pest is present. We will also make any necessary 
amendments to our Hawaiian and territorial quarantine regulations in 7 
CFR part 318 to address the risks presented by South American cactus 
moth.
    One commenter expressed concern that the proposed rule could 
negatively impact the movement of cactus pads and fruits for 
consumption from outside the quarantined area to commercial food 
warehouses and distribution centers located within the quarantined area 
and suggested changes to the regulations to make provisions for such 
movement.
    We agree with the commenter that such movement presents low risk of 
spreading South American cactus moth. Therefore, we have amended the 
regulations in Sec.  301.55-4 in this final rule to provide for the 
movement, without a certificate or limited permit, of cactus pads or 
fruits for consumption from outside of the quarantined area to a 
commercial food warehouse or distribution center in the quarantined 
area as long as the articles are moved in accordance with the protocols 
described in a compliance agreement and remain covered with canvas, 
plastic, or closely woven cloth adequate to prevent access by South 
American cactus moths while within the quarantined area.
    One commenter expressed concern that the use of insecticides to 
treat cactus pads for South American cactus moth is harmful to other 
insect species.
    While we understand the commenter's concern, as stated in the EA, 
the required insecticide treatments will take place within nurseries, 
likely within enclosed greenhouses or shadehouses. This provision will 
significantly reduce the risk of exposure to other insect species.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.
    In addition, we are advising the public of our decision and finding 
of no significant impact regarding our decision to quarantine the 
States of Alabama, Florida, Georgia, South Carolina, and Mississippi 
because of South American cactus moth and restrict the interstate 
movement of regulated articles from the quarantined areas. This 
decision is based upon the EA, entitled ``Quarantine for the South 
American Cactus Moth Cactoblastis cactorum, in Florida, South Carolina, 
Georgia, Alabama, and Mississippi; Environmental Assessment''(August 
2008), which we made available for comment in our September 2008 
notice. We did not receive any comments regarding the EA. For 
instructions on viewing the EA and the finding of no significant 
impact, please see below under the heading ``National Environmental 
Policy Act.''

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been reviewed under Executive Order 12866. The 
rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    In this rule, we are establishing regulations to restrict the 
interstate movement of South American cactus moth host material from 
quarantined areas to non-quarantined areas. Prior to this rule, there 
were no restrictions on the interstate movement of South American 
cactus moth host material from areas on the mainland that were found to 
be infested with the pest.\2\ In addition, the rule designates the 
States of Alabama, Florida, Georgia, Mississippi, and South Carolina, 
in their entirety, as quarantined areas for South American cactus moth.
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    \2\ 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.
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    All current growers in the five-State quarantined area are believed 
to produce host materials primarily for use in dish gardens of mixed 
species. For these growers, the rule will 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.\3\ This is because, if found to be infested with South American 
cactus moth, they will be unable to ship fresh cactus leaves and fruit 
to non-quarantined areas, including some areas with large Hispanic 
populations. Although these growers will be able to ship canned, 
preserved, or frozen cactus food from a quarantined area, consumers 
prefer the fresh varieties.\4\ The number of would-be growers of cactus 
for use as food in the five-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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    \3\ The Florida Department of Plant Industry has promoted the 
use of prickly pear cactus as a niche crop to fill the Hispanic 
market demand.
    \4\ Florida Department of Agriculture and Consumer Services, 
``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, the rule 
will benefit U.S. entities, 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

[[Page 27073]]

prickly pear cactus for edible use is limited largely to California; 
many, if not most, cactus growers are small in size.\5\
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    \5\ Source: Lynn Garrett (APHIS) and Irish, M. 2001. The 
Ornamental Prickly Pear Industry in the Southwestern United States. 
Florida Entomologist 84(4).
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    Based on available information, we conclude that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Although it is possible that some growers could be 
significantly affected, the number so affected is likely to be very 
small. Although hard data are not available, informed APHIS staff 
estimate that there are no more than about seven producers of the host 
material in the five-State quarantined area, most 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 southwestern United States, not 
the five southeastern States designated as quarantined areas.\6\
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    \6\ See footnote 5.
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    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

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

National Environmental Policy Act

    An EA and finding of no significant impact have been prepared for 
this final rule. The EA provides a basis for the conclusion that the 
establishment of regulations for South American cactus moth will not 
have a significant impact on the quality of the human environment. 
Based on the finding of no significant impact, the Administrator of the 
Animal and Plant Health Inspection Service has determined that an 
environmental impact statement need not be prepared.
    The EA and finding of no significant impact were prepared in 
accordance with: (1) The National Environmental Policy Act of 1969 
(NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the 
Council on Environmental Quality for implementing the procedural 
provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations 
implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing 
Procedures (7 CFR part 372).
    The EA and finding of no significant impact may be viewed on the 
Regulations.gov Web site.\7\ Copies of the EA and finding of no 
significant impact are also available for public inspection at USDA, 
room 1141, South Building, 14th Street and Independence Avenue, SW., 
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays. Persons wishing to inspect copies are requested to 
call ahead on (202) 690-2817 to facilitate entry into the reading room. 
In addition, copies may be obtained by writing to the individual listed 
under FOR FURTHER INFORMATION CONTACT.
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    \7\ See footnote 1 at the beginning of this document.
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Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0337. E-Government Act 
Compliance
    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 851-2908.

List of Subjects in 7 CFR Part 301

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


0
Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
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).


0
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.
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

[[Page 27074]]

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: The 
States of Alabama, Florida, Georgia, Mississippi, and South Carolina.


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.  301.555 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 Sec.  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

[[Page 27075]]

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.

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


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 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)


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

    (a) Any person (other than a person authorized to issue limited 
permits under Sec.  301.555(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,

[[Page 27076]]

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)


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 2nd day of June 2009.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-13317 Filed 6-5-09; 8:45 am]
BILLING CODE 3410-34-P