[Federal Register: February 11, 2008 (Volume 73, Number 28)]
[Proposed Rules]
[Page 7679-7686]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11fe08-14]
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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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[[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).
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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