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[Federal Register Volume 76, Number 36 (Wednesday, February 23, 2011)]
[Proposed Rules]
[Pages 9978-9981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3991]

========================================================================
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.

========================================================================


Federal Register / Vol. 76, No. 36 / Wednesday, February 23, 2011 / 
Proposed Rules

[[Page 9978]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 318 and 319

[Docket No. APHIS-2006-0077]
RIN 0579-AD32

South American Cactus Moth; Territorial and Import Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We are proposing to amend the Hawaiian and territorial 
quarantine regulations to prohibit the movement of South American 
cactus moth host material, including nursery stock and plant parts for 
consumption to the mainland and Guam from Hawaii, Puerto Rico, and the 
U.S. Virgin Islands, and to allow South American cactus moth host 
material to be moved among Hawaii, Puerto Rico, and the U.S. Virgin 
Islands. We are also proposing to amend the foreign quarantine 
regulations to prohibit the importation of South American cactus moth 
host material, including nursery stock and plant parts for consumption, 
from any country or portion of a country infested with South American 
cactus moth. These actions would help prevent the introduction or 
spread of South American cactus moth into noninfested areas of the 
United States, relieve unnecessary restrictions on movement of host 
material among infested areas of the United States, and provide 
consistency to the regulations.

DATES: We will consider all comments that we receive on or before April 
25, 2011.

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-2006-0077 to submit or view comments and 
to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send one copy of 
your comment to Docket No. APHIS-2006-0077, 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-2006-0077.
    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: 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. All plant parts, except seeds, of these species can be 
infested with South American cactus moth. 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. Since the South 
American cactus moth larvae are internal feeders, they are difficult to 
detect during normal inspection.
    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. More recently, South American cactus moth has been 
discovered in other parts of Florida, as well as in Alabama, Georgia, 
Louisiana, Mississippi, and South Carolina, and it continues to spread 
north and west.
    The Southwest 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, comprising 1.5 percent of total agricultural 
production and representing 2.5 percent of the value of agricultural 
production. In the Southwest 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 periods of 
drought. If the South American cactus moth were to spread to these 
areas, there would be significant environmental and economic damage.
    In a final rule published in the Federal Register on June 8, 2009 
(74 FR 27071-27076, Docket No. APHIS-2006-0153), and effective July 8, 
2009, the Animal and Plant Health Inspection Service (APHIS) 
established regulations quarantining the States of Alabama, Florida, 
Georgia, Mississippi, and South Carolina, and restricting the movement 
of South American cactus moth host material from those States to 
prevent the artificial dissemination of the South American cactus moth 
into noninfested areas of the United States. In addition, in an interim 
rule published in the Federal Register and effective on July 15, 2010 
(75 FR 41073-41074, Docket No. APHIS-2010-0037), we added Louisiana to 
the list of States

[[Page 9979]]

quarantined due to the presence of South American cactus moth. APHIS, 
in cooperation with the Agricultural Research Service and funding 
provided by the Government of Mexico, is continuing to test and 
implement a sterile insect release program along the U.S. Gulf Coast. 
In support of our sterile insect program and domestic regulations and 
to make our regulations for the importation and interstate movement of 
South American cactus moth host material consistent, we are proposing 
to amend our territorial and import regulations to restrict the 
movement of South American cactus moth host material into the 
continental United States.

Hawaiian and Territorial Regulations

    The regulations in 7 CFR part 318 (referred to below as the 
Hawaiian and territorial regulations) govern the movement of plants and 
plant products, for consumption and propagation, from Hawaii and from 
Guam, Puerto Rico, the U.S. Virgin Islands, the Commonwealth of the 
Northern Mariana Islands, and all other U.S. territories and 
possessions between themselves and into the continental United States. 
In addition, the name and origin of all fruits and vegetables 
authorized movement under 7 CFR part 318, as well as the applicable 
requirements for their movement, may be found in the fruits and 
vegetables manuals for Hawaii and Puerto Rico.\1\
---------------------------------------------------------------------------

    \1\ The fruits and vegetables manuals for Hawaii and Puerto Rico 
can be found on the Internet at http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/Hawaii.pdf and http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/puerto_rico.pdf, respectively.
---------------------------------------------------------------------------

    The Hawaiian and territorial regulations currently restrict the 
movement of all cactus plants or parts thereof from Hawaii, Puerto 
Rico, and the U.S. Virgin Islands, which are known to be infested with 
South American cactus moth. Specifically, the regulations in Sec.  
318.13-1 prohibit the interstate movement of all cut flowers and fruits 
and vegetables and plants and portions of plants from Hawaii, which 
includes cactus plants or parts thereof, unless they are specifically 
approved for interstate movement or frozen or processed to sufficiently 
preclude the survival of any pests in accordance with Sec. Sec.  318.13 
and 318.14, respectively. The regulations in Sec.  318.13-16 limit the 
interstate movement of all cactus plants or parts thereof from Puerto 
Rico and the Virgin Islands to those cactus plants that are bare-rooted 
or grown in an approved growing medium listed in Sec.  318.13-2 and 
that are treated in accordance with 7 CFR part 305.\2\ However, the 
only treatment listed in the PPQ Treatment Manual for pests of cactus 
that feed internally is T201-f-2, a treatment for borers and soft 
scales that consists of fumigation using methyl bromide. There is no 
data to support the effectiveness of this treatment against South 
American cactus moth.
---------------------------------------------------------------------------

    \2\ Treatment schedules approved for use under 7 CFR part 305 
are available in the PPQ Treatment Manual at http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/treatment.pdf.
---------------------------------------------------------------------------

    As stated in Sec.  305.3, APHIS may add, revise, or remove a 
treatment schedule if necessary by publishing a notice informing the 
public of the reasoning behind the addition, revision, or removal, and 
taking comment on the action. Following the comment period, we will 
consider comments received on the notice and publish a followup notice 
announcing our determination with regard to the action. In accordance 
with that process, we are proposing to amend the PPQ Treatment Manual 
by adding the words ``(other than South American cactus moth 
(Cactoblastis cactorum))'' after the word ``borers'' under the heading 
``Pest'' in treatment schedule T201-f-2.
    Except as otherwise noted, the interstate movement of all cactus 
plants or parts thereof from Hawaii is currently prohibited and the 
interstate movement of cactus plants or parts thereof from Puerto Rico 
and the U.S. Virgin Islands is restricted unless the cactus plant is 
grown in approved growing media and treated in accordance with 7 CFR 
part 305. Since these requirements were put into place, we have 
determined that South American cactus moth does not infest all species 
of cactus. Therefore, we are proposing to amend the table in paragraph 
(a) of Sec.  318.13-16 by removing the entries for cactus moving 
interstate from Puerto Rico and the U.S. Virgin Islands. We would amend 
the Puerto Rico fruits and vegetables manual to indicate that the 
interstate movement of South American cactus moth host cacti to the 
mainland United States is prohibited. We are also proposing to amend 
the fruits and vegetables manuals for Hawaii and Puerto Rico to allow 
cacti that are not South American cactus moth hosts to be moved between 
Hawaii and the continental United States and between Puerto Rico, the 
U.S. Virgin Islands, and the continental United States.
    In addition, as Hawaii, Puerto Rico, and the U.S. Virgin Islands 
are already infested with South American cactus moth, there is no 
reason to prohibit the movement of South American cactus moth host 
plants or parts among these areas. Therefore, we are also proposing to 
amend the fruits and vegetables manuals for Hawaii and Puerto Rico to 
allow South American cactus moth host plants and plant parts to be 
moved between these areas without restriction. Finally, we are 
proposing to amend the fruits and vegetables manuals for Hawaii and 
Puerto Rico by removing the obsolete term ``cactus borer'' in reference 
to C. cactorum and replacing it with the current term ``South American 
cactus moth.''
    These changes are necessary because Hawaii, Puerto Rico, and the 
U.S. Virgin Islands are infested with South American cactus moth and 
there is no control program for South American cactus moth in those 
areas. In addition, there is no trade or anticipated trade of South 
American cactus moth host material among Hawaii and the territories or 
between Hawaii and the territories and the mainland United States.
    These changes would prohibit the movement of unprocessed South 
American cactus moth host material, such as nursery stock, from Hawaii, 
Puerto Rico, and the U.S. Virgin Islands into or through the 
continental United States and all other noninfested territories and 
possessions as well as allow for the unrestricted movement of plants 
and plant products that are not hosts of the South American cactus moth 
from Hawaii, Puerto Rico, or the U.S. Virgin Islands into or through 
the continental United States.

Importation of Plants for Propagation

    The regulations in 7 CFR part 319 (referred to below as the import 
regulations) govern the movement into the United States from all 
foreign countries, of plants and plant products for consumption and 
propagation. The regulations in Sec. Sec.  319.37 through 319.37-14 
govern the importation of plants and plant products, including nursery 
stock, for propagation. The import regulations in Sec.  319.37-2(b)(5) 
currently prohibit the importation of all cactus cuttings for 
propagation, without roots or branches, that are greater than 153 
millimeters (approximately 6 inches) in diameter or greater than 1.2 
meters (approximately 4 feet) in length from all countries except 
Canada unless imported by the United States Department of Agriculture 
for scientific or experimental purposes under the conditions in Sec.  
319.37-2(c). APHIS further prohibits in Sec.  319.37-2(b)(6) the 
importation of all cactus plants for propagation, from all countries, 
except Canada, that exceed 460 millimeters (approximately 18 inches) in 
length from the soil line to the farthest terminal

[[Page 9980]]

growing point and whose growth habits simulate the woody habits of 
trees and shrubs unless imported by the United States Department of 
Agriculture for scientific or experimental purposes under the 
conditions in Sec.  319.37-2(c).
    The current size restrictions were designed to make it easier to 
handle imported cacti during inspection rather than as a way to prevent 
South American cactus moth or other cactus pests from entering the 
United States. As most cactus plants and cuttings imported for 
propagation are smaller than these size limits, the current regulations 
effectively permit the entry of all cactus plants and cuttings, 
including South American cactus moth host species, into the United 
States. Therefore, we are proposing to amend the table in Sec.  319.37-
2(a) to prohibit the importation of all cactus moth host material 
(excluding seeds) from areas infested with South American cactus moth. 
These changes would prohibit the movement of cactus moth nursery stock 
into the United States from all countries infested with South American 
cactus moth. Countries infested with South American cactus moth \3\ 
include: Antigua, Argentina, Ascension Island, Australia, Bahamas, 
Botswana, Brazil, Cayman Islands, Cuba, Dominican Republic, Dominica, 
Guadeloupe, Haiti, Jamaica, Lesotho, Mauritius, Montserrat, Namibia, 
Nevis, New Caledonia, Paraguay, South Africa, St. Helena, St. Lucia, 
St. Vincent, St. Kitts, Swaziland, Tanzania, Uruguay, and the Republic 
of Zimbabwe.
---------------------------------------------------------------------------

    \3\ The presence of South American cactus moth in these 
countries was confirmed by literature from the European and 
Mediterranean Plant Protection Organization, the International 
Atomic Energy Agency, and the Centre for Agricultural Bioscience 
International.
---------------------------------------------------------------------------

Importation of Fruits and Vegetables

    The regulations in Sec. Sec.  319.56-1 through 319.56-50 govern the 
importation of plants and plant products intended for consumption. 
Under Sec.  319.564(a), fruits or vegetables that the Administrator has 
determined may be imported subject to one or more of the designated 
phytosanitary measures cited in Sec.  319.56-4(b), are listed in the 
Fruits and Vegetables Import Requirements (FAVIR) database found on the 
APHIS Web site at http://www.aphis.usda.gov/favir/info.shtml. 
Currently, the importation into the United States of the fruit of 
Opuntia species cacti, called ``tuna,'' is authorized only from the 
Bahamas, Belize, Chile, Colombia, the Dominican Republic, Guatemala, 
Haiti, Israel, Italy, Jamaica, and Mexico. The importation of prickly 
pear pads, also called ``nopales,'' of Opuntia species cacti is 
currently authorized only from Colombia and Mexico. Importation of this 
fruit from all other countries is prohibited. We are proposing to amend 
the FAVIR database in order to remove the Bahamas, the Dominican 
Republic, Haiti, and Jamaica from the list of countries authorized to 
import tuna or nopales because those countries have been determined to 
be infested with South American cactus moth.
    Any country that is not authorized to export South American cactus 
moth host material to the United States for consumption would be able 
to request approval to import South American cactus moth host material. 
APHIS would evaluate the request and prepare a pest risk assessment and 
risk management document in order to determine whether the commodity 
may be safely imported into the continental United States without 
presenting a risk of introducing South American cactus moth into 
noninfested areas of the United States.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.
    We are proposing to amend the Hawaiian and territorial quarantine 
regulations to prohibit the movement of South American cactus moth host 
material, including nursery stock and plant parts for consumption to 
the mainland and Guam from Hawaii, Puerto Rico, and the U.S. Virgin 
Islands, and to allow South American cactus moth host material to be 
moved among Hawaii, Puerto Rico, and the U.S. Virgin Islands. We are 
also proposing to amend the foreign quarantine regulations to prohibit 
the importation of South American cactus moth host material, including 
nursery stock and plant parts for consumption, from any country or 
portion of a country infested with South American cactus moth.
    Published data on U.S. trade do not offer the level of detail 
necessary to identify South American cactus moth host plants and plant 
parts moving in commerce specifically. Accordingly, data on the volume 
(and value) of U.S. imports of those host plants and plant parts are 
not available from that source. Nevertheless, APHIS and Agricultural 
Marketing Service internal reports, as well as informed APHIS staff, 
indicate that the volume of host plant and host plant part imports from 
the countries infested with the pest is negligible. Of the countries 
infested with South American cactus moth, only the Dominican Republic 
is known to have shipped host plant parts to the United States in 
recent years. Virtually all imports of South American cactus moth host 
plant parts come from Mexico, a country that is not currently infested 
with the pest. In 2009, Mexico exported 2,266 metric tons of nopales to 
the United States valued at over $2 million. The proposed rule, 
therefore, should have little impact on U.S. imports of South American 
cactus moth host plant parts.
    The restriction on the movement of South American cactus moth host 
plant parts from Hawaii, Puerto Rico, and the U.S. Virgin Islands to 
the mainland United States should have little or no impact. For one, 
such movement from Hawaii is already prohibited, and the interstate 
movement of cactus plants or parts thereof from Puerto Rico and the 
U.S. Virgin Islands is limited.
    The rule would allow South American cactus moth host plants and 
plant parts to be moved between Hawaii, Puerto Rico, and the U.S. 
Virgin Islands. Such movement should have little impact, as those areas 
are already infested with South American cactus moth, and there is no 
program in those areas to control the pest. To the extent that it would 
prevent the spread of South American cactus moth on the mainland, the 
rule would benefit U.S. entities, primarily those in the ornamental 
nursery and landscape industries in the Southwest. Most commercial 
nurseries that produce prickly pear cacti are located in Arizona, 
followed by California. In Arizona, there are an estimated 40 to 50 
producers in the Phoenix area alone; in California, there are an 
estimated 30 growers of cacti. Many, if not most, cactus growers are 
small in size.\4\
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    \4\ Source: Irish, M. 2001. The Ornamental Prickly Pear Industry 
in the Southwest United States. Florida Entomologist 84(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 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.

[[Page 9981]]

Paperwork Reduction Act

    This proposed rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects

7 CFR Part 318

    Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and 
pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin 
Islands.

7 CFR Part 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

    Accordingly, we are proposing to amend 7 CFR parts 318 and 319 as 
follows:

PART 318--STATE OF HAWAII AND TERRITORIES QUARANTINE NOTICES

    1. The authority citation for part 318 continues to read as 
follows:

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

Sec.  318.13-6  [Amended]

    2. In Sec.  318.13-16, the table in paragraph (a) is amended under 
Puerto Rico and U.S. Virgin Islands by removing the entries for 
``Cactus''.

PART 319--FOREIGN QUARANTINE NOTICES

    3. The authority citation for part 319 continues to read as 
follows:

    Authority:  7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 
136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

    4. In Sec.  319.37-2, paragraph (a), the table is amended by 
adding, in alphabetical order, new entries for Consolea spp., 
Cylindropuntia spp., Nopalea spp., and Opuntia spp. to read as follows:

Sec.  319.37-2  Prohibited articles.

    (a) * * *

----------------------------------------------------------------------------------------------------------------
 Prohibited article (includes                                               Plant pests existing in the places
  seeds only if specifically      Foreign places from which prohibited    named and capable of being transported
          mentioned)                                                            with the prohibited article
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Consolea spp..................  Antigua, Argentina, Ascension Island,     Cactoblastis cactorum (South American
                                 Australia, Bahamas, Botswana, Brazil,     cactus moth).
                                 Cayman Islands, Cuba, Dominican
                                 Republic, Dominica, Guadeloupe, Haiti,
                                 Jamaica, Lesotho, Mauritius,
                                 Montserrat, Namibia, Nevis, New
                                 Caledonia, Paraguay, South Africa, St.
                                 Helena, St. Lucia, St. Vincent, St.
                                 Kitts, Tanzania, Uruguay, Republic of
                                 Zimbabwe.
 
                                                  * * * * * * *
Cylindropuntia spp............  Antigua, Argentina, Ascension Island,     Cactoblastis cactorum (South American
                                 Australia, Bahamas, Botswana, Brazil,     cactus moth).
                                 Cayman Islands, Cuba, Dominican
                                 Republic, Dominica, Guadeloupe, Haiti,
                                 Jamaica, Lesotho, Mauritius,
                                 Montserrat, Namibia, Nevis, New
                                 Caledonia, Paraguay, South Africa, St.
                                 Helena, St. Lucia, St. Vincent, St.
                                 Kitts, Tanzania, Uruguay, Republic of
                                 Zimbabwe.
 
                                                  * * * * * * *
Nopalea spp...................  Antigua, Argentina, Ascension Island,     Cactoblastis cactorum (South American
                                 Australia, Bahamas, Botswana, Brazil,     cactus moth).
                                 Cayman Islands, Cuba, Dominican
                                 Republic, Dominica, Guadeloupe, Haiti,
                                 Jamaica, Lesotho, Mauritius,
                                 Montserrat, Namibia, Nevis, New
                                 Caledonia, Paraguay, South Africa, St.
                                 Helena, St. Lucia, St. Vincent, St.
                                 Kitts, Tanzania, Uruguay, Republic of
                                 Zimbabwe.
 
                                                  * * * * * * *
Opuntia spp...................  Antigua, Argentina, Ascension Island,     Cactoblastis cactorum (South American
                                 Australia, Bahamas, Botswana, Brazil,     cactus moth).
                                 Cayman Islands, Cuba, Dominican
                                 Republic, Dominica, Guadeloupe, Haiti,
                                 Jamaica, Lesotho, Mauritius,
                                 Montserrat, Namibia, Nevis, New
                                 Caledonia, Paraguay, South Africa, St.
                                 Helena, St. Lucia, St. Vincent, St.
                                 Kitts, Tanzania, Uruguay, Republic of
                                 Zimbabwe.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

    Done in Washington, DC, this 16th day of February 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-3991 Filed 2-22-11; 8:45 am]
BILLING CODE 3410-34-P
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