54082 Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / Proposed Rules 

determines that the appointee’s 

continued presence in the work place 

during the notice period may pose a 

threat to the appointee or others, result 

in loss of or damage to Government 

property, or otherwise jeopardize 

legitimate Government interests, the 

agency may elect one or a combination 

of the following alternatives: 

(i) Assigning the appointee to duties 

where he or she is no longer a threat to 

safety, the agency mission, or 

Government property; 

(ii) Allowing the appointee to take 

leave, or carrying him or her in an 

appropriate leave status (annual, sick, 

leave without pay, or absence without 

leave) if the appointee has absented 

himself or herself from the worksite 

without requesting leave; 

(iii) Curtailing the notice period when 

the agency can invoke the provisions of 

paragraph (d) of this section; or 

(iv) Placing the employee in a paid, 

nonduty status for such time as is 

necessary to effect the action. 

(c) Appointee’s answer. (1) The 

appointee may answer orally and in 

writing except as provided in 

§ 752.604(c)(2) of this part. The agency 

must give the appointee a reasonable 

amount of official time to review the 

material relied on to support its 

proposed action, to prepare an answer 

orally and in writing, and to secure 

affidavits, if the appointee is in an 

active duty status. The agency may 

require the appointee to furnish any 

answer to the proposed action, and 

affidavits and other documentary 

evidence in support of the answer, 

within such time as would be 

reasonable, but not less than 7 days. 

(2) The agency will designate an 

official to hear the appointee’s oral 

answer who has authority either to 

make or to recommend a final decision 

on the proposed adverse action. The 

right to answer orally in person does not 

include the right to a formal hearing 

with examination of witnesses unless 

the agency provides for such hearing in 

its regulations. Under 5 U.S.C. 7543(c), 

the agency may in its regulations 

provide a hearing in place of or in 

addition to the opportunity for written 

and oral answer. 

(3) If the appointee wishes the agency 

to consider any medical condition that 

may have affected the basis for the 

adverse action, the appointee must be 

given reasonable time to furnish 

medical documentation (as defined in 

§ 339.104 of this chapter) of the 

condition. Whenever possible, the 

appointee will supply such 

documentation within the time limits 

allowed for an answer. 

(d) Exception. Section 7543(b)(1) of 

title 5, U.S. Code, authorizes an 

exception to the 30 days’ advance 

written notice when the agency has 

reasonable cause to believe that the 

employee has committed a crime for 

which a sentence of imprisonment may 

be imposed and is proposing a removal 

or suspension, including indefinite 

suspension. This notice exception is 

commonly referred to as the ‘‘crime 

provision.’’ This provision may be 

invoked even in the absence of judicial 

action. 

(e) Representation. Section 7543(b)(3) 

of title 5, U.S. Code, provides that an 

appointee covered by this part is 

entitled to be represented by an attorney 

or other representative. An agency may 

disallow as an appointee’s 

representative an individual whose 

activities as representative would cause 

a conflict of interest or position, or an 

employee of the agency whose release 

from his or her official position would 

give rise to unreasonable costs or whose 

priority work assignments preclude his 

or her release. 

(f) Agency review of medical 

information. When medical information 

is supplied by the appointee pursuant to 

paragraph (c)(3) of this section, the 

agency may, if authorized, require a 

medical examination under the criteria 

of § 339.301, or otherwise, at its option, 

offer a medical examination in 

accordance with the criteria of 

§ 339.302. If the appointee has the 

requisite years of service under the Civil 

Service Retirement System or the 

Federal Employees Retirement System, 

the agency must provide information 

concerning disability retirement. The 

agency must be aware of the affirmative 

obligations of the provisions of 29 CFR 

1614.203, which require reasonable 

accommodation of a qualified 

individual with a disability. 

(g) Agency decision. (1) In arriving at 

its decision, the agency will consider 

only the reasons specified in the notice 

of proposed action and any answer of 

the appointee or the appointee’s 

representative, or both, made to a 

designated official and any medical 

documentation reviewed under 

paragraph (f) of this section. 

(2) The notice must specify in writing 

the reasons for the decision and advise 

the appointee of any appeal or grievance 

rights under § 752.605 of this part. The 

agency must deliver the notice of 

decision to the appointee on or before 

the effective date of the action. 

(h) Applications for disability 

retirement. Section 831.1204(e) of this 

chapter provides that an appointee’s 

application for disability retirement 

need not delay any other appropriate 

personnel action. Section 831.1205 and 

section 844.202 of this chapter set forth 

the basis under which an agency must 

file an application for disability 

retirement on behalf of an appointee. 

§ 752.605 Appeal rights. 

(a) Under 5 U.S.C. 7543(d), a career 

appointee against whom an action is 

taken under this subpart is entitled to 

appeal to the Merit Systems Protection 

Board. 

(b) A limited term or limited 

emergency appointee who is covered 

under § 752.601(c)(2) also may appeal 

an action taken under this subpart to the 

Merit Systems Protection Board. 

§ 752.606 Agency records. 

The agency must maintain copies of, 

and will furnish to the Merit Systems 

Protection Board and to the employee 

upon his or her request, the following 

documents: 

(1) Notice of the proposed action; 

(2) Employee’s written reply, if any; 

(3) Summary of the employee’s oral 

reply, if any; 

(4) Agency notice of decision; and 

(5) Any order effecting the action, 

together with any supporting material. 

[FR Doc. E8–21523 Filed 9–17–08; 8:45 am] 

BILLING CODE 6325–39–P 

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; 

Availability of an Environmental 

Assessment and Reopening of 

Comment Period 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Notice of availability and 

request for comments; reopening of 

comment period. 

SUMMARY: We are advising the public 

that an environmental assessment has 

been prepared by the Animal and Plant 

Health Inspection Service relative to the 

establishment of domestic quarantine 

regulations for the South American 

cactus moth, Cactoblastis cactorum. The 

environmental assessment documents 

our review and analysis of 

environmental impacts associated with 

the proposed rulemaking. We are 

making this environmental assessment 

available to the public for review and 


dwashington3 on PRODPC61 with PROPOSALS
Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / Proposed Rules 54083 

comment. In addition, we have 

determined that the South American 

cactus moth is present in the State of 

Mississippi, which we did not include 

in the quarantined area in our proposal 

to establish regulations for South 

American cactus moth. We are 

reopening the comment period on that 

proposal to allow interested persons to 

submit comments on the addition of 

Mississippi to the proposed quarantined 

area, as well as on other aspects of the 

proposal. 

DATES: We will consider all comments 

that we receive on or before October 20, 

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: 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 grayishbrown 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, the Animal and 

Plant Health Inspection Service (APHIS) 

published in the Federal Register (73 

FR 7679–7686, Docket No. APHIS– 

2006–0153) a proposal 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. 

In connection with this proposed rule, 

we have prepared an environmental 

assessment (EA) entitled ‘‘Quarantine 

for the South American Cactus Moth, 

Cactoblastis cactorum, in Florida, South 

Carolina, Georgia, Alabama, and 

Mississippi.’’ We are making this 

environmental assessment available to 

the public for review and comment. We 

will consider all comments that we 

receive on or before the date listed 

under the heading DATES at the 

beginning of this notice. 

Since publication of the proposed 

rule, surveys conducted by the 

Mississippi Department of Agriculture 

and Commerce have confirmed the 

presence of South American cactus 

moth in the State of Mississippi. 

Therefore, we have determined that 

Mississippi should be added to the 

proposed list of quarantined areas in 

§ 301.55–3(c). In addition, we would 

like to clarify our intention regarding 

the use of deltamethrin as a treatment. 

Although the ‘‘Background’’ section of 

the proposal listed deltamethrin as an 

acceptable treatment for South 

American cactus moth, the proposed 

regulatory text did not include 

deltamethrin. We do not have efficacy 

data for the use of this chemical on 

South American cactus moth; therefore 

we did not intend to approve 

deltamethrin as a treatment and it 

should not have been included as an 

acceptable treatment in the 

‘‘Background’’ section. 

Comments on the proposed rule were 

required to be received on or before 

April 11, 2008. We are reopening the 

comment period for the proposed rule 

for 30 days following publication of this 

notice. This action will allow interested 

persons to prepare and submit 

comments regarding the proposed 

addition of Mississippi to the list of 

States quarantined for South American 

cactus moth or other aspects of the 

proposed rule. We will also consider all 

comments received between April 11, 

2008, and the date of this notice. 

The environmental assessment, the 

proposed rule, and all previously 

received comments on the proposed 

rule may be viewed on the 

Regulations.gov Web site or in our 

reading room (see ADDRESSES above for 

a link to Regulations.gov and 

information on the location and hours of 

the reading room). You may request 

paper copies of the documents listed 

above by calling or writing to the person 

listed under FOR FURTHER INFORMATION

CONTACT. Please refer to the title of the 

environmental assessment when 

requesting copies. 

The environmental assessment has 

been 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 1), and (4) APHIS’ NEPA 

Implementing Procedures (7 CFR part 

372). 

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). 

Done in Washington, DC, this 12th day of 

September 2008. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. E8–21816 Filed 9–17–08; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Parts 94 and 95 

[Docket No. APHIS–2008–0093] 

Bovine Spongiform Encephalopathy; 

Minimal-Risk Regions and Importation 

of Meat, Meat Byproducts, and Meat 

Food Products Derived From Bovines 

30 Months of Age or Older 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 


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