This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

27071 

Vol. 74, No. 108 

Monday, June 8, 2009 

1To view the proposed rule, the EA, and the 

comments we received, go to http:// 

www.regulations.gov/fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2006-0153. 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2006–0153] 

RIN 0579–AC25 

South American Cactus Moth; 

Quarantine and Regulations 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending the 

domestic quarantine regulations to 

establish regulations to restrict the 

interstate movement of South American 

cactus moth host material, including 

nursery stock and plant parts for 

consumption, from infested areas of the 

United States. This action is intended to 

help prevent the artificial spread of 

South American cactus moth into 

noninfested areas of the United States. 

DATES: Effective Date: July 8, 2009. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Robyn Rose, National Program Lead, 

Emergency and Domestic Programs, 

PPQ, APHIS, 4700 River Rd., Unit 26, 

Riverdale, MD 20737–1236; (301) 734– 

7121. 

SUPPLEMENTARY INFORMATION: 

Background 

The South American cactus moth 

(Cactoblastis cactorum) is a 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, we published 

in the Federal Register (73 FR 7679– 

7686, Docket No. APHIS–2006–0153) a 

proposed rule 1 in which we proposed 

to establish domestic South American 

cactus moth regulations by adding a 

new subpart, ‘‘South American Cactus 

Moth’’ (§§ 301.55 through 301.55–9) to 

our regulations in 7 CFR part 301. Our 

proposed regulations provided for the 

designation of quarantined areas and 

restrictions on the interstate movement 

of regulated articles from quarantined 

areas into or through noninfested States. 

We solicited comments on our 

proposal for 60 days ending April 11, 

2008. In a document published in the 

Federal Register on September 18, 2008 

(73 FR 54082–54083), we announced 

the availability of an environmental 

assessment (EA) and reopened and 

extended the deadline for comments 

until October 20, 2008. The notice also 

announced that we planned to add 

Mississippi to the list of quarantined 

areas because the South American 

cactus moth had been found in that 

State. We received a total of 10 

comments by the close of the comment 

period. They were from private citizens, 

industry groups, a regional plant 

protection organization, an 

environmental organization, State 

Universities, a State department of 

agriculture, a Federal agency, and a 

Federal research laboratory. All the 

commenters supported the proposed 

rule. However seven commenters raised 

specific issues or questions regarding 

certain provisions of the proposed rule. 

One commenter stated that APHIS 

should only quarantine less than an 

entire State for South American cactus 

moth if the State has imposed 

restrictions for the intrastate movement 

of regulated articles that are at least as 

stringent as those imposed on the 

interstate movement of regulated 

articles and where APHIS has found 

that the designation of a more limited 

range as a quarantined area would 

effectively prevent the interstate spread 

of South American cactus moth. 

We agree with the commenter. In both 

the proposed rule and this final rule, 

§ 301.55–3 spells out the criteria that 

must be met in order to quarantine less 

than an entire State. These criteria 

include the considerations raised by the 

commenter. 

One commenter stated that South 

American cactus moth was found on 

Petit Bois Island in Mississippi and 

stated that APHIS should determine 

quickly whether Mississippi should be 

designated as a quarantined area. 

Another commenter mentioned the 

possibility that other States may need to 

be quarantined for South American 

cactus moth in the future if the moth 

cannot be contained. 

Since publication of the proposed 

rule, South American cactus moth has 

been found to be present in Mississippi, 

and, as noted previously, we stated in 

our September 2008 notice that we 

planned to add Mississippi to the list of 

States quarantined for South American 

cactus moth. We will add any additional 

States or portions of States to the South 

American cactus moth quarantine as 

necessary in accordance with the 

regulations. 

One commenter asked for clarification 

of when a limited permit may be 

required for the movement of regulated 

articles. 

As stated in § 301.55–5(b), a limited 

permit may be issued for regulated 

articles when an inspector finds that, 

because of a possible pest risk, the 

articles may be safely moved interstate 

only subject to further restrictions, such 

as movement to limited areas or 

movement for limited purposes. 

Specifically, the regulations provide 

that a limited permit may be issued by 

an inspector for the interstate movement 

of a regulated article if the inspector 

determines that the article (1) Is to be 

moved interstate to a specified 

destination for specified handling, 

processing or utilization, and that the 

movement will not result in the spread 

of the South American cactus moth 

because life stages of the South 

American cactus moth will be destroyed 

by the specified handling, processing, or 

utilization; (2) will be moved in 

compliance with any additional 


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2Currently, 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. 

3The Florida Department of Plant Industry has 

promoted the use of prickly pear cactus as a niche 

crop to fill the Hispanic market demand. 

4Florida Department of Agriculture and 

Consumer Services, ‘‘Nopalitos: Florida’s New 

Niche Production Commodity,’’ Final Report for 

Agreement #12–25–G–0382. 

conditions imposed by APHIS under 

section 414 of the Plant Protection Act 

(7 U.S.C. 7714) to prevent the spread of 

the South American cactus moth; and 

(3) is eligible for interstate movement 

under all other Federal domestic plant 

quarantines and regulations applicable 

to the regulated article. 

One commenter disagreed with the 

explanation in the preamble of the 

proposed rule that stated the South 

American cactus moth was likely 

introduced into Florida via infested 

nursery plants. 

While we pointed to infested nursery 

stock as the most likely route of 

introduction, it is possible that the moth 

could have spread naturally to Florida. 

One commenter stated that the 

requirements for the interstate 

movement of South American cactus 

moth host plant material from 

quarantined areas is too restrictive, 

specifically the requirement that host 

and non-host plants be separated while 

in the nursery and the required 

frequency of treatments. 

The separation between host and nonhost plants is necessary because South 

American cactus moth larvae pupate in 

soil or debris near the plants on which 

they feed. If host and non-host plants 

are placed close together, the larvae may 

easily move to a nearby non-host plant 

to pupate and could then be shipped. 

The treatment regimen was developed 

because South American cactus moth 

eggs develop and hatch within 25 to 30 

days. Because of the risk of eggs being 

laid after a single treatment or in 

between multiple treatments, and 

because inspection may not detect all 

eggs, spraying is required every 21 days 

as well as 3 days prior to shipment. 

One commenter suggested that APHIS 

should ban all imports of prickly pear 

cacti from entering the United States 

because of the risk of domestic growers 

importing prickly pear pads that may be 

infested with South American cactus 

moth into areas outside of the 

quarantined areas. 

We are developing regulations to 

address the risks of introducing South 

American cactus moth on host material 

imported from foreign countries where 

the pest is present. We will also make 

any necessary amendments to our 

Hawaiian and territorial quarantine 

regulations in 7 CFR part 318 to address 

the risks presented by South American 

cactus moth. 

One commenter expressed concern 

that the proposed rule could negatively 

impact the movement of cactus pads 

and fruits for consumption from outside 

the quarantined area to commercial food 

warehouses and distribution centers 

located within the quarantined area and 

suggested changes to the regulations to 

make provisions for such movement. 

We agree with the commenter that 

such movement presents low risk of 

spreading South American cactus moth. 

Therefore, we have amended the 

regulations in § 301.55–4 in this final 

rule to provide for the movement, 

without a certificate or limited permit, 

of cactus pads or fruits for consumption 

from outside of the quarantined area to 

a commercial food warehouse or 

distribution center in the quarantined 

area as long as the articles are moved in 

accordance with the protocols described 

in a compliance agreement and remain 

covered with canvas, plastic, or closely 

woven cloth adequate to prevent access 

by South American cactus moths while 

within the quarantined area. 

One commenter expressed concern 

that the use of insecticides to treat 

cactus pads for South American cactus 

moth is harmful to other insect species. 

While we understand the 

commenter’s concern, as stated in the 

EA, the required insecticide treatments 

will take place within nurseries, likely 

within enclosed greenhouses or 

shadehouses. This provision will 

significantly reduce the risk of exposure 

to other insect species. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, with the changes discussed in this 

document. 

In addition, we are advising the 

public of our decision and finding of no 

significant impact regarding our 

decision to quarantine the States of 

Alabama, Florida, Georgia, South 

Carolina, and Mississippi because of 

South American cactus moth and 

restrict the interstate movement of 

regulated articles from the quarantined 

areas. This decision is based upon the 

EA, entitled ‘‘Quarantine for the South 

American Cactus Moth Cactoblastis 

cactorum, in Florida, South Carolina, 

Georgia, Alabama, and Mississippi; 

Environmental Assessment’’(August 

2008), which we made available for 

comment in our September 2008 notice. 

We did not receive any comments 

regarding the EA. For instructions on 

viewing the EA and the finding of no 

significant impact, please see below 

under the heading ‘‘National 

Environmental Policy Act.’’ 

Executive Order 12866 and Regulatory 

Flexibility Act 

This final rule has been reviewed 

under Executive Order 12866. The rule 

has been determined to be not 

significant for the purposes of Executive 

Order 12866 and, therefore, has not 

been reviewed by the Office of 

Management and Budget. 

In this rule, we are establishing 

regulations to restrict the interstate 

movement of South American cactus 

moth host material from quarantined 

areas to non-quarantined areas. Prior to 

this rule, there were no restrictions on 

the interstate movement of South 

American cactus moth host material 

from areas on the mainland that were 

found to be infested with the pest.2 In 

addition, the rule designates the States 

of Alabama, Florida, Georgia, 

Mississippi, and South Carolina, in their 

entirety, as quarantined areas for South 

American cactus moth. 

All current growers in the five-State 

quarantined area are believed to 

produce host materials primarily for use 

in dish gardens of mixed species. For 

these growers, the rule will not be 

particularly problematic. This is 

because other species of cactus could 

easily be substituted for host species 

cactus in dish gardens shipped to nonquarantined areas. However, the rule 

could pose a problem for would-be 

growers of prickly pear cactus for the 

small but growing food market.3 This is 

because, if found to be infested with 

South American cactus moth, they will 

be unable to ship fresh cactus leaves 

and fruit to non-quarantined areas, 

including some areas with large 

Hispanic populations. Although these 

growers will be able to ship canned, 

preserved, or frozen cactus food from a 

quarantined area, consumers prefer the 

fresh varieties.4 The number of wouldbe growers of cactus for use as food in 

the five-State quarantined area is 

unknown, but it is likely to be very 

small, based on the small number of 

ornamental cactus growers in that area. 

To the extent that it prevents the 

spread of C. cactorum, the rule will 

benefit U.S. entities, primarily those in 

the ornamental nursery and landscape 

industries in the Southwest. Most 

commercial nurseries that produce 

prickly pear cacti as ornamental plants 

are located in Arizona, followed by 

California. In Arizona, there are an 

estimated 40 to 50 such producers in the 

Phoenix area alone; in California, there 

are an estimated 30 growers of 

ornamental cacti. U.S. production of 


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5Source: Lynn Garrett (APHIS) and Irish, M. 

2001. The Ornamental Prickly Pear Industry in the 

Southwestern United States. Florida Entomologist 

84(4). 

6See footnote 5. 

7See footnote 1 at the beginning of this 

document. 

1Any 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). 

prickly pear cactus for edible use is 

limited largely to California; many, if 

not most, cactus growers are small in 

size.5

Based on available information, we 

conclude that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Although it is possible that some 

growers could be significantly affected, 

the number so affected is likely to be 

very small. Although hard data are not 

available, informed APHIS staff estimate 

that there are no more than about seven 

producers of the host material in the 

five-State quarantined area, most of 

whom are believed to be Florida 

nurseries that produce prickly pear 

cactus, usually for use in dish gardens 

of mixed species. The bulk of U.S. 

prickly pear cactus production, both for 

use as an ornamental plant and for use 

as an edible food, is concentrated in the 

southwestern United States, not the five 

southeastern States designated as 

quarantined areas.6

Under these circumstances, the 

Administrator of the Animal and Plant 

Health Inspection Service has 

determined that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Executive Order 12372 

This program/activity is listed in the 

Catalog of Federal Domestic Assistance 

under No. 10.025 and is subject to 

Executive Order 12372, which requires 

intergovernmental consultation with 

State and local officials. (See 7 CFR part 

3015, subpart V.) 

National Environmental Policy Act 

An EA and finding of no significant 

impact have been prepared for this final 

rule. The EA provides a basis for the 

conclusion that the establishment of 

regulations for South American cactus 

moth will not have a significant impact 

on the quality of the human 

environment. Based on the finding of no 

significant impact, the Administrator of 

the Animal and Plant Health Inspection 

Service has determined that an 

environmental impact statement need 

not be prepared. 

The EA and finding of no significant 

impact were prepared in accordance 

with: (1) The National Environmental 

Policy Act of 1969 (NEPA), as amended 

(42 U.S.C. 4321 et seq.), (2) regulations 

of the Council on Environmental 

Quality for implementing the 

procedural provisions of NEPA (40 CFR 

parts 1500–1508), (3) USDA regulations 

implementing NEPA (7 CFR part 1b), 

and (4) APHIS’ NEPA Implementing 

Procedures (7 CFR part 372). 

The EA and finding of no significant 

impact may be viewed on the 

Regulations.gov Web site.7 Copies of the 

EA and finding of no significant impact 

are also available for public inspection 

at USDA, room 1141, South Building, 

14th Street and Independence Avenue, 

SW., Washington, DC, between 8 a.m. 

and 4:30 p.m., Monday through Friday, 

except holidays. Persons wishing to 

inspect copies are requested to call 

ahead on (202) 690–2817 to facilitate 

entry into the reading room. In addition, 

copies may be obtained by writing to the 

individual listed under FOR FURTHER

INFORMATION CONTACT. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), the information collection or 

recordkeeping requirements included in 

this rule have been approved by the 

Office of Management and Budget 

(OMB) under OMB control number 

0579–0337. E-Government Act 

Compliance 

The Animal and Plant Health 

Inspection Service is committed to 

compliance with the E-Government Act 

to promote the use of the Internet and 

other information technologies, to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. For information pertinent to 

E-Government Act compliance related 

to this rule, please contact Mrs. Celeste 

Sickles, APHIS’ Information Collection 

Coordinator, at (301) 851–2908. 

List of Subjects in 7 CFR Part 301 

Agricultural commodities, Plant 

diseases and pests, Quarantine, 

Reporting and recordkeeping 

requirements, Transportation. 

■ Accordingly, we are amending 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, §§ 301.55 through 301.55–9, to 

read as follows: 

Subpart—South American Cactus Moth 

Sec. 

301.55 Restrictions on interstate movement 

of regulated articles. 

301.55–1 Definitions. 

301.55–2 Regulated articles. 

301.55–3 Quarantined areas. 

301.55–4 Conditions governing the 

interstate movement of regulated articles 

from quarantined areas. 

301.55–5 Issuance and cancellation of 

certificates and limited permits. 

301.55–6 Compliance agreements and 

cancellation. 

301.55–7 Assembly and inspection of 

regulated articles. 

301.55–8 Attachment and disposition of 

certificates and limited permits. 

301.55–9 Costs and charges. 

Subpart—South American Cactus 

Moth 

§ 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

§ 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 fleshystemmed 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 


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2Permit and other requirements for the interstate 

movement of South American cactus moths are 

contained in part 330 of this chapter. 

3Requirements under all other applicable Federal 

domestic plant quarantines and regulations must 

also be met. 

document is for scientific or 

experimental purposes and that the 

regulated article is eligible for interstate 

movement in accordance with § 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 § 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 § 301.55–3(c) 

or otherwise designated as a 

quarantined area in accordance with 

§ 301.55–3(b). 

Regulated article. Any article listed in 

§ 301.55–2(a) or (b), or otherwise 

designated as a regulated article in 

accordance with § 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. 

§ 301.55–2 Regulated articles. 

The following are regulated articles: 

(a) The South American cactus moth, 

in any living stage of its development.2

(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. 

§ 301.55–3 Quarantined areas. 

(a) Except as otherwise provided in 

paragraph (b) of this section, the 

Administrator will list as a quarantined 

area in paragraph (c) of this section each 

State, or each portion of a State, in 

which the South American cactus moth 

has been found by an inspector, in 

which the Administrator has reason to 

believe that the South American cactus 

moth is present, or that the 

Administrator considers necessary to 

quarantine because of its inseparability 

for quarantine enforcement purposes 

from localities where South American 

cactus moth has been found. Less than 

an entire State will be designated as a 

quarantined area only if the 

Administrator determines that: 

(1) The State has adopted and is 

enforcing restrictions on the intrastate 

movement of the regulated articles that 

are equivalent to those imposed by this 

subpart on the interstate movement of 

regulated articles; and 

(2) The designation of less than the 

entire State as a quarantined area will be 

adequate to prevent the interstate spread 

of the South American cactus moth. 

(b) The Administrator or an inspector 

may temporarily designate any 

nonquarantined area in a State as a 

quarantined area in accordance with the 

criteria specified in paragraph (a) of this 

section. The Administrator will give a 

copy of this regulation along with 

written notice of the temporary 

designation to the owner or person in 

possession of the nonquarantined area, 

or, in the case of publicly owned land, 

to the person responsible for the 

management of the nonquarantined 

area. Thereafter, the interstate 

movement of any regulated article from 

an area temporarily designated as a 

quarantined area will be subject to this 

subpart. As soon as practicable, the area 

will be added to the list in paragraph (c) 

of this section or the designation will be 

terminated by the Administrator or an 

inspector. The owner or person in 

possession of, or, in the case of publicly 

owned land, the person responsible for 

the management of, an area for which 

designation is terminated will be given 

written notice of the termination as soon 

as practicable. 

(c) The following areas are designated 

as quarantined areas: The States of 

Alabama, Florida, Georgia, Mississippi, 

and South Carolina. 

§ 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: 

(a) With a certificate or limited permit 

issued and attached in accordance with 

§§ 301.555 and 301.55–8; 

(b) Without a certificate or limited 

permit if: 

(1) The regulated article originated 

outside the quarantined area and is 

either moved in an enclosed vehicle or 

is completely enclosed by a covering 

(such as canvas, plastic, or closely 

woven cloth) adequate to prevent access 

by South American cactus moths while 

moving through the quarantined area; 

and 

(2) The point of origin of the regulated 

article is indicated on the waybill, and 

the enclosed vehicle or the enclosure 

that contains the regulated article is not 

opened, unpacked, or unloaded in the 

quarantined area; and 

(3) The regulated article is moved 

through the quarantined area without 

stopping except for refueling or for 

traffic conditions, such as traffic lights 

or stop signs. 

(c) Without a certificate or limited 

permit if the regulated articles are 

cactus pads and fruits for consumption 

from outside the quarantined area that 

are being moved in accordance with the 

protocols described in a compliance 

agreement (see § 301.55–6(a)) to a 

commercial food warehouse or 

distribution center within the 

quarantined area and the regulated 

articles remain enclosed by a covering 

(such as canvas, plastic, or closely 

woven cloth) adequate to prevent access 

by South American cactus moths while 

within the quarantined area: and 

(d) Without a certificate or limited 

permit if the regulated article is moved: 

(1) By the United States Department 

of Agriculture for experimental or 

scientific purposes; 

(2) Pursuant to a departmental permit 

issued by the Administrator for the 

regulated article; 

(3) Under conditions specified on the 

departmental permit and found by the 

Administrator to be adequate to prevent 


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4Services of an inspector may be requested by 

contacting local offices of Plant Protection and 

Quarantine, which are listed in telephone 

directories. 

5Compliance agreement forms are available 

without charge from local Plant Protection and 

Quarantine offices, which are listed in telephone 

directories. 

6See footnote 4. 

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. 

§ 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: 

(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 § 301.55– 

3, it was immediately placed inside the 

shadehouse or greenhouse and sprayed 

with Bacillus thuringiensis subsp. 

kurstaki, carbaryl, spinosad, or 

imidaploprid within 24 hours. 

(b) An inspector will issue a limited 

permit for the interstate movement of a 

regulated article if the inspector 

determines that: 

(1) The regulated article is to be 

moved interstate to a specified 

destination for specified handling, 

processing, or utilization (the 

destination and other conditions to be 

listed in the limited permit), and this 

interstate movement will not result in 

the spread of the South American cactus 

moth because life stages of the South 

American cactus moth will be destroyed 

by the specified handling, processing, or 

utilization; 

(2) It is to be moved in compliance 

with any additional conditions that the 

Administrator may impose under 

section 414 of the Plant Protection Act 

(7 U.S.C. 7714) in order to prevent the 

spread of the South American cactus 

moth; and 

(3) It is eligible for unrestricted 

movement under all other Federal 

domestic plant quarantines and 

regulations applicable to the regulated 

article. 

(c) Certificates and limited permits for 

the interstate movement of regulated 

articles may be issued by an inspector 

or person operating under a compliance 

agreement. A person operating under a 

compliance agreement may issue a 

certificate or limited permit for 

interstate movement of a regulated 

article after an inspector has determined 

that the regulated article is eligible for 

a certificate or limited permit in 

accordance with paragraphs (a) or (b) of 

this section. 

(d) Any certificate or limited permit 

that has been issued may be canceled, 

either orally or in writing, by an 

inspector whenever the inspector 

determines that the holder of the limited 

permit has not complied with this 

subpart or any conditions imposed 

under this subpart. If the cancellation is 

oral, the cancellation will become 

effective immediately, and the 

cancellation and the reasons for the 

cancellation will be confirmed in 

writing as soon as circumstances permit. 

Any person whose certificate or limited 

permit has been canceled may appeal 

the decision in writing to the 

Administrator within 10 days after 

receiving the written cancellation 

notice. The appeal must state all of the 

facts and reasons that the person wants 

the Administrator to consider in 

deciding the appeal. A hearing may be 

held to resolve a conflict as to any 

material fact. Rules of practice for the 

hearing will be adopted by the 

Administrator. As soon as practicable, 

the Administrator will grant or deny the 

appeal, in writing, stating the reasons 

for the decision. 

(Approved by the Office of Management and 

Budget under control number 0579–0337) 

§ 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

(b) Any compliance agreement may be 

canceled, either orally or in writing, by 

an inspector whenever the inspector 

finds that the person who has entered 

into the compliance agreement has 

failed to comply with this subpart or the 

terms of the compliance agreement. If 

the cancellation is oral, the cancellation 

and the reasons for the cancellation will 

be confirmed in writing as promptly as 

circumstances allow. Any person whose 

compliance agreement has been 

canceled may appeal the decision, in 

writing, to the Administrator, within 10 

days after receiving written notification 

of the cancellation. The appeal must 

state all of the facts and reasons upon 

which the person relies to show that the 

compliance agreement was wrongfully 

canceled. As promptly as circumstances 

allow, the Administrator will grant or 

deny the appeal, in writing, stating the 

reasons for the decision. A hearing will 

be held to resolve any conflict as to any 

material fact. Rules of practice 

concerning a hearing will be adopted by 

the Administrator. 

(Approved by the Office of Management and 

Budget under control number 0579–0337) 

§ 301.55–7 Assembly and inspection of 

regulated articles. 

(a) Any person (other than a person 

authorized to issue limited permits 

under § 301.555(c)) who desires a 

certificate or limited permit to move a 

regulated article interstate must request 

an inspector 6 to examine the articles as 

far in advance of the desired interstate 

movement as possible, but no less than 

48 hours before the desired interstate 

movement. 

(b) The regulated article must be 

assembled at the place and in the 

manner the inspector designates as 

necessary to comply with this subpart. 

§ 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, 


cprice-sewell on PRODPC61 with RULES
27076 Federal Register / Vol. 74, No. 108 / Monday, June 8, 2009 / Rules and Regulations 

the regulated article must be sufficiently 

described on the certificate or limited 

permit and on the waybill to identify 

the regulated article. 

(b) The certificate or limited permit 

for the interstate movement of a 

regulated article must be furnished by 

the carrier or the carrier’s representative 

to the consignee listed on the certificate 

or limited permit upon arrival at the 

location provided on the certificate or 

limited permit. 

(Approved by the Office of Management and 

Budget under control number 0579–0337) 

§ 301.55–9 Costs and charges. 

The services of the inspector during 

normal business hours (8 a.m. to 4:30 

p.m., Monday through Friday, except 

holidays) will be furnished without 

cost. APHIS will not be responsible for 

all costs or charges incident to 

inspections or compliance with the 

provisions of the quarantine and 

regulations in this subpart, other than 

for the services of the inspector. 

Done in Washington, DC, this 2nd day of 

June 2009. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. E9–13317 Filed 6–5–09; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 36 

Calculation of Noise Levels Published 

in Advisory Circular 36–3 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Statement of policy. 

SUMMARY: This action clarifies the 

Federal Aviation Administration’s 

(FAA) policy on the calculation of 

derived noise levels submitted for 

publication in Advisory Circular (AC) 

36–3, Estimated Airplane Noise Levels 

in A–Weighted Decibels. This action is 

intended to provide guidance on 

calculating the derived levels used in 

that publication. 

FOR FURTHER INFORMATION CONTACT: Mr. 

James Skalecky, Office of Environment 

and Energy (AEE–100), Federal Aviation 

Administration, 800 Independence 

Avenue, SW., Washington, DC 20591; 

telephone (202) 267–3699; facsimile 

(202) 267–5594; e-mail 

James.Skalecky@faa.gov. 

Background 

Paragraph 3 of AC 36–3 states that ‘‘14 

CFR part 36 requires the reporting of 

turbojet and large transport category 

aircraft certificated noise levels in units 

of Effective Perceived Noise Level in 

decibels (EPNdB). Many airport and 

other community noise analyses utilize 

a noise rating scale that is based upon 

A-weighted decibels. For this reason, Aweighted noise levels for aircraft under 

14 CFR part 36 conditions have been 

estimated to provide a reference source 

for aircraft noise levels that is consistent 

with the many noise rating scales 

having A-weighted noise level as the 

basic measure.’’ The noise levels 

published in AC 36–3 for turbojet and 

large transport category airplanes are 

usually submitted to the FAA by the 

airplane type certificate (or 

supplemental type certificate) holder. 

The entity submitting the noise levels 

for publication is responsible for 

deriving the A-weighted level from the 

EPNdB levels submitted for 

certification. 

Recently, we received an inquiry 

requesting a clarification of those 

reference procedures, data analysis 

procedures, and data corrections that 

are to be used in deriving A-weighted 

noise levels for publication in AC 36– 

3. The question and our policy stated in 

this document apply only to noise levels 

for turbojet and large transport category 

airplanes. 

Policy Statement 

In order to ensure that all airplane 

noise levels submitted for publication in 

AC 36–3 are derived in a consistent 

manner, it is the FAA’s policy that the 

noise levels be derived using the same 

reference procedures, data analysis 

procedures, and data corrections/ 

adjustments that were used in deriving 

the 14 CFR part 36 certificated noise 

levels. The only exceptions are for 

deviations necessitated by (1) 

differences between the effective 

perceived noise level and A-weighted 

sound level metrics, or (2) inclusion of 

approach noise levels corresponding to 

use of less than the maximum flap 

setting, as permitted under AC 36–3, 

paragraph 4.a. In the case of number 2, 

the deviation is limited to the use of an 

approach configuration other than the 

noise-critical configuration that is 

required for the noise certification 

approach reference procedure by part 

36, Appendix B, paragraph B36.7(c)(5). 

Such deviations must be identified to 

the FAA when the data are submitted 

for inclusion in the AC. No other 

deviations will be accepted. 

When an airplane model that is 

already listed in AC 36–3 is 

recertificated from 14 CFR part 36 Stage 

3 to Stage 4, the noise levels 

corresponding to the Stage 3 

configuration are not automatically 

replaced. The Stage 3 noise levels will 

remain in AC 36–3, unless noise levels 

corresponding to the Stage 4 

configuration are submitted for 

publication. If Stage 4 noise levels are 

submitted, the FAA will remove the 

Stage 3 noise levels from AC 36–3 for 

that model and replace them with the 

Stage 4 noise levels when the AC is 

updated. 

Noise levels submitted for Stage 4 

configurations must conform to this 

policy for deriving noise levels 

submitted for publication in AC 36–3. 

Issued in Washington, DC, on June 2, 2009. 

Lourdes Q. Maurice, 

Acting Director of Environment and Energy. 

[FR Doc. E9–13333 Filed 6–5–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2009–1236; Airspace 

Docket No. 08–AGL–16] 

Amendment of Class E Airspace; 

Waverly, OH 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This action amends Class E 

airspace at Waverly, OH. Additional 

controlled airspace is necessary to 

accommodate Area Navigation (RNAV) 

Standard Instrument Approach 

Procedures (SIAP) at Pike County 

Airport, Waverly, OH. The FAA is 

taking this action to enhance the safety 

and management of Instrument Flight 

Rule (IFR) operations at Pike County 

Airport. 

DATES: Effective Date: 0901 UTC, August 

27, 2009. The Director of the Federal 

Register approves this incorporation by 

reference action under 1 CFR Part 51, 

subject to the annual revision of FAA 

Order 7400.9 and publication of 

conforming amendments. 

FOR FURTHER INFORMATION CONTACT: 

Scott Enander, Central Service Center, 

Operations Support Group, Federal 

Aviation Administration, Southwest 

Region, 2601 Meacham Blvd., Fort 

Worth, TX 76193–0530; telephone (817) 

321–7716. 

SUPPLEMENTARY INFORMATION: 


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