[Federal Register Volume 59, Number 176 (Tuesday, September 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22610]


[[Page Unknown]]

[Federal Register: September 13, 1994]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 94-059-1]

 

Gypsy Moth Generally Infested Areas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the list of generally infested areas under the 
gypsy moth quarantine and regulations by removing and adding areas in 
Ohio and Virginia. These changes affect 7 areas in Ohio and 5 areas in 
Virginia. These actions are necessary in order to impose certain 
restrictions on the interstate movement of regulated articles to 
prevent the artificial spread of gypsy moth and delete unnecessary 
restrictions on the interstate movement of regulated articles.

DATES: Interim rule effective September 13, 1994. Consideration will be 
given only to comments received on or before November 14, 1994.

ADDRESSES: Please send an original and three copies of your comments to 
Chief, Regulatory Analysis and Development, PPD, APHIS, USDA, room 804, 
Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782. Please 
state that your comments refer to Docket No. 94-059-1. Comments 
received may be inspected 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 comments are requested to call ahead on (202) 690-2817 to 
facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Terry McGovern, Operations 
Officer, Domestic and Emergency Operations, Plant Protection and 
Quarantine, APHIS, USDA, room 643, Federal Building, 6505 Belcrest 
Road, Hyattsville, MD 20782, (301) 436-6365.

SUPPLEMENTARY INFORMATION:

Background

    The gypsy moth, Lymantria dispar (Linnaeus), is a destructive pest 
of forest trees. The gypsy moth regulations (contained in 7 CFR 301.45 
through 301.45-12, and referred to below as the regulations), 
quarantine certain States because of the gypsy moth, and restrict the 
interstate movement of certain articles from generally infested areas 
in the quarantined States to prevent the artificial spread of the gypsy 
moth.
    In accordance with Sec. 301.45-2 of the regulations, generally 
infested areas are, with certain exceptions, those areas in which a 
gypsy moth general infestation has been found by an inspector, or each 
portion of a State which the Administrator deems necessary to regulate 
because of its proximity to infestation or its inseparability for 
quarantine enforcement purposes from infested localities. Less than an 
entire State will be designated as a generally infested area only if: 
(1) The State has adopted and is enforcing a quarantine or regulation 
which imposes restrictions on the intrastate movement of the regulated 
articles which are substantially the same as those which are imposed 
with respect to the interstate movement of such articles; and, (2) the 
designation of less than the entire State as a generally infested area 
will be adequate to prevent the artificial interstate spread of 
infestations of the gypsy moth.

Designation of Areas as Generally Infested Areas

    We are amending Sec. 301.45-3(a) of the regulations, which lists 
generally infested areas, by adding Carroll, Cuyahoga, Jefferson, 
Lucas, Portage, Stark, and Summit Counties in Ohio, and Bath, 
Greensville and Highland Counties and the city of Emporia in Virginia 
to the list of generally infested areas.
    We are taking this action because surveys conducted by the United 
States Department of Agriculture (USDA) resulted in the detection of 
all life stages of the gypsy moth and the determination that 
reproducing populations do exist at significant levels in these areas. 
Eradication of these populations is not considered feasible because 
these areas are immediately adjacent to areas currently recognized to 
be generally infested and therefore subject to continued reinfestation.

Removal of Areas From List of Generally Infested Areas

    We are also amending Sec. 301.45-3(a) by removing Franklin County 
in Virginia from the list of generally infested areas.
    We are taking this action because Franklin County was previously 
listed in error. There is no basis for listing this area as a generally 
infested area. This action removes unnecessary restrictions on the 
interstate movement of regulated articles from this area. A map 
designating the regulated areas is as follows:

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TR13SE94.000


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Emergency Action

    The Administrator of the Animal and Plant Health Inspection Service 
has determined that an emergency exists that warrants publication of 
this interim rule without prior opportunity for public comment. 
Immediate action is necessary because of the possibility that the gypsy 
moth could be spread artificially to noninfested areas of the United 
States, where it could cause economic loss due to defoliation of 
susceptible forest areas. Also, where gypsy moth no longer occurs, 
immediate action is needed to delete unnecessary restrictions on the 
interstate movement of regulated articles.
    Because prior notice and other public procedures with respect to 
this action are impracticable and contrary to the public interest under 
these conditions, we find good cause under 5 U.S.C. 553 to make it 
effective upon publication in the Federal Register. We will consider 
comments that are received within 60 days of publication of this rule 
in the Federal Register. After the comment period closes, we will 
publish another document in the Federal Register. It will include a 
discussion of any comments we receive and any amendments we are making 
to the rule as a result of the comments.

Executive Order 12866 and Regulatory Flexibility Act

    This interim rule has been reviewed under Executive Order 12866. 
For this action, the Office of Management and Budget has waived its 
review process required by Executive Order 12866.
    This action affects the interstate movement of regulated articles 
and outdoor household articles from and through gypsy moth regulated 
areas in Ohio and Virginia. There are several types of restrictions 
that will apply to the newly-listed areas in these States. These 
restrictions will have their primary impact on persons moving 
households, nursery stock, logs and wood chips, and mobile homes out of 
a generally infested area.
    Individual and commercial movers moving outdoor household articles 
(OHA) to areas outside the generally infested area must attach to the 
articles either a certificate issued by an inspector, or an OHA 
document issued by the owner of the articles. Most individual 
homeowners moving their own articles who comply with the regulations 
choose to self-inspect and issue an OHA document. This takes a few 
minutes and involves no monetary cost. Individuals may also have State 
certified pesticide applicators, trained by the State or USDA, inspect 
and issue certificates.
    Persons moving regulated articles from a generally infested area 
(significant examples include logs, pulpwood and wood chips; mobile 
homes; and nursery stock) must obtain a certificate or limited permit 
to move the articles. There is one exception to this requirement, for 
logs, pulpwood and wood chips. This exception allows the person moving 
such articles to self-certify on the waybill that he or she has 
inspected the articles. This exception minimizes costs with regard to 
logs, pulpwood, and wood chips.
    Persons moving mobile homes and nursery stock must obtain a 
certificate or limited permit. They may obtain one from an inspector, 
or a qualified certified applicator. Inspectors will issue these 
documents at no charge, but costs may result from delaying the movement 
of commercial articles while waiting for the inspection. Documents 
self-issued under a compliance agreement avoid this delay costs, but 
result in costs associated with salary and recordkeeping for the self-
inspections.
    When inspection of regulated articles or outdoor household articles 
reveals gypsy moth, treatment is often necessary. Treatment is done by 
qualified certified applicators, which are private businesses that 
charge, on the average, $50 to $100 to treat a shipment of articles. 
Most qualified certified applicators are small businesses. By declaring 
an area as a generally infested area, the regulations may increase 
business for the qualified certified applicator located in generally 
infested areas. It is estimated that these businesses will average $50 
to $150 per month in additional income per business. Since the seven 
counties in Ohio to be regulated contain the metropolitan areas of 
Akron, Cleveland, and Toledo, we expect that several hundred shipments 
containing outdoor household articles will require inspection to move 
out of the generally infested area. We anticipate training up to 24 
qualified certified applicators to perform these inspections.
    The majority of direct costs from this rule would be incurred by 
establishments moving trees or shrubs with roots, such as nurseries. We 
estimate that approximately 130 such establishments move approximately 
1,050 shipments of trees and shrubs each year to areas outside the 
generally infested areas. All of these establishments are believed to 
be small entities. These establishments would need to be inspected, 
either by an inspector or through self-inspection under a compliance 
agreement. If the inspection reveals signs of gypsy moth, the 
establishment would have to be treated in order to ship regulated 
articles outside the generally infested area. We estimate that 
annually, approximately 10 percent of these establishments (13 
establishments) will be required to treat the establishment, and that 
the average area to be treated will be 17 acres. At an average 
treatment cost of $10 per acre, the average total annual cost to each 
establishment would be $170.
    The Christmas tree industry would also be impacted by this rule 
change, since Christmas trees moved interstate from generally infested 
areas to areas not generally infested would have to be moved under a 
certificate or permit. We estimate that there are about 5 Christmas 
tree producers in the generally infested areas who ship approximately 
100 trees each year to nonregulated areas. All of these establishments 
are believed to be small entities. Services of an inspector will be 
available without charge to inspect the premises and issue certificates 
and permits. We estimate that 10 percent of these premises will be 
found to contain gypsy moth, and will require treatment in order to 
ship trees. The average area to be treated is estimated to be 80 acres, 
and treatment costs are estimated to average $10 per acre. Therefore, 
we estimate that the total annual treatment costs for one Christmas 
tree producer would be approximately $800.
    It is expected that, in most cases, Christmas tree growers would 
meet the requirements for certification by having inspectors determine 
that the plantations where the trees are grown are free from gypsy 
moth. This alternative would be less costly than inspecting or treating 
individual shipments of trees and would minimize the economic impact of 
the change to the regulations.
    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.)

Executive Order 12778

    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in Secs. 301.45 through 301.45-12 have been approved by the 
Office of Management and Budget (OMB), and there are no new 
requirements. The assigned OMB control number is 0579-0088.

List of Subjects in 7 CFR Part 301

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

    Accordingly, 7 CFR part 301 is amended to read as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 continues to read as 
follows:

    Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and 
164-167; 7 CFR 2.17, 2.51, and 371.2(c).


Sec. 301.45  [Amended]

    2. In Sec. 301.45-3(a), the list of generally infested areas in 
Virginia is amended by removing ``Franklin County. The entire county.''
    3. In Sec. 301.45-3(a), the list of generally infested areas in 
Ohio and Virginia is amended by adding, in alphabetical order, the 
following entries:


Sec. 301.45-3  Generally infested areas.

* * * * *
Ohio
* * * * *
Carroll County. The entire county.
* * * * *
Cuyahoga County. The entire county.
* * * * *
Jefferson County. The entire county.
* * * * *
Lucas County. The entire county.
* * * * *
Portage County. The entire county.
Stark County. The entire county.
Summit County. The entire county.
* * * * *
Virginia
* * * * *
City of Emporia. The entire city.
* * * * *
Bath County. The entire county.
* * * * *
Greensville County. The entire county.
* * * * *
Highland County. The entire county.
* * * * *


Secs. 301.45-5, 301.45-6, 301.45-8, and 301.45-12  [Amended]

    4. Sections 301.45-5, 301.45-6, 301.45-8, and 301.45-12 are amended 
by revising the OMB control number citation at the end of each of these 
sections to read as follows: ``(Approved by the Office of Management 
and Budget under control number 0579-0088)''.

    Done in Washington, DC, this 7th day of September 1994.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 94-22610 Filed 9-12-94; 8:45 am]
BILLING CODE 3410-34-P