[Federal Register Volume 67, Number 73 (Tuesday, April 16, 2002)]
[Rules and Regulations]
[Pages 18464-18466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9210]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 01-049-2]


Gypsy Moth Generally Infested Areas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Affirmation of interim rule as final rule.

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SUMMARY: We are adopting as a final rule, without change, an interim 
rule that amended the regulations by adding counties in Illinois, 
Indiana, Michigan, Ohio, West Virginia, and Wisconsin to the list of 
generally infested areas. As a result of the interim rule, the 
interstate movement of certain articles from those areas is restricted. 
The interim rule was necessary to prevent the artificial spread of the 
gypsy moth to noninfested States.

EFFECTIVE DATE: The interim rule became effective on July 17, 2001.

FOR FURTHER INFORMATION CONTACT: Mr. Jonathan Jones, Operations 
Officer, Invasive Species and Pest Management, PPQ, APHIS, 4700 River 
Road Unit 134, Riverdale, MD 20737-1236, (301) 734-8247.

SUPPLEMENTARY INFORMATION:

Background

    The gypsy moth, Lymantria dispar (Linnaeus), is a destructive pest 
of forest and shade trees. The gypsy moth regulations (contained in 7 
CFR 301.45 through 301.45-12 and referred to below as the regulations) 
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 an interim rule effective and published in the Federal Register 
on July 17, 2001 (66 FR 37113-37114, Docket No. 01-049-1), we amended 
the regulations in Sec. 301.45-3 by adding counties in Illinois, 
Indiana, Michigan, Ohio, West Virginia, and Wisconsin to the list of 
generally infested areas. We also made nonsubstantive amendments in the 
entries for Maine, Virginia, West Virginia, and Wisconsin to address 
inconsistencies in the county listings and to correct misspellings.
    Comments on the interim rule were required to be received on or 
before September 17, 2001. We did not receive any comments. Therefore, 
for the reasons given in the interim rule, we are adopting the interim 
rule as a final rule.
    This action also affirms the information contained in the interim 
rule concerning Executive Orders 12866, 12372, and 12988 and the 
Paperwork Reduction Act.
    Further, for this action, the Office of Management and Budget has 
waived the review process required by Executive Order 12866.

Regulatory Flexibility Act

    This rule affirms an interim rule that amended the regulations by 
adding counties in Illinois, Indiana, Michigan, Ohio, West Virginia, 
and Wisconsin to the list of generally infested areas. As a result of 
the interim rule, the interstate movement of certain articles from 
those areas is restricted. The interim rule was necessary to prevent 
the artificial spread of the gypsy moth to noninfested States.
    The following analysis addresses the economic effect of the interim 
rule on small entities, as required by the Regulatory Flexibility Act.
    The interim rule placed restrictions on the interstate movement of 
regulated articles and outdoor household articles (OHA's) from and 
through those areas in Illinois, Indiana, Michigan, Ohio, West 
Virginia, and Wisconsin that were designated as generally infested 
areas. These restrictions will have their primary effect on persons 
moving OHA's, nursery stock, Christmas trees, logs and wood chips, and 
mobile homes interstate from a generally infested area into or through 
any area that is not generally infested.
    Under the regulations, OHA's may not be moved interstate from a 
generally infested area into or through a noninfested area unless they 
are accompanied by either a certificate issued by an inspector or an 
OHA document issued by the owner of the articles, attesting to the 
absence of all life stages of the gypsy moth. 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 U.S. 
Department of Agriculture (USDA), inspect and issue certificates.
    Generally, regulated articles (such as logs, pulpwood, wood chips, 
mobile homes, nursery stock, and Christmas trees) may only be moved 
interstate from a generally infested area if they are accompanied by a 
certificate or limited permit issued by an inspector. However, logs, 
wood chips, and pulpwood may be moved without a certificate or limited 
permit if the person moving the articles attaches a statement to the 
waybill stating that he or she has inspected the articles and has found 
them free of all

[[Page 18465]]

life stages of the gypsy moth. This exception minimizes the costs of 
moving logs, pulpwood, and wood chips interstate. Regulated articles 
may also be moved interstate from a generally infested area without a 
certificate if they are moved by the USDA for experimental or 
scientific purposes and they are accompanied by a permit issued by the 
Administrator of the Animal and Plant Health Inspection Service 
(APHIS).
    Persons moving regulated articles interstate from a generally 
infested area may obtain a certificate or limited permit 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. 
Certificates for interstate movement of mobile homes from a generally 
infested area may also be obtained from qualified certified 
applicators.
    When inspection of regulated articles or OHA's reveals the presence 
of gypsy moth, treatment is often necessary. The preferred treatment, 
scraping egg masses and spraying caterpillars, costs $10 to $30 per 
shipment on average. Fumigation is another alternative, but it is more 
expensive, at $75 to $100 per shipment, and it may damage the shipment. 
Treatment is done by qualified certified applicators, most of which are 
small businesses. These businesses might experience a slight increase 
in income as a result of the interim rule.
    Nurseries and Christmas tree growers that move a substantial number 
of shipments interstate from the generally infested areas would be able 
to minimize treatment costs by treating their premises for gypsy moths 
under a compliance agreement with USDA. These treatments cost 
businesses between $10 and $20 per acre. This alternative enables 
nurseries and Christmas tree growers to issue their own certificates 
for interstate shipments and is less costly than treating individual 
shipments. The entities that would be most likely to choose this 
alternative are nurseries that move a substantial number of shipments 
interstate from the generally infested areas and that treat their 
premises for other pests in addition to the gypsy moth. Producers that 
do not operate under a compliance agreement with APHIS, but that treat 
their premises under this option, would receive certification for each 
shipment from an inspector.
    There are approximately 178 newly regulated nurseries and Christmas 
tree growers that will incur costs from the interim rule. According to 
the size standards established by the Small Business Administration, 
the vast majority of these businesses are small entities.
    The economic impact will vary by the size of the entities 
regulated, the levels of infestation, and the size and number of 
shipments to noninfested areas. There are 13 newly regulated Christmas 
tree growers in Illinois and 3 newly regulated Christmas tree growers 
in Indiana. Only about 10 percent of the shipments leave the regulated 
area from these establishments. Approximately 5 percent of the 
shipments from these establishments would require treatment at a cost 
of about $45 per shipment. The cost of a small number of treatments 
would be small relative to the value of sales at these establishments. 
For example, the average farm selling cut Christmas trees in Indiana 
had sales of $16,332 in 1997, according to the 1997 Census of 
Agriculture.
    There are five newly regulated Christmas tree growers in Michigan. 
There were 830 commercial Christmas tree growers in 1999 with at least 
5 acres of trees. The five newly regulated establishments represent 0.6 
percent of the total Christmas tree growers in Michigan. Approximately 
66 percent of Michigan Christmas trees are sent out of State, although 
not all of these shipments would be to destinations outside the 
regulated area. It is not known what percentage of shipments from the 
five newly regulated establishments would be to destinations outside 
the regulated area. None of the six affected counties have large 
Christmas tree operations. Treatment costs would be similar to the 
costs incurred in other States, about $45 per shipment. The cost of any 
additional treatments needed would be small relative to the value of 
sales at these establishments. Christmas tree sales in Michigan were 
valued at $41.0 million (wholesale value) in 1999, an average of 
$49,397 per operation. Because inspections will still be needed on 
shipments leaving the regulated area, time, salary, and recordkeeping 
costs for self-inspections under compliance agreements will still be 
incurred. In addition, nurseries and Christmas tree growers will incur 
a $30 per acre inspection fee specifically for inspections, which are a 
State licensing requirement. This inspection fee represents about 1.5 
percent of the average per-acre dollar value of sales of harvested cut 
Christmas trees in Michigan in 1997.
    There are 66 newly regulated Christmas tree growers in Ohio. While 
the number of shipments that will require treatment is unknown, any 
treatments that do occur will likely cost around $50 per shipment. The 
average farm selling cut Christmas trees in Ohio had sales of $22,505 
in 1997, according to the 1997 Census of Agriculture.
    There are 38 newly regulated establishments in West Virginia (7 
nurseries and 31 Christmas tree growers). Both nurseries and cut 
Christmas tree farms in West Virginia had average sales of less than 
$20,000 in 1997.
    There are 53 newly regulated establishments in Wisconsin (28 
nurseries and 25 Christmas tree growers). It is estimated that these 
establishments make 34 shipments of nursery stock and 12 shipments of 
Christmas trees annually. However, few, if any, of these shipments 
leave the regulated area. Therefore, there should be no additional 
costs for these establishments as a result of the interim rule.
    The regulatory requirements imposed by the interim rule are 
expected to cause a slight increase in costs for the affected entities. 
The relative negative impact that may result from the interim rule is 
very small when compared with the potential for harm to related 
industry and the U.S. economy as a whole that would result from the 
further spread of the pest. Since the total value of the regulated 
articles moved from infested areas to noninfested areas is a small 
fraction of the national total, the effect on national prices is 
expected to be very small. Additionally, since the rule is not 
prohibitive, articles that meet the requirements of the regulations 
would continue to enter the market. Thus, the overall impact upon price 
and competitiveness is expected to be relatively insignificant.
    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.

List of Subjects in 7 CFR Part 301

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

PART 301--DOMESTIC QUARANTINE NOTICES

    Accordingly, we are adopting as a final rule, without change, the 
interim rule that amended 7 CFR part 301 and that was published at 66 
FR 37113-37114 on July 17, 2001.


[[Page 18466]]


    Authority: 7 U.S.C. 166, 7711, 7712, 7714, 7731, 7735, 7751, 
7752, 7753, and 7754; 7 CFR 2.22, 2.80, and 371.3.
    Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also 
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 
U.S.C. 1421 note).

    Done in Washington, DC, this 11th day of April 2002.
Bobby R. Acord,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 02-9210 Filed 4-15-02; 8:45 am]
BILLING CODE 3410-34-U