[Federal Register Volume 69, Number 191 (Monday, October 4, 2004)]
[Rules and Regulations]
[Pages 59119-59120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22221]



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 Rules and Regulations
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  Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules 
and Regulations  

[[Page 59119]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 04-025-2]


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 gypsy moth regulations by adding one county in 
Ohio and seven counties in Wisconsin to the list of generally infested 
areas based on the detection of infestations of gypsy moth in those 
counties. As a result of the interim rule, the movement of regulated 
articles from those areas is restricted. The interim rule was necessary 
to prevent the artificial spread of gypsy moth to noninfested areas of 
the United States.

DATES: Effective Date: The interim rule became effective on June 7, 
2004.

FOR FURTHER INFORMATION CONTACT: Dr. Weyman Fussell, Program Manager, 
Pest Detection and Management Programs, PPQ, APHIS, 4700 River Road 
Unit 134, Riverdale, MD 20737-1231; (301) 734-5705.

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 regulated articles from generally 
infested areas to prevent the artificial spread of the gypsy moth.
    In an interim rule effective and published in the Federal Register 
on June 7, 2004 (69 FR 31722-31723, Docket No. 04-025-1), we amended 
the regulations by adding one county in Ohio and seven counties in 
Wisconsin to the list of generally infested areas in Sec.  301.45-3.
    Comments on the interim rule were required to be received on or 
before August 6, 2004. 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 its review under Executive Order 12866.

Regulatory Flexibility Act

    This rule affirms an interim rule that amended the regulations by 
adding one county in Ohio and seven counties in 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 areas of the United States.
    The following analysis addresses the economic effects of the 
interim rule on small entities, as required by the Regulatory 
Flexibility Act.
    The interim rule placed restrictions on the movement of regulated 
articles and outdoor household articles (OHAs) from and through the one 
county in Ohio and the seven counties in Wisconsin that were designated 
as generally infested areas. These restrictions will have their primary 
effect on persons moving OHAs, nursery stock, Christmas trees, logs and 
wood chips, and mobile homes from a generally infested area into or 
through any area that is not generally infested.
    Under the regulations, OHAs may not be moved 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 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 unless treatment is necessary. Individuals 
may also have State-certified pesticide applicators, trained by the 
State or the U.S. Department of Agriculture (USDA), inspect and issue 
certificates.
    Generally, regulated articles (such as logs, pulpwood, wood chips, 
mobile homes, nursery stock, OHAs, and Christmas trees) may only be 
moved 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 signed accurate 
statement to the waybill as specified in the Gypsy Moth Program Manual, 
stating that he or she has inspected the articles and has found them 
free of all life stages of the gypsy moth. This exception minimizes the 
costs of moving logs, pulpwood, and wood chips. Regulated articles may 
also be moved 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 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 
the movement of mobile homes from a generally infested area may also be 
obtained from qualified certified applicators.
    When inspection of regulated articles or OHAs reveals the presence 
of gypsy moths, treatment is often necessary in order for the articles 
to be eligible for movement into or through noninfested areas. The 
preferred treatment, scraping egg masses and spraying caterpillars, 
costs an average of $10 to $30 per shipment. Fumigation is another 
alternative, but it is more expensive, at $100 to $150 per shipment, 
and may damage the shipment. Treatment is done by qualified certified 
applicators, most of which are small businesses. These businesses might 
experience a

[[Page 59120]]

small increase in income as a result of the interim rule.
    Nurseries and Christmas tree growers that move a substantial number 
of shipments from the generally infested areas would be able to 
minimize treatment costs by treating their premises for gypsy moths 
under a compliance agreement with APHIS. These treatments cost 
businesses between $10 and $20 per acre. This alternative allows 
nurseries and Christmas tree growers to issue their own certificates 
provided they are under a compliance agreement and is less costly than 
treating individual shipments. The entities most likely to choose this 
option are nurseries that move a substantial number of shipments from 
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 treat their premises under this 
option, would receive certification for each shipment from an 
inspector.
    The economic impact of the interim rule will vary depending on the 
size of the entities affected, the levels of infestation, and the size 
and number of shipments to noninfested areas. Within the one Ohio 
county and seven Wisconsin counties added to the list of generally 
infested areas, there are approximately 450 Christmas tree growers, 
nurseries, loggers, sawmills, and individuals involved in the movement 
of regulated articles that may incur costs from the interim rule. 
According to the size standards established by the Small Business 
Administration, all of these businesses are considered small entities.
    In Hocking County, the newly regulated county in Ohio, there are 25 
potentially affected establishments. The value of Christmas tree and 
greenhouse/nursery products sold by these establishments in 2002 was 
$541,000, which represents 0.12 percent of the total value of sales of 
these products in Ohio. These businesses annually ship about 400 
shipments, of which approximately half, or 200 shipments, leave the 
regulated area. Approximately 58 percent of the shipments leaving the 
regulated area would require treatment, creating an approximate cost 
range of $11,600 to $17,400 annually. Given these estimates, the cost 
of additional treatments would be small relative to the total value of 
sales in Hocking County.
    There are 425 potentially affected establishments in the seven 
Wisconsin counties. The value of Christmas tree and greenhouse/nursery 
products sold by these establishments in 2002 was $25.546 million, 
which represents approximately 11.57 percent of the total value of 
sales of these products in Wisconsin. These businesses annually ship 
about 2,150 shipments, of which approximately 34 percent, or 723 
shipments, leave the regulated area. Only about 16 percent of the 
shipments from these areas would require treatment, with costs of 
approximately $11,568 to $17,352 annually. With these estimates, the 
cost of additional treatments would be very small relative to the total 
value of sales in the newly affected Wisconsin counties.
    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 resulting from the further 
spread of the pest. Since the total value of the regulated articles 
moved from infested to noninfested areas is a small fraction of the 
national total, the effect on national prices is expected to be slight. 
Additionally, since the rule is not prohibitive, articles that meet the 
requirements of the regulations would continue to enter the market. 
Therefore, 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 Services has determined that this action will 
not have a significant 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

0
Accordingly, we are adopting as a final rule, without change, the 
interim rule that amended 7 CFR part 301 and that was published at 69 
FR 31722-31723 on June 7, 2004.

    Authority: 7 U.S.C. 7701-7772; 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 28th day of September 2004.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 04-22221 Filed 10-1-04; 8:45 am]
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