[Federal Register Volume 72, Number 239 (Thursday, December 13, 2007)]
[Rules and Regulations]
[Pages 70763-70765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24176]



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  Federal Register / Vol. 72, No. 239 / Thursday, December 13, 2007 / 
Rules and Regulations  

[[Page 70763]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2006-0075]
RIN 0579-AC46


Gypsy Moth Regulations; Updates and Clarifications

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the gypsy moth regulations by making editorial 
and nonsubstantive changes to several terms and providing necessary 
updates throughout the regulations. These actions will improve the 
clarity and consistency of the regulations while continuing to provide 
protection against the artificial spread of gypsy moth into noninfested 
areas of the United States.

EFFECTIVE DATE: January 14, 2008.

FOR FURTHER INFORMATION CONTACT: Mr. Weyman Fussell, Program Manager, 
Emergency and Domestic Programs, PPQ, APHIS, 4700 River Road Unit 134, 
Riverdale, MD 20737-1236; (301) 734-5705.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Gypsy Moth'' (7 CFR 301.45 through 
301.45-12, referred to below as the regulations) restrict the 
interstate movement of regulated articles from generally infested areas 
of States quarantined for gypsy moth in order to prevent the artificial 
spread of gypsy moth into noninfested areas of the United States.
    On July 17, 2007, we published in the Federal Register (72 FR 
39018-39021, Docket No. APHIS-2006-0075) a proposal \1\ to amend the 
regulations by making editorial and nonsubstantive changes to several 
terms and providing necessary updates throughout the regulations.
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    \1\ To view the proposed rule, go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0075.
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    We solicited comments concerning our proposal for 60 days ending 
September 17, 2007. We did not receive any comments. Therefore, for the 
reasons given in the proposed rule, we are adopting the proposed rule 
as a final rule, without change.

Executive Order 12866 and Regulatory Flexibility Act

    This 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.
    We are amending the gypsy moth regulations by making editorial and 
nonsubstantive changes to several terms and providing necessary updates 
throughout the regulations. These actions improve the clarity and 
consistency of the regulations, while continuing to provide protection 
against the artificial spread of gypsy moth into noninfested areas of 
the United States.
    The gypsy moth is a pest of concern for the U.S. forest industry. 
Defoliation of trees by gypsy moths often results in the death of the 
trees, which leads to economic loss, changes in ecosystems and wildlife 
habitat, and disturbed water flow and water quality. Economic costs to 
the U.S. forest industry, in addition to the costs of timber losses and 
pest control, can also arise from trade reductions as importing 
countries impose protective restrictions on access to their markets for 
wood products. Gypsy moths are already causing losses in quarantined 
areas in the United States. Annual losses attributable to gypsy moths 
are estimated to be about $22 million.\2\ Any spread of gypsy moth to 
noninfested areas could have a negative economic and environmental 
impact.
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    \2\ David Pimentel, Lori Latch, Rodolfo Zuniga, and Doug 
Morrison, ``Environmental and Economic Costs Associated with Non-
indigenous Species in the United States,'' College of Agriculture 
and Life Sciences, Cornell University, Ithaca, NY 14850-0901, June 
12, 1999.
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    The Small Business Administration (SBA) has established size 
standards based on the North American Industry Classification System 
(NAICS) to determine and to classify which economic entities can be 
considered small entities. Entities potentially affected by our gypsy 
moth regulations include sawmills, pulp mills, nursery and tree 
production farms, and nursery and garden centers that are involved in 
the interstate movement of Christmas trees, nursery products, household 
products, and bark and bark products from gypsy moth generally infested 
areas. Any effects on these entities resulting from these updates to 
the regulations would be positive.
    The SBA classifies nursery and tree production (floriculture, 
nursery, Christmas trees, etc.) farms (NAICS code 111421) as small if 
their annual receipts are not more than $750,000.\3\ Sawmills (NAICS 
code 321113) are regarded as small if they employ 500 or fewer 
employees, and pulp mills (NAICS code 322110) are small if they employ 
750 or fewer employees. Nursery and garden centers (NAICS code 444220) 
are considered small if their annual sales are less than $6.5 million. 
In 2002, the most recent year for which data are available, there were 
17,300 nursery and tree production farms, 1,215 sawmills, 7 pulp mills, 
and 4,093 nursery and garden centers in generally infested areas of the 
United States.\4\ Approximately 93 percent of all these entities are 
considered to be small under the SBA's standards. Although the majority 
of these establishments are small entities, any economic effect 
resulting from the changes in this rule would be negligible. The 
changes in this final rule will not impose additional restrictions or 
requirements; rather, they will help ensure that the existing 
regulations are as up to date, clear, consistent, and as flexible as 
possible.
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    \3\ SBA, Small Business Size Standards matched to North American 
Industry Classification System 2002, Effective January 2006 (http://www.sba.gov/size/sizetable2002.html).
    \4\ U.S. Census Bureau, 2002 Economic Census Geographic Area 
Series: Manufacturing and Wholesale Trade, Revised January 2006 
(http://www.census.gov/prod/ec02/ec0231sq1t.pdf). Information on the 
number of sawmills, pulp mills, and nursery and garden centers is 
available at the State level only. County information is withheld to 
avoid disclosing data for individual establishments. This may result 
in an overestimate of the number of affected entities because not 
all counties within quarantined States are in generally infested 
areas.
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    Under these circumstances, the Administrator of the Animal and 
Plant

[[Page 70764]]

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 12988

    This final rule has been reviewed under Executive Order 12988, 
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

    This final rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 301

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

0
Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
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).


0
2. Section 301.45-1 is amended as follows:
0
a. By adding a definition of OHA document, and by revising the 
definitions of certificate, compliance agreement, and limited permit to 
read as set forth below.
0
b. In the definition of inspector, by adding a new second sentence to 
read as set forth below.
0
c. In the definition of qualified certified applicator, by removing the 
citation ``86 Stat. 983; 7 U.S.C. 136b'' and adding the citation ``7 
U.S.C. 136i'' in its place, by adding the word ``use'' before the word 
``pesticides'', and by revising footnote 1 to read as set forth below.
0
d. In the definition of treatment manual, by revising footnote 2 to 
read as set forth below.


Sec.  301.45-1  Definitions.

* * * * *
    Certificate. A Plant Protection and Quarantine-approved form, 
stamp, or document issued and signed by an inspector, or by a qualified 
certified applicator or by any other person operating in accordance 
with a compliance agreement, affirming that a specified regulated 
article is eligible for interstate movement in accordance with this 
subpart.
    Compliance agreement. A written agreement between APHIS and a 
person engaged in growing, handling, or moving regulated articles, in 
which the person agrees to comply with the provisions of this subpart.
* * * * *
    Inspector. * * * A person operating under a compliance agreement is 
not an inspector.
* * * * *
    Limited permit. A document in which an inspector or a person 
operating under a compliance agreement affirms that the regulated 
article identified on the document is eligible for interstate movement 
in accordance with Sec.  301.45-5 only to the specified destination and 
only in accordance with the specified conditions.
* * * * *
    OHA document. The self-inspection checklist portion of USDA-APHIS 
Program Aid Number 1329, ``Don't Move Gypsy Moth,'' completed and 
signed by the owner of an outdoor household article (OHA) affirming 
that the owner has inspected the OHA for life stages of gypsy moth in 
accordance with the procedures in the program aid.
* * * * *
    Qualified certified applicator. * * * 1

--------------
    1 Names of qualified certified applicators may be 
obtained from State departments of agriculture.
* * * * *
    Treatment manual. * * * 2

--------------
    2 The Gypsy Moth Program Manual may be viewed on the 
Internet at http://www.aphis.usda.gov/ppq/manuals/online_manuals.html.
* * * * *

0
3. In Sec.  301.45-2, paragraph (a)(1) is revised to read as follows:


Sec.  301.45-2  Authorization to designate and terminate designation of 
generally infested areas.

    (a) * * *
    (1) The area is subject to a gypsy moth eradication program 
conducted by the Federal government or a State government in accordance 
with the Eradication, Suppression, and Slow the Spread alternative of 
the Final Environmental Impact Statement (FEIS) on Gypsy Moth 
Suppression and Eradication Projects that was filed with the United 
States Environmental Protection Agency on January 16, 1996; and,
* * * * *

0
4. In Sec.  301.45-4, paragraph (b) is amended by revising the last 
sentence to read as follows:


Sec.  301.45-4  Conditions governing the interstate movement of 
regulated articles and outdoor household articles from generally 
infested areas.

* * * * *
    (b) * * * The articles must be safeguarded by a covering adequate 
to prevent access by any gypsy moth life stages.
* * * * *

0
5. In Sec.  301.45-7, a new sentence is added after the last sentence 
to read as follows:


Sec.  301.45-7  Assembly and inspection of regulated articles and 
outdoor household articles.

    * * * An owner who wants to move outdoor household articles 
interstate may self-inspect the articles and issue an OHA document in 
accordance with Sec.  301.45-5(e).


Sec.  301.45-8  [Amended]

0
6. In Sec.  301.45-8, paragraph (c) is amended by removing the words 
``officer in charge'' and adding the words ``State Plant Health 
Director'' in their place.

0
7. Section 301.45-12 is amended as follows:
0
a. By revising paragraph (a)(1) to read as set forth below.
0
b. In paragraph (a)(2), by removing the word ``; or,'' from the end of 
the sentence and adding the words ``or with stipulations agreed on in 
the compliance agreement between the certified applicator and the 
Administrator.'' in its place.
0
c. By removing paragraph (a)(3).


Sec.  301.45-12  Disqualification of qualified certified applicator to 
issue certificates.

    (a) * * *
    (1) Such person is not certified by a State and/or the Federal 
government as a commercial certified applicator under the Federal 
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136i) in a 
category allowing the application of restricted use pesticides.
* * * * *


[[Page 70765]]


    Done in Washington, DC, this 7th day of December 2007.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E7-24176 Filed 12-12-07; 8:45 am]
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