Gypsy Moth Generally Infested Areas

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]

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