Gypsy Moth Generally Infested Areas

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 97-038-2]

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 gypsy moth quarantine and regulations by

adding areas in Ohio and West Virginia to the list of generally

infested areas. These changes affect six areas in Ohio and five areas

in West 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.

DATES: Interim rule effective July 9, 1997. Consideration will be given

only to comments received on or before September 8, 1997.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 97-038-2, Regulatory Analysis and Development, PPD, APHIS,

Suite 3C03, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please

state that your comments refer to Docket No. 97-038-2. 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: Ms. Coanne E. O'Hern, Operations

Officer, Domestic and Emergency Programs, PPQ, APHIS, suite 4C10, 4700

River Road Unit 134, Riverdale, MD 20737-1236, (301) 734-8247, or e-

mail [email protected].

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), 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 Belmont, Coshocton, Harrison,

Holmes, Monroe, and Tuscarawas Counties in Ohio; and Doddridge,

Harrison, Lewis, Tyler, and Upshur Counties in West Virginia to the

list of generally infested areas.

We are taking this action because, in cooperation with the States,

the United States Department of Agriculture conducted surveys that

detected all life stages of the gypsy moth in these areas. Based on

these surveys, we determined that reproducing populations 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.

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 and shade trees.

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 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 amends the list of generally infested areas under the

gypsy moth quarantine and regulations by adding areas in Ohio and West

Virginia. Immediate action is necessary in order to prevent the

artificial spread of gypsy moth to noninfested areas of the United

States.

This emergency situation makes compliance with section 603 and

timely compliance with section 604 of the Regulatory Flexibility Act (5

U.S.C. 601 et seq.) impracticable. If we determine that this rule would

have a significant economic impact on a substantial number of small

entities, then we will discuss the issues raised by section 604 of the

Regulatory Flexibility Act in our Final Regulatory Flexibility

Analysis.

[[Page 36646]]

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 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 rule contains no 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.

Accordingly, 7 CFR part 301 is amended as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

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

follows:

Authority: 7 U.S.C. 147a, 150bb, 150dd, 150ee, 150ff, 161, 162,

and 164-167; 7 CFR 2.22, 2.80, and 371.2(c).

2. In Sec. 301.45-3, paragraph (a) is amended by adding areas in

the entries for Ohio and West Virginia, in alphabetical order, to read

as follows:

Sec. 301.45-3 Generally infested areas.

(a) * * *

Ohio

* * * * *

Belmont County. The entire county.

* * * * *

Coshocton County. The entire county.

* * * * *

Harrison County. The entire county.

Holmes County. The entire county.

* * * * *

Monroe County. The entire county.

* * * * *

Tuscarawas County. The entire county.

* * * * *

West Virginia

* * * * *

Doddridge County. The entire county.

* * * * *

Harrison County. The entire county.

* * * * *

Lewis County. The entire county.

* * * * *

Tyler County. The entire county.

Upshur County. The entire county.

* * * * *

Done in Washington, DC, this 1st day of July 1997.

Craig A. Reed,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 97-17863 Filed 7-8-97; 8:45 am]

BILLING CODE 3410-34-P