[Federal Register Volume 72, Number 136 (Tuesday, July 17, 2007)]
[Proposed Rules]
[Pages 39018-39021]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-13774]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 72, No. 136 / Tuesday, July 17, 2007 / 
Proposed Rules

[[Page 39018]]



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: Proposed rule.

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SUMMARY: We are proposing to amend the gypsy moth regulations by making 
editorial and nonsubstantive changes to several terms and providing 
necessary updates throughout the regulations. These actions would 
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.

DATES: We will consider all comments that we receive on or before 
September 17, 2007.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov, select ``Animal and Plant Health Inspection 
Service'' from the agency drop-down menu, then click ``Submit.'' In the 
Docket ID column, select APHIS-2006-0075 to submit or view public 
comments and to view supporting and related materials available 
electronically. Information on using Regulations.gov, including 
instructions for accessing documents, submitting comments, and viewing 
the docket after the close of the comment period, is available through 
the site's ``User Tips'' link.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. APHIS-
2006-0075, Regulatory Analysis and Development, PPD, APHIS, Station 3A-
03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. APHIS-2006-0075.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

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.
    The gypsy moth, Lymantria dispar (Linnaeus), is an introduced, 
highly destructive pest of trees that, during its caterpillar stage, 
poses a serious threat to hundreds of species of trees and shrubs. A 
female gypsy moth lays a cluster of eggs (called an egg mass) on and 
near trees. Up to a thousand caterpillars can hatch from a single egg 
mass. The caterpillars feed on nearby trees and shrubs, removing much, 
if not all, foliage. This defoliation, when combined with other forms 
of stress such as drought and soil compaction, may ultimately result in 
the death of the tree.
    The first major outbreak of gypsy moth in the United States 
occurred in Massachusetts in 1889. Since then, the gypsy moth has 
infested 19 States and the District of Columbia and has defoliated 
thousands of acres of hardwood forests across the northeastern United 
States. The infestation continues to move south and west despite 
ongoing eradication and control efforts.
    We are proposing to amend the regulations by making editorial and 
nonsubstantive changes to several terms and providing necessary updates 
throughout the regulations. These actions would improve the clarity and 
consistency of the regulations, while continuing to provide protection 
against the spread of gypsy moth into noninfested areas of the United 
States.

Definitions

    Section 301.45-1 defines certain terms used in the regulations. We 
are proposing to make nonsubstantive changes to several of these 
definitions to improve the clarity and consistency of the regulations. 
These proposed change are described below.
    The current definition of certificate describes a document issued 
to allow the movement of regulated articles to any destination. We 
would amend this definition to clarify that a certificate can be a 
form, stamp, or document approved by Plant Protection and Quarantine 
(PPQ) and that the purpose of a certificate is to affirm that a 
regulated article is eligible for interstate movement under the 
regulations, rather than the current ``to allow the movement'' 
description in the definition. We believe this definition would more 
accurately convey what constitutes a certificate.
    The current definition of compliance agreement is rather circular, 
i.e., it describes a compliance agreement as a written agreement in 
which a person agrees to comply with the requirements of the compliance 
agreement. In actuality, a compliance agreement in the context of our 
domestic quarantines is an agreement in which a person engaged in 
growing, moving, or handling regulated articles agrees to comply with 
the requirements of the regulations. We would amend the definition of 
compliance agreement in Sec.  301.45-1 to reflect this.
    Inspector is currently defined as ``Any employee of APHIS, a State 
government, or any other person, authorized by the Administrator in 
accordance with the law to enforce the provisions of the quarantine and 
regulations in this subpart.'' To eliminate any possible confusion, we 
would add a sentence to that definition stating that a person operating 
under a compliance agreement is not an inspector. While

[[Page 39019]]

persons operating under a compliance agreement are authorized to take 
certain actions, e.g., issuing certificates, they are not authorized to 
enforce the regulations.
    Limited permit is currently defined as ``A document issued by an 
inspector to allow the interstate movement of regulated articles to a 
specified destination.'' In actuality, persons operating under a 
compliance agreement may also issue limited permits. Further, the 
regulated articles moving under a limited permit must be moved in 
accordance with conditions specified on the permit to a specified 
destination, rather than simply ``to a specified destination,'' as 
mentioned in the current definition. We would amend the definition of 
limited permit in Sec.  301.45-1 to more accurately convey what 
constitutes a limited permit.
    The definition of qualified certified applicator refers to 
``restricted pesticides.'' The correct term is ``restricted use 
pesticides.'' We would amend the definition accordingly. We would also 
update the definition's citation to provisions of the Federal 
Insecticide, Fungicide, and Rodenticide Act.
    We are also proposing to revise footnote 1 in the definition of 
qualified certified applicator. Because PPQ no longer maintains a list 
of qualified certified applicators as stated in the footnote, we would 
revise the footnote to refer the reader to officials of the various 
State departments of agriculture for the names of qualified certified 
applicators.
    Similarly, footnote 2 in the definition of treatment manual is 
outdated. We no longer provide pamphlets describing methods from the 
Gypsy Moth Program Manual, and the appendix to the regulations 
mentioned in the footnote no longer exists. We would remove these 
outdated references and instead provide a Web site address for viewing 
the Gypsy Moth Program Manual on the Internet.
    We are also proposing to add a definition for OHA document. We 
mention throughout the regulations that an OHA document may be issued 
by the owner of an outdoor household article (OHA) for the interstate 
movement of the article, but we do not provide a definition for OHA 
document anywhere in the regulations. To improve the clarity and 
consistency of the regulations, we would add a definition of OHA 
document.

Safeguarding Methods for Interstate Movement

    Section 301.45-4, paragraph (b), specifies that any regulated 
article moved interstate from a noninfested area through a generally 
infested area during certain months of the year ``must be in an 
enclosed vehicle, or completely enclosed by a covering adequate to 
prevent access by gypsy moths, such as canvas, plastic, or closely 
woven cloth.'' We are proposing to revise this paragraph by removing 
the references to specific types of enclosures and coverings, and put 
in its place a more general requirement that the regulated articles 
``must be safeguarded by a covering adequate to prevent access by any 
gypsy moth life stages.'' We believe that moving to a more performance-
based standard would offer more flexibility in meeting the requirements 
for the interstate movement of regulated articles, while continuing to 
provide protection against the artificial spread of gypsy moth into 
noninfested areas of the United States.

Disqualification of Qualified Certified Applicators

    Section 301.45-12 pertains to the disqualification of qualified 
certified applicators. In the regulations, a qualified certified 
applicator may be disqualified if he or she is not certified by a State 
and/or Federal government to use specific pesticides, fails to comply 
with the provisions in the regulations, or fails to attend and complete 
a recertification workshop approved by the Administrator on the 
identification and treatment of life stages of gypsy moth on outdoor 
household articles and mobile homes. We are proposing to amend Sec.  
301.45-12, paragraph (a)(1), by removing the references to specific 
pesticides. What would remain would be the simple requirement that a 
person be certified as a qualified certified applicator under the 
Federal Insecticide, Fungicide, and Rodenticide Act in a category 
allowing the use of restricted use pesticides. That basic requirement 
renders the citing of specific pesticides by name unnecessary. For 
consistency, we are also proposing to amend paragraph (a)(2) of Sec.  
301.45-12 by adding the requirement that qualified certified 
applicators must also comply ``* * * with stipulations agreed on in the 
compliance agreement between the certified applicator and the 
Administrator.'' We are also proposing to remove paragraph (a)(3) of 
this section, which states that qualified certified applicators may be 
disqualified from issuing certificates if they fail to attend and 
complete a recertification workshop approved by the Administrator on 
the identification and treatment of life stages of gypsy moth on 
outdoor household articles and mobile homes. We would remove this 
paragraph in its entirety because we have not offered, or approved, the 
referenced recertification workshops for several years.

Other Miscellaneous Updates

    The regulations in Sec.  301.45-2(a)(1) refer to the Integrated 
Pest Management (IPM) alternative of the March 1985 Final Environmental 
Impact Statement (FEIS) on Gypsy Moth Suppression and Eradication 
Projects. The March 1985 FEIS has been superseded by an updated FEIS 
that was filed February 15, 1996. In the 1996 FEIS, the IPM alternative 
was replaced by the Eradication, Suppression, and Slow the Spread 
alternative. We would update this paragraph so that it refers to the 
most recent FEIS and alternative.
    Section 301.45-7 addresses the assembly and inspection of regulated 
articles and outdoor household articles prior to interstate movement. 
The section refers to inspectors and qualified certified applicators 
examining regulated articles. However, Sec.  301.45-5(e) authorizes an 
individual to self-certify outdoor household articles for interstate 
movement if that person has inspected the outdoor household article and 
has found it to be free of any life stage of gypsy moth. To ensure that 
Sec.  301.45-7 includes references to all the possible certification 
options, we would amend the section to included a reference to the 
self-certification provisions of Sec.  301.45-5(e).
    Finally, because the APHIS ``officer in charge'' position title has 
been changed to ``State Plant Health Director,'' we would update Sec.  
301.45-8 to reflect the position name change.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed 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 proposing to amend the gypsy moth regulations by making 
editorial and nonsubstantive changes to several terms and providing 
necessary updates throughout the regulations. These actions would 
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

[[Page 39020]]

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.\1\ Any spread of gypsy moth to noninfested 
areas could have a negative economic and environmental impact.
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    \1\ 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 nurseries 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. The effects on all these entities of the proposed updates to the 
regulations would be positive.
    The SBA classifies nursery and tree production (floriculture, 
nursery, Christmas trees, etc.) farms (NAICS code 111421) small if 
their annual receipts are not more than $750,000.\2\ Sawmills (NAICS 
code 321113) are regarded 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.\3\ 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, the economic effect of the 
proposed changes would be negligible. The proposed changes would not 
impose additional restrictions or requirements; rather, they would help 
ensure that the existing regulations are as up to date, clear, 
consistent, and as flexible as possible.
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    \2\ SBA, Small Business Size Standards matched to North American 
Industry Classification System 2002, Effective January 2006 (http://
www.sba.gov/size/sizetable2002.html).
    \3\ 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, 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 Health Inspection Service has determined that this action would 
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 proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This proposed 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.

    Accordingly, we propose to amend 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 would continue 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).

    2. Section 301.45-1 would be amended as follows:
    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.
    b. In the definition of inspector, by adding a new second sentence 
to read as set forth below.
    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.
    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\


[[Page 39021]]


    \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.
* * * * *
    3. In Sec.  301.45-2, paragraph (a)(1) would be 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,
* * * * *
    4. In Sec.  301.45-4, paragraph (b) would be 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.
* * * * *
    5. In Sec.  301.45-7, a new sentence would be 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]

    6. In Sec.  301.45-8, paragraph (c) would be amended by removing 
the words ``officer in charge'' and adding the words ``State Plant 
Health Director'' in their place.
    7. Section 301.45-12 would be amended as follows:
    a. By revising paragraph (a)(1) to read as set forth below.
    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.
    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.
* * * * *

    Done in Washington, DC, this 11th day of July 2007.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E7-13774 Filed 7-16-07; 8:45 am]
BILLING CODE 3410-34-P