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[Federal Register: May 25, 2010 (Volume 75, Number 100)]
[Rules and Regulations]               
[Page 29189-29191]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25my10-2]                         

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2009-0098]

 
Emerald Ash Borer; Addition of Quarantined Areas in Kentucky, 
Michigan, Minnesota, New York, Pennsylvania, West Virginia, and 
Wisconsin

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the emerald ash borer regulations by adding 
portions of Kentucky, Michigan, Minnesota, New York, Pennsylvania, 
Wisconsin, and the entire State of West Virginia to the list of 
quarantined areas. This action will restrict the interstate movement of 
regulated articles from areas in the States of Kentucky, Michigan, 
Minnesota, New York, Pennsylvania, West Virginia, and Wisconsin. This 
interim rule is necessary to prevent the artificial spread of the 
emerald ash borer to noninfested areas of the United States.

DATES: This interim rule is effective May 25, 2010. We will consider 
all comments that we receive on or before July 26, 2010.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to (http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2009-0098) to submit or view comments 
and to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send one copy of 
your comment to Docket No. APHIS-2009-0098, 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-2009-0098.
    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. Paul Chaloux, Emergency and 
Domestic Programs, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 
20737-1231; (301) 734-0917.

SUPPLEMENTARY INFORMATION:

Background

    The emerald ash borer (EAB) (Agrilus planipennis) is a destructive 
wood-boring insect that attacks ash trees (Fraxinus spp., including 
green ash, white ash, black ash, and several horticultural varieties of 
ash). The insect, which is indigenous to Asia and known to occur in 
China, Korea, Japan, Mongolia, the Russian Far East, Taiwan, and 
Canada, eventually kills healthy ash trees after it bores beneath their 
bark and disrupts their vascular tissues.
    Although EAB adults have been known to fly as much as one-half mile 
from one tree to the next, the pest can also spread when infested 
nursery trees,

[[Page 29190]]

logs, or firewood are transported from one region to the next. Ash 
trees are valuable to the commercial timber industry and are commonly 
planted in urban areas.

Quarantined Areas

    The EAB regulations in 7 CFR 301.53-1 through 301.53-9 (referred to 
below as the regulations) restrict the interstate movement of regulated 
articles from quarantined areas to prevent the artificial spread of EAB 
to noninfested areas of the United States. Portions of Illinois, 
Indiana, Minnesota, Michigan, Ohio, Pennsylvania, West Virginia, and 
Wisconsin have already been designated as quarantined areas.
    Surveys conducted by inspectors of State, county, and city agencies 
and by inspectors of the Animal and Plant Health Inspection Service 
(APHIS) have resulted in the detection of infestations of EAB in the 
States of Kentucky, Michigan, Minnesota, New York, Pennsylvania, West 
Virginia, and Wisconsin. Officials in each of those States (except West 
Virginia, which has opted to adopt a statewide quarantine) have 
quarantined the infested areas and, in some cases, neighboring areas to 
prevent the spread of EAB to noninfested areas. By establishing these 
quarantined areas, the States of Kentucky, Michigan, Minnesota, New 
York, Pennsylvania, West Virginia, and Wisconsin have restricted the 
intrastate movement of regulated articles from the quarantined areas. 
However, Federal regulations are necessary to restrict the interstate 
movement of regulated articles from the quarantined areas within those 
six States and from the entire State of West Virginia to prevent the 
spread of EAB to other States.
    The regulations in Sec.  301.53-3(a) provide that the Administrator 
of APHIS will list as a quarantined area each State, or each portion of 
a State, where EAB has been found by an inspector, where the 
Administrator has reason to believe that EAB is present, or where the 
Administrator considers regulation necessary because of its 
inseparability for quarantine enforcement purposes from localities 
where EAB has been found.
    Less than an entire State will be designated as a quarantined area 
only under certain conditions. Such a designation may be made if the 
Administrator determines that: (1) The State has adopted and is 
enforcing restrictions on the intrastate movement of regulated articles 
that are equivalent to those imposed by the regulations on the 
interstate movement of regulated articles; and (2) the designation of 
less than an entire State as a quarantined area will be adequate to 
prevent the artificial spread of EAB.
    In accordance with these criteria and the recent EAB findings 
described above, we are amending Sec.  301.53-3(c) to add Boone, 
Bourbon, Campbell, Carroll, Fayette, Franklin, Gallatin, Grant, 
Greenup, Harrison, Henry, Jefferson, Jessamine, Kenton, Oldham, Owen, 
Pendleton, Scott, Shelby, Trimble, and Woodford Counties in Kentucky; 
Alger, Chippewa, and Luce Counties in Michigan; Hennepin and Ramsey 
Counties in Minnesota; Cattaraugus and Chautauqua Counties in New York; 
Armstrong, Indiana, Juniata, Washington, and Westmoreland Counties in 
Pennsylvania; the entire State of West Virginia; and Brown, Kenosha, 
Milwaukee, Racine, and Waukesha Counties in Wisconsin to the list of 
quarantined areas.

Emergency Action

    This rulemaking is necessary on an emergency basis to help prevent 
the spread of EAB to noninfested areas of the United States. Under 
these circumstances, the Administrator has determined that prior notice 
and opportunity for public comment are contrary to the public interest 
and that there is good cause under 5 U.S.C. 553 for making this rule 
effective less than 30 days after publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

    This interim rule is subject to Executive Order 12866. However, for 
this action, the Office of Management and Budget has waived its review 
under Executive Order 12866.
    We are amending the EAB regulations by adding areas in Kentucky, 
Michigan, Minnesota, New York, Pennsylvania, and Wisconsin and the 
entire State of West Virginia to the list of areas quarantined because 
of EAB. As a result of this action, the interstate movement of 
regulated articles from those areas is restricted. This action is 
necessary to prevent the artificial spread of the EAB from infested 
areas in the States of Kentucky, Michigan, Minnesota, New York, 
Pennsylvania, West Virginia, and Wisconsin into noninfested areas of 
the United States.
    We have prepared an economic analysis for this interim rule. The 
analysis, which considers the number and types of entities that are 
likely to be affected by this action and the potential economic effects 
on those entities, provides the basis for the Administrator's 
determination that the rule will not have a significant economic impact 
on a substantial number of small entities. The economic analysis may be 
viewed on the Regulations.gov Web site (see ADDRESSES above for 
instructions for accessing Regulations.gov). Copies of the economic 
analysis are also available from the person listed under FOR FURTHER 
INFORMATION CONTACT.

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 in conflict 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 interim 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. In Sec.  301.53-3, paragraph (c) is amended as follows:
0
a. Under the heading Michigan, under Upper Peninsula, by revising the 
entry

[[Page 29191]]

for Chippewa County and by adding, in alphabetical order, entries for 
Alger County and Luce County to read as set forth below.
0
b. Under the heading Minnesota, by adding, in alphabetical order, 
entries for Hennepin County and Ramsey County to read as set forth 
below.
0
c. Under the heading Pennsylvania, by adding, in alphabetical order, 
entries for Armstrong County, Indiana County, Juniata County, 
Washington County, and Westmoreland County to read as set forth below.
0
d. Under the heading West Virginia, by removing the entry for Fayette 
County and adding the words ``The entire State.'' in its place.
0
e. Under the heading Wisconsin, by adding, in alphabetical order, 
entries for Brown County, Kenosha County, Milwaukee County, Racine 
County, and Waukesha County to read as set forth below.
0
f. By adding, in alphabetical order, new entries for Kentucky and New 
York to read as set forth below.

Sec.  301.53-3  Quarantined areas.

* * * * *
    (c) * * *
Kentucky
    Boone County. The entire county.
    Bourbon County. The entire county.
    Campbell County. The entire county.
    Carroll County. The entire county.
    Fayette County. The entire county.
    Franklin County. The entire county.
    Gallatin County. The entire county.
    Grant County. The entire county.
    Greenup County. The entire county.
    Harrison County. The entire county.
    Henry County. The entire county.
    Jefferson County. The entire county.
    Jessamine County. The entire county.
    Kenton County. The entire county.
    Oldham County. The entire county.
    Owen County. The entire county.
    Pendleton County. The entire county.
    Scott County. The entire county.
    Shelby County. The entire county.
    Trimble County. The entire county.
    Woodford County. The entire county.
* * * * *
Michigan
    Upper Peninsula:
    Alger County. The entire county.
    Chippewa County. The entire county. [Note: This quarantined area 
includes tribal land of the Bay Mills Indian Community. Movement of 
regulated articles on those lands is subject to tribal jurisdiction.]
* * * * *
    Luce County. The entire county.
* * * * *
Minnesota
    Hennepin County. The entire county.
* * * * *
    Ramsey County. The entire county.
* * * * *
New York
    Cattaraugus County. The entire county.
    Chautauqua County. The entire county.
* * * * *
Pennsylvania
* * * * *
    Armstrong County. The entire county.
* * * * *
    Indiana County. The entire county.
    Juniata County. The entire county.
* * * * *
    Washington County. The entire county.
    Westmoreland County. The entire county.
* * * * *
Wisconsin
    Brown County. The entire county.
* * * * *
    Kenosha County. The entire county.
    Milwaukee County. The entire county.
* * * * *
    Racine County. The entire county.
* * * * *
    Waukesha County. The entire county.
    Done in Washington, DC, this 19\th\ day of May 2010.

Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2010-12533 Filed 5-24-10; 8:45 am]
BILLING CODE 3410-34-S
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