This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

47999 

Vol. 74, No. 181 

Monday, September 21, 2009 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2008–0072] 

Emerald Ash Borer; Quarantined 

Areas; Maryland, Michigan, Minnesota, 

Missouri, Pennsylvania, Virginia, West 

Virginia, and Wisconsin 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Interim rule and request for 

comments. 

SUMMARY: We are amending the emerald 

ash borer regulations by adding areas in 

Maryland, Michigan, Minnesota, 

Missouri, Pennsylvania, Virginia, West 

Virginia, and Wisconsin to the list of 

areas quarantined because of emerald 

ash borer. 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 emerald ash borer 

from infested areas in the States of 

Maryland, Michigan, Minnesota, 

Missouri, Pennsylvania, Virginia, West 

Virginia, and Wisconsin into 

noninfested areas of the United States. 

DATES: This interim rule is effective 

September 21, 2009. We will consider 

all comments that we receive on or 

before November 20, 2009. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/fdmspublic/ 

component/ 

main?main=DocketDetial&d=APHIS2008-0072 to submit or view comments 

and to view supporting and related 

materials available electronically. 

• Postal Mail/Commercial Delivery: 

Please send two copies of your comment 

to Docket No. APHIS–2008–0072, 

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– 

2008–0072. 

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, National Program 

Coordinator, Emerald Ash Borer 

Program, Emergency and Domestic 

Programs, PPQ, APHIS, 4700 River 

Road, Unit 137, Riverdale, MD 20737– 

1231; (301) 734–0917. 

SUPPLEMENTARY INFORMATION: 

Background 

The emerald ash borer (EAB) (Agrilus 

planipennis) is a destructive woodboring 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, 

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 Area 

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. The entire 

States of Illinois, Indiana, and Ohio and 

portions of Maryland and Michigan 

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 

confirmed new infestations of EAB in 

Charles County, MD; Delta, Houghton, 

Keweenaw, Mackinac, and Schoolcraft 

Counties in the Upper Peninsula of 

Michigan; Houston County, MN; Wayne 

County, MO; Allegheny, Beaver, Butler, 

Lawrence, Mercer, and Mifflin Counties, 

PA; Arlington, Fairfax, Fauquier, 

Loudon, and Prince William Counties 

and the independent Cities of 

Alexandria, Fairfax, Falls Church, 

Manassas, and Manassas Park, VA; 

Fayette County, WV; and Crawford, 

Fond du Lac, Ozaukee, Sheboygan, 

Vernon, and Washington Counties, WI. 

Officials of the U.S. Department of 

Agriculture (USDA) and officials of 

State, county, and city agencies are 

conducting intensive surveys in and 

around the infested areas. The States of 

Maryland, Michigan, Minnesota, 

Missouri, Pennsylvania, Virginia, West 

Virginia, and Wisconsin have 

quarantined the infested areas and have 

restricted the intrastate movement of 

regulated articles from the quarantined 

areas to prevent the spread of EAB 

within each State. However, Federal 

regulations are necessary to restrict the 

interstate movement of regulated 

articles from the quarantined areas to 

prevent the spread of EAB to other 

States. 

The regulations in § 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 


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48000 Federal Register / Vol. 74, No. 181 / Monday, September 21, 2009 / Rules and Regulations 

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 § 301.53–3(c) to 

add Charles County, MD; Delta, 

Houghton, Keweenaw, Mackinac, and 

Schoolcraft Counties, MI; Houston 

County, MN; Wayne County, MO; 

Allegheny, Beaver, Butler, Lawrence, 

Mercer, and Mifflin Counties, PA; 

Arlington, Fairfax, Fauquier, Loudon, 

and Prince William Counties and the 

independent Cities of Alexandria, 

Fairfax, Falls Church, Manassas, and 

Manassas Park, VA; Fayette County, 

WV; and Crawford, Fond du Lac, 

Ozaukee, Sheboygan, Vernon, and 

Washington Counties, WI, 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. 

Miscellaneous Change 

In an editorial change not directly 

related to this interim rule, we are 

updating the title of ‘‘Subpart—Special 

Need Requests’’ (§§ 301.1 through 

301.1–3). In § 301.1 of those regulations, 

paragraph (a) sets out the provisions of 

section 436 of the Plant Protection Act 

(7 U.S.C. 7756), which states that a State 

or political subdivision of a State may 

not impose prohibitions or restrictions 

upon the movement in interstate 

commerce of articles, means of 

conveyance, plants, plant products, 

biological control organisms, plant 

pests, or noxious weeds if the Secretary 

has issued a regulation or order to 

prevent the dissemination of the 

biological control organism, plant pest, 

or noxious weed within the United 

States. The only exceptions to this are 

(1) if the prohibitions or restrictions 

issued by the State or political 

subdivision of a State are consistent 

with and do not exceed the regulations 

or orders issued by the Secretary; or (2) 

if the State or political subdivision of a 

State demonstrates to the Secretary and 

the Secretary finds that there is a special 

need for additional prohibitions or 

restrictions based on sound scientific 

data or a thorough risk assessment. The 

regulations in ‘‘Subpart—Special Need 

Requests’’ provide the criteria to be 

addressed and process to be followed by 

States or political subdivisions of States 

that wish to submit a special need 

request for consideration. Because those 

regulations also provide a clear 

statement as to the preemptive effect of 

APHIS’ domestic quarantine regulations 

in part 301, we are changing the title of 

the subpart to ‘‘Subpart—Preemption 

and Special Need Requests’’ to make its 

purpose clearer. 

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 under 

Executive Order 12866. 

We are amending the EAB regulations 

by adding areas in Maryland, Michigan, 

Minnesota, Missouri, Pennsylvania, 

Virginia, West Virginia, and Wisconsin 

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 Maryland, 

Michigan, Minnesota, Missouri, 

Pennsylvania, Virginia, 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 

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 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. 

■ Accordingly, we are amending 7 CFR 

part 301 as follows: 

PART 301—DOMESTIC QUARANTINE 

NOTICES 

■ 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). 

Subpart—Preemption and Special 

Need Requests 

■ 2. The heading of Subpart—Special 

Need Requests, consisting of §§ 301.1 

through 301.1–3, is revised to read as set 

forth above. 

■ 3. In § 301.53–3, paragraph (c) is 

amended as follows: 

■ a. Under the heading Maryland, by 

adding, in alphabetical order, an entry 

for Charles County to read as set forth 

below. 

■ b. Under the heading Michigan, under 

Upper Peninsula, by adding, in 

alphabetical order, entries for Delta, 

Houghton, Keweenaw, Mackinac, and 

Schoolcraft Counties to read as set forth 

below. 

■ c. By adding, in alphabetical order, 

new entries for Minnesota, Missouri, 

Pennsylvania, Virginia, West Virginia, 

and Wisconsin to read as set forth 

below. 

§ 301.53–3 Quarantined areas. 

* * * * * 


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Federal Register / Vol. 74, No. 181 / Monday, September 21, 2009 / Rules and Regulations 48001 

(c) * * * 

Maryland 

Charles County. The entire county. 

* * * * * 

Michigan 

Upper Peninsula: * * * 

Delta County. The entire county. 

Houghton County. The entire county. 

Keweenaw County. The entire county. 

Mackinac County. The entire county. 

Schoolcraft County. The entire county. 

* * * * * 

Minnesota 

Houston County. The entire county. 

Missouri 

Wayne County. The entire county. 

* * * * * 

Pennsylvania 

Allegheny County. The entire county. 

Beaver County. The entire county. 

Butler County. The entire county. 

Lawrence County. The entire county. 

Mercer County. The entire county. 

Mifflin County. The entire county. 

Virginia 

City of Alexandria. The entire city. 

City of Fairfax. The entire city. 

City of Falls Church. The entire city. 

City of Manassas. The entire city. 

City of Manassas Park. The entire city. 

Arlington County. The entire county. 

Fairfax County. The entire county. 

Fauquier County. The entire county. 

Loudon County. The entire county. 

Prince William County. The entire county. 

West Virginia 

Fayette County. The entire county. 

Wisconsin 

Crawford County. The entire county. 

Fond du Lac County. The entire county. 

Ozaukee County. The entire county. 

Sheboygan County. The entire county. 

Vernon County. The entire county. 

Washington County. The entire county. 

Done in Washington, DC, this 15th day of 

September 2009. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. E9–22635 Filed 9–18–09; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2008–0083] 

Gypsy Moth Generally Infested Areas; 

Illinois, Indiana, Maine, Ohio, and 

Virginia 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Interim rule and request for 

comments. 

SUMMARY: We are amending the gypsy 

moth regulations by adding areas in 

Illinois, Indiana, Maine, Ohio, and 

Virginia to the list of generally infested 

areas based on the detection of 

infestations of gypsy moth in those 

areas. 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 gypsy moth to 

noninfested areas of the United States. 

DATES: This interim rule is effective 

September 21, 2009. We will consider 

all comments that we receive on or 

before November 20, 2009. 

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=APHIS2008-0083 to submit or view comments 

and to view supporting and related 

material available electronically. 

• Postal/Mail/Commercial Delivery: 

Please send two copies of your 

comments to Docket No. APHIS–2008– 

0083, Regulatory Analysis and 

Development, PPD, APHIS, Station 3A– 

03, 4700 River Road, Unit 118, 

Riverdale, MD 20737–1238. Please state 

that your comment refers to Docket 

APHIS–2008–0083. 

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: Dr. 

Weyman Fussell, Program Manager, 

Gypsy Moth, Emergency and Domestic 

Programs, PPQ, APHIS, 4700 River 

Road, Unit 134, Riverdale, MD 20737– 

1236; (301) 734–5705. 

SUPPLEMENTARY INFORMATION: 

Background 

The gypsy moth (Lymantria dispar) 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) restrict the interstate 

movement of regulated articles from 

generally infested areas to prevent the 

artificial spread of the gypsy moth. 

In accordance with § 301.45–2 of the 

regulations, generally infested areas are, 

with certain exceptions, those States or 

portions of States in which a gypsy 

moth general infestation has been found 

by an inspector, or each portion of a 

State that 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 that imposes restrictions on 

the intrastate movement of regulated 

articles that are substantially the same 

as those that 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 

Section 301.45–3 of the regulations 

lists generally infested areas. In this 

rule, we are amending § 301.45–3(a) by 

adding 3 counties in Illinois, 1 county 

in Indiana, 34 townships in Maine, 1 

county in Ohio, and 1 county in 

Virginia to the list of generally infested 

areas. As a result of this rule, the 

interstate movement of regulated 

articles from these areas will be 

restricted. 

We are taking this action because, in 

cooperation with the States of Illinois, 

Indiana, Maine, Ohio, and Virginia, the 

United States Department of Agriculture 

conducted surveys that detected 

multiple life stages of the gypsy moth in 

Cook, Du Page, and McHenry Counties, 

IL; St. Joseph County, IN; several 

townships in Aroostook, Franklin, 

Penobscot, Piscataquis, and Somerset 

Counties, ME; Morrow County, OH; and 

Montgomery County, VA. Based on 

these surveys, we determined that 

reproducing populations exist at 


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