[Federal Register Volume 74, Number 181 (Monday, September 21, 2009)]
[Rules and Regulations]
[Pages 47999-48001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22635]



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

[[Page 47999]]



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.

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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:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetial&d=APHIS-2008-0072 to submit or view comments and 
to view supporting and related materials available electronically.
    <bullet> 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 
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, 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 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

[[Page 48000]]

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 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'' 
(Sec. Sec.  301.1 through 301.1-3). In Sec.  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.

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).

Subpart--Preemption and Special Need Requests

0
2. The heading of Subpart--Special Need Requests, consisting of 
Sec. Sec.  301.1 through 301.1-3, is revised to read as set forth 
above.

0
3. In Sec.  301.53-3, paragraph (c) is amended as follows:
0
a. Under the heading Maryland, by adding, in alphabetical order, an 
entry for Charles County to read as set forth below.
0
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.
0
c. By adding, in alphabetical order, new entries for Minnesota, 
Missouri, Pennsylvania, Virginia, West Virginia, and Wisconsin to read 
as set forth below.


Sec.  301.53-3  Quarantined areas.

* * * * *

[[Page 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]
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