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

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Rules and Regulations Federal Register

57871 

Vol. 71, No. 190 

Monday, October 2, 2006 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2006–0131] 

Emerald Ash Borer; Quarantined 

Areas; Michigan 

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 

Michigan 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 State of Michigan into 

noninfested areas of the United States. 

DATES: This interim rule became 

effective September 25, 2006. We will 

consider all comments that we receive 

on or before December 1, 2006. 

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– 

0131 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 APHIS–2006–0131, 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 APHIS–2006–0131. 

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: Ms. 

Deborah McPartlan, Operations Officer, 

Pest Detection and Management 

Programs, PPQ, APHIS, 4700 River 

Road, Unit 134, Riverdale, MD 20737– 

1236; (301) 734–4387. 

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. 

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 

the States of Indiana, Michigan, and 

Ohio are already designated as 

quarantined areas. 

Recent surveys conducted by 

inspectors of State, county, and city 

agencies and by inspectors of the 

Animal and Plant Health Inspection 

Service (APHIS) have revealed that spot 

infestations of EAB have occurred 

outside the quarantined areas in 

Michigan. Specifically, spot infestations 

of EAB have been found to be prevalent 

throughout the Lower Peninsula of 

Michigan. Officials of the U.S. 

Department of Agriculture (USDA) and 

officials of State, county, and city 

agencies in Michigan are conducting 

intensive survey and eradication 

programs in the infested areas. Michigan 

has quarantined the infested areas and 

has restricted the intrastate movement 

of regulated articles from the 

quarantined areas to prevent the spread 

of EAB to noninfested areas in the 

Upper Peninsula of Michigan. 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 

articles; and (2) the designation of less 

than an entire State as a quarantined 

area will be adequate to prevent the 

artificial spread of the EAB. 

In accordance with these criteria and 

the recent EAB findings described 

above, we are amending § 301.53–3(c) to 

add the areas in the Lower Peninsula of 

Michigan that had not previously been 

quarantined to the list of quarantined 

areas. A list of the counties in Michigan 

that have been designated as 

quarantined areas can be found in the 

regulatory text at the end of this 

document. 

Emergency Action 

This rulemaking is necessary on an 

emergency basis to help prevent the 

spread of EAB to noninfested areas of 


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57872 Federal Register / Vol. 71, No. 190 / Monday, October 2, 2006 / Rules and Regulations 

1McPartlan, Deborah, USDA, APHIS, PPQ, 

‘‘Eradication of emerald ash borer in Michigan, 

Ohio, and Indiana: Implementation of the Strategic 

Plan.’’ April 2003. 

2Personal communication, Tom Rose, Plant and 

Pest Management, Michigan Department of 

Agriculture. 

3 ‘‘2002 Economic Census: Manufacturing’’ U.S. 

Census Bureau, July 2005 (Michigan Geographical 

report). 

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 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 Michigan to the list 

of quarantined 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 this plant 

pest into noninfested areas of the United 

States. 

Ash trees are valuable to the 

commercial timber industry and are 

commonly planted in urban areas. 

According to the Forest Inventory and 

Analysis data collected by the USDA’s 

Forest Service, there are approximately 

850 million ash trees in Michigan 

forests that are at risk. These quantities 

do not include the millions of ash trees 

extensively planted in communities, in 

yards, and along public rights-of-way. 1

If EAB were to spread from infested 

areas to the surrounding forests of the 

northeastern United States, where 

nursery, landscaping, and timber 

industries and forest-based recreation 

and tourism industries play a vital 

economic role, the economic impact 

would be severe. In addition, the cost to 

Federal and State agencies for EAB 

eradication programs would increase 

significantly. 

This interim rule will affect business 

entities located within the newly 

quarantined areas of Michigan. 

Although more than 7,000 nursery 

operations are located within the 

quarantined areas of Michigan, the rule 

only affects the movement of nursery 

stock composed of deciduous shade 

trees of an ash species. It is also 

estimated that approximately 5,000 to 

6,000 sawmills and firewood dealers are 

located within or near quarantined areas 

of the State. The Michigan EAB survey 

program is currently a statewide effort. 

Estimates indicate that as many as 

15,000 firms and businesses located in 

quarantined areas may be affected. We 

do not have information on the exact 

number of operations that will be 

regulated in the areas in Michigan that 

will be newly quarantined for EAB, 

although we can estimate that there 

were around 481 nurseries in those 

areas in 2002. 

The Small Business Administration 

(SBA) has established size criteria based 

on the North American Industry 

Classification System (NAICS) for 

determining which economic entities 

meet the definition of a small firm. The 

SBA classifies nursery and tree 

production businesses (NAICS category 

111421) as small entities if their annual 

sales receipts are $750,000 or less. The 

SBA classifies forest nursery and 

gathering of forest products businesses 

(NAICS category 113210) as small 

entities if their annual sales receipts are 

$6.5 million or less. The SBA classifies 

logging operations (NAICS category 

113310) and sawmills (NAICS category 

321113) as small entities if they employ 

500 or fewer persons. 

The exact number and size of newly 

affected entities is unknown. The 

Michigan Department of Agriculture 

estimates that more than 90 percent of 

nursery operations located in 

Michigan’s Lower Peninsula counties 

are small operations with annual 

receipts of less than $750,000 (including 

nursery operations that sell deciduous 

shade trees).2 It is reasonable to assume 

that nearly all sawmills and logging 

operations have 500 or fewer 

employees, since more than 80 percent 

of the sawmills located in Michigan 

have fewer than 20 employees, with an 

average of 14–15 employees per 

operation.3

The percentage of annual revenue 

attributable to ash species alone for 

affected entities is unknown. However, 

by way of comparison, we estimate that 

only about 10 to 20 of the nurseries in 

the original quarantined area in 

Michigan (6 counties), or 0.2 to 0.5 

percent of all nurseries in those 

counties, were expected to be affected 

by the rule that quarantined that area. It 

is possible that a similarly small 

percentage of nurseries will be affected 

in the areas quarantined under this rule. 

Under the regulations, regulated 

articles may be moved interstate from a 

quarantined area into or through an area 

that is not quarantined only if they are 

accompanied by a certificate or limited 

permit. An inspector or a person 

operating under a compliance 

agreement will issue a certificate for 

interstate movement of a regulated 

article if certain conditions are met, 

including that the regulated article is 

determined to be apparently free of 

EAB. 

Businesses could be affected by the 

regulations in two ways. First, if a 

business wishes to move regulated 

articles interstate from a quarantined 

area, that business must either: (1) Enter 

into a compliance agreement with 

APHIS for the inspection and 

certification of regulated articles to be 

moved interstate from the quarantined 

area; or (2) present its regulated articles 

for inspection by an inspector and 

obtain a certificate or a limited permit, 

issued by the inspector, for the 

interstate movement of regulated 

articles. The inspections may be 

inconvenient, but they should not be 

costly in most cases, even for businesses 

operating under a compliance 

agreement who would perform the 

inspections themselves. For those 

businesses that elect not to enter into a 

compliance agreement, APHIS would 

provide the services of the inspector 

without cost. There is also no cost for 

the compliance agreement, certificate, or 

limited permit for the interstate 

movement of regulated articles. 

Second, there is a possibility that, 

upon inspection, a regulated article 

could be determined by the inspector to 

be potentially infested with EAB, and, 

as a result, the article would be 

ineligible for interstate movement under 

a certificate. In such a case, the entity’s 

ability to move regulated articles 

interstate would be restricted. However, 

the affected entity could conceivably 

obtain a limited permit under the 

conditions of § 301.53–5(b). 

Our experience with administering 

the EAB regulations and the regulations 

for other pests, such as the Asian 

longhorned beetle, that impose 

essentially the same conditions on the 

interstate movement of regulated 

articles lead us to believe that any 

economic effects on affected small 

entities will be small and are 

outweighed by the benefits associated 

with preventing the spread of EAB into 

noninfested areas of the United States. 

Under these circumstances, the 

Administrator of the Animal and Plant 


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Federal Register / Vol. 71, No. 190 / Monday, October 2, 2006 / Rules and Regulations 57873 

Health Inspection Service has 

determined that this action will 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 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). 

■ 2. In § 301.53–3, paragraph (c), the 

entry for Michigan is revised to read as 

follows: 

§ 301.53–3 Quarantined areas. 

* * * * * 

(c) * * * 

Michigan 

Upper Peninsula: Chippewa County. 

Brimley area. That portion of the county 

bounded by a line drawn as follows: 

Beginning at the intersection of 

Michigan Route 28 and Crawford Street; 

then north on Crawford Street to Irish 

Line Road; then north on Irish Line 

Road to its end and continuing north 

along an imaginary line to the Bay 

Mills/Superior Township line; then 

north and east along the Bay Mills/ 

Superior Township line to the Lake 

Superior shoreline; then east along the 

Lake Superior shoreline to the Bay 

Mills/Soo Township line; then south on 

the Bay Mills/Soo Township line to the 

intersection of the Dafter and Superior 

Township lines at 6 Mile Road; then 

south along the Dafter/Superior 

Township line to Forrest Road; then 

south on Forrest Road to Michigan 

Route 28; then west on Michigan Route 

28 to the point of beginning. [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.] 

Lower Peninsula: All counties, in 

their entirety (i.e., Alcona, Allegan, 

Alpena, Antrim, Arenac, Barry, Bay, 

Benzie, Berrien, Branch, Calhoun, Cass, 

Charlevoix, Cheboygan, Clare, Clinton, 

Crawford, Eaton, Emmet, Genesee, 

Gladwin, Grand Traverse, Gratiot, 

Hillsdale, Huron, Ingham, Ionia, Iosco, 

Isabella, Jackson, Kalamazoo, Kalkaska, 

Kent, Lake, Lapeer, Leelanau, Lenawee, 

Livingston, Macomb, Manistee, Mason, 

Mecosta, Midland, Missaukee, Monroe, 

Montcalm, Montmorency, Muskegon, 

Newaygo, Oakland, Oceana, Ogemaw, 

Osceola, Oscoda, Otsego, Ottawa, 

Presque Isle, Roscommon, Saginaw 

Sanilac, St. Clair, St. Joseph, 

Shiawassee, Tuscola, Van Buren, 

Washtenaw, Wayne, and Wexford 

Counties). 

* * * * * 

Done in Washington, DC, this 25th day of 

September 2006. 

W. Ron DeHaven, 

Administrator, Animal and Plant Health 

Inspection Service. 

[FR Doc. 06–8424 Filed 9–29–06; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF JUSTICE 

8 CFR Part 1003 

[EOIR Docket No. 143F; AG Order No. 2838–

2006] 

RIN 1125–AA47 

Review of Custody Determinations 

AGENCY: Executive Office for 

Immigration Review, Justice. 

ACTION: Final rule. 

SUMMARY: This rule adopts, with 

changes, an interim rule published in 

the Federal Register on October 31, 

2001, by the Department of Justice, 

pertaining to the review of custody 

decisions by the Executive Office for 

Immigration Review (EOIR) with respect 

to aliens being detained by the 

Immigration and Naturalization Service 

(INS), now the Department of Homeland 

Security (DHS). This rule retains the 

existing regulatory provision for DHS to 

invoke a temporary automatic stay of an 

immigration judge’s decision ordering 

an alien’s release in any case in which 

a DHS official has ordered that the alien 

be held without bond or has set a bond 

of $10,000 or more, in order to maintain 

the status quo while DHS seeks 

expedited review of the custody order 

by the Board of Immigration Appeals 

(Board) or the Attorney General. 

However, this rule clarifies the basis on 

which DHS may invoke the automatic 

stay provision, and limits the duration 

of the automatic stay. 

DATES: This final rule is effective 

November 1, 2006. 

FOR FURTHER INFORMATION CONTACT: 

MaryBeth Keller, General Counsel, 

Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 2600, 

Falls Church, Virginia 22041, telephone 

(703) 305–0470. 

SUPPLEMENTARY INFORMATION: 

Introduction 

On October 31, 2001, the Attorney 

General published an interim rule to 

amend the regulations relating to review 

of custody determinations by 

immigration judges. The interim rule 

expanded a preexisting provision first 

adopted in 1998 for a temporary 

automatic stay of an immigration judge’s 

decision ordering the release of an alien 

in certain cases where the INS had 

determined that no conditions of release 

were appropriate for an alien or had set 

an initial bond of $10,000 or more. 66 

FR 54909 (Oct. 31, 2001). The purpose 

of the 2001 interim rule was to provide 

a means for the INS to maintain the 

status quo in those cases where it chose 

to invoke the automatic stay while it 

was seeking an expedited review of the 

custody order by the Board. The 2001 

interim rule also provided for a 

temporary automatic stay in those cases 

where the Commissioner of INS, within 

five days of the Board’s decision, refers 

a custody decision by the Board to the 

Attorney General for review. 

The Department explained when the 

interim rule was published that ‘‘This 

stay is a limited measure and is limited 

in time—it only applies where the 

Service determines that it is necessary 

to invoke the special stay procedure 

pending appeal, and the stay only 

remains in place until the Board has had 

the opportunity to consider the matter.’’

66 FR at 54910. The Department at that 

time also explained that it was merely 


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