Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

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###### Department of Agriculture

###### Animal and Plant Health Inspection Service 

          - 7 CFR Part 301 
          - [Docket No. APHIS-2007-0005] 

# 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 designating the States of Illinois, Indiana, and Ohio, in their entirety, as quarantined areas. This action is necessary to prevent the artificial spread of the emerald ash borer into noninfested areas of the United States. As a result of this action, the interstate movement of regulated articles from those States is restricted. 

# DATES:

This interim rule is effective April 2, 2007. We will consider all comments that we receive on or before June 1, 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-2007-0005 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-2007-0005, 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-2007-0005.

*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, National Emerald Ash Borer Program Manager, Emergency and Domestic Programs, PPQ, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737-1236; (301) 734-5356. 

# 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.                 

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 into 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 are prevalent outside the quarantined areas in Indiana and Ohio, and also in the State of Illinois. Illinois, Indiana, and Ohio 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 and other countries. 

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. Although all three States have quarantined the infested areas within their boundaries, we believe that the prevalence of spot infestations of EAB throughout each State makes it necessary to quarantine these States in their entirety 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 the States of Illinois, Indiana, and Ohio, in their entirety, 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                           ( print page 15598)                        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. 

                    This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601*et seq.*) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a regulatory flexibility analysis.                 

## 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 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) is amended by adding, in alphabetical order, an entry for Illinois, and by revising the entries for Indiana and Ohio to read as follows: 

§ 301.53-3 

* * * * *

(c) * * * 

#### Illinois 

The entire State. 

#### Indiana 

The entire State. 

* * * * *

#### Ohio 

The entire State. 

Done in Washington, DC, this 27th day of March 2007. 

Kevin Shea, 

Acting Administrator, Animal and Plant Health Inspection Service.

 [FR Doc. E7-6007 Filed 3-30-07; 8:45 am] 

BILLING CODE 3410-34-P