[Federal Register Volume 70, Number 209 (Monday, October 31, 2005)]
[Rules and Regulations]
[Pages 62230-62232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21608]



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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 05-067-1]


Emerald Ash Borer; Quarantined Areas

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 Indiana, Michigan, and Ohio 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 Indiana, 
Michigan, and Ohio into noninfested areas of the United States.

DATES: This interim rule was effective October 25, 2005. We will 
consider all comments that we receive on or before December 30, 2005.

ADDRESSES: You may submit comments by either of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the ``Search for Open Regulations'' box, 
select ``Animal and Plant Health Inspection Service'' from the agency 
drop-down menu, then click on ``Submit.'' In the Docket ID column, 
select APHIS-2005-0099 to submit or view public comments and to view 
supporting and related materials available electronically. After the 
close of the comment period, the docket can be viewed using the 
``Advanced Search'' function in Regulations.gov.
    <bullet> Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 05-067-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 05-067-1.
    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 
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.

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 infestations of EAB have occurred 
outside the quarantined areas in Michigan, Indiana, and Ohio. 
Specifically, infestations of EAB have been detected in Grand Traverse 
and Montcalm Counties, MI; Lima and Newbury Townships in LaGrange 
County, IN; and Auglaize, Fulton, Hancock, Henry, Lucas, Ottawa, 
Sandusky, and Wood Counties, OH. Officials of the U.S. Department of 
Agriculture and officials of State, county, and city agencies in 
Indiana, Michigan, and Ohio are conducting intensive survey and 
eradication programs in the infested areas. Indiana, Michigan, 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.
    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 the EAB.
    In accordance with these criteria and the recent EAB findings 
described above, we are amending Sec.  301.53-3(c) to add portions of 
Grand Traverse and Montcalm Counties, MI; Lima and Newbury Townships in 
LaGrange County, IN; and Auglaize, Fulton, Hancock, Henry, Lucas, 
Ottawa, Sandusky, and Wood Counties, OH, to the list of quarantined 
areas. An exact description of the quarantined areas can be found in 
the rule portion of this document.

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 rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget

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has waived its review under Executive Order 12866.
    We are amending the EAB regulations by adding areas in Indiana, 
Michigan, and Ohio 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.
    The following analysis addresses the economic effects of the 
interim rule on small entities, as required by the Regulatory 
Flexibility Act. The businesses potentially affected by this interim 
rule are nurseries, arborists, tree removal services, firewood dealers, 
garden centers, landscapers, recyclers of waste material, and lumber 
and building material outlets. We do not currently have information as 
to the actual number of such businesses in the quarantined areas added 
by the interim rule, nor do we have information that would indicate the 
percentage of those businesses that engage in the interstate movement 
of regulated articles and would thus be directly affected by this 
interim rule. It is reasonable to assume that most of the potentially 
affected businesses in the newly quarantined areas can be classified as 
small entities based on the Small Business Administration's size 
standards.\1\
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    \1\ The overwhelming majority of entities are considered small 
by SBA standards.
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    Under the regulations, regulated articles may be moved interstate 
from a quarantined area into or through an area that is not quarantined 
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 Sec.  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 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.


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 also issued under Sec. 204, Title II, 
Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-
16 also issued under Sec. 203, Title II, Pub. L. 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 Indiana, by revising the entry for LaGrange County 
to read as set forth below.
0
b. Under the heading Michigan, by adding, in alphabetical order, 
entries for Grand Traverse County and Montcalm County to read as set 
forth below.
0
c. Under the heading Ohio, by revising the entries for Fulton County, 
Henry County, and Lucas County, and by adding, in alphabetical order, 
entries for Auglaize County, Hancock County, Ottawa County, Sandusky 
County, and Wood County to read as set forth below.


Sec.  301.53-3  Quarantined areas.

* * * * *
    (c) * * *
Indiana
    LaGrange County. Clay Township, Lima Township, Newbury Township, 
Van Buren Township.
* * * * *
Michigan
* * * * *
    Grand Traverse County. Peninsula Township.
* * * * *
    Montcalm County. Crystal Lake area: That portion of the county 
bounded by a line drawn as follows: Beginning at the intersection of 
East Klees Road and North Vickeryville Road; then south on North 
Vickeryville Road to East Stanton Road; then west on East Stanton Road 
to South Tow Road; then south on South Tow Road to East Sidney Road; 
then east on East Sidney Road to South Vickeryville Road; then south on 
South Vickeryville Road to East Holland Lake Road; then east on East 
Holland Lake Road to South Bollinger Road; then north on South 
Bollinger Road to East Sidney Road; then east on East Sidney

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Road to South Mount Hope Road; then north on South Mount Hope Road to 
East Pakes Road; then west on East Pakes Road to North Blakmer Road; 
then north on North Blakmer Road to East Kimball Road; then west on 
East Kimball Road to North Crystal Road; then north on North Crystal 
Road to East Willard Road; then west on East Willard Road to North 
Waldron Road; then south on North Waldron Road to East Klees Road; then 
west on East Klees Road to the point of beginning.
* * * * *
Ohio
    Auglaize County. Duchouquet Township.
* * * * *
    Fulton County. That portion of the county east of State Route 108.
    Hancock County. Allen Township.
    Henry County. That portion of the county east of State Route 108 
and north of the Maumee River.
    Lucas County. The entire county.
    Ottawa County. That portion of the county north of State Route 163 
and State Route 105.
    Sandusky County. That portion of the county north of U.S. Highway 
20.
    Wood County. (1) That portion of the county north of State Route 
582.
    (2) Bloom Township.
    (3) Henry Township.

    Done in Washington, DC, this 25th day of October 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-21608 Filed 10-28-05; 8:45 am]
BILLING CODE 3410-34-P