[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54665-54667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22194]



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Rules and Regulations
                                                Federal Register
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to and codified in the Code of Federal Regulations, which is published 
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Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / 
Rules and Regulations

[[Page 54665]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2007-0111]
RIN 0579-AC87


Importation of Ash Plants

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the regulations governing the importation of 
nursery stock to prohibit or restrict the importation of ash (Fraxinus 
spp.) plants for planting, except seed, from all foreign countries 
except for certain areas in Canada that are not regulated areas for 
emerald ash borer. This action is necessary to prevent further 
introductions of this plant pest into the United States and to prevent 
the artificial spread of the emerald ash borer.

DATES: This interim rule is effective September 23, 2008. We will 
consider all comments that we receive on or before November 24, 2008.

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=DocketDetail&d=APHIS-2007-0111 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-2007-0111, 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-2007-0111.
    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. Arnold T. Tschanz, Senior Risk 
Manager, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 
River Road, Unit 133, Riverdale, MD 20737-1231; (301) 734-5306.

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, and Taiwan, 
eventually kills healthy ash trees after it bores beneath their bark 
and disrupts their vascular tissues.
    EAB was first found in North America in ash trees in several 
counties in Michigan in July 2002, and subsequently in an area in 
Ontario, Canada, and in the States of Illinois, Indiana, Ohio, 
Pennsylvania, and Maryland. These States have quarantined the EAB-
infested areas and imposed restrictions on the intrastate movement of 
certain articles from the regulated areas to prevent the artificial 
spread of EAB within each State. Officials of the United States 
Department of Agriculture (USDA) and of State, county, and city 
agencies have been conducting intensive survey and eradication programs 
in the infested areas in the affected States.
    Similarly, provincial officials in Ontario and officials of the 
Canadian Food Inspection Agency (CFIA) have been conducting extensive 
survey and eradication activities in the infested areas in Ontario. 
Plant health officials in the United States and Canada have been 
working cooperatively to establish a regulatory framework to address 
the risk of the artificial spread of EAB between the two countries. To 
that end, on June 1, 2007, we published an interim rule in the Federal 
Register (72 FR 30462-30468, Docket No. APHIS-2006-0125) which amended 
our regulations in 7 CFR part 319 to restrict or prohibit the 
importation of EAB host material into the United States from EAB-
infested areas of Canada. That interim rule also prohibited the 
importation of all ash trees that originate in any county or municipal 
regional county in Canada regulated because of the EAB, i.e., those 
areas of Canada regulated under the Canadian Ministry of Agriculture 
and the CFIA's EAB Infested Place Declaration and Orders.\1\
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    \1\ Infested Place Declaration and Orders are the means by which 
the CFIA regulates EAB-infested areas within Canada. Links to the 
Infested Place Declaration and Orders for the infested areas in 
Canada and other information about Canada's EAB program can be 
viewed online at the CFIA's Web site at http://www.inspection.gc.ca/english/plaveg/pestrava/agrpla/mc/2007ontarioe.shtml.
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    The regulations in 7 CFR part 319, ``Foreign Quarantine Notices,'' 
prohibit or restrict the importation of certain plants and plant 
products to prevent the introduction or dissemination of plant pests 
and noxious weeds into the United States. Specifically, the regulations 
contained in ``Subpart--Nursery Stock, Plants, Roots, Bulbs, Seeds, and 
Other Plant Products,'' Sec. Sec.  319.37 through 319.37-14 (referred 
to below as the regulations), restrict, among other things, the 
importation of living plants, plant parts, and seeds for propagation.
    Nursery stock, plants, and other propagative plant material that 
cannot be feasibly inspected, treated, or handled to prevent them from 
introducing plant pests new to or not known to be widely prevalent in 
or distributed within and throughout the United States are listed in 
Sec.  319.37-2 as prohibited articles. Prohibited articles may not be 
imported into the United States unless imported by the USDA for 
experimental or scientific purposes, or under specified safeguards. 
These prohibited articles are listed in paragraph (a) of Sec.  319.37-
2.
    Under paragraph (a) of Sec.  319.37-2, ash (Fraxinus spp.) plants 
for planting, except seed, from Europe have been

[[Page 54666]]

prohibited because of Pseudomonas savastanoi var. fraxini, canker and 
dwarfing disease of ash. In addition, as of the June 1, 2007, effective 
date of the interim rule discussed above, ash (Fraxinus spp.) plants 
for planting, except seed, are also prohibited from any county or 
municipal regional county in Canada regulated because of EAB.
    As noted previously, EAB is indigenous to Asia and is known to be 
prevalent in several countries in that region. We do not, however, know 
the full extent of the distribution of EAB throughout Asia and in other 
regions, nor do we know if there are other serious plant pests 
affecting Fraxinus spp. plants for planting present elsewhere in the 
world. Therefore, we are further amending the regulations in Sec.  
319.37-2 to prohibit ash (Fraxinus spp.) plants for planting, except 
seed, from all foreign countries except those areas of Canada that are 
not regulated because of EAB. To reflect this prohibition, we are also 
amending Sec.  319.37-7(a)(3) by removing Fraxinus spp. from the list 
of plants requiring postentry quarantine. This action is necessary to 
prevent the artificial spread of EAB into uninfested areas of the 
United States.
    We note that Fraxinus spp. plants for planting are only 
occasionally imported into the United States, none have been imported 
from any country other than Canada in several years, and regulations 
are already in place with respect to Fraxinus spp. plants for planting 
from Canada. Therefore, the practical effect of this rule will be 
minimal. In addition, we would, if requested, consider lifting the 
prohibition in whole or in part after completing a pest risk analysis 
to determine the pest risk associated with the importation of Fraxinus 
spp. plants for planting from a particular country.

Emergency Action

    Immediate action is necessary to prevent the spread of EAB into 
noninfested regions 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 action 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. The rule 
has been determined to be not significant for the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    The following analysis addresses the economic effects of this rule 
on small entities, as required by the Regulatory Flexibility Act.
    This rule amends the regulations to prohibit or restrict the 
importation of ash (Fraxinus spp.) plants for planting, except seed, 
from all foreign countries except for certain areas of Canada which are 
not currently regulated for emerald ash borer. Fraxinus spp. plants for 
planting are only occasionally imported into the United States, and in 
these few importations the number of ash plants is small. During the 
fiscal years 2005 and 2006, no Fraxinus spp. plants for planting were 
imported from any country except Canada. As discussed above, the 
importation from Canada of Fraxinus spp. plants for planting, and other 
articles, is already regulated to prevent the artificial spread of EAB. 
Therefore we do not anticipate that this rule will have any economic 
effect on any entities, large or small.
    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 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 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 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

0
Accordingly, 7 CFR part 319 is amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

    Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 
and 136a; 7 CFR 2.22, 2.80, and 371.3.


0
2. In Sec.  319.37-2, paragraph (a), the table entry for ``Fraxinus 
spp. (ash)'' is revised to read as follows:


Sec.  319.37-2  Prohibited articles.

    (a) * * *

------------------------------------------------------------------------
                                                    Plant pests existing
Prohibited article (includes                         in the places named
 seeds only if specifically    Foreign places from  and capable of being
         mentioned)             which prohibited    transported with the
                                                     prohibited article
------------------------------------------------------------------------
 
                              * * * * * * *
Fraxinus spp. (ash).........  All except for any    Agrilus planipennis
                               county or municipal   (emerald ash
                               regional county in    borer).
                               Canada not
                               regulated because
                               of the emerald ash
                               borer.
                              Europe..............  Pseudomonas
                                                     savastanoi var.
                                                     fraxini (Brown)
                                                     Dowson (Canker and
                                                     dwarfing disease of
                                                     ash).
 
                              * * * * * * *
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[[Page 54667]]

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Sec.  319.37-7  [Amended]

0
3. In Sec.  319.37-7, paragraph (a)(3), the table is amended by 
removing the entry for ``Fraxinus spp. (ash)''.

    Done in Washington, DC, this 17th day of September 2008.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E8-22194 Filed 9-22-08; 8:45 am]
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