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

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

54665 

Vol. 73, No. 185 

Tuesday, September 23, 2008 

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. 

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. 

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: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/fdmspublic/ 

component/ 

main?main=DocketDetail&d=APHIS2007-0111 to submit or view comments 

and to view supporting and related 

materials available electronically. 

• 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 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, 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

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,’’ 

§§ 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 § 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 § 319.37–2. 

Under paragraph (a) of § 319.37–2, ash 

(Fraxinus spp.) plants for planting, 

except seed, from Europe have been 


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54666 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 

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 

§ 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 

§ 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. 

■ Accordingly, 7 CFR part 319 is 

amended as follows: 

PART 319—FOREIGN QUARANTINE 

NOTICES 

■ 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. 

■ 2. In § 319.37–2, paragraph (a), the 

table entry for ‘‘Fraxinus spp. (ash)’’ is 

revised to read as follows: 

§ 319.37–2 Prohibited articles. 

(a) * * * 

Prohibited article (includes 

seeds only if specifically 

mentioned) 

Foreign places from which prohibited Plant pests existing in the places named and capable 

of being transported with the prohibited article 

* * * * * * * 

Fraxinus spp. (ash) .............. All except for any county or municipal regional county 

in Canada not regulated because of the emerald ash 

borer.

Agrilus planipennis (emerald ash borer). 

Europe ............................................................................. Pseudomonas savastanoi var. fraxini (Brown) Dowson 

(Canker and dwarfing disease of ash). 

* * * * * * * 


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Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 54667 

* * * * * 

§ 319.37–7 [Amended] 

■ 3. In § 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] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

7 CFR Part 650 

RIN 0578–AA41 

[Docket No. NRCS–IFR–08001] 

Regulations for Complying With the 

National Environmental Policy Act 

AGENCY: Natural Resources 

Conservation Service (NRCS), USDA. 

ACTION: Affirmation of interim final rule 

as final rule. 

SUMMARY: The Natural Resources 

Conservation Service (NRCS or Agency) 

published an Interim Final Rule on June 

25, 2008, amending its National 

Environmental Policy Act (NEPA) 

compliance regulations by clarifying the 

appropriate use of a program 

environmental assessment (EA) and by 

aligning its NEPA public involvement 

process with that of the Council on 

Environmental Quality’s (CEQ) 

regulations that implement NEPA. Both 

changes would better align the Agency 

regulations with the CEQ NEPA 

regulations and provide for the efficient 

and timely environmental review of 

NRCS actions, particularly those actions 

where Congress has directed NRCS 

action within short time periods of 60– 

90 days. The Council on Environmental 

Quality, in accordance with their 

regulations, reviewed and approved the 

proposed changes on June 11, 2008. The 

comment period on the interim final 

rule closed on July 25, 2008. No 

comments were received on the interim 

final rule. Accordingly, NRCS is issuing 

this final rule to indicate that no 

comments were received and to 

announce that the interim rule is final 

without change. 

DATES: Effective September 23, 2008, the 

interim final rule published on June 25, 

2008 (73 FR 35883) is confirmed as 

final. 

FOR FURTHER INFORMATION CONTACT: Matt 

Harrington, National Environmental 

Coordinator, Ecological Sciences 

Division, NRCS, P.O. Box 2890, Room 

6158–S, Washington, DC 20013; 

telephone (202) 720–4925; submit email to: matt.harrington@wdc.usda.gov, 

Attention: Compliance with NEPA 

comments. 

SUPPLEMENTARY INFORMATION: 

Availability of Rulemaking Documents 

You can get an electronic copy of the 

full Compliance with NEPA rule using 

the Internet through the NRCS 

homepage at http://www.nrcs.usda.gov 

and by selecting ‘‘Programs,’’ then 

‘‘National Environmental Policy Act 

(NEPA) Documents.’’ 

Background 

Synopsis of the Final Rule 

The rule better aligns the NRCS’ 

NEPA regulations with that of the CEQ’s 

regulations that implement NEPA. The 

final rule amends 7 CFR 650.5(c) Figure 

1 by inserting ‘‘Program EA’’ to the flow 

chart on NRCS decisionmaking and the 

rule adds a section to 7 CFR 650.8(a), 

which discusses the criteria for 

determining the need for a program EA. 

The rule also makes changes to 7 CFR 

650.12 so that 650.12 better conforms to 

CEQ’s similar regulations. 

First, the rule amends 7 CFR 650.5(c) 

Figure 1 by inserting ‘‘Program EA’’ to 

the flow chart on NRCS decisionmaking 

and by adding a section to 7 CFR 650.8 

discussing the criteria for determining 

the need for a program EA. Previously, 

Agency regulations did not address 

NRCS’ ability to tier to Program EAs or 

clarify when it is appropriate to use a 

program environmental assessment. The 

change to Figure 1 explicitly confirms 

the State and field offices’ ability to tier 

site-specific environmental reviews and 

decisionmaking to either a Program EA 

or Program EIS. The change to section 

650.8 clearly states when it is 

appropriate to use an environmental 

assessment. This change aligns NRCS’ 

NEPA regulations with 40 CFR 

1507.3(b)(2), which states that Agency 

NEPA regulations should identify 

specific criteria for those classes of 

action which normally require an EA 

and those that require an EIS. For 

rulemaking actions under the Farm Bill, 

the Agency has prepared program EAs 

in the past because the limited 

significance of the actions did not 

warrant the preparation of an EIS. 

Therefore, this rule change provides for 

the efficient and timely environmental 

review of NRCS actions. 

Second, NRCS is changing the current 

requirement of publication of the notice 

of availability for every EA/FNSI in the 

Federal Register. CEQ regulations 

require public involvement in preparing 

any EA/Finding of No Significant 

Impact (FNSI) and require a 30-day 

review period of the EA/FNSI only in 

the following limited circumstances: (a) 

The action is, or closely similar to, one 

which normally requires the preparation 

of an EIS, as defined by NRCS NEPA 

implementing regulations at 7 CFR 

650.7, or (b) the nature of the action is 

one without precedent. The changes 

made in the NRCS final rule at 7 CFR 

650.12 mirror that of CEQ’s regulations. 

This change provides the Agency with 

the flexibility for all program actions to 

determine the most appropriate method 

of public involvement in preparing the 

EA/FNSI and the most appropriate 

method for publication of the notice of 

the availability of the EA/FNSI. As 

noted by CEQ regulations implementing 

NEPA (40 CFR 1506.6), actions 

primarily of local concern may be 

published in local newspapers and use 

other means to reach the interested and 

affected members of the public. 

The final rule also allows the Agency 

to implement an action upon issuing the 

notice of availability of the EA/FNSI or 

at a specified time period after issuance 

of the notice based on the public 

involvement provided. For Agency 

actions with statutorily short 

rulemaking timeframes or for emergency 

actions, the ability to tailor public 

involvement and review allows the 

Agency to implement the action upon 

issuance of the notice of availability or 

a shorter timeframe thereafter, while 

still meeting the requirements of NEPA 

as well as its intent. This enables the 

Agency to prepare adequate NEPA 

analyses and to proceed with timely 

implementation for these important 

actions. 

Regulatory Certifications 

Executive Order 12866 

The NRCS reviewed this final rule 

under U.S. Department of Agriculture 

(Department) procedures and Executive 

Order 12866 issued September 30, 1993 

(E.O. 12866), as amended by E.O. 13422 

on Regulatory Planning and Review. 

This final rule is issued in accordance 

with the E.O. 12866. It has been 

determined that this final rule is not 

significant and, therefore, it has not 

been reviewed by OMB. 

Regulatory Flexibility Act 

It has been determined that the 

Regulatory Flexibility Act is not 

applicable to this rule because NRCS is 

not required by 5 U.S.C. 553, or any 

other provision of law, to publish a 


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