[Federal Register Volume 71, Number 57 (Friday, March 24, 2006)]
[Rules and Regulations]
[Pages 14795-14797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2865]



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  Federal Register / Vol. 71, No. 57 / Friday, March 24, 2006 / Rules 
and Regulations  

[[Page 14795]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 02-125-4]


Emerald Ash Borer; Quarantined Areas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Affirmation of interim rules as final rule.

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SUMMARY: We are adopting as a final rule, without change, three interim 
rules regarding emerald ash borer (EAB). The first interim rule 
established regulations restricting the interstate movement of 
regulated articles from areas quarantined because of EAB and designated 
13 counties in Michigan as quarantined areas. The second and third 
interim rules amended the regulations by adding areas in Indiana, 
Michigan, and Ohio to the list of areas quarantined because of EAB. As 
a result of those actions, the interstate movement of regulated 
articles from the quarantined areas is restricted. The interim rules 
were necessary to prevent the artificial spread of EAB from infested 
areas in the States of Indiana, Michigan, and Ohio into noninfested 
areas of the United States.

DATES: Effective on March 24, 2006, we are adopting as a final rule the 
interim rules that became effective on October 8, 2003, December 28, 
2004, and February 25, 2005.

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

    In an interim rule effective on October 8, 2003, and published in 
the Federal Register on October 14, 2003 (68 FR 59082-59091, Docket No. 
02-125-1), we amended the Domestic Quarantine Notices in 7 CFR part 301 
by adding a new ``Subpart--Emerald Ash Borer'' (Sec. Sec.  301.53-1 
through 301.53-9, referred to below as the regulations). The 
regulations designated 13 counties in the southeastern portion of the 
State of Michigan as quarantined areas because of emerald ash borer 
(EAB) and restricted the interstate movement of regulated articles from 
the quarantined areas.
    In a second interim rule effective December 28, 2004, and published 
in the Federal Register on January 4, 2005 (70 FR 249-253, Docket No. 
02-125-2), we amended the regulations by adding areas in Indiana, 
Michigan, and Ohio to the list of areas quarantined because of EAB and 
restricting the interstate movement of regulated articles from the 
quarantined areas.
    In a third interim rule effective February 25, 2005, and published 
in the Federal Register on March 3, 2005 (70 FR 10315-10318, Docket No. 
02-125-3), we amended the regulations by adding more areas in Indiana, 
Michigan, and Ohio to the list of areas quarantined because of EAB and 
restricting the interstate movement of regulated articles from the 
quarantined areas.
    Comments on each interim rule were required to be received on or 
before 60 days after the date of its publication in the Federal 
Register. We received two comments by the close of the comment period 
for the first interim rule. We did not receive any comments on the 
January 2005 or March 2005 interim rules. The comments that we received 
regarding the October 2003 interim rule were from a State agricultural 
agency and a private citizen. Both commenters supported the interim 
rule. However, one commenter offered several suggestions, which are 
discussed below.
    The commenter suggested that nurseries engaged in the interstate 
shipment of nursery stock be required to create and maintain for 
regulatory inspection, for an appropriate number of years, records 
documenting the following information for each shipment: Origin of 
stock shipped, destination, date of shipment, description of stock, and 
quantity of stock.
    The regulations in Sec.  301.53-4 require that, with the exception 
of articles that originate outside a quarantined area or that are being 
moved by the U.S. Department of Agriculture, regulated articles being 
moved interstate from a quarantined area must be accompanied by a 
certificate or limited permit. In addition, under Sec.  301.53-8, 
regulated articles must be plainly marked with the names and addresses 
of the consignor and the consignee, and the certificate or limited 
permit must be securely attached to the regulated article, the 
container carrying the regulated article, or the consignee's copy of 
the accompanying waybill. We believe that the information generated 
through compliance with these requirements will provide the specific 
sorts of information suggested by the commenter.
    The commenter suggested that, in light of the practical difficulty 
of delineating the full extent of EAB infestation in a given locality, 
as well as the discovery of EAB outside the core areas of infestation 
in Michigan originally listed in the regulations, the EAB quarantine be 
expanded beyond the current range to include the entire State of 
Michigan, possibly excluding the Upper Peninsula.
    The regulations in Sec.  301.53-3(a) provide that the Administrator 
will list as a quarantined area each State or portion of a State in 
which the EAB has been found by an inspector, in which the 
Administrator has reason to believe that the EAB is present, or that 
the Administrator considers necessary to regulate because of its 
inseparability for quarantine enforcement purposes from localities 
where the EAB has been found. If we and/or our State cooperators 
identify additional areas that meet any of these criteria for the 
designation of quarantined areas, we will amend our regulations 
accordingly.
    The commenter also suggested that a ``firebreak'' across 
southeastern Michigan, in which all ash trees would be removed along a 
band at least one-half mile wide, could be of great benefit in 
preventing the further spread of EAB into Ohio and other noninfested 
areas of the United States, citing that the benefits of such a 
firebreak would vastly outweigh the negative impact.

[[Page 14796]]

    The commenter submitted this suggestion before we published the 
second and third interim rules establishing quarantined areas for EAB 
in Indiana and Ohio. Currently, control techniques and detection and 
delineation efforts are being utilized by APHIS, State, and city 
cooperators, as well as the U.S. Forest Service, in order to eradicate 
this pest. The idea of a firebreak has been examined, but we have 
determined that due to the expanded scope of the infestation in Indiana 
and Ohio, the quarantined areas are large enough to make a firebreak 
impractical from cost and management perspectives. We are making no 
changes in response to this comment.
    Therefore, for the reasons given in the interim rule and in this 
document, we are adopting the interim rule as a final rule without 
change.
    This action also affirms the information contained in the interim 
rules concerning Executive Orders 12866, 12372, and 12988, and the 
Paperwork Reduction Act. In addition, this action affirms the 
information contained in the October 2003 and January 2005 interim 
rules concerning the Regulatory Flexibility Act.
    Further, for this action, the Office of Management and Budget has 
waived its review under Executive Order 12866.

Regulatory Flexibility Act

    This rule follows a series of three interim rules regarding EAB. 
The first interim rule established regulations restricting the 
interstate movement of regulated articles from areas quarantined 
because of EAB and designated 13 counties in Michigan as quarantined 
areas. The second and third interim rules amended the regulations by 
adding areas in Indiana, Michigan, and Ohio to the list of areas 
quarantined because of EAB. In the first and second interim rules, 
published in October 2003 and January 2005, respectively, we addressed 
the economic effects, including effects on small entities, associated 
with the establishment of the EAB quarantine and regulations and the 
designation of all or portions of 26 counties in Indiana, Michigan, and 
Ohio as quarantined areas. The following analysis examines the economic 
effects on small entities associated with the March 2005 interim rule's 
extension of the quarantined areas in 1 county in Indiana, 5 counties 
in Michigan, and 3 counties in Ohio, and the addition of all or 
portions of 20 counties in Michigan to the list of areas quarantined 
because of EAB.

Economic Effects on Small Entities

    The Small Business Administration (SBA) has established size 
criteria based on the North American Industry Classification (NAICS) 
for determining which economic entities meet the definition of a small 
firm. The small entity size standard for nursery and tree production 
(NAICS code 111421) is $750,000 or less in annual receipts, and $5 
million or less in annual receipts for forest nurseries and gathering 
of forest products (NAICS code 113210). The small business size 
standard based upon NAICS codes 113310 (logging operations) and 321113 
(sawmills) is 500 or fewer persons employed by the operation.\1\ It is 
estimated that more than 90 percent of nursery operations located in 
these States 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 then 80 
percent of the sawmills located in these States have fewer than 20 
employees and each State has an average of 14-15 employees per 
operation.\3\
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    \1\ Based upon 2002 Census of Agriculture--State data and the 
``Small Business Size Standards by NAICS Industry,'' Code of Federal 
Regulations, Title 13, Chapter I.
    \2\ ``Nursery Crops: 2003 Summary'' National Agricultural 
Statistics Service, USDA July 2004.
    \3\ ``2002 Economic Census: Manufacturing'' U.S. Census Bureau, 
July 2005 (Indiana, Michigan, and Ohio geographical reports).
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    In Indiana, State officials estimate that the interim rule will 
affect a total of 12 operations. In LaGrange County, two production 
nurseries and six sawmills are located within quarantined areas. In 
Steuben County, four sawmills are located within quarantined areas. A 
nursery operation located within the quarantined area of Steuben County 
is not a grower of any species of ash, and, therefore, is not affected 
by the quarantine.
    In Ohio, State officials estimate that approximately 2,520 
operations are located within the quarantined areas of the 4 counties. 
Among the operations located within these quarantined counties are 
approximately 250 nurseries, nursery stock dealers, and landscapers, as 
well as 50 logging operations, 100 firewood dealers, 10 sawmills, 10 
pallet and other wood product manufacturers, and roughly 2,000 woodlot 
owners.
    In Michigan, State officials estimate that there are approximately 
7,000 to 8,000 nursery operations located within the State's 
quarantined areas; however, the rule only affects the ash nursery stock 
handled by these operations. In addition, it is estimated that 
approximately 5,000 to 6,000 sawmills and firewood dealers are located 
within or near quarantined areas of the State.
    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.

[[Page 14797]]

    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.

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

PART 301--DOMESTIC QUARANTINE NOTICES

    Accordingly, we are adopting as a final rule, without change, the 
interim rule establishing ``Subpart--Emerald Ash Borer'' (Sec. Sec.  
301.53-1 through 301.53-9) that was published at 68 FR 59082-59091 on 
October 14, 2003, as amended by the interim rules published at 70 FR 
249-253 on January 4, 2005, and 70 FR 10315-10318 on March 3, 2005.

    Done in Washington, DC, this 20th day of March 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 06-2865 Filed 3-23-06; 8:45 am]
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