[Federal Register Volume 71, Number 191 (Tuesday, October 3, 2006)]
[Rules and Regulations]
[Pages 58243-58246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16278]



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 Rules and Regulations
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  Federal Register / Vol. 71, No. 191 / Tuesday, October 3, 2006 / 
Rules and Regulations  

[[Page 58243]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2006-0117]


Pine Shoot Beetle; Additions to Quarantined Areas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

-----------------------------------------------------------------------

SUMMARY: We are amending the pine shoot beetle regulations by adding 
counties in Illinois, Indiana, Iowa, New Jersey, New York, and Ohio to 
the list of quarantined areas. In addition, we are designating the 
States of Massachusetts, Michigan, Minnesota, and Pennsylvania, in 
their entirety, as quarantined areas based on their decision not to 
enforce intrastrate movement restrictions. Finally, we are adding the 
States of Connecticut and Rhode Island, in their entirety, to the list 
of quarantined areas based on projections of the natural spread of pine 
shoot beetle that make it reasonable to believe that the pest is 
present in those States. This action is necessary to prevent the spread 
of pine shoot beetle, a pest of pine trees, into noninfested areas of 
the United States.

DATES: This interim rule is effective October 3, 2006. We will consider 
all comments that we receive on or before December 4, 2006.

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-2006-0117 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-2006-0117, 
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-2006-0117.
    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: Mr. Weyman Fussell, Program Manager, 
Pest Detection and Management Programs, PPQ, APHIS, 4700 River Road, 
Unit 134, Riverdale, MD 20737-1231; (301) 734-5705.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 7 CFR 301.50 through 301.50-10 (referred to 
below as the regulations) restrict the interstate movement of certain 
regulated articles from quarantined areas in order to prevent the 
spread of pine shoot beetle (PSB) into noninfested areas of the United 
States.
    PSB is a pest of pine trees that can cause damage in weak and dying 
trees, where reproduction and immature stages of PSB occur. During 
``shoot feeding,'' young beetles tunnel into the center of pine shoots 
(usually of the current year's growth), causing stunted and distorted 
growth in host trees. PSB is also a vector of several diseases of pine 
trees. Factors that may result in the establishment of PSB populations 
far from the location of the original host tree include: (1) Adults can 
fly at least 1 kilometer, and (2) infested trees and pine products are 
often transported long distances. This pest damages urban ornamental 
trees and can cause economic losses to the timber, Christmas tree, and 
nursery industries.
    PSB hosts include all pine species. The beetle has been found in a 
variety of pine species (Pinus spp.) in the United States. Scotch pine 
(P. sylvestris) is the preferred host of PSB. The Animal and Plant 
Health Inspection Service (APHIS) has determined, based on scientific 
data from European countries, that fir (Abies spp.,) larch (Larix 
spp.,) and spruce (Picea spp.) are not hosts of PSB.
    Surveys conducted by State and Federal inspectors have revealed 
that 17 counties in Illinois, Indiana, New Jersey, New York, Iowa, and 
Ohio are infested with PSB. Copies of the surveys may be obtained by 
writing to the individual listed under FOR FURTHER INFORMATION CONTACT.
    The regulations in Sec.  301.50-3 provide that the Administrator of 
APHIS will list as a quarantined area each State, or each portion of a 
State, in which PSB has been found by an inspector, in which the 
Administrator has reason to believe PSB is present, or that the 
Administrator considers necessary to regulate because of its 
inseparability for quarantine enforcement purposes from localities in 
which PSB has been found. The regulations further provide that less 
than an entire State will be designated as a quarantined area only if 
the Administrator determines that: (1) The State has adopted and is 
enforcing a quarantine and regulations that impose restrictions on the 
intrastate movement of regulated articles that are equivalent to those 
imposed on the interstate movement of those articles and (2) the 
designation of less than the entire State as a regulated area will 
otherwise be adequate to prevent the artificial interstate spread of 
PSB.
    In accordance with these criteria, we are designating Jo Daviess 
and Stark Counties, IL; Dearborn County, IN; Dubuque and Scott 
Counties, IA; Bergen, Hunterdon, Passaic, Sussex, and Warren Counties, 
NJ; Columbia, Orange, and Ulster Counties, NY; and Highland, Jackson, 
Ross, and Scioto Counties, OH, as quarantined areas, and we are adding

[[Page 58244]]

them to the list of quarantined areas in Sec.  301.50-3(c).
    As noted previously, the regulations provide that, for less than an 
entire State to be designated as a quarantined area, the State must 
have adopted and be enforcing a quarantine and regulations that impose 
restrictions on the intrastate movement of regulated articles that are 
equivalent to those imposed on the interstate movement of those 
articles. The States of Michigan and Pennsylvania have contained, 
respectively, 75 and 39 counties designated as quarantined areas in the 
regulations. However, those States have notified APHIS that they no 
longer wish to enforce a quarantine and regulations on the intrastate 
movement of regulated articles within their borders. In addition, the 
States of Massachusetts and Minnesota have recently detected PSB within 
their borders, and have notified APHIS that they do not wish to enforce 
an intrastate quarantine. Therefore, we are amending Sec.  301.50-3(c) 
to designate the States of Massachusetts, Michigan, Minnesota, and 
Pennsylvania, in their entirety, as quarantined areas.
    Although there has been no detection of PSB in Connecticut or Rhode 
Island, the beetle has been detected in the remainder of New England 
and in the surrounding States. PSB has been moving by natural spread 
east and west from the original infested area in Ohio since 1992. It is 
reasonable to believe that PSB may already be present in Connecticut 
and Rhode Island, as they both have highly developed urban areas, and 
low quantities of host material, such that the population level of the 
beetle would be too low to detect. The States of Connecticut and Rhode 
Island have requested that APHIS designate both States as quarantined 
areas. Therefore, we are amending Sec.  301.50-3(c) to designate the 
States of Connecticut and Rhode Island, in their entirety, as 
quarantined areas.
    Entities affected by this interim rule may include nursery stock 
growers, Christmas tree farms, logging operations, and others who sell, 
process, or move regulated articles. As a result of this interim rule, 
any regulated articles to be moved interstate from a quarantined area 
must first be inspected and/or treated in order to qualify for a 
certificate or limited permit authorizing the movement.

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent PSB 
from spreading 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 has waived its review under 
Executive Order 12866.
    This rule amends the PSB regulations by adding counties in 
Illinois, Indiana, Iowa, New Jersey, New York, and Ohio to the list of 
quarantined areas, by designating the States of Massachusetts, 
Michigan, Minnesota, and Pennsylvania, in their entirety, as 
quarantined areas based on their decision not to enforce intrastrate 
movement restrictions, and by adding the States of Connecticut and 
Rhode Island, in their entirety, to the list of quarantined areas based 
on projections of the natural spread of pine shoot beetle that make it 
reasonable to believe that the pest is present in those States.
    Entities affected by this rule may include nurseries, Christmas 
tree farms, logging operations, moving companies and others who sell, 
process, or move regulated articles interstate from these areas. As a 
result of this rule, any regulated articles to be moved interstate from 
a quarantined area must first be inspected and/or treated in order to 
qualify for a certificate or limited permit. This action will help 
prevent the artificial spread of the pest to new areas, and 
consequently avoid economic damage to timber, nursery, and Christmas 
tree producers in areas that could become infested if no action were 
taken.
    Certain pine products will not be allowed to be shipped during 
certain months of the year or will be required to undergo debarking 
before transport occurs. Enterprises such as Christmas tree farms, 
nurseries and greenhouses, sawmill and logging operations, and others 
in the newly designated PSB quarantined areas wishing to move regulated 
articles from these areas may be affected by compliance requirements, 
however, costs associated with issuance of certificates and limited 
permits are borne by the issuing agency.
    APHIS has identified approximately 12,684 entities which sell, 
process, or move forest products in these 17 counties and 6 States that 
may be impacted by this rule (table 1). Of these entities, there were 
approximately 8,800 which were producing nursery and greenhouse crops, 
and 3,884 Christmas tree farms in 2002. In addition, an unknown number 
of sawmills and logging operations in the newly quarantined counties 
process pine tree products. According to information previously 
collected by APHIS, pine trees and pine tree products such as cut 
Christmas trees sold in these areas largely remain within the regulated 
areas. Nurseries and greenhouses specialize in production of deciduous 
landscape products rather than production of rooted pine Christmas 
trees and pine nursery stock. The latter products in general constitute 
a small part of their production, if they are produced at all. 
Therefore, the rule is not likely to affect most nurseries and 
greenhouses.

                           Table 1.--2002 Value of Sales and Number of Entities Selling Nursery Crops and Cut Christmas Trees
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       Number of cut
                                                                     Number of     2002 market value  Christmas tree   2002 market value     Number of
              Newly quarantined States and counties                 nursery and    of products sold      and short     of products sold      sawmills
                                                                    greenhouse         ($1,000)       rotation woody        (1,000)         (NAICS code
                                                                       farms                            crops farms                         321113) \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Connecticut.....................................................             685            $245,773             382              $3,407              19
2 counties in Illinois..........................................              14                 856               5                  22         unknown
1 county in Indiana.............................................              17                 443               2             (D) \2\         unknown
2 counties in Iowa..............................................              33               2,972               3                  16         unknown
Massachusetts...................................................             902             153,540             306               1,800              37

[[Page 58245]]

 
Michigan........................................................           2,185             628,699           1,076              30,411             148
Minnesota.......................................................             983             224,410             327              11,855              69
5 counties in New Jersey........................................             403              47,609             345     1,505 + (D) \2\         unknown
3 counties in New York..........................................             201              26,147              42       118 + (D) \2\         unknown
4 counties in Ohio..............................................              77       4,220+(D) \2\              10                  NA         unknown
Pennsylvania....................................................           3,075             732,709           1,326              31,193             291
Rhode Island....................................................             225              37,593              60                 658               8
                                                                 ------------------------------------------------------------------------
    Total.......................................................           8,800   2,104,971+(D) \2\           3,884              80,985  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USDA, NASS, 2002 Census of Agriculture (Table 2, Market Value of Agricultural Products sold including Direct and Organic in 2002 by State and
  County Data and 2002 Economic Census, Geographical Area Series by State (Table 1, Industry Statistics for the State 2002, Manufacturing.)
\1\ The number of sawmills is reported by State only and thus there are no numbers by county. The number of sawmills in the newly quarantined areas is
  bigger than 572 (i.e., the known number of sawmills for the 6 States) and smaller than 1,021 (i.e., the number of sawmills in all 12 States).
\2\ (D): Amount has not been reported to avoid disclosure.

    The Small Business Administration (SBA) has established size 
standards to determine when an entity is considered small. Nursery 
stock growers may be considered small when they have annual sales of 
$750,000 or less, and Christmas tree growers may be considered small 
when they have annual sales of $5 million or less.
    The 2002 Agricultural Census does not report sales by entity size. 
However, from previously gathered information, APHIS expects that the 
majority of these entities are small by the SBA size standards.
    Regulated articles from quarantined areas may be moved interstate 
if accompanied by a certificate or limited permit. A certificate for 
interstate movement of regulated articles from quarantined areas is 
issued by an inspector after it is determined that the regulated 
articles are not infested with PSB and do not present a risk of 
spreading PSB to other areas. A limited permit is issued by an 
inspector for the interstate movement of regulated articles from 
quarantined areas when they are to be moved to a specified destination 
for processing, handling or utilization and the movement will not 
result in the spread of PSB. Regulated articles must have the name of 
the consignor and consignee, as well as the certificate or limited 
permit, attached during all segments of interstate movement.
    A request for a certificate or a limited permit must be made at 
least 48 hours prior to transporting the regulated articles interstate. 
The cost for this service falls upon the issuing agency, and not the 
person/business entity requesting the certificate/limited permit.
    This rule designates newly quarantined areas for PSB. APHIS has 
identified approximately 8,800 nursery and greenhouse farms, 3,884 cut 
Christmas tree farms, and an unknown number of logging operations, in 
the newly quarantined 17 counties and 6 States. As noted previously, 
the movement of cut Christmas pine trees and pine tree products by 
these establishments is generally within the regulated counties and 
States. Thus, those farms, nurseries, logging operations, and other 
entities are expected to be little affected by this rule.
    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 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 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).


0
2. In Sec.  301.50-3, paragraph (c) is amended as follows:
0
a. By adding, in alphabetical order, entries for Connecticut, Iowa, 
Massachusetts, Minnesota, New Jersey, and Rhode Island to read as set 
forth below.
0
b. By revising the entries for Michigan and Pennsylvania to read as set 
forth below.
0
c. In the entries for Illinois, Indiana, New York and Ohio, by adding 
new counties in alphabetical order to read as set forth below.


Sec.  301.50-3  Quarantined areas.

* * * * *

[[Page 58246]]

    (c) * * *
Connecticut
    The entire State.
Illinois
* * * * *
    Jo Daviess County. The entire county.
* * * * *
    Stark County. The entire county.
* * * * *
Indiana
* * * * *
    Dearborn County. The entire county.
* * * * *
Iowa
    Dubuque County. The entire county.
    Scott County. The entire county.
* * * * *
Massachusetts
    The entire State.
Michigan
    The entire State.
Minnesota
    The entire State.
* * * * *
New Jersey
    Bergen County. The entire county.
    Hunterdon County. The entire county.
    Passaic County. The entire county.
    Sussex County. The entire county.
    Warren County. The entire county.
New York
* * * * *
    Columbia County. The entire county.
* * * * *
    Orange County. The entire county.
* * * * *
    Ulster County. The entire county.
* * * * *
Ohio
* * * * *
    Highland County. The entire county.
* * * * *
    Jackson County. The entire county.
* * * * *
    Ross County. The entire county.
* * * * *
    Scioto County. The entire county.
* * * * *
Pennsylvania
    The entire State.
Rhode Island
    The entire State
* * * * *

    Done in Washington, DC, this 27th day of September 2006.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E6-16278 Filed 10-2-06; 8:45 am]
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