[Federal Register Volume 72, Number 163 (Thursday, August 23, 2007)]
[Rules and Regulations]
[Pages 48225-48227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16695]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2007-0005]


Emerald Ash Borer; Additions to Quarantined Areas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Affirmation of interim rule as final rule.

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SUMMARY: We are adopting as a final rule, without change, an interim 
rule that amended the emerald ash borer regulations by designating the 
States of Illinois, Indiana, and Ohio, in their entirety, as 
quarantined areas. The interim rule was necessary to prevent the 
artificial spread of the emerald ash borer into noninfested areas of 
the United States. As a result of the interim rule, the interstate 
movement of regulated articles from those States is restricted.

DATES: Effective on August 23, 2007, we are adopting as a final rule 
the interim rule published at 72 FR 15597-15598 on April 2, 2007.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah McPartlan, National 
Emerald Ash Borer Program Manager, Emergency and Domestic Programs, 
PPQ, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737-1236; (301) 
734-5356.

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, Taiwan, and 
Canada, eventually kills healthy ash trees after it bores beneath their 
bark and disrupts their vascular tissues.
    The EAB regulations in 7 CFR 301.53-1 through 301.53-9 (referred to 
below as the regulations) restrict the interstate

[[Page 48226]]

movement of regulated articles from quarantined areas to prevent the 
artificial spread of EAB into noninfested areas of the United States. 
The regulations in Sec.  301.53-3(a) provide that the Administrator of 
the Animal and Plant Health Inspection Service 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.
    In an interim rule \1\ effective and published in the Federal 
Register on April 2, 2007 (72 FR 15597-15598, Docket No. 2007-0005), we 
amended the regulations in Sec.  301.53-3(c) by designating the States 
of Illinois, Indiana and Ohio, in their entirety, as quarantined areas. 
Comments on the interim rule were required to be received on or before 
June 1, 2007. We did not receive any comments. Therefore, for the 
reasons given in the interim rule, we are adopting the interim rule as 
a final rule.
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    \1\ To view the interim rule and the comments we received, go to 
http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0005.
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    This action also affirms the information contained in the interim 
rule concerning Executive Orders 12866, 12372, and 12988, and the 
Paperwork Reduction Act. Further, for this action, the Office of 
Management and Budget has waived its review under Executive Order 
12866.

Regulatory Flexibility Act

    This rule affirms an interim rule that amended the EAB regulations 
by designating the States of Illinois, Indiana, and Ohio, in their 
entirety, as quarantined areas. The interim rule was necessary to 
prevent the artificial spread of the emerald ash borer into noninfested 
areas of the United States. As a result of the interim rule, the 
interstate movement of regulated articles from those States is 
restricted.
    The following analysis addresses the economic effects of the 
interim rule on small entities, as required by the Regulatory 
Flexibility Act.
    Based on data from the 2002 Census of Agriculture, there were 4,909 
nurseries and 285 sawmills in Illinois, Indiana, and Ohio in that year. 
The interim rule will not have negatively affected entities in areas of 
the three States that were already under quarantine. Those entities 
may, in fact, benefit by not having to have regulated articles 
certified prior to movement within the State, as had been the case when 
only a portion of each State was quarantined. We do not know the number 
of these entities. For the newly quarantined entities in the three 
States, the extent to which they will be affected by the interim rule 
will depend on the importance of ash species to their businesses and 
the share of ash species sales that are interstate.
    In Indiana, the interim rule may affect as many as 1,123 nurseries, 
114 sawmills, and an unknown number of firewood dealers, ash lumber 
producers, and woodlot owners, based on 2002 data. In Ohio, there are 
at least 2,678 nurseries and 121 sawmills that may be affected by the 
EAB quarantine. There are also at least 60 ash lumber operations, 18 
firewood dealers, and an unknown number of woodlot owners and 
landscapers.\2\ In Illinois, the interim rule may affect at least 1,108 
nursery operations and 50 sawmills. However, the rule only affects the 
proportion of nursery stock in these operations that is deciduous shade 
trees of an ash species.
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    \2\ Tom Harrison, Ohio Department of Agriculture, personal 
communication.
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    The U.S. Census of Agriculture does not report sale receipts nor 
the number of employees by entity. It is reasonable to assume that most 
are small in size according to the U.S. Small Business Administration's 
standards. The small business size standard based upon the North 
American Industry Classification System (NAICS) code 111421 (nursery 
and tree production) is $750,000 or less in annual receipts. The small 
business size standard based upon NAICS code 113210 (forest nursery and 
gathering of forest products) is $6 million or less in annual receipts. 
The small business size standard based upon NAICS codes 113310 (logging 
operations) and 321113 (sawmills) is 500 or fewer persons employed by 
the operation.\3\ 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).\4\ It is reasonable to assume that nearly all 
sawmills and logging operations have 500 or fewer employees, since more 
than 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.\5\ The percentage of annual revenue attributable to ash 
species alone for affected entities is unknown.
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    \3\ Based upon 2002 Census of Agriculture--State Data and the 
``Small Business Size Standards by NAICS Industry.'' Code of Federal 
Regulations, Title 13, Chapter 1.
    \4\ ``Nursery Crops: 2002 Summary.'' National Agricultural 
Statistics Service, USDA July 2004.
    \5\ ``2002 Economic Census: Manufacturing.'' U.S. Census Bureau, 
July 2005 (Indiana, Illinois, and Ohio Geographical reports).
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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 
only 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 that 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 during normal business hours. 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 leads us to believe that any economic effects on 
affected small

[[Page 48227]]

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 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

0
Accordingly, we are adopting as a final rule, without change, the 
interim rule that amended 7 CFR part 301 and that was published at 72 
FR 15597-15598 on April 2, 2007.

    Done in Washington, DC, this 15th day of August 2007.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service
[FR Doc. E7-16695 Filed 8-22-07; 8:45 am]
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