[Federal Register: October 2, 2006 (Volume 71, Number 190)]
[Rules and Regulations]
[Page 57871-57873]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc06-1]
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Rules and Regulations
Federal Register
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[[Page 57871]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. APHIS-2006-0131]
Emerald Ash Borer; Quarantined Areas; Michigan
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
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SUMMARY: We are amending the emerald ash borer regulations by adding
areas in Michigan to the list of areas quarantined because of emerald
ash borer. As a result of this action, the interstate movement of
regulated articles from those areas is restricted. This action is
necessary to prevent the artificial spread of the emerald ash borer
from infested areas in the State of Michigan into noninfested areas of
the United States.
DATES: This interim rule became effective September 25, 2006. We will
consider all comments that we receive on or before December 1, 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-2006-0131 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 APHIS-2006-0131,
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 APHIS-2006-0131.
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: 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
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, Taiwan, and
Canada, eventually kills healthy ash trees after it bores beneath their
bark and disrupts their vascular tissues.
Quarantined Areas
The EAB regulations in 7 CFR 301.53-1 through 301.53-9 (referred to
below as the regulations) restrict the interstate movement of regulated
articles from quarantined areas to prevent the artificial spread of EAB
to noninfested areas of the United States. Portions of the States of
Indiana, Michigan, and Ohio are already designated as quarantined
areas.
Recent surveys conducted by inspectors of State, county, and city
agencies and by inspectors of the Animal and Plant Health Inspection
Service (APHIS) have revealed that spot infestations of EAB have
occurred outside the quarantined areas in Michigan. Specifically, spot
infestations of EAB have been found to be prevalent throughout the
Lower Peninsula of Michigan. Officials of the U.S. Department of
Agriculture (USDA) and officials of State, county, and city agencies in
Michigan are conducting intensive survey and eradication programs in
the infested areas. Michigan has quarantined the infested areas and has
restricted the intrastate movement of regulated articles from the
quarantined areas to prevent the spread of EAB to noninfested areas in
the Upper Peninsula of Michigan. However, Federal regulations are
necessary to restrict the interstate movement of regulated articles
from the quarantined areas to prevent the spread of EAB to other
States.
The regulations in Sec. 301.53-3(a) provide that the Administrator
of APHIS 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.
Less than an entire State will be designated as a quarantined area
only under certain conditions. Such a designation may be made if the
Administrator determines that: (1) The State has adopted and is
enforcing restrictions on the intrastate movement of regulated articles
that are equivalent to those imposed by the regulations on the
interstate movement of regulated articles; and (2) the designation of
less than an entire State as a quarantined area will be adequate to
prevent the artificial spread of the EAB.
In accordance with these criteria and the recent EAB findings
described above, we are amending Sec. 301.53-3(c) to add the areas in
the Lower Peninsula of Michigan that had not previously been
quarantined to the list of quarantined areas. A list of the counties in
Michigan that have been designated as quarantined areas can be found in
the regulatory text at the end of this document.
Emergency Action
This rulemaking is necessary on an emergency basis to help prevent
the spread of EAB to noninfested areas of
[[Page 57872]]
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.
We are amending the EAB regulations by adding areas in Michigan to
the list of quarantined areas. As a result of this action, the
interstate movement of regulated articles from those areas is
restricted. This action is necessary to prevent the artificial spread
of this plant pest into noninfested areas of the United States.
Ash trees are valuable to the commercial timber industry and are
commonly planted in urban areas. According to the Forest Inventory and
Analysis data collected by the USDA's Forest Service, there are
approximately 850 million ash trees in Michigan forests that are at
risk. These quantities do not include the millions of ash trees
extensively planted in communities, in yards, and along public rights-
of-way. \1\
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\1\ McPartlan, Deborah, USDA, APHIS, PPQ, ``Eradication of
emerald ash borer in Michigan, Ohio, and Indiana: Implementation of
the Strategic Plan.'' April 2003.
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If EAB were to spread from infested areas to the surrounding
forests of the northeastern United States, where nursery, landscaping,
and timber industries and forest-based recreation and tourism
industries play a vital economic role, the economic impact would be
severe. In addition, the cost to Federal and State agencies for EAB
eradication programs would increase significantly.
This interim rule will affect business entities located within the
newly quarantined areas of Michigan.
Although more than 7,000 nursery operations are located within the
quarantined areas of Michigan, the rule only affects the movement of
nursery stock composed of deciduous shade trees of an ash species. It
is also estimated that approximately 5,000 to 6,000 sawmills and
firewood dealers are located within or near quarantined areas of the
State. The Michigan EAB survey program is currently a statewide effort.
Estimates indicate that as many as 15,000 firms and businesses located
in quarantined areas may be affected. We do not have information on the
exact number of operations that will be regulated in the areas in
Michigan that will be newly quarantined for EAB, although we can
estimate that there were around 481 nurseries in those areas in 2002.
The Small Business Administration (SBA) has established size
criteria based on the North American Industry Classification System
(NAICS) for determining which economic entities meet the definition of
a small firm. The SBA classifies nursery and tree production businesses
(NAICS category 111421) as small entities if their annual sales
receipts are $750,000 or less. The SBA classifies forest nursery and
gathering of forest products businesses (NAICS category 113210) as
small entities if their annual sales receipts are $6.5 million or less.
The SBA classifies logging operations (NAICS category 113310) and
sawmills (NAICS category 321113) as small entities if they employ 500
or fewer persons.
The exact number and size of newly affected entities is unknown.
The Michigan Department of Agriculture estimates that more than 90
percent of nursery operations located in Michigan's Lower Peninsula
counties 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 than 80
percent of the sawmills located in Michigan have fewer than 20
employees, with an average of 14-15 employees per operation.\3\
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\2\ Personal communication, Tom Rose, Plant and Pest Management,
Michigan Department of Agriculture.
\3\ ``2002 Economic Census: Manufacturing'' U.S. Census Bureau,
July 2005 (Michigan Geographical report).
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The percentage of annual revenue attributable to ash species alone
for affected entities is unknown. However, by way of comparison, we
estimate that only about 10 to 20 of the nurseries in the original
quarantined area in Michigan (6 counties), or 0.2 to 0.5 percent of all
nurseries in those counties, were expected to be affected by the rule
that quarantined that area. It is possible that a similarly small
percentage of nurseries will be affected in the areas quarantined under
this rule.
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 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.
Under these circumstances, the Administrator of the Animal and
Plant
[[Page 57873]]
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 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 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. 301.53-3, paragraph (c), the entry for Michigan is revised
to read as follows:
Sec. 301.53-3 Quarantined areas.
* * * * *
(c) * * *
Michigan
Upper Peninsula: Chippewa County. Brimley area. That portion of the
county bounded by a line drawn as follows: Beginning at the
intersection of Michigan Route 28 and Crawford Street; then north on
Crawford Street to Irish Line Road; then north on Irish Line Road to
its end and continuing north along an imaginary line to the Bay Mills/
Superior Township line; then north and east along the Bay Mills/
Superior Township line to the Lake Superior shoreline; then east along
the Lake Superior shoreline to the Bay Mills/Soo Township line; then
south on the Bay Mills/Soo Township line to the intersection of the
Dafter and Superior Township lines at 6 Mile Road; then south along the
Dafter/Superior Township line to Forrest Road; then south on Forrest
Road to Michigan Route 28; then west on Michigan Route 28 to the point
of beginning. [Note: This quarantined area includes tribal land of the
Bay Mills Indian Community. Movement of regulated articles on those
lands is subject to tribal jurisdiction.]
Lower Peninsula: All counties, in their entirety (i.e., Alcona,
Allegan, Alpena, Antrim, Arenac, Barry, Bay, Benzie, Berrien, Branch,
Calhoun, Cass, Charlevoix, Cheboygan, Clare, Clinton, Crawford, Eaton,
Emmet, Genesee, Gladwin, Grand Traverse, Gratiot, Hillsdale, Huron,
Ingham, Ionia, Iosco, Isabella, Jackson, Kalamazoo, Kalkaska, Kent,
Lake, Lapeer, Leelanau, Lenawee, Livingston, Macomb, Manistee, Mason,
Mecosta, Midland, Missaukee, Monroe, Montcalm, Montmorency, Muskegon,
Newaygo, Oakland,Oceana, Ogemaw, Osceola, Oscoda, Otsego, Ottawa,
Presque Isle, Roscommon, Saginaw Sanilac, St. Clair, St. Joseph,
Shiawassee, Tuscola, Van Buren, Washtenaw, Wayne, and Wexford
Counties).
* * * * *
Done in Washington, DC, this 25th day of September 2006.
W. Ron DeHaven,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 06-8424 Filed 9-29-06; 8:45 am]
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