[Federal Register Volume 68, Number 198 (Tuesday, October 14, 2003)]
[Rules and Regulations]
[Pages 59082-59091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25881]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 02-125-1]
Emerald Ash Borer; Quarantine and Regulations
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
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SUMMARY: We are quarantining 13 counties in Michigan because of the
emerald ash borer and restricting the interstate movement of regulated
articles from these quarantined areas. This action is necessary on an
emergency basis to prevent the artificial spread of this plant pest
from infested areas in the State of Michigan to noninfested areas of
the United States.
DATES: This interim rule was effective October 8, 2003. We will
consider all comments that we receive on or before December 15, 2003.
ADDRESSES: You may submit comments by postal mail/commercial delivery
or by e-mail. If you use postal mail/commercial delivery, please send
four copies of your comment (an original and three copies) to: Docket
No. 02-125-1, Regulatory Analysis and Development, PPD, APHIS, Station
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state
that your comment refers to Docket No. 02-125-1. If you use e-mail,
address your comment to [email protected]. Your comment must
be contained in the body of your message; do not send attached files.
Please include your name and address in your message and ``Docket No.
02-125-1'' on the subject line.
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.
APHIS documents published in the Federal Register, and related
information, including the names of organizations and individuals who
have commented on APHIS dockets, are available on the Internet at
http://www.aphis.usda.gov/ppd/rad/webrepor.html.
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.
EAB has been found in ash trees in several Michigan counties.
Within those counties, EAB has infested thousands of square miles, and
we estimate that over 30 million ash trees are currently at risk in
affected counties. EAB has already caused an estimated $11.6 million in
landscape industry and wood lot losses, and approximately $2 million in
lost nursery stock sales. Inestimable, though, is the loss of
aesthetic, recreational, and habitat-providing values that ash trees
provide. Should EAB spread from infested areas in Michigan into forests
of the north-central United States, where nursery, landscaping, and
timber industries and forest-based recreation and tourism industries
are vital components of the economy, the pest's impact would be
tremendous. Further, in the affected counties and the areas that
surround those counties, ash is a major component of the urban forest
because of its natural resistance to other
[[Page 59083]]
tree pests and its hardiness in urban environments.
Officials of the U.S. Department of Agriculture (USDA) and
officials of State, county, and city agencies in Michigan have been
conducting an intensive survey and eradication program in the infested
areas. The State of Michigan has quarantined 13 counties in the
southeastern portion of the State and is restricting the intrastate
movement of certain articles from the quarantined areas to prevent the
artificial spread of EAB within Michigan. However, Federal regulations
are necessary to restrict the interstate movement of certain articles
from the quarantined areas to prevent the artificial spread of EAB to
other States.
Therefore, we are amending 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). These
regulations quarantine the 13 counties designated in Michigan's State
quarantine and restrict the interstate movement of regulated articles
from the quarantined areas.
Definitions
In Sec. 301.53-1, we define the following terms: Administrator,
Animal and Plant Health Inspection Service (APHIS), certificate,
compliance agreement, emerald ash borer, infestation, inspector,
interstate, limited permit, moved (movement, move), person, quarantined
area, regulated article, and State. With one exception, these terms are
widely used in our other domestic quarantines in part 301, and the
definitions we provide in Sec. 301.53-1 are consistent with those
provided elsewhere in part 301. We have defined the term emerald ash
borer as the insect known as emerald ash borer (Agrilus planipennis) in
any stage of development.
Regulated Articles
Certain articles present a significant risk of spreading EAB if the
articles are moved from quarantined areas without restriction. We call
these articles ``regulated articles.'' Regulated articles may not be
moved interstate from quarantined areas except in accordance with the
conditions specified in Sec. Sec. 301.53-4 through 301.53-9 of the
regulations. In Sec. 301.53-2, paragraph (a) designates the following
as regulated articles: (1) The emerald ash borer; (2) firewood (all
hardwood species); and (3) nursery stock, green lumber, and other
material living, dead, cut, or fallen, including logs, stumps, roots,
branches, and composted and uncomposted chips of the genus Fraxinus. We
are designating all hardwood species of firewood as regulated articles
because as hardwood is dried and cut into firewood, it is difficult to
identify the species of the tree from which the firewood was derived.
Paragraph (b) of Sec. 301.53-2 provides that any other article,
product, or means of conveyance not listed in paragraph (a) of that
section may be designated as a regulated article if an inspector
determines that it presents a risk of spreading EAB and notifies the
person in possession of the article, product, or means of conveyance
that it is subject to the restrictions of the regulations. This
provision will allow an inspector who discovers evidence of EAB in an
article, product, or means of conveyance to take immediate action after
informing the person in possession of it that it is being regulated.
Quarantined Areas
In Sec. 301.53-3, paragraph (a) provides that the Administrator
will quarantine each State or portion of a State in which EAB has been
found by an inspector, in which the Administrator has reason to believe
that EAB is present, or which the Administrator deems necessary to
regulate 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 listed in
Sec. 301.53-2 that are equivalent to the interstate movement
restrictions imposed by the regulations in Sec. Sec. 301.53-1 through
301.53-9; 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.
Paragraph (b) of Sec. 301.53-3 provides that the Administrator or
an inspector may temporarily designate any nonquarantined area as a
quarantined area in accordance with the criteria in Sec. 301.53-3(a).
The Administrator will give written notice of this temporary
designation to the owner or person in possession of the nonquarantined
area, or, in the case of publicly owned land, the person responsible
for the management of the nonquarantined area. This is necessary to
prevent the spread of EAB before restrictions can be published in the
Federal Register concerning the interstate movement of regulated
articles from the designated area. As soon as practicable, this area
will be added to the list of quarantined areas or the designation will
be terminated by the Administrator or an inspector. The owner or person
in possession of an area for which designation is terminated will be
given notice of the termination as soon as practicable.
In accordance with these criteria, we are quarantining 13 counties
in Michigan because of the EAB and restricting the interstate movement
of regulated articles from the quarantined areas. Specifically, in
Sec. 301.53-3(c) we list Genesee, Ingham, Jackson, Lapeer, Lenawee,
Livingston, Macomb, Monroe, Oakland, St. Clair, Shiawassee, Washtenaw,
and Wayne Counties, MI, as quarantined areas.
Interstate Movement of Regulated Articles From Quarantined Areas
In Sec. 301.53-4, paragraph (a) provides that 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 issued and attached as prescribed by Sec. Sec. 301.53-5
and 301.53-8.
Paragraph (b) of Sec. 301.53-4 provides that a regulated article
may be moved interstate without a certificate or limited permit if the
regulated article is moved by the USDA for experimental or scientific
purposes or if the regulated article originates outside the quarantined
area. Articles originating outside the quarantined area that are moved
interstate through a quarantined area must be moved under the following
conditions: (1) The points of origin and destination are indicated on a
waybill accompanying the regulated article; (2) the regulated article,
if moved through the quarantined area during the period of May 1
through August 31 or when the ambient air temperature is 40 [deg]F or
higher, is moved in an enclosed vehicle or is completely covered to
prevent access by the EAB; (3) the regulated article is moved directly
through the quarantined area without stopping (except for refueling or
for traffic conditions, such as traffic lights or stop signs), or has
been stored, packed, or handled at locations approved by an inspector;
and (4) the article has not been combined or commingled with other
articles so as to lose its individual identity.
Certificates and Limited Permits
Under Federal domestic plant quarantine programs, there is a
difference between the use of certificates and the use of limited
permits. Prior to movement, certificates are issued for regulated
articles upon a finding by an inspector that, because of certain
conditions (e.g., the article is
[[Page 59084]]
free of a pest), the movement presents low risk of disseminating pests.
With a certificate, the article may be moved interstate without further
restrictions. Limited permits are issued for regulated articles when an
inspector has determined that, because of possible pest or disease
risk, such articles may be safely moved interstate only subject to
further restrictions, such as movement to specified areas and movement
for specified purposes. Section 301.53-5 sets out the conditions for
issuing certificates and limited permits for movement from areas
quarantined for EAB and for canceling certificates and limited permits.
Paragraph (a) of 301.53-5 provides that an inspector or a person
operating under a compliance agreement (discussed below) will issue a
certificate for the interstate movement of a regulated article if he or
she determines that the regulated article:
[sbull] Is apparently free of EAB, based on inspection, or the
article has been grown, produced, manufactured, stored, or handled in a
manner that, in the judgment of the inspector, prevents the regulated
article from presenting a risk of spreading EAB;
[sbull] Is to be moved in compliance with any additional emergency
conditions the Administrator may impose under the Plant Protection Act
to prevent the artificial spread of EAB; and
[sbull] Is eligible for unrestricted movement under all other
Federal domestic plant quarantines and regulations applicable to the
regulated article.
Paragraph (b) of 301.53-5 provides for the issuance of a limited
permit (rather than a certificate) by an inspector or person operating
under a compliance agreement for movement of a regulated article if he
or she determines that the regulated article:
[sbull] Is to be moved interstate to a specified destination for
specific processing, handling, or utilization (the destination and
other conditions to be listed in the limited permit and/or compliance
agreement), and the interstate movement will not result in the
artificial spread of EAB because EAB will be destroyed by the specific
processing, handling, or utilization;
[sbull] Is to be moved interstate in compliance with any additional
emergency conditions the Administrator may impose under the Plant
Protection Act to prevent the artificial spread of EAB; and
[sbull] Is eligible for unrestricted movement under all other
Federal domestic plant quarantines and regulations applicable to the
regulated article.
Paragraph (c) of 301.53-5 provides that an inspector will issue
blank certificates and limited permits to a person operating under a
compliance agreement or authorize reproduction of the certificates or
limited permits on shipping containers, or both, as requested by the
person operating under the compliance agreement. These certificates or
limited permits may then be completed and used, as needed, for the
interstate movement of regulated articles that have met all of the
requirements of Sec. 301.53-5(a) or Sec. 301.53-5(b), respectively.
Paragraph (d) of 301.53-5 provides that a certificate or limited
permit may be canceled by an inspector, orally or in writing, whenever
the inspector determines that the holder of the certificate or limited
permit has not complied with the regulations. If the cancellation is
oral, the cancellation will become effective upon notification by the
inspector. The cancellation and the reasons for the cancellation will
then be confirmed in writing as soon as circumstances allow after oral
notification of the cancellation. Any person whose certificate or
limited permit has been canceled may appeal the decision, in writing,
within 10 days after receiving the written cancellation notice. The
appeal must state all of the facts and reasons that the person wants
the Administrator to consider in deciding the appeal. A hearing may be
held to resolve a conflict as to any material fact. Rules of practice
for the hearing will be adopted by the Administrator. As soon as
practicable, the Administrator will grant or deny the appeal, in
writing, stating the reasons for the decision.
Compliance Agreements
Section 301.53-6 provides for the use and cancellation of
compliance agreements. Under Sec. 301.53-6(a), compliance agreements
may be entered into by any person engaged in the growing, handling, or
interstate movement of regulated articles if such persons review with
an inspector each stipulation of the compliance agreement. Any person
who enters into a compliance agreement with APHIS must agree to comply
with the regulations.
Paragraph (b) of 301.53-6 explains that a compliance agreement may
be canceled by an inspector, orally or in writing, whenever the
inspector determines that the person who entered into the compliance
agreement has not complied with the regulations. If the cancellation is
oral, the cancellation will become effective upon oral notification by
the inspector. The cancellation and the reasons for the cancellation
will then be confirmed in writing as soon as circumstances allow after
oral notification of the cancellation. Any person whose compliance
agreement has been canceled may appeal the decision, in writing, within
10 days after receiving the written cancellation notice. The appeal
must state all of the facts and reasons that the person wants the
Administrator to consider in deciding the appeal. A hearing may be held
to resolve a conflict as to any material fact. Rules of practice for
the hearing will be adopted by the Administrator. As soon as
practicable, the Administrator will grant or deny the appeal, in
writing, stating the reasons for the decision.
Assembly and Inspection of Regulated Articles
Paragraph (a) of Sec. 301.53-7 provides that any person who
requires certification or other services from an inspector must request
the services at least 48 hours before they are needed. Paragraph (b) of
Sec. 301.53-7 provides that regulated articles must be assembled at
the place and in the manner an inspector designates as necessary to
comply with the regulations.
Attachment and Disposition of Certificates and Limited Permits
In Sec. 301.53-8, paragraph (a) requires that regulated articles
intended for interstate movement be plainly marked with the name and
address of the consignor and the name and address of the consignee and
that, during the interstate movement, the certificate or limited permit
issued for the interstate movement of regulated articles be attached to
either: (1) The regulated article, (2) the container carrying the
regulated article, or (3) the accompanying waybill. However, the
certificate or limited permit may be attached to the consignee's copy
of the waybill only if the certificate or limited permit and the
waybill contain a sufficient description of the regulated article to
identify the regulated article. This provision is necessary for
enforcement purposes.
Paragraph (b) of 301.89-9 requires the carrier of the article to
furnish the certificate or limited permit to the consignee at the
shipment's destination.
Costs and Charges
Section 301.53-9 provides that the services of an inspector are
provided without cost during normal business hours to persons requiring
those services to comply with the regulations. The user will be
responsible for all costs
[[Page 59085]]
and charges arising from inspection and other services provided outside
of normal business hours.
Emergency Action
This rulemaking is necessary on an emergency basis to prevent the
spread of EAB into 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. 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.
We are quarantining 13 counties in Michigan because of the EAB and
restricting the interstate movement of regulated articles from these
quarantined areas. This action is necessary on an emergency basis to
prevent the artificial spread of this plant pest from infested areas in
the State of Michigan to noninfested areas of the United States.
As stated previously, EAB is a highly destructive, wood-boring
insect pest that attacks several species of ash (Fraxinus spp.). White
ash (Fraxinus americana L.), black ash (Fraxinus nigra Marsh.), and
green ash (Fraxinus pennsylvanica Marshall.) varieties are known to be
susceptible in the United States; however, there are indications that
other varieties of ash may also be at risk. Therefore, we are placing
restrictions on certain articles of the genus Fraxinus.
If the EAB spreads from infested areas in Michigan 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, its impact would be
severe. Within 50 miles of Detroit, there are 2,280 square kilometers
of forest land, and within 100 miles of the city, there are 7,836
square kilometers of forest. The pest has the potential to destroy
entire stands of ash, and any incursion of the pest can result in
substantial losses to forest ecosystems, urban trees, and the timber
industry. Adults bore D-shaped holes up to a diameter of 1 centimeter
into sapwood, and these holes create pathways for pathogens and insect
vectors.
Domestically, black, green, and white ash serve as an important
component in the forests of the northeast. Further, the wood is used
for a variety of applications that require a strong, hard wood with
less rigidity than maple. White ash is one of the primary commercial
hardwoods used for the production of tool handles, baseball bats,
furniture, antique vehicle parts, containers, railroad cars and ties,
canoe paddles, snowshoes, boats, doors, and cabinets. Green ash is a
valued species for solid wood products, pulp and paper requiring
hardwood fibers, crating, boxing, handle stock, and rough lumber. Black
ash, while not as strong as other varieties, is regularly used for
interior furnishings, furniture, and cabinets. Damage left by the EAB
reduces the quality and market value of wood products, and dying and
dead trees are useless for manufacturers.
Beyond manufacturing, ash trees play an important role in the urban
landscape. Ash is known for its natural resistance to many other trees
pests and its hardiness in cities. Many of the ash trees that now serve
as ornamental, street, shade, and landscape beautification trees were
planted to replace elm trees destroyed because of Dutch elm disease.
Ash trees are vital sources of food and shelter for wildlife and
livestock, and they have been planted in the rehabilitation of damaged
natural areas. Because of the EAB, these natural and aesthetic values
are at risk in affected regions.
Earlier this year, Michigan's State EAB quarantine designated only
six counties as quarantined areas. Recently, Michigan expanded its
quarantine to include seven more counties. County-specific figures
included in this analysis apply only to the six counties (Livingston,
Macomb, Monroe, Oakland, Washtenaw, and Wayne) originally quarantined
by the State; information for the seven counties (Genesee, Ingham,
Jackson, Lapeer, Lenawee, St. Clair, and Shiawassee) recently added to
the quarantine is not yet available.
Damage to ash trees in the lots owned by the landscape industry and
woodlots in southeast Michigan over the past 5 years is estimated at
$11.6 million. In Michigan and Canada, we estimate that between 250,000
and 2 million trees are already affected by the pest. In the six
counties originally quarantined by the State of Michigan, 26.1 million
trees are at risk, and the replacement value of those trees is
estimated to be $11.7 billion; this figure, of course, excludes their
aesthetic, oxygen-producing, and habitat-providing values. Already,
because of EAB infestation and subsequent damage and the effects of the
quarantine placed by the State of Michigan, producers have lost
approximately $2 million in nursery stock sales. While ash species
other than black, green, and white ash have not been attacked in North
America, we believe the remaining 13 species may also be susceptible,
and in 2002 the Canadian Food Inspection Agency confirmed that theory
in the results of a EAB pest risk assessment. In Japan, EAB has also
affected trees in the genus Ulmus (elms), Juglans (walnuts and
butternuts), and Pterocarya (wingnuts).
The pattern and significant numbers of trees harmed or destroyed
because of the pest suggest that EAB has been established in Michigan
for at least 5 years, though it was definitively identified only in
July 2002. We are not aware of the capability for EAB's natural spread
in North America, and information on EAB biology in Asia is scarce.
Studies on the pest in both North America and Asia are underway.
Current research suggests that EAB typically completes one generation
per year in northeastern China and that females lay 68 to 90 eggs in
their lifetime. Usually, trees die 2 to 4 years after an EAB attack. We
know that adult beetles are capable of dispersing by flight in 8 to 12
meter bursts, and we are aware of EAB ``bursting'' distances of several
kilometers in search of new ash host material.
Since EAB appears to survive well in North American climatic
conditions, it is probable that EAB could continue to disperse among
various contiguous corridors of host material in natural and urban
environments. In northeastern China, EAB has successfully built
severely damaging populations and traveled great distances in search of
new hosts. Especially troubling in North America is the apparent lack
of natural predators and other biological factors that would contribute
to EAB mortality. A relative of EAB, the bronze birch borer (Agrilus
axius), is capable of a natural spread of 10 to 20 miles per year, and
this might be a possible estimate of EAB's spreading capability.
The spread of EAB can be accelerated through human-assisted
movement and trade of nursery stock, lumber, and logs. Solid wood
packing materials (SWPM), especially if those materials include bark,
pose a special concern. From 1985
[[Page 59086]]
to 2000, APHIS personnel reported 38 interceptions of species of the
genus Agrilus in shipments of SWPM at ports of entry in 11 different
States, and those shipments originated in at least 11 countries. Since
EAB larvae can overwinter in the sapwood they burrow into, it is
uncertain whether debarking of lumber is an effective way to destroy
the pest.
Specific Risks to Urban Forests
Urban areas of the United States cover approximately 3.5 percent of
the total land area of the country, contain more than 75 percent of the
population, and support an estimated 3.8 billion trees valued at $2.4
trillion. Michigan's total urban tree population is estimated at
110,858,000 trees, and ash is a vital component of this urban forest.
Trees in urban Michigan, like trees in any city, sequester gaseous air
pollutants and particulate matter, help people conserve energy through
the shade they provide, assist in the dispersal of storm water, provide
protective shelter belts for urban fauna, and contribute aesthetic
pleasure to the lives of city-dwellers and tourists.
Field data from eight cities suggests that ash trees comprise up to
14 percent of the total leaf area of those cities. Based on these data,
the ash tree resources at risk in just those eight cities would amount
to $565 million; see table 1 below. The survey, the only available data
regarding urban ash at risk, concentrates on ash in the eastern United
States; however ash is more widely planted in urban regions of the
midwest. These estimates are based on the assumption that all living
ash in the cities may be destroyed by EAB and did not incorporate
estimates of the EAB's biological or artificial spread rates, since
those are not known.
Table 1.--Preliminary Estimates of Tree Resources at Risk for Infestation by Agrilus Planipennis in Eight U.S.
Cities (Ordered by Ash Leaf Area) Based on the Total of All Living Preferred Host Species (Ash Trees)
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Number of ash
City Leaf area (%) trees Value lost Value per tree
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Chicago, IL......................... 14.4 603,000 $230,949,000 $383
Baltimore, MD....................... 8.5 292,700 227,568,000 777
Philadelphia, PA.................... 4.7 117,000 68,408,000 584
Boston, MA.......................... 0.9 29,200 13,341,000 457
Syracuse, NY........................ 0.9 6,900 6,400,000 929
New York, NY........................ 0.3 27,600 9,770,000 354
Atlanta, GA......................... 0.3 38,900 7,119,000 183
Oakland, CA......................... 0.2 7,500 1,514,000 202
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Total value loss for all cities. ................. ................. 565,069,000 .................
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Further, assuming that the EAB is capable of spreading through all
urban areas of the lower 48 States and destroying all urban ash trees,
the United States could suffer a national undiscounted loss of $20 to
$60 billion. Since firm data are not available regarding the pest's
biological or artificial spread patterns in North America, all losses
are based on limited data that assume a 100 percent destruction rate.
More field data from urban areas across the United States are needed to
provide more accurate estimates of the resources at risk from EAB.
Specific Risks to Timber
Within Michigan, there are 693 million EAB-susceptible trees grown
on timberland, with an undiscounted compensatory value estimated at
$18.92 billion. In the 6 counties first quarantined by the State of
Michigan, there are more than 31 million ash trees at risk. We are
investigating possible monetary losses to forestry interests based on
stumpage \1\ value. These losses are likely to be less than monetary
losses based on compensatory value, since stumpage values are usually
applied to older trees that are greater than 5 inches in diameter, and
compensatory values are applied for trees greater than 1 inch in
diameter.
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\1\ Stumpage value refers to the commercial value of trees
standing in the forest. Stumpage prices may be offered in reference
to board foot volume ($/m.b.f.), weight ($/ton), or truck loads ($/
load). (From: http://extension.usu.edu/forestry/Management/Timber_Valueterms2Know.htm)
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Should the EAB spread or be artificially introduced to areas
outside of Michigan, monetary losses could grow significantly. Ash
trees for timber products are predominantly concentrated in the East,
and available data on production volumes for ash were available only
for this region. Table 2 shows the net volumes of ash trees grown for
sawtimber in the Eastern region of the United States in 1996, the most
recent year for which data is available. A net volume of 113,916
million board feet of ash sawtimber is grown in the Eastern region,
comprising 7.5 percent of the volume of all hardwoods. The average
stumpage price for sawtimber sold from national forests in 2000 was
$220.30 per 1,000 board feet for all eastern hardwoods.
Table 2.--Net Volume of Sawtimber on Timber Land in the Eastern United States, by Regions and Species
[In million board feet]
----------------------------------------------------------------------------------------------------------------
Total North South
Species Total East North Northeast central Total South Southeast central
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Ash............................ 113,916 35,575 11,740 23,835 78,341 34,848 43,493
Total hardwoods................ 1,516,086 519,699 229,504 290,195 996,387 424,233 572,154
Ash as % of all hardwoods...... 7.5 6.8 5.1 8.2 7.9 8.2 7.6
All species.................... 2,055,509 665,938 321,067 344,871 1,389,571 599,100 790,471
[[Page 59087]]
Ash as % of all species........ 5.5 5.3 3.7 6.9 5.6 5.8 5.5
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Using the estimates provided in table 2, the value of ash timber
grown in the eastern United States is $25.1 billion (see table 3
below). Based on the establishment of the EAB in Michigan and its range
in Asia, it should be able to survive in most of the eastern United
States. In Michigan, an estimated 7.7 billion board feet of ash timber
is harvested annually. Using the stumpage figures listed previously,
Michigan alone could see a loss of $1.7 billion in timber trees.
Table 3.--Value of Potential Losses in Ash Timber Trees in the Eastern United States Because of Infestation by
the Emerald Ash Borer for Different Regions, Based on Stumpage Prices
----------------------------------------------------------------------------------------------------------------
Volume of timber
Region trees (million board Value of losses
feet) (million dollars)\1\
----------------------------------------------------------------------------------------------------------------
Michigan.......................................................... 7,700 $1.697
Northeastern region............................................... 11,740 2,558
Northern region................................................... 35,575 7,842
------------------------
Total Eastern region.......................................... 113,916 25,111
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\1\ Assumes average stumpage price of $22.43 per 1,000 board feet (Agricultural Statistics, 2002).
Other Effects
We must also consider the value of ash trees as important
environmental and recreational resources. The recreational use of
national forest lands amounted to 341.2 million visitor days \2\ in
1996, the most recent year for which data were available. In Michigan,
4.87 million visitor days were spent in the national forests in 1997.
While not specifically attributable to the presence of ash trees, these
statistics illustrate the importance of forest-based recreation in the
United States. Ash trees are important components of U.S. forests; in
addition to their aesthetic value, they provide food and shelter for
wildlife.
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\2\ A visitor day aggregates 12 visitor hours, which may entail
1 person visiting for 12 hours, 12 persons visiting for 1 hour, or
any equivalent combination of individual or group use, either
continuous or intermittent.
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Citizens may also be affected by the presence of EAB in their own
yards and neighborhoods. Removing dead or infested trees is costly and
inconvenient, and replacement trees may have to grow for years before
they offer the same amount of shade and ornamental value. Further, the
quarantine restricts people from freely moving firewood and ash
products through Michigan.
Effects on Nursery Stock
An estimated $2 million in annual nursery stock sales have already
been lost in the six Michigan counties first quarantined by the State.
The Michigan Nursery and Landscape Association reports that nursery,
plant production, and landscaping industries employ 347,000 Michigan
citizens and contribute $3.7 billion to the State's economy. Michigan's
nursery producers generate about $711 million in annual sales and
distribute their products to 35 U.S. States, Mexico, and Canada; these
producers are the second largest agricultural group in Michigan and the
fifth largest nursery industry in the United States. Losses, of course,
could be larger if the EAB were allowed to spread to other areas of the
country. Several European agrilids are known nursery pests, and we now
know that EAB is capable of infesting small-diameter nursery stock.
Economic Effects on Small Entities
The Regulatory Flexibility Act requires that agencies specifically
consider the economic effects of their rules 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 SBA classifies logging operations
(NAICS code 113310), sawmills (NAICS code 321113), and wood product
manufacturers generally (NAICS subsector 321) as small entities if
fewer than 500 people are employed.
More than 4,000 businesses considered small entities by the SBA are
affected within the 6 counties first quarantined for EAB. These
entities must meet certain requirements before moving regulated
articles from the quarantined areas. Regulated entities may incur
additional costs to dispose of articles such as wood debris from tree
pruning and removal. Nurseries are currently prohibited from moving ash
trees under the State quarantine. However, of the nurseries within
those 6 counties, only 10 to 20 operations having a substantial amount
of ash nursery stock in the ground are expected to be significantly
affected. These entities represent only 0.2 to 0.5 percent of the
number of nurseries in the six counties first quarantined.
Conclusions
Damage caused to EAB-affected ash trees in the landscape and
woodlots in southeast Michigan over the past 5 years is estimated at
$11.6 million. In addition, $2 million of nursery stock was restricted
from sale due to the infestation. The monetary values at risk are $11.7
billion in replacement costs in 6 counties first quarantined for EAB
alone. The undiscounted value of the national urban tree population
that are ash trees amounts to $20 to $60 billion. The undiscounted
compensatory value
[[Page 59088]]
of the 693 million ash trees grown on timberland in Michigan is $18.92
billion, and the corresponding nationwide estimate amounts to 7,553
million trees, valued at $282.26 billion. There are approximately 31
million ash trees in the 6 counties first quarantined by the State.
When conservatively valued in terms of stumpage prices, the value
of sawtimber at risk in the eastern United States alone amounts to $25
billion. Over 4,000 businesses that are considered small by SBA
standards are affected in the 6 counties first quarantined because of
EAB in Michigan. However, very few nursery operations having a
substantial amount of ash nursery stock in the ground are expected to
be significantly affected. Overall, this rule will help safeguard U.S.
ash trees from the EAB by restricting the interstate movement of the
nursery stock, logs, and lumber that can serve as its vectors.
Although, at this time, we are not able to evaluate the specific
effects of this regulation on the seven counties most recently added to
Michigan's EAB quarantine, we expect that those counties contain
entities similar to those we have considered in this analysis.
Therefore, we believe any economic effects on small entities will be
small and are outweighed by the benefits associated with preventing a
larger U.S. EAB infestation.
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
In accordance with section 3507(j) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection and
recordkeeping requirements included in this interim rule have been
submitted for emergency approval to the Office of Management and Budget
(OMB). OMB has assigned control number 0579-0233 to the information
collection and recordkeeping requirements.
We plan to request continuation of that approval for 3 years.
Please send written comments on the 3-year approval request to the
following addresses: (1) Office of Information and Regulatory Affairs,
OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2)
Docket No. 02-125-1, Regulatory Analysis and Development, PPD, APHIS,
Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238.
Please state that your comments refer to Docket No. 02-125, and send
your comments within 60 days of publication of this rule.
This interim rule establishes regulations quarantining 13 counties
in Michigan because of the emerald ash borer and restricting the
interstate movement of regulated articles from these quarantined areas.
This action is necessary on an emergency basis to prevent the
artificial spread of this plant pest from infested areas in the State
of Michigan to noninfested areas of the United States. The paperwork
associated with the Emerald ash borer program will include the
completion of compliance agreements, certificates, and limited permits.
There will also be requests for inspections. We are soliciting comments
from the public ( as well as affected agencies) concerning our
information collection and recordkeeping requirements. These comments
will help us:
(1) Evaluate whether the information collection is necessary for
the proper performance of our agency's functions, including whether the
information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
information collection, including the validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated to average 0.48 hours per response.
Respondents: Growers, packers, shippers, and exporters of regulated
articles and State plant health protection authorities and other
cooperators.
Estimated annual number of respondents: 225.
Estimated annual number of responses per respondent: 1.6666.
Estimated annual number of responses: 375.
Estimated total annual burden on respondents: 180 hours. (Due to
averaging, the total annual burden hours may not equal the product of
the annual number of responses multiplied by the reporting burden per
response.)
Copies of this information collection can be obtained from Mrs.
Celeste Sickles, APHIS' Information Collection Coordinator, at (301)
734-7477.
Government Paperwork Elimination Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the Government Paperwork Elimination Act (GPEA), which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. For information pertinent to GPEA
compliance related to this interim rule, please contact Mrs. Celeste
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
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; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L.
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7
U.S.C. 1421 note).
0
2. Part 301 is amended by adding a new ``Subpart--Emerald Ash Borer,''
Sec. Sec. 301.53-1 through 301.53-9, to read as follows:
Subpart--Emerald Ash Borer
Sec.
301.53-1 Definitions.
301.53-2 Regulated articles.
301.53-3 Quarantined areas.
[[Page 59089]]
301.53-4 Conditions governing the interstate movement of regulated
articles from quarantined areas.
301.53-5 Issuance and cancellation of certificates and limited
permits.
301.53-6 Compliance agreements and cancellation.
301.53-7 Assembly and inspection of regulated articles.
301.53-8 Attachment and disposition of certificates and limited
permits.
301.53-9 Costs and charges.
Subpart--Emerald Ash Borer
Sec. 301.53-1 Definitions.
Administrator. The Administrator, Animal and Plant Health
Inspection Service, or any individual authorized to act for the
Administrator.
Animal and Plant Health Inspection Service (APHIS). The Animal and
Plant Health Inspection Service of the United States Department of
Agriculture.
Certificate. A document that is issued for a regulated article by
an inspector or by a person operating under a compliance agreement and
that represents that such article is eligible for interstate movement
in accordance with Sec. 301.53-5(a).
Compliance agreement. A written agreement between APHIS and a
person engaged in growing, handling, or moving regulated articles that
are moved interstate, in which the person agrees to comply with the
provisions of this subpart and any conditions imposed under this
subpart.
Emerald ash borer. The insect known as emerald ash borer (Agrilus
planipennis [Coleoptera: Buprestidae]) in any stage of development.
Infestation. The presence of the emerald ash borer or the existence
of circumstances that make it reasonable to believe that the ash borer
is present.
Inspector. Any employee of the Animal and Plant Health Inspection
Service, or other individual authorized by the Administrator to enforce
the provisions of this subpart.
Interstate. From any State into or through any other State.
Limited permit. A document in which an inspector or a person
operating under a compliance agreement affirms that the regulated
article not eligible for a certificate is eligible for interstate
movement only to a specified destination and in accordance with
conditions specified on the permit.
Moved (movement, move). Shipped, offered for shipment, received for
transportation, transported, carried, or allowed to be moved, shipped,
transported, or carried.
Person. Any association, company, corporation, firm, individual,
joint stock company, partnership, society, or any other legal entity.
Quarantined area. Any State, or any portion of a State, listed in
Sec. 301.53-3(c) or otherwise designated as a quarantined area in
accordance with Sec. 301.53-3(b).
Regulated article. Any article listed in Sec. 301.53-2(a) or
otherwise designated as a regulated article in accordance with Sec.
301.53-2(b).
State. The District of Columbia, Puerto Rico, the Northern Mariana
Islands, or any State, territory, or possession of the United States.
Sec. 301.53-2 Regulated articles.
The following are regulated articles:
(a) The emerald ash borer; firewood of all hardwood species;
nursery stock, green lumber, and other material living, dead, cut, or
fallen, including logs, stumps, roots, branches, and composted and
uncomposted chips of the genus Fraxinus.
(b) Any other article, product, or means of conveyance not listed
in paragraph (a) of this section may be designated as a regulated
article if an inspector determines that it presents a risk of spreading
emerald ash borer and notifies the person in possession of the article,
product, or means of conveyance that it is subject to the restrictions
of the regulations.
Sec. 301.53-3 Quarantined areas.
(a) Except as otherwise provided in paragraph (b) of this section,
the Administrator will list as a quarantined area in paragraph (c) of
this section each State or each portion of a State in which the emerald
ash borer has been found by an inspector, in which the Administrator
has reason to believe that the emerald ash borer is present, or that
the Administrator considers necessary to regulate because of its
inseparability for quarantine enforcement purposes from localities
where emerald ash borer has been found. 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 restrictions on the
intrastate movement of regulated articles that are equivalent to those
imposed by this subpart 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 interstate spread of
the emerald ash borer.
(b) The Administrator or an inspector may temporarily designate any
nonquarantined area as a quarantined area in accordance with the
criteria specified in paragraph (a) of this section. The Administrator
will give written notice of this designation to the owner or person in
possession of the nonquarantined area, or, in the case of publicly
owned land, to the person responsible for the management of the
nonquarantined area. Thereafter, the interstate movement of any
regulated article from an area temporarily designated as a quarantined
area is subject to this subpart. As soon as practicable, this area
either will be added to the list of designated quarantined areas in
paragraph (c) of this section, or the Administrator will terminate the
designation. The owner or person in possession of, or, in the case of
publicly owned land, the person responsible for the management of, an
area for which the designation is terminated will be given written
notice of the termination as soon as practicable.
(c) The following areas are designated as quarantined areas:
Michigan
Genesee County. The entire county.
Ingham County. The entire county.
Jackson County. The entire county.
Lapeer County. The entire county.
Lenawee County. The entire county.
Livingston County. The entire county.
Macomb County. The entire county.
Monroe County. The entire county.
Oakland County. The entire county.
Shiawassee County. The entire county.
St. Clair County. The entire county.
Washtenaw County. The entire county.
Wayne County. The entire county.
Sec. 301.53-4 Conditions governing the interstate movement of
regulated articles from quarantined areas.
Regulated articles may be moved interstate from a quarantined area
only if moved under the following conditions:
(a) With a certificate or limited permit issued and attached in
accordance with Sec. Sec. 301.53-5 and 301.53-8;
(b) Without a certificate or limited permit if:
(1) The regulated article is moved by the United States Department
of Agriculture for experimental or scientific purposes; or
(2) The regulated article originates outside the quarantined area
and is moved interstate through the quarantined area under the
following conditions:
(i) The points of origin and destination are indicated on a waybill
accompanying the regulated article; and
(ii) The regulated article, if moved through the quarantined area
during the period of May 1 through August 31 or when the ambient air
temperature is 40 [deg]F or higher, is moved in an enclosed vehicle or
is completely covered to prevent access by the EAB; and
[[Page 59090]]
(iii) The regulated article is moved directly through the
quarantined area without stopping (except for refueling or for traffic
conditions, such as traffic lights or stop signs), or has been stored,
packed, or handled at locations approved by an inspector as not posing
a risk of infestation by emerald ash borer; and
(iv) The article has not been combined or commingled with other
articles so as to lose its individual identity.
Sec. 301.53-5 Issuance and cancellation of certificates and limited
permits.
(a) An inspector \1\ or person operating under a compliance
agreement will issue a certificate for the interstate movement of a
regulated article if he or she determines that the regulated article:
(1)(i) Is apparently free of EAB, based on inspection; or the
article or
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\1\ Inspectors are assigned to local offices of APHIS, which are
listed in the local telephone directories. Information concerning
such local offices may also be obtained from the Animal and Plant
Health Inspection Service, Plant Protection and Quarantine, Domestic
and Emergency Operations, 4700 River Road Unit 134, Riverdale,
Maryland 20737-1236.
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(ii) Has been grown, produced, manufactured, stored, or handled in
a manner that, in the judgment of the inspector, prevents the regulated
article from presenting a risk of spreading EAB; and
(2) Is to be moved in compliance with any additional emergency
conditions that the Administrator may impose under section 414 of the
Plant Protection Act (7 U.S.C. 7714) \2\ in order to prevent the
artificial spread of emerald ash borer; and
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\2\ An inspector may hold, seize, quarantine, treat, apply other
remedial measures to, destroy, or otherwise dispose of plants, plant
pests, or other articles in accordance with sections 414, 421, and
423 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).
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(3) Is eligible for unrestricted movement under all other Federal
domestic plant quarantines and regulations applicable to the regulated
articles.
(b) An inspector or a person operating under a compliance agreement
will issue a limited permit for the interstate movement of a regulated
article not eligible for a certificate if he or she determines that the
regulated article:
(1) Is to be moved interstate to a specified destination for
specific processing, handling, or utilization (the destination and
other conditions to be listed on the limited permit), and this
interstate movement will not result in the spread of emerald ash borer
because emerald ash borer will be destroyed by the specific processing,
handling, or utilization; and
(2) Is to be moved in compliance with any additional emergency
conditions that the Administrator may impose under section 414 of the
Plant Protection Act (7 U.S.C. 7714) in order to prevent the spread of
emerald ash borer; and
(3) Is eligible for unrestricted movement under all other Federal
domestic plant quarantines and regulations applicable to the regulated
article.
(c) An inspector shall issue blank certificates and limited permits
to a person operating under a compliance agreement in accordance with
Sec. 301.53-6 or authorize reproduction of the certificates or limited
permits on shipping containers, or both, as requested by the person
operating under the compliance agreement. These certificates and
limited permits may then be completed and used, as needed, for the
interstate movement of regulated articles that have met all of the
requirements of paragraph (a) or (b), respectively, of this section.
(d) Any certificate or limited permit may be canceled orally or in
writing by an inspector whenever the inspector determines that the
holder of the certificate or limited permit has not complied with this
subpart or any conditions imposed under this subpart. If the
cancellation is oral, the cancellation will become effective
immediately, and the cancellation and the reasons for the cancellation
will be confirmed in writing as soon as circumstances permit. Any
person whose certificate or limited permit has been canceled may appeal
the decision in writing to the Administrator within 10 days after
receiving the written cancellation notice. The appeal must state all of
the facts and reasons that the person wants the Administrator to
consider in deciding the appeal. A hearing may be held to resolve a
conflict as to any material fact. Rules of practice for the hearing
will be adopted by the Administrator. As soon as practicable, the
Administrator will grant or deny the appeal, in writing, stating the
reasons for the decision.
(Approved by the Office of Management and Budget under control
number 0579-0233)
Sec. 301.53-6 Compliance agreements and cancellation.
(a) Persons engaged in growing, handling, or moving regulated
articles interstate may enter into a compliance agreement \3\ if such
persons review with an inspector each provision of the compliance
agreement. Any person who enters into a compliance agreement with APHIS
must agree to comply with the provisions of this subpart and any
conditions imposed under this subpart.
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\3\ Compliance agreements may be initiated by contacting a local
office of APHIS. The addresses and telephone numbers of local
offices are listed in local telephone directories and may also be
obtained from the Animal and Plant Health Inspection Service, Plant
Protection and Quarantine, Domestic and Emergency Operations, 4700
River Road Unit 134, Riverdale, MD 20737-1236.
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(b) Any compliance agreement may be canceled orally or in writing
by an inspector whenever the inspector determines that the person who
has entered into the compliance agreement has not complied with this
subpart or any conditions imposed under this subpart. If the
cancellation is oral, the cancellation will become effective
immediately, and the cancellation and the reasons for the cancellation
will be confirmed in writing as soon as circumstances permit. Any
person whose compliance agreement has been canceled may appeal the
decision in writing to the Administrator within 10 days after receiving
the written cancellation notice. The appeal must state all of the facts
and reasons that the person wants the Administrator to consider in
deciding the appeal. A hearing may be held to resolve a conflict as to
any material fact. Rules of practice for the hearing will be adopted by
the Administrator. As soon as practicable, the Administrator will grant
or deny the appeal, in writing, stating the reasons for the decision.
(Approved by the Office of Management and Budget under control
number 0579-0233)
Sec. 301.53-7 Assembly and inspection of regulated articles.
(a) Persons requiring certification or other services must request
the services from an inspector \4\ at least 48 hours before the
services are needed.
---------------------------------------------------------------------------
\4\ See footnote 1 to Sec. 301.53-5.
---------------------------------------------------------------------------
(b) The regulated articles must be assembled at the place and in
the manner that the inspector designates as necessary to comply with
this subpart.
(Approved by the Office of Management and Budget under control
number 0579-0233)
Sec. 301.53-8 Attachment and disposition of certificates and limited
permits.
(a) A regulated article must be plainly marked with the name and
address of the consignor and the name and address of the consignee and
must have the certificate or limited permit issued for the interstate
movement of a regulated article securely attached at all times during
interstate movement to:
(1) The regulated article;
(2) The container carrying the regulated article; or
[[Page 59091]]
(3) The consignee's copy of the accompanying waybill: Provided,
that the description of the regulated article on the certificate or
limited permit, and on the waybill, are sufficient to identify the
regulated article; and
(b) The carrier must furnish the certificate or limited permit
authorizing interstate movement of a regulated article to the consignee
at the destination of the shipment.
(Approved by the Office of Management and Budget under control
number 0579-0233)
Sec. 301.53-9 Costs and charges.
The services of the inspector during normal business hours will be
furnished without cost to persons requiring the services. The user will
be responsible for all costs and charges arising from inspection and
other services provided outside of normal business hours.
Done in Washington, DC, this 8th day of October, 2003.
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-25881 Filed 10-10-03; 8:45 am]
BILLING CODE 3410-34-P