[Federal Register Volume 72, Number 105 (Friday, June 1, 2007)]
[Rules and Regulations]
[Pages 30458-30460]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-10560]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2007-0028]


Emerald Ash Borer; Quarantined Areas; Maryland

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 
Prince George's County, MD, to the list of areas quarantined because of 
emerald ash borer. As a result of this action, the interstate movement 
of regulated articles from that county is restricted. This action is 
necessary to prevent the artificial spread of the emerald ash borer 
from Prince George's County, MD, into noninfested areas of the United 
States.

DATES: This interim rule is effective June 1, 2007. We will consider 
all comments that we receive on or before July 31, 2007.

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-2007-0028 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-2007-0028, 
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-2007-0028.
    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,

[[Page 30459]]

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. The States of Illinois, 
Indiana, and Ohio and portions of the State of Michigan have already 
been designated as quarantined areas.
    On August 22, 2006, two EAB larvae were recovered during an ongoing 
survey in Prince George's County, MD. Since then, EAB larvae have been 
recovered in three additional neighborhoods in Prince George's County. 
Officials of the U.S. Department of Agriculture (USDA) and officials of 
State and county agencies in Maryland are conducting intensive survey 
and eradication programs in the infested areas. The State of Maryland 
has quarantined Prince George's County to prevent the spread of EAB to 
noninfested areas in that State. However, Federal regulations are 
necessary to restrict the interstate movement of regulated articles 
from the quarantined areas to prevent the spread of EAB from Maryland 
to other States.
    The regulations in Sec.  301.53-3(a) provide that the Administrator 
of the Animal and Plant Health Inspection Service (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 Prince 
George's County, MD, to the list of quarantined areas.

Emergency Action

    This rulemaking is necessary on an emergency basis to help prevent 
the spread of EAB 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.
    We are amending the EAB regulations by adding Prince George's 
County, MD, 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 a valuable resource for the nursery, landscaping, and 
timber industries in Maryland. The Maryland Department of Natural 
Resources estimates that about 20 percent of streamside trees in the 
State are ash trees. Ash trees account for over 3 percent of trees in 
naturally wooded areas. Ash wood is used for all traditional 
applications of hardwood from flooring and cabinets to baseball bats. 
The USDA has estimated that losses could reach almost $300 million in 
the Baltimore metropolitan area alone if EAB becomes established in the 
nearby county of Baltimore and the surrounding counties. It is 
estimated that the eradication efforts in the county of Prince Georges 
will cost more than $4 million in Federal funding.\1\
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    \1\ See http://www.naturalresources.umd.edu/ashborer.cfm.
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    This interim rule will affect business entities located within 
Prince George's County, MD. According to the U.S. Agricultural Census, 
in 2002 there were 22 nurseries in this county.\2\ The exact number and 
size of any other affected entity or operation that will be subject to 
movement restriction in the quarantined area is unknown. However, only 
restricted articles moved out of the quarantine area will be affected.
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    \2\ 2002 U.S. Agricultural Census, State and County Data, 
Maryland, table 34, page 298.
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    It is reasonable to assume that most of the nurseries 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, including nursery operations that sell deciduous shade 
trees) is $5 million or less in annual receipts.\3\ The small business 
size standard based upon NAICS code 113310 (logging operations) is 500 
or fewer persons employed by the operation.
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    \3\ ``Nursery Crops: 2003 Summary'' National Agricultural 
Statistics Service, USDA, July 2004.
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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

[[Page 30460]]

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 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 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) is amended by adding, in 
alphabetical order, an entry for Maryland to read as follows:


Sec.  301.53-3  Quarantined areas.

* * * * *
    (c) * * *
Maryland
    Prince George's County. The entire county.
* * * * *

    Done in Washington, DC, this 25th day of May 2007.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E7-10560 Filed 5-31-07; 8:45 am]
BILLING CODE 3410-34-P