[Federal Register Volume 72, Number 163 (Thursday, August 23, 2007)]
[Rules and Regulations]
[Pages 48225-48227]
From the Federal Register Online via the Government Printing 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
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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
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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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