[Federal Register Volume 71, Number 190 (Monday, October 2, 2006)]
[Rules and Regulations]
[Pages 57871-57873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8424]

Rules and Regulations
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Federal Register / Vol. 71, No. 190 / Monday, October 2, 2006 / Rules 
and Regulations

[[Page 57871]]


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.


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.



    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 
    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 
    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\

    \1\ McPartlan, Deborah, USDA, APHIS, PPQ, ``Eradication of 
emerald ash borer in Michigan, Ohio, and Indiana: Implementation of 
the Strategic Plan.'' April 2003.

    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\

    \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).

    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 

[[Page 57873]]

Health Inspection Service has determined that this action will not have 
a significant economic impact on a substantial number of small 

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.

Accordingly, we are amending 7 CFR part 301 as follows:


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).

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) * * *
    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 
* * * * *

    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]