[Federal Register Volume 74, Number 181 (Monday, September 21, 2009)]
[Rules and Regulations]
[Pages 48003-48005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22633]

[[Page 48003]]



Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2008-0111]

Pine Shoot Beetle; Additions to Quarantined Areas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.


SUMMARY: We are amending the pine shoot beetle regulations by adding 
the entire State of Ohio and counties in Maine and Indiana to the list 
of quarantined areas. We are taking this action following the detection 
of pine shoot beetle in those areas. This action is necessary to 
prevent the spread of pine shoot beetle, a pest of pine trees, into 
noninfested areas of the United States.

DATES: This interim rule is effective September 21, 2009. We will 
consider all comments that we receive on or before November 20, 2009.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0111 to submit or view comments and 
to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send two copies of 
your comment to Docket No. APHIS-2008-0111, 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 
Docket No. APHIS-2008-0111.
    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: Dr. Weyman Fussell, Program Manager, 
Pest Detection and Management Programs, PPQ, APHIS, 4700 River Road, 
Unit 134, Riverdale, MD 20737-1231; (301) 734-5705.



    The regulations in 7 CFR 301.50 through 301.50-10 (referred to 
below as the regulations) restrict the interstate movement of certain 
regulated articles from quarantined areas in order to prevent the 
spread of pine shoot beetle (PSB) into noninfested areas of the United 
    PSB is a destructive forest pest that attacks both managed and 
natural stands of pine and especially affects weak and dying trees. The 
beetle has been found in a variety of pine species (Pinus spp.) in the 
Unites States. Scotch pine (P. sylvestris) is the pest's preferred 
host. PSB has been reported to also occasionally attack other conifers 
such as fir (Abies spp.) and spruce (Picea spp.) at low levels. During 
``shoot feeding,'' young beetles tunnel into the center of pine shoots 
(usually those from the current year's growth), causing stunted and 
distorted growth in host trees. Large infestations of PSB typically 
kill most of the lateral shoots near the tops of trees. In addition, 
PSB is a vector of several diseases of pine trees.
    PSB spreads both through natural means (insect flight and wind 
dispersal) and artificial means (movement of host material from 
infested areas to noninfested areas). State and Federal inspectors 
conduct surveys each year to monitor PSB's natural movement as well as 
its artificial movement via regulated pine articles such as Christmas 
trees, nursery stock, logs and lumber with bark, stumps, bark nuggets, 
and raw material for wreaths and garlands.
    Surveys conducted by State and Federal inspectors have revealed 
that areas in Indiana, Maine, and Ohio are infested with PSB. Copies of 
the surveys may be obtained by writing to the individual listed under 
    The regulations in Sec.  301.50-3 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, in which PSB 
has been found by an inspector, in which the Administrator has reason 
to believe that PSB is present, or that the Administrator considers 
necessary to regulate because of its inseparability for quarantine 
enforcement purposes from localities in which PSB has been found. The 
regulations further provide that less than an entire State will be 
designated as a quarantined area only if the Administrator determines 
    1. The State has adopted and is enforcing a quarantine area and 
regulations that impose restrictions on the intrastate movement of 
those articles that are equivalent to those imposed by the regulations 
on the interstate movement of those articles; and
    2. The designation of less than the entire State as a regulated 
area will otherwise be adequate to prevent the artificial interstate 
spread of PSB.
    In accordance with these criteria, we are adding the following 
counties to the area quarantined for PSB: Greene County, IN; 
Androscoggin, Cumberland, Hancock, Kennebec, Knox, Lincoln, Penobscot, 
Piscataquis, Sagadahoc, Somerset, Waldo, and York Counties, ME; and the 
entire State of Ohio (based on the decision by the Ohio Department of 
Agriculture not to continue enforcement of an intrastate quarantine). 
The Maine and Indiana departments of agriculture have elected to 
continue their intrastate quarantines; therefore, quarantined areas in 
those States are listed at the county level based on reports of the 
presence of PSB in individual counties.

Emergency Action

    The rulemaking is necessary on an emergency basis to prevent the 
spread of PSB 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 interim rule is subject to Executive Order 12866. However, for 
this action, the Office of Management and Budget has waived its review 
under Executive Order 12866.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities.
    For the purpose of this analysis and in accordance with Small 
Business Administration (SBA) guidelines, potentially affected entities 

[[Page 48004]]

classified within the following industries: Nursery and Tree Production 
(North American Industry Classification System [NAICS] 111421), 
Floriculture Production (NAICS 111422), Timber Tract Operations (NAICS 
113110), Forest Nurseries and Gathering of Forest Products (NAICS 
113210), and Logging (NAICS 113310). The SBA classifies entities in 
these industry categories as small if they have annual receipts of not 
more than $750,000 (NAICS 111421 and 111422), or not more than $7 
million (NAICS 113110 and 113210), or if their employees number not 
more than 500 (NAICS 113310). In the 12 counties in Maine, there are 
778 farms classified under Nursery and Tree Production, Forest 
Nurseries and Gathering of Forest Products, or Floriculture Production. 
In Greene County, IN, there are 17 entities which fall under these same 
NAICS classifications. In the 5 counties in Ohio, a total of 133 
entities fall within these NAICS classifications. Most, if not all, of 
the affected entities in the newly quarantined counties are assumed to 
be small, given that 98 percent of firms in these industries nationwide 
have annual sales of less than $500,000. Neither the 2002 Census of 
Agriculture nor the Economic Census contains annual revenue or employee 
information for firms classified within Timber Tract Operations or 
    Entities within the newly quarantined counties are required to 
comply with the conditions governing the interstate movement of 
regulated articles. Regulated articles may be moved interstate only if 
accompanied by a certificate or limited permit. A certificate is issued 
by an inspector or by an operator who has entered into a compliance 
agreement with APHIS, after it is determined that the regulated 
articles are not infested with PSB and do not present a risk of 
spreading PSB to other areas. A limited permit is issued if the 
regulated articles are to be moved interstate ``to a specified 
destination for specified handling, processing, or utilization,'' and 
the movement will not result in the spread of PSB. While this action 
will require submission of relevant information for the issuance of 
certificates, limited permits, and compliance agreements, this 
information is of the same type as already required for interstate 
movement of regulated articles under the current Federal Orders.
    The services of an inspector are provided without cost during 
normal business hours. The user is responsible for all costs and 
charges arising from inspection and other services provided outside of 
normal business hours. The entity receiving inspection services may 
incur certain nonmonetary costs related to those services. For example, 
any entity (other than one having a compliance agreement with APHIS) 
that intends to move a regulated article interstate accompanied by a 
certificate or limited permit must notify an inspector at least 48 
hours in advance of the desired interstate movement. APHIS welcomes 
information that the public may provide concerning such nonmonetary 
costs of the quarantine.
    With respect to phytosanitary treatment, fumigation is authorized 
for use on pine logs with bark attached, pine lumber with bark 
attached, pine bark products, pine stumps, cut pine Christmas trees, 
and raw pine materials for pine wreaths and garlands. Cold treatment is 
authorized for cut pine Christmas trees, pine nursery stock, and raw 
pine materials for pine wreaths and garlands. In addition, approved 
pest management methods exist for pine bark products, such as grinding 
into pieces of 1 inch or less in size or composting in accordance with 
certain procedures.
    These treatment options are unlikely to be burdensome to the 
affected entities. PSB can be readily managed at Christmas tree farms 
and nurseries through good sanitation and pest management practices. 
For example, culled trees and other potential brood material can be 
chipped or piled and burned prior to beetle emergence in late spring. 
Susceptible trees can be treated with the application of routine cover 
sprays during shoot feeding to protect against feeding damage. While 
the services of a licensed pesticide applicator may be needed, many 
Christmas tree farms and nurseries either have a licensed pesticide 
applicator on site or employ a commercial firm for normal pest and 
disease control.\1\

    \1\ These observations are taken from a New Jersey Department of 
Agriculture proposed rule for expanding the pine shoot beetle 
quarantine in that State. See http://www.state.nj.us/agriculture/rule/rule22096.html.

    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 

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 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.  301.50-3, paragraph (c) is amended as follows:
a. In the entries for Indiana and Maine, by adding new counties in 
alphabetical order to read as set forth below.
b. By revising the entry for Ohio to read as set forth below.

Sec.  301.50-3  Quarantined areas.

* * * * *
    (c) * * *
* * * * *


* * * * *
    Greene County. The entire county.
* * * * *


    Androscoggin County. The entire county.
    Cumberland County. The entire county.
* * * * *
    Hancock County. The entire county.
    Kennebec County. The entire county.
    Knox County. The entire county.
    Lincoln County. The entire county.
* * * * *
    Penobscot County. The entire county.
    Piscataquis County. The entire county.
    Sagadahoc County. The entire county.
    Somerset County. The entire county.

[[Page 48005]]

    Waldo County. The entire county.
    York County. The entire county.
* * * * *


    The entire State.
* * * * *

    Done in Washington, DC, this 15th day of September 2009.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-22633 Filed 9-18-09; 8:45 am]