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Emerald Ash Borer; Additions to Quarantined Areas

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Information about this document as published in the Federal Register.

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AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Affirmation of interim rule as final rule.

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.

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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.

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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 Start Printed Page 48226movement of regulated articles from quarantined areas to prevent the artificial spread of EAB into noninfested areas of the United States. The regulations in § 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 § 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.

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.

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.

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 § 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 Start Printed Page 48227entities 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.

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List of Subjects in 7 CFR Part 301

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PART 301—DOMESTIC QUARANTINE NOTICES

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Accordingly, we are adopting as a final rule, without change, the interim rule that amended

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Done in Washington, DC, this 15th day of August 2007.

Kevin Shea,

Acting Administrator, Animal and Plant Health Inspection Service

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Footnotes

2.  Tom Harrison, Ohio Department of Agriculture, personal communication.

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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.

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4.  “Nursery Crops: 2002 Summary.” National Agricultural Statistics Service, USDA July 2004.

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5.  “2002 Economic Census: Manufacturing.” U.S. Census Bureau, July 2005 (Indiana, Illinois, and Ohio Geographical reports).

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[FR Doc. E7-16695 Filed 8-22-07; 8:45 am]

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