[Federal Register Volume 68, Number 96 (Monday, May 19, 2003)]
[Rules and Regulations]
[Pages 26983-26985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12390]



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  Federal Register / Vol. 68, No. 96 / Monday, May 19, 2003 / Rules and 
Regulations  

[[Page 26983]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 03-018-1]


Asian Longhorned Beetle; Quarantined Areas and Regulated Articles

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the Asian longhorned beetle regulations by 
adding portions of New York City, NY, and Hudson County, NJ, to the 
list of quarantined areas and restricting the interstate movement of 
regulated articles from these areas. We are also updating the list of 
regulated articles in order to reflect new information concerning host 
plants. These actions are necessary to prevent the artificial spread of 
the Asian longhorned beetle to noninfested areas of the United States.

DATES: This interim rule was effective May 13, 2003. We will consider 
all comments that we receive on or before July 18, 2003.

ADDRESSES: You may submit comments by postal mail/commercial delivery 
or by e-mail. If you use postal mail/commercial delivery, please send 
four copies of your comment (an original and three copies) to: Docket 
No. 03-018-1, Regulatory Analysis and Development, PPD, APHIS, Station 
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. 03-018-1. If you use e-mail, 
address your comment to [email protected]. Your comment must 
be contained in the body of your message; do not send attached files. 
Please include your name and address in your message and ``Docket No. 
03-018-1'' on the subject line.
    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.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. Michael B. Stefan, Director of 
Emergency Programs, Pest Detection and Management Programs, PPQ, APHIS, 
4700 River Road Unit 134, Riverdale, MD 20737-1236; (301) 734-4387.

SUPPLEMENTARY INFORMATION:

Background

    The Asian longhorned beetle (ALB) (Anoplophora glabripennis), an 
insect native to China, Japan, Korea, and the Isle of Hainan, is a 
destructive pest of hardwood trees. It attacks many healthy hardwood 
trees, including maple, horse chestnut, birch, poplar, willow, and elm. 
In addition, nursery stock, logs, green lumber, firewood, stumps, 
roots, branches, and wood debris of half an inch or more in diameter 
are subject to infestation. The beetle bores into the heartwood of a 
host tree, eventually killing the tree. Immature beetles bore into tree 
trunks and branches, causing heavy sap flow from wounds and sawdust 
accumulation at tree bases. They feed on, and over-winter in, the 
interiors of trees. Adult beetles emerge in the spring and summer 
months from round holes approximately three-eighths of an inch in 
diameter (about the size of a dime) that they bore through branches and 
trunks of trees. After emerging, adult beetles feed for 2 to 3 days and 
then mate. Adult females then lay eggs in oviposition sites that they 
make on the branches of trees. A new generation of ALB is produced each 
year. If this pest moves into the hardwood forests of the United 
States, the nursery, maple syrup, and forest product industries could 
experience severe economic losses. In addition, urban and forest ALB 
infestations will result in environmental damage, aesthetic 
deterioration, and a reduction in public enjoyment of recreational 
spaces.

Quarantined Areas

    The ALB regulations in 7 CFR 301.51-1 through 301.51-9 (referred to 
below as the regulations) restrict the interstate movement of regulated 
articles from quarantined areas to prevent the artificial spread of ALB 
to noninfested areas of the United States. Portions of the State of 
Illinois and portions of New York City and Nassau and Suffolk Counties 
in the State of New York are already designated as quarantined areas.
    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 infestations of ALB in Hudson County, NJ. 
Additionally, surveys conducted in New York City, NY, have revealed 
that infestations of ALB have occurred outside the existing quarantined 
area. Officials of the U.S. Department of Agriculture and officials of 
State, county, and city agencies in New Jersey and New York are 
conducting intensive survey and eradication programs in the infested 
areas. Both New Jersey and New York have quarantined the infested areas 
and are restricting the intrastate movement of regulated articles from 
the quarantined areas to prevent the further spread of ALB within those 
States. However, Federal regulations are necessary to restrict the 
interstate movement of regulated articles from the quarantined areas to 
prevent the spread of ALB to other States and other countries.
    The regulations in Sec.  301.51-3(a) provide that the Administrator 
of APHIS will list as a quarantined area each State, or each portion of 
a State, where ALB has been found by an inspector, where the 
Administrator has reason to believe that ALB is present, or where the 
Administrator considers regulation necessary because of its 
inseparability for quarantine enforcement purposes from localities 
where ALB has been found.
    Less than an entire State will be quarantined only if (1) the 
Administrator determines that the State has adopted and is enforcing 
restrictions on the intrastate movement of regulated

[[Page 26984]]

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 ALB.
    In accordance with these criteria and the recent ALB findings 
described above, we are amending the list of quarantined areas in Sec.  
301.51-3(c) to include a portion of Hudson County, NJ, and additional 
areas in New York City, NY. These quarantined areas are described in 
the rule portion of this document.

Regulated Articles

    Section 301.51-2 of the regulations designates certain items as 
regulated articles. Regulated articles may not be moved interstate from 
quarantined areas except in accordance with the conditions specified in 
Sec. Sec.  301.51-4 through 301.51-9 of the regulations. Regulated 
articles listed in Sec.  301.51-2(a) have included green lumber and 
other material living, dead, cut, or fallen, inclusive of nursery 
stock, logs, stumps, roots, branches, and debris of half an inch or 
more in diameter of the following genera: Acer (maple), Aesculus (horse 
chestnut), Betula (birch), Hibiscus syriacus L. (Rose of Sharon), Malus 
(apple), Melia (chinaberry), Morus (mulberry), Populus (poplar), Prunus 
(cherry), Pyrus (pear), Robinia (locust), Salix (willow), Ulmus (elm), 
and Citrus. This list of genera was based on scientific literature 
provided by government officials, scientists, and government and 
individual researchers from China as well as limited survey information 
collected in the United States at the time of discovery of the pest.
    Based on additional survey experience and research, we are amending 
the list of regulated articles by removing Hibiscus syriacus L. (Rose 
of Sharon), Malus (apple), Melia (chinaberry), Morus (mulberry), Prunus 
(cherry), Pyrus (pear), Robinia (locust), and Citrus, and by adding 
Albizia (mimosa), Celtis (hackberry), Fraxinus (ash), Platanus 
(sycamore), and Sorbus (mountain ash). With respect to each of the 
eight genera that we are removing from the list of regulated articles, 
surveys conducted over the course of several years in New York and 
Illinois have shown that either (1) the genus is not present in the 
quarantined areas or (2) there is no evidence that ALB can complete its 
development in the genus. Conversely, with respect to the five genera 
we are adding, inspectors have found ALB completing its development in 
those genera within the quarantined areas.

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
artificial spread of ALB 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.
    This interim rule amends the ALB regulations by expanding the 
quarantined area in New York City, NY, and adding portions of Hudson 
County, NJ, to the list of quarantined areas. As a result of this 
action, the interstate movement of regulated articles from those areas 
is restricted.
    The following analysis addresses the economic effects of the 
interim rule on small entities. The businesses potentially affected by 
this interim rule are nurseries, arborists, tree removal services, 
firewood dealers, garden centers, landscapers, recyclers of waste 
material, and lumber and building material outlets. The quarantined 
areas expanded or established by this interim rule encompass 
approximately 10 square miles (6 square miles in New York and 4 square 
miles in New Jersey). Within those areas, there is one potentially 
affected entity (a nursery). While the size of the entity is unknown, 
it is reasonable to assume that it would be classified as a small 
entity, based on the Small Business Administration's size standards.\1\
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    \1\ The overwhelming majority of entities are considered small 
by SBA standards.
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    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 ALB, and, as a result, the inspector would not be able to issue a 
certificate. In this 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.  
301.51-5(b). Whether or not the affected entity would be denied 
certificates as a result of inspections of regulated articles is 
unknown. However, because it is located in a densely populated urban 
area, the nursery is more likely to be receiving regulated articles 
from outside the quarantined area than it is to be shipping regulated 
articles interstate to non-quarantined areas. It is unlikely, 
therefore, that the nursery would be moving regulated articles that 
would require inspection in the first place.
    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

[[Page 26985]]

before parties may file suit in court challenging this rule.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this interim rule. The assessment provides a 
basis for the conclusion that the integrated eradication program will 
not have a significant impact on the quality of the human environment. 
Based on the finding of no significant impact, the Administrator of the 
Animal and Plant Health Inspection Service has determined that an 
environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    Copies of the environmental assessment and finding of no 
significant impact are available for public inspection in our reading 
room (information on the location and hours of the reading room is 
provided under the heading ADDRESSES at the beginning of this interim 
rule). In addition, copies may be obtained by calling or writing to the 
individual listed under FOR FURTHER INFORMATION CONTACT or on the 
Internet at http://www.aphis.usda.gov/ ppd/es/alb.html.

Paperwork Reduction Act

    This 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. 7711, 7712, 7714, 7731, 7735, 7751, 7752, 
7753, 7754, and 7760; 7 CFR 2.22, 2.80, and 371.3.

    Section 301.75-15 also issued under Sec. 204, Title II, Pub L. 106-
113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also issued 
under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 U.S.C. 1421 
note).


0
2. In Sec.  301.51-2, paragraph (a) is revised to read as follows:


Sec.  301.51-2  Regulated articles.

* * * * *
    (a) Firewood (all hardwood species), and green lumber and other 
material living, dead, cut, or fallen, inclusive of nursery stock, 
logs, stumps, roots, branches, and debris of half an inch or more in 
diameter of the following genera: Acer (maple), Aesculus (horse 
chestnut), Albizia (mimosa), Betula (birch), Celtis (hackberry), 
Fraxinus (ash), Platanus (sycamore), Populus (poplar), Salix (willow), 
Sorbus (mountain ash), and Ulmus (elm).
* * * * *

0
3. In Sec.  301.51-3, paragraph (c) is amended as follows:
0
a. By adding, in alphabetical order, an entry for New Jersey to read as 
set forth below.
0
b. Under the heading New York, by revising the entry for New York City 
to read as set forth below.


Sec.  301.51-3  Quarantined areas.

* * * * *
    (c) * * *

New Jersey

    Hudson County. That area in the city of Jersey City that is bounded 
as follows: Beginning at the intersection of Paterson Plank Road and 
South Wing Viaduct; then south on Paterson Plank Road to Congress 
Street; then west on Congress Street to Webster Avenue; then south on 
Webster Avenue to Bowers Street; then west on Bowers Street to Summit 
Avenue; then south on Summit Avenue to Fairmount Avenue; then east on 
Fairmount Avenue to Grand Street; then east on Grand Street to the 
shoreline of the Hudson River; then north along the shoreline of the 
Hudson River to the Hoboken/Jersey City border.
    That area in the city of Hoboken that is bounded as follows: 
Beginning at the shoreline of the Hudson River east of the intersection 
of Hudson Street and 11th Street; then west on 11th Street to the 
railroad tracks; then south along the railroad tracks to the Hoboken/
Jersey City border; then east along the Hoboken/Jersey City border to 
the shoreline of the Hudson River; then north along the shoreline of 
the Hudson river to the point of beginning.

New York

    New York City. That area in the boroughs of Manhattan, Brooklyn, 
and Queens in the City of New York that is bounded by a line beginning 
at the point where the Brooklyn Battery Tunnel intersects the Manhattan 
shoreline of the East River; then west and north along the shoreline of 
the Hudson River to Martin Luther King Jr. Boulevard; then east on 
Martin Luther King Jr. Boulevard and across the Triborough Bridge to 
its intersection with the west shoreline of Randall's and Wards Island; 
then east and south along the shoreline of Randall's and Wards Island 
to its intersection with the Triborough Bridge; then east along the 
Triborough Bridge to its intersection with the Queens shoreline; then 
north and east along the Queens shoreline to its intersection with the 
City of New York/Nassau County line; then southeast along the City of 
New York/Nassau County line to its intersection with the Grand Central 
Parkway; then west on the Grand Central Parkway to the Jackie Robinson 
Parkway; then west on the Jackie Robinson Parkway to Park Lane; then 
south on Park Lane to Park Lane South; then south and west on Park Lane 
South to 112th Street; then south on 112th Street to Atlantic Avenue; 
then west on Atlantic Avenue to 106th Street; then south on 106th 
Street to Liberty Avenue; then west on Liberty Avenue to Euclid Avenue; 
then south on Euclid Avenue to Linden Boulevard; then west on Linden 
Boulevard to Canton Avenue; then west on Canton Avenue to the Prospect 
Expressway; then north and west on the Prospect Expressway to the 
Gowanus Expressway; then north and west on the Gowanus Expressway to 
Hamilton Avenue and the Brooklyn Battery Tunnel; then north on Hamilton 
Avenue and the Brooklyn Battery Tunnel across the East River to the 
point of beginning.
* * * * *

    Done in Washington, DC, this 13th day of May 2003.
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-12390 Filed 5-16-03; 8:45 am]
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