[Federal Register Volume 70, Number 18 (Friday, January 28, 2005)]
[Rules and Regulations]
[Pages 4003-4005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1615]



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 Rules and Regulations
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  Federal Register / Vol. 70, No. 18 / Friday, January 28, 2005 / Rules 
and Regulations  

[[Page 4003]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 04-130-1]


Asian Longhorned Beetle; Addition to Quarantined Areas

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 Middlesex and Union Counties, NJ, to the list of 
quarantined areas and restricting the interstate movement of regulated 
articles from those areas. This action is necessary to prevent the 
artificial spread of the Asian longhorned beetle into noninfested areas 
of the United States.

DATES: This interim rule was effective January 24, 2005. We will 
consider all comments that we receive on or before March 29, 2005.

ADDRESSES: You may submit comments by any of the following methods:
     EDOCKET: Go to http://www.epa.gov/feddocket to submit or 
view public comments, access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Once you have entered 
EDOCKET, click on the ``View Open APHIS Dockets'' link to locate this 
document.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 04-130-1, 
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. 04-130-1.
     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. 04-130-1'' on the subject 
line.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this 
docket and submitting comments.
    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: You may view APHIS documents published in the 
Federal Register and related information, including the names of groups 
and individuals who have commented on APHIS dockets, 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) 734-7338.

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.

Addition to Quarantined Area

    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, a portion of Hudson County in the State of New Jersey, and 
portions of New York City and Nassau and Suffolk Counties in the State 
of New York are already designated as quarantined areas.
    On August 4, 2004, an ALB infestation was discovered in the Borough 
of Carteret in Middlesex County, NJ. Another ALB infestation was 
discovered in the City of Rahway, in Union County, NJ, on August 17, 
2004. An additional ALB infestation was discovered in this area in late 
November 2004. Officials of the U.S. Department of Agriculture and 
officials of State, county, and city agencies in New Jersey are 
conducting intensive survey and eradication programs in the infested 
area, which includes sections of the City of Rahway and adjacent 
sections of the City of Linden in Union County and the Township of 
Woodbridge in Middlesex County. The State of New Jersey has quarantined 
the infested area and is restricting the intrastate movement of 
regulated articles from the quarantined area to prevent the further 
spread of ALB within that State. Federal regulations are necessary to 
restrict the interstate movement of regulated articles from the 
quarantined area to prevent the interstate spread of ALB.
    The regulations in Sec.  301.51-3(a) provide that the Administrator 
of the

[[Page 4004]]

Animal and Plant Health Inspection Service (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 
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 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 additional areas in Middlesex and Union 
Counties, NJ. The quarantined area is described in the rule portion of 
this document.

Emergency Action

    This rulemaking is necessary on an emergency basis to help 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.
    We are amending the regulations by adding portions of Middlesex and 
Union Counties, NJ, to the list of areas regulated for ALB and 
restricting the interstate movement of regulated articles from those 
areas. This action is necessary to prevent the artificial spread of ALB 
into noninfested areas of the United States.
    The Regulatory Flexibility Act (RFA) requires that agencies 
consider the economic impact of their rules on small entities, i.e., 
small businesses, organizations, and governmental jurisdictions. This 
interim rule modifies the area in New Jersey that is regulated for ALB 
by adding an area that encompasses parts of Middlesex and Union 
Counties. The businesses potentially affected by modifications to the 
ALB quarantined area are nurseries, arborists, tree removal services, 
firewood dealers, garden centers, landscapers, recyclers of waste 
material, and lumber and building material outlets.
    The newly quarantined area covers 12.1 square miles. Within that 
12.1 square mile area, there are 10 firewood dealers, 50 landscapers 
and tree care companies, 3 private waste management companies, 3 
developers/excavators, 1 wood recycler, and 1 garden center. While the 
size of those businesses is unknown, it is reasonable to assume that 
most would be classified as small entities, based on the U.S. Small 
Business Administration's size standards. There are also six 
governmental entities--two counties and four townships--within the 12.1 
square mile area. Under the RFA, the term ``small governmental 
jurisdiction'' generally means cities, counties, townships, etc., with 
a population of less than 50,000. It is possible that some or all of 
the six governmental entities would qualify as small governmental 
jurisdictions.
    Entities, large or small, could be affected by the regulations in 
two ways. First, if an entity wishes to move regulated articles 
interstate from a quarantined area, that entity 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 entities operating under a compliance agreement that 
would perform the inspections themselves. For those entities 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 
by 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 an affected entity would be denied certificates as 
a result of inspections of regulated articles is unknown. However, 
because the newly regulated area is primarily urban, the entities 
located in that area are more likely to be receiving regulated articles 
from outside the quarantined area than they are to be shipping 
regulated articles interstate to nonquarantined areas. It is unlikely, 
therefore, that most entities located in the newly regulated area 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 would 
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 
before parties may file suit in court challenging this rule.

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:

[[Page 4005]]

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772; 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.  301.51-3, paragraph (c) is amended by adding, in 
alphabetical order under the heading New Jersey, an entry for Middlesex 
and Union Counties to read as follows:


Sec.  301.51-3  Quarantined areas.

* * * * *
    (c) * * *

New Jersey

* * * * *
    Middlesex and Union Counties. That portion of the counties bounded 
by a line drawn as follows: Beginning at the intersection of St. 
Georges Avenue and Stiles Street; then east along Stiles Street to 
Elizabeth Avenue; then north on Elizabeth Avenue to Wood Avenue; then 
east on Wood Avenue to the east side of the New Jersey Turnpike right-
of-way; then south along the east side of the New Jersey Turnpike 
right-of-way to Marshes Creek; then southeast along Marshes Creek to 
the Rahway River; then west along the south side of the Rahway River to 
Cross Creek; then south along Cross Creek through the wetlands to Peter 
J. Sica Industrial Drive; then east and south on Peter J. Sica 
Industrial Drive to Roosevelt Avenue (State Route 602); then west on 
Roosevelt Avenue to Port Reading Avenue (State Route 604); then west 
southwest on Port Reading Avenue to the Conrail railroad; then north 
and west along the Conrail railroad right-of-way to the NJ Transit 
railroad right-of-way; then north and northwest along the NJ Transit 
railroad right-of-way to the south branch of the Rahway River; then 
west along the south branch of the Rahway River to St. Georges Avenue; 
then north on St. Georges Avenue to the point of beginning.
* * * * *

    Done in Washington, DC, this 24th day of January 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-1615 Filed 1-27-05; 8:45 am]
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