[Federal Register Volume 71, Number 196 (Wednesday, October 11, 2006)]
[Rules and Regulations]
[Pages 59649-59651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16755]



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  Federal Register / Vol. 71, No. 196 / Wednesday, October 11, 2006 / 
Rules and Regulations  

[[Page 59649]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2006-0127]


Asian Longhorned 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 Asian longhorned beetle regulations by 
expanding the boundaries of the quarantined areas in New Jersey and 
restricting the interstate movement of regulated articles from these 
areas. This action is necessary to prevent the artificial spread of the 
Asian longhorned beetle to noninfested areas of the United States.

DATES: This interim rule was effective October 4, 2006. We will 
consider all comments that we receive on or before December 11, 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-2006-0127 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 Docket No. APHIS-
2006-0127, 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-2006-0127.
    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: Mr. Michael B. Stefan, ALB National 
Coordinator, Emergency and Domestic Programs, PPQ, APHIS, 4700 River 
Road Unit 134, Riverdale, MD 20737-1231; (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.
    The regulations in 7 CFR 301.51-1 through 301.51-9 restrict the 
interstate movement of regulated articles from quarantined areas to 
prevent the artificial spread of ALB to noninfested areas of the United 
States. Recent surveys conducted in New Jersey by inspectors of State, 
county, and city agencies and by inspectors of the Animal and Plant 
Health Inspection Service (APHIS) have revealed that infestations of 
ALB have occurred outside the existing quarantined areas. 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, and 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. However, Federal regulations 
are necessary to restrict the interstate movement of regulated articles 
from the quarantined area 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 
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

[[Page 59650]]

findings described above, we are amending the list of quarantined areas 
in Sec.  301.51-3(c) to include the City of Linden in Union County, as 
well as portions of the Borough of Roselle, the City of Elizabeth, and 
Clark Township, also in Union County. In addition, the quarantined area 
in the City of Carteret in Middlesex County is also being expanded. The 
expanded quarantined area is described in the regulatory text at the 
end of this document.

Emergency Action

    This rulemaking is necessary on an emergency basis to 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 interim 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 
boundaries of the quarantined areas in New Jersey and restricting the 
interstate movement of regulated articles from these areas. This action 
is necessary to prevent the artificial spread of the ALB to 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. We 
estimate that about 124 small entities, including 4 local governments, 
may be affected. Types and numbers of entities located within the newly 
quarantined areas, and corresponding small-entity criteria, are shown 
in table 1. We expect that most if not all of the affected entities are 
small.

  Table 1.--Types of Establishment, Number, and Small Entity Size Standard for Businesses and Local Governments
                               Located Within the Areas Newly Quarantined for ALB
----------------------------------------------------------------------------------------------------------------
                                Number of
      Establishment type         entities            Code           Industry title    Small entity size standard
----------------------------------------------------------------------------------------------------------------
Tree service.................           30  561730...............  Landscaping       < $6.5m.
                                                                    services.
Landscaping company..........           30  561730...............  Landscaping       < $6.5m.
                                                                    services.
Excavator....................           30  238910...............  Site preparation  < $13.0m.
                                                                    contractors.
Garden center................           10  444220...............  Nursery and       < $6.5m.
                                                                    garden centers.
Firewood dealer..............            5  454319...............  Other fuel        < $6.5m.
                                                                    dealers.
Local government.............            4  RFA Sec.   601.......  Small             < 50,000 population.
                                                                    governmental
                                                                    jurisdiction.
Utility......................            5  237130...............  Power and         < $31.0m.
                                                                    communication
                                                                    lines and
                                                                    related
                                                                    structures
                                                                    construction.
Waste management.............           10  562111...............  Solid waste       < $11.5m.
                                                                    collection.
                               ...........  562219...............  Other non-        < $11.5m.
                                                                    hazardous waste
                                                                    treatment and
                                                                    disposal.
----------------------------------------------------------------------------------------------------------------

    The regulations in Sec.  301.51-4 set conditions for the interstate 
movement of regulated articles from quarantined areas. An affected 
entity may (1) enter into a compliance agreement with APHIS for the 
inspection and certification of regulated articles to be moved 
interstate, or (2) present its regulated articles for inspection and 
obtain a certificate or a limited permit, issued by an inspector, for 
the interstate movement of regulated articles. 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 provides the services of an inspector 
without cost. There is also no fee 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 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 
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

[[Page 59651]]

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. 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).


0
2. In Sec.  301.51-3, paragraph (c), the entry for New Jersey is 
revised to read as follows:


Sec.  301.51-3  Quarantined areas.

* * * * *
    (c) * * *

New Jersey

    Middlesex and Union Counties. That portion of the counties, 
including the municipalities of Roselle, Elizabeth City, Linden, 
Carteret, Woodbridge, Rahway, and Clark, that is bounded by a line 
drawn as follows: Beginning at the intersection of Locust Street 
(County Road 619) and West Grand Avenue (Union County 610) in Roselle, 
NJ; then east on West Grand Avenue to Chilton Street; then south on 
Chilton Street to South Street; then east on South Street to Broad 
Street; then south on Broad Street to Summer Street; then east on 
Summer Street to the Elizabeth River; then east along the Elizabeth 
River to the Arthur Kill; then south along the Arthur Kill (New Jersey 
and New York State border) to the point where Roosevelt Avenue (State 
Route 602) meets the Arthur Kill in Carteret, NJ; then south along 
Roosevelt Avenue to Port Reading Avenue (State Route 604); then west 
southwest along 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 
(State Highway 27); then north along St. Georges Avenue to its 
intersection with the eastern border of Rahway River Park (Union County 
Park); then north along the eastern border of Rahway River Park to the 
intersection of Valley Road and Union County Parkway; then north along 
Union County Parkway to North Stiles Street; then northwest along North 
Stiles Street to Raritan Road; then northeast along Raritan Road to the 
perpendicular intersection of Raritan Road and the Cranford/Linden 
township border (144 Raritan Road); then north along the Cranford/
Linden border to Myrtle Street; then east along Myrtle Street to the 
intersection of Amsterdam Avenue and Wood Avenue; then southeast along 
Wood Avenue to 5th Avenue; then northeast along 5th Avenue to Locust 
Street; then north along Locust Street to the point of beginning.
* * * * *

    Done in Washington, DC, this 4th day of October 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E6-16755 Filed 10-10-06; 8:45 am]
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