[Federal Register: May 19, 2003 (Volume 68, Number 96)]
[Rules and Regulations]
[Page 26983-26985]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my03-1]
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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 regulations@aphis.usda.gov <mailto:regulations@aphis.usda.gov>. 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 <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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
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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
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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/ <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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]
BILLING CODE 3410-34-P
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