[Federal Register Volume 62, Number 45 (Friday, March 7, 1997)]
[Rules and Regulations]
[Pages 10412-10419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5518]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 96-102-1]
Asian Longhorned Beetle; Quarantine Regulations
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
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SUMMARY: We are quarantining a small area in the boroughs of Brooklyn
and Queens, NY, and a small area in the vicinity of Amityville, NY,
because of infestation of the Asian longhorned beetle and restricting
the interstate movement of regulated articles from these quarantined
areas. These actions are necessary on an emergency basis to prevent the
artificial spread of this plant pest from infested areas in the State
of New York to noninfested areas of the United States.
DATES: Interim rule effective February 28, 1997. Consideration will be
given only to comments received on or before May 6, 1997.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 96-102-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 96-102-1. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Mr. Ronald P. Milberg, Operations
Officer, Program Support, PPQ, APHIS, 4700 River Road Unit 134,
Riverdale, MD 20737-1236, (301) 734-5255.
SUPPLEMENTARY INFORMATION:
Background
We are amending the ``Domestic Quarantine Notices'' in 7 CFR part
301 by adding a new subpart 301.51, ``Asian Longhorned Beetle''
(referred to below as ``the regulations''). These regulations
quarantine a small area in the Greenpoint section of Brooklyn, NY, and
a small area in the vicinity of Amityville, NY, because of Asian
longhorned beetle and restrict the interstate movement of regulated
articles from the quarantined areas.
The Asian longhorned beetle (ALB) (Anoplophora glabripennis),
native to China, Japan, Korea, and the Isle of Hainan, is a destructive
pest of hardwood trees. It is known to attack healthy trees of maple
(including Norway, sugar, silver, red, and others), horse chestnut,
poplar, willow, elm, locust, mulberry, chinaberry, apple, cherry, pear,
and citrus. It may also attack other species of hardwood trees. ALB
bores into the heartwood of host trees, eventually killing the host
trees. 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 interior of the trees. Adult beetles
emerge in the spring and summer months from large, round holes
approximately \3/8\-inch in diameter (about the size of a dime) that
they bore through the trunks of trees. After emerging, adult beetles
fly for 2 to 3 days, when they feed and mate. Adult females then lay
eggs in grooves that they make on the branches of trees. A new
generation of ALB is produced each year.
First detected in the United States in August 1996, ALB has been
found in hardwood trees in an area in the boroughs of Brooklyn and
Queens, NY, and in the vicinity of Amityville, NY. In these locations,
the beetle appears to prefer maple and horse chestnut trees. However,
nursery stock, logs, green lumber, firewood, stumps, roots, branches,
and debris of a half an inch or more in diameter are also subject to
infestation. Therefore, if this pest moves into the hardwood forests of
the northeastern United States, severe economic impact to the nursery
and
[[Page 10413]]
forest products industries in that part of the United States could
result.
Officials of the U.S. Department of Agriculture (USDA) and
officials of State, county, and city agencies in New York State have
begun an intensive survey and eradication program in the infested
areas. The State of New York has quarantined the infested areas and is
restricting the intrastate movement of certain articles from the
quarantined areas to prevent the artificial spread of ALB within the
State. However, Federal regulations are necessary to restrict the
interstate movement of certain articles from the quarantined areas to
prevent the artificial spread of ALB to other States and Canada. This
interim rule establishes the Federal quarantine and regulations, which
are described below.
Definitions
Section 301.51-1 defines the following terms: ``Administrator,''
``Animal and Plant Health Inspection Service (APHIS),'' ``Asian
longhorned beetle,'' ``Certificate,'' ``Compliance agreement,''
``Infestation,'' ``Inspector,'' ``Interstate,'' ``Limited permit,''
``Moved (movement, move),'' ``Person,'' ``Quarantined area,''
``Regulated article,'' and ``State.''
Regulated Articles
Certain articles present a significant risk of spreading ALB if the
articles are moved from quarantined areas without restriction. We call
these articles ``regulated articles.'' Regulated articles may not be
moved interstate from quarantined areas except in accordance with the
conditions specified in Secs. 301.51-4 through 301.51-9 of the
regulations. Section 301.51-2 designates as regulated articles the
following articles: 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 a half an inch or
more in diameter of the following genera: Acer (maple), Aesculus (horse
chestnut), Malus (apple), Melia (chinaberry), Morus (mulberry), Populus
(poplar), Prunus (cherry), Pyrus (pear), Robinia (locust), Salix
(willow), Ulmus (elm), and Citrus. We are requiring that all hardwood
species of firewood be regulated because as hardwood is dried and cut
into firewood, it is difficult to distinguish between species of
hardwood. In addition, this section allows designation of any other
article, product, or means of conveyance as a regulated article if an
inspector determines that it presents a risk of spreading ALB and if an
inspector notifies the person in possession of the article, product, or
means of conveyance that it is subject to the restrictions in the
regulations. This last provision for ``any other article, product, or
means of conveyance'' allows an inspector who discovers evidence of ALB
in an article, product, or means of conveyance to take immediate action
after informing the person in possession of it that it is being
regulated.
Quarantined Areas
Section 301.51-3(a) provides that the Administrator will quarantine
each State or portion of a State in which ALB has been found by an
inspector, in which the Administrator has reason to believe that ALB is
present, or which the Administrator deems necessary to regulate because
of its inseparability for quarantine enforcement purposes from
localities where ALB has been found. Less than an entire State will be
designated as a quarantined area only under certain conditions. Such a
designation may be made if the Administrator determines that: (1) The
State has adopted and is enforcing restrictions on the intrastate
movement of regulated articles listed in Sec. 301.51-2 that are
equivalent to the interstate movement restrictions imposed by the
regulations in Secs. 301.51-1 through 301.51-9; and (2) the designation
of less than an entire State as a quarantined area will be adequate to
prevent the artificial spread of the ALB.
Section 301.51-3(b) provides that the Administrator or an inspector
may temporarily designate any nonquarantined area as a quarantined
area, without publication in the Federal Register, if there is a basis
for listing the area as a quarantined area under Sec. 301.51-3(a), and
if the owner or person in possession of the nonquarantined area, or, in
the case of publicly owned land, the person responsible for the
management of the nonquarantined area, is given written notice of the
designation. This is necessary to prevent the spread of ALB before
restrictions can be published in the Federal Register concerning the
interstate movement of regulated articles from the designated area.
In accordance with these criteria, we are designating two areas in
the State of New York, one in the boroughs of Brooklyn and Queens in
the city of New York and one in the vicinity of Amityville, NY, as
quarantined areas. See Sec. 301.51-3(c) of the rule portion of this
document for specific descriptions of the quarantined areas.
Conditions governing the interstate movement of regulated articles
from quarantined areas.
Section 301.51-4(a)(1) requires regulated articles moved interstate
from a quarantined area into or through an area that is not quarantined
to be accompanied by a certificate or limited permit issued and
attached as prescribed by Secs. 301.51-5 and 301.51-8.
Section 301.51-4(a)(2) allows a regulated article to be moved
interstate without a certificate or limited permit if the regulated
article is moved by the United States Department of Agriculture for
experimental or scientific purposes or if the regulated article
originates outside the quarantined area and is moved interstate through
a quarantined area under the following conditions: (1) the points of
origin and destination are indicated on a waybill accompanying the
regulated article; (2) the regulated article is moved through the
quarantined area without stopping, or has been stored, packed, or
handled at locations approved by an inspector; and (3) the article has
not been combined or commingled with other articles so as to lose its
individual identity.
Section 301.51-4(b) references the authority of an inspector who
has probable cause to believe a person or means of conveyance is moving
regulated articles in interstate commerce to stop the person or means
of conveyance to determine whether regulated articles are present and
to inspect the regulated articles. Further, Sec. 301.51-4(b) provides
that articles found to be infested by an inspector, and articles not in
compliance with the regulations, may be seized, quarantined, treated,
subjected to other remedial measures, destroyed, or otherwise disposed
of.
Issuance and cancellation of certificates and limited permits.
Under Federal domestic plant quarantine programs, there is a
difference between the use of certificates and limited permits.
Certificates are issued for regulated articles upon a finding by an
inspector that, because of certain conditions (e.g., the article is
free of ALB), there is an absence of a pest or disease risk prior to
movement. Regulated articles accompanied by a certificate may be moved
interstate without further restrictions being imposed. Limited permits
are issued for regulated articles when an inspector has determined
that, because of possible pest or disease risk, such articles may be
safely moved interstate only subject to further restrictions, such as
movement to specified areas and movement for specified purposes.
Section 301.51-5 explains the conditions for issuing certificates and
limited permits and for
[[Page 10414]]
canceling certificates and limited permits.
Section 301.51-5(a) provides that an inspector or a person
operating under a compliance agreement (discussed below) will issue a
certificate for the interstate movement of a regulated article if he or
she determines that the regulated article: (1) Is eligible for
unrestricted movement under all other Federal domestic plant
quarantines and regulations applicable to the regulated article; (2) is
to be moved in compliance with any additional emergency conditions the
Administrator may impose under 7 U.S.C. 150dd to prevent the artificial
spread of ALB; and (3) meets one of the following conditions: The
article is apparently free of ALB in any stage of development, or the
article has been grown, produced, manufactured, stored, or handled in a
manner that would prevent infestation or destroy all life stages of
ALB.
Section 301.51-5(b) provides for the issuance of a limited permit
(in lieu of a certificate), by an inspector or person operating under a
compliance agreement, for movement of a regulated article if he or she
determines that the regulated article: (1) Is to be moved interstate to
a specified destination for specific processing, handling, or
utilization (the destination and other conditions to be listed in the
limited permit and/or compliance agreement), and this interstate
movement will not result in the artificial spread of ALB because ALB
will be destroyed or the risk mitigated by the specific processing,
handling, or utilization; (2) is to be moved interstate in compliance
with any additional emergency conditions the Administrator may impose
under 7 U.S.C. 150dd to prevent the artificial spread of ALB; and (3)
is eligible for interstate movement under all other Federal domestic
plant quarantines and regulations applicable to the regulated article.
Section 301.51-5(c) provides that an inspector will issue blank
certificates and limited permits to a person operating under a
compliance agreement or authorize reproduction of the certificates or
limited permits on shipping containers, or both, as requested by the
person operating under the compliance agreement. These certificates or
limited permits may then be completed and used, as needed, for the
interstate movement of regulated articles that have met all of the
requirements of Sec. 301.51-5(a) or Sec. 301.51-5(b), respectively.
Section 301.51-5(d) explains that a certificate or limited permit
may be cancelled by an inspector, orally or in writing, whenever the
inspector determines that the holder of the certificate or limited
permit has not complied with the regulations. If the cancellation is
oral, the cancellation will become effective upon notification by the
inspector. The cancellation and the reasons for the cancellation will
then be confirmed in writing as soon as circumstances allow after oral
notification of the cancellation. Any person whose certificate or
limited permit has been canceled may appeal the decision, in writing,
within 10 days after receiving the written cancellation notice. The
appeal must state all of the facts and reasons that the person wants
the Administrator to consider in deciding the appeal. A hearing may be
held to resolve a conflict as to any material fact. Rules of practice
for the hearing will be adopted by the Administrator. As soon as
practicable, the Administrator will grant or deny the appeal, in
writing, stating the reasons for the decision.
Compliance Agreements and Cancellation
Section 301.51-6 provides for the use and cancellation of
compliance agreements. Under Sec. 301.51-6(a), compliance agreements
may be entered into by any person engaged in the growing, handling, or
movement of regulated articles interstate if such persons review with
an inspector each stipulation of the compliance agreement. Any person
who enters into a compliance agreement with APHIS must agree to comply
with the regulations.
Section 301.51-6(b) explains that a compliance agreement may be
cancelled by an inspector, orally or in writing, whenever the inspector
determines that the person who entered into the compliance agreement
has not complied with the regulations. If the cancellation is oral, the
cancellation will become effective upon oral notification by the
inspector. The cancellation and the reasons for the cancellation will
then be confirmed in writing as soon as circumstances allow after oral
notification of the cancellation. Any person whose compliance agreement
has been canceled may appeal the decision, in writing, within 10 days
after receiving the written cancellation notice. The appeal must state
all of the facts and reasons that the person wants the Administrator to
consider in deciding the appeal. A hearing may be held to resolve a
conflict as to any material fact. Rules of practice for the hearing
will be adopted by the Administrator. As soon as practicable, the
Administrator will grant or deny the appeal, in writing, stating the
reasons for the decision.
Assembly and Inspection of Regulated Articles
Section 301.51-7(a) provides that any person who requires
certification or other services from an inspector must request the
services at least 48 hours before they are needed. Section 301.51-7(b)
provides that regulated articles must be assembled at the place and in
the manner an inspector designates as necessary to comply with the
regulations. Attachment and disposition of certificates and limited
permits
Section 301.51-8(a) requires that regulated article intended for
interstate movement be plainly marked with the name and address of the
consignor and the name and address of the consignee and that the
certificate or limited permit issued for the interstate movement of
regulated articles must be attached to either: (1) the regulated
article, or (2) the container carrying the regulated article, or (3)
the accompanying waybill during interstate movement. This section also
provides that the certificate or limited permit may be attached to the
consignee's copy of the waybill only if the certificate and limited
permit, and the waybill, contain a sufficient description of the
regulated article to identify the regulated article. This provision is
necessary for enforcement purposes.
Section 301.89-9(b) requires the carrier of the article to furnish
the certificate or limited permit to the consignee at the shipment's
destination.
Costs and Charges
Section 301.51-9 explains the APHIS policy that inspector's
services are provided without cost during normal business hours to
persons requiring those services to comply with the regulations. The
user will be responsible for all costs and charges arising from
inspection and other services provided outside of normal business
hours.
Emergency Action
The Administrator of the Animal and Plant Health Inspection Service
has determined that an emergency exists that warrants publication of
this interim rule without prior opportunity for public comment.
Immediate action is necessary to prevent the spread of ALB into
noninfested areas of the United States.
Because prior notice and other public procedures with respect to
this action are impracticable and contrary to the public interest under
these conditions, we find good cause under 5 U.S.C. 553 to make it
effective upon signature. We
[[Page 10415]]
will consider comments that are received within 60 days of publication
of this rule in the Federal Register. After the comment period closes,
we will publish another document in the Federal Register. It will
include a discussion of any comments we receive and any amendments we
are making to the rule as a result of the comments.
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
process required by Executive Order 12866.
In accordance with 5 U.S.C. 603, we have performed an Initial
Regulatory Flexibility Analysis, which is set out below, regarding the
impact of this interim rule on small entities. However, we do not
currently have all of the data necessary for a comprehensive analysis
of the effects of this interim rule on small entities. Therefore, we
are inviting comments on potential effects. In particular, we are
interested in determining the number and kind of small entities that
may incur benefits or costs from the implementation of this interim
rule.
The Plant Quarantine Act (7 U.S.C. 151-165 and 167) and the Federal
Plant Pest Act (7 U.S.C. 105aa-150jj) authorize the Secretary of
Agriculture to take measures necessary to prevent the spread of plant
pests new to, or not widely prevalent or distributed within and
throughout, the United States.
This interim rule quarantines two areas in the State of New York
because of ALB, a pest of hardwood trees from Asia that was first
detected in the United States in 1996, and restricts the interstate
movement of regulated articles from these quarantined areas. The
quarantined areas are a small section of New York City, NY, where the
pest was first detected in the United States in August 1996, and a
small area in the vicinity of Amityville, NY. These regulations are
necessary on an emergency basis to prevent the artificial spread of
this plant pest from infested areas in the State of New York to
noninfested areas of the United States.
Within the areas quarantined for ALB, it is estimated that there
are fewer than 100 small businesses, including nurseries, arborists,
tree removal services, and firewood dealers, that could be affected by
this interim rule. They could be affected in two ways. First, if a
business wishes to move regulated articles from a quarantined area to
an area outside of New York State, that business must either: (1) enter
into a compliance agreement with APHIS for the inspection and
certification of regulated articles for interstate movement from a
quarantined area; or (2) present its regulated articles for inspection
by an APHIS inspector and obtain a certificate or a limited permit,
issued by the APHIS inspector, for the interstate movement of regulated
articles. In either case, the inspections of regulated articles may be
inconvenient, but these inspections do not result in any additional
direct costs for businesses because APHIS provides the services of the
inspector without cost, as long as those services are administered
during normal working hours. There is also no cost for the compliance
agreement, certificate, or limited permit for interstate movement of
regulated articles.
However, some regulated articles, because of ALB infestation, may
not qualify for interstate movement under a certificate or limited
permit. In this case, a business wishing to move such regulated
articles interstate from the quarantined area would be deprived of the
opportunity to benefit from the sale of the affected regulated articles
in another State. However, we do not have data to estimate either the
potential loss of income or the economic impact of any potential loss
of income on small businesses.
If this rule is not implemented, there is potential for serious
economic impact to many businesses, both large and small, in the United
States. Particularly in the eastern United States, due to proximity to
the areas where ALB has been detected, businesses involved in the
manufacture of non-nursery forest products have the potential for
serious economic losses if ALB is allowed to spread. In 1986, the
forest products industry in the northeast consisted of 307,900
employees generating $6.6 billion. In 1992, in seven northeastern
States, hardwood accounted for 52 percent of the net volume of growing
stock on timberland. The forest industry owned 20 percent of that
hardwood timber. Therefore, if ALB were to spread through the 279
million acres of hardwood forests in the eastern United States, the
forest products industry in the eastern United States would have the
potential for serious economic losses.
Nurseries and greenhouses that rely on healthy hardwood trees also
have the potential for economic losses if ALB is allowed to spread. In
1993, sales of plants (trees and shrubs) by nurseries and greenhouses
in the United States totaled an estimated $3.1 billion, of which $212
million was derived from sales in seven northeastern states. During the
fiscal year ending September 30, 1993, 103.9 million landscape trees
were sold in the United States, including 5.7 million in seven
northeastern states. Approximately one-half of all landscape trees sold
in the United States are hardwood trees.
In addition, the tourism industry in New England has the potential
for economic losses if ALB reaches the hardwood forests of the
northeastern United States. New England's tourism industry is tied
heavily to autumn's leaf color changes, and the maple tree, a preferred
host for ALB, is noted for producing some of the most vivid colors.
Between mid-September and late October, the hardwood forests of New
England draw 1 million tourists and generate $1 billion in revenue. It
is estimated that up to one fourth of the tourism revenue generated
annually in New England is due to the fall's foliage displays.
Lastly, the maple syrup industry has the potential for economic
losses if ALB reaches the forests of New England because the maple
syrup industry relies on healthy maple trees, especially the sugar
maple, for maple syrup production. In four New England States alone
(Maine, Massachusetts, New Hampshire, and Vermont), maple syrup
producers tapped 604,000 gallons of maple syrup in 1991, with a value
of $17.5 million.
The alternative to this interim rule was to take no action. We
rejected this alternative because failure to quarantine two portions of
New York State and restrict interstate movement of regulated articles
from those quarantined areas could result in economic losses for the
forest products, nursery, tourist, and maple syrup industries in the
eastern United States.
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.
National Environmental Policy Act
An environmental assessment and finding of no significant impact
have
[[Page 10416]]
been prepared for this rule. The assessment provides a basis for the
conclusion that a Federal quarantine for ALB will not present a risk of
introducing or disseminating plant pests and would 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) (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 at USDA, room
1141, South Building, 14th Street and Independence Avenue SW.,
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday,
except holidays. Persons wishing to inspect copies are requested to
call ahead on (202) 690-2817 to facilitate entry into the reading room.
In addition, copies may be obtained by writing to the individual listed
under FOR FURTHER INFORMATION CONTACT, by calling the Plant Protection
and Quarantine Fax Service at 301-734-3560, or by visiting the
following Internet site: http://www.aphis.usda.gov/ppd/ead/
ppqdocs.html.
Paperwork Reduction Act
In accordance with section 3507(j) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this interim rule have been
submitted for emergency approval to the Office of Management and Budget
(OMB). OMB has assigned control number 0579-0122 to the information
collection and recordkeeping requirements. Notwithstanding any other
provision of the law, no person is required to respond to, nor shall
any person be subject to a penalty for failure to comply with a
collection of information, subject to the requirements of the Paperwork
Reduction Act, unless that collection of information displays a
currently valid OMB Control Number. Please send written comments to the
Office of Information and Regulatory Affairs, OMB, Attention: Desk
Officer for APHIS, Washington, DC 20503. Please state that your
comments refer to Docket No. 96-102-1. Please send a copy of your
comments to: (1) Docket No. 96-102-1, Regulatory Analysis and
Development, PPD, APHIS, suite 3C03, 4700 River Road Unit 118,
Riverdale, MD 20737-1238, and (2) Clearance Officer, OIRM, USDA, room
404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication of this interim rule.
The paperwork associated with the Asian longhorned beetle program
will include the completion of compliance agreements, certificates, and
limited permits. There will also be requests for inspections. We are
soliciting comments from the public (as well as affected agencies)
concerning our information collection and recordkeeping requirements.
We need this outside input to help us:
(1) Evaluate whether the information collection is necessary for
the proper performance of our agency's functions, including whether the
information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
information collection, including the validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated to average .42 hours per response.
Respondents: Growers, handlers, shippers, State plant protection
authorities.
Estimated number of respondents: 155.
Estimated number of responses per respondent: 1.
Estimated total annual burden on respondents: 132 hours.
Copies of this information collection can be obtained from:
Clearance Officer, OIRM, USDA, Room 404-W, 14th Street and Independence
Ave., SW, Washington, DC 20250.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, 7 CFR part 301 is amended as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 is revised to read as
follows:
Authority: 7 U.S.C. 147a, 150bb, 150dd, 150ee, 150ff, 161, 162,
and 164-167; 7 CFR 2.22, 2.80, and 371.2(c).
2. Part 301 is amended by adding a new ``Subpart--Asian Longhorned
Beetle'', Secs. 301.51-1 through 301.51-9, to read as follows:
Subpart--Asian Longhorned Beetle
Sec.
301.51-1 Definitions.
301.51-2 Regulated articles.
301.51-3 Quarantined areas.
301.51-4 Conditions governing the interstate movement of regulated
articles from quarantined areas.
301.51-5 Issuance and cancellation of certificates and limited
permits.
301.51-6 Compliance agreements and cancellation.
301.51-7 Assembly and inspection of regulated articles.
301.51-8 Attachment and disposition of certificates and limited
permits.
301.51-9 Costs and charges.
Subpart--Asian Longhorned Beetle
Sec. 301.51-1 Definitions.
Administrator. The Administrator, Animal and Plant Health
Inspection Service, or any individual authorized to act for the
Administrator.
Animal and Plant Health Inspection Service (APHIS). The Animal and
Plant Health Inspection Service of the United States Department of
Agriculture.
Asian longhorned beetle. The insect known as Asian longhorned
beetle (Anoplophora glabripennis) in any stage of development.
Certificate. A document which is issued for a regulated article by
an inspector or by a person operating under a compliance agreement, and
which represents that such article is eligible for interstate movement
in accordance with Sec. 301.51-5(a).
Compliance agreement. A written agreement between APHIS and a
person engaged in growing, handling, or moving regulated articles that
are moved interstate, in which the person agrees to comply with the
provisions of this subpart and any conditions imposed under this
subpart.
Infestation. The presence of the Asian longhorned beetle in any
life stage.
[[Page 10417]]
Inspector. Any employee of the Animal and Plant Health Inspection
Service, or other individual authorized by the Administrator to enforce
the provisions of this subpart.
Interstate. From any State into or through any other State.
Limited permit. A document in which an inspector affirms that the
regulated article not eligible for a certificate is eligible for
interstate movement only to a specified destination and in accordance
with conditions specified on the permit.
Moved (movement, move). Shipped, offered for shipment, received for
transportation, transported, carried, or allowed to be moved, shipped,
transported, or carried.
Person. Any association, company, corporation, firm, individual,
joint stock company, partnership, society, or any other legal entity.
Quarantined area. Any State, or any portion of a State, listed in
Sec. 301.51-3(c) of this subpart or otherwise designated as a
quarantined area in accordance with Sec. 301.51-3(b) of this subpart.
Regulated article. Any article listed in Sec. 301.51-2(a) of this
subpart or otherwise designated as a regulated article in accordance
with Sec. 301.51-2(b) of this subpart.
State. The District of Columbia, Puerto Rico, the Northern Mariana
Islands, or any State, territory, or possession of the United States.
Sec. 301.51-2 Regulated articles.
The following are 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 a half an inch or more in
diameter of the following genera: Acer (maple), Aesculus (horse
chestnut), Malus (apple), Melia (chinaberry), Morus (mulberry), Populus
(poplar), Prunus (cherry), Pyrus (pear), Robinia (locust), Salix
(willow), Ulmus (elm), and Citrus.
(b) Any other article, product, or means of conveyance not covered
by paragraph (a) of this section if an inspector determines that it
presents a risk of spreading Asian longhorned beetle and notifies the
person in possession of the article, product, or means of conveyance
that it is subject to the restrictions of this subpart.
Sec. 301.51-3 Quarantined areas.
(a) Except as otherwise provided in paragraph (b) of this section,
the Administrator will list as a quarantined area in paragraph (c) of
this section, each State or each portion of a State in which the Asian
longhorned beetle has been found by an inspector, in which the
Administrator has reason to believe that the Asian longhorned beetle is
present, or that the Administrator considers necessary to regulate
because of its inseparability for quarantine enforcement purposes from
localities where Asian longhorned beetle has been found. Less than an
entire State will be designated as a quarantined area only if the
Administrator determines that:
(1) The State has adopted and is enforcing restrictions on the
intrastate movement of regulated articles that are equivalent to those
imposed by this subpart 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 interstate spread of
the Asian longhorned beetle.
(b) The Administrator or an inspector may temporarily designate any
nonquarantined area as a quarantined area in accordance with the
criteria specified in paragraph (a) of this section. The Administrator
will give written notice of this designation to the owner or person in
possession of the nonquarantined area, or, in the case of publicly
owned land, to the person responsible for the management of the
nonquarantined area. Thereafter, the interstate movement of any
regulated article from an area temporarily designated as a quarantined
area is subject to this subpart. As soon as practicable, this area
either will be added to the list of designated quarantined areas in
paragraph (c) of this section, or the Administrator will terminate the
designation. The owner or person in possession of, or, in the case of
publicly owned land, the person responsible for the management of, an
area for which the designation is terminated will be given written
notice of the termination as soon as practicable.
(c) The following areas are designated as quarantined areas:
New York
New York City. That area in the boroughs of Brooklyn and Queens
in the city of New York that is bounded as follows: Beginning at the
point where the Manhattan Bridge intersects the shoreline of the
East River; then south from the Manhattan Bridge along Flatbush
Avenue to Lafayette Avenue; then east along Lafayette Avenue to
Himrod Street continuing northeast along Himrod Street to Myrtle
Avenue; then east along Myrtle Avenue to Fresh Pond Road; then north
along Fresh Pond Road to Flushing Avenue; then northeast along
Flushing Avenue to Grand Avenue; then along Grand Avenue to 69th
Street; then north along 69th Street to Queens Boulevard; then west
along Queens Boulevard to the Queensbrough Bridge and the East
River; then south and west along the shoreline of the East River to
the point of beginning.
Nassau and Suffolk Counties. That area in the villages of
Amityville, West Amityville, North Amityville, Copiague, Massapequa,
Massapequa Park, and East Massapequa; in the towns of Oyster Bay and
Babylon; and in the counties of Nassau and Suffolk that is bounded
as follows: Beginning at a point where Riviera Drive West intersects
with the shoreline of the Great South Bay; then north along Riveria
Drive West to Strong Avenue; then north along Strong Avenue to
Marconi Boulevard; then west along Marconi Boulevard to Great Neck
Road; then north and northwest along Great Neck Road to Southern
State Parkway; then west along Southern State Parkway to Broadway;
then south along Broadway to Hicksville Road; then south along
Hicksville Road to Division Avenue; then south along Division Avenue
to the Great South Bay; then east along the shoreline of the Great
South Bay to the point of beginning.
Sec. 301.51-4 Conditions governing the interstate movement of
regulated articles from quarantined areas.
(a) Any regulated article may be moved interstate from a
quarantined area only if moved under the following conditions:
(1) With a certificate or limited permit issued and attached in
accordance with Secs. 301.51-5 and 301.51-8;
(2) Without a certificate or limited permit if:
(i) The regulated article is moved by the United States Department
of Agriculture for experimental or scientific purposes; or
(ii) The regulated article originates outside the quarantined area
and is moved interstate through the quarantined area under the
following conditions:
(A) The points of origin and destination are indicated on a waybill
accompanying the regulated article; and
(B) The regulated article is moved through the quarantined area
without stopping, or has been stored, packed, or handled at locations
approved by an inspector as not posing a risk of infestation by Asian
longhorned beetle; and
(C) The article has not been combined or commingled with other
articles so as to lose its individual identity.
(b) When an inspector has probable cause to believe a person or
means of conveyance is moving a regulated article interstate, the
inspector is authorized to stop the person or means of conveyance to
determine whether a regulated article is present and to inspect the
regulated article. Articles found to be infected by an inspector, and
articles not in compliance with the regulations in this subpart, may be
seized, quarantined, treated, subjected to other remedial
[[Page 10418]]
measures, destroyed, or otherwise disposed of.
Sec. 301.51-5 Issuance and cancellation of certificates and limited
permits.
(a) An inspector 1 or person operating under a compliance
agreement will issue a certificate for the interstate movement of a
regulated article if he or she determines that the regulated article:
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\1\ Inspectors are assigned to local offices of APHIS, which are
listed in local telephone directories. Information concerning such
local offices may also be obtained from the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, Domestic and
Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland
20737-1236.
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(1) (i) Is apparently free of Asian longhorned beetle in any stage
of development, based on inspection of the regulated article; or
(ii) Has been grown, produced, manufactured, stored, or handled in
such a manner that, in the judgment of the inspector, the regulated
article does not present a risk of spreading Asian longhorned beetle;
and
(2) Is to be moved in compliance with any additional emergency
conditions that the Administrator may impose under section 105 of the
Federal Plant Pest Act (7 U.S.C. 150dd) 2 in order to prevent the
artificial spread of Asian longhorned beetle; and
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\2\ Section 105 of the Federal Plant Pest Act (7 U.S.C. 150dd)
provides that the Secretary of Agriculture may--under certain
conditions--seize, quarantine, treat, destroy, or apply other
remedial measures to articles that the Administrator has reason to
believe are infested by, infected by, or contain plant pests.
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(3) Is eligible for unrestricted movement under all other Federal
domestic plant quarantines and regulations applicable to the regulated
articles.
(b) An inspector or a person operating under a compliance agreement
will issue a limited permit for the interstate movement of a regulated
article not eligible for a certificate if he or she determines that the
regulated article:
(1) Is to be moved interstate to a specified destination for
specific processing, handling, or utilization (the destination and
other conditions to be listed on the limited permit), and this
interstate movement will not result in the spread of Asian longhorned
beetle because Asian longhorned beetle will be destroyed by the
specific processing, handling, or utilization; and
(2) Is to be moved in compliance with any additional emergency
conditions that the Administrator may impose under section 105 of the
Federal Plant Pest Act (7 U.S.C. 150dd) in order to prevent the spread
of Asian longhorned beetle; and
(3) Is eligible for unrestricted movement under all other Federal
domestic plant quarantines and regulations applicable to the regulated
article.
(c) An inspector shall issue blank certificates and limited permits
to a person operating under a compliance agreement in accordance with
Sec. 301.51-6 or authorize reproduction of the certificates or limited
permits on shipping containers, or both, as requested by the person
operating under the compliance agreement. These certificates and
limited permits may then be completed and used, as needed, for the
interstate movement of regulated articles that have met all of the
requirements of paragraph (a) or (b), respectively, of this section.
(d) Any certificate or limited permit may be canceled orally or in
writing by an inspector whenever the inspector determines that the
holder of the certificate or limited permit has not complied with this
subpart or any conditions imposed under this subpart. If the
cancellation is oral, the cancellation will become effective
immediately, and the cancellation and the reasons for the cancellation
will be confirmed in writing as soon as circumstances permit. Any
person whose certificate or limited permit has been cancelled may
appeal the decision in writing to the Administrator within 10 days
after receiving the written cancellation notice. The appeal must state
all of the facts and reasons that the person wants the Administrator to
consider in deciding the appeal. A hearing may be held to resolve a
conflict as to any material fact. Rules of practice for the hearing
will be adopted by the Administrator. As soon as practicable, the
Administrator will grant or deny the appeal, in writing, stating the
reasons for the decision.
Sec. 301.51-6 Compliance agreements and cancellation.
(a) Persons engaged in growing, handling, or moving regulated
articles interstate may enter into a compliance agreement 3 if
such persons review with an inspector each stipulation of the
compliance agreement. Any person who enters into a compliance agreement
with APHIS must agree to comply with the provisions of this subpart and
any conditions imposed under this subpart.
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\3\ Compliance agreements may be initiated by contacting a local
office of APHIS. The addresses and telephone numbers of local
offices are listed in local telephone directories and may also be
obtained from the Animal and Plant Health Inspection Service, Plant
Protection and Quarantine, Domestic and Emergency Operations, 4700
River Road Unit 134, Riverdale, Maryland 20737-1236.
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(b) Any compliance agreement may be canceled orally or in writing
by an inspector whenever the inspector determines that the person who
has entered into the compliance agreement has not complied with this
subpart or any conditions imposed under this subpart. If the
cancellation is oral, the cancellation will become effective
immediately, and the cancellation and the reasons for the cancellation
will be confirmed in writing as soon as circumstances permit. Any
person whose compliance agreement has been cancelled may appeal the
decision in writing to the Administrator within 10 days after receiving
the written cancellation notice. The appeal must state all of the facts
and reasons that the person wants the Administrator to consider in
deciding the appeal. A hearing may be held to resolve a conflict as to
any material fact. Rules of practice for the hearing will be adopted by
the Administrator. As soon as practicable, the Administrator will grant
or deny the appeal, in writing, stating the reasons for the decision.
Sec. 301.51-7 Assembly and inspection of regulated articles.
(a) Persons requiring certification or other services must request
the services from an inspector 4 at least 48 hours before the
services are needed.
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\4\ See footnote 1 to Sec. 301.51-5.
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(b) The regulated articles must be assembled at the place and in
the manner that the inspector designates as necessary to comply with
this subpart.
Sec. 301.51-8 Attachment and disposition of certificates and limited
permits.
(a) A regulated article must be plainly marked with the name and
address of the consignor and the name and address of the consignee and
must have the certificate or limited permit issued for the interstate
movement of a regulated article securely attached at all times during
interstate movement to:
(1) The outside of the container encasing the regulated article;
(2) The article itself, if it is not in a container; or
(3) The consignee's copy of the accompanying waybill; Provided,
that the description of the regulated article on the certificate or
limited permit, and on the waybill, are sufficient to identify the
regulated article; and
(b) The carrier must furnish the certificate or limited permit
authorizing interstate movement of a regulated article to the consignee
at the destination of the shipment.
[[Page 10419]]
Sec. 301.51-9 Costs and charges.
The services of the inspector during normal business hours will be
furnished without cost to persons requiring the services. The user will
be responsible for all costs and charges arising from inspection and
other services provided outside of normal business hours.
Done in Washington, DC, this 28th day of February 1997.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 97-5518 Filed 3-6-97; 8:45 am]
BILLING CODE 3410-34-P
