[Federal Register Volume 74, Number 213 (Thursday, November 5, 2009)]
[Rules and Regulations]
[Pages 57243-57245]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26679]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 74, No. 213 / Thursday, November 5, 2009 / 
Rules and Regulations

[[Page 57243]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2009-0014]


Asian Longhorned Beetle; Addition to Quarantined Areas in 
Massachusetts and New York

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 a portion of Worcester County, MA, to the list of quarantined 
areas and updating the description of the quarantined area in the 
Borough of Staten Island in the City of New York, NY. This action will 
restrict the interstate movement of regulated articles from these 
areas. This interim rule is necessary to prevent the artificial spread 
of the Asian longhorned beetle to noninfested areas of the United 
States.

DATES: This interim rule is effective November 5, 2009. We will 
consider all comments that we receive on or before January 4, 2010.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to (http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2009-0014) to submit or view comments 
and to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send two copies of 
your comments to Docket No. APHIS-2009-0014, 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-2009-0014.
    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: Ms. Julie Twardowski, ALB National 
Coordinator, Emergency and Domestic Programs, PPQ, APHIS, 4700 River 
Road Unit 134, Riverdale, MD 20737-1231; (301) 734-5332.

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. Surveys conducted in Massachusetts and New York by inspectors 
of the Animal and Plant Health Inspection Service (APHIS) have revealed 
that infestations of ALB have occurred in Worcester County, MA, in the 
city of Worcester, and the Borough of Staten Island in the City of New 
York, NY. Officials of the U.S. Department of Agriculture and officials 
of State, county, and city agencies in Massachusetts and New York are 
conducting intensive survey and eradication programs in the infested 
area. The States of Massachusetts 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 these States. 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, in which 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 findings described above, we are amending the list 
of quarantined areas in Sec.  301.51-3(c) to add a new

[[Page 57244]]

quarantined area in Worcester County, MA, and to update the previously 
quarantined area in the Borough of Staten Island in the City of New 
York, NY. The new quarantined areas are described in the regulatory 
text at the end of this document.

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 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 adding a new 
quarantined area in Worcester County, MA, and updating the quarantined 
area in the Borough of Staten Island in the City of New York, NY. This 
restricts 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 requires that agencies consider the 
economic impact of their rules on small entities, such as small 
businesses, organizations, and governmental jurisdictions. The 
businesses potentially affected by this rule are nurseries, tree care 
services, firewood retailers, lawn maintenance and landscaping 
companies, general contractors, garden centers, recyclers of waste 
material, and lumber and building material outlets. These 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 not costly; businesses operating under a compliance 
agreement would perform the inspections themselves and for those 
businesses that elect not to enter into a compliance agreement, APHIS 
would provide the services of an 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 the ALB and, as a result, the inspector would not 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).
    Additionally, entities may incur additional costs in disposing of 
regulated articles such as wood debris from tree pruning and removal.
    Within the quarantined area added by this interim rule, in 
Worcester County, MA, there are approximately 247 entities potentially 
affected, including 175 tree service and landscaping companies, 15 
firewood dealers, 8 land clearing companies, 5 nurseries, 6 utility 
companies, 12 municipal departments, 2 railroad companies, 6 yard waste 
drop off centers, 2 commercial recycling centers, 10 construction/
developer companies, 2 golf courses, and 4 property maintenance 
companies.
    Within the new quarantined area of Staten Island, NY, there are 4 
registered nurseries and greenhouses.\1\ Staten Island is the smallest 
borough of the five boroughs that is New York City, NY. However, the 
amount of annual sale receipts that these nurseries receive remains 
undisclosed according to the Agricultural Economic Census of 2007.\2\
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    \1\http://www.agcencus.usda.gov/publications/2007 -- 2007 Census 
of Agriculture- County Data, USDA, NASS, NY Page 276. Table 2. 
Market Value of Agricultural Products Sold Including Direct Sales: 
2007.
    \2\http://www.agcensus.usda.gov/Publications/2007
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    While the size of these entities 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.
    Because the newly regulated area is primarily urban and suburban, 
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 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) is amended as follows:

[[Page 57245]]

0
a. By adding, in alphabetical order, a new entry for Massachusetts to 
read as set forth below.
0
b. Under the entry for New York for New York City, by revising 
paragraph (2) to read as set forth below.


Sec.  301.51-3  Quarantined areas.

* * * * *
    (c) * * *
Massachusetts
    Worcester County. That area in Worcester County, including the 
municipalities of Worcester, Holden, West Boylston, Boylston, and 
Shrewsbury, that is bounded by a line starting at the intersection of 
Route 140 (Grafton Circle) and Route 9 (Belmont Street) in Shrewsbury; 
then north and northwest on Route 140 through Boylston into West 
Boylston until it intersects Muddy Brook (body of water); then east 
along Muddy Brook to the Wachusett Reservoir; then along the shoreline 
of Wachusett Reservoir in a northwest direction until it intersects 
Worcester Street; then southwest on Worcester Street to Goodale Street; 
then southwest and west on Goodale Street, which becomes Malden Street 
at the Holden town line; then west and southwest on Malden Street to 
Main Street (Route 122A) in Holden; then west on Main Street to 
Salisbury Street; then south on Salisbury Street to Fisher Road; then 
southwest on Fisher Road to Stonehouse Hill Road; then south on 
Stonehouse Hill Road to Reservoir Street; then southeast on Reservoir 
Street until it intersects the Worcester City boundary; then along the 
Worcester City boundary until it intersects Route 20 (Hartford 
Turnpike); then east on Route 20 to Lake Street; then north and 
northeast on Lake Street to Route 9 (Belmont Street); then east on 
Route 9 to the point of beginning.
* * * * *
New York
* * * * *
    (2) That area in the Borough of Staten Island in the City of New 
York bounded by a line beginning at a point along the State of New York 
and the State of New Jersey border due north of the intersection of 
Richmond Terrace and Morningstar Road; then south to the intersection 
of Morningstar Road and Richmond Terrace; then southwest along 
Morningstar Road to Forest Avenue; then east along Forest Avenue to 
Willow Road East; then south and then southeast along Willow Road East 
to Victory Boulevard; then west along Victory Boulevard to Arlene 
Street; then south along Arlene Street until it becomes Park Drive 
North; then south on Park Drive North to Rivington Avenue; then east 
along Rivington Avenue to Mulberry Avenue; then south on Mulberry 
Avenue to Travis Avenue; then northwest on Travis Avenue until it 
crosses Main Creek; then along the west shoreline of Main Creek to 
Fresh Kills Creek; then along the north shoreline of Fresh Kills Creek 
to Little Fresh Kills Creek; then along the north shoreline of Little 
Fresh Kills Creek to the Arthur Kill; then west to the border of the 
State of New York and the State of New Jersey in the Arthur Kill; then 
north along the borderline of the State of New York and the State of 
New Jersey; then east along the borderline of the State of New York and 
the State of New Jersey excluding Shooters Island to the point of 
beginning.
* * * * *
    Done in Washington, DC, this 30th day of October 2009.

Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-26679 Filed 11-4-09: 3:06 pm]
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