[Federal Register Volume 72, Number 160 (Monday, August 20, 2007)]
[Rules and Regulations]
[Pages 46373-46375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16297]

Rules and Regulations
                                                Federal Register

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Federal Register / Vol. 72, No. 160 / Monday, August 20, 2007 / Rules 
and Regulations

[[Page 46373]]


Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2007-0104]

Asian Longhorned Beetle; Additions to Quarantined Areas in New 

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 York 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 is effective August 20, 2007. We will consider 
all comments that we receive on or before October 19, 2007.

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-2007-0104 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-
2007-0104, 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-2007-0104.
    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.

Coordinator, Emergency and Domestic Programs, PPQ, APHIS, 4700 River 
Road Unit 134, Riverdale, MD 20737-1231; (301) 734-4387.



    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 
    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 York by inspectors of the 
Animal and Plant Health Inspection Service (APHIS) have revealed that 
infestations of ALB have occurred on Prall's Island and in an area of 
Staten Island in Richmond County. These areas are outside the existing 
quarantined areas, and are in close proximity to the Middlesex/Union 
County quarantined area in New Jersey and could potentially reinfest 
that area. Officials of the U.S. Department of Agriculture and 
officials of State, county, and city agencies in New York are 
conducting intensive survey and eradication programs in the infested 
area, and the State of New York 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, 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 

[[Page 46374]]

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 an additional area in 
Richmond County, NY. 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 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 
    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 York 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, 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.  
    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, there are 
approximately 15 entities potentially affected, including 2 nursery 
dealers, 1 nursery grower, 6 landscaping companies, 3 general 
contractors, 2 transfer stations, and a compost facility. 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, 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 
    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 

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.

Accordingly, we are amending 7 CFR part 301 as follows:


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).

2. In Sec.  301.51-3, paragraph (c), under the entry for New York, the 
entry for New York City is amended by designating the text as paragraph 
(1) and adding a new paragraph (2) to read as follows:

Sec.  301.51-3  Quarantined areas.

* * * * *
    (c) * * *
New York
    New York City. * * *
    (2) That area in the Borough of Richmond in the City of New York 
bounded by a line drawn as follows: Beginning at a point on the New 
York/New Jersey State line due north of the intersection of Richmond 
Terrace and South Avenue; then south from that point to the 
intersection of South Avenue and Richmond Terrace; then south on South 
Avenue to Fahy Avenue; then east on Fahy Avenue to Arlene Street; then 
south on Arlene Street until

[[Page 46375]]

it becomes Park Drive North; then south on Park Drive North to 
Rivington Avenue; then east on Rivington Avenue to Mulberry Avenue; 
then south on Mulberry Avenue to Travis Avenue; then northwest on 
Travis Avenue to the point where it crosses Main Creek; then south 
along the west shoreline of Main Creek to Fresh Kills Creek; then west 
along the north shoreline of Fresh Kills Creek to Little Fresh Kills 
Creek; then west along the north shoreline of Little Fresh Kills Creek 
to the Arthur Kill; then west to the New York/New Jersey State line in 
the Arthur Kill; then north along the New York/New Jersey State line to 
the point of beginning.
* * * * *

    Done in Washington, DC, this 14th day of August 2007.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E7-16297 Filed 8-17-07; 8:45 am]