[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: <a href="http://www.aphis.usda.gov/ppd/ead/
ppqdocs.html">http://www.aphis.usda.gov/ppd/ead/
ppqdocs.html</a>.

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 <SUP>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:
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    (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) <SUP>2 in order to prevent the 
artificial spread of Asian longhorned beetle; and
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    (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 <SUP>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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    (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 <SUP>4 at least 48 hours before the 
services are needed.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 301.51-5.
---------------------------------------------------------------------------

    (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