10412 Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations

complete coverage of this export

industry and provide additional highquality up-to-date information required

in making export projections. These

projections are used by private industry

as well as the government in making

economic decisions concerning the

orderly flow of U.S. agricultural

commodities in the domestic and export

markets. On the other hand, the

relatively small volume of exports of

confectionary sunflowerseeds and

sunflowerseeds for crushing does not

justify the burden on the exporters

reporting their export sales and related

information.

Lists of Subjects in 7 CFR Part 20

Agricultural commodities, Exports,

Reporting.

Final Rule

Accordingly, 7 CFR part 20 is

amended as follows:

1. The authority citation for part 20

continues to read as follows:

Authority: 7 U.S.C. 5712.

2. Appendix 1 to 7 CFR part 20 is

amended by adding the following entry

after the entry for ‘‘Linseed oil,

including raw, boilded’’ under the

indicated column headings:

APPENDIX 1.—COMMODITIES SUBJECT TO REPORTS, UNITS OF MEASURE TO BE USED IN REPORTING, AND BEGINNING

AND ENDING DATES OF MARKETING YEARS

Commodity to be reported

Unit of measure

to be used in

reporting

Beginning of

marketing year

End of

marketing

year

* * * * * * *

Sunflowerseed Oil-including: crude (including degummed), once refined, sunflowerseed salad

oil (including refined and further processed by bleaching, deodorizing or winterizing), hydrogenated.

......do ............... Oct. 1 ............... Sept. 30.

* * * * * * *

Signed at Washington, D.C. February 24,

1997.

August Schumacher, Jr.

Administrator, Foreign Agricultural Service.

[FR Doc. 97–5095 Filed 3–6–97; 8:45 am]

BILLING CODE 3410–10–M

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.

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
Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations 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

§§ 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 § 301.51–

2 that are equivalent to the interstate

movement restrictions imposed by the

regulations in §§ 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

§ 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 § 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 §§ 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,

§ 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
10414 Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations

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 § 301.51–5(a) or

§ 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 § 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
Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations 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 onehalf 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
10416 Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations

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’’, §§ 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

§ 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

§ 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.
Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations 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 § 301.51–3(c)

of this subpart or otherwise designated

as a quarantined area in accordance

with § 301.51–3(b) of this subpart.

Regulated article. Any article listed in

§ 301.51–2(a) of this subpart or

otherwise designated as a regulated

article in accordance with § 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.

§ 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.

§ 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.

§ 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

§§ 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
10418 Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations

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.

2Section 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.

3Compliance 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. 4See footnote 1 to § 301.51–5.

measures, destroyed, or otherwise

disposed of.

§ 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:

(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

(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 § 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.

§ 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.

(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.

§ 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.

(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.

§ 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.
Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations 10419

§ 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

Agricultural Marketing Service

7 CFR Part 925

[Docket No. FV96–925–1 FIR]

Grapes Grown in a Designated Area of

Southeastern California; Assessment

Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting as

a final rule, without change, the

provisions of an interim final rule

establishing an assessment rate for the

California Desert Grape Administrative

Committee (Committee) under

Marketing Order No. 925 for the 1997

and subsequent fiscal years. The

Committee is responsible for local

administration of the marketing order

which regulates the handling of table

grapes grown in a designated area of

southeastern California. Authorization

to assess grape handlers enables the

Committee to incur expenses that are

reasonable and necessary to administer

the program.

EFFECTIVE DATE: January 1, 1997.

FOR FURTHER INFORMATION CONTACT:

Tershirra T. Yeager, Program Assistant,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456,

telephone (202) 720–5127, FAX (202)

720–5698 or Rose Aguayo, Marketing

Specialist, California Marketing Field

Office, Fruit and Vegetable Division,

AMS, USDA, 2202 Monterey Street,

suite 102B, Fresno, California 93721,

telephone (209) 487–5901, FAX (209)

487–5906. Small businesses may request

information on compliance with this

regulation by contacting: Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room

2525-S, Washington, DC 20090–6456,

telephone (202) 720–2491, FAX (202)

720–5698.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

and Order No. 925 (7 CFR part 925)

regulating the handling of table grapes

grown in a designated area of

southeastern California, hereinafter

referred to as the ‘‘order.’’ The

marketing agreement and order are

effective under the Agricultural

Marketing Agreement Act of 1937, as

amended (7 U.S.C. 601–674), hereinafter

referred to as the ‘‘Act.’’

The Department of Agriculture

(Department) is issuing this rule in

conformance with Executive Order

12866.

This rule has been reviewed under

Executive Order 12988, Civil Justice

Reform. Under the order now in effect,

California table grape handlers are

subject to assessments. Funds to

administer the order are derived from

such assessments. It is intended that the

assessment rate as issued herein will be

applicable to all assessable grapes

beginning January 1, 1997, and

continuing until amended, suspended,

or terminated. This rule will not

preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule.

The Act provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

section 608c(15)(A) of the Act, any

handler subject to an order may file

with the Secretary a petition stating that

the order, any provision of the order, or

any obligation imposed in connection

with the order is not in accordance with

law and request a modification of the

order or to be exempted therefrom. Such

handler is afforded the opportunity for

a hearing on the petition. After the

hearing the Secretary would rule on the

petition. The Act provides that the

district court of the United States in any

district in which the handler is an

inhabitant, or has his or her principal

place of business, has jurisdiction to

review the Secretary’s ruling on the

petition, provided an action is filed not

later than 20 days after the date of the

entry of the ruling.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Agricultural Marketing Service (AMS)

has considered the economic impact of

this rule on small entities.

The purpose of the RFA is to fit

regulatory actions to the scale of

business subject to such actions in order

that small businesses will not be unduly

or disproportionately burdened.

Marketing orders issued pursuant to the

Act, and the rules issued thereunder, are

unique in that they are brought about

through group action of essentially

small entities acting on their own

behalf. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 80 producers

of table grapes in the production area

and approximately 20 handlers subject

to regulation under the marketing order.

Small agricultural producers have been

defined by the Small Business

Administration (13 CFR 121.601) as

those having annual receipts less than

$500,000, and small agricultural service

firms are defined as those whose annual

receipts are less than $5,000,000. The

majority of table grape producers and

handlers are not classified as small

entities.

The table grape marketing order

provides authority for the Committee,

with the approval of the Department, to

formulate an annual budget of expenses

and collect assessments from handlers

to administer the program. The

members of the Committee are

producers and handlers of California

desert grapes. They are familiar with the

Committee’s needs and with the costs

for goods and services in their local area

and are thus in a position to formulate

an appropriate budget and assessment

rate. The assessment rate is formulated

and discussed in a public meeting.

Thus, all directly affected persons have

an opportunity to participate and

provide input.

The Committee met on December 3,

1996, and unanimously recommended

1997 expenditures of $156,865 and an

assessment rate of $0.01 per lug of table

grapes. In comparison, last year’s

budgeted expenditures were $114,827.

The Committee recommended not to

have an assessment rate for the 1996

fiscal year because there was adequate

money in the reserve to cover estimated

expenses. Major expenditures

recommended by the Committee for the

1997 year include $100,000 for research,

$25,000 for compliance purposes, and

$8,675 for the manager’s salary.

Budgeted expenses for these items in

1996 were $60,000 for research, $25,000

for the sheriff’s patrol and $7,887 for the

manager’s salary.

The assessment rate recommended by

the Committee was derived by dividing

anticipated expenses by expected

shipments of California table grapes.

Table grape shipments for the year are

estimated at 8,000,000 lugs which

should provide $80,000 in assessment

income. Income derived from handler

assessments, along with interest income

and funds from the Committee’s

authorized reserve, will be adequate to