[Federal Register Volume 70, Number 204 (Monday, October 24, 2005)]
[Rules and Regulations]
[Pages 61349-61351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21169]



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Rules and Regulations
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Federal Register / Vol. 70, No. 204 / Monday, October 24, 2005 / 
Rules and Regulations

[[Page 61349]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 05-066-1]


Asian Longhorned Beetle; Addition and Removal of Quarantined 
Areas in New Jersey

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the Asian longhorned beetle regulations by 
adding a portion of Middlesex and Union Counties, NJ, to the list of 
quarantined areas and restricting the interstate movement of regulated 
articles from those areas. This action is necessary to prevent the 
artificial spread of the Asian longhorned beetle to noninfested areas 
of the United States. We are also removing the areas within Hudson 
County, NJ, from the list of quarantined areas and removing 
restrictions on the interstate movement of regulated articles from 
those areas. We have determined that the Asian longhorned beetle no 
longer presents a risk of spread from those areas and that the 
quarantine and restrictions are no longer necessary.

DATES: This interim rule is effective October 18, 2005. We will 
consider all comments that we receive on or before December 23, 2005.

ADDRESSES: You may submit comments by either of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the ``Search for Open Regulations'' box, 
select ``Animal and Plant Health Inspection Service'' from the agency 
drop-down menu, then click on ``Submit.'' In the Docket ID column, 
select APHIS-2005-0078 to submit or view public comments and to view 
supporting and related materials available electronically. After the 
close of the comment period, the docket can be viewed using the 
``Advanced Search'' function in Regulations.gov.
    <bullet> Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 05-066-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 05-066-1.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Michael B. Stefan, National 
Coordinator, Pest Detection and Management Programs, PPQ, APHIS, 4700 
River Road Unit 134, Riverdale, MD 20737-1236; (301) 734-7338.

SUPPLEMENTARY INFORMATION:

Background

    The Asian longhorned beetle (ALB, Anoplophora glabripennis), an 
insect native to China, Japan, Korea, and the Isle of Hainan, is a 
destructive pest of hardwood trees. It attacks many healthy hardwood 
trees, including maple, horse chestnut, birch, poplar, willow, and elm. 
In addition, nursery stock, logs, green lumber, firewood, stumps, 
roots, branches, and wood debris of half an inch or more in diameter 
are subject to infestation. The beetle bores into the heartwood of a 
host tree, eventually killing the tree. Immature beetles bore into tree 
trunks and branches, causing heavy sap flow from wounds and sawdust 
accumulation at tree bases. They feed on, and over-winter in, the 
interiors of trees. Adult beetles emerge in the spring and summer 
months from round holes approximately three-eighths of an inch in 
diameter (about the size of a dime) that they bore through branches and 
trunks of trees. After emerging, adult beetles feed for 2 to 3 days and 
then mate. Adult females then lay eggs in oviposition sites that they 
make on the branches of trees. A new generation of ALB is produced each 
year. If this pest moves into the hardwood forests of the United 
States, the nursery, maple syrup, and forest product industries could 
experience severe economic losses. In addition, urban and forest ALB 
infestations will result in environmental damage, aesthetic 
deterioration, and a reduction in public enjoyment of recreational 
spaces.
    The ALB regulations in 7 CFR 301.51-1 through 301.51-9 (referred to 
below as the regulations) restrict the interstate movement of regulated 
articles from quarantined areas to prevent the artificial spread of ALB 
to noninfested areas of the United States. Portions of Illinois, New 
Jersey, and New York are designated as quarantined areas.

Addition to Quarantined Area

    Recent surveys conducted in New Jersey by inspectors of State, 
county, and city agencies and by inspectors of the Animal and Plant 
Health Inspection Service (APHIS) have revealed that an infestation of 
ALB has occurred outside the existing quarantined areas in Middlesex 
and Union Counties, NJ. Officials of the U.S. Department of Agriculture 
and officials of State, county, and city agencies in New Jersey are 
conducting intensive survey and eradication programs in the infested 
area, and the State of New Jersey has quarantined the infested area and 
is restricting the intrastate movement of regulated articles from the 
quarantined area to prevent the further spread of ALB within that 
State. However, Federal regulations are necessary to restrict the 
interstate movement of regulated articles from the quarantined area to 
prevent the spread of ALB to other States and other countries.
    The regulations in Sec.  301.51-3(a) provide that the Administrator 
of APHIS will list as a quarantined area each State, or each portion of 
a State, where ALB has been found by an inspector, where the 
Administrator has reason to believe that ALB is present, or where the 
Administrator considers regulation necessary because of its 
inseparability

[[Page 61350]]

for quarantine purposes from localities where ALB has been found.
    Less than an entire State will be quarantined only if (1) the 
Administrator determines that the State has adopted and is enforcing 
restrictions on the intrastate movement of regulated articles that are 
equivalent to those imposed by the regulations on the interstate 
movement of regulated articles and (2) the designation of less than an 
entire State as a quarantined area will be adequate to prevent the 
artificial spread of ALB.
    In accordance with these criteria and the recent ALB findings 
described above, we are amending the list of quarantined areas in Sec.  
301.51-3(c) to include an additional area in Middlesex and Union 
Counties, NJ. The quarantined area is described in the rule portion of 
this document.

Removal of Quarantined Areas

    The regulations currently list two quarantined areas in Hudson 
County, NJ, one in the city of Jersey City, the other in the city of 
Hoboken. Based on surveys conducted by inspectors of New Jersey State 
and county agencies and by APHIS inspectors, we are removing those 
areas in Hudson County from the list of quarantined areas. The last 
findings of ALB in the regulated areas in Hudson County were in October 
2002. Since then, no evidence of ALB infestation has been found in 
those areas. Based on our experience, we have determined that 
sufficient time has passed without finding additional beetles or other 
evidence of infestation to conclude that ALB constitutes a negligible 
risk to those areas in the Jersey City and Hoboken communities. 
Therefore, we are removing the entry for Hudson County, NJ, from the 
list of quarantined areas in Sec.  301.51-3(c).

Immediate Action

    This rulemaking is necessary on an immediate basis to help prevent 
the artificial spread of ALB to noninfested areas of the United States. 
This rule will also relieve restrictions on certain areas that are no 
longer warranted. Under these circumstances, the Administrator has 
determined that prior notice and opportunity for public comment are 
contrary to the public interest and that there is good cause under 5 
U.S.C. 553 for making this action effective less than 30 days after 
publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review under 
Executive Order 12866.
    We are amending the ALB regulations by adding a portion of 
Middlesex and Union Counties, NJ, to the list of quarantined areas and 
restricting the interstate movement of regulated articles from those 
areas. This action is necessary to prevent the artificial spread of the 
ALB to noninfested areas of the United States. We are also removing the 
areas within Hudson County, NJ, from the list of quarantined areas and 
removing restrictions on the interstate movement of regulated articles 
from those areas. We have determined that the ALB no longer presents a 
risk of spread from those areas and that the quarantine and 
restrictions are no longer necessary.
    The Regulatory Flexibility Act (RFA) requires that agencies 
consider the economic impact of rules on small entities, i.e., small 
businesses, organizations, and governmental jurisdictions. The 
businesses potentially affected by this rule are nurseries, arborists, 
tree removal services, firewood dealers, garden centers, landscapers, 
recyclers of waste material, and lumber and building material outlets.

Middlesex and Union Counties

    Within the quarantined area added by this interim rule, there are 
103 entities potentially affected, including tree care businesses, 
plant nurseries and retailers, and firewood dealers. These businesses 
could be affected by the regulations in two ways. First, if a business 
wishes to move regulated articles interstate from a quarantined area, 
that business must either: (1) Enter into a compliance agreement with 
APHIS for the inspection and certification of regulated articles to be 
moved interstate from the quarantined area; or (2) present its 
regulated articles for inspection by an inspector and obtain a 
certificate or a limited permit, issued by the inspector, for the 
interstate movement of regulated articles. The inspections may be 
inconvenient, but not costly; businesses operating under a compliance 
agreement would perform the inspections themselves and for those 
businesses that elect not to enter into a compliance agreement, APHIS 
would provide the services of an inspector without cost. There is also 
no cost for the compliance agreement, certificate, or limited permit 
for the interstate movement of regulated articles.
    Second, there is a possibility that, upon inspection, a regulated 
article could be determined by the inspector to be potentially infested 
with the ALB and, as a result, the inspector would not issue a 
certificate. In this case, the entity's ability to move regulated 
articles interstate would be restricted. However, the affected entity 
could conceivably obtain a limited permit under the conditions of Sec.  
301.51-5(b).

Hudson County

    In the area within Hudson County, NJ, deregulated by this interim 
rule, which is about 3.7 square miles in size and includes Jersey City 
and Hoboken, there are 31 entities that will be affected by this 
interim rule. These entities are mainly tree and yard care companies; 
there are also a few local government agencies that are responsible for 
tree care. These entities will no longer be subject to the restrictions 
in the regulations. While the size of these 31 entities is unknown, it 
is reasonable to assume that most are small entities, based on SBA size 
standards. Any benefit for these entities is likely to be minimal, 
given that the costs associated with the restrictions being relieved 
were themselves minimal.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This interim rule contains no information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

[[Page 61351]]

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.


0
Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.
    Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also 
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 
U.S.C. 1421 note).


0
2. In Sec.  301.51-3, paragraph (c), under the heading New Jersey, the 
entry for Hudson County is removed and the entry for Middlesex and 
Union Counties is revised to read as follows:


Sec.  301.51-3  Quarantined areas.

* * * * *
    (c) * * *

New Jersey

    Middlesex and Union Counties. That portion of the counties bounded 
by a line drawn as follows: Beginning at the intersection of St. 
Georges Avenue and Wood Avenue; then east on Wood Avenue to Curtis 
Street; then north on Curtis Street to East Baltimore Avenue; then east 
on East Baltimore Avenue to Dill Avenue; then north on Dill Avenue to 
Grant Street; then southeast on Grant Street to Alberta Avenue; then 
northeast on Alberta Avenue to County Road 616 (Park Avenue); then 
southeast on County Road 616 (Park Avenue) to U.S. Route 1; then north 
on U.S. Route 1 to Allen Street; then southeast on Allen Street to the 
east side of the New Jersey Turnpike right-of-way; then south along the 
east side of the New Jersey Turnpike right-of-way to Marshes Creek; 
then southeast along Marshes Creek to the Rahway River; then west along 
the south side of the Rahway River to Cross Creek; then south along 
Cross Creek through the wetlands to Peter J. Sica Industrial Drive; 
then east and south on Peter J. Sica Industrial Drive to Roosevelt 
Avenue (State Route 602); then west on Roosevelt Avenue to Port Reading 
Avenue (State Route 604); then west southwest on Port Reading Avenue to 
the Conrail railroad; then north and west along the Conrail railroad 
right-of-way to the NJ Transit railroad right-of-way; then north and 
northwest along the NJ Transit railroad right-of-way to the south 
branch of the Rahway River; then west along the south branch of the 
Rahway River to St. Georges Avenue; then north on St. Georges Avenue to 
the point of beginning.
* * * * *

    Done in Washington, DC, this 18th day of October 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-21169 Filed 10-21-05; 8:45 am]
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