Asian Longhorned Beetle; Quarantine Regulations

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: 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'', 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 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:

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\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.

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(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

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\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.

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(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 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.

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\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.

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(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 4 at least 48 hours before the

services are needed.

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

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(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