[Federal Register Volume 59, Number 13 (Thursday, January 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1230]
[[Page Unknown]]
[Federal Register: January 20, 1994]
VOL. 59, NO. 13
Thursday, January 20, 1994
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 91-074-3]
RIN 0579-AA47
Importation of Logs, Lumber, and Other Unmanufactured Wood
Articles
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We propose to amend our foreign quarantine regulations by
adding a new ``Subpart--Logs, Lumber, and Other Unmanufactured Wood
Articles'' to establish prohibitions and restrictions concerning
imported unmanufactured wood articles. The new subpart would affect
persons importing logs, lumber, bark chips, wood chips, certain wood
packing materials, and other unmanufactured wood articles. The new
subpart would not affect imports of manufactured wood products such as
furniture. We also propose to change several existing foreign
quarantine regulations that currently restrict importation of certain
wood articles, to state that such articles would instead be regulated
under the proposed new subpart. These changes appear necessary because
there is increased interest in importing large volumes of
unmanufactured wood articles into the United States, and prohibitions
and restrictions appear necessary to eliminate any significant plant
pest risk associated with importing these articles.
DATES: Consideration will be given only to comments received on or
before April 20, 1994. We also will consider comments made at public
hearings to be held on February 10, 1994, in Portland, Oregon, and on
February 23, 1994, in Washington, DC.
ADDRESSES: A public hearing in Portland, Oregon, will be held at
Cheatham Hall, World Forestry Center, 4033 S.W. Canyon Road, Portland,
Oregon 97221. A Washington, DC, public hearing will be held at the
Jefferson Auditorium, United States Department of Agriculture, South
Building, 14th Street and Independence Avenue SW., Washington, DC.
To submit comments by mail, please send an original and three
copies of your comments to Chief, Regulatory Analysis and Development,
PPD, APHIS, USDA, room 804, Federal Building, 6505 Belcrest Road,
Hyattsville, MD 20782. Please state that your comments refer to Docket
No. 91-074-3. 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 encouraged to call
ahead (202-690-2817) to facilitate entry into the comment reading room.
You may also submit comments to an electronic bulletin board APHIS
has established for this purpose, and review online comments posted to
this bulletin board by other commenters. Printed copies of comments
posted to this bulletin board will also be available in our comment
reading room. To access the bulletin board via modem at 1200 through
14,400 baud, dial (703) 243-9696. Set your modem parity, data bits, and
stop bits to N,8,1. You can also access the bulletin board via INTERNET
with the command TELNET tmn.com. To log in to the bulletin board, use
the userid ``woodrule'' and the password ``aphis23'' (type both in
lower case, not capital letters).
FOR FURTHER INFORMATION CONTACT: Mr. Richard L. Orr, Senior
Entomologist, Planning and Risk Analysis Systems, PPD, APHIS, USDA,
room 810, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782,
301-436-8939.
SUPPLEMENTARY INFORMATION:
Public Hearings
The public hearings will be held on February 10, 1994, in Portland,
Oregon, and on February 23, 1994, in Washington, DC. The Portland,
Oregon, public hearing will begin at 10 a.m. at Cheatham Hall, World
Forestry Center, 4033 S.W. Canyon Road, Portland, Oregon 97221. The
Washington, DC, public hearing will begin at 10 a.m. at the Jefferson
Auditorium, United States Department of Agriculture, South Building,
14th Street and Independence Avenue SW., Washington, DC.
Persons wishing to speak at a public hearing are requested to
contact Mr. Richard Kelly no later than ten days prior to the hearing
date, at (301) 436-5455, or by writing to him at APHIS, PPD, RAD, room
804, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782 (FAX
number 301-436-8934).
A representative of the Animal and Plant Health Inspection Service
(APHIS) will preside at each public hearing. Any interested person may
appear and be heard in person, by attorney, or by other representative.
Each public hearing will begin each day at 10 a.m. local time and
is scheduled to end at 5 p.m. local time. However, the hearing may be
terminated at any time after it begins if all persons desiring to speak
have been heard. We request that all persons who wish to speak at the
public hearing contact us as requested above, and provide their name,
organization, the hearing they plan to attend, and the approximate
length of their presentation. This will allow us to determine whether
we need to schedule additional time for a hearing. Speakers who
register in advance will be informed prior to the hearing of the time
they are scheduled to speak. Attendees who do not register in advance
will be allowed to speak after all scheduled speakers have been heard.
We ask that anyone who reads a statement provide two copies to the
presiding officer at the hearing.
If the number of speakers at a hearing warrants it, the presiding
officer may limit the time for each presentation so that everyone
wishing to speak has the opportunity.
The purpose of the hearings is to give interested persons an
opportunity for oral presentations of data, views, and arguments.
Questions about the content of the proposed rule may be part of the
commenters' oral presentations. However, neither the presiding officer
nor any other representative of APHIS will respond to comments at a
hearing, except to clarify or explain provisions of the proposed rule.
Background
The Animal and Plant Health Inspection Service (APHIS) is proposing
to establish comprehensive regulations to eliminate any significant
pest risks presented by the importation1 of logs, lumber, and
other unmanufactured wood articles.
---------------------------------------------------------------------------
\1\Throughout this document, the words ``import'' and
``importation'' are used to mean moving or bringing articles into
the territorial limits of the United States.
---------------------------------------------------------------------------
Although serious plant pests have been introduced into the United
States in association with wood imports in the past, little wood has
been imported recently in forms, or from places, that pose significant
risks of introducing plant pests that could harm United States forests
or agriculture. A changing national and world economy has recently
increased the incentives to import wood that may present a significant
increase in plant pest risk. An example of this change is the interest
of sawmills and other wood processors in utilizing foreign sources of
wood to offset expected harvest reductions in the United States, or to
provide raw materials for their facilities at prices competitive with
or better than domestic prices.
Trees produced in many foreign locations are attacked by a wide
variety of exotic plant pests and pathogens which do not occur in this
country. Logs and other unmanufactured wood articles imported into the
United States could pose a significant hazard of introducing plant
pests and pathogens detrimental to agriculture and to natural,
cultivated, and urban forest resources. Plant pests and pathogens
introduced into the United States in the past, such as the gypsy moth
and the agents of Dutch elm disease and chestnut blight, have caused
billions of dollars of damage to United States forest and plant
resources.
Until recently the quantity and variety of unmanufactured wood
imported were very limited, and consequently no regulations were
developed specifically to address such imports. APHIS has been dealing
with such imports only by detaining shipments at ports of first arrival
for inspection, and ordering further action if warranted pursuant to
the Federal Plant Pest Act and regulations issued under the Federal
Plant Pest Act (7 CFR part 330). In addition, APHIS has prohibited the
entry into the United States of logs from the Soviet Far East and
Siberia, because a detailed pest risk assessment found that dangerous
plant pests could occur in such logs and may be introduced with them.
APHIS has also published interim regulations allowing importation of
certain logs from Chile and New Zealand, discussed below.
However, when large volumes of wood imports are involved,
inspection at the port of first arrival without other conditions
relating to the wood imports may not be practical or adequate for
preventing the introduction of plant pests associated with imported
wood in all cases. Interest in importing logs and other unmanufactured
wood articles from various countries is increasing rapidly toward a
point where inspection and control activities solely at the port of
first arrival will not be feasible. There is currently an intense
commercial interest in developing a long-term industry in the Pacific
Northwest for importing and processing logs from foreign countries.
There is also potential for increased log and other unmanufactured wood
article imports into other areas of the United States.
Representatives of domestic timber industries, State governments,
academia, and environmental organizations have requested that we
propose to add regulations to 7 CFR part 319 to establish an organized
system for importing unmanufactured wood articles under conditions
adequate to prevent the introduction into the United States of plant
pests and pathogens. These groups have suggested that the current
practice of allowing unmanufactured wood articles to enter the United
States based solely on inspection and other actions at the port of
first arrival (or prohibiting imports in the case of logs from Siberia
and nearby areas) is not sufficient for dealing with large-volume
imports of unmanufactured wood articles from many sources.
We believe that establishing a more comprehensive procedure for
importing logs and other unmanufactured wood articles would result in a
greater level of pest protection, and would also allow importers to
plan their transactions in an orderly way, to meet known regulatory
requirements.
In developing this proposal, APHIS worked with Federal and State
regulatory and forestry officials from many States, and representatives
from Agriculture Canada, the Foreign Agricultural Service and the
Forest Service of the United States Department of Agriculture, and key
industries with an immediate interest or involvement in present or
potential importations. We also solicited public comment on approaches
to regulating wood imports in an Advance Notice of Proposed Rulemaking
published in the Federal Register on September 22, 1992 (57 FR 43628-
43631, Docket No. 91-074-2). We received 66 comments on the Advance
Notice prior to the closing date of November 23, 1992. Almost all the
comments favored establishing regulations on the importation of wood
products, and many provided useful technical information which was
considered in developing this proposed rule.
As part of the development of this proposed rule, the Forest
Service of the United States Department of Agriculture completed pest
risk assessments for the importation of certain types of wood from
Siberia2, New Zealand3, and Chile4. APHIS employed a
great deal of the information generated by these assessments in
developing this proposed rule. These studies helped us expand and adapt
methodologies for addressing plant pest risks associated with importing
unmanufactured wood articles on a worldwide basis, by providing
valuable case studies in how to identify, evaluate, and control plant
pest risks associated with particular unmanufactured wood articles from
particular areas. We wish to stress that these proposed regulations do
not simply extrapolate the requirements found appropriate for Siberia,
New Zealand, and Chile to apply them on a world-wide basis. That
approach would have reduced validity due to the immense variety of
forest types, plant pests, and risk situations in other countries.
However, experience from the Siberian, New Zealand and Chile
assessments did give us insight into better ways to identify plant pest
risks and develop controls for other situations world-wide.
---------------------------------------------------------------------------
\2\``Pest Risk Assessment of the Importation of Larch from
Siberia and the Soviet Far East,'' USDA, Forest Service,
Miscellaneous Publication No. 1495, September, 1991; ``An Efficacy
Review of Control Measures for Potential Pests of Imported Soviet
Timber,'' USDA, APHIS, Miscellaneous Publication No. 1496, September
1991.
\3\``Pest Risk Assessment of the Importation of Pinus radiata
and Douglas-fir Logs from New Zealand,'' USDA, Forest Service,
Miscellaneous Publication No. 1508, October 1992.
\4\``Pest Risk Assessment of the Importation of Pinus radiata,
Nothofagus dombeyi and Laurelia philippiana Logs from Chile,'' USDA,
Forest Service, Miscellaneous Publication, May 1993.
---------------------------------------------------------------------------
Interim Rules Affecting Certain Logs From Chile and New Zealand
An interim rule published in the Federal Register on February 16,
1993, and effective upon signature on January 19, 1993 (58 FR 8524-
8533, Docket No. 91-074-4), established importation requirements for
Monterey pine and Douglas-fir logs from New Zealand. Plant pest risks
associated with importing these articles, and import requirements that
would reduce these risks to insignificant levels, were identified early
in the course of developing comprehensive wood import regulations.
Therefore, to reduce these plant pest risks as soon as possible, we
established regulatory requirements in 7 CFR 319.40-1 through 319.40-8
for certain logs from New Zealand.
A second interim rule published in the Federal Register on November
9, 1993, (58 FR 59348-59353, Docket No. 91-074-5), and effective
November 2, 1993, established importation requirements for Monterey
pine logs from Chile. This interim rule applied the same requirements
to Monterey pine logs from Chile that the first interim rule applied to
Monterey pine and Douglas-fir logs from New Zealand.
This proposed rule would replace the regulations established by the
interim rules with comprehensive wood import regulations affecting
importation of unmanufactured wood articles from all places, including
Chile and New Zealand. The provisions contained in this proposed rule
for Monterey pine logs from Chile, and for Monterey pine and Douglas-
fir logs from New Zealand are essentially the same as the requirements
imposed by the interim rule, except that the interim rule used slightly
different definitions due to its limited scope.
Policy of the Proposed Regulations
These proposed regulations attempt to establish a comprehensive,
user-friendly framework for the importation of unmanufactured wood
articles into the United States. A primary goal of the regulations is
to protect the nation's forests and other plant resources against the
introduction of plant pests. The scientific literature contains a very
large inventory of known plant pests associated with trees and wood
articles in various parts of the world. Ample scientific evidence
indicates that there is an equal or larger number of unknown plant
pests associated with wood in foreign countries that could be harmful
if introduced into the United States. The history of inadvertent
introductions of plant pests supports this concern about currently
unknown plant pests. For example, two plant pests that have caused
immense damage in the United States, the Dutch elm disease fungus and
the dogwood anthracnose fungus, were not identified as significant
plant pests prior to their introduction into the United States, and
their place of origin and exact method of introduction into the United
States are still disputed.
Therefore, our proposed regulations use a dual approach that
addresses both known and unknown plant pests. The regulations would
establish sufficient controls to deter the introduction of known plant
pests. The regulations also would establish procedures for identifying
and assessing risks associated with currently unknown plant pests, and
maintain a threshold level of deterrence for all imported
unmanufactured wood articles that will prevent the introduction of
currently unknown plant pests. Any lessening of the threshold
requirements for importation of unmanufactured wood articles must be
based on adequate knowledge about the plant pest risks associated with
importing the regulated articles involved.
Approach of the Proposed Regulations
We have attempted to accomplish the following objectives in this
proposed rule:
Identify the types of articles proposed to be regulated;
Propose requirements that can reduce plant pest risks
associated with the importation of unmanufactured wood articles to an
insignificant level (e.g., permits issued by APHIS; documentation by
the importer of the nature and quantity of the articles; harvesting,
storage, and shipping practices; chemical and physical treatments;
restriction of destinations or uses for the imported articles);
Propose universal importation requirements for certain
types of regulated articles. Using this alternative, an importer would
know that a given regulated article may be imported and entered from
anywhere if the proposed requirements are met;
Propose specific importation and entry requirements for
particular article-origin combinations. These proposed requirements
would allow some articles from some locations to be imported under less
restrictive conditions than the proposed universal importation
requirements;
Propose a procedure for making case-by-case evaluations of
whether unmanufactured wood articles could be imported without
significant risk under conditions less stringent than the proposed
universal importation requirements. Under this procedure, APHIS would
first identify plant pest risks associated with importation of a
regulated article. We would then apply risk assessment standards
contained in the regulations to analyze the entry potential,
colonization potential, spread potential, and damage potential of the
plant pests. APHIS would then evaluate the effectiveness of available
mitigation measures to prevent introduction of the plant pests. If safe
importation of the regulated article is feasible with no plant pest
mitigation measures, APHIS would issue a permit authorizing the
regulated article to be imported. However, if the plant pest risk
assessment shows that the regulated article may be safely imported if
it is subjected to requirements not currently in the regulations, APHIS
would propose regulations containing requirements for its importation.
After the regulations are adopted as a final rule, the regulated
article could be imported in accordance with them.
These objectives should establish a useful framework to eliminate
significant plant pest risks associated with importing unmanufactured
wood articles. This proposed rule addresses these objectives through a
variety of regulatory requirements contained in the proposed 7 CFR
319.40-1 through 319.40-11, ``Subpart--Logs, Lumber, and Other
Unmanufactured Wood Articles'' (referred to below as the regulations).
Permits, Certificates, and Other Documents Employed by the Proposed
Regulations
Importing wood articles under the proposed regulations would
involve a certain amount of paperwork. We would require several forms
and other documents to record and transmit information that would be
necessary for effective implementation of our wood importation
regulations. This section explains how these documents would be used
and why they appear to be necessary.
This proposed rule attempts to limit paperwork to documents that
actively support the pest exclusion goals of the regulations, and to
require a document only if the information contained in it is not
readily available through other means. To reduce the paperwork burden,
the proposed regulations would require certificates only for the
importation of a few specified articles. The proposed regulations would
also provide for the use of multi-product, multi-shipment permits, and
informal documents written by the importer. Another important feature
of the proposed regulations is that some types of articles may be
imported under a general permit (an authorization contained in the text
of the proposed regulations) instead of an individual specific permit
issued by APHIS to an importer.
1. Permits (Required by Proposed Sec. 319.40-2(a))
A permit is written authorization issued or promulgated by APHIS
that allows an importer to bring specified articles into the United
States. The specific permit specifies, or refers to regulations that
specify, the type of articles allowed import and the requirements the
articles must meet to be eligible for importation. A general permit is
a permit that is contained in the text of the regulations.
We refer to the document that authorizes an importer to bring
articles into the United States in accordance with our regulations as a
``permit,'' because ``permit'' is the term used in the Federal Plant
Pest Act and the Plant Quarantine Act, two statutes that constitute the
statutory basis for this proposal. Our permit serves the same function
as documents that other national governments call authorizations,
affidavits, licenses, or various other names; all refer to a document
that a government gives to importers to notify them that they may
import certain articles.
There are both legal and practical reasons for using permits in the
proposed regulations. The primary legal reason is that the Federal
Plant Pest Act, in 7 U.S.C. 150bb, requires that, except for plant
pests from Canada, a person may move a plant pest into the United
States only ``under general or specific permit from the Secretary [of
Agriculture],'' and the Plant Quarantine Act, in 7 U.S.C. 154, requires
that certain articles may not be imported ``unless and until a permit
shall have been issued therefor by the Secretary of Agriculture,
provided however that the Secretary of Agriculture may waive this
permit requirement for nursery stock imported or offered for entry from
Canada.'' Articles requiring a permit include nursery stock and other
plant products whose unrestricted importation may result in the entry
into the United States of injurious plant diseases or insect pests (7
U.S.C. 159). We have determined that unmanufactured wood is such an
article, due to the wide range of pests associated with unmanufactured
wood and discussed elsewhere in this document. Therefore, a permit
would be required to import wood articles that will be regulated if
this proposed rule is adopted.
There are also practical reasons for using permits in connection
with importing wood. These are:
A permit shows that risks associated with a shipment were
evaluated, and the necessary mitigation measures were prescribed, prior
to import. The proposed regulations are designed to ensure that
articles with unacceptably high pest risks do not even get to U.S.
ports of arrival. Regulations referenced by specific permits inform
importers of our entry requirements before they ship articles, rather
than at the port of arrival. Permits give importers pre-arrival notice
of our requirements. By requiring permits, APHIS also discourages the
arrival of unexpected shipments of articles that present unknown pest
risks.
A permit expedites processing at the port of arrival. The
application for a permit provides crucial information about shipments,
which is provided to our inspectors at ports. Without a permit,
inspectors would have to obtain this information from a variety of
sources--shipping documents, physical inspection and inventory, even
phone calls--which would delay inspection and release of arriving
shipments.
A permit preserves data needed for future pest risk
assessments and program operations. Without permit application data, it
would be difficult for APHIS to collect the data it needs to continue
to operate and improve its regulations for importing unmanufactured
wood articles. Permit information allows us to track the type and
quantity of wood articles arriving at U.S. ports, and the conditions
and treatments employed for their importation. We need to accumulate
this data to continually evaluate whether our regulatory restrictions
are effectively preventing the introduction of pests associated with
wood, and whether any of our regulatory restrictions are unnecessarily
severe.
APHIS permits tend to be broad rather than narrow. Most of
our import permits are issued to allow importation of multiple articles
through multiple shipments, over extended time periods. Under such a
permit, it is not necessary to obtain a new permit each time articles
are imported by the same permittee. Once our wood importation program
is well established, we intend to use permits for multiple articles
through multiple shipments wherever possible. However, many of the
permits issued during the first year of implementing the program may be
limited to cover one or a few shipments, or a period of only a few
months, to allow us to confirm that the program is operating
effectively before we issue permits that are effective for long periods
of time.
Obtaining an APHIS permit is usually not a long and
frustrating process. Whatever delays an importer encounters in
obtaining authorization to import new articles into the United States
are usually the result of a pest risk assessment or rulemaking that
often must precede new import requirements, not the result of actually
issuing the permit. Our Plant Protection and Quarantine Port Operations
staff issues thousands of permits each year. Most of these permits are
for articles that are already being imported, by some other importer.
Some permits are for articles specifically allowed to be imported by
our regulations, but that no one happens to be importing currently. We
can usually issue a permit in these cases within about 10 days after
the request is received. For new articles whose risks have not been
evaluated, we must conduct risk assessments before we allow such
articles to be imported. If any risk assessment identifies plant pest
risks, we would need to conduct rulemaking to establish requirements to
control these risks. In such cases a permit may not be issued until
several to many months after the request is made. However, this delay
does not result from the requirement for a permit; it reflects risk
assessment and rulemaking activities we would perform even if our
regulations did not employ permits.
In some cases importers will not need a specific permit.
In some cases a general authorization to import is provided in the text
of the regulations covering certain classes of articles, so that
importers of these articles need not obtain a specific written permit
to import these articles. (Under 7 U.S.C. 150bb, articles must be
imported ``under general or specific permit''; this is an example of a
``general'' permit.)\5\ See our discussion below of proposed
Sec. 319.40-3, ``General permits; articles that may be imported without
a specific permit or importer document.'' In that section, we would
exempt certain articles from the requirement for a specific permit,
because we already know a great deal about the plant pest risks
associated with these articles. Our inspectors at the ports already
have substantial experience dealing with such articles. Therefore, most
of the reasons discussed above for using specific permits do not apply
to these articles, and we do not intend to require specific permits for
them.
---------------------------------------------------------------------------
\5\The general permits discussed in this document should not be
confused with the ``general permits'' utilized in 7 CFR part 355,
which are written permits issued to particular persons authorizing
them to engage in business as importers, exporters, or reexporters
of any terrestrial plants protected under the Endangered Species Act
of 1973, as amended (16 U.S.C. 1531 et seq.) and listed in 50 CFR
17.12 or 23.23.
---------------------------------------------------------------------------
We will probably establish ``general permits'' in the regulations
for more classes of articles over time, as we gain enough experience
with the importation of additional classes of articles. Over time, we
would expect to see fewer and fewer specific permit requirements for
importation of wood articles.
2. Application for a Permit (Required by Proposed Sec. 319.40-4(a))
We propose to require that in order to obtain a specific permit a
person must complete a written application. This application would
require the submission of information we would need to consider in
deciding whether the regulations allowed a person to import the
articles requested in the application. We would also use this
information to determine what conditions, restrictions, and treatments
in the regulations would apply to a request.
The completed application would provide information about the place
of harvest of the tree from which the regulated article was derived;
the type and quantity of articles the applicant wishes to import; any
processing or treatments the applicant plans to apply to the articles
either before or after they are imported; the port of arrival and final
destination in the United States for the articles; the identity and
address of the applicant, and other matters.
You could use the permit application to your advantage by providing
as much information as possible in your answers. For example, if you
wished to import logs and you answered the question about their place
of origin with the name of a country, we would have no way of knowing
where in that country the logs originated. Some localities in that
country may present lower pest risks than other localities. If we knew
the logs came from a low pest risk locality, we might be able to impose
less stringent requirements. But if we only knew the country of origin,
we would have to impose requirements that protect against pest risk
from all localities in that country.
Similarly, it could help an applicant to be forthcoming about
processing and treatments, the final destination and use of the
articles, and other information we request. To the extent the
regulations allow, we would use all this information to impose the
minimum requirements necessary to protect against introduction of plant
pests.
The permit application is discussed in more detail below in
Sec. 319.40-4, ``Application for a permit to import regulated articles;
issuance and withdrawal of permits.''
3. Certificates (Required for a few Articles by Proposed Sec. 319.40-
5(b))
In many of its plant import regulations, APHIS requires that the
articles be accompanied by certificates of inspection issued by foreign
governments. These certificates indicate that an article has been
inspected, and may make additional certifications concerning the
origin, treatment, or handling of the article.
Certificates issued by foreign governments would only be required
in these proposed regulations in a few cases, discussed below. Instead,
we propose in most cases to require articles to be accompanied by
written declarations signed by the importer of the article (``importer
documents''), or, at the option of the importer, a certificate issued
by a government.
Certificates would be required in certain cases where there is no
adequate substitute for involvement of a foreign government's plant
protection or forestry officials in the inspection or treatment of
articles. There are two situations in the proposed rule where
certificates are required: the importation of logs from both Chile and
New Zealand (see proposed Sec. 319.40-5(b)). In both these situations,
industry and government in the exporting country worked together to
develop programs where government officials monitor the harvest,
treatment, and movement of unmanufactured wood articles, and issue
certificates documenting that these activities followed our
regulations. The request presented to APHIS by these groups for
importation of logs specified use of certificates, and we agree that
certificates are a useful tool in these cases. The certificate would
officially record a determination by officials authorized by the
government of Chile or New Zealand that the logs meet the requirement
of proposed Sec. 319.40-5(b)(1)(i)(A), which requires the logs must be
from live healthy trees which are apparently free of plant pests, plant
pest damage, and decay organisms. It would be difficult to enforce this
requirement without employing certification.
4. Importer Documents (Required by Proposed Sec. 319.40-2(b))
Instead of requiring certificates for most importations, we propose
to require a document written by the importer to provide certain
information we will need at the port of arrival. We believe that an
importer could compose a document far more easily that he or she could
obtain a certificate from a foreign government, and that this
requirement would minimize the paperwork burden on importers. We
believe importer documents would provide APHIS with information we need
regarding regulated articles to be imported. An importer document (or
at the importer's option, a certificate containing the information
required by an importer document) must accompany every shipment of
regulated articles imported into the United States, with a few
exceptions discussed below under proposed Sec. 319.40-3, ``General
permits; articles that may be imported without a specific permit;
articles that may be imported without either a specific permit or an
importer document.''
We are not concerned about the form the importer document takes as
long as it is an accurate written declaration by the importer. All that
we would require for an importer document is that it be signed by the
importer, and that it contain the required information. The information
that would be required is described in detail in proposed Sec. 319.40-
2(b). The importer document would be required to include the following
information: (1) The genus and species of the tree from which the
regulated article was derived; (2) the country and locality, if known,
where the tree from which the regulated article was derived was
harvested; (3) the quantity of the regulated article to be imported;
(4) the use for which the regulated article is imported; and (5) any
treatment or handling of the regulated article performed prior to
arrival at the port of first arrival.
5. Compliance Agreements, Notice of Arrival, Withdrawal and Appeal
Letters
Compliance agreements would be developed on a case-by-case basis
between APHIS and U.S. processing facilities that would subject
regulated articles to processing necessary to eliminate pest risk
associated with the articles. Proposed Sec. 319.40-8 would allow
persons who operate facilities in which imported regulated articles are
processed to enter into compliance agreements to facilitate
importation. We expect to develop only a few compliance agreements each
year. These agreements would provide a clear standard for both APHIS
and the persons operating these processing facilities as to what
procedures and safeguards must be employed during processing to ensure
the elimination of plant pests.
Proposed Sec. 319.40-9(b) would require that persons to whom
permits have been issued or their agents give APHIS notice of the
impending arrival of a shipment in the United States at least 7 days
prior to the expected date of arrival. We do not believe this notice
would be particularly burdensome to persons who have been issued
permits or their agents, and we believe it is needed to allow our
inspectors to prepare for a shipment.
Proposed Secs. 319.40-4(d) and 319.40-8(b) would allow APHIS to
withdraw permits and cancel compliance agreements with a written
notice, and allow the holders of withdrawn documents to appeal the
withdrawal or cancellation in writing to the Administrator of APHIS.
Based upon past experience with other similar programs, we believe that
withdrawal of permits and cancellation of compliance agreements will
occur infrequently. Therefore, the paperwork burden of appealing
withdrawal of permits and cancellation of compliance agreements should
not impose a significant paperwork burden. Further, the written appeal
would only be required to include the facts and reasons upon which a
person relies to show that the permit was wrongfully withdrawn or the
compliance agreement was wrongfully canceled.
Section-by-Section Description of Proposed Rule
The proposed rule consists of the following sections:
Section 319.40-1 Definitions
This section would establish definitions of terms used throughout
the regulations. The definitions of Administrator, APHIS, Certificate,
Compliance agreement, Departmental permit, Import, Inspector, Permit,
Plant pest, Port of first arrival, Treatment Manual, and United States
are consistent with our use of these terms in other foreign quarantine
regulations in part 319, and describe the framework in which we propose
to conduct operations to enforce our regulations.
A key definition, Regulated article, identifies the articles to
which the requirements of the proposed rule would apply. Our intent is
to make any imported wood article a regulated article if it has not
been sufficiently processed and manufactured to remove, and prevent
reinfestation by, any pests that might be associated with the tree from
which the article was derived.
The definition of regulated article would include a great variety
of materials derived from trees. Regulated articles would include logs;
lumber; solid wood packing materials; any whole tree; any cut tree or
any portion of a tree, not solely consisting of leaves, flowers,
fruits, buds or seeds; bark; cork; laths; hog fuel (small wood
fragments used as fuel to fire a furnace, kiln, or boiler); sawdust;
painted raw wood products; excelsior (wood wool); wood chips; wood
mulch; wood shavings; pickets; stakes; shingles; humus; compost; and
litter. Regulated articles are the types of wood and wood products that
often have pests associated with them. Sometimes the pests are from the
tree from which the article was derived, and sometimes pests that
attack wood can become associated with regulated articles later in the
production and shipping process.
The definition of regulated article would also include any article
designated as a regulated article in accordance with Sec. 319.40-2(f).
This provision would allow an inspector to designate articles other
than the articles identified in the definition of the term regulated
article in proposed Sec. 319.40-1 as regulated articles. An inspector
may designate any article as a regulated article by giving written
notice of the designation to the owner or person in possession or
control of the article. Inspectors may designate an article as a
regulated article after determining that: (1) The article was imported
in the same container or hold as a regulated article; (2) other
articles of the same type imported from the same country have been
found to carry plant pests; or (3) the article appears to be
contaminated with regulated articles or soil. This provision would give
APHIS inspectors authority to regulate articles that are not defined in
proposed Sec. 319.40-1 as regulated articles in situations where the
articles appear to present a risk of introducing plant pests. The
Administrator will implement rulemaking to add articles temporarily
designated as regulated articles to the definition of regulated article
in proposed Sec. 319.40-1 if importation of the article appears to
present a recurring risk of introducing plant pests.
Manufactured wood articles such as furniture made of kiln dried
lumber and wooden artwork or ornaments (without bark) would not be
regulated articles. No article is entirely free from the risk of
introducing plant pests, and there have been occasional reports of
plant pests found in or associated with imported furniture and similar
articles; for example, wood borers emerging from imported furniture
months after importation. However, addressing all risks would require
practically unlimited resources, and the proposed regulations must
focus available resources on those articles which pose the greatest
plant pest risk. Therefore, the definition of regulated articles
includes only articles that are unprocessed or have received only
primary processing. Primary processing is defined to include cleaning
(removal of soil, limbs, and foliage), debarking, rough sawing (bucking
or squaring), rough shaping, spraying with fungicide or insecticide
sprays, and fumigation.
Articles that have received more than primary processing present
less of a risk because their manufacturing processes destroy many plant
pests associated with the articles, and, therefore, they would not be
included in the proposed definition of the term ``regulated article.''
The provision discussed above to allow inspectors to designate
additional articles as regulated articles would address plant pest
risks associated with occasional situations where manufactured articles
present a significant plant pest risk. In addition, APHIS will continue
to evaluate plant pest risks associated with importation of articles
not included in the proposed definition of regulated articles, and may
propose further regulations in the future to address these risks.
Solid wood packing materials (dunnage, crating, pallets, etc.)
which are unprocessed or subjected only to primary processing would be
regulated. Solid wood packing materials are commonly used in
association with the movement of a very large volume of goods imported
into the United States. Currently, the only requirement applied to
imported solid wood packing materials is that they are subject to
inspection at the port of first arrival, followed by mandatory
treatment, destruction, or re-export if certain plant pests are found.
Under the proposed regulations, certain solid wood packing materials
would have to meet additional requirements to be eligible for entry.
We also propose to define the term ``Sealed (sealable) container''
as follows. ``A completely enclosed container designed for the storage
or transportation of cargo and constructed of metal or fiberglass, or
other rigid material, providing an enclosure which prevents the
entrance or exit of plant pests and is accessed through doors that can
be closed and secured with a lock or seal. Sealed (sealable) containers
are distinct and separable from the means of conveyance carrying
them.''
This definition of sealed container is important because the
proposed regulations require that various regulated articles be
enclosed in such containers at various times, to prevent the movement
of plant pests to or from the regulated articles in the containers.
The word ``lot'' is defined as all the regulated articles on a
single means of conveyance that are derived from the same species of
tree and were subjected to the same treatments prior to importation,
and that are consigned to the same person. This definition is necessary
to prevent manipulation of articles because some of the proposed
requirements apply to each ``lot'' of regulated articles. For example,
proposed Sec. 319.40-5(c)(3) imposes certain requirements on tropical
hardwood logs imported in lots of 15 or fewer logs; the definition of
``lot'' would prevent an importer from importing a shipment of 60 such
logs on a single means of conveyance as four ``separate'' lots.
The proposed regulations require that to be eligible for
importation, certain regulated articles must be free from rot, because
rot is sometimes caused by plant pests, and rot also renders wood more
susceptible to some other plant pests. We propose to define ``free from
rot'' to mean ``[n]o more than two percent by weight of the regulated
articles in a lot show visual evidence of fructification of fungi or
growth of other microorganisms that cause decay and the breakdown of
cell walls in the regulated articles.'' We believe this standard is
consistent with common industrial standards for rot in wood chips and
other regulated articles, and is also an effective standard for
minimizing plant pests associated with rot. Our inspectors can readily
enforce this standard for wood chips by examining samples taken from
wood chip shipments, and calculating the percentage of rot by comparing
the quantity of chips afflicted by rot in a sample to the total
quantity of chips in the sample. The presence of rot in other types of
regulated articles is also detectable through inspection.
Other proposed definitions establish certain subgroups of regulated
articles so that requirements can be targeted to the subgroups based on
the plant pest risks presented by each and the commercial practices and
treatments available for each subgroup. The following subgroups of
regulated articles would be separately defined.
Bark chips. Defined as bark fragments broken or shredded from log
or branch surfaces. Bark chips would be regulated because many plant
pests are associated with bark on trees, and some plant pests may
remain with the bark even after it is chipped from the underlying wood.
Humus, compost, and litter. Defined as partially or wholly decayed
plant matter. Humus, compost, and litter is often derived from forest
products and byproducts. This material would be regulated because, if
untreated, it is a good medium for plant pests, and it is often used as
a soil amendment, where it could easily spread plant pests into the
environment.
Log. Defined as the bole of a tree; trimmed timber that has not
been further sawn. Logs are regulated because they provide ecological
niches for a wide variety of plant pests. Logs and lumber (defined
below) are the two most commercially important regulated articles, and
constitute the major volume of wood imports.
Loose wood packing material. Defined as excelsior (wood wool),
sawdust, and wood shavings, produced as a result of sawing or shaving
wood into small, slender, and curved pieces. While the processes that
produce these materials generally remove or destroy plant pests
associated with these articles, they are regulated because they may
become contaminated with plant pests after manufacture if the loose
wood packing materials become wet or come in contact with other
materials bearing plant pests.
Lumber. Defined as logs that have been sawn into boards, planks, or
structural members such as beams. Lumber would be regulated because it
can harbor deep-wood plant pests.
Solid wood packing material. Defined as wood packing materials
other than loose wood packing materials, including but not limited to
dunnage, crating, pallets, packing blocks, drums, cases, and skids,
that are used or for use with cargo to prevent damage. Solid wood
packing materials are used for packing and blocking in connection with
both regulated and unregulated articles. Solid wood packing materials
would be regulated because they present a plant pest risk in themselves
(especially if they are not free from bark or treated), and because
when used in connection with the movement of regulated articles, they
may either spread plant pests to the regulated articles or be
contaminated with plant pests from the regulated articles.
Tropical hardwoods. Defined as hardwood timber species which grow
only in tropical climates. We particularly seek comments on how to
improve this definition, since it is virtually impossible to list all
hardwood species that grow only in tropical climates.
Wood chips. Defined as wood fragments broken or shredded from any
wood. Wood chips are usually generated from raw wood, but occasionally
from manufactured articles made of wood. All wood chips would be
regulated because some plant pests survive the process that produces
wood chips or may contaminate the wood chips at a later time.
Wood mulch. Defined as bark chips, wood chips, wood shavings, or
sawdust intended for use as a protective or decorative ground cover.
Like humus, compost, and litter, the use of wood mulch would tend to
spread any plant pests that are associated with it.
Section 319.40-2 General Prohibitions and Restrictions; Relation to
Other Regulations
This section would establish general requirements for importation
that apply to regulated articles. These requirements would include a
permit issued by APHIS, and a document signed by the importer that
contains information about the genus of tree from which the regulated
article was derived, quantity, and the treatment and handling of the
regulated articles prior to arrival at the port of first arrival.
The proposed permit requirement would ensure that for each request
to allow importation of a regulated article, APHIS has determined the
regulated article is eligible for importation in accordance with the
regulations and has given permission for importation of the regulated
article into the United States.
The requirement for a document signed by the importer (an
``importer document'') is designed to provide APHIS with a declaration
of certain information we need to determine the eligibility of a
shipment for importation. We would require that the importer provide us
with the following information in this document: The genus and species
of the tree from which the regulated article was derived; the country
and, if known, the locality where the tree from which the regulated
article was derived was harvested; the quantity of the regulated
article to be imported; any treatment or handling of the regulated
article required by the proposed regulations which was performed prior
to arrival at the port of first arrival in the United States; and the
use for which the regulated article is imported.
This section would also state that articles that meet the
definition of regulated article, but are allowed importation for
propagation or human consumption under other regulations in 7 CFR part
319, will not be regulated under proposed Sec. 319.40, but rather under
the other appropriate regulations in part 319.
Finally, this section would establish a separate procedure for
importing regulated articles by the United States Department of
Agriculture under a Departmental permit for experimental, scientific,
or educational purposes.
Section 319.40-3 General Permits; Articles That May Be Imported
Without a Specific Permit; Articles That May Be Imported Without Either
a Specific Permit or an Importer Document
General Permits. This section would establish a number of general
permits issued by APHIS for the importation of articles listed in this
section. To import these articles, importers would have to comply with
the general permit conditions specified in this section, but they would
not have to obtain a specific permit issued to them by APHIS.
Exemption from Specific Permits. This section would exempt most
regulated articles that originate in Canada and states in Mexico
bordering the United States from the specific permit requirements of
proposed Sec. 319.40-2, and from most of the other proposed
requirements of the regulations. Most regulated articles from Canada
and from Mexican border states do not present a risk of introducing
exotic plant pests if imported into the United States. The climatic
conditions in areas on both sides of these borders are similar, and
there has been much trade across these borders for generations, with
the result that the same plant pests generally exist on both sides of
the borders. Therefore, we propose to allow most regulated articles
from Canada and Mexican border states to be imported without
restriction under the regulations, except that they must be accompanied
by documents verifying their origin (to prevent transshipment of
regulated articles from other places), and would be subject to
inspection and other requirements in proposed Sec. 318.40-9 (discussed
below). To prevent the possibility that regulated articles from Canada
or Mexican border states may have originated in or been moved through
other areas where they may have been exposed to plant pests, regulated
articles imported from Canada or Mexican border states must be
accompanied by a document signed by the importer stating that the
regulated articles are derived from trees harvested in, and never
before moved outside, Canada or states in Mexico adjacent to the United
States border.
However, certain regulated articles from Canada and Mexico present
a risk of spreading citrus diseases, and would not be covered by this
general exemption for regulated articles from Canada and Mexican border
states. Regulated articles not covered by this exemption would include
articles of the subfamilies Aurantioideae, Rutoideae, and Toddalioideae
of the botanical family Rutaceae. Both Canada and Mexico are under
quarantine for citrus diseases in accordance with 7 CFR 319.19, which
prohibits importation into the United States of plants or plant parts,
except fruit or seeds, of these subfamilies from Canada and Mexico. To
address the citrus disease risk, the proposed regulations would allow
regulated articles from these subfamilies to be imported from Canada
and Mexico, but only if they are imported in accordance with the
proposed regulations.
This section would also exempt solid wood packing materials used as
packing for regulated articles from the specific permit requirements
that would otherwise apply to imported solid wood packing materials.
The exemption for solid wood packing materials would provide as
follows:
If the solid wood packing material is being used as
packing for a regulated article, there is a risk that plant pests
associated with the packing material could attack the regulated article
in transit, and there is a risk that plant pests associated with the
regulated article could attack the solid wood packing material.
Therefore, we propose to require that solid wood packing materials used
as packing for regulated articles be treated to destroy plant pests
prior to importation, using a heat, fumigation, or preservative
treatment described below in Sec. 319.40-7. Alternatively, solid wood
packing material which is free of bark and poses less of a risk of
introducing plant pests would be eligible for importation if it meets
all the importation and entry conditions specified in the permit issued
for the regulated article the solid wood packing material is used to
move. (It would generally be possible for solid wood packing materials
to meet the same requirements imposed on the regulated articles moved
with them only when the requirements are a specific treatment, e.g.,
heat, fumigation, or preservative. Regulated articles would often be
subject to requirements packing materials cannot readily meet, e.g., a
maximum time limit between harvest and shipment.)
While treatment of solid wood packing materials is necessary, we do
not believe a separate permit for the solid wood packing material is
needed, since in most cases the regulated article the solid wood
packing materials accompany will have a permit and an importer
document. Therefore, we propose that if the solid wood packing material
was treated prior to importation, that fact could be recorded in a
document signed by the importer and accompanying the shipment.
We do not propose to require that solid wood packing materials must
be treated immediately before they are used to move regulated articles
or within any maximum time preceding their use. Once solid wood packing
materials are treated, the plant pest risk associated with the solid
wood packing materials is reduced to a level similar to manufactured
wood articles that are not regulated. We do not believe there is a
significant enough risk of reinfestation after treatment of solid wood
packing materials to require that they be treated within a fixed time
prior to their use to move regulated articles. Also, in view of the
vast volume of solid wood packing materials used and reused in
shipping, we believe requiring that such materials be treated within a
fixed time prior to their use, or retreated if they were treated
earlier, would impose a substantial economic burden without
significantly reducing plant pest risk.
If the solid wood packing material is being used as
packing for an article that is not a regulated article, there is less
risk that plant pests from the solid wood packing material will attack
the article being moved. Still, it is important to prevent such solid
wood packing materials from introducing plant pests. The plant pests of
particular concern are the type found on or under bark attached to
solid wood packing materials. Such plant pests could spread to wood
articles in the United States after the solid wood packing materials
are unloaded and discarded or reused. Therefore, we propose that solid
wood packing materials used as packing for articles that are not
regulated articles must be either: (1) Totally free from bark, and
apparently free from live plant pests, or (2) treated prior to
importation, using a heat, fumigation, or preservative treatment
described below in Sec. 319.40-7. Again, we do not believe a specific
permit is necessary to enforce this requirement. We propose that solid
wood packing materials be accompanied by a document signed by the
importer and accompanying the solid wood packing material. This
document would affirm that the solid wood packing material either: (1)
Is totally free from bark, and apparently free from live plant pests,
or (2) was treated prior to importation, using a heat, fumigation, or
preservative treatment described below in Sec. 319.40-7.
Solid wood packing materials imported as cargo, i.e., not in actual
use as packing, would not be exempted from the specific permit and
importer document requirements and would have to be imported in
accordance with requirements for lumber in proposed Sec. 319.40-5 or
Sec. 319.40-6, discussed below.
Exemption From Both Specific Permit and Importer Document Requirements
This section would also exempt dry loose wood packing materials
(excelsior, sawdust, and wood shavings) from the specific permit
requirement and the importer document requirement, whether they are
imported in use as packing material or not in use (i.e., as cargo). The
processes by which loose wood packing materials are produced generally
remove any significant pest risk that may be associated with them, and
we propose to admit them only if they are dry (to control rot), and are
inspected at the port of first arrival.
Bamboo timber that is free of leaves and seeds and that has been
sawn or split lengthwise and dried presents only a minimal plant pest
risk and therefore would not require either a specific permit or an
importer document. Such bamboo timber would be subject only to
inspection and other requirements in proposed Sec. 319.40-9.
Section 319.40-4 Application for a Permit to Import Regulated
Articles; Issuance and Withdrawal of Permits
This proposed section describes the requirements for applying for a
permit, how APHIS would evaluate the application and issue a permit,
and how APHIS could withdraw a permit if the person to whom the permit
is issued does not comply with importation requirements.
A person who wishes to obtain a permit must submit a written
application that provides detailed information about the regulated
articles proposed for importation. APHIS would evaluate this
information to determine whether to issue a permit. The permit
application would have to include the following information:
1. The specific type of regulated article to be imported, including
the genus and species name of the tree from which the regulated article
was derived;
2. Country, and locality if known, where the tree from which the
regulated article was derived was harvested;
3. The quantity of the regulated article to be imported;
4. A description of any processing, treatment or handling of the
regulated article performed prior to importation, including the
location where any processing or treatment was or will be performed and
the names of any chemicals employed in treatments;
5. A description of any processing, treatment, or handling of the
regulated article intended to be performed following importation,
including the location where any processing or treatment will be
performed and the names of any chemicals employed in treatments;
6. Whether the regulated article will or will not be imported in a
sealable container or in a hold;
7. The means of conveyance to be used to import the regulated
article into the United States;
8. The intended port of first arrival in the United States of the
regulated article, and any subsequent ports in the United States at
which regulated articles may be unloaded;
9. The destination and general intended use of the regulated
article. (General intended use means, for example, if the article is
logs, will they be sawn into lumber, used for veneer, sold whole, or
used otherwise; for wood chips, will they be pulped, burned, or
composted; or similar information about the article's intended use that
may affect pest dissemination risk);
10. The name and address of the applicant and, if the applicant's
address is not within the United States, the name and address of an
agent in the United States whom the applicant names for acceptance of
service of process; and,
11. A statement certifying the applicant as the importer of record.
This information is needed to determine whether the regulated
article covered by the application is eligible for importation and to
coordinate APHIS activities for enforcing the regulations at ports of
first arrival and elsewhere (e.g., at processing facilities operating
under compliance agreements; see Sec. 319.40-8 below).
Proposed Sec. 319.40-4(b) states that when APHIS reviews a permit
application, it would first determine whether the regulated article
covered by the application is eligible for importation under either
Sec. 319.40-5, ``Importation requirements for specified articles from
specified countries,'' or Sec. 319.40-6, ``Universal importation
options,'' discussed below. If the regulated article is eligible for
importation under either of these sections, APHIS would issue a permit
for the importation of the regulated article identified in the
application. However, APHIS would not issue a permit to any applicant
who has had a permit withdrawn due to noncompliance with the
regulations within the past 12 months, unless the permit has been
reinstated upon appeal.
If the regulated article is not eligible for importation under
either proposed Sec. 319.40-5 or proposed Sec. 319.40-6, APHIS would
review the application by applying the plant pest risk assessment
standards contained in proposed Sec. 319.40-11. This process is
designed to deal with (1) regulated articles whose importation is not
specifically provided for in the regulations, and (2) regulated
articles that are named in the regulations, but that are proposed for
importation without treatments or safeguards, or under a combination of
treatments and safeguards not provided for in the regulations. Under
this process, APHIS would assess the plant pest risk presented by the
proposed importation and determine whether, and under what conditions,
importation of the regulated article should be allowed.
If this pest risk assessment reveals that the nature of the
regulated article presents a negligible risk of introducing plant pests
into the United States, and, therefore, no importation conditions are
needed, APHIS would issue a permit for importation of the regulated
article. The permit may only be issued in unique and unforeseen
circumstances when the importation is not expected to reoccur. We do
not expect that many regulated articles would be found to qualify on
this basis, because most regulated articles present greater than a
negligible plant pest risk that justifies treatment, handling, or other
importation conditions. However, we do expect that occasionally
regulated articles may be found to present negligible plant pest risk.
Under this provision we would allow the importation of such regulated
articles with a minimum of regulatory burden, i.e., with only a permit
to document that APHIS has determined that the regulated article may be
imported subject to inspection and other requirements in proposed
Sec. 319.40-9.
Some applicants may wish to import regulated articles under
conditions or treatments that are not currently prescribed by the
regulations. If the pest risk assessment reveals that importation of
the regulated articles under the conditions proposed in the
application, or under other conditions acceptable to the applicant,
would not result in a significant risk of introducing plant pests into
the United States, APHIS would implement rulemaking containing the
applicable conditions for importation. If the regulations are amended
to include the new conditions, APHIS would issue a permit for
importation of the regulated articles.
We propose that no permit will be issued to an applicant who has
had a permit withdrawn during the 12 months prior to receipt of the
permit application by APHIS, unless the withdrawn permit has been
reinstated upon appeal. This provision appears necessary to ensure that
applicants who have had a permit withdrawn under the procedures in
proposed Sec. 319.40-4(d) are not able to immediately reapply for a new
permit. We believe this provision is necessary to discourage violation
of the regulations, and to support the effectiveness of the permit
system as a tool to help exclude plant pests from the United States.
Proposed Sec. 319.40-4(c) states that even if a permit has been
issued for the importation of a regulated article, the regulated
article may be imported only if all applicable requirements of the
subpart are met and only if an inspector at the port of arrival
determines that no measures pursuant to the Federal Plant Pest Act or
the Plant Quarantine Act are necessary with respect to the regulated
article. We included this proposed provision to ensure that those who
are issued a permit understand that the issuance of a permit does not
guarantee that the regulated articles that are the subject of the
permit can be imported.
Proposed Sec. 319.40-4 would also authorize us to withdraw a permit
if an inspector or the Administrator determines that the person to whom
a permit is issued has violated any provision of subpart 319.40. This
section also allows a permit holder to appeal the denial or withdrawal
of a permit, and to obtain a hearing on the denial or withdrawal.
Section 319.40-5 Importation and Entry Requirements for Specified
Articles
This section proposes requirements for the importation of specific
regulated articles.
Bamboo timber. Bamboo imported for propagation would not be
regulated under proposed Sec. 319.40, but would continue to be
regulated in accordance with Sec. 319.34, our regulations that
currently apply to bamboo nursery stock.
Bamboo timber consisting of whole culms or canes would be allowed
to be imported into Guam or the Northern Mariana Islands subject to
inspection and other requirements in Sec. 319.40-9. Any bamboo timber
consisting of whole culms or canes would be allowed into Guam and the
Northern Mariana Islands because the plant pests of concern associated
with bamboo culms or canes are already present in these islands and not
in other parts of the United States.
Bamboo timber consisting of whole culms or canes that are
completely dry as evidenced by lack of moisture in node tissue may be
imported into any part of the United States subject to inspection and
other requirements in proposed Sec. 319.40-9. Absence of moisture in
the node tissue indicates that the bamboo is not capable of
propagation, which would be the major avenue for spread of plant pests
from bamboo timber.
Monterey pine logs and lumber from Chile and New Zealand; Douglas-
fir logs and lumber from New Zealand. The importation requirements
established for logs and lumber from these species are designed to
control the plant pest risks identified in ``Pest Risk Assessment of
the Importation of Pinus radiata and Douglas-fir Logs from New
Zealand'' (the New Zealand assessment; see footnote 3) and the ``Pest
Risk Assessment of the Importation of Pinus radiata Logs from Chile''
(the Chile assessment; see footnote 4).
The New Zealand assessment screened over 300 plant pests that have
been recorded on Monterey pine and Douglas-fir in New Zealand, and
included detailed studies of the plant pest risks associated with four
insects and two pathogenic fungi that were identified as representative
of the groups of organisms posing the greatest potential plant pest
problem. The insects, which are all deep wood borers that would not be
removed from logs by surface treatments, are Kalotermes brouni (New
Zealand brownwood termite), Platypus apicalis (Platypus gracilis)
(native pinhole borer), Prionoplus reticularis (huhu beetle), and Sirex
noctilio (a woodwasp). The pathogenic fungi are Leptographium truncatum
and Amylostereum areolatum.
The Chile assessment screened insect pests from eight orders
associated with Monterey pine in Chile (Coleoptera, Hemiptera,
Homoptera, Hymenoptera, Isoptera, Lepidoptera, Orthoptera,
Thysanoptera). Ten insects with the greatest risk potential were chosen
as subjects of individual pest risk assessments: introduced pine bark
beetles (Hylurgus ligniperda, Hylastes ater, and Orthotomicus erosus);
bark weevils of the genus Rhyephenes; a pine bark anobiid (Ernobius
mollis); a siricid (Urocerus gigas gigas); wood-boring beetles
(Buprestis novemmaculata, Colobura alboplagiata, Callideriphus laetus);
termites (Cryptotermes brevis, Neotermes chilensis, Porotermes
quadricollis); the spiny pine caterpillar (Ormiscodes cinnamonea); a
bagworm (Thanatopsyche chilensis); white grubs (Hylamorpha spp.,
Brachysternus sp., Sericoides sp.); and the European pine shoot moth
(Rhyacionia buoliana).
Four types of diseases of radiata pine in Chile were evaluated in
detail for plant pest risk: Diplodia shoot blight (Sphaeropsis
sapinea), needle diseases (Dothistroma pini, among others), stain fungi
(Ophiostoma spp.), and root/stem rots (Armillaria spp., Phellinus
spp.).
The plant pest risk assessment process was used to evaluate these
plant pests of potentially high risk. Of the insect pests of Monterey
pine in Chile, only the bark beetle Hylurgus ligniperda was found to
have a high plant pest risk potential. Among the pathogens, the stain
fungi (Ophiostoma spp.) present a moderate to high risk. Other plant
pests found to present significant but lesser risks were bark weevils
of the genus Rhyephenes, the siricid Urocerus gigas gigas, the termites
Neotermes chilensis and Porotermes quadricollis, and the wood-boring
beetles Buprestis novemmaculata and Colobura alboplagiata.
We are proposing that Monterey pine from Chile, and Monterey pine
and Douglas-fir from New Zealand, may be imported only under conditions
that will prevent the introduction of the plant pests discussed above.
The importation requirements and treatments needed to control the risk
of introducing these plant pests into the United States would also
serve to prevent the introduction of other plant pests that were
identified in the Chile and New Zealand assessments. For example, we
propose to require methyl bromide fumigation of the logs prior to
importation to help reduce the risk associated with the four insects
named above. The required methyl bromide fumigation would also destroy
other plant pests identified in the Chile and New Zealand assessments
(such as insects of the families Cerambycidae, Curculionidae,
Termopsidae, and Scolytidae), eliminating the need to develop separate
requirements to address the risks presented by the other plant pests.
Similarly, we propose to require that both logs and lumber imported
from Chile and New Zealand be sent to facilities in the United States
that will heat treat products generated from the logs and lumber. This
requirement primarily addresses the pathogenic fungi Leptographium
truncatum, Ophiostoma, and Amylostereum areolatum, but the heat
treatment will also destroy any other plant pests associated with the
logs and lumber, in the unlikely event that such plant pests survived
the methyl bromide fumigation or became associated with the regulated
article following methyl bromide fumigation.
We propose the following requirements for importation of Monterey
pine logs from Chile and New Zealand, and for Douglas-fir logs from New
Zealand. Some of the handling and treatment requirements apply prior to
importation, some at the port of first arrival, and some after movement
of the logs to a facility for processing in the United States.
The requirements that would apply to these logs prior to
importation include a requirement that the logs be from live healthy
trees which are apparently free of plant pests, plant pest damage, and
decay organisms. This requirement would eliminate logs that present a
high risk of introducing plant pests into the United States. Another
pre-importation requirement is that the logs be debarked and fumigated
with methyl bromide within 45 days of the date the trees are felled, in
accordance with Sec. 319.40-7 of the proposed regulations. Debarking
would remove plant pests associated with the bark and would enable
inspection to reveal holes made by wood-boring plant pests. Methyl
bromide fumigation would be required because it effectively controls
plant pests that may be associated with the surface and subsurface of
these logs and that might otherwise spread from the logs during
movement to a processing facility in the United States. We would
require this fumigation be performed within 45 days following the date
the trees are felled because logs are more vulnerable to plant pest
attack the longer they are stored untreated, and delaying fumigation
for a longer period could result in plant pests multiplying in the logs
to an extent that might not be effectively controlled by fumigation.
The fumigation must be conducted in the same sealable container or hold
in which the logs and solid wood packing materials are exported to the
United States.
We propose that the logs must be kept segregated from other
regulated articles during transit and after arrival in the United
States (unless the other regulated articles were also fumigated, or
were heat treated with moisture reduction), to control possible
movement of plant pests to or from other regulated articles. After
importation, the logs would be moved in as direct a route as reasonably
possible from the port of first arrival to a sawmill or other
processing facility that operates under a compliance agreement in
accordance with proposed Sec. 319.40-8. At the facility, any lumber
sawn from the logs would have to be heat treated, or heat treated with
moisture reduction. (We define what is meant by ``heat treatment'' and
``heat treatment with moisture reduction'' below in Sec. 319.40-7,
where we discuss treatments. We are using the term ``heat treatment
with moisture reduction'' rather than the term ``kiln dried'' to avoid
confusion caused by the wide variety of meanings assigned to the term
``kiln dried'' in the wood industry. However, we believe almost all
articles that are considered ``kiln dried'' by common industry
understanding would meet or exceed the standard we propose for ``heat
treated with moisture reduction'').
If the facility generates products other than lumber from the logs,
these products would also have to be heat treated, either with or
without moisture reduction. Moisture reduction is not feasible for some
non-lumber wood products such as veneer. We have determined that the
proposed heat treatment (without moisture reduction) proposed in
Sec. 319.40-7(c) would provide sufficient protection against pests that
might be associated with these non-lumber products.
Logs which are not cut or processed at the facility into lumber or
other products would have to be heat treated, either with or without
moisture reduction.
The facility must heat treat the logs, lumber, or other products
within certain time limits, to minimize risks of plant pests spreading
from the articles. For wood imported as logs, including sawdust, wood
chips, or other products generated from the logs, this time limit is 60
days from the date the logs arrive at the port of first arrival. For
imported raw lumber, the limit is 30 days. The time limit is longer for
logs because it takes facilities longer to schedule and perform cutting
operations to convert logs into lumber or other products, than it takes
to heat treat articles that arrive at the facility as already cut
lumber.
Sawdust, wood chips and waste generated from the logs at the
processing facility would have to be burned, heat treated in accordance
with proposed Sec. 319.40-7(c) or proposed Sec. 319.40-7(d), or
otherwise processed in a manner that will destroy plant pests
associated with the sawdust, wood chips, or waste.
These time limits would reduce opportunities for the logs and
lumber to be processed other than in accordance with the regulations,
and would reduce the time during which our inspectors monitor
compliance to a manageable span of time for each shipment. The time
limits also reduce the time during which any plant pests that may be
associated with the regulated articles could escape to surrounding
areas or contaminate other articles.
Composting or use as mulch of the sawdust, wood chips, and waste
generated by sawing or processing the logs would be prohibited unless
the composting or use as mulch was preceded by fumigation in accordance
with proposed Sec. 319.40-7(f)(3) or heat treatment in accordance with
proposed Sec. 319.40-7(c) or Sec. 319.40-7(d). This would reduce the
risk of the spread of plant pests. We also propose to allow wood chips,
sawdust, and waste generated from processing the logs to be moved for
processing to another facility operating under a compliance agreement
for processing, if they are moved in enclosed trucks to control plant
pest risk in transit.
The importation requirements we propose for raw lumber of Monterey
pine species from Chile or New Zealand and Douglas-fir species from New
Zealand are similar to the requirements for logs of the same species in
proposed Sec. 319.40-5(b)(1). The primary difference is that we do not
propose to require fumigation with methyl bromide for the lumber6.
Fumigation would not be required because in general, lumber is more
easily inspected and therefore represents less plant pest risk than
logs with regard to deep wood boring insects. For lumber cut in Chile
or New Zealand, the waste material stays in Chile or New Zealand,
reducing plant pest risk. Also, the process of cutting the lumber
frequently exposes any deep wood boring insects that are present, and
affected lumber would not be shipped. The remaining requirements,
including heat treatment with moisture reduction at the destination in
the United States, would provide protection against the introduction of
plant pests.
---------------------------------------------------------------------------
\6\However, raw lumber would have to be fumigated if it is moved
in the same hold or container as logs. See proposed Sec. 319.40-
5(b)(1)(i)(D).
---------------------------------------------------------------------------
Tropical hardwood logs and lumber. The importation of tropical
hardwoods into the United States tends to involve relatively small
shipments (compared to softwoods) of high-quality, high-value products
such as teak and mahogany. In general, tropical hardwoods present less
plant pest risk for the United States because the great majority of
plant pests associated with them cannot successfully become established
in most areas of the United States due to climatic conditions.
We anticipate, based on previous importations of tropical
hardwoods, that most importers will wish to import debarked tropical
hardwoods. We propose to allow debarked tropical hardwood logs and
lumber to be imported subject to inspection and other requirements of
proposed Sec. 319.40-9. Inspection would allow us to confirm the nature
of the shipment and check for pests on the logs.
Some importers may wish to import tropical hardwood logs that have
not been debarked. We propose to require methyl bromide fumigation as a
requirement for these logs, to control plant pests that may be
associated with the bark. However, we also propose to allow small lots
of logs with bark (15 logs or fewer) to be imported subject to
inspection and other requirements in proposed Sec. 319.40-9, rather
than fumigation. Although effective inspection of logs with bark is
time-consuming for our inspectors, some importers wish to import
tropical hardwoods with bark, but are concerned that fumigation will
damage their market value. We believe we can accommodate this desire by
allowing inspection instead of fumigation for small lots (15 logs or
fewer). Our operational experience inspecting hardwood log shipments at
ports leads us to believe we can readily inspect lots of 15 or fewer
hardwood logs. However, because Hawaii, Puerto Rico, and the Virgin
Islands of the United States have climates that are conducive to the
establishment of tropical hardwood pests, we would not allow this
provision to be used to import tropical hardwoods into these places.
Temperate hardwoods. Temperate hardwood logs and lumber from any
place could be imported in accordance with the universal importation
options described in Sec. 319.40-6. Otherwise, we propose to establish
lesser requirements for the importation of temperate hardwood logs and
lumber (with or without bark) from all places except countries in Asia
that are wholly or in part east of 60 deg. East Longitude and north of
the Tropic of Cancer. We would prohibit importing temperate hardwoods
from this area (unless they are imported in accordance with the
universal importation options in Sec. 319.40-6) because the ``Pest Risk
Assessment of the Importation of Larch from Siberia and the Soviet Far
East'' (the Siberian assessment; see Footnote 2) identified a large
variety of plant pests associated with larch and hardwoods in this
area. Many of these plant pests have the potential to infest extensive
areas of one or more forest types in the United States, where they
could cause massive defoliation and other damage. At this time, we do
not know of treatments or requirements, short of the universal
importation options, that have been demonstrated to effectively destroy
the plant pests of concern identified in countries in Asia that are
wholly or in part east of 60 deg. East Longitude and north of the
Tropic of Cancer.
We propose that temperate hardwood logs (with or without bark) and
lumber from all other places may be imported if fumigated in accordance
with proposed Sec. 319.40-7(f) prior to arrival in the United States
and if subject to inspection and other requirements in proposed
Sec. 319.40-9. Although we do not have detailed plant pest risk
assessment information of the type collected by the Siberian assessment
for temperate hardwoods from all other areas of the world, both our
operational experience and available plant pest distribution data
suggest that requiring fumigation of such hardwood imports would
effectively destroy plant pests of the type likely to be associated
with temperate hardwood logs and lumber and is a reasonable measure to
guard against possible unknown plant pests that could be associated
with their importation. We have many years of experience inspecting
small volumes of temperate hardwood logs imported each year from
various parts of the world (not including the area covered by the
Siberian assessment). Temperate hardwood articles imported to date tend
to be high quality logs that were selected, harvested and handled with
care, resulting in a low degree of plant pest risk. Our experience
inspecting such shipments has not revealed them to be infested with
plant pests, and consequently we propose to allow importation of
temperate hardwood logs and lumber subject to fumigation and inspection
and other requirements in proposed Sec. 319.40-9. However, if future
plant pest risk assessments or interceptions of plant pests associated
with temperate hardwood shipments indicate a greater plant pest risk
than is currently apparent, we would increase the restrictions on
importation of temperate hardwoods.
Regulated Articles Associated With Exclusively Tropical Pests.
There are some plant pests that would not be of concern unless they are
introduced into areas of the United States with a tropical climate
because they cannot survive outside of tropical areas. Regulated
articles that have been identified by a pest risk assessment as
possibly being infested solely with pests that can successfully become
established only in tropical climates would therefore be subject to the
following conditions:
(1) The regulated article may be imported only to a destination in
the continental United States; and
(2) The regulated article may be prohibited entry into tropical or
subtropical areas of the United States specified in the permit.
This provision would allow us to issue permits for the importation
of regulated articles into nontropical areas of the United States, if
the only pests associated with the articles need tropical conditions to
survive.
Section 319.40-6 Universal Importation Options
This section would establish importation requirements for several
classes of regulated articles. These standards are designed to allow
importation of regulated articles from any source under conditions that
will not present a significant risk of entry of known plant pests and
unknown plant pests that may be associated with them. These standards
may be used for importation of regulated articles not specifically
addressed in Sec. 319.40-5. For example, logs from Siberia could be
imported in accordance with proposed Sec. 319.40-6(a) of this section.
The efficacy of treatments and the standards for performing the
treatments required by proposed Sec. 319.40-6 are discussed below in
proposed Sec. 319.40-7. The requirements use a variety of approaches to
destroy plant pests prior to importation, or to contain and segregate
regulated articles so that plant pests cannot spread from them, until
the regulated articles are processed in the United States in a manner
that would destroy the plant pests. We propose universal importation
options for the following regulated articles: logs; lumber; wood chips
and bark chips; wood mulch, humus, compost, and litter; and cork and
bark.
All regulated articles that would be allowed importation under
proposed Sec. 319.40-6 would require a permit in accordance with
proposed Sec. 319.40-4, and would be subject to inspection and other
requirements of proposed Sec. 319.40-9.
Logs. We propose that logs from any place may be imported if prior
to importation the logs have been debarked in accordance with proposed
Sec. 319.40-7(b) and heat treated in accordance with proposed
Sec. 319.40-7(c). During the entire interval between treatment and
export the logs must be stored and handled in a manner which excludes
any access to the logs by plant pests.
Lumber. We propose that lumber from any place may be imported if
prior to importation the lumber has been heat treated in accordance
with proposed Sec. 319.40-7(c), or heat treated with moisture reduction
in accordance with proposed Sec. 319.40-7(d), and if the lumber is
imported under the following conditions:
During shipment to the United States, no other regulated
article (other than solid wood packing materials) is permitted on the
means of conveyance with the lumber, unless the lumber and the other
regulated articles are in separate holds or separate sealed containers,
or, if the lumber and other regulated articles are mixed in a hold or
sealed container, all the regulated articles have been heat treated in
accordance with proposed Sec. 319.40-7(c), or heat treated with
moisture reduction in accordance with proposed Sec. 319.40-7(d). Lumber
on the vessel's deck must be in a sealed container, unless the lumber
has been heat treated with moisture reduction in accordance with
proposed Sec. 319.40-7(d). These requirements would control possible
movement of plant pests to or from other regulated articles.
If lumber has been heat treated in accordance with
proposed Sec. 319.40-7(c), that fact must be recorded on the importer
document accompanying the lumber, or by a permanent marking on each
piece of lumber in the form of the letters ``HT'' or the words ``Heat
Treated.'' If lumber has been heat treated with moisture reduction in
accordance with proposed Sec. 319.40-7(d), that fact must be recorded
on the importer document accompanying the lumber, or by a permanent
marking, on each piece of lumber or on the cover of bundles of lumber,
in the form of the letters ``KD'' or the words ``Kiln Dried.''
We also propose that raw lumber (in contrast to lumber that has
been heat treated or heat treated with moisture reduction, discussed
above) may be imported from any place except countries in Asia that are
wholly or in part east of 60 deg. East Longitude and north of the
Tropic of Cancer. (We exclude raw lumber from this area because the
plant pests discussed above in reference to logs from this area may
also be associated with raw lumber from this area.) Raw lumber must
meet the following requirements.
During shipment to the United States, no other regulated
articles (other than solid wood packing materials) are permitted on the
means of conveyance with the raw lumber, unless the raw lumber and the
other regulated articles are in separate holds or separate sealed
containers. Raw lumber on the vessel's deck must be in a sealed
container. These requirements would control possible movement of plant
pests to or from the regulated articles.
After importation, the raw lumber must be consigned to a
sawmill or other processing facility that operates under a compliance
agreement in accordance with proposed Sec. 319.40-8. At the facility,
the raw lumber must be heat treated in accordance with proposed
Sec. 319.40-7 (c) or (d), no more than 30 days after the lumber is
released from the port of arrival. If the raw lumber is to be cut,
planed, or sawed, the heat treatment must be conducted prior to any
cutting, planing, or sawing of the lumber, to prevent spread of any
plant pests that might be associated with the raw lumber.
Wood chips and bark chips. We propose that wood chips and bark
chips from any place except countries in Asia that are wholly or in
part east of 60 deg. East Longitude and north of the Tropic of Cancer
may be imported under the following conditions:
The wood chips must be accompanied by an importer document
that states that the wood chips were either (1) derived from live,
healthy, plantation-grown trees in tropical areas; or (2) fumigated in
accordance with proposed Sec. 319.40-7(f)(3) or heat treated in
accordance with proposed Sec. 319.40-7(c) or proposed Sec. 319.40-7(d).
During shipment to the United States, no other regulated
articles (other than solid wood packing materials) are permitted in the
holds or sealed containers carrying the wood chips or bark chips. Wood
chips or bark chips on the vessel's deck must be in a sealed container.
These requirements would control possible movement of plant pests to or
from other regulated articles.
Imported wood chips or bark chips must be consigned to a
facility operating under a compliance agreement in accordance with
Sec. 319.40-8. The wood chips or bark chips must be burned, heat
treated in accordance with proposed Sec. 319.40-7(c) or Sec. 319.40-
7(d), or otherwise processed in a manner that will destroy any plant
pests associated with the wood chips or bark chips within 30 days of
arrival at the facility. We do not want to allow imported chips to be
stored for long periods of time because this increases the
opportunities for movement of plant pests from the chips. Mulching and
composting of the wood chips or bark chips are prohibited unless, prior
to use, the wood chips or bark chips that are to be mulched or
composted are fumigated in accordance with proposed Sec. 319.40-7(f)(3)
or heat treated in accordance with proposed Sec. 319.40-7(c) or
proposed Sec. 319.40-7(d). Mulching or composting of unfumigated chips
would distribute the chips in soil and enhance opportunities for plant
pest movement.
The wood chips or bark chips must be free from rot at the
time of importation, unless accompanied by an importer document stating
that the entire lot was fumigated with methyl bromide in accordance
with proposed Sec. 319.40-7(f)(3) or heat treated in accordance with
proposed Sec. 319.40-7 (c) or (d). Wood chips or bark chips which have
not been fumigated with methyl bromide in accordance with proposed
Sec. 319.40-7(f)(3) or heat treated in accordance with proposed
Sec. 319.40-7 (c) or (d) and which an inspector finds not to be free
from rot will be refused entry into the United States.
Wood mulch, humus, compost, and litter. We propose that wood mulch,
humus, compost, and litter from any place may be imported if
accompanied by an importer document stating that the wood mulch, humus,
compost, or litter was fumigated in accordance with proposed
Sec. 319.40-7(f)(3) or heat treated in accordance with proposed
Sec. 319.40-7 (c) or (d). These treatments effectively destroy all
plant pests commonly found in wood mulch, humus, compost, and litter.
Cork and bark. Large amounts of cork are imported each year, and in
general only hitchhiking and opportunistic plant pests have been
associated with its importation. Varying amounts of other barks are
imported for food or spices (particularly cinnamon), or for the
manufacture of chemicals or medicines (e.g., yew bark for taxol
production).
Based on APHIS inspections of imported bark at ports of entry, we
do not believe that importations of cork and cork bark, cinnamon bark,
and other bark intended for food or manufacture of medicine, or
chemicals extraction represent a significant plant pest risk if the
bark is free from rot when imported.
Therefore, we propose that cork and cork bark, cinnamon bark, and
other bark to be used for food, manufacture of medicine, or chemical
extraction may be imported if free from rot at the time of importation,
and if subject to inspection and other requirements of proposed
Sec. 319.40-9.
Section 319.40-7 Treatments and Safeguards
This proposed section describes the methods for conducting several
treatments that are required in other parts of the regulations in
connection with importing regulated articles. The descriptions of the
treatments generally establish minimum acceptable standards and attempt
to allow persons employing the treatments a degree of latitude as to
exactly how to meet the treatment standards.
APHIS has studied these treatments and determined that they are
effective means for eliminating any significant plant pest risk in
regulated articles for which their use is required. No one treatment is
a panacea for all plant pests; the treatments assigned for various
regulated articles reflect the plant pest risks associated with the
regulated articles. We continue to evaluate the effectiveness of other
treatments, and it is likely that this section of the regulations will
be revised from time to time as new information on treatments becomes
available.
Many regulated articles may only be imported if accompanied by an
importer document that certifies that the regulated articles have been
subjected to treatments which we propose to be required prior to
importation of regulated articles. Proposed Sec. 319.40-7(a) concerns
APHIS actions in the event that importer documents or other documents
accompanying regulated articles prove to be inaccurate. Under this
proposed provision, if APHIS determined that a document required for
the importation of regulated articles is inaccurate, the regulated
articles which are the subject of the document would be refused entry
into the United States. In addition, if the inaccurate document was a
certificate issued by the government of a foreign country, APHIS could
determine not to accept any further certificates for the importation of
regulated articles in accordance with this subpart from a country in
which an inaccurate certificate is issued, and APHIS could determine
not to allow the importation of any or all regulated articles from any
such country, until corrective action acceptable to APHIS establishes
that certificates issued in that country in the future will be
accurate.
There is no general requirement in the proposed regulations that
treatments performed outside the United States must be performed under
the supervision of an APHIS inspector. To ensure the proper application
of treatments and safeguards that do not occur under direct APHIS
supervision, APHIS will conduct monitoring inspections of treatments
and safeguards applied in foreign countries in accordance with this
section.
Proposed paragraphs (b) through (g) of Sec. 319.40-7 contain the
minimum requirements for the following treatments: Debarking; heat
treatment; heat treatment with moisture reduction; surface pesticide
treatments; methyl bromide fumigation; and preservative treatments.
Various combinations of these treatments are required for the
importation of regulated articles in accordance with proposed
Sec. 319.40-5 and Sec. 319.40-6. The requirements for performing each
treatment are discussed below.
Debarking. The proposed standard is that for regulated articles
except raw lumber, no more than 2 percent of the surface of all
regulated articles in a lot may retain bark, with no single regulated
article retaining bark on more than 5 percent of its surface. For raw
lumber, debarking must remove 100 percent of the bark. (Heat treated
lumber may retain up to 2 percent of bark because the heat treatment
substantially reduces the plant pest risk.)
Debarking would be effective in eliminating plant pests and
pathogens on the surface of the logs, as well as those found within and
immediately beneath the bark. Debarking would facilitate inspection for
the presence of boring insects at the port of first arrival. Inspecting
bark on large quantities of logs is a difficult, time-consuming process
and would not be practical.
To be effective, bark removal must be thorough. From a practical
viewpoint, APHIS recognizes that complete removal of every scrap of
bark is probably impossible, except for lumber. A tolerance level of 2
percent, with no single regulated article, except raw lumber, retaining
bark on more than 5 percent of its surface, appears reasonable to us
based on our experience inspecting regulated articles at ports and
observing commercial debarking operations. We believe that the plant
pest risk associated with the remaining 2 percent of bark on an
imported regulated article would not be significant because of the
other regulatory measures applied to importation of the regulated
article, which may include (depending on the type of regulated article)
treatments such as surface pesticide sprays and fumigation.
Heat treatment. We propose that heat treatment procedures may
employ steam, hot water, kilns, exposure to microwave energy, or any
other method that raises the temperature of the center of each treated
regulated article to at least 56 deg.C and maintains the regulated
article at that center temperature for at least 30 minutes. For
regulated articles heat treated prior to arrival in the United States,
during the entire interval between treatment and export the regulated
article must be stored, handled, or safeguarded in a manner which
excludes any reinfestation of the regulated article by plant pests.
Heat in various forms has long been used as a nonchemical treatment
for wood. The efficacy of heat treatments depends on heating the
treated article throughout to a temperature that will kill plant pests.
Based on the available scientific literature7 and inspection of
heat-treated materials, we have determined that heating any article
until the center of the article reaches at least 56 deg.C and
maintaining that temperature for at least 30 minutes will destroy plant
pests. To reduce the risk that heat-treated regulated articles could
become recontaminated with plant pests, between heat treatment and
export the regulated article must be stored, handled, or safeguarded in
a manner which excludes any reinfestation of the regulated article by
plant pests. This protection could be accomplished using a wide variety
of methods, such as shrink-wrap plastic covers or storage in pest-free
warehouses. Another safeguard available is treatment with surface
pesticide sprays every 30 days prior to departure, in accordance with
proposed Secs. 319.40-6(a) and 319.40-7(e), and we believe these spray
treatments would control risks of reinfestation of heat treated
articles prior to shipment.
---------------------------------------------------------------------------
\7\Citations are contained in the rulemaking record, and are
available upon request to the office identified in FOR FURTHER
INFORMATION CONTACT.
---------------------------------------------------------------------------
We do not believe we can currently develop a useful list of
effective safeguarding methods without leaving out many possibilities
that businesses may wish to employ. We intend to review importer
proposals for safeguard techniques during our permit approval process,
and we will inform importers at that time whether the safeguards they
propose to use are adequate.
Heat treatment must be performed only at a facility where APHIS or
an inspector authorized by the national government of the country in
which the facility is located has inspected the facility and determined
that its operation complies with the standards of the regulations for
performing heat treatment. We believe such inspection is necessary to
ensure that heat treatment facilities attain the necessary time-
temperature combinations needed to destroy pests. However, inspection
of facilities performing heat treatment with moisture reduction is not
necessary, because the effectiveness of heat treatment with moisture
reduction can be measured by testing the moisture content of treated
articles at the port of arrival, as discussed below.
Heat treatment with moisture reduction. This is a form of heat
treatment that is also designed to reduce the moisture content of the
treated regulated article, eliminating deep wood plant pests and making
the regulated article less vulnerable to reinfestation by some plant
pests. We propose that heat treatment with moisture reduction may
employ dry heat, exposure to microwave energy, or any other method that
raises the temperature of the center of each treated regulated article
to at least 56 deg.C, maintains the regulated articles at that center
temperature for at least 30 minutes, and reduces the moisture content
of the regulated article to 20 percent or less, as measured by an
electrical conductivity meter. Electrical conductivity meters are
devices in common use in wood industries that calculate the moisture
content of wood by measuring the electrical conductivity of the wood,
which varies with its moisture content and density. As necessary, our
inspectors will use electrical conductivity meters to confirm the
moisture content of regulated articles.
Regulated articles heat treated with moisture reduction prior to
arrival in the United States would also have to be stored, handled, or
safeguarded in a manner which excludes any reinfestation of the
regulated article by plant pests during the time the articles are
stored between heat treatment and export.
Surface pesticide treatments. In general, the proposed regulations
do not employ surface pesticide sprays or dips as a primary treatment
to eliminate plant pests; instead, these treatments are used to provide
prophylactic protection during the period when treated regulated
articles are awaiting shipment to the United States. Their purpose is
to control reinfestation of treated regulated articles, and to control
incidental or ``hitchhiking'' attachment of plant pests to regulated
articles. We propose to authorize use of all United States
Environmental Protection Agency (EPA) registered surface pesticide
treatments for regulated articles. Surface pesticide treatments must be
conducted in accordance with EPA-approved label directions. Surface
pesticides must be applied within 48 hours following treatment to
prevent reinfestation of the articles. Because many surface pesticide
treatments lose some or all of their effectiveness after 30 days, the
treatment must be repeated at least every 30 days during storage of the
regulated article, with the final treatment occurring no more than 30
days prior to the departure of the means of conveyance that carries the
regulated article to the United States.
Methyl bromide fumigation. Methyl bromide is very effective against
plant pests, including all stages of insects, mites, snails, slugs, and
nematodes, as well as most fungi. Its effectiveness as a fumigant was
discovered in 1932. Since then, it has become the fumigant of choice in
quarantine treatments.
Methyl bromide is currently in widespread use as a fumigant.
However, the environmental effects of this use have undergone close
review by international, Federal, and State agencies. The United States
Environmental Protection Agency has recently evaluated data concerning
the ozone depletion potential of methyl bromide and, as a result, has
published a Notice of Proposed Rulemaking indicating their intent to
reclassify methyl bromide as a Class I substance under the Clean Air
Act as amended (58 FR 15014-15049, March 18, 1993). Should this
proposal be finalized, methyl bromide production would be frozen at
1991 levels and the domestic use of methyl bromide would be phased out
by the year 2000. APHIS is studying the effectiveness and environmental
acceptability of alternative treatments to prepare for the
unavailability of methyl bromide fumigation. For the interim, this
proposed rule attempts to provide alternatives to the use of methyl
bromide in as many circumstances as possible. For example, all
regulated articles could be imported in accordance with one of the
universal importation options in proposed Sec. 319.40-6, without the
use of methyl bromide fumigation.
However, our regulations assume continued use of methyl bromide
fumigation for at least the next few years. The characteristics of
methyl bromide treatments are discussed below.
Methyl bromide diffuses laterally and downward readily, and upward
slowly. These characteristics make blower or fan circulation essential,
at least during the first 15-60 minutes, to ensure thorough gas
distribution. In addition, circulation enhances penetration. A
volatilizer is necessary when introducing methyl bromide.
Studies have shown that methyl bromide fumigation effectively kills
plant pests if conducted in a way that ensures exposure of the entire
article to the necessary gas concentration for the necessary time.
However, circumstances during treatment can reduce the effectiveness of
the fumigation. In particular, because the diffusion of methyl bromide
through frozen wood is sharply reduced, it is necessary that regulated
articles be maintained at a temperature above freezing throughout
fumigation.
The following minimum standards for methyl bromide fumigation
treatment are proposed for the listed regulated articles. We are
providing two options for applying each treatment. The person applying
the treatment can follow a schedule in the Plant Protection and
Quarantine Treatment Manual (the Treatment Manual), which is
incorporated by reference at 7 CFR 300.1 in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. The treatment schedules specify the exact
length of the treatment, the initial methyl bromide concentration, and
subsequent points during the treatment when the concentration must be
checked. Under an alternative option provided by our proposal, the
Treatment Manual methyl bromide concentration is not used, although all
other Treatment Manual requirements for fumigation must be followed.
Instead, the treatment must produce a specified concentration-time
product, which represents the concentration of methyl bromide
multiplied by the hours of fumigation. The concentration-time product
specified for each treatment was calculated to ensure that the
treatment would effectively destroy plant pests at the temperature
range allowed for the treatment.
For example, one treatment requirement for logs states that
schedule T-312 from the Treatment Manual may be used, or else the
treatment can be conducted at a temperature of over 5 deg.C, by
introducing methyl bromide at a concentration of at least 240 g/m3
and maintaining it long enough to achieve a concentration-time product
of 17,280 gram-hours. Simple arithmetic allows calculation of the
necessary duration of the treatment depending on the concentration of
methyl bromide employed. If the concentration used is 240 g/m3,
the logs must be fumigated for 72 hours (240 x 72 = 17,280). If a
concentration of 300 g/m3 is used the logs must be fumigated for
57.6 hours, and so on.
Any method of fumigation that meets or exceeds the specified
temperature/time/concentration products is acceptable. Information
documenting the effectiveness of methyl bromide fumigation for various
articles when used in accordance with the specified concentration-time
products is available through the office identified in the FOR FURTHER
INFORMATION CONTACT section of this document. The methyl bromide
fumigation treatments proposed by this document are as follows:
Logs. We propose two fumigation requirements for logs, based on
treatment schedules T-312 and T-404 in the Plant Protection and
Quarantine Treatment Manual. In general T-312 has been used in the past
for logs, and T-404 for other wood products. Persons employing these
fumigation treatments can either follow the specific T-312 or T-404
treatment schedules, or employ other fumigation techniques that result
in the same methyl bromide exposure and concentration levels.
For the T-312 alternative, the logs and the ambient air must be at
a temperature of 5 deg.C or above throughout fumigation. The fumigation
must be conducted using schedule T-312 contained in the Treatment
Manual. In lieu of the schedule T-312 methyl bromide concentration,
fumigation may be conducted with an initial methyl bromide
concentration of at least 240 g/m3 with exposure and concentration
levels adequate to provide a concentration-time product of at least
17,280 gram-hours calculated on the initial methyl bromide
concentration.
For the T-404 alternative, the logs and the ambient air must be at
a temperature of 5 deg.C or above throughout fumigation. The fumigation
must be conducted using schedule T-404 contained in the Treatment
Manual. In lieu of the schedule T-404 methyl bromide concentration,
fumigation may be conducted with an initial methyl bromide
concentration of at least 120 g/m3 with exposure and concentration
levels adequate to provide a concentration-time product of at least
1920 gram-hours calculated on the initial methyl bromide concentration.
Lumber. For fumigation of lumber, we propose that the lumber and
the ambient air must be at a temperature of 5 deg.C or above throughout
fumigation. The fumigation must be conducted using schedule T-404
contained in the Treatment Manual. In lieu of the schedule T-404 methyl
bromide concentration, fumigation may be conducted with an initial
methyl bromide concentration of at least 120 g/m3 with exposure
and concentration levels adequate to provide a concentration-time
product of at least 1920 gram-hours calculated on the initial methyl
bromide concentration.
Regulated articles other than logs or lumber. We propose that if
regulated articles other than logs and lumber and the ambient air are
at a temperature of 21 deg.C or above throughout fumigation, the
fumigation must be conducted using schedule T-404 contained in the
Treatment Manual (i.e., the subschedule applicable to articles at a
temperature of 21 deg.C or above). In lieu of the schedule T-404 methyl
bromide concentration, fumigation may be conducted with an initial
methyl bromide concentration of at least 48 g/m3 with exposure and
concentration levels adequate to provide a concentration-time product
of at least 760 gram-hours calculated on the initial methyl bromide
concentration.
We propose that if the ambient air and the regulated articles other
than logs or lumber are at a temperature of 4.5-20.5 deg.C throughout
fumigation, the fumigation must be conducted using schedule T-404
contained in the Treatment Manual (i.e., the schedule applicable to
articles at a temperature of 4.5-20.5 deg.C), or, using any fumigation
method with an initial methyl bromide concentration of at least 120 g/
m3 with exposure and concentration levels adequate to provide a
concentration-time product of at least 1920 gram-hours calculated on
the initial dosage.
Preservatives. Numerous chemicals are in commercial use as
preservative treatments for wood, and application of some of these
chemicals protects wood from insects and fungi for long periods of
time, often years. However, some insects or pathogens already present
deep in the wood may not be killed by topical applications.
Methods of application for preservatives include dipping, pressure
treating, and injection into drill holes (either directly or in gelatin
capsules). Target organisms are mainly wood-decay fungi. The most
common purpose of application is to lengthen the useful life of rough
timber used for fence posts, marine pilings, bridge timbers, railroad
ties, and utility poles.
We propose to authorize any preservative treatment that uses a
preservative product that is registered by the EPA. Preservative
treatments would have to be performed in accordance with EPA-approved
label directions.
Section 319.40-8 Processing at Facilities Operating Under Compliance
Agreements
We propose to allow the importation of some regulated articles that
may continue to present a low level risk of introducing plant pests
into the United States until the time the regulated articles are
processed. To prevent the introduction of plant pests from these
regulated articles into the environment, we propose to require that
such articles be moved from the port of first arrival to a processing
facility and processed there, under conditions contained in the
compliance agreement that are based on the nature of the regulated
articles and the nature of the destination facility, that would prevent
the introduction of plant pests.
To ensure that such facilities operate in a manner that will
prevent introduction of plant pests, we propose to require that such
facilities operate under a compliance agreement signed with APHIS. Each
compliance agreement would be developed and signed in conjunction with
issuance of a permit to import regulated articles. The compliance
agreement would specify safeguards necessary to prevent spread of plant
pests from the facility, such as disinfestation practices, covering or
container requirements, requirements for disposal of waste wood or
byproducts, requirements to ensure the processing method effectively
destroys plant pests, and application of chemical materials in
accordance with the Treatment Manual. Each compliance agreement would
also state that APHIS inspectors must be allowed access to the facility
to monitor compliance with the requirements of the compliance agreement
and the regulations.
This section also proposes that an inspector supervising
enforcement of a compliance agreement may cancel the agreement, orally
or in writing, if the person who entered into the compliance agreement
fails to meet its conditions. We also propose provisions to appeal
cancellation of a compliance agreement and to obtain a hearing on the
cancellation if there is a conflict as to any material fact. These
requirements would aid enforcement of compliance agreement provisions
and protect the rights of persons who enter into compliance agreements.
During initial implementation of the proposed regulations, the
requirements of each compliance agreement would be set as we collect
information about the regulated articles imported in accordance with
this provision and the physical layout and operating procedures of the
facilities. Over time, we may be able to develop standardized
compliance agreements for different types of facilities. If this
occurs, we will publish a proposed rule in the Federal Register
describing standard compliance agreements.
Section 319.40-9 Inspection and Other Requirements at Port of First
Arrival
This section proposes standards for enforcement of the proposed
regulations at the ports where imported regulated articles arrive in
the United States. This section states that an inspector may order
imported regulated articles assembled for inspection at the port of
first arrival, or at any other place prescribed by an inspector, at a
place and time and in a manner designated by an inspector; that an
inspector may order a regulated article to be treated or re-exported if
the shipper or importer does not comply with regulatory requirements or
the shipment is contaminated with plant pests or prohibited
contaminants; and requires that regulated articles meet certain marking
and identity requirements designed to assist inspection and processing
of regulated articles at the port. This section also allows inspectors
to take samples from regulated articles for the purpose of determining
whether the regulated articles contain plant pests.
Proposed Sec. 319.40-9 contains the following specific
requirements:
Procedures for all regulated articles. We propose that all
regulated articles imported would be inspected. If the inspector finds
signs of plant pests on or in the regulated article, or finds that the
regulated article may have been associated with other articles infested
with plant pests, the regulated article must be cleaned or treated as
required by an inspector, and the regulated articles and any products
of the regulated articles shall be subject to reinspection, cleaning,
and treatment at the option of an inspector at any time and place
before all applicable requirements of this subpart have been
accomplished.
Regulated articles would be assembled for inspection at the port of
first arrival at a place and time and in a manner designated by an
inspector. If an inspector finds that a shipment of regulated articles
imported into the United States is so infested with a plant pest that,
in the judgment of the inspector, the regulated article cannot be
cleaned or treated, or contains soil or other prohibited contaminants,
the entire shipment may be refused entry into the United States.
No person could move any regulated article imported into the United
States from the port of first arrival unless and until an inspector
notifies the person, in writing or through an electronic database that
preserves a record of the notice, that the regulated article has been
inspected and found to be apparently free of plant pests, and is in
compliance with all applicable regulations, or has been inspected and
the inspector requires reinspection, cleaning, or treatment of the
regulated articles at a place other than the port of first arrival.
Visual examination of regulated articles at port of first
arrival. We propose that regulated articles imported into the United
States which have been debarked in accordance with Sec. 319.40-7(b) and
can be safely and practically inspected would be visually examined for
plant pests at the port of first arrival. Treatment appropriate to the
regulated article and contained in the Treatment Manual would be
required if plant pests are found or if the regulated article cannot be
safely and practically inspected.
Marking and identity of regulated articles. We propose
that any regulated article, at the time of importation, would be
required to bear on the outer container (if in a container), on the
regulated article (if not in a container), or on a document
accompanying the regulated article, the following information:
1. General nature and quantity of the regulated articles;
2. Country and locality, if known, where the tree from which the
regulated article was derived was grown;
3. Name and address of the person importing the regulated article;
4. Name and address of consignee of the regulated article;
5. Identifying shipper's mark and number; and
6. Number of the permit (if one was issued) authorizing the
importation of the regulated article into the United States.
Sampling for plant pests at port of first arrival. We
propose that any imported regulated article may be sampled for plant
pests at the port of first arrival. If an inspector finds it necessary
to order treatment of a regulated article at the port of first arrival,
any sampling would be done prior to treatment.
Notice of arrival by importers. Proposed Sec. 319.40-9(b)
would require that importers give APHIS notice of arrival of a shipment
7 days prior to the expected date of arrival. The notice of arrival
could be done by telephone, or by an informal letter containing the
necessary arrival information. We do not believe this notice would be
particularly burdensome to importers, and we believe it is needed to
allow our inspectors to prepare for a shipment, and to allow them to
ensure that incompatible shipments (i.e., situations where articles
from one shipment could spread pests to another shipment) are not
accidentally mingled on docks.
Section 319.40-10 Costs and Charges
This proposed section, which is consistent with similar language in
our other regulations in part 319, addresses the availability of
inspector services and the distribution of costs associated with
importation of regulated articles. The services of an inspector during
regularly assigned hours of duty and at the usual places of duty would
be furnished without cost to the importer. The inspector may require
the importer to furnish any labor, chemicals, packing materials, or
other supplies required in handling regulated articles under the
regulations. APHIS would not be responsible for any costs or charges,
other than those identified in this section.
Section 319.40-11 Pest Risk Assessment Standards.
As discussed above, proposed Sec. 319.40-4(b)(2) states that if
APHIS reviews an application to import regulated articles and finds
that the proposed importation is not allowed under the existing
regulations, a pest risk assessment would be performed to determine
whether the importation could be accomplished under conditions not in
the current regulations. If such conditions (e.g., treatment or
handling requirements, limits on the source, type, or quantity of the
regulated articles, etc.) are identified through a plant pest risk
assessment, APHIS would implement rulemaking to add the newly
identified conditions. After the regulations are amended, APHIS could
issue an import permit for the request that initiated the plant pest
risk assessment process.
Proposed Sec. 319.40-11 contains the plant pest risk assessment
standards we would apply in making such decisions. This section is
based on a model of plant pest risk assessment developed by USDA and
utilized extensively in the Chile, New Zealand, and Siberian
assessments. This proposed section does not attempt to provide a
complete foundation in the discipline of risk assessment, or to
describe every factor that APHIS may find relevant to decisions on
whether or not to propose new conditions for importation of regulated
articles. Instead, these standards describe the type of plant pest risk
information that must be collected and evaluated in the course of our
plant pest risk assessments, and some factors used to distinguish risk
categories and to evaluate the effectiveness of various mitigation
measures. This proposed section does not provide an exact formula for
how we would determine whether or not to admit a particular regulated
article, because it is impossible to develop an exact formula for such
decisionmaking. Although the proposed new section would not provide the
public with an exact formula for determining whether particular
regulated articles should be imported, it would provide a substantial
amount of information about APHIS decisionmaking in this area.
For each pest risk assessment for a regulated article considered
for importation, we need to collect and assess information regarding
the probability that plant pests will accompany the regulated article,
and the probability that any plant pests that may accompany the
regulated article could become established in the United States, as
plant pests of either the type of article imported or of other types of
plants in the United States. We also need to consider information about
the biological characteristics of such plant pests, their distribution
in the area of origin of the imported regulated article and in the
United States, and the type of damage the plant pests cause. We also
need to consider information about the potential range of such plant
pests in the United States, and the availability and effectiveness of
mitigation methods to prevent the introduction, establishment, and
spread of such pests.
Our plant pest risk assessment process involves:
Collecting commodity information. This includes evaluating
the application for information describing the regulated article and
the origin, processing, treatment, and handling of the regulated
article; and evaluating the history of past plant pest interceptions or
introductions (including data from foreign countries) associated with
the regulated article.
Cataloging quarantine pests. This includes determining
what plant pests or potential plant pests are associated with the type
of tree from which the regulated article was derived, in the country
and locality from which the regulated article is to be exported. A
plant pest will be further evaluated if it is a:
Non-indigenous plant pest not present in the United
States;
Non-indigenous plant pest, present in the United States
and capable of further dissemination in the United States;
Non-indigenous plant pest that is present in the United
States and has reached probable limits of its ecological range, but
differs genetically from the plant pest in the United States in a way
that demonstrates a potential for greater damage potential in the
United States;
Native species of the United States that has reached
probable limits of its ecological range, but differs genetically from
the plant pest in the United States in a way that demonstrates a
potential for greater damage potential in the United States; or
Non-indigenous or native plant pest that may be able to
vector another plant pest of the types described above.
Determining which quarantine pests to assess. This
involves dividing the group of plant pests identified above into three
groups, each of which generally presents a different level of risk. The
three groups are plant pests found on or in the bark, under the bark,
and in the wood. Within each group, the plant pests would then be
ranked according to plant pest risk, from highest to lowest plant pest
risk, based on the available information, and demonstrated plant pest
importance.
The next step would be to conduct individual plant pest risk
assessments for the highest ranked plant pest(s) in each group. In some
cases, plant pests may have been previously subjected to a plant pest
risk assessment in accordance with this section; such assessments may
be used if they are still current and accurate.
The number of plant pests in each group to be evaluated through
individual plant pest risk assessments would be based on biological
similarities of members of the group as they relate to mitigation
measures. For example, if the plant pest risk assessment for the
highest ranked plant pest indicates a need for a mitigation measure
that would result in the same reduction of risk for other plant pests
ranked in the group, the other members need not be subjected to
individual plant pest risk assessment.
Conducting individual pest risk assessments. The
individual pest risk assessments would estimate:
The probability of the plant pest being on, with, or in
the regulated article at the time of importation;
The probability of the plant pest surviving in transit on
the regulated article and entering the United States undetected;
The probability of the plant pest colonizing once it has
entered into the United States;
The probability of the plant pest spreading beyond the
colonized area;
The damage that could be expected upon introduction and
dissemination within the United States of the plant pest; and
The overall plant pest risk associated with importing the
regulated article, based on compilation of the individual plant pest
risk assessments.
Evaluating available mitigation measures to determine
whether they would allow safe importation of the regulated article.
Mitigation measures currently in use as requirements of this subpart,
and any other mitigation measures relevant to the regulated article and
plant pests involved, would be compared with the individual plant pest
risk assessments in order to determine whether requiring particular
mitigation measures in connection with importation of the regulated
article would reduce the plant pest risk to an insignificant level. If
APHIS determines that use of particular mitigation measures could
reduce the plant pest risk to an insignificant level, and determines
that sufficient APHIS resources are available to implement or ensure
implementation of the appropriate mitigation measures, APHIS would
implement rulemaking to allow importation of the requested regulated
article under the appropriate requirements identified by the plant pest
risk assessment process.
Changes to Other Regulations To Make Them Consistent With the
Proposed Regulations
There is a degree of overlap between the subject matter of the
proposed regulations and other regulations in 7 CFR part 319. We are
proposing to make changes in several places in part 319, to clarify
which regulations apply to which articles.
Subpart--Citrus Canker and Other Citrus Diseases
In the citrus canker regulations in Sec. 319.19, we propose to add
a statement that articles of the subfamilies Aurantioideae, Rutoideae,
and Toddalioideae of the botanical family Rutaceae which are regulated
articles under proposed Sec. 319.40 may be imported in accordance with
Sec. 319.40, and without restriction by Sec. 319.19. We also propose to
edit this section to clarify it and remove surplus language.
Subpart--Bamboo
In the bamboo regulations in Sec. 319.34, we propose to add
language stating that this section applies to bamboo capable of
propagation, and to add a footnote stating that bamboo not capable of
propagation is regulated under Sec. 319.40. We also propose to edit
this section to clarify it and remove surplus language.
Subpart--Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other
Plant Products
In the nursery stock regulations in Sec. 319.37, we propose to
amend the definition of ``prohibited article'' to exclude articles
regulated under Sec. 319.40. We also propose to edit this section to
clarify it and remove surplus language.
Subpart--Packing Materials
In the packing materials regulations in Sec. 319.69, we propose to
remove paragraph (b)(3), which regulates imported willow twigs, since
willow twigs would be regulated under subpart 319.40.
Executive Order 12866 and Regulatory Flexibility Act
We are issuing this proposed rule in conformance with Executive
Order 12866.
We have prepared a preliminary economic analysis concerning this
proposed rule. This analysis indicates that this proposed rule would
have an effect on the economy of less than $100 million. The economic
analysis addresses the impacts of establishing the proposed
regulations, and will be revised in response to comments received on
this proposed rule. Copies of the economic analysis may be obtained by
sending a written request to the Chief, Regulatory Analysis and
Development, PPD, APHIS, USDA, room 804, Federal Building, 6505
Belcrest Road, Hyattsville, MD 20782. Copies of the economic analysis
are also available for 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.
The United States has become the world's leading importer of wood
and wood products. In 1990, the U.S. imported the equivalent of 34.4
million cubic meters (CBM) of logs, lumber, and other wood products
valued at about $5.1 billion. Total imports nearly tripled between 1950
and 1990, with most of this increase occurring after 1970.
Historically, virtually all wood product imports have been from Canada.
Domestic production of logs, lumber, and other wood products has
increased steadily since 1950. In roundwood equivalents, production in
1990 was 1.6 times greater than in 1950. Most timber production occurs
in southern and western States. In 1990, Oregon and Washington
accounted for about 16 percent of the total U.S. tree harvest.
Domestic logging companies are facing increasing challenges from
conservation groups. Conservationists are opposed to many tree
harvesting practices, especially clear cutting. In addition, concern
over habitats for wildlife has raised questions about replacement of
old growth/diversified forests with monoculture. Conservation issues
are likely to limit future tree harvests in several northwestern
States.
Nationally, commercial forest lands are projected to decrease by
about 4 percent over the next 50 years. Production is likely to decline
in the Pacific Northwest and increase in the South and Rocky Mountain
States.8 A slightly limited domestic harvest combined with higher
consumer demand would likely result in an increased demand for imported
wood and wood products. Alternative supplies of logs and other wood
products have been located in the former Soviet Union, New Zealand,
Chile, Brazil, and other countries. Wood imports from alternative
sources have the potential to introduce and disseminate exotic plant
pests and diseases throughout the United States.
---------------------------------------------------------------------------
\8\Over the next 50 years, new technologies may allow wood
products companies to remove larger amounts of wood products from
each tree.
---------------------------------------------------------------------------
The proposed regulations would regulate the importation of logs and
other unmanufactured wood products from all areas. There are exemptions
from some proposed requirements for imports from Canada and Mexican
border states because most insects and other wood pests in these areas
are also indigenous to the United States. Therefore, wood imports from
Canada and Mexican border States do not pose a significant biological
risk of exotic plant pest introduction.
The proposed regulations would reduce to an insignificant level the
risk of entry and dissemination of plant pests associated with wood
imports. Prohibition of a regulated wood product would be based on
plant pest risk assessments that reveal more than an insignificant risk
of the introduction of plant pests. Unrestricted trade in wood products
would likely result in losses to domestic agriculture from plant pest
damages. Without governmental regulation, private entities might engage
in trading activities that would result in the introduction of plant
pests into the United States.
The following items would be subject to the regulations: (1) Logs;
(2) wood chips; (3) lumber; (4) whole trees; (5) portions of trees not
consisting solely of leaves, flowers, fruits, buds, or seeds; (6) bark;
(7) cork; (8) laths; (9) hog fuel; (10) sawdust; (11) painted raw wood
products; (12) excelsior; (13) wood mulch; (14) wood shavings; (15)
pickets; (16) stakes; (17) shingles; (18) solid wood packing materials;
(19) humus; (20) compost; and (21) litter. Manufactured wood products
would not be regulated by the proposed rule. The proposed regulations
would require that certain specified imported unmanufactured wood
products be treated prior to arrival in the United States.
In 1990 the United States imported about 600,000 CBM of wood
products that would require treatment under the proposed regulations.
These wood imports accounted for less than one percent of total 1990
domestic supplies. Imported shipments of kiln dried lumber would not
require treatment.
About 4.1 million newly manufactured units of wood dunnage were
imported as cargo from proposed regulated areas in 1990. Dunnage
imported as cargo can be manufactured from rough untreated lumber that
has not been stripped of all tree bark.9 Imports comprised about
27 percent of the newly manufactured dunnage products available in the
United States during 1990.
---------------------------------------------------------------------------
\9\For the purpose of this economic analysis, dunnage imported
as cargo includes dunnage produced for first time use, and does not
include dunnage manufactured from used or scrap lumber.
---------------------------------------------------------------------------
Imports of regulated articles that would require treatment totaled
about $80.2 million in 1990. Total domestic supplies of these articles
exceeded $80 billion during the same year. Therefore, the value of
imports that would require treatment under the proposed regulations
represented less than one percent of total domestic supplies in 1990.
Our economic analysis estimates that domestic producers of
regulated articles would benefit from a welfare gain of about $60.2
million, while domestic consumers of regulated articles would incur a
welfare loss of about $64.3 million for U.S. society during the first
year. A similar net loss could be expected for the next several years.
This net loss occurs because the additional regulatory restrictions
would raise prices and decrease the availability of imported
unmanufactured wood articles. Therefore, the price and demand for less
costly domestic wood would likely rise as higher import prices
encourage U.S. consumers to change their purchasing practices.
The estimated $4.1 million loss in welfare to U.S. society
represents the cost of plant pest exclusion. If the United States does
not expend resources to exclude plant pests through the proposed
regulations or through other means, such pests could become established
and cause significant damage to domestic agriculture. For example, in
the past few years plant pests including the Asian gypsy moth and the
pine shoot beetle have been introduced into this country, and several
million dollars have already been spent on efforts to control them. The
Siberian assessment discussed above evaluated potential costs of
various plant pest introduction scenarios, and that introduction of a
single pest, larch canker, could cause direct timber losses of $129
million. The same study estimated that a worst-case scenario involving
heavy establishment of exotic defoliators in the United States could
cost $58 billion.
The initial net welfare loss will be offset over time as businesses
adapt to new international wood marketing channels. If resource
constraints remain constant, implementation of the proposed rule would
result in domestic consumers buying a slightly higher volume of
domestic production at slightly higher prices than currently prevail in
the U.S. market. However, domestic consumers will continue to
supplement their wood purchases with imports whenever the imported
price is cheaper than the domestic price.
Foreign firms that import unmanufactured wood articles into the
United States would incur a share of the estimated net reduction in
importer welfare, since both foreign and domestic firms that import
unmanufactured wood articles into the United States would face
increased costs associated with entering those articles. However, APHIS
cannot quantify the proportional loss between domestic and foreign
importers of regulated articles.
APHIS does not expect the economic impact on U.S. producers of
regulated articles to be uniform across the country. Producers in
southern and Rocky Mountain States would likely gain more than
producers in the Pacific Northwest. Conservation issues and resource
constraints would likely limit the amount of welfare gain acquired by
loggers and sawmills in Oregon and Washington.
Each year about 6 to 7.5 million non-bulk shipments of various
commodities are imported into the United States. APHIS estimates that
between 3.6 and 4.5 million (60 percent) of annual imported non-bulk
shipments arrive in the United States packed in dunnage made of rough
untreated wood with bark. The proposed regulations would prohibit
untreated dunnage with bark from entering the United States.
Initially, APHIS estimates that U.S. shipping lines would incur
additional dunnage treatment and disposal costs of between $2.4 to $3.0
million dollars per year.10 However, if the proposed regulations
become effective, APHIS anticipates that shipping companies would take
steps that ensure that wood dunnage is bark free.
---------------------------------------------------------------------------
\1\0United States shipping companies transport about two percent
of annual imported shipments. APHIS estimates that the total cost of
dunnage treatment and disposal would cost the shipping industry
(foreign and domestic) between $119.5 and $149.4 million during the
initial year.
---------------------------------------------------------------------------
The Regulatory Flexibility Act requires that APHIS specifically
consider the economic impact of proposed regulations on small entities.
Small Business Administration (SBA) data indicates that about 25,998
domestic entities could be impacted by the proposed restrictions on
regulated articles. About 25,769 (99 percent) of these entities are
classified as small according to SBA criteria. These consist of
approximately 14,662 small logging companies or sawmills that produce
domestic wood articles, and approximately 15,642 entities that could
import foreign wood for processing or resale. (These two figures total
more than 25,769 because some may process or resell both domestic and
imported wood.) These small entities would experience most of the
anticipated $64.3 million increase in domestic welfare. This increase
would be a small average economic benefit for affected small entities,
as it represents less than one percent of combined average annual sales
for impacted small entities. A few small entities would undoubtedly
accrue a disproportionate share of the domestic welfare increase due to
their individual positions in their markets and variations in business
strategies for dealing with new opportunities.
The estimated $4.1 million net welfare loss to the U.S. economy
would be distributed among millions of ultimate consumers of wood
products in the form of price increases, without significant impacts on
small business entities. Therefore, the impact of the proposed
regulations on small businesses is expected to derive from part of the
$64.3 million gross increase in domestic welfare, and should be
positive but minor for a large number of small entities.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action would
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. If this proposed rule is adopted: (1) All State
and local laws and regulations that are inconsistent with this rule
will be preempted; (2) no retroactive effect will be given to this
rule; and (3) administrative proceedings will not be required before
parties may file suit in court challenging this rule, except for the
withdrawal or denial of a permit or cancellation of a compliance
agreement.
National Environmental Policy Act
In accordance with the National Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321 et seq.), APHIS is preparing an environmental
impact statement addressing the importation of logs, lumber, and other
unmanufactured wood in accordance with this proposed rule. On July 26,
1993, a notice was published in the Federal Register (58 FR 39726-
39727, Docket No. 92-195-1) informing the public of our intent to
prepare an environmental impact statement and inviting comments.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this proposed rule will be submitted for approval to the
Office of Management and Budget. Please send written comments to the
Office of Information and Regulatory Affairs, OMB, Attention: Desk
Officer for APHIS, Washington, DC 20503. Please send a copy of your
comments to: (1) Chief, Regulatory Analysis and Development, PPD,
APHIS, USDA, room 804, Federal Building, 6505 Belcrest Road,
Hyattsville, MD 20782, and (2) Clearance Officer, OIRM, USDA, room 404-
W, 14th Street and Independence Avenue SW., Washington, DC 20250.
List of Subjects in 7 CFR Part 319
Bees, Coffee, Cotton, Fruits, Honey, Imports, Incorporation by
reference, Nursery stock, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Rice, Vegetables.
PART 319--FOREIGN QUARANTINE NOTICES
Accordingly, 7 CFR part 319 would be amended as follows:
1. The authority citation for part 319 would be revised to read as
follows:
Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and
2809; 21 U.S.C. 136 and 136a; 7 CFR 2.17, 2.51, and 371.2(c).
Subpart--Citrus Canker and Other Citrus Diseases
2. In Sec. 319.19, paragraphs (a), (b), (c), and (d) would be
revised to read as follows:
Sec. 319.19 Notice of quarantine.
(a) In order to prevent the introduction into the United States of
the citrus canker disease (Xanthomonas citri (Hasse) Dowson) and other
citrus diseases, the importation into the United States of plants or
any plant part, except fruit and seeds, of all genera, species, and
varieties of the subfamilies Aurantioideae, Rutoideae, and
Toddalioideae of the botanical family Rutaceae is prohibited, except as
provided in paragraphs (b), (c), and (d) of this section.
(b) Plants or plant parts of all genera, species, and varieties of
the subfamilies Aurantioideae, Rutoideae, and Toddalioideae of the
botanical family Rutaceae may be imported into the United States for
experimental or scientific purposes in accordance with conditions
prescribed by the Administrator, Animal and Plant Health Inspection
Service, United States Department of Agriculture.
(c) Plants or plant parts of all genera, species, and varieties of
the subfamilies Aurantioideae, Rutoideae, and Toddalioideae of the
botanical family Rutaceae may be imported into Guam in accordance with
Sec. 319.37-6.
(d) Plants or plant parts of all genera, species, and varieties of
the subfamilies Aurantioideae, Rutoideae, and Toddalioideae of the
botanical family Rutaceae which are regulated articles under subpart
319.40 may be imported into the United States in accordance with
subpart 319.40 and without restriction by this subpart.
* * * * *
Subpart--Bamboo
Sec. 319.34 [Amended]
3. The title of subpart 319.34, ``Subpart--Bamboo'', would be
revised to read ``Subpart--Bamboo Capable of Propagation''.
4. In Sec. 319.34, paragraphs (a) and (c) would be removed;
paragraphs (b) and (d) would be redesignated as paragraphs (a) and (b);
and newly designated paragraph (a) would be revised to read as follows:
Sec. 319.34 Notice of quarantine.
(a) In order to prevent the introduction into the United States of
dangerous plant diseases, including bamboo smut (Ustilago shiraiana),
the importation into the United States of any variety of bamboo seed,
bamboo plants, or bamboo cuttings capable of propagation,\1\ including
all genera and species of Bambuseae, is prohibited unless imported:
---------------------------------------------------------------------------
\1\Regulations concerning the importation into the United States
of bamboo not capable of propagation are set forth in Sec. 319.40.
---------------------------------------------------------------------------
(1) For experimental or scientific purposes by the United States
Department of Agriculture;
(2) For export, or for transportation and exportation in bond, in
accordance with Secs. 352.2 through 352.15 of this chapter; or,
(3) Into Guam in accordance with Sec. 319.37-4(b).
* * * * *
Subpart--Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other
Plant Products\1\,\2\
5. In Sec. 319.37-1, the definition of ``Prohibited article'' would
be revised to read as follows:
---------------------------------------------------------------------------
\1\The Plant Protection and Quarantine Programs also enforces
regulations promulgated under the Endangered Species Act of 1973
(Public Law 93-205, as amended) which contain additional
prohibitions and restrictions on importation into the United States
of articles subject to this subpart (See 50 CFR Parts 17 and 23).
\2\One or more common names of articles are given in parentheses
after most scientific names (when common names are known) for the
purpose of helping to identify the articles represented by such
scientific names; however, unless otherwise specified, a reference
to a scientific name includes all articles within the category
represented by the scientific name regardless of whether the common
name or names are as comprehensive in scope as the scientific name.
---------------------------------------------------------------------------
Sec. 319.37-1 Definitions.
* * * * *
Prohibited article. Any nursery stock, plant, root, bulb, seed, or
other plant product designated in Sec. 319.37-2(a) or (b), except wood
articles regulated under Sec. 319.40.
* * * * *
6. ``Subpart--Logs from New Zealand,'' Secs. 319.40-1 through
319.40-8, would be revised to read as follows:
Subpart--Logs, Lumber, and Other Unmanufactured Wood Articles
Sec.
319.40-1 Definitions.
319.40-2 General prohibitions and restrictions; relation to other
regulations.
319.40-3 General permits; articles that may be imported without a
specific permit; articles that may be imported without either a
specific permit or an importer document.
319.40-4 Application for a permit to import regulated articles;
issuance and withdrawal of permits.
319.40-6 Universal importation options.
319.40-7 Treatments and safeguards.
319.40-8 Processing at facilities operating under compliance
agreements.
319.40-9 Inspection and other requirements at port of first
arrival.
319.40-10 Costs and charges.
319.40-11 Plant pest risk assessment standards.
Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and
2809; 21 U.S.C. 136 and 136a; 7 CFR 2.17, 2.51, and 371.2(c).
Sec. 319.40-1 Definitions.
Wherever in this subpart the following terms are used they shall be
construed to mean:
Administrator. The Administrator of the Animal and Plant Health
Inspection Service, United States Department of Agriculture, or any
employee of the United States Department of Agriculture to whom
authority to act in his or her stead is delegated.
APHIS. The Animal and Plant Health Inspection Service, United
States Department of Agriculture.
Bark chips. Bark fragments broken or shredded from log or branch
surfaces.
Certificate. A certificate of inspection relating to a regulated
article, which is issued by an official authorized by the national
government of the country in which the regulated article was produced
or grown, which contains a description of the regulated article, which
certifies that the regulated article has been inspected, is believed to
be free of plant pests, and is believed to be eligible for importation
pursuant to the laws and regulations of the United States, and which
may contain any specific additional declarations required under this
subpart.
Compliance agreement. A written agreement between APHIS and a
person engaged in processing, handling, or moving regulated articles,
in which the person agrees to comply with requirements contained in the
agreement.
Departmental permit. A document issued by the Administrator
authorizing the importation of a regulated article for experimental,
scientific, or educational purposes.
Free from rot. No more than two percent by weight of the regulated
articles in a lot show visual evidence of fructification of fungi or
growth of other microorganisms that cause decay and the breakdown of
cell walls in the regulated articles.
General permit. A written authorization contained in Sec. 319.40-3
for any person to import the articles named by the general permit, in
accordance with the requirements specified by the general permit,
without being issued a specific permit.
Humus, compost, and litter. Partially or wholly decayed plant
matter.
Import (imported, importation). To bring or move into the
territorial limits of the United States.
Importer document. A written declaration signed by the importer of
regulated articles, which must accompany the regulated articles at the
time of importation, in which the importer accurately declares
information about the regulated articles required to be disclosed by
Sec. 319.40-2(b).
Inspector. Any individual authorized by the Administrator to
enforce this subpart.
Log. The bole of a tree; trimmed timber that has not been further
sawn.
Loose wood packing material. Excelsior (wood wool), sawdust, and
wood shavings, produced as a result of sawing or shaving wood into
small, slender, and curved pieces.
Lot. All the regulated articles on a single means of conveyance
that are derived from the same species of tree and were subjected to
the same treatments prior to importation, and that are consigned to the
same person.
Lumber. Logs that have been sawn into boards, planks, or structural
members such as beams.
Permit. A specific permit to import a regulated article issued in
accordance with Sec. 319.40-4, or a general permit promulgated in
Sec. 319.40-3.
Plant pest. Any living stage of any insects, mites, nematodes,
slugs, snails, protozoa, or other invertebrate animals, bacteria,
fungi, other parasitic plants or reproductive parts of parasitic
plants, noxious weeds, viruses, or any organism similar to or allied
with any of the foregoing, or any infectious substances, which can
injure or cause disease or damage in any plants, parts of plants, or
any products of plants.
Port of first arrival. The area (such as a seaport, airport, or
land border station) where a person or a means of conveyance first
arrives in the United States, and where inspection of regulated
articles is carried out by inspectors.
Primary processing. Any of the following processes: cleaning
(removal of soil, limbs, and foliage), debarking, rough sawing (bucking
or squaring), rough shaping, spraying with fungicide or insecticide
sprays, and fumigation.
Regulated article. The following articles, if they are unprocessed
or have received only primary processing: logs; lumber; any whole tree;
any cut tree or any portion of a tree, not solely consisting of leaves,
flowers, fruits, buds, or seeds; bark; cork; laths; hog fuel; sawdust;
painted raw wood products; excelsior (wood wool); wood chips; wood
mulch; wood shavings; pickets; stakes; shingles; solid wood packing
materials; humus; compost; and litter.
Sealed container; sealable container. A completely enclosed
container designed for the storage or transportation of cargo, and
constructed of metal or fiberglass, or other rigid material, providing
an enclosure which prevents the entrance or exit of plant pests and is
accessed through doors that can be closed and secured with a lock or
seal. Sealed (sealable) containers are distinct and separable from the
means of conveyance carrying them.
Solid wood packing material. Wood packing materials other than
loose wood packing materials, used or for use with cargo to prevent
damage, including, but not limited to, dunnage, crating, pallets,
packing blocks, drums, cases, and skids.
Specific permit. A written document issued by APHIS to the
applicant in accordance with Sec. 319.40-4 that authorizes importation
of articles in accordance with this subpart and specifies or refers to
the regulations applicable to the particular importation.
Treatment Manual. The Plant Protection and Quarantine Treatment
Manual, which is incorporated by reference at Sec. 300.1 of this
chapter in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Tropical hardwoods. Hardwood timber species which grow only in
tropical climates.
United States. All of the States of the United States, the District
of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, the
Virgin Islands of the United States, and all other territories and
possessions of the United States.
Wood chips. Wood fragments broken or shredded from any wood.
Wood mulch. Bark chips, wood chips, wood shavings, or sawdust
intended for use as a protective or decorative ground cover.
Sec. 319.40-2 General prohibitions and restrictions; relation to other
regulations.
(a) Permit required. Except for regulated articles exempted from
this requirement by paragraph (c) of this section or Sec. 319.40-3, no
regulated article may be imported unless a specific permit has been
issued for importation of the regulated article in accordance with
Sec. 319.40-4, and unless the regulated article meets all other
applicable requirements of this subpart and any requirements specified
by APHIS in the specific permit.
(b) Importer document; documentation of type, quantity, and origin
of regulated articles. Except for regulated articles exempted from this
requirement by paragraph (c) of this section or Sec. 319.40-3, no
regulated article may be imported unless it is accompanied by an
importer document stating the following information. A certificate that
contains this information may be used in lieu of an importer document
at the option of the importer:
(1) The genus and species of the tree from which the regulated
article was derived;
(2) The country, and locality if known, where the tree from which
the regulated article was derived was harvested;
(3) The quantity of the regulated article to be imported;
(4) The use for which the regulated article is imported; and
(5) Any treatments or handling of the regulated article required by
this subpart that were performed prior to arrival at the port of first
arrival.
(c) Regulation of articles imported for propagation or human
consumption. The requirements of this subpart do not apply to regulated
articles that are allowed importation in accordance with Sec. 319.19,
``Subpart--Citrus Canker and Other Citrus Diseases,'' Sec. 319.34,
``Subpart--Bamboo Capable of Propagation,'' or Sec. 319.37, ``Subpart--
Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other Plant Products,''
or to regulated articles imported for human consumption that are
allowed importation in accordance with Sec. 319.56, ``Subpart--Fruits
and Vegetables.''
(d) Regulated articles imported for experimental, scientific or
educational purposes. Any regulated article may be imported without
further restriction under this subpart if:
(1) Imported by the United States Department of Agriculture for
experimental, scientific, or educational purposes;
(2) Imported pursuant to a Departmental permit issued for the
regulated article prior to its importation and kept on file at the port
of first arrival; and
(3) Imported under conditions specified on the Departmental permit
and found by the Administrator to be adequate to prevent the
introduction into the United States of plant pests.
(e) Designation of additional regulated articles. An inspector may
designate any article as a regulated article by giving written notice
of the designation to the owner or person in possession or control of
the article. APHIS will implement rulemaking to add articles designated
as regulated articles to the definition of regulated article in
Sec. 319.40-1 if importation of the article appears to present a
recurring significant risk of introducing plant pests. Inspectors may
designate an article as a regulated article after determining that:
(1) The article was imported in the same container or hold as a
regulated article;
(2) Other articles of the same type imported from the same country
have been found to carry plant pests; or
(3) The article appears to be contaminated with regulated articles
or soil.
Sec. 319.40-3 General permits; articles that may be imported without a
specific permit; articles that may be imported without either a
specific permit or an importer document.
(a) Canada and Mexico. APHIS hereby issues a general permit to
import articles authorized by this paragraph. Regulated articles from
Canada and from states in Mexico adjacent to the United States border,
other than regulated articles of the subfamilies Aurantioideae,
Rutoideae, and Toddalioideae of the botanical family Rutaceae, may be
imported without restriction under this subpart, except that they must
be accompanied by an importer document stating that the regulated
articles are derived from trees harvested in, and have never been moved
outside, Canada or states in Mexico adjacent to the United States
border, and except that they are subject to the inspection and other
requirements in Sec. 319.40-9.
(b) Solid wood packing materials.
(1) Free of bark; used with non-regulated articles. APHIS hereby
issues a general permit to import regulated articles authorized by this
paragraph. Solid wood packing materials that are completely free of
bark and are in actual use at the time of importation as packing
materials for articles which are not regulated articles may be imported
without restriction under this subpart, except that:
(i) The solid wood packing materials are subject to the inspection
and other requirements in Sec. 319.40-9; and
(ii) The solid wood packing materials must be accompanied at the
time of importation by an importer document, stating that the solid
wood packing materials are totally free from bark, and apparently free
from live plant pests.
(2) Free of bark; used with regulated articles. APHIS hereby issues
a general permit to import regulated articles authorized by this
paragraph. Solid wood packing materials that are completely free of
bark and are in actual use at the time of importation as packing
materials for regulated articles may be imported subject to the
inspection and other requirements in Sec. 319.40-9 and without other
restriction under this subpart, if accompanied by an importer document
stating that the solid wood packing materials:
(i) Are totally free from bark, and apparently free from live plant
pests; and
(ii) Have been heat treated, fumigated, or treated with
preservatives in accordance with Sec. 319.40-7, or meet all the
importation and entry conditions required for the regulated article the
solid wood packing material is used to move.
(3) Not free of bark; used with regulated or nonregulated articles.
APHIS hereby issues a general permit to import regulated articles
authorized by this paragraph. Solid wood packing materials that are not
completely free of bark and are in actual use as packing at the time of
importation may be imported subject to the inspection and other
requirements in Sec. 319.40-9, and without other restriction under this
subpart, if accompanied by an importer document stating that the solid
wood packing materials have been heat treated, fumigated, or treated
with preservatives in accordance with Sec. 319.40-7.
(c) Loose wood packing materials. APHIS hereby issues a general
permit to import regulated articles authorized by this paragraph. Loose
wood packing materials (whether in use as packing or imported as cargo)
that are dry may be imported subject to the inspection and other
requirements in Sec. 319.40-9 and without restriction under this
subpart.
(d) Bamboo timber. APHIS hereby issues a general permit to import
regulated articles authorized by this paragraph. Bamboo timber which is
free of leaves and seeds and has been sawn or split lengthwise and
dried may be imported subject to the inspection and other requirements
in Sec. 319.40-9 and without further restriction under this subpart.
(e) Regulated articles the permit process has determined to present
no pest risk. Regulated articles for which a specific permit has been
issued in accordance with Sec. 319.40-4(b)(2)(i) may be imported
without other restriction under this subpart, except that they are
subject to the inspection and other requirements in Sec. 319.40-9.
Sec. 319.40-4 Application for a permit to import regulated articles;
issuance and withdrawal of permits.
(a) Application procedure. A written application for a permit1
must be submitted to the Permit Unit, Plant Protection and Quarantine,
Animal and Plant Health Inspection Service, U.S. Department of
Agriculture, Federal Building, 6505 Belcrest Road, Hyattsville, MD
20782. The completed application must include the following
information:
---------------------------------------------------------------------------
\1\Application forms for permits are available without charge
from the Permit Unit, Plant Protection and Quarantine, Animal and
Plant Health Inspection Service, U.S. Department of Agriculture,
Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782, or
local offices of Plant Protection and Quarantine which are listed in
telephone directories.
---------------------------------------------------------------------------
(1) The specific type of regulated article to be imported,
including the genus and species name of the tree from which the
regulated article was derived;
(2) Country, and locality if known, where the tree from which the
regulated article was derived was harvested;
(3) The quantity of the regulated article to be imported;
(4) A description of any processing, treatment or handling of the
regulated article to be performed prior to importation, including the
location where any processing or treatment was or will be performed and
the names of any chemicals employed in treatments;
(5) A description of any processing, treatment, or handling of the
regulated article intended to be performed following importation,
including the location where any processing or treatment will be
performed and the names of any chemicals employed in treatments;
(6) Whether the regulated article will or will not be imported in a
sealed container or in a hold;
(7) The means of conveyance to be used to import the regulated
article;
(8) The intended port of first arrival in the United States of the
regulated article, and any subsequent ports in the United States at
which regulated articles may be unloaded;
(9) The destination and general intended use of the regulated
article;
(10) The name and address of the applicant and, if the applicant's
address is not within the United States, the name and address of an
agent in the United States whom the applicant names for acceptance of
service of process; and
(11) A statement certifying the applicant as the importer of
record.
(b) Review of application and issuance of permit. After receipt and
review of the application, APHIS shall determine whether it appears
that the regulated article at the time of importation will meet either
the specific importation requirements in Sec. 319.40-5 or the universal
importation requirements in Sec. 319.40-6.
(1) If it appears that the regulated article proposed for
importation will meet the requirements of either Sec. 319.40-5 or
Sec. 319.40-6, a permit stating the applicable conditions for
importation under this subpart shall be issued for the importation of
the regulated article identified in the application.
(2) If it appears that the regulated article proposed for
importation will not meet the requirements of either Sec. 319.40-5 or
Sec. 319.40-6 because these sections do not address the particular
regulated article identified in the application, APHIS shall review the
application by applying the plant pest risk assessment standards
specified in Sec. 319.40-11.
(i) If this review reveals that importation of the regulated
article under a permit and subject to the inspection and other
requirements in Sec. 319.40-9, but without any further conditions, will
not result in the introduction of plant pests into the United States, a
permit for importation of the regulated article shall be issued. The
permit may only be issued in unique and unforeseen circumstances when
the importation of the regulated article is not expected to reoccur.
(ii) If this review reveals that the regulated article may be
imported under conditions that would reduce the plant pest risk to an
insignificant level, APHIS may implement rulemaking to add the
additional conditions to this subpart, and after the regulations are
effective, may issue a permit for importation of the regulated article.
(3) No permit will be issued to an applicant who has had a permit
withdrawn under paragraph (d) of this section during the 12 months
prior to receipt of the permit application by APHIS, unless the
withdrawn permit has been reinstated upon appeal.
(c) Permit does not guarantee eligibility for import. Even if a
permit has been issued for the importation of a regulated article, the
regulated article may be imported only if all applicable requirements
of this subpart are met and only if an inspector at the port of first
arrival determines that no emergency measures pursuant to the Federal
Plant Pest Act or other measures pursuant to the Plant Quarantine Act
are necessary with respect to the regulated article.2
---------------------------------------------------------------------------
\2\Section 105(a) of the Federal Plant Pest Act (7 U.S.C.
150dd(a)) provides, among other things, that the Secretary of
Agriculture may, whenever he deems it necessary as an emergency
measure in order to prevent the dissemination of any plant pest new
to or not theretofore known to be widely prevalent or distributed
within and throughout the United States, seize, quarantine, treat,
apply other remedial measures to, destroy, or dispose of, in such
manner as he deems appropriate, subject to section 105(d) of the
Federal Plant Pest Act (7 U.S.C. 150dd(d)), any product or article,
including any article subject to this subpart, which is moving into
or through the United States, and which he has reason to believe is
infested with any such plant pest at the time of the movement, or
which has moved into the United States, and which he has reason to
believe was infested with any such plant pest at the time of the
movement. Section 10 of the Plant Quarantine Act (7 U.S.C. 164a) and
section 107 of the Federal Plant Pest Act (7 U.S.C. 150ff) also
authorize measures against regulated articles which are not in
compliance with this subpart.
---------------------------------------------------------------------------
(d) Denial and withdrawal of permits. Any permit which has been
issued may be withdrawn by an inspector or the Administrator if he or
she determines that the person to whom the permit was issued has
violated any requirement of this subpart. If the withdrawal is oral,
the decision to withdraw the permit and the reasons for the withdrawal
of the permit shall be confirmed in writing as promptly as
circumstances permit. Any person whose permit has been denied or
withdrawn may appeal the decision in writing to the Administrator
within 10 days after receiving the written notification of the
withdrawal. The appeal shall state all of the facts and reasons upon
which the person relies to show that the permit was wrongfully denied
or withdrawn. The Administrator shall grant or deny the appeal, in
writing, stating the reasons for granting or denying the appeal as
promptly as circumstances permit. If there is a conflict as to any
material fact and the person from whom the permit is withdrawn requests
a hearing, a hearing shall be held to resolve the conflict. Rules of
practice concerning the hearing shall be adopted by the Administrator.
Sec. 319.40-5 Importation and entry requirements for specified
articles.
(a) Bamboo timber. Bamboo timber consisting of whole culms or canes
may be imported into Guam or the Northern Mariana Islands subject to
inspection and other requirements of Sec. 319.40-9. Bamboo timber
consisting of whole culms or canes that are completely dry as evidenced
by lack of moisture in node tissue may be imported into any part of the
United States subject to inspection and other requirements of
Sec. 319.40-9.
(b) Monterey pine logs and lumber from Chile and New Zealand;
Douglas-fir logs and lumber from New Zealand.
(1) Logs. (i) Requirements prior to importation. Monterey or
Radiata pine (Pinus radiata) logs from Chile or New Zealand and
Douglas-fir (Pseudotsuga menziesii) logs from New Zealand that are
accompanied by a certificate stating that the logs meet the
requirements of paragraph (b)(1)(i)(A) through (D) of this section, and
that are consigned to a facility in the United States that operates in
accordance with Sec. 319.40-8, may be imported in accordance with
paragraphs (b)(1)(i)(A) through (b)(1)(iii) of this section.
(A) The logs must be from live healthy trees which are apparently
free of plant pests, plant pest damage, and decay organisms.
(B) The logs must be debarked in accordance with Sec. 319.40-7(b)
prior to fumigation.
(C) The logs and any solid wood packing materials to be used with
the logs during shipment to the United States must be fumigated in
accordance with Sec. 319.40-7(f)(1), within 45 days following the date
the trees are felled and prior to arrival of the logs in the United
States, in the holds or in sealable containers. Fumigation must be
conducted in the same sealable container or hold in which the logs and
solid wood packing materials are exported to the United States.
(D) During shipment to the United States, no other regulated
article is permitted on the means of conveyance with the logs, unless
the logs and the other regulated articles are in separate holds or
separate sealed containers, or, if the logs and other regulated
articles are mixed in a hold or sealed container, the other regulated
articles either have been heat treated with moisture reduction in
accordance with Sec. 319.40-7(d), or have been fumigated in the hold or
sealable container in accordance with paragraph (b)(1)(i)(C) of this
section.
(ii) Requirements upon arrival in the United States. The following
requirements apply upon arrival of the logs in the United States.
(A) The logs must be kept segregated from other regulated articles
from the time of discharge from the means of conveyance until the logs
are completely processed at a facility in the United States that
operates under a compliance agreement in accordance with Sec. 319.40-8.
(B) The logs must be moved from the port of first arrival to the
facility that operates under a compliance agreement in accordance with
Sec. 319.40-8 in as direct a route as reasonably possible.
(iii) Requirements at the processing facility. The logs must be
consigned to a facility operating under a compliance agreement in
accordance with Sec. 319.40-8 that includes the following requirements:
(A) Logs or any products generated from logs, including lumber,
must be heat treated in accordance with Sec. 319.40-7(c), or heat
treated with moisture reduction in accordance with Sec. 319.40-7(d).
(B) The logs, including sawdust, wood chips, or other products
generated from the logs in the United States, must be processed in
accordance with paragraph (b)(1)(iii) of this section within 60 days
from the time the logs are released from the port of first arrival.
(C) Sawdust, wood chips, and waste generated by sawing or
processing the logs must be disposed of by burning, heat treatment in
accordance with Sec. 319.40-7(c) or Sec. 319.40-7(d), or other
processing that will destroy any plant pests associated with the
sawdust, wood chips, and waste. Composting and use of the sawdust, wood
chips, and waste as mulch are prohibited unless composting and use as
mulch are preceded by fumigation in accordance with Sec. 319.40-7(f)(3)
or heat treatment in accordance with Sec. 319.40-7(c) or Sec. 319.40-
7(d). Wood chips, sawdust, and waste may be moved in enclosed trucks
for processing at another facility operating under a compliance
agreement in accordance with Sec. 319.40-8.
(2) Raw lumber. Raw lumber, including solid wood packing materials
imported as cargo, from Chile or New Zealand derived from Monterey or
Radiata pine (Pinus radiata) logs and raw lumber from New Zealand
derived from Douglas-fir (Pseudotsuga menziesii) logs may be imported
in accordance with paragraphs (b)(2)(i) and (ii) of this section.
(i) During shipment to the United States, no other regulated
article (other than solid wood packing materials) is permitted on the
means of conveyance with the raw lumber, unless the raw lumber and the
other regulated articles are in separate holds or separate sealed
containers; Except for mixed shipments of logs and raw lumber fumigated
in accordance with Sec. 319.40-7(f)(2) and moved in accordance with
paragraph (b)(1)(i)(D) of this section. Raw lumber on the vessel's deck
must be in a sealed container.
(ii) The raw lumber must be consigned to a facility operating under
a compliance agreement in accordance with Sec. 319.40-8 that requires
the raw lumber to be heat treated in accordance with Sec. 319.40-7(c)
or heat treated with moisture reduction in accordance with Sec. 319.40-
7(d) before any cutting, planing, or sawing of the raw lumber, and
within 30 days from the time the lumber is released from the port of
first arrival.
(c) Tropical hardwoods. (1) Debarked. Tropical hardwood logs and
lumber that have been debarked in accordance with Sec. 319.40-7(b) may
be imported subject to the inspection and other requirements of
Sec. 319.40-9.
(2) Not debarked. Tropical hardwood logs that have not been
debarked may be imported if fumigated in accordance with Sec. 319.40-
7(f)(1) prior to arrival in the United States.
(3) Not debarked; small lots. Tropical hardwood logs that have not
been debarked may be imported into the United States, other than into
Hawaii, Puerto Rico, or the Virgin Islands of the United States, if
imported in a lot of 15 or fewer logs and subject to the inspection and
other requirements of Sec. 319.40-9.
(d) Temperate hardwoods. Temperate hardwood logs and lumber (with
or without bark) from all places except countries in Asia that are
wholly or in part east of 60 deg. East Longitude and north of the
Tropic of Cancer may be imported if fumigated in accordance with
Sec. 319.40-7(f) prior to arrival in the United States and subject to
the inspection and other requirements of Sec. 319.40-9.
(e) Regulated articles associated with exclusively tropical climate
pests. Regulated articles that have been identified by a plant pest
risk assessment as associated solely with plant pests that can
successfully become established only in tropical or subtropical
climates may be imported if:
(1) The regulated article is imported only to a destination in the
continental United States; and,
(2) the regulated article is not imported into any tropical or
subtropical areas of the United States specified in the permit.
Sec. 319.40-6 Universal importation options.
(a) Logs. Logs may be imported if prior to importation the logs
have been debarked in accordance with Sec. 319.40-7(b) and heat treated
in accordance with Sec. 319.40-7(c). During the entire interval between
treatment and export the logs must be stored and handled in a manner
which excludes any access to the logs by plant pests.
(b) Lumber--(1) Heat treated or heat treated with moisture
reduction lumber. Lumber that prior to importation has been heat
treated in accordance with Sec. 319.40-7(c), or heat treated with
moisture reduction in accordance with Sec. 319.40-7(d), may be imported
in accordance with paragraphs (b)(1) (i) and (ii) of this section.
(i) During shipment to the United States, no other regulated
article (other than solid wood packing materials) is permitted on the
means of conveyance with the lumber, unless the lumber and the other
regulated articles are in separate holds or separate sealed containers,
or, if the lumber and other regulated articles are mixed in a hold or
sealed container, all the regulated articles have been heat treated in
accordance with Sec. 319.40-7(c), or heat treated with moisture
reduction in accordance with Sec. 319.40-7(d). Lumber on the vessel's
deck must be in a sealed container, unless it has been heat treated
with moisture reduction in accordance with Sec. 319.40-7(d).
(ii) If lumber has been heat treated in accordance with
Sec. 319.40-7(c), that fact must be stated on the importer document, or
by a permanent marking on each piece of lumber in the form of the
letters ``HT'' or the words ``Heat Treated.'' If lumber has been heat
treated with moisture reduction in accordance with Sec. 319.40-7(d),
that fact must be stated on the importer document, or by a permanent
marking, on each piece of lumber or on the cover of bundles of lumber,
in the form of the letters ``KD'' or the words ``Kiln Dried.''
(2) Raw lumber. Raw lumber, including solid wood packing materials
imported as cargo, from all places except countries in Asia that are
wholly or in part east of 60 deg. East Longitude and north of the
Tropic of Cancer may be imported in accordance with paragraphs (b)(2)
(i) and (ii) of this section.
(i) During shipment to the United States, no other regulated
article (other than solid wood packing materials) is permitted on the
means of conveyance with the raw lumber, unless the raw lumber and the
other regulated articles are in separate holds or separate sealed
containers. Raw lumber on the vessel's deck must be in a sealed
container.
(ii) The raw lumber must be consigned to a facility operating under
a compliance agreement in accordance with Sec. 319.40-8 that requires
the raw lumber to be heat treated in accordance with Sec. 319.40-7(c)
or Sec. 319.40-7(d), within 30 days from the time the lumber is
released from the port of first arrival. If the raw lumber is to be
cut, planed, or sawed, the heat treatment must be completed before any
cutting, planing, or sawing of the raw lumber.
(c) Wood chips and bark chips. Wood chips and bark chips from any
place except countries in Asia that are wholly or in part east of
60 deg. East Longitude and north of the Tropic of Cancer may be
imported in accordance with this paragraph.
(1) The wood chips or bark chips must be accompanied by an importer
document that states that the wood chips or bark chips were either:
(i) Derived from live, healthy, plantation-grown trees in tropical
areas; or
(ii) Fumigated with methyl bromide in accordance with Sec. 319.40-
7(f)(3) or heat treated in accordance with Sec. 319.40-7(c) or
Sec. 319.40-7(d).
(2) During shipment to the United States, no other regulated
articles (other than solid wood packing materials) are permitted in the
holds or sealed containers carrying the wood chips or bark chips. Wood
chips or bark chips on the vessel's deck must be in a sealed container.
(3) The wood chips or bark chips must be free from rot at the time
of importation, unless accompanied by an importer document stating that
the entire lot was fumigated with methyl bromide in accordance with
Sec. 319.40-7(f)(3) or heat treated in accordance with Sec. 319.40-7(c)
or Sec. 319.40-7(d).
(4) Wood chips or bark chips imported in accordance with this
paragraph must be consigned to a facility operating under a compliance
agreement in accordance with Sec. 319.40-8. The wood chips or bark
chips must be burned, heat treated in accordance with Sec. 319.40-7(c)
or Sec. 319.40-7(d), or otherwise processed in a manner that will
destroy any plant pests associated with the wood chips or bark chips,
within 30 days of arrival at the facility. If the wood chips or bark
chips are to be used for mulching or composting, they must first be
fumigated in accordance with Sec. 319.40-7(f)(3) or heat treated in
accordance with Sec. 319.40-7(c) or Sec. 319.40-7(d).
(d) Wood mulch, humus, compost, and litter. Wood mulch, humus,
compost, and litter may be imported if accompanied by an importer
document stating that the wood mulch, humus, compost, or litter was
fumigated in accordance with Sec. 319.40-7(f)(3) or heat treated in
accordance with Sec. 319.40-7(c) or Sec. 319.40-7(d).
(e) Cork and bark. Cork and cork bark, cinnamon bark, and other
bark to be used for food, manufacture of medicine, or chemical
extraction may be imported if free from rot at the time of importation
and subject to the inspection and other requirements of Sec. 319.40-9.
Sec. 319.40-7 Treatments and safeguards.
(a) Certification of treatments or safeguards. If APHIS determines
that a document required for the importation of regulated articles is
inaccurate, the regulated articles which are the subject of the
certificate or other document shall be refused entry into the United
States. In addition, APHIS may determine not to accept any further
certificates for the importation of regulated articles in accordance
with this subpart from a country in which an inaccurate certificate is
issued, and APHIS may determine not to allow the importation of any or
all regulated articles from any such country, until corrective action
acceptable to APHIS establishes that certificates issued in that
country will be accurate.
(b) Debarking. Except for raw lumber, no more than 2 percent of the
surface of all regulated articles in a lot may retain bark, with no
single regulated article retaining bark on more than 5 percent of its
surface. For raw lumber, debarking must remove 100 percent of the bark.
(c) Heat treatment. Heat treatment must be performed only at a
facility where APHIS or an inspector authorized by the national
government of the country in which the facility is located has
inspected the facility and determined that its operation complies with
the standards of this paragraph. Heat treatment procedures may employ
steam, hot water, kilns, exposure to microwave energy, or any other
method (e.g., the hot water and steam techniques used in veneer
production) that raises the temperature of the center of each treated
regulated article to at least 56 deg.C and maintains the regulated
article at that center temperature for at least 30 minutes. For
regulated articles heat treated prior to arrival in the United States,
during the entire interval between treatment and export the regulated
article must be stored, handled, or safeguarded in a manner which
excludes any reinfestation of the regulated article by plant pests.
(d) Heat treatment with moisture reduction. Heat treatment with
moisture reduction may employ dry heat, exposure to microwave energy,
or any other method that raises the temperature of the center of each
treated regulated article to at least 56 deg.C, maintains the
regulated articles at that center temperature for at least 30 minutes,
and reduces the moisture content of the regulated article to 20 percent
or less as measured by an electrical conductivity meter. For regulated
articles heat treated with moisture reduction prior to arrival in the
United States, during the entire interval between treatment and export
the regulated article must be stored, handled, or safeguarded in a
manner which excludes any reinfestation of the regulated article by
plant pests.
(e) Surface pesticide treatments. All United States Environmental
Protection Agency registered surface pesticide treatments are
authorized for regulated articles imported in accordance with this
subpart. Surface pesticide treatments must be conducted in accordance
with label directions approved by the United States Environmental
Protection Agency. When used on heat treated logs, a surface pesticide
treatment must be first applied within 48 hours following heat
treatment. The surface pesticide treatment must be repeated at least
every 30 days during storage of the regulated article, with the final
treatment occurring no more than 30 days prior to departure of the
means of conveyance that carries the regulated articles to the United
States.
(f) Methyl bromide fumigation. The following minimum standards for
methyl bromide fumigation treatment are authorized for the regulated
articles listed in paragraphs (f)(1) through (f)(3) of this section.
Any method of fumigation that meets or exceeds the specified
temperature/time/concentration products is acceptable.
(1) Logs--(i) T-312 Alternative. The entire log and the ambient air
must be at a temperature of 5 deg.C or above throughout fumigation.
The fumigation must be conducted using schedule T-312 contained in the
Treatment Manual. In lieu of the schedule T-312 methyl bromide
concentration, fumigation may be conducted with an initial methyl
bromide concentration of at least 240 g/m3 with exposure and
concentration levels adequate to provide a concentration-time product
of at least 17,280 gram-hours calculated on the initial methyl bromide
concentration.
(ii) T-404 Alternative. The entire log and the ambient air must be
at a temperature of 5 deg.C or above throughout fumigation. The
fumigation must be conducted using schedule T-404 contained in the
Treatment Manual. In lieu of the schedule T-404 methyl bromide
concentration, fumigation may be conducted with an initial methyl
bromide concentration of at least 120 g/m3 with exposure and
concentration levels adequate to provide a concentration-time product
of at least 1920 gram-hours calculated on the initial methyl bromide
concentration.
(2) Lumber. The lumber and the ambient air must be at a temperature
of 5 deg.C or above throughout fumigation. The fumigation must be
conducted using schedule T-404 contained in the Treatment Manual. In
lieu of the schedule T-404 methyl bromide concentration, fumigation may
be conducted with an initial methyl bromide concentration of at least
120 g/m3 with exposure and concentration levels adequate to
provide a concentration-time product of at least 1920 gram-hours
calculated on the initial methyl bromide concentration.
(3) Regulated articles other than logs or lumber. (i) If the
ambient air and the regulated articles other than logs or lumber are at
a temperature of 21 deg.C or above throughout fumigation, the
fumigation must be conducted using schedule T-404 contained in the
Treatment Manual. In lieu of the schedule T-404 methyl bromide
concentration, fumigation may be conducted with an initial methyl
bromide concentration of at least 48 g/m3 with exposure and
concentration levels adequate to provide a concentration-time product
of at least 760 gram-hours calculated on the initial methyl bromide
concentration.
(ii) If the ambient air and the regulated articles other than logs
or lumber are at a temperature of 4.5-20.5 deg.C throughout
fumigation, the fumigation must be conducted using schedule T-404
contained in the Treatment Manual. In lieu of the schedule T-404 methyl
bromide concentration, fumigation may be conducted with an initial
methyl bromide concentration of at least 120 g/m3 with exposure
and concentration levels adequate to provide a concentration-time
product of at least 1920 gram-hours calculated on the initial methyl
bromide concentration.
(g) Preservatives. All preservative treatments that use a
preservative product that is registered by the United States
Environmental Protection Agency are authorized for treatment of
regulated articles imported in accordance with this subpart.
Preservative treatments must be performed in accordance with label
directions approved by the United States Environmental Protection
Agency.
Sec. 319.40-8 Processing at facilities operating under compliance
agreements.
(a) Any person who operates a facility in which imported regulated
articles are processed may enter into a compliance agreement to
facilitate the importation of regulated articles under this subpart.
The compliance agreement shall specify the requirements necessary to
prevent spread of plant pests from the facility, requirements to ensure
the processing method effectively destroys plant pests, and the
requirements for the application of chemical materials in accordance
with the Treatment Manual. The compliance agreement shall also state
that inspectors must be allowed access to the facility to monitor
compliance with the requirements of the compliance agreement and of
this subpart. Compliance agreement forms may be obtained from the
Administrator or an inspector.
(b) Any compliance agreement may be canceled by the inspector who
is supervising its enforcement, orally or in writing, whenever the
inspector finds that the person who entered into the compliance
agreement has failed to comply with the conditions of the compliance
agreement. If the cancellation is oral, the decision to cancel the
compliance agreement and the reasons for cancellation of the compliance
agreement shall be confirmed in writing, as promptly as circumstances
permit. Any person whose compliance agreement has been canceled may
appeal the decision in writing to the Administrator within 10 days
after receiving written notification of the cancellation. The appeal
shall state all of the facts and reasons upon which the person relies
to show that the compliance agreement was wrongfully canceled. The
Administrator shall grant or deny the appeal, in writing, stating the
reasons for granting or denying the appeal, as promptly as
circumstances permit. If there is a conflict as to any material fact
and the person whose compliance agreement has been canceled requests a
hearing, a hearing shall be held to resolve the conflict. Rules of
practice concerning the hearing will be adopted by the Administrator.
Sec. 319.40-9 Inspection and other requirements at port of first
arrival.
(a) Procedures for all regulated articles. (1) All imported
regulated articles shall be inspected at the port of first arrival. If
the inspector finds signs of plant pests on or in the regulated
article, or finds that the regulated article may have been associated
with other articles infested with plant pests, the regulated article
shall be cleaned or treated as required by an inspector, and the
regulated article and any products of the regulated article shall also
be subject to reinspection, cleaning, and treatment at the option of an
inspector at any time and place before all applicable requirements of
this subpart have been accomplished.
(2) Regulated articles shall be assembled for inspection at the
port of first arrival, or at any other place prescribed by an
inspector, at a place and time and in a manner designated by an
inspector.
(3) If an inspector finds that an imported regulated article is so
infested with a plant pest that, in the judgment of the inspector, the
regulated article cannot be cleaned or treated, or contains soil or
other prohibited contaminants, the entire lot may be refused entry into
the United States.
(4) No person shall move any imported regulated article from the
port of first arrival unless and until an inspector notifies the
person, in writing or through an electronic database, that the
regulated article:
(i) Is in compliance with all applicable regulations and has been
inspected and found to be apparently free of plant pests;\3\ or,
---------------------------------------------------------------------------
\3\Certain regulated articles may also be subject to
Sec. 319.56, or to Noxious Weed Act regulations under part 360 of
this chapter, or to Endangered Species Act regulations under parts
355 and 356 of this chapter and 50 CFR parts 17 and 23.
---------------------------------------------------------------------------
(ii) Has been inspected and the inspector requires reinspection,
cleaning, or treatment of the regulated article at a place other than
the port of first arrival.
(b) Notice of arrival; visual examination of regulated articles at
port of first arrival.
(1) At least 7 days prior to the expected date of arrival in the
United States of a shipment of regulated articles imported in
accordance with this subpart, the permittee or his or her agent must
notify the APHIS Officer in Charge at the port of arrival of the date
of expected arrival. The address and telephone number of the APHIS
Officer in Charge will be specified in any specific permit issued by
APHIS.\4\ This notice may be in writing or by telephone. The notice
must include the number of any specific permit issued for the regulated
articles; the name, if any, of the means of conveyance carrying the
regulated articles; the type and quantity of the regulated articles;
the expected date of arrival; the country of origin of the regulated
articles; the name and the number, if any, of the dock where the
regulated articles are to be unloaded; and the name of the importer or
broker at the port of arrival.
---------------------------------------------------------------------------
\4\A list of APHIS Officers in Charge may be obtained from the
Administrator, APHIS, c/o PPQ, Port Operations, room 635, Federal
Building, 6505 Belcrest Road, Hyattsville, MD 20782.
---------------------------------------------------------------------------
(2) Imported regulated articles which have been debarked in
accordance with Sec. 319.40-7(b) and can be safely and practically
inspected will be visually examined for plant pests by an inspector at
the port of first arrival. If plant pests are found on or in the
regulated articles or if the regulated article cannot be safely and
practically inspected, the regulated articles must be treated in
accordance with the Treatment Manual.
(c) Marking and identity of regulated articles. Any regulated
article, at the time of importation shall bear on the outer container
(if in a container), on the regulated article (if not in a container),
or on a document accompanying the regulated article the following
information:
(1) General nature and quantity of the regulated articles;
(2) Country and locality, if known, where the tree from which the
regulated article was derived was grown;
(3) Name and address of the person importing the regulated article;
(4) Name and address of consignee of the regulated article;
(5) Identifying shipper's mark and number; and
(6) Number of the permit (if one was issued) authorizing the
importation of the regulated article into the United States.
(d) Sampling for plant pests at port of first arrival. Any imported
regulated article may be sampled for plant pests at the port of first
arrival. If an inspector finds it necessary to order treatment of a
regulated article at the port of first arrival, any sampling will be
done prior to treatment.
Sec. 319.40-10 Costs and charges.
The services of an inspector during regularly assigned hours of
duty and at the usual places of duty shall be furnished without cost to
the importer.\5\ The inspector may require the importer to furnish any
labor, chemicals, packing materials, or other supplies required in
handling regulated articles under this subpart. APHIS will not be
responsible for any costs or charges, other than those identified in
this section.
---------------------------------------------------------------------------
\5\Provisions relating to costs for other services of an
inspector are contained in part 354 of this chapter.
---------------------------------------------------------------------------
Sec. 319.40-11 Plant pest risk assessment standards.
When evaluating a request to import a regulated article not allowed
importation under this subpart, or a request to import a regulated
article under conditions other than those prescribed by this subpart,
APHIS will conduct the following analysis to determine the plant pest
risks associated with each requested importation in order to determine
whether or not to issue a permit under this subpart or to propose
regulations establishing conditions for the importation into the United
States of the regulated article.
(a) Collecting commodity information.
(1) APHIS will evaluate the application for information describing
the regulated article and the origin, processing, treatment, and
handling of the regulated article; and
(2) APHIS will evaluate history of past plant pest interceptions or
introductions (including data from foreign countries) associated with
the regulated article.
(b) Cataloging quarantine pests. For the regulated article
specified in an application, APHIS will determine what plant pests or
potential plant pests are associated with the type of tree from which
the regulated article was derived, in the country and locality from
which the regulated article is to be exported. A plant pest that meets
one of the following criteria is a quarantine pest and will be further
evaluated in accordance with paragraph (c) of this section:
(1) Non-indigenous plant pest not present in the United States;
(2) Non-indigenous plant pest, present in the United States and
capable of further dissemination in the United States;
(3) Non-indigenous plant pest that is present in the United States
and has reached probable limits of its ecological range, but differs
genetically from the plant pest in the United States in a way that
demonstrates a potential for greater damage potential in the United
States;
(4) Native species of the United States that has reached probable
limits of its ecological range, but differs genetically from the plant
pest in the United States in a way that demonstrates a potential for
greater damage potential in the United States; or
(5) Non-indigenous or native plant pest that may be able to vector
another plant pest that meets one of the criteria in paragraphs (b) (1)
through (4) of this section.
(c) Determining which quarantine pests to assess.
(1) APHIS will divide quarantine pests identified in paragraph (b)
of this section into groups depending upon where the plant pest is most
likely to be found. The plant pests would be grouped as follows:
(i) Plant pests found on the bark;
(ii) Plant pests found under the bark; and
(iii) Plant pests found in the wood.
(2) APHIS will subdivide each of the groups in paragraph (c)(1) of
this section into associated taxa.
(3) APHIS will rank the plant pests in each group in paragraph
(c)(2) of this section according to plant pest risk, based on the
available biological information and demonstrated plant pest
importance.
(4) APHIS will identify any plant pests ranked in paragraph (c)(3)
of this section for which plant pest risk assessments have previously
been performed in accordance with this section. APHIS will conduct
individual plant pest risk assessments for the remaining plant pests,
starting with the highest ranked plant pest(s) in each group.
(5) The number of plant pests in each group to be evaluated through
individual plant pest risk assessment will be based on biological
similarities of members of the group as they relate to measures taken
in connection with the importation of the regulated article to mitigate
the plant pest risk associated with the regulated article. For example,
if the plant pest risk assessment for the highest ranked plant pest
indicates a need for a mitigation measure that would result in the same
reduction of risk for other plant pests ranked in the group, the other
members need not be subjected to individual plant pest risk assessment.
(d) Conducting individual plant pest risk assessments. APHIS will
evaluate each of the plant pests identified in paragraph (c)(4) of this
section by:
(1) Estimation of the probability of the plant pest being on, with,
or in the regulated article at the time of importation;
(2) Estimation of the probability of the plant pest surviving in
transit on the regulated article and entering the United States
undetected;
(3) Estimation of the probability of the plant pest colonizing once
it has entered into the United States;
(4) Estimation of the probability of the plant pest spreading
beyond any colonized area; and
(5) Estimation of the damage to plants that could be expected upon
introduction and dissemination within the United States of the plant
pest.
(e) Estimating unmitigated overall plant pest risk. APHIS will
develop an estimation of the overall plant pest risk associated with
importing the regulated article based on compilation of individual
plant pest risk assessments performed in accordance with paragraph (d)
of this section.
(f) Evaluating available requirements to determine whether they
would allow safe importation of the regulated article. The requirements
of this subpart, and any other requirements relevant to the regulated
article and plant pests involved, will be compared with the individual
plant pest risk assessments in order to determine whether particular
conditions on the importation of the regulated article would reduce the
plant pest risk to an insignificant level. If APHIS determines that the
imposition of particular conditions on the importation of the regulated
article could reduce the plant pest risk to an insignificant level, and
determines that sufficient APHIS resources are available to implement
or ensure implementation of the conditions, APHIS will implement
rulemaking to allow importation of the requested regulated article
under the conditions identified by the plant pest risk assessment
process.
Subpart--Packing Materials
Sec. 319.69 [Amended]
9. The introductory language to Sec. 319.69 would be removed.
10. In Sec. 319.69, paragraph (a), the phrase ``On and after July
1, 1933, the'' would be removed and the word ``The'' would be added in
its place.
11. In Sec. 319.69, paragraph (b), the phrase ``On and after June
8, 1953, the'' would be removed and the word ``The'' would be added in
its place.
12. In Sec. 319.69, paragraph (b)(3) would be removed, and
paragraphs (b)(4) and (b)(5) would be redesignated as paragraphs (b)(3)
and (b)(4) respectively.
13. In Sec. 319.69a, paragraph (a) would be amended by removing the
phrase ``(b)(1), (3), and (4)'' and adding the phrase ``(b)(1) and
(3)'' in its place.
Done in Washington, DC, this 13th day of January 1994.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Inspection Services.
[FR Doc. 94-1230 Filed 1-19-94; 8:45 am]
BILLING CODE 3410-34-P
