E6-11431. Gypsy Moth; Regulated Articles

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending the gypsy moth regulations by removing restrictions on the interstate movement of wood chips, which do not pose a risk of containing gypsy moth egg masses, and by adding restrictions on the movement and importation of bark and bark products, which pose a risk of containing gypsy moth egg masses. In addition, we are extending by 2 months the period during which regulated articles originating outside of any generally infested area must be safeguarded from infestation in order to be eligible for interstate movement directly through any generally infested area without a certificate or permit. These changes are necessary to update the provisions in the regulations to ensure consistent actions by the Animal and Plant Health Inspection Service, our cooperators, and industry in order to limit the artificial spread of gypsy moth.

DATES:

Effective Date: August 18, 2006.

FOR FURTHER INFORMATION CONTACT:

Dr. Weyman Fussell, Program Manager, Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1236; [phone].

SUPPLEMENTARY INFORMATION:

Background

The gypsy moth, Lymantria dispar (Linnaeus), is an introduced, highly destructive pest of trees that, during its caterpillar stage, poses a serious threat to hundreds of species of trees and shrubs. A female gypsy moth lays a cluster of eggs (called an egg mass) on and near trees. Up to a thousand caterpillars can hatch from a single egg mass. The caterpillars feed on nearby trees and shrubs, removing much, if not all, foliage. This defoliation, when combined with other forms of stress such as drought and soil compaction, may ultimately result in the death of the tree.

On May 23, 2003, we published in the Federal Register (68 FR 28157-28161, Docket No. 00-067-1) a proposed rule to amend the regulations in “Subpart-Gypsy Moth” (7 CFR 301.45 through 301.45-12) and “Subpart-Gypsy Moth Host Material from Canada” (7 CFR 319.77-1 through 319.77-5) by removing restrictions on the interstate movement of wood chips, and by adding restrictions on the movement and importation of bark and bark products. In addition, we proposed to extend by 2 months the period during which regulated articles originating outside of any generally infested area must be safeguarded from infestation in order to be eligible for interstate movement directly through any generally infested area without a certificate or permit.

We solicited comments on our proposal for 60 days ending on July 22, 2003. We received seven comments by that date, from representatives of Federal agencies, industry groups, and a foreign plant protection organization. Six of the commenters conditionally supported the proposed rule. One commenter perceived the proposed changes as a lessening of restrictions. We have carefully considered these comments. They are discussed below.

Four commenters were concerned that our use of the rather general term “bark and bark products” would result in restrictions being placed on bagged mulch and soils containing composted bark. These commenters suggested that we amend the rule by specifying in a definition for “bark and bark products” that soils containing bark composts and bagged mulch are excluded.

Soil is not listed as a regulated article for gypsy moth, so there are no existing requirements in the gypsy moth regulations regarding its movement. However, bark will be a regulated article as a result of this final rule. If soil or bagged mulch contains bark, then the mixture would necessarily be subject to regulation. The regulations in § 301.45-5(a)(4) provide that a certificate may be issued for the interstate movement of a regulated article if it has, among other things, been handled in such a manner that no infestation would be transmitted thereby, as determined by an inspector. One means by which bark may qualify for a certificate under these provisions is composting according to the method described in Appendix N of the Gypsy Moth Program Manual.^[1]

In response to the commenters' suggestion, we are adding definitions for bark and bark products to § 301.45-1, specifically, we have defined bark as “The tough outer covering of the woody stems of trees, shrubs, and other woody plants as distinguished from the cambium and inner wood,” and bark products as “Products containing pieces of bark including bark chips, bark nuggets, bark mulch, and bark compost.”

Another commenter stated that processed bark and bark products are not a source of gypsy moth infestations and that they should be excluded from the proposed rule or that their inclusion should be delayed until it can be scientifically established that processed bark and bark products present a risk of gypsy moth infestation.

Currently, we do not have a protocol that specifies processing methods under which the potential risks posed by bark would be mitigated. The Animal and Plant Health Inspection Service's (APHIS) Center for Plant Health Science and Technology (CPHST) is addressing this issue in order to develop a scientifically validated protocol for processed bark. There is, however, ample evidence that gypsy moth egg masses are resilient and tolerate rough handling and climatic extremes while maintaining viability; likewise, gypsy moth eggs deposited on the bark of trees remain viable after typical processing to render the bark as chips or nuggets. Until a validated protocol is developed, we believe that it is necessary to apply the measures described in this rule to processed bark and bark products in order to provide the necessary safeguarding measures to limit the artificial spread of gypsy moth in the United States.

One commenter suggested that the change to the regulations concerning bark and bark products should not include soils containing softwood composted bark (e.g. white cedar, pine, hemlock) since they are not a host for gypsy moth.

While it is true that pine is not known to be a food source for European gypsy moth, it is a food source for the Asian gypsy moth. CPHST has made scientific observations and collected data supporting this conclusion. Through careful study and analysis, it was recognized that, although pine is not a food source host for the European gypsy moth, pine can, in certain circumstances, be an oviposition site.^[2] However, as stated previously, if soil contains bark, then the mixture is subject to regulation.

One commenter suggested we leave the restriction on wood chips in place, as well as impose restrictions on the movement of bark and bark products. The commenter stated that since gypsy moths favor placing their eggs in protected areas, piles of wood chips, which APHIS permits to contain up to 2 percent bark, may harbor gypsy moth egg masses which could lead to gypsy moth infestation.

The gypsy moth regulations do not allow wood chips to contain up to 2 percent bark. Our regulations concerning the importation of unmanufactured wood, found at 7 CFR 319.40 through 319.40-11, provide that logs may retain bark on up to 2 percent of surface area. This should not be construed to mean that bark present in wood chips is permitted under the gypsy moth regulations. For the purposes of this rule, bark is considered a contaminant in wood chips and regulated accordingly.

In addition, wood chips would rarely, if ever, be expected to be an oviposition site for gypsy moth. While it is true that gypsy moth favor placing their eggs in protected areas, they do not dig into sites such as piles of wood chips. When the larva is ready to enter the pupal phase, it will stay in or near a preferred food source, such as a tree. In general, when a female gypsy moth emerges from its pupal casing, it will mate and deposit eggs within 1 meter of that pupation site, which will then become an oviposition site for the emerging female gypsy moth. Piles of wood chips are not environments larvae would typically pick for pupation because of a lack of feeding sources as well as the availability of more preferred food source sites.

Another commenter stated that the inspection of bark and bark products in bulk for obtaining phytosanitary certificates is unfeasible and that treatment is prohibitively expensive. The commenter also questioned whether sawmills and lumber mills in a Canadian noninfested area could or would be able to provide certification of origin for bark or bark products imported from Canada. This commenter additionally stated that APHIS needs to focus on shipments of bark products entering at the Canadian border as a potential pathway for pest infestation.

Under the regulations in § 319.77-4, as amended by this rule, bark and bark products imported from Canada that originate in a Canadian infested area must be accompanied by an officially endorsed Canadian phytosanitary certificate that includes an additional declaration confirming that they have been inspected and found free of gypsy moth or treated for gypsy moth in accordance with the regulations in 7 CFR part 305, or they must be consigned to a specified U.S. processing plant or mill operating under a compliance agreement with APHIS for specified handling or processing.

If bark or bark products originate in a Canadian noninfested area, they must be accompanied by a certification of origin stating that they were produced in an area of Canada where gypsy moth is not known to occur. Under the regulations in § 301.45-4, sawmills, lumber mills, and any other person engaged in growing, handling or moving regulated articles in Canadian noninfested areas can enter into a written compliance agreement with APHIS in which the person agrees to comply with the provisions of this part. An inspector, or a qualified certified applicator or any other person operating in accordance with a compliance agreement can issue the certification of origin, affirming that a specified regulated article is eligible for interstate movement in accordance with this subpart. We believe that the measures described in this rule with regard to importation and movement of bark and bark products at the Canadian border provide the necessary safeguarding measures to limit the artificial spread of gypsy moth in the United States.

In a collateral issue, one commenter raised concerns about the current entry requirements in APHIS' Canadian Border Manual with respect to stone and quarry products. The commenter requested that we amend the Canadian Border Manual to remove the requirement for phytosanitary certificates for stone and quarry products moving from infested to uninfested areas, as U.S. authorities at the border ask for certifications based on requirements found in the Canadian Border Manual, but there are no such certificate requirements extant in the regulations.

Quarry products fall outside the scope of this rulemaking. However, this issue will be examined and addressed as appropriate.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the change discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In this document, we are amending the gypsy moth regulations by removing restrictions on the interstate movement of wood chips, which do not pose a risk of containing gypsy moth egg masses, and by adding restrictions on the movement and importation of bark and bark products, which pose a risk of containing gypsy moth egg masses. In addition, we are extending by 2 months the period during which regulated articles originating outside of any generally infested area must be safeguarded from infestation in order to be eligible for interstate movement directly through any generally infested area without a certificate or permit. These changes are necessary to update the provisions in the regulations to ensure consistent actions by APHIS, our cooperators, and industry in order to limit the artificial spread of gypsy moth.

The U.S. forest industry employs close to 1.4 million people and contributes approximately $200 billion annually to the national economy.^[3] Although the United States is a net importer of wood and wood products, wood exports totaled $5.24 billion in 2001. The gypsy moth is a pest of concern for the U.S. forest industry. Defoliation of trees by gypsy moths often results in the death of the trees, which leads to economic loss, changes in ecosystems and wildlife habitat, and disturbed water flow and water quality. Economic costs to the U.S. forest industry, in addition to the costs of timber losses and pest control, can also arise from trade reductions as importing countries impose protective restrictions on access to their markets for wood products. Gypsy moths are already causing losses in quarantined areas in the United States. Annual losses attributable to gypsy moths are estimated to be about $22 million.^[4] Thus, any spread of gypsy moth to areas currently free from that pest could have a negative economic and environmental impact. The changes in this final rule are necessary to limit the artificial spread of the gypsy moth.

Interstate Movement Restrictions

The changes to the domestic gypsy moth regulations will affect sawmills, pulp mills, and nurseries and garden centers that are involved in the interstate movement of wood chips and bark and bark products from gypsy moth generally infested areas. Restrictions will no longer apply to the movement of wood chips, but entities involved in the interstate movement of bark and bark products will be required to have each shipment of bark or bark products inspected or treated under the direction of an inspector, or self-inspect and certify each shipment in accordance with the Gypsy Moth Program Manual, no more than 5 days prior to moving it from a generally infested area to an area that is not generally infested. While self-inspection minimizes regulatory costs and time delay costs, other costs associated with time, salary, and recordkeeping could be incurred.

The Small Business Administration (SBA) has established size standards based on the North American Industry Classification System (NAICS) to determine and to classify which economic entities can be considered small entities. The SBA classifies sawmills as small if they employ 500 or fewer employees. Pulp mills are considered small if they employ 750 or fewer employees. Nursery and garden centers are considered small if their annual sales are less than $6 million. In 1997, the most recent year for which data are available, there were 1,678 sawmills (NAICS code 321113) in quarantined States,^[5] 9 pulp mills (NAICS code 322110) in generally infested areas, and 3,446 nursery and garden centers (NAICS code 444220) in generally infested areas of the United States. Approximately 93 percent of those sawmills, 95 percent of those nursery and garden centers, and 93 percent of those pulp mills are considered to be small entities under the SBA's standards.^[6]

In 1997, sawmills in quarantined States produced 2,896,170 tons of primary bark residue (see table 1), which was approximately 12 percent of the national total.^[7] However, these data do not include the bark residue produced in urban areas and by land clearing operations. Additionally, most commercially available bark and mulch products are not produced at sawmills. Independent bark and mulch producers buy bark and wood residue from sawmills, reprocess the material, and then sell it in bulk or bagged. The number and size of these independent entities are not available. The impact upon these entities would depend upon what proportion of their business is bark mulch and what percentage of that is shipped to areas that are not generally infested. The higher the percentage shipped to areas that are not generally infested, the greater the negative effect would be.

Table 1.—Potentially Affected Entities and Bark Residue Production

	Generally infested areas	U.S. total
Sawmills 1	1,678	4,390
Pulp mills	9	36
Nursery and garden centers	3,446	16,432
Primary bark residue production (tons)	2,896,170	24,528,380
1 Information about the number of sawmills is available at the State level only. County data is withheld to avoid disclosing data for individual establishments. This may result in an overestimate of the number of affected entities because not all counties within quarantined States are in generally infested areas.
Source: U.S. Census Bureau, 1997 Economic Census: Manufacturing and Retail Geographic Area Series, November 1999 (revised November 2002).
Note: Primary bark residue production data from USDA/FS, “Bark and wood residue production in gypsy moth quarantined States in 2000,” Lew R. McCreery, Economic Action Program, USDA/FS Northeastern Area.

The potential economic effects of these changes will vary by State, depending on the number and size of entities to be regulated, the levels of infestation, the quantity of shipments to areas that are not generally infested, and whether delays occur and whether treatment is needed. Entities most likely to be affected by the changes are those that produce bark products and wood chips and independent mulch and bark producers. There will be opposing results. Removal of wood chips from the list of regulated articles will result in savings, if there had been costs before the changes, while the imposition of restrictions on the movement of bark and bark products may result in additional costs. Since entities located in generally infested areas produce a relatively smaller share of bark residue, as shown in table 1, most shipments of bark products are likely to be small in quantity and to be contained within generally infested areas with very few shipments to areas that are not generally infested.

If the inspection of a shipment intended for movement to an area that is not generally infested reveals the presence of gypsy moths, the infested articles would not be eligible for movement unless they were treated or consigned to a facility operating under a compliance agreement with APHIS for specified handling or processing. If treated, fumigation could cost between $100 and $150 per truckload, depending upon the size of the shipment. The need to treat infested bark or bark products may increase business for certified pesticide applicators located in generally infested areas. However, overall, the results of removing wood chips and adding bark and bark products to the list of regulated articles may cancel each other out, resulting in no increase of business for certified applicators. Regional variation is possible.

The changes are expected to cause a slight increase in the costs of business for the affected entities. The negative economic impact that may result from the changes is small compared to the potential for harm to related industries and to the U.S. economy as a whole that would result from an increase in the artificial spread of the gypsy moth, however. Benefits from the unrestricted movement of wood chips are expected to either cancel out or be greater than any negative effects of new restrictions on the movement of bark and bark products. Since the changes would not prohibit their movement, regulated articles that meet the requirements of the regulations would continue to enter the market. The overall impact on price and competitiveness is expected to be relatively insignificant.

Import Restrictions

Under the unmanufactured wood regulations in § 319.40-3, regulated articles, which will now include bark and bark products, to be imported into the United States from Canada are subject to the inspection and other requirements in § 319.40-9 and must be accompanied by an importer document stating that the articles are derived from trees harvested in, and have never been moved outside, Canada. Under § 319.40-9, regulated articles must have been inspected and found free of plant pests or have been treated for pests as required by the inspector before the regulated article may be moved from the port of first arrival. Adding bark and bark products as regulated articles under the regulations related to gypsy moth host material from Canada would mean that bark and bark products to be moved into or through a noninfested area of the United States from an infested area of Canada will have to be accompanied by an officially endorsed Canadian phytosanitary certificate confirming that they have been inspected and found free of gypsy moth or have been treated in accordance with 7 CFR part 305 prior to importation, unless they were destined for a specified U.S. processing plant or mill under compliance agreement with APHIS for specified handling or processing. Because the restrictions that will apply under the regulations for gypsy moth host material from Canada are only slightly more restrictive than the restrictions that have been in place under the unmanufactured wood regulations, requiring certification or treatment prior to importation rather than at the port of first arrival, we do not believe that they will have a significant economic impact. In addition, we could not find any data on the importation of bark or bark products into the United States from Canada, which indicates that there is not a high volume of trade in these articles.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

Executive Order 12988

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

Paperwork Reduction Act

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

List of Subjects

7 CFR Part 301

• Agricultural commodities
• Plant diseases and pests
• Quarantine
• Reporting and recordkeeping requirements
• Transportation

7 CFR Part 319

• Coffee
• Cotton
• Fruits
• Imports
• Nursery stock
• Plant diseases and pests
• Quarantine
• Reporting and recordkeeping requirements
• Rice
• Vegetables

Accordingly, we are amending 7 CFR parts 301 and 319 as follows:

PART 301—DOMESTIC QUARANTINE NOTICES

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

Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3.

Section 301.75-15 issued under Sec. 204, Title II, Public Law 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).

2. Section 301.45-1 is amended as follows:

a. By adding, in alphabetical order, definitions of bark and bark products to read as set forth below.

b. In the definition of regulated articles, paragraph (2), by removing the words “wood chips” and adding the words “bark and bark products” in their place.

§ 301.45-1

Definitions.

* * * * *

Bark. The tough outer covering of the woody stems of trees, shrubs, and other woody plants as distinguished from the cambium and inner wood.

Bark products. Products containing pieces of bark including bark chips, bark nuggets, bark mulch, and bark compost.

* * * * *

§ 301.45-4

[Amended]

3. In § 301.45-4, paragraph (b) is amended by removing the word “June” and adding the word “August” in its place, and paragraph (c)(2) is amended by removing the words “wood chips” and adding the words “bark and bark products” in their place.

PART 319—FOREIGN QUARANTINE NOTICES

4. The authority citation for part 319 continues to read as follows:

Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

§ 319.40-2

[Amended]

5. In § 319.40-2, paragraph (f) is amended by adding the words “bark and bark products and” before the word “logs”.

6. Section 319.77-2 is amended by redesignating paragraphs (f) and (g) as paragraphs (g) and (h), respectively, and by adding a new paragraph (f) to read as follows:

§ 319.77-2

Regulated articles.

* * * * *

(f) Bark and bark products;

* * * * *

7. In § 319.77-4, the introductory text of paragraph (b), including footnote 2; paragraph (b)(1); the introductory text of paragraph (b)(2); the introductory text of paragraph (b)(2)(i); and paragraph (b)(2)(ii) are revised to read as follows:

§ 319.77-4

Conditions for the importation of regulated articles.

* * * * *

(b) Bark and bark products and logs and pulpwood with bark attached.^[2] (1) Bark and bark products or logs or pulpwood with bark attached that are destined for a U.S. infested area and that will not be moved through any U.S. noninfested area other than noninfested areas in the counties of Aroostock, Franklin, Oxford, Piscataquis, Penobscot, and Somerset, ME (i.e., areas in those counties that are not listed in § 301.45-3 of this chapter) may be imported from any area of Canada without restriction under this subpart.

(2) Bark and bark products or logs or pulpwood with bark attached that are destined for a U.S. noninfested area or will be moved through a U.S. noninfested area may be imported into the United States from Canada only under the following conditions:

(i) If the bark, bark products, logs, or pulpwood originated in a Canadian infested area, they must be either:

* * * * *

(ii) If the bark, bark products, logs, or pulpwood originated in a Canadian noninfested area, they must be accompanied by a certification of origin stating that they were produced in an area of Canada where gypsy moth is not known to occur.

* * * * *

Done in Washington, DC, this 14th day of July 2006.

Kevin Shea,

Acting Administrator, Animal and Plant Health Inspection Service.

Footnotes

1.  The Gypsy Moth Program Manual may be viewed on the Internet at http://www.aphis.usda.gov/​ppq/​manuals/​domestic/​GMChapters.htm.

2.  Rossiter, M.C. 1987. Use of a secondary host, pitch pine, by non-outbreak populations of the gypsy moth. Ecology 68: 857-868.

3.  Southeastern Lumber Manufactruers Association, Inc., U.S. Forest Products Industry Statistics (http://www.slma.org/​stats_​us.shtml).

4.  David Pimentel, Lori Latch, Rodolfo Zuniga, and Doug Morrison, “Environmental and Economic Costs Associated with Non-indigenous Species in the United States,” College of Agriculture and Life Sciences, Cornell University, Ithaca, NY 14850-0901, June 12, 1999.

5.  Information on the number of sawmills is avaialble at the State level only. County information is withheld to avoid disclosing data for individual establishments. This may result in an overestimate of the number of affected entities because not all counties within quarantined States are in generally infested areas.

6.  U.S. Census Bureau, 1997 Economic Census: Manufacturing and Retail Geographic Area Series, November 1999 (revised November 2002).

7.  W.B. Smith, John S. Visage, David R. Darr, and Raymond M. Sheffield, Forest Resources of the United States, 1997.

2.  Bark, bark products, and logs from Canada are also subject to restrictions under “Subpart—Logs, Lumber, and Other Unmanufactured Wood Articles” (§§ 319.40 through 319.40-11 of this part).