[Federal Register Volume 63, Number 181 (Friday, September 18, 1998)]
[Rules and Regulations]
[Pages 50100-50111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25058]
[[Page 50099]]
_______________________________________________________________________
Part V
Department of Agriculture
_______________________________________________________________________
Animal and Plant Health Inspection Service
_______________________________________________________________________
7 CFR Parts 319 and 354
Solid Wood Packing Material From China; Interim Rule
Federal Register / Vol. 63, No. 181 / Friday, September 18, 1998 /
Rules and Regulations
[[Page 50100]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Parts 319 and 354
[Docket No. 98-087-1]
RIN 0579-AB01
Solid Wood Packing Material From China
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
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SUMMARY: We are amending the regulations for importing logs, lumber,
and other unmanufactured wood articles by adding treatment and
documentation requirements for solid wood packing material imported
from China. This change means that wooden pallets, crating, dunnage,
and other wooden packing material imported into the United States from
China will have to be heat treated, fumigated, or treated with
preservatives prior to departure from China. This action will affect
anyone who uses solid wood packing material in connection with
exporting commodities from China to the United States. This action is
necessary to control the risk that solid wood packing material from
China could introduce dangerous plant pests, including forest pests,
into the United States, a risk demonstrated by many recent incidents
where exotic pests were detected in solid wood packing material from
China.
DATES: Interim rule effective December 17, 1998. Consideration will be
given only to comments received on or before November 17, 1998. We also
will consider comments made at three public hearings scheduled to be
held during the public comment period in Washington, DC, on October 16,
1998, and in Seattle, WA, and Los Angeles, CA, on dates to be
announced.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 98-087-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit, 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 98-087-1. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
The Washington, DC, public hearing will be held on October 16,
1998, at the Jefferson Auditorium, U.S. Department of Agriculture,
South Building, 14th Street and Independence Avenue SW., Washington,
DC.
FOR FURTHER INFORMATION CONTACT: Mr. Ronald Campbell, Import
Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700
River Road, Unit 140, Riverdale, MD 20737-1236, (301) 734-6799.
SUPPLEMENTARY INFORMATION:
Background
Logs, lumber, and other unmanufactured wood articles imported into
the United States could pose a significant hazard of introducing plant
pests detrimental to agriculture and to natural, cultivated, and urban
forest resources. The regulations in 7 CFR 319.40-1 through 319.40-11
(referred to below as the regulations) are intended to mitigate the
plant pest risk presented by the importation of logs, lumber, and other
unmanufactured wood articles.
One of the classes of wood articles that is subject to import
restrictions is solid wood packing material (SWPM). The regulations
define SWPM in Sec. 319.40-1 as ``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.'' Most of the wooden pallets,
crates, dunnage and similar articles used to assist the movement of
commodities in international commerce meet the definition of SWPM and
are subject to the regulations. However, it is important to note that
more and more synthetic or highly processed wood materials are being
used as packing material, and these articles (e.g., plywood, oriented
strand board, corrugated paperboard, plastic, resin composites) are not
subject to the requirements for SWPM.
The importation of SWPM is regulated because this material presents
a number of plant pest risks. SWPM is often constructed from raw wood
just shortly before it is used, often includes bark on some surfaces,
and is often made from low quality wood that sometimes may be of low
quality due to pest damage. These factors all mean that SWPM presents a
high risk of spreading wood pests that exist in the areas where the
SWPM was constructed. Additionally, the SWPM in transit is in close
contact with the commodities (including wood products) it is used to
pack, with an excellent opportunity for pests to move from SWPM to
commodities. After commodities arrive in the United States, pests from
the SWPM have many opportunities to escape and become established,
especially since the SWPM associated with commodities often moves long
distances throughout the United States, is reused frequently, and is
often stored outdoors at ports and warehouses when not in use.
To control these risks, Sec. 319.40-3 of the regulations imposes
certain requirements on imported SWPM. If the SWPM is not free of bark,
it must be heat treated, fumigated, or treated with preservatives in
accordance with the regulations prior to arrival. Even if the SWPM is
free of bark, the SWPM must be heat treated, fumigated, or treated with
preservatives in accordance with the regulations prior to arrival if it
is used to pack regulated wood commodities in transit. However, SWPM
used to move regulated wood commodities need not be heat treated,
fumigated, or treated with preservatives if the SWPM meets all the
importation and entry conditions required for the regulated wood
commodities the SWPM is used to move.
The least restrictive requirement for importing SWPM occurs when
the SWPM is used to move nonregulated articles (articles that are not
wood, or that are highly processed wood excluded from regulation). When
SWPM is used to move nonregulated articles, the SWPM must be totally
free from bark and apparently free from live plant pests. It need not
be heat treated, fumigated, or treated with preservatives.
The Animal and Plant Health Inspection Service (APHIS) inspects and
monitors shipments of imported wood at the port of first arrival to
ensure that articles are imported in compliance with the regulations.
Inspectors have documented instances where imported SWPM was not in
compliance with the regulations. The single largest source of SWPM not
in compliance with the regulations has been commercial shipments from
China. (China means the People's Republic of China, including the Hong
Kong Special Administrative Region.) During the period from August 23,
1995 (when the regulations went into effect), until March 15, 1998,
inspectors reported 132 shipments containing SWPM from China that were
infested with exotic plant pests. In each of these reported instances,
the shipment was treated, reexported, or destroyed. There were also
many additional reports of pallets, crating and other SWPM that had
bark
[[Page 50101]]
on the surface and thus were not in compliance with the regulations.
These reports indicate that a very large problem exists with SWPM
imported from China. APHIS inspects a percentage of shipments arriving
from China if the shipments are not regulated wood products. However,
virtually all of these shipments have SWPM as packing materials. Some
of the cargo in which APHIS has found exotic plant pests in the
accompanying SWPM include cable wire, granite, marble tiles, pipe
flanges, machinery, and tools.
APHIS has recently found numerous exotic plant pests associated
with SWPM imported from China, including extremely destructive wood-
boring insects of the genera Anoplophora, Ceresium, Hesperophanes, and
Monochamus. Pests of these genera have moved with the SWPM that carries
them to numerous States, including California, Florida, Illinois,
Indiana, Michigan, New Jersey, New York, North Carolina, Tennessee,
Texas, Washington, and Wisconsin. By the end of fiscal year 1998,
approximately $5 million will have been spent in ongoing efforts to
eradicate these outbreaks in the States of New York and Illinois. In
each of the other States listed, the pests were intercepted and
destroyed before becoming established.
An infestation of one particularly destructive exotic pest of
maple, poplar, and other hardwood trees, the Asian longhorned beetle
(Anoplophora glabripennis), was discovered near a maritime facility in
Brooklyn, NY, in August 1996. State and Federal authorities have since
uprooted, chipped, and burned thousands of trees on public and private
land to control the infestation. An outbreak of the same pest was
reported in Ravenswood, IL, and surrounding areas in July 1998. Control
efforts in both areas continue. Even though the Asian longhorned beetle
was likely established in these areas prior to implementation of our
current regulations governing SWPM, the Asian longhorned beetle
continues to be intercepted on shipments associated with SWPM from
China.
The damage and losses that would occur if additional plant pests
associated with SWPM from China should become established and spread in
the United States would be substantial. For example, many species of
hardwood trees would be destroyed, severely harming industries that
depend on the wood and other products of these trees (e.g., maple
syrup, maple sugar, fruit). Hardwood lumber industries would face
critical supply shortages and would be forced to try to meet their
needs with imported hardwoods. Mature ornamental trees would be
attacked, and domestic supplies of trees for nursery and landscaping
companies would be reduced or eliminated. Widespread destruction of
hardwood trees in public and private forest land would occur, causing
enormous direct losses in tourism and related industries and enormous
losses that cannot be easily measured to the aesthetics of our
woodlands.
APHIS, Plant Protection and Quarantine, recently completed a plant
pest risk assessment that focuses on four taxa intercepted on SWPM from
China. The assessment provides scientific references and details on the
biology of Ceresium spp., Monochamus spp., Hesperophanes spp., and the
Asian longhorned beetle (Anoplophora glabripennis), as well as
qualitative characterizations of the biological consequences and
likelihood of introduction. The assessment is consistent with
guidelines for conducting plant pest risk analyses provided by the
International Plant Protection Convention (IPPC) of the United Nations
Food and Agriculture Organization (FAO) and the North American Plant
Protection Organization (NAPPO). The assessment concluded that each of
these taxa constitutes a significant and immediate threat to the United
States. In addition, APHIS has conducted an environmental assessment of
the impacts of the interim rule. Copies of both of these documents are
available from the office identified above under FOR FURTHER
INFORMATION CONTACT.
The United States Department of Agriculture has tried to convince
the national government of China and individual exporters of Chinese
goods to take steps to control the problems caused by exotic plant
pests in SWPM from China. The compliance of Chinese shipments with the
current regulatory requirements for SWPM continues to be very poor,
with many shipments arriving with bark and obvious signs of live pests
on SWPM.
To control this serious problem, APHIS is initiating additional
treatment and certification requirements for SWPM from China. These
imports represent the largest identifiable source of the introductions
discussed above. Additionally, APHIS will continue to evaluate the
problem of SWPM imports in general. We are currently preparing an
advance notice of proposed rulemaking to seek information and develop
regulatory options on the general problem of imported SWPM from all
countries and the particular problem of how to respond to the scheduled
discontinued use, both domestically and overseas, of methyl bromide
fumigation for imported wood products, in accordance with the Clean Air
Act's and Montreal Protocol's phase-out schedules. Because there are
multiple risks to U.S. resources from exotic wood-boring insects
associated with SWPM of other origins, and because of the potential for
adverse environmental effects from the use of methyl bromide and other
pesticides as a result of this rule, APHIS considers this interim rule
to be the first step towards better exclusion of pest risks from SWPM.
APHIS will initiate an interagency review in order to develop an
advance notice of proposed rulemaking that will identify various
options for amending existing regulations for importing SWPM from all
foreign countries to further improve exclusion procedures and protect
forest resources, while at the same time minimizing the further use of
methyl bromide in order to protect the stratospheric ozone layer. APHIS
intends to implement this interim rule until APHIS has completed the
rulemaking process described above for improved measures for mitigating
the pest risk of SWPM from all sources. During the period this interim
rule is in effect, APHIS will work with China to obtain information on
actions China has taken to comply with the interim rule, including the
use of methyl bromide and other pesticides. If the amount of methyl
bromide used in China is greater than expected, or if the interim rule
remains in effect longer than 2 years, additional environmental
analysis may be necessary. We will consider comments received on the
advance notice of proposed rulemaking, as well as on this interim rule,
in developing any proposed or final rule changing the requirements for
importing SWPM.
Hong Kong Special Administrative Region
This interim rule is intended to address the problem of serious
plant pests, such as Asian longhorned beetle, being introduced into the
United States on SWPM imported from the mainland of China. Due to the
close and unique economic connections between the Hong Kong Special
Administrative Region and the mainland of China, and the fact that
about half of the mainland's exports to the United States come through
Hong Kong, it is necessary to include the Hong Kong Special
Administrative Region in this interim rule in some form to effectively
address the problem. This interim rule is intended to require
certification of all SWPM originating on the mainland of China as
having been treated. In view of
[[Page 50102]]
the separate customs territory status and separate quarantine and
inspection regime maintained by the Hong Kong Special Administrative
Region with regard to the mainland of China, and in view of the fact
that a large amount of goods not originating on the mainland of China
or in the Hong Kong Special Administrative Region pass through the Hong
Kong Special Administrative Region on the way to the United States, we
are considering changes to the interim rule in order to avoid
unnecessary effect on Hong Kong's trade with the United States and
other parts of the world while preventing further introductions of
serious plant pests from Hong Kong or the mainland of China.
New Regulatory Requirements for SWPM From China
We are amending the regulations to require that SWPM imported into
the United States from China be heat treated, fumigated, or treated
with preservatives prior to departure from China. We will also require
that each shipment from China that contains SWPM must be accompanied by
a certificate, issued by the national government of China, stating that
the SWPM was heat treated, fumigated, or treated with preservatives
prior to departure from China. Shipments from China that do not employ
SWPM must be accompanied by an exporter statement stating that the
shipment contains no SWPM. An exporter statement is not a government-
issued document but rather is a written declaration by the exporter,
such as an exporter statement on or attached to the commercial invoice,
and as an attachment to the bill of lading, stating the nature of the
shipment and that it does not contain any SWPM. A definition of
exporter statement is added to the definitions in Sec. 319.40-1.
Because the certificate requirement may slow clearance of shipments
at U.S. ports while inspectors match certificates with the associated
SWPM, we are also providing exporters of SWPM from China with the
option of having each article of SWPM that has been treated, marked at
the treatment facility with a stamp or weatherproof label that reads
``CHINA TREATED.'' This marking, while not required, may help to
expedite release of shipments at the port of first arrival. This type
of marking, however, is not a substitute for the required certificate.
Heat treatment, fumigation, or treatment with preservatives may be
performed in accordance with the treatment schedules authorized for
SWPM in the regulations or in the PPQ Treatment Manual, which is
incorporated by reference at 7 CFR 300.1 of this chapter. It is
anticipated that most treatments conducted to meet the regulatory
requirements will employ methyl bromide fumigation, although some other
fumigants such as phosphene, or a number of preservatives, may be
employed. Preservatives in common use include arsenic, copper sulfate,
creosote, and copper-8-quinolinate.
We are not establishing a time limit for treatment of SWPM; i.e.,
SWPM will not be required to be treated within a certain number of days
prior to embarking for the United States. Such a requirement would make
it far more difficult for exporters to schedule treatment of SWPM and
conduct treatments in large, cost-effective batches. A time limit on
treatment of SWPM would likely encourage a higher level of
noncompliance by exporters, which would result in an increased risk
level. However, to guard against reinfestation during the entire
interval between treatment and export, the SWPM must be stored,
handled, or safeguarded in a manner which excludes any infestation of
it by plant pests.
If a shipment containing SWPM from China arrives at a port in the
United States and the SWPM is found to contain plant pests, or the SWPM
has not been heat treated, fumigated, or treated with preservatives, or
there is no accompanying certificate documenting such treatment, an
APHIS inspector may deny entry to the entire lot or shipment (cargo and
SWPM). Alternatively, the inspector will allow the importer to separate
the cargo from the SWPM, at a location and within a time period
specified by the inspector, and destroy or reexport the SWPM, if the
inspector determines that this can be done without risk of spreading
plant pests. This may only be done in cases where there is a secure
facility for separation of the cargo, available means to destroy the
SWPM (incineration, or chipping and incineration, are the authorized
methods), and available APHIS inspectors to supervise the process. The
importer will be responsible for all expenses associated with this
process.
Alternatives Considered
APHIS considered several alternatives in an effort to achieve the
necessary control over the pest problems associated with SWPM from
China while imposing the minimum necessary adverse impacts on persons
who will be affected by this rule. We attempted to set requirements
that allowed exporters and importers to mitigate the risks associated
with SWPM from China in a variety of ways--by using alternative non-
regulated packing material, or by using one of several treatment
options for the packing material, or by purchasing pre-treated packing
material that is available from many sources--that would allow them to
make sound business decisions on the best way their particular
enterprise could comply with our regulatory requirements.
The major alternatives we considered for this rule were: (1)
Prohibiting the entry of SWPM from China; (2) requiring treatment and
certification abroad of SWPM from China; (3) treatment either abroad or
in the United States; and (4) taking no action (continuing the existing
permitting process for SWPM).
The first alternative we considered to this rule was a total ban on
importing SWPM from China. In terms of managing pest risks, a total ban
on SWPM from China was the most effective, enforceable, and simple
alternative. It was also consistent with APHIS' actions in the past,
where we implemented import bans on a product from a country when the
association of plant pests with the product was well established and it
was not practical to enforce treatment for the pests. In this case, the
association of dangerous exotic plant pests with SWPM from China is
well established, and, while treatments for those plant pests are
available, constant enforcement may not be practical. A huge volume of
cargo with SWPM arrives daily in the United States from China. Checking
at ports to confirm that arriving SWPM has been treated, and has
certificates issued by the national government of China confirming
treatment, will require substantial additional APHIS resources at
ports. Additional resources will also be needed to deal with shipments
that arrive without certification or with untreated SWPM.
Although a ban on SWPM from China would be the most effective and
practical means of controlling the pest risk, it would have an adverse
impact on trade with China and on those sectors of the U.S. economy
that rely on Chinese imports. These effects are discussed below under
``Executive Order 12866 and Regulatory Flexibility Act.'' A ban would
affect a large fraction of the more than one million shipments imported
into the United States from China each year, valued at over $72 billion
in 1997. The primary effects of a ban would be to delay delivery of
shipments while exporters arrange to use alternative materials other
than SWPM, and to increase the cost of each shipment for which more
expensive packing materials are substituted for SWPM.
[[Page 50103]]
The second alternative APHIS considered was to allow SWPM from
China to enter the United States if treated prior to departure from
China and accompanied by certification of treatment. APHIS believes
that effective implementation of this option will minimize trade
disruption and other adverse impacts while managing pest risks. The
costs associated with this alternative are also discussed below under
``Executive Order 12866 and Regulatory Flexibility Act,'' and include
primarily costs of treating SWPM.
The third alternative APHIS considered was to inspect SWPM from
China at the port of arrival in the United States, and to order
treatment if necessary after arrival in the United States. Under this
alternative, exporters could also have treated their SWPM prior to
departure from China if they expected treatment would be necessary.
This alternative could have allowed some shipments to be cleared by
inspection upon arrival, with no need for treatment. Although this
option would provide less of a trade disruption than the previous
alternatives, we believe that it would increase pest risks to an
unacceptable level. This alternative probably would not induce most
exporters to treat SWPM from China prior to departure and would,
instead, result in a vastly increased demand for treatment, especially
methyl bromide fumigation, at ports of arrival in the United States.
Treatment upon arrival would be very labor intensive, would also have
adverse consequences on the efficiency of port operations, would have
severe budget implications for APHIS, and would not be consistent with
our policy for regulating SWPM from all other parts of the world, which
is, essentially, that the SWPM must be rendered safe prior to arrival.
The option of treating the SWPM in the United States carries with it
the risk that pests associated with untreated SWPM arriving from China
could escape prior to treatment and become established in the United
States. It should also be noted that many articles in commerce have
components (e.g., soft rubber) that can be damaged by methyl bromide
fumigation, and that it makes more sense to treat SWPM used with these
articles separately, before they are packed for export.
For the reasons discussed above, this interim rule does not allow
treatment of SWPM from China after arrival in the United States.
However, if SWPM arrives untreated or without certification, this rule
provides that an inspector will allow the importer to separate the
cargo from the SWPM and destroy or reexport the SWPM, if the inspector
determines this can be done without risk of spreading plant pests. This
alternative to denying entry to the entire shipment will only be an
option where there is a secure facility for separation of the cargo,
available means to destroy the SWPM (incineration, or chipping and
incineration, are the authorized methods), and available APHIS
inspectors to supervise the process.
The final alternative we considered was to take no action, rely on
the existing import requirements, and allow the United States and China
to continue to work on a bilateral basis to develop cooperative
solutions to mitigate the risks associated with importing SWPM from
China. This alternative could include efforts to encourage importers
and exporters in both countries to develop strategies to reduce risk.
However, efforts to date in this area resulted in little cooperation
from China, and it does not appear likely this alternative would solve
the immediate risk facing the United States.
APHIS has decided to implement the requirements of this rule
instead, allowing SWPM from China to enter the United States if treated
prior to departure from China and accompanied by certification of
treatment. We believe it is possible to reassign the necessary
resources to U.S. ports to implement the requirements imposed by this
rule. However, we will closely monitor the effectiveness of these
procedures in reducing pest introductions, and, if they do not succeed,
we will take further action to ensure that the importation of SWPM does
not endanger our forest and agricultural resources.
Effects of This Rule on Federal Agency Operations and Resource
Requirements
Both APHIS and the United States Customs Service will need to make
substantial adjustments to their activities to implement this interim
rule. These two agencies already work in cooperation at U.S. ports to
clear shipments from China for entry. This rule will require new
documentation that will have to be examined as appropriate at the time
of entry, and will require selective additional inspections by both
APHIS and U.S. Customs Service inspectors to verify that shipments
comply with the regulations. Additionally, the exporter statement
required for shipments from China not containing SWPM is a type of
document that has not been programmed to be included in the Automated
Broker Interface (ABI) of Customs Automated Commercial System (ACS).
APHIS expects to reassign inspectors from other areas to the ports
that receive the bulk of imports from China to perform the additional
inspections and other procedures required by this rule (e.g., checking
whether cargo accompanied by an exporter statement truly contains no
SWPM, supervising destruction or reexport of SWPM when it is required).
It will probably be necessary to hire additional staff as well. The
cost of reassigning this staff, hiring any additional staff, training
them in the new procedures, and related costs is roughly estimated at
$2.7 million per year for APHIS. The U.S. Customs Service will also
incur additional costs for its role in implementing these regulations,
although no estimate of that cost is currently available.
New User Fee for Services Provided to Facilitate Entry of SWPM
We will charge a new hourly user fee for providing APHIS services--
primarily additional inspection services, and supervising separation of
SWPM from cargo--to facilitate the entry of SWPM when the services
exceed the normal inspection and paperwork activities for which user
fees are currently established in 7 CFR 354.3. The new user fee will
cover situations where APHIS must inspect a shipment that lacks the
exporter statement or certificate required by new Sec. 319.40-5(g) or
(h), or where these documents are incomplete. The inspections will be
necessary to determine whether the cargo contains SWPM, and if so,
whether the cargo must be reexported or whether it can be safely
separated from its SWPM. We expect the new user fee will primarily
apply to situations under new Sec. 319.40-5(g)(3). Under new
Sec. 319.40-5(g)(3), when an inspector determines that a shipment
imported from China contains SWPM that was not heat treated, fumigated,
or treated with preservatives, or that was not accompanied by a
certificate documenting such treatment, the inspector may, in lieu of
refusing entry, allow the importer to separate the cargo and destroy or
reexport the SWPM under supervision of an APHIS inspector.
These services exceed those normally provided for arriving
international shipments. Normal services usually include reviewing
paperwork to determine whether cargo contains prohibited or restricted
articles, checking for any required permits or certificates, and
occasional inspection to verify the status of cargo documented in the
paperwork. These normal services are paid for by user fees established
in
[[Page 50104]]
7 CFR 354.3, currently $454.50 for each arriving vessel of 100 tons or
more and $59.75 for each arriving commercial aircraft. We will charge
hourly user fees for cases where inspectors must perform additional
duties related to clearing shipments from China, as it would be
difficult to establish a flat fee. This is because costs could vary
widely from one customer to another, based on the nature and size of
the shipment; consequently, a flat fee would be very inequitable to
some importers and exporters.
We are amending 7 CFR part 354--``Overtime Services Relating To
Imports and Exports; and User Fees,'' to establish this new fee. The
hourly user fee rate will be $56.00, or $14 per quarter hour, with a
$14 minimum. If the services must be conducted on a Sunday or holiday
or at any other time outside the normal tour of duty of the employee,
then the premium user fee rate as listed below applies, as well as the
2-hour minimum charge and a commuted traveltime period required by
Sec. 354.1(a)(2). If the services requested are performed on a Sunday,
the hourly user fee rate will be $74.00, or $18.50 per quarter hour,
with a $18.50 minimum. If the services requested are performed on a day
other than Sunday outside the normal tour of duty of the employee
providing the service, the hourly user fee rate will be $65.00, or
$16.25 per quarter hour, with a $16.25 minimum.
This hourly rate user fee has been calculated to cover the full
direct labor cost of providing that service. Direct labor costs are the
costs of employee time spent specifically to provide the service. For
fees charged in accordance with this rule, costs have been calculated
based on the direct labor costs of APHIS inspectors at the ports of
arrival (estimated at the salary cost for a GS-9 step 5 inspector plus
a benefits cost of 31 percent of salary), direct materials costs,
administrative support, Agency overhead, and Departmental charges.
Immediate Action
The Administrator of the Animal and Plant Health Inspection Service
has determined that there is good cause for publishing this interim
rule without prior opportunity for public comment. Immediate action is
necessary to prevent further introduction and spread of exotic pests
associated with SWPM from China.
Although this rule does not take effect until 90 days after the
date of publication, it is necessary to set the effective date now,
rather than accept comments on a proposal and give notice of a final
action and effective date later. Importers, exporters, national
governments and others will need the full 90 days to prepare for the
significant changes in operations that will become necessary on the
effective date of this rule. Because prior notice and other public
procedures with respect to this action are impracticable and contrary
to the public interest under these conditions, we find good cause under
5 U.S.C. 553 to make this rule effective 90 days after the date of
publication in the Federal Register.
If APHIS decides, based on comments received on this interim rule,
to publish a final rule that significantly changes the regulatory
requirements in this interim rule in such a way that persons affected
by the final rule need time to change their business procedures, we
will set an appropriate effective date for the final rule to allow time
for implementation of such changes.
We will consider comments that are received within 60 days of
publication of this rule in the Federal Register. After the comment
period closes, we will publish another document in the Federal
Register. The document will include a discussion of any comments we
receive and any amendments we are making to the rule as a result of the
comments.
Public Hearings
APHIS will host three public hearings to provide interested persons
a full opportunity to present their views regarding this interim rule.
One public hearing will be held on October 16, 1998, at the Jefferson
Auditorium, U.S. Department of Agriculture, South Building, 14th Street
and Independence Avenue SW., Washington, DC. The other hearings are
tentatively scheduled to be held in Seattle, WA, and Los Angeles, CA,
during the public comment period. Specific dates and locations for
these hearings will be announced in a separate Federal Register notice.
A representative of APHIS will preside at the public hearings. Any
interested person may appear and be heard in person, by attorney, or by
other representative. Persons who wish to speak at the public hearings
will be asked to sign in, listing their names and organizations.
The public hearings will begin at 9:00 a.m. local time and are
scheduled to end at 5:00 p.m. local time. However, the hearings may be
terminated at any time after they begin if all persons desiring to
speak 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 the hearing warrants, 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 interim rule may be part of the
commenters' oral presentations. Neither the presiding officer nor any
other representative of APHIS will respond to comments at the hearings.
However, they will be able to answer questions to clarify or explain
provisions of the interim rule.
Executive Order 12866 and Regulatory Flexibility Act
This interim rule has been reviewed under Executive Order 12866.
The rule has been determined to be economically significant for the
purposes of Executive Order 12866 and, therefore, has been reviewed by
the Office of Management and Budget.
This action requires treatment and certification for all SWPM
imported from China. The emergency situation under which we are issuing
this rule makes compliance with section 603 and timely compliance with
section 604 of the Regulatory Flexibility Act (5 U.S.C. 603 and 604)
impracticable.
This rule may have a significant economic impact on a substantial
number of small entities. If we determine this is so, then we will
discuss the issues raised by section 604 of the Regulatory Flexibility
Act in our Final Regulatory Flexibility Act Analysis.
Our preliminary cost-benefit analysis is presented below.
Section I--Purpose and Need for Regulation
The free trade of goods in international commerce potentially
brings with it negative externalities due to the unintended
introduction of exotic plant pests and pathogens. Such actions result
in costs to various sectors of society (for example, alterations to
forest ecosystem diversity and productivity). The private cost of
importing commodities does not reflect full social costs since
importers responsible for pest introductions are not charged for their
contribution to the damages caused by exotic pests on domestic forest
resources. The market left to itself would engage in undesirable
commercial practices (in this case, the use of unprocessed SWPM) that
could lead to detrimental effects on agricultural and natural resources
of the United States. Because costs to the U.S. economy as a whole
could be
[[Page 50105]]
substantial, Federal intervention is required. The increasing number of
interceptions requires that emergency measures be used to prevent
further dissemination of pests throughout the United States.
This analysis presents preliminary estimates of the benefits and
costs of implementing the interim rule to require the treatment and
certification of SWPM from China before it is allowed into the United
States. In assessing the regulatory alternatives available to the
agency, three other options were also considered: (1) Prohibiting the
entry of SWPM from China; (2) requiring treatment and certification
abroad of SWPM from China; (3) treatment either abroad or in the United
States; (4) taking no action (continuing the existing permitting
process for SWPM).
To provide a context of the pest risk situation, a discussion of
the forest and agricultural resources at risk in the United States is
outlined in section II. A background discussion of U.S. trade with
China, including magnitude and composition of trade, is presented in
section III. The potential impacts of the regulatory options are
presented in section IV. Given the emergency nature of the rule,
quantifiable estimates of benefits and costs are presented to the
extent possible.
Section II--Forest and Agricultural Resources at Risk
While there are many quarantine pests associated with SWPM, the
initial pest risk assessment (PRA) conducted in support of this interim
rule addresses a subset of frequently intercepted insect borers, in the
beetle family Cerambycidae, that have escaped detection at ports of
entry and been introduced into the United States. These intercepted
quarantine pests are of the genera Anoplophora, Ceresium,
Hesperophanes, and Monochamus.
Species of Anoplophora, Ceresium and Hesperophanes are known to
infest hardwoods (broad-leaved and deciduous trees). Host trees listed
in the scientific literature and observed in outbreaks in the United
States include: maple (Acer), horse chestnut (Aesculus), apple (Malus),
poplar (Populus), plum (Prunus), pear (Pyrus), locust (Robinia), elm
(Ulmus), chinaberry (melia), mulberry (Morus), willow (Salix), and
citrus (Citrus). Monochamus sp. primarily attacks softwood or
coniferous trees such as evergreen. While it is difficult to predict
with accuracy the actual damage if these species of wood-boring insects
were to become established in the U.S., these pests have the potential
of causing extensive losses to domestic forest and agricultural
resources. The following types of economic effects could be expected if
these wood-boring pests were to become widespread in the United States:
Effects on the Timber Industry
A significant share of the value of forest resources is derived
from their contribution to the timber and wood manufacturing
industries. In 1986, timber was the most important agricultural crop in
the United States in terms of dollar value of production, surpassing
corn, soybean and hay in value of production. The estimated value of
timber harvest in 1986 was $7.7 billion (in 1996 dollars), with 84
percent derived from softwood timber and the remaining 16 percent from
hardwood species.1
---------------------------------------------------------------------------
\1\ Source: ``An Analysis of the Timber Situation in the United
States: 1989-2040''. A Technical Document Supporting the 1989 USDA
Forest Service RPA Assessment. Forest Service, U.S. Department of
Agriculture, December 1990.
---------------------------------------------------------------------------
Value estimates in this section are adjusted to 1996 dollars
utilizing the Gross Domestic Product implicit price deflator. When the
value added from harvesting the timber and moving it to local points of
delivery is included, the value of the 1986 timber output in the United
States was approximately $17.1 billion. Total U.S. shipments of wood
manufactured products were valued at $252 billion, with $113 billion
being value added. Industry shipments in the Northeast region alone,
where current outbreaks are located, were valued at $46
billion.2
---------------------------------------------------------------------------
\2\ Value added is a net measure of an industry's contribution
to the economy because the value of materials received from other
firms and used in the manufacturing process is subtracted from the
value of the products shipped.
---------------------------------------------------------------------------
Effects on the Maple Syrup Industry
Sugar maple trees are a preferred host for at least one of the
pests of concern, the Asian longhorned beetle. The maple syrup industry
relies on healthy maple trees, especially sugar maple, for its
production. Maple syrup is produced in 10 states, with Vermont, New
York, Wisconsin, and Maine producing 72 percent of the total output.
Over 1.5 million gallons of maple syrup were produced in 1991, with a
total value of $53 million (in 1996 dollars).3
---------------------------------------------------------------------------
\3\ Data obtained from Louis C. Wyman Forest Services
Laboratory, USDA Forest Service, Durham, New Hampshire.
---------------------------------------------------------------------------
Effects on the Commercial Fruit Industry
The commercial fruit industry is also at risk of pest infestation,
as pear, apple, plum and citrus trees are susceptible hosts. A rough
approximation of the value of replacing these fruit trees can be
obtained from utilizing estimates on the cost of establishing an
orchard, which includes expenses associated with planting and cultural
practices and irrigation. It is estimated that the cost of replacing
host fruit trees would amount to $5.2 billion for pear, apple and plum
orchards alone, and $10.4 billion for citrus, for a total cost of $15.6
billion.4
---------------------------------------------------------------------------
\4\ Based on 1997 bearing acreages of 69,000 acres of pears,
453,220 acres of apples, and 89,600 acres of plums; and cost of
establishing an orchard, over four years, of $9,400 per acre for
pear and apple, and $3,600 per acre for plum. Bearing acreage of
citrus was estimated at 1.15 million acres in 1996-97; average cost
of establishing an orchard in Florida, over four years estimated at
$10,912 per acre and $5,100 per acre in other states except Florida.
Source: Economic Research Service, U.S. Department of Agriculture.
---------------------------------------------------------------------------
In addition, fruits of host trees would also be affected by a
widespread pest infestation. The average 1995-1997 value of utilized
production of these four types of fruits was estimated at $4.7 billion,
with over 50 percent of the value derived from citrus.5
---------------------------------------------------------------------------
\5\ Source: National Agricultural Statistics Service, USDA.
Citrus includes the following varieties: orange, grapefruit, lemon,
lime, tangerine, K-early, tangelos and tangerine. Citrus data are
based on 1996-1997 crop year.
---------------------------------------------------------------------------
Effects on the Nursery Industry
Another economically significant industry that relies on healthy
hardwood trees and is therefore potentially at risk of beetle
infestation is the nursery industry. In 1993, sales of plants (trees
and shrubs) by nurseries and greenhouses in the United States totaled
an estimated $3.3 billion, of which $226 million was derived from sales
in seven northeastern States. During the year ending September 30,
1993, 103.9 million landscape trees were sold in the United States,
including 5.7 million in seven northeastern states. Approximately one-
half of all landscape trees sold in the United States are hardwood
trees.6
---------------------------------------------------------------------------
\6\ The seven northeastern states are Maine, New Hampshire,
Vermont, Connecticut, Massachusetts, Rhode Island, and New Jersey.
Nursery and greenhouse data, including information on landscape
trees sold, were furnished by the American Association of
Nurseryman.
---------------------------------------------------------------------------
Effects on Tourism
The tourism industry is tied heavily to leaf color changes in the
autumn months, and the maple tree is noted for producing some of the
most vivid colors. Between mid-September and late October, the hardwood
forests of New England draw 1 million tourists and generate $1 billion
in revenue. It is estimated that up to one fourth of the tourism
revenue generated annually in
[[Page 50106]]
New England is due to the fall foliage displays.7
---------------------------------------------------------------------------
\7\ Revenue and tourist count data obtained from New York Times
article, ``The Rise of Fall,'' (Sept. 19, 1993) and from Boston
Globe article, ``A Beetle Bores in Brooklyn,'' (Sept. 21, 1996).
---------------------------------------------------------------------------
Other Non-market Effects on Urban Trees
Pest species of the Anoplophora genera prefer healthy maple and
horsechestnut trees, which are favorite street trees in many urban
areas. Urban backyard trees directly affect the value of real estate
assets. Besides the aesthetic value of urban trees, benefits of the 70
million acres of urban forests are multifold, and include cleaning the
air of pollutants, microclimate effects, dimunition of storm water
runoff, reduction in street noise, and enhancement of local wildlife
populations.8 Most of these benefits are non-market in
nature and are not readily measurable. While several approaches exist
in order to obtain measures of these non-market values, time
constraints do not permit the estimation of these values.
---------------------------------------------------------------------------
\8\ Source: Nowak, D.J. and John Dwyer. ``Understanding the
Benefits and Costs of Urban Forest Ecosystems'', in Urban and
Community Forestry in the Northeast. Plenum Publishing Co., New
York. In press, 28 pp.
---------------------------------------------------------------------------
In sum, the establishment of wood-boring insects of the genera
Anoplophora, Ceresium, Hesperophanes, and Monochamus could cause
significant economic damages to forest and agricultural resources in
the United States. If left unchecked, these pests have the potential to
create losses in excess of $41 billion to forest products, commercial
fruit, maple syrup, nursery, and tourist industries.9
---------------------------------------------------------------------------
\9\ This estimate includes the $17.1 billion figure for the
value of timber harvests. This estimate does not include the
potentially significant non-market values of urban trees, or value-
added losses that may occur if manufacturers of finished wood
products are unable to obtain substitute supplies for domestic
hardwoods unavailable due to pest damage.
---------------------------------------------------------------------------
Section III--Effects of This Rule on U.S. Trade With China
In 1997, China's total exports of agricultural and nonagricultural
products to the United States were valued at $72.8 billion (including
$10.3 billion from Hong Kong), or 8.4 percent share of total U.S.
imports. This represented a 18.8 percent increase in value of Chinese
imports from 1996. China ranks behind Canada, Japan and Mexico as the
fourth largest source of imports for the United States.10
---------------------------------------------------------------------------
\10\ Trade data are obtained from the Bureau of the Census, U.S.
Department of Commerce.
---------------------------------------------------------------------------
U.S. exports to China were valued at $27.9 billion in 1997
(including $15.1 billion to Hong Kong), or 4.1 percent of the total
value of exports. China is the fifth largest export market for U.S.
commodities.
There are 79 maritime ports of entry where APHIS conducts
inspections on imported commodities.11 The port in Long
Beach, CA, is estimated to receive roughly 50 percent of Chinese
imports. Other ports receiving a relatively large share of Chinese
cargo include Seattle, WA, and Charleston, SC. The three combined ports
are estimated to receive about 75 percent of the total imports from
China.
---------------------------------------------------------------------------
\11\ Data obtained from PPQ, APHIS. Some ports of entry are
combined sea and air ports.
---------------------------------------------------------------------------
The majority of imports from China are non-bulk commodities and are
thus likely to arrive with SWPM. In 1997, the U.S. Customs Service
estimated that there were 1.141 million shipments from China. Trade
data from the U.S. Department of Commerce shows 100 listings of 2-digit
codes of commodities imported from China. The composition of the 10
largest imports from China, with values in excess of $1 billion, are:
Electrical machinery
Sports equipment and toys
Footwear
Machinery
Woven apparel
Furniture and bedding
Leather articles
Plastics
Optical and medical instruments
Knit apparel
Electrical machinery, sports equipment, machinery, furniture, and
optical and medical instruments are commodities that are likely to be
imported with SWPM. APHIS estimates that between 50 to 95 percent of
shipments of electrical machinery, sports equipment, and machinery
contain some type of SWPM, while 30 percent or less of furniture and
optical/medical instruments are packaged with SWPM.12 In
general, clothing articles, textiles, and food and agricultural items
are not likely to be shipped with SWPM.
---------------------------------------------------------------------------
\12\ Information obtained from survey of APHIS inspectors at
three ports: Long Beach, California; Seattle, Washington, and
Charleston, South Carolina.
---------------------------------------------------------------------------
As the composition of trade in recent years shifted from textiles
and light manufactured products and more towards machinery, sports
equipment and metal products, so too has the import of SWPM increased
in shipments of these products. Since 1985, there has been a steady
increase in the number of insect interceptions on wood products from
China at U.S. ports, likely reflecting the growing volume of Chinese
imports (Table 1). At U.S. ports of entry from 1985 through 1996, APHIS
intercepted and destroyed insects on various wood products on nearly
5,900 occasions. Most of these interceptions were associated with
crating (49 percent), dunnage (36 percent), and pallets (6
percent).13
---------------------------------------------------------------------------
\13\ Source: Haack, R.A., et al. ``New York's Battle with the
Asian Long-horned Beetle'', Journal of Forestry, Vol. 95, No. 12,
December 1997.
Table 1.--Growth of U.S. Imports and Insect Interceptions on Wood
Products From China
------------------------------------------------------------------------
Percent
of total
U.S. Percent of
imports total insect
from interceptions
China
------------------------------------------------------------------------
1985.......................................... 1.1 1.2
1986.......................................... 1.3 1.2
1987.......................................... 1.6 0.7
1988.......................................... 1.9 1.5
1989.......................................... 2.5 0.6
1990.......................................... 3.1 1.2
1991.......................................... 3.9 0.6
1992.......................................... 4.8 4.4
1993.......................................... 5.4 7.3
1994.......................................... 5.8 8.3
1995.......................................... 6.1 11.2
1996.......................................... 6.4 21.2
------------------------------------------------------------------------
Source: Haack, R.A. et al. ``New York's Battle with the Asian Long-
horned Beetle.'' Journal of Forestry, Vol. 95, No. 12, December 1997.
Section IV--Analysis of Impacts of Regulatory Options
1. No Action
This alternative would mean that APHIS would not change its
existing regulations.14
---------------------------------------------------------------------------
\14\ Under this option, APHIS would not revise its existing
regulations, but presumably the Agency would initiate bilateral
negotiations with China in order to minimize pest risk.
---------------------------------------------------------------------------
The benefit to this option is that the impact on trade from China,
valued at $72.8 billion in imports and $27.9 billion in exports in
1997, would be unaffected. The welfare of U.S. consumers of Chinese
products and U.S. exporters to China would be unchanged.
This option would require increased inspection staff at ports of
entry and inland destinations solely to target inspections of high risk
cargo from China. Based on the volume of shipments, it is estimated
that an additional $9.5 million per year would be needed for APHIS
staff to perform inspection of Chinese cargo.15
[[Page 50107]]
Increasing the inspection level alone, however, has a limited effect on
reducing the pest risk, since wood-boring insects are difficult to
detect by visual inspection. Also, wooden crates are often made of
unprocessed, poor quality wood, often with bark left attached inside
crate walls, which would further impede visual inspection. It is highly
likely, therefore, that outbreaks would still occur even with increased
inspection. Individual outbreaks are costly; current eradication
efforts of Asian longhorned beetle outbreaks in New York and Chicago
are estimated to cost the State and federal governments at least $5
million by the end of FY 1998. Moreover, if these targeted pests were
to become established, losses to the forest and agricultural industries
could amount to $41 billion. Given the pervasive evidence on pest risk
directly associated with imports from China and the potential
significant economic losses if the pest were to become established,
this option is deemed unacceptable.
---------------------------------------------------------------------------
\15\ This cost is composed of salary and benefits of 140 APHIS
inspectors (estimated at a salary cost for GS9 step 5 plus a
benefits cost of 31% of salary); cost for travel, vehicles, and
other miscellaneous expenses (furniture, uniforms, cell phones,
etc.) Data obtained from Financial Management and Analysis Staff,
PPQ, APHIS.
---------------------------------------------------------------------------
2. Treatment and Certification Abroad (Interim Rule)
This alternative involves the implementation of phytosanitary
measures beyond the existing permit requirements for SWPM from China.
Through an interim rule, with a 90-day phase-in period, APHIS will
require that all SWPM associated with cargo from China be accompanied
by official certification from the Chinese Government stating that the
SWPM was heat treated, fumigated, or treated with preservatives prior
to departure from China. Uncertified SWPM associated with Chinese cargo
will be prohibited entry and reexported or, under certain
circumstances, destroyed in the United States. Certified SWPM found
infested will be prohibited entry.
One of the benefits of this option is that the risk of pest
introduction will be greatly reduced. The loss of forest and
agricultural resources that could be avoided by adopting this
alternative is estimated at $41 billion. Additionally, the increase in
the number of inspectors required under this option would be less than
30 percent of that required under option 1. This option will ultimately
encourage the use of treated SWPM or alternatives to SWPM in the long
run.
An approximation of the maximum potential cost of this option is
the value of Chinese imports that is potentially affected by the
interim rule. The actual cost of the interim rule will be the cost of
treating SWPM or switching to other substitutes. This cost cannot be
estimated at this time without data on the costs of treatment in China,
the costs of alternative packing materials in China, and the
availability of alternative markets (in countries that do not require
treatment of SWPM) for goods China currently ships to the United
States. It is estimated that, in 1997, approximately 24 to 31 percent
of imports from China, with corresponding values of $17 billion to $23
billion, arrived with some type of SWPM.16 However, roughly
30 percent of Chinese imports that arrive with SWPM are voluntarily
fumigated before arrival. Thus, the value of imports from China
potentially affected by this interim rule is estimated to range between
$12 billion and $16 billion, or 17 to 22 percent of the total value of
imports from China. These estimates, however, represent a maximum cost
that would occur only if all these imports were lost to U.S. markets, a
situation that is realistically unlikely to occur. As mentioned above,
we do not have data to estimate the actual lower cost associated with
treating and certifying the SWPM, the cost of switching to substitutes
for SWPM, and how those costs would be passed on to U.S. consumers.
---------------------------------------------------------------------------
\16\ These estimates are based on surveys of APHIS inspectors at
three main ports of entry of Chinese imports: Long Beach, CA;
Seattle, WA; and Charleston, SC. Roughly 75 percent of imports from
China are shipped through these ports.
---------------------------------------------------------------------------
The cost to APHIS of implementing this option (verification that
shipments comply with the regulations) is estimated at $2.7 million
annually.17 However, importers will be charged user fees in
order to cover most of the additional costs of inspecting and
supervising activities under this rule. These new user fees are
expected to equal about 15 percent of the fees currently collected for
vessel (ship) clearance, and would increase total agricultural
quarantine inspection fee collections by 2.3 percent.18 It
is anticipated that the U.S. Customs Service may incur additional costs
as well in processing certificates and exporter statements.
---------------------------------------------------------------------------
\17\ This cost is composed of salary, benefits and miscellaneous
expenses of 40 APHIS inspectors.
\18\ In 1997, total AQI user fee collections for the clearance
of air passengers, aircrafts, trucks, vessels, and rail cars
amounted to $116.6 million, of which $18.3 million was for the
inspection of vessels. Data obtained from User Fee Branch,
Management and Budget Division, APHIS.
---------------------------------------------------------------------------
3. Allow Treatment in the United States.
This alternative would favor treatment of SWPM from China prior to
departure from China, but if untreated SWPM arrived at a U.S. port, the
SWPM would be allowed treatment in the United States, reexported, or
destroyed. This alternative would provide a benefit to Chinese
importers in the flexibility afforded them.
It is anticipated, however, that this option would not induce most
exporters to treat SWPM prior to departure from China, and would
instead result in a vastly increased demand for treatment, especially
methyl bromide fumigation, at ports of arrival. There are not currently
enough fumigation facilities at U.S. ports to provide the treatments
that would be required under this alternative. The effect on trade
would be the same as in Option 2 (require certification without
allowing treatment in the United States), in that the same volume of
trade would still be disrupted (up to about $16 billion), but with
added costs to APHIS for supervising fumigation at ports of entry. It
is estimated that the cost of additional APHIS inspectors would be $6.8
million annually in order to implement this option.19 As in
option 2, most of the additional costs of inspection would likely be
borne by importers in the form of user fees.
---------------------------------------------------------------------------
\19\ This cost is composed of salary, benefits and miscellaneous
expenses of 100 APHIS inspectors.
---------------------------------------------------------------------------
Additionally, the potential for pest dissemination in the United
States is higher than under option 2 as importers would routinely be
allowed to separate cargo before destroying infested SWPM. This
alternative is not consistent with our policy for regulating SWPM from
all other parts of the world, which is essentially that the SWPM must
be rendered safe prior to arrival.
4. Prohibit SWPM from China
The most restrictive alternative would be for APHIS to prohibit
entry into the United States of all SWPM from China. No options for
treatment or certification would be available. SWPM arriving at U.S.
ports would be refused entry, or would be seized and destroyed.
Under this option, pest introductions from SWPM from China would
theoretically be eliminated. The benefits to this option would be the
avoidance of potential damages to forest and agricultural resources
estimated at $41 billion. The need for treatments would be eliminated,
and the need for inspections would be greatly reduced.
The cost of this option would be a disruption of trade with China,
with an estimated $23 billion worth of imports that are now shipped
with SWPM potentially affected. It is unclear whether any retaliatory
actions would be taken against the $27.9 billion U.S. export market to
China.
While this option would be the most effective means of controlling
the pest
[[Page 50108]]
risk, APHIS believes that the requirements in this interim rule, Option
2, would strike the appropriate balance under current conditions
between the need to manage the immediate pest risk with the need to
minimize trade disruptions. The agency continues to evaluate the
problem of SWPM imports in general and is seeking information to
develop longer-term solutions to the problem.
Summary and Conclusions
Pests of the genera Anoplophora, Ceresium, Hesperophanes, and
Monochamus, including the Asian longhorned beetle, are destructive
wood-boring insects that can seriously damage and eventually kill
healthy trees. The Asian longhorned beetle was first discovered in the
United States in 1996 and subsequent discoveries have been made in
numerous inland distribution warehouses. There is evidence that SWPM
from China is the source of the pest infestations. If left unchecked,
these pests have the potential to cause economic losses of $41 billion,
affecting the forest products, commercial fruit, maple syrup, nursery,
and tourist industries in the United States.
The interim rule would require that SWPM from China be treated or
fumigated prior to departure from China. Other options to minimize pest
risk were considered, but the interim rule is consistent with APHIS'
policy on the need to treat materials prior to entry and render them
safe on arrival. We believe that, under current conditions, this
interim rule strikes an appropriate balance between the need to manage
the immediate pest risk and the need to minimize trade disruptions.
Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L.
104-121, 5 U.S.C. Secs. 801-808).
This rule has been designated by the Administrator, Office of
Information and Regulatory Affairs, Office of Management and Budget, as
a major rule under the Small Business Regulatory Enforcement Fairness
Act of 1996 (Act).
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
National Environmental Policy Act and Environmental Effects Abroad
of Major Federal Actions
An environmental assessment and finding of no significant impact
have been prepared for this rule. The assessment provides a basis for
the conclusion that the fumigation, heat treatment, and treatment with
preservatives of SWPM imported from China will present a negligible
risk of introducing or disseminating plant pests and will not have a
significant impact on the quality of the human environment. Based on
the finding of no significant impact, the Administrator of the Animal
and Plant Health Inspection Service has determined that an
environmental impact statement need not be prepared.
The environmental assessment and finding of no significant impact
were prepared in accordance with: (1) The National Environmental Policy
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), (2) Regulations of the
Council on Environmental Quality for implementing the procedural
provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations
implementing NEPA (7 CFR part 1b),(4) APHIS' NEPA Implementing
Procedures (7 CFR part 372), and (5) Executive Order 12114 of January
4, 1979, ``Environmental Effects Abroad of Major Federal Actions'' (44
FR 1957-1962).
Executive Order 12114 ``* * * represents the United States
Government's exclusive and complete determination of the procedural and
other actions to be taken by Federal agencies to further the purpose of
the NEPA with respect to the environment outside the United States, its
territories, and possessions'' (section 1-1). This environmental
assessment has been designed to satisfy the provisions of the Executive
Order and NEPA and its implementing regulations, to the extent
applicable.
In the environmental assessment prepared to aid development of this
rule, APHIS considered carefully four alternatives in detail: (1)
Taking no action (continuing the existing permitting process for SWPM);
(2) requiring treatment and certification abroad (the preferred
action); (3) treatment abroad or in the United States; and (4)
prohibiting entry of SWPM. The potential environmental effects of each
alternative are considered below.
The no action alternative does not provide the necessary degree of
protection from deep wood boring pest species in Chinese imports. The
frequency of interception of infested commodities with SWPM from China
makes it likely that continued enforcement of the current regulations
would not exclude wood borers and other plant pests.
Ultimately, it would be expected that those plant pests present in
the SWPM from China would be introduced into the United States. Their
movement from the site of introduction would be expected to result in
increasingly greater damage to forest ecosystem commensurate with the
spread. The response to this increased damage would be expected to
include greater uncoordinated applications of pesticides to control
pest damage and more destruction of forest, shade, and ornamental
trees. The potential environmental consequences of this alternative are
anticipated to be greater than the other alternatives. This approach
would enhance the likelihood of pest introduction and the potential for
damage to forest ecosystems from pest introductions.
Treatment and certification abroad (the preferred alternative)
would involve the implementation of additional phytosanitary measures
not included in the existing permit requirements for SWPM from China.
Most treatments would be expected to occur in China, although exporters
in China might purchase some SWPM treated elsewhere. Alternative
packing materials, such as plastic, metal, and loose wood packing
materials, could be used in lieu of treatment to qualify the shipment
for certification. The potential environmental consequences of this
alternative relate primarily to treatment chemicals and are anticipated
to be less than the no action alternative, but greater than the
prohibition alternative.
Heat treatments must be performed only at a facility in China
approved by APHIS or an inspector authorized by the Administrator and
the national government of the People's Republic of China. The
operation of the facility must comply with the standards set by APHIS
to ensure proper treatment and elimination of pest risk. Approved heat
treatment and proper handling of the regulated articles eliminates pest
risk and has minimal environmental consequences.
The environmental effects of fumigation of SWPM under the preferred
alternative are as follows. Most fumigations of wood products have
historically involved treatments with methyl bromide due to
convenience, cost, availability, ease of handling, timely completion of
treatment, and good efficacy. In addition, formulations of sulfuryl
fluoride and phosphene have been used, but their applications have been
more
[[Page 50109]]
limited. Sulfuryl fluoride has been difficult to handle effectively and
safely. Phosphene works well for small enclosed areas, but is less
efficient for larger treatments. The required length of treatment for
good penetration and efficacy of these compounds is generally greater
than for methyl bromide.
Approved fumigation and proper handling of the regulated articles
eliminates pest risk and poses no direct risks to personnel involved in
the treatment or nontarget species. There are, however, potential
effects on the ozone layer from using methyl bromide, and these are
discussed in detail in the environmental consequences section of the
environmental assessment.
To evaluate the potential for environmental impacts from pest
introductions under the preferred (``treatment abroad'') alternative,
this assessment considers data from recent voluntary fumigation
treatments by some shippers in China. APHIS port inspectors reviewed
their records of shipments from China that had been fumigated prior to
arrival (which comprised some 30 percent of Chinese shipments to that
port). Inspectors found live, quarantine pests in 1 percent of those
shipments that were reported to have been fumigated. Although not all
shipments were inspected and inspections do not always reveal
infestations, extrapolation of these rates of compliance for shipments
to all regulated loads would be expected to result in an overall
effective treatment rate of 96-97 percent. It is anticipated that some
forest pests present in the SWPM from China could still be introduced
into the United States, but the frequency of introduction and the
number of pests would be expected to be much less than under the
current regulations (no action alternative).
Preservative treatments authorized by the United States
Environmental Protection Agency (EPA) are also allowed under the
preferred alternative. The major chemicals used for this purpose are
creosote, chlorpyrifos, and oxine-copper applied to the surface of the
wood. Proper adherence to label instructions is required to prevent
adverse health effects to the applicators and those individuals
involved in the shipping and handling processes. Compliance with the
label ensures that environmental consequences are minimal to human
health and nontarget species.
This alternative could result in a substantial increase in the need
for treatments, including fumigation with chemicals such as methyl
bromide and phosphene, at ports and other locations in China. It is
difficult to quantify the increase in treatments or in pesticides that
may be used because the interim rule does provide for the use of
nonchemical alternatives. Potential increase in the use of methyl
bromide is of concern because it is a chemical that is associated with
ozone depletion and resulting excessive ultraviolet radiation.
Methyl bromide is one of several man-made substances that react
chemically with ozone in the atmosphere to deplete the stratospheric
ozone layer that protects the earth's surface from excessive
ultraviolet radiation. Methyl bromide is considered a Class I ozone
depleting substance under the Clean Air Act and the Montreal Protocol.
Thus, the use of methyl bromide in fumigations required by this interim
rule could have a substantial effect on stratospheric ozone depletion.
APHIS estimates that, if China were to comply with the interim rule
by fumigating SWPM shipments with methyl bromide, China could use
between 1,040 to 12,565 metric tons of methyl bromide annually. The
pest risk assessment and environmental assessment presuppose that China
could comply with the treatment requirements of the interim rule
through an increase in its use of methyl bromide. However, it is likely
that China would employ a variety of approved strategies to comply with
the interim rule, including use of nonregulated packing materials, heat
treatments, and other fumigants such as phosphene.
APHIS is concerned that any increase in methyl bromide use as a
result of this interim rule does not cause long-lasting damage to the
ozone layer. APHIS also emphasizes that this is an interim measure that
will remain in effect for only as long as it takes to develop a more
effective solution to the problem--a pest problem that could, if not
addressed, result in substantial environmental damage to the forests
and ecosystems of the United States. As discussed previously in this
interim rule, APHIS will be reviewing regulations pertaining to SWPM
from all foreign countries with the intent of developing effective and
long-lasting pest control measures that are environmentally acceptable.
The potential environmental consequences of the next alternative
(allowing treatment to occur in the United States, or abroad) are
anticipated to be comparable to the previously described ``treatment
abroad'' alternative in terms of direct effects of treatment chemicals.
However, the overall environmental effects of the ``treatment in the
United States'' alternative are expected to be greater due to the
elevated risk of introduction of pest species into the United States.
The treatments for this alternative would be similar to those for the
preferred action, but the location of heat treatment or fumigation
could be at ports in the United States, and treatment by preservatives
in the United States would not be an option. Shippers could also elect
to re-export their cargo or have it destroyed at the United States port
rather than undergo treatment, but it is expected that most shippers
would prefer the treatment costs over the costs of re-export or
destruction of cargo. The effects of each treatment would be expected
to be similar to those for the preferred action and pose comparable
risks.
Alternative packing techniques and use of material other than SWPM
are an option under all alternatives. Structural substitutes for SWPM,
such as plastic, metal, and loose wood packing materials, could be
used. Tight placement of shipments in a manner that eliminates the need
for packing materials could have some applications. This option enables
the shipper to transport commodities to the United States without the
treatments needed for SWPM. The cost, applicability to particular
cargoes, and availability of these other packing materials is expected
to determine the feasibility for different shipments. Use of these
packing materials eliminates pest risk and has minimal environmental
consequences. The need of shippers to manufacture or obtain substitute
packing materials could result in some environmental effects, dependent
upon the potential effects of the manufacturing process.
The final and most stringent alternative would be for APHIS to
prohibit entry into the United States of all SWPM from China. There
would be no options for treatment and certification. SWPM arriving at
U.S. ports would be reexported, or would be seized and destroyed. This
alternative makes introductions of pests in SWPM much less likely, but
inaccurate documentation and limited capacity for monitoring of
compliance with these regulations are still possible. This would be
expected to eliminate most of the need for treatments and decrease the
need for inspections. The potential environmental consequences of this
alternative are anticipated to be less than the other alternatives.
Inspectors would have to check some containers to ensure shipper
compliance, but this could be done by a brief look in the container to
verify that no SWPM is present. Such inspections are less burdensome
than thorough pest inspections when SWPM is present. The
[[Page 50110]]
direct environmental consequences of prohibition are minimal, but the
methods of destruction of seized cargo with SWPM could include
incineration and other processes that affect environmental quality.
Copies of the environmental assessment and finding of no
significant impact are available for public inspection at USDA, room
1141, South Building, 14th Street and Independence Avenue SW.,
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday,
except holidays. Persons wishing to inspect copies are requested to
call ahead on (202) 690-2817 to facilitate entry into the reading room.
In addition, copies may be obtained by writing to the individual listed
under FOR FURTHER INFORMATION CONTACT.
Paperwork Reduction Act
In accordance with section 3507(j) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection and
recordkeeping requirements included in this interim rule have been
submitted for expedited approval to the Office of Management and Budget
(OMB). Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the Paperwork Reduction Act unless that collection of
information displays a currently valid OMB control number. When OMB
completes its review of the information collection requirements
contained in this rule, we will publish a notice in the Federal
Register of OMB's decision. If OMB approves the information collection,
the notice will include the OMB control number.
Please send written comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,
DC 20503. Please state that your comments refer to Docket No. 98-087-1.
Please send a copy of your comments to: (1) Docket No. 98-087-1,
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River
Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer,
OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW.,
Washington, DC 20250. A comment to OMB is best assured of having its
full effect if OMB receives it within 30 days of publication of this
interim rule.
The paperwork associated with this interim rule will include the
completion of foreign government certificates and exporter statements.
There will also be requests for inspections. We are soliciting comments
from the public (as well as affected agencies) concerning our
information collection and recordkeeping requirements. We need this
outside input to help us:
(1) Evaluate whether the information collection is necessary for
the proper performance of our agency's functions, including whether the
information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
information collection, including the validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated to average 0.087 hours per response.
Estimated number of respondents: 29,000.
Estimated number of responses per respondent: 29.31.
Estimated total annual burden on respondents: 73,950 hours.
Copies of this information collection can be obtained from:
Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and Independence
Ave., SW, Washington, DC 20250.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, tribal
governments, and the private sector. Under section 202 of the UMRA,
APHIS generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year. When such a statement is needed for a
rule, section 205 of the UMRA generally requires APHIS to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, more cost-effective, or least burdensome alternative that
achieves the objectives of the rule.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) that may result in expenditures by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. Thus, this
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
List of Subjects
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.
7 CFR Part 354
Exports, Government employees, Imports, Plant diseases and pests,
Quarantine, Reporting and recordkeeping requirements, Travel and
transportation expenses.
Accordingly, we are amending 7 CFR parts 319 and 354 as follows:
PART 319--FOREIGN QUARANTINE NOTICES
1. The authority citation for part 319 continues 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 2.22, 2.80, and 371.2(c).
2. In Sec. 319.40-1, a new definition is added in alphabetical
order to read as follows:
Sec. 319.40-1 Definitions
* * * * *
Exporter statement. A written declaration by the exporter,
accompanying a shipment at the time of importation, declaring the
nature of the shipment and that the shipment contains no solid wood
packing material.
* * * * *
Sec. 319.40-3 [Amended]
3. In Sec. 319.40-3, paragraphs (b)(1), (b)(2), and (b)(3), the
first sentence of the introductory text in each paragraph is amended by
adding the phrase``, except that solid wood packing material from China
must be imported in accordance with Sec. 319.40-5(g)'' immediately
before the period at the end of the sentence.
4. In Sec. 319.40-5, new paragraphs (g) and (h) are added to read
as follows:
Sec. 319.40-5 Importation and entry requirements for specified
articles.
* * * * *
(g) Solid wood packing material from China. Solid wood packing
material
[[Page 50111]]
from China may be imported only in accordance with this paragraph.
(1) Prior to departure from China, the solid wood packing material
must be heat treated, fumigated, or treated with preservatives, using a
treatment schedule contained in Sec. 319.40-7 or in the Plant
Protection and Quarantine Treatment Manual, which is incorporated by
reference at Sec. 300.1 of this chapter. During the entire interval
between treatment and export the solid wood packing material must be
stored, handled, or safeguarded in a manner which excludes any
infestation of the solid wood packing material by plant pests.
(2) At the time of arrival at the port of first arrival, the solid
wood packing material must be accompanied by a certificate signed by an
official of a Chinese government agency authorized by the national
government of China stating that the solid wood packing material, prior
to departure from China, has been heat treated, fumigated, or treated
with preservatives using a treatment schedule contained in Sec. 319.40-
7 or in the Plant Protection and Quarantine Treatment Manual. Exporters
may, at their option in order to expedite release of their shipment at
the port of first arrival, arrange to have each article of solid wood
packing material that has been treated marked at the treatment facility
with a stamp or weatherproof label that reads CHINA TREATED. This type
of marking, however, is not a substitute for the required certificate.
(3) If an inspector determines that a shipment imported from China
contains plant pests, or contains solid wood packing material that was
not heat treated, fumigated, or treated with preservatives, or that was
not accompanied by a certificate documenting heat treatment,
fumigation, or preservative treatment, the inspector may refuse entry
into the United States of the entire shipment (cargo and solid wood
packing material). If the inspector determines that the cargo may be
separated from the solid wood packing material and that the solid wood
packing material may be destroyed or reexported without risk of
spreading plant pests, the inspector may allow the importer to separate
the cargo from the solid wood packing material at a location and within
a time period specified by the inspector and destroy or reexport the
solid wood packing material under supervision of an inspector. The
means used to destroy solid wood packing material under this section
must be incineration, or chipping followed by incineration. The
importer shall be responsible for all costs associated with inspection,
separation, and destruction or reexportation of solid wood packing
material, including costs of the services of an inspector to monitor
such activities, in accordance with Sec. 354.3(j) of this chapter.
(h) Cargo from China that does not contain solid wood packing
material. All commercial shipments imported from China that do not
contain any solid wood packing material must include an exporter
statement on or attached to the commercial invoice and as an attachment
to the bill of lading stating that the shipment contains no solid wood
packing material. Any shipment that is not accompanied by such an
exporter statement shall be subject to inspection for solid wood
packing material, and if such inspection is ordered by an inspector,
the shipment will not be granted entry into the United States prior to
completion of the inspection; the importer shall be responsible for all
costs associated with inspection, separation, and destruction or
reexportation of any solid wood packing material, including costs of
the services of an inspector to monitor such activities in accordance
with Sec. 354.3(j) of this chapter.
Sec. 319.40-10 [Amended]
5. In Sec. 319.40-10, footnote 5 is revised to read as follows:
\5\ Provisions relating to costs for other services of an
inspector, including services related to extra inspection and
separation of cargo from packing material for shipments that arrive
without a complete certificate or exporter statement as required,
are contained in part 354 of this chapter.
PART 354--OVERTIME SERVICES RELATING TO IMPORTS AND EXPORTS; AND
USER FEES
6. The authority citation for part 354 continues to read as
follows:
Authority: 7 U.S.C. 2260; 21 U.S.C. 136 and 136a; 49 U.S.C.
1741; 7 CFR 2.22, 2.80, and 371.2(c).
7. In Sec. 354.3, a new paragraph (j) is added to read as follows:
Sec. 354.3 User fees for certain international services.
* * * * *
(j) The person for whom the service is provided and the person
requesting the service are jointly and severally liable for payment of
user fees for any import or entry services listed below, of $56.00 per
hour, or $14.00 per quarter hour, with a minimum fee of $14.00, for
each employee required to perform the following services. If the
services must be conducted on a Sunday or holiday or at any other time
outside the normal tour of duty of the employee, then the premium user
fee rate as listed below applies, as well as the 2-hour minimum charge
and a commuted traveltime period required by Sec. 354.1(a)(2). If the
services requested are performed on a Sunday, the hourly user fee rate
will be $74.00, or $18.50 per quarter hour, with a $18.50 minimum. If
the services requested are performed on a day other than Sunday outside
the normal tour of duty of the employee providing the service, the
hourly user fee rate will be $65.00, or $16.25 per quarter hour, with a
$16.25 minimum:
(1) Conducting inspections, on vessels or in storage areas, of
solid wood packing material or cargo when a shipment arrives without a
certificate or exporter statement required under Sec. 319.40-5(g) or
Sec. 319.40-5(h) of this chapter, or with an incomplete certificate or
exporter statement; and
(2) Supervising the separation of cargo from solid wood packing
material denied entry under this subpart and the destruction or
reexportation of the solid wood packing material.
Done in Washington, DC, this 15th day of September 1998.
Craig A. Reed,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-25058 Filed 9-15-98; 2:53 pm]
BILLING CODE 3410-34-P
