[Federal Register: May 23, 2003 (Volume 68, Number 100)]
[Proposed Rules]
[Page 28157-28161]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my03-24]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Parts 301 and 319
[Docket No. 00-067-1]
RIN 0579-AB55
Gypsy Moth; Regulated Articles
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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[[Page 28158]]
SUMMARY: We are proposing to amend 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 proposing 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. These proposed changes are necessary to update
the provisions in these 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: We will consider all comments that we receive on or before July
22, 2003.
ADDRESSES: You may submit comments by postal mail/commercial delivery
or by e-mail. If you use postal mail/commercial delivery, please send
four copies of your comment (an original and three copies) to: Docket
No. 00-067-1, Regulatory Analysis and Development, PPD, APHIS, Station
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state
that your comment refers to Docket No. 00-067-1. If you use e-mail,
address your comment to regulations@aphis.usda.gov. Your comment must
be contained in the body of your message; do not send attached files.
Please include your name and address in your message and ``Docket No.
00-067-1'' on the subject line.
You may read any comments that we receive on this docket in our
reading room. The reading room is located in room 1141 of the USDA
South Building, 14th Street and Independence Avenue SW., Washington,
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through
Friday, except holidays. To be sure someone is there to help you,
please call (202) 690-2817 before coming.
APHIS documents published in the Federal Register, and related
information, including the names of organizations and individuals who
have commented on APHIS dockets, are available on the Internet at
http://www.aphis.usda.gov/ppd/rad/webrepor.html.
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; (301) 734-5705.
SUPPLEMENTARY INFORMATION:
Background
The gypsy moth, Lymantria dispar (Linnaeus), is an introduced,
highly destructive insect 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.
The first major outbreak of gypsy moth in the United States
occurred in Massachusetts in 1889. Since then, the gypsy moth has
infested 19 States and the District of Columbia and has defoliated
thousands of acres of hardwood forests across the northeastern United
States. The infestation continues to move south and west despite
ongoing eradication and control efforts.
Regulated Articles
Because eradication efforts have been largely unsuccessful, Federal
and State regulations focus on limiting the artificial spread of gypsy
moth, which occurs when the insect, in any of its life stages, attaches
to items such as nursery stock, vehicles, outdoor household articles,
and forest products that are moved long distances. The regulations in
``Subpart--Gypsy Moth'' (7 CFR 301.45 through 301.45-12, referred to
below as the regulations) restrict the interstate movement of regulated
articles from generally infested areas of States quarantined for gypsy
moth. In Sec. 301.45-1, the term ``regulated articles'' is defined as:
(1) Trees without roots (e.g., Christmas trees), trees with roots, and
shrubs with roots and persistent woody stems, unless they are
greenhouse grown throughout the year; (2) logs, pulpwood, and wood
chips; (3) mobile homes and associated equipment; and (4) any other
products, articles, or means of conveyance, of any character
whatsoever, when it is determined by an inspector that any life stage
of gypsy moth is in proximity to such articles and the articles present
a high risk of artificial spread of gypsy moth infestation and the
person in possession thereof has been so notified.
The Animal and Plant Health Inspection Service (APHIS) Gypsy Moth
Management Team (GMMT) and our State cooperators recently reviewed the
regulations, focusing on the restrictions on the interstate movement of
regulated articles. Based on the results of this review, we are
proposing to amend the list of regulated articles found in Sec.
301.45-1 by removing wood chips from that list and adding bark and bark
products as regulated articles. The GMMT and State cooperators
determined that wood chips do not play a role in the artificial spread
of gypsy moth because the bark of the tree, where the female gypsy moth
deposits her eggs, is removed prior to chipping the log. Therefore,
wood chips are considered to be free of egg masses. Conversely, bark
and bark products, including mulch, do pose a risk of spreading gypsy
moth because egg masses may survive the debarking process. The
regulations in Sec. 301.45-4(c)(2) that set forth the requirements for
the movement of logs, pulpwood, and wood chips would also be amended to
replace restrictions on wood chips with restrictions on bark and bark
products. These changes are necessary to update the current regulations
and to relieve restrictions on wood chips, which are not necessary, and
to impose restrictions on bark and bark products, which would ensure
that bark and bark products do not contribute to the artificial spread
of gypsy moth.
These proposed changes would also make it necessary to amend the
regulations found in ``Subpart--Gypsy Moth Host Material from Canada''
(7 CFR 319.77-1 through 319.77-5), which are intended to limit the
artificial spread of gypsy moth from infested areas of Canada into
noninfested areas of the United States by restricting the importation
of gypsy moth host material into the United States from Canada. Section
319.77-2 lists the following as regulated articles: (1) Trees without
roots (e.g., Christmas trees), unless they were greenhouse-grown
throughout the year; (2) trees with roots, unless they were greenhouse-
grown throughout the year; (3) shrubs with roots and persistent woody
stems, unless they were greenhouse-grown throughout the year; (4) logs
with bark attached; (5) pulpwood with bark attached; (6) outdoor
household articles; and (7) mobile homes and their associated
equipment. Based on the recommendations of the GMMT and State
cooperators, we are proposing to add bark and bark products to this
list of regulated articles because, as noted previously, gypsy moth egg
masses can survive the debarking process used to produce the raw bark
products.
We would also amend the regulations in Sec. 319.77-4(b), which set
forth the
[[Page 28159]]
conditions for the importation from Canada of logs and pulpwood with
bark attached, so that those conditions would also apply to bark and
bark products imported from Canada. With this proposed change, bark and
bark products to be moved into or through a U.S. noninfested area could
be imported into the United States from Canada only under the following
conditions:
[sbull] If the bark or bark products originated in a Canadian
infested area, they would have to 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 Plant
Protection and Quarantine (PPQ) Treatment Manual, or they would have to
be consigned to a specified U.S. processing plant or mill operating
under a compliance agreement with APHIS for specified handling or
processing.
[sbull] If the bark or bark products originated in a Canadian
noninfested area, they would have to 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.
These proposed changes are necessary to ensure that the importation
of bark and bark products into noninfested areas of the United States
from generally infested areas of Canada will not result in the
artificial spread of gypsy moth from Canada into the United States.
With respect to regulated articles, there is some overlap between
the regulations in ``Subpart--Gypsy Moth Host Material from Canada''
and the regulations in ``Subpart--Lumber, Logs, and Other
Unmanufactured Wood Articles'' (7 CFR 319.40.1 through 319.40-11).
Because of that overlap, the regulations in Sec. 319.40-2(f) note that
in addition to meeting the requirements of the unmanufactured wood
regulations, logs and pulpwood with bark attached imported from Canada
are subject to the inspection and certification requirements for gypsy
moth in Sec. 319.77-4. Similarly, Sec. 319.77-4(b) of ``Subpart--
Gypsy Moth Host Material from Canada'' includes a footnote stating that
logs from Canada are also subject to restrictions under the
unmanufactured wood regulations in Sec. Sec. 319.40 though 319.40-11.
Given that bark and bark products are already subject to restrictions
under the unmanufactured wood regulations, and would also be subject to
restrictions under the regulations regarding gypsy moth host material
from Canada, we would update the cross references described above in
each subpart to include bark and bark products.
Safeguarding
In ``Subpart--Gypsy Moth,'' Sec. 301.45-4 sets forth the
requirements for the interstate movement of regulated articles from
generally infested areas. Paragraph (b) of Sec. 301.45-4 provides that
a regulated article that originates outside of any generally infested
area may be moved interstate directly through any generally infested
area without a certificate or permit if, among other things, the
article has been safeguarded while in any generally infested area
during the months of April through June. Based on the review of these
regulations by the GMMT and State cooperators, we are proposing to
extend the close of this safeguarding period from June until August.
Because the female gypsy moth generally lays eggs in July and August,
and because the flight period of the gypsy moth in northern States is
later in the year, there is a risk that articles could become infested
during transport through a generally infested area during these months.
The proposed extension of the safeguarding period would help protect
against this risk and would also make Sec. 301.45-4(b) consistent with
the provisions of Sec. 301.45-5(a)(2), which require a regulated
article to be inspected within 5 days of the date of movement during
the months of April through August before an inspector can certify the
article for movement.
Executive Order 12866 and Regulatory Flexibility Act
This proposed 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 proposing to amend 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 proposing 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. These proposed changes are necessary
to update the provisions in these 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.\1\ 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 importers 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.\2\ Thus, any spread of gypsy moth to
nonregulated areas could have a negative economic and environmental
impact. The changes in this proposed rule are necessary to limit the
artificial spread of the gypsy moth.
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\1\ Southeastern Lumber Manufacturing Association, Inc., U.S.
Forest Industry Statistics (http://www.slma.org/consumers).
\2\ 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.
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Interstate Movement Restrictions
The proposed changes to the domestic gypsy moth regulations would
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 would
no longer apply to the movement of wood chips, but entities involved in
the interstate movement of bark and bark products would 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
[[Page 28160]]
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,\3\ 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.\4\
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\3\ Information on the number of sawmills is available 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.
\4\ U.S. Census Bureau, 1997 Economic Census: Manufacturing and
Retail Geographic Area Series, November 1999 (revised November
2002).
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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.\5\ 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.
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\5\ W.B. Smith, John S. Visage, David R. Darr, and Raymond M.
Sheffield, Forest Resources of the United States, 1997.
Table 1.--Potentially Affected Entities and Bark Residue Production
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Generally
infested U.S. total
areas
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Sawmills*..................................... 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
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* 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 proposed changes would 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 proposed changes
are those that produce bark products and wood chips and independent
mulch and bark producers. There would be opposing results. Removal of
wood chips from the list of regulated articles would result in savings,
if there had been costs before the proposed 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 truck load, depending
upon the size of the shipment. The need to treat infested bark or bark
products may increase business for certified fumigant 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 proposed 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 proposed 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 proposed 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 Sec. 319.40-3,
regulated articles, which include bark and bark products, to be
imported into the United States from Canada are subject to the
inspection and other requirements in Sec. 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 Sec. 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 a
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 would 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 the PPQ Treatment Manual prior to importation. Because
the restrictions that would apply under the regulations for gypsy moth
host material from Canada are only slightly more restrictive than the
restrictions that already apply under the
[[Page 28161]]
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 would
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. If this proposed rule is adopted: (1) State and
local laws and regulations will not be preempted; (2) no retroactive
effect will be given to this rule; and (3) administrative proceedings
will not be required before parties may file suit in court challenging
this rule.
Paperwork Reduction Act
This proposed 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.
List of Subjects
7 CFR Part 319
Bees, Coffee, Cotton, Fruits, Honey, Imports, Nursery Stock, Plant
diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Rice, Vegetables.
Accordingly, 7 CFR parts 301 and 319 would be amended as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 would continue to read as
follows:
Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L.
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7
U.S.C. 1421 note).
Sec. 301.45-1 [Amended]
2. In Sec. 301.45-1, in the definition of regulated articles,
paragraph (2) would be amended by removing the words ``wood chips'' and
adding in their place the words ``bark and bark products''.
Sec. 301.45-4 [Amended]
3. In Sec. 301.45-4, paragraph (b) would be amended by removing
the word ``June'' and adding in its place the word ``August'', and
paragraph (c)(2) would be amended by removing the words ``wood chips''
and adding in their place the words ``bark and bark products''.
PART 319--FOREIGN QUARANTINE NOTICES
4. The authority citation for part 319 would continue to read as
follows:
Authority: 7 U.S.C. 450, 7711-7714, 7718, 7731, 7732, 7751-7754,
and 7760; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Sec. 319.40-2 [Amended]
5. In Sec. 319.40-2, paragraph (f) would be amended by adding the
words ``bark and bark products and'' before the word ``logs''.
6. Section 319.77-2 would be amended by redesignating paragraphs
(f) and (g) as paragraphs (g) and (h), respectively, and by adding a
new paragraph (f) to read as follows:
Sec. 319.77-2 Regulated articles.
* * * * *
(f) Bark and bark products;
* * * * *
7. In Sec. 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) would be revised to read as follows:
Sec. 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
7 CFR 301.45-3) may be imported from any area of Canada without
restriction under this subpart.
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\2\ Bark, bark products, and logs from Canada are also subject
to restrictions under ``Subpart--Logs, Lumber, and Other
Unmanufactured Wood Articles'' (Sec. Sec. 319.40 through 319.40-11
of this part).
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(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 16th day of May 2003.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-12985 Filed 5-22-03; 8:45 am]
BILLING CODE 3410-34-P