[Federal Register: July 19, 2006 (Volume 71, Number 138)]
[Rules and Regulations]
[Page 40875-40879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jy06-1]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
[[Page 40875]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Parts 301 and 319
[Docket No. 00-067-2]
RIN 0579-AB55
Gypsy Moth; Regulated Articles
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are amending the gypsy moth regulations by removing
restrictions on the interstate movement of wood chips, which do not
pose a risk of containing gypsy moth egg masses, and by adding
restrictions on the movement and importation of bark and bark products,
which pose a risk of containing gypsy moth egg masses. In addition, we
are extending by 2 months the period during which regulated articles
originating outside of any generally infested area must be safeguarded
from infestation in order to be eligible for interstate movement
directly through any generally infested area without a certificate or
permit. These changes are necessary to update the provisions in the
regulations to ensure consistent actions by the Animal and Plant Health
Inspection Service, our cooperators, and industry in order to limit the
artificial spread of gypsy moth.
DATES: Effective Date: August 18, 2006.
FOR FURTHER INFORMATION CONTACT: Dr. Weyman Fussell, Program Manager,
Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit
134, Riverdale, MD 20737-1236; (301) 734-5705.
SUPPLEMENTARY INFORMATION:
Background
The gypsy moth, Lymantria dispar (Linnaeus), is an introduced,
highly destructive pest of trees that, during its caterpillar stage,
poses a serious threat to hundreds of species of trees and shrubs. A
female gypsy moth lays a cluster of eggs (called an egg mass) on and
near trees. Up to a thousand caterpillars can hatch from a single egg
mass. The caterpillars feed on nearby trees and shrubs, removing much,
if not all, foliage. This defoliation, when combined with other forms
of stress such as drought and soil compaction, may ultimately result in
the death of the tree.
On May 23, 2003, we published in the Federal Register (68 FR 28157-
28161, Docket No. 00-067-1) a proposed rule to amend the regulations in
``Subpart-Gypsy Moth'' (7 CFR 301.45 through 301.45-12) and ``Subpart-
Gypsy Moth Host Material from Canada'' (7 CFR 319.77-1 through 319.77-
5) by removing restrictions on the interstate movement of wood chips,
and by adding restrictions on the movement and importation of bark and
bark products. In addition, we proposed to extend by 2 months the
period during which regulated articles originating outside of any
generally infested area must be safeguarded from infestation in order
to be eligible for interstate movement directly through any generally
infested area without a certificate or permit.
We solicited comments on our proposal for 60 days ending on July
22, 2003. We received seven comments by that date, from representatives
of Federal agencies, industry groups, and a foreign plant protection
organization. Six of the commenters conditionally supported the
proposed rule. One commenter perceived the proposed changes as a
lessening of restrictions. We have carefully considered these comments.
They are discussed below.
Four commenters were concerned that our use of the rather general
term ``bark and bark products'' would result in restrictions being
placed on bagged mulch and soils containing composted bark. These
commenters suggested that we amend the rule by specifying in a
definition for ``bark and bark products'' that soils containing bark
composts and bagged mulch are excluded.
Soil is not listed as a regulated article for gypsy moth, so there
are no existing requirements in the gypsy moth regulations regarding
its movement. However, bark will be a regulated article as a result of
this final rule. If soil or bagged mulch contains bark, then the
mixture would necessarily be subject to regulation. The regulations in
Sec. 301.45-5(a)(4) provide that a certificate may be issued for the
interstate movement of a regulated article if it has, among other
things, been handled in such a manner that no infestation would be
transmitted thereby, as determined by an inspector. One means by which
bark may qualify for a certificate under these provisions is composting
according to the method described in Appendix N of the Gypsy Moth
Program Manual.\1\
---------------------------------------------------------------------------
\1\ The Gypsy Moth Program Manual may be viewed on the Internet
at http://www.aphis.usda.gov/ppq/manuals/domestic/GM_Chapters.htm.
---------------------------------------------------------------------------
In response to the commenters' suggestion, we are adding
definitions for bark and bark products to Sec. 301.45-1, specifically,
we have defined bark as ``The tough outer covering of the woody stems
of trees, shrubs, and other woody plants as distinguished from the
cambium and inner wood,'' and bark products as ``Products containing
pieces of bark including bark chips, bark nuggets, bark mulch, and bark
compost.''
Another commenter stated that processed bark and bark products are
not a source of gypsy moth infestations and that they should be
excluded from the proposed rule or that their inclusion should be
delayed until it can be scientifically established that processed bark
and bark products present a risk of gypsy moth infestation.
Currently, we do not have a protocol that specifies processing
methods under which the potential risks posed by bark would be
mitigated. The Animal and Plant Health Inspection Service's (APHIS)
Center for Plant Health Science and Technology (CPHST) is addressing
this issue in order to develop a scientifically validated protocol for
processed bark. There is, however, ample evidence that gypsy moth egg
masses are resilient and tolerate rough handling and climatic extremes
while maintaining viability; likewise, gypsy moth eggs deposited on the
bark of trees remain viable after typical processing to render the bark
as chips or nuggets. Until a validated protocol is developed, we
believe that it is necessary to apply the measures described in this
rule to processed bark and bark products in order to provide the
necessary
[[Page 40876]]
safeguarding measures to limit the artificial spread of gypsy moth in
the United States.
One commenter suggested that the change to the regulations
concerning bark and bark products should not include soils containing
softwood composted bark (e.g. white cedar, pine, hemlock) since they
are not a host for gypsy moth.
While it is true that pine is not known to be a food source for
European gypsy moth, it is a food source for the Asian gypsy moth.
CPHST has made scientific observations and collected data supporting
this conclusion. Through careful study and analysis, it was recognized
that, although pine is not a food source host for the European gypsy
moth, pine can, in certain circumstances, be an oviposition site.\2\
However, as stated previously, if soil contains bark, then the mixture
is subject to regulation.
---------------------------------------------------------------------------
\2\ Rossiter, M.C. 1987. Use of a secondary host, pitch pine, by
non-outbreak populations of the gypsy moth. Ecology 68: 857-868.
---------------------------------------------------------------------------
One commenter suggested we leave the restriction on wood chips in
place, as well as impose restrictions on the movement of bark and bark
products. The commenter stated that since gypsy moths favor placing
their eggs in protected areas, piles of wood chips, which APHIS permits
to contain up to 2 percent bark, may harbor gypsy moth egg masses which
could lead to gypsy moth infestation.
The gypsy moth regulations do not allow wood chips to contain up to
2 percent bark. Our regulations concerning the importation of
unmanufactured wood, found at 7 CFR 319.40 through 319.40-11, provide
that logs may retain bark on up to 2 percent of surface area. This
should not be construed to mean that bark present in wood chips is
permitted under the gypsy moth regulations. For the purposes of this
rule, bark is considered a contaminant in wood chips and regulated
accordingly.
In addition, wood chips would rarely, if ever, be expected to be an
oviposition site for gypsy moth. While it is true that gypsy moth favor
placing their eggs in protected areas, they do not dig into sites such
as piles of wood chips. When the larva is ready to enter the pupal
phase, it will stay in or near a preferred food source, such as a tree.
In general, when a female gypsy moth emerges from its pupal casing, it
will mate and deposit eggs within 1 meter of that pupation site, which
will then become an oviposition site for the emerging female gypsy
moth. Piles of wood chips are not environments larvae would typically
pick for pupation because of a lack of feeding sources as well as the
availability of more preferred food source sites.
Another commenter stated that the inspection of bark and bark
products in bulk for obtaining phytosanitary certificates is unfeasible
and that treatment is prohibitively expensive. The commenter also
questioned whether sawmills and lumber mills in a Canadian noninfested
area could or would be able to provide certification of origin for bark
or bark products imported from Canada. This commenter additionally
stated that APHIS needs to focus on shipments of bark products entering
at the Canadian border as a potential pathway for pest infestation.
Under the regulations in Sec. 319.77-4, as amended by this rule,
bark and bark products imported from Canada that originate in a
Canadian infested area must be accompanied by an officially endorsed
Canadian phytosanitary certificate that includes an additional
declaration confirming that they have been inspected and found free of
gypsy moth or treated for gypsy moth in accordance with the regulations
in 7 CFR part 305, or they must be consigned to a specified U.S.
processing plant or mill operating under a compliance agreement with
APHIS for specified handling or processing.
If bark or bark products originate in a Canadian noninfested area,
they must be accompanied by a certification of origin stating that they
were produced in an area of Canada where gypsy moth is not known to
occur. Under the regulations in Sec. 301.45-4, sawmills, lumber mills,
and any other person engaged in growing, handling or moving regulated
articles in Canadian noninfested areas can enter into a written
compliance agreement with APHIS in which the person agrees to comply
with the provisions of this part. An inspector, or a qualified
certified applicator or any other person operating in accordance with a
compliance agreement can issue the certification of origin, affirming
that a specified regulated article is eligible for interstate movement
in accordance with this subpart. We believe that the measures described
in this rule with regard to importation and movement of bark and bark
products at the Canadian border provide the necessary safeguarding
measures to limit the artificial spread of gypsy moth in the United
States.
In a collateral issue, one commenter raised concerns about the
current entry requirements in APHIS' Canadian Border Manual with
respect to stone and quarry products. The commenter requested that we
amend the Canadian Border Manual to remove the requirement for
phytosanitary certificates for stone and quarry products moving from
infested to uninfested areas, as U.S. authorities at the border ask for
certifications based on requirements found in the Canadian Border
Manual, but there are no such certificate requirements extant in the
regulations.
Quarry products fall outside the scope of this rulemaking. However,
this issue will be examined and addressed as appropriate.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, with the
change discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
In this document, we are amending the gypsy moth regulations by
removing restrictions on the interstate movement of wood chips, which
do not pose a risk of containing gypsy moth egg masses, and by adding
restrictions on the movement and importation of bark and bark products,
which pose a risk of containing gypsy moth egg masses. In addition, we
are extending by 2 months the period during which regulated articles
originating outside of any generally infested area must be safeguarded
from infestation in order to be eligible for interstate movement
directly through any generally infested area without a certificate or
permit. These changes are necessary to update the provisions in the
regulations to ensure consistent actions by APHIS, our cooperators, and
industry in order to limit the artificial spread of gypsy moth.
The U.S. forest industry employs close to 1.4 million people and
contributes approximately $200 billion annually to the national
economy.\3\ Although the United States is a net importer of wood and
wood products, wood exports totaled $5.24 billion in 2001. The gypsy
moth is a pest of concern for the U.S. forest industry. Defoliation of
trees by gypsy moths often results in the death of the trees, which
leads to economic loss, changes in ecosystems and wildlife habitat, and
disturbed water flow and water quality. Economic costs to the U.S.
forest
[[Page 40877]]
industry, in addition to the costs of timber losses and pest control,
can also arise from trade reductions as importing countries impose
protective restrictions on access to their markets for wood products.
Gypsy moths are already causing losses in quarantined areas in the
United States. Annual losses attributable to gypsy moths are estimated
to be about $22 million.\4\ Thus, any spread of gypsy moth to areas
currently free from that pest could have a negative economic and
environmental impact. The changes in this final rule are necessary to
limit the artificial spread of the gypsy moth.
---------------------------------------------------------------------------
\3\ Southeastern Lumber Manufactruers Association, Inc., U.S.
Forest Products Industry Statistics (http://www.slma.org/ stats--
us.shtml).
\4\ David Pimentel, Lori Latch, Rodolfo Zuniga, and Doug
Morrison, ``Environmental and Economic Costs Associated with Non-
indigenous Species in the United States,'' College of Agriculture
and Life Sciences, Cornell University, Ithaca, NY 14850-0901, June
12, 1999.
---------------------------------------------------------------------------
Interstate Movement Restrictions
The changes to the domestic gypsy moth regulations will affect
sawmills, pulp mills, and nurseries and garden centers that are
involved in the interstate movement of wood chips and bark and bark
products from gypsy moth generally infested areas. Restrictions will no
longer apply to the movement of wood chips, but entities involved in
the interstate movement of bark and bark products will be required to
have each shipment of bark or bark products inspected or treated under
the direction of an inspector, or self-inspect and certify each
shipment in accordance with the Gypsy Moth Program Manual, no more than
5 days prior to moving it from a generally infested area to an area
that is not generally infested. While self-inspection minimizes
regulatory costs and time delay costs, other costs associated with
time, salary, and recordkeeping could be incurred.
The Small Business Administration (SBA) has established size
standards based on the North American Industry Classification System
(NAICS) to determine and to classify which economic entities can be
considered small entities. The SBA classifies sawmills as small if they
employ 500 or fewer employees. Pulp mills are considered small if they
employ 750 or fewer employees. Nursery and garden centers are
considered small if their annual sales are less than $6 million. In
1997, the most recent year for which data are available, there were
1,678 sawmills (NAICS code 321113) in quarantined States,\5\ 9 pulp
mills (NAICS code 322110) in generally infested areas, and 3,446
nursery and garden centers (NAICS code 444220) in generally infested
areas of the United States. Approximately 93 percent of those sawmills,
95 percent of those nursery and garden centers, and 93 percent of those
pulp mills are considered to be small entities under the SBA's
standards.\6\
---------------------------------------------------------------------------
\5\ Information on the number of sawmills is avaialble at the
State level only. County information is withheld to avoid disclosing
data for individual establishments. This may result in an
overestimate of the number of affected entities because not all
counties within quarantined States are in generally infested areas.
\6\ U.S. Census Bureau, 1997 Economic Census: Manufacturing and
Retail Geographic Area Series, November 1999 (revised November
2002).
---------------------------------------------------------------------------
In 1997, sawmills in quarantined States produced 2,896,170 tons of
primary bark residue (see table 1), which was approximately 12 percent
of the national total.\7\ However, these data do not include the bark
residue produced in urban areas and by land clearing operations.
Additionally, most commercially available bark and mulch products are
not produced at sawmills. Independent bark and mulch producers buy bark
and wood residue from sawmills, reprocess the material, and then sell
it in bulk or bagged. The number and size of these independent entities
are not available. The impact upon these entities would depend upon
what proportion of their business is bark mulch and what percentage of
that is shipped to areas that are not generally infested. The higher
the percentage shipped to areas that are not generally infested, the
greater the negative effect would be.
---------------------------------------------------------------------------
\7\ 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
------------------------------------------------------------------------
Generally
infested areas U.S. total
------------------------------------------------------------------------
Sawmills 1.............................. 1,678 4,390
Pulp mills.............................. 9 36
Nursery and garden centers.............. 3,446 16,432
Primary bark residue production (tons).. 2,896,170 24,528,380
------------------------------------------------------------------------
\1\ Information about the number of sawmills is available at the State
level only. County data is withheld to avoid disclosing data for
individual establishments. This may result in an overestimate of the
number of affected entities because not all counties within
quarantined States are in generally infested areas.
Source: U.S. Census Bureau, 1997 Economic Census: Manufacturing and
Retail Geographic Area Series, November 1999 (revised November 2002).
Note: Primary bark residue production data from USDA/FS, ``Bark and wood
residue production in gypsy moth quarantined States in 2000,'' Lew R.
McCreery, Economic Action Program, USDA/FS Northeastern Area.
The potential economic effects of these changes will vary by State,
depending on the number and size of entities to be regulated, the
levels of infestation, the quantity of shipments to areas that are not
generally infested, and whether delays occur and whether treatment is
needed. Entities most likely to be affected by the changes are those
that produce bark products and wood chips and independent mulch and
bark producers. There will be opposing results. Removal of wood chips
from the list of regulated articles will result in savings, if there
had been costs before the changes, while the imposition of restrictions
on the movement of bark and bark products may result in additional
costs. Since entities located in generally infested areas produce a
relatively smaller share of bark residue, as shown in table 1, most
shipments of bark products are likely to be small in quantity and to be
contained within generally infested areas with very few shipments to
areas that are not generally infested.
If the inspection of a shipment intended for movement to an area
that is not generally infested reveals the presence of gypsy moths, the
infested articles would not be eligible for movement unless they were
treated or consigned to a facility operating under a compliance
agreement with APHIS for specified handling or processing. If treated,
fumigation could cost between $100 and $150 per truckload, depending
upon the size of the shipment. The need to treat infested bark or bark
products may increase business for certified
[[Page 40878]]
pesticide applicators located in generally infested areas. However,
overall, the results of removing wood chips and adding bark and bark
products to the list of regulated articles may cancel each other out,
resulting in no increase of business for certified applicators.
Regional variation is possible.
The changes are expected to cause a slight increase in the costs of
business for the affected entities. The negative economic impact that
may result from the changes is small compared to the potential for harm
to related industries and to the U.S. economy as a whole that would
result from an increase in the artificial spread of the gypsy moth,
however. Benefits from the unrestricted movement of wood chips are
expected to either cancel out or be greater than any negative effects
of new restrictions on the movement of bark and bark products. Since
the changes would not prohibit their movement, regulated articles that
meet the requirements of the regulations would continue to enter the
market. The overall impact on price and competitiveness is expected to
be relatively insignificant.
Import Restrictions
Under the unmanufactured wood regulations in Sec. 319.40-3,
regulated articles, which will now include bark and bark products, to
be imported into the United States from Canada are subject to the
inspection and other requirements in 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
regulated articles under the regulations related to gypsy moth host
material from Canada would mean that bark and bark products to be moved
into or through a noninfested area of the United States from an
infested area of Canada will have to be accompanied by an officially
endorsed Canadian phytosanitary certificate confirming that they have
been inspected and found free of gypsy moth or have been treated in
accordance with 7 CFR part 305 prior to importation, unless they were
destined for a specified U.S. processing plant or mill under compliance
agreement with APHIS for specified handling or processing. Because the
restrictions that will apply under the regulations for gypsy moth host
material from Canada are only slightly more restrictive than the
restrictions that have been in place under the unmanufactured wood
regulations, requiring certification or treatment prior to importation
rather than at the port of first arrival, we do not believe that they
will have a significant economic impact. In addition, we could not find
any data on the importation of bark or bark products into the United
States from Canada, which indicates that there is not a high volume of
trade in these articles.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
This final rule contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects
7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
7 CFR Part 319
Coffee, Cotton, Fruits, Imports, Nursery stock, Plant diseases and
pests, Quarantine, Reporting and recordkeeping requirements, Rice,
Vegetables.
0
Accordingly, we are amending 7 CFR parts 301 and 319 as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
0
1. The authority citation for part 301 continues to read as follows:
Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80,
and 371.3.
Section 301.75-15 issued under Sec. 204, Title II, Public Law
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400
(7 U.S.C. 1421 note).
0
2. Section 301.45-1 is amended as follows:
0
a. By adding, in alphabetical order, definitions of bark and bark
products to read as set forth below.
0
b. In the definition of regulated articles, paragraph (2), by removing
the words ``wood chips'' and adding the words ``bark and bark
products'' in their place.
Sec. 301.45-1 Definitions.
* * * * *
Bark. The tough outer covering of the woody stems of trees, shrubs,
and other woody plants as distinguished from the cambium and inner
wood.
Bark products. Products containing pieces of bark including bark
chips, bark nuggets, bark mulch, and bark compost.
* * * * *
Sec. 301.45-4 [Amended]
0
3. In Sec. 301.45-4, paragraph (b) is amended by removing the word
``June'' and adding the word ``August'' in its place, and paragraph
(c)(2) is amended by removing the words ``wood chips'' and adding the
words ``bark and bark products'' in their place.
PART 319--FOREIGN QUARANTINE NOTICES
0
4. The authority citation for part 319 continues to read as follows:
Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136
and 136a; 7 CFR 2.22, 2.80, and 371.3.
Sec. 319.40-2 [Amended]
0
5. In Sec. 319.40-2, paragraph (f) is amended by adding the words
``bark and bark products and'' before the word ``logs''.
0
6. Section 319.77-2 is amended by redesignating paragraphs (f) and (g)
as paragraphs (g) and (h), respectively, and by adding a new paragraph
(f) to read as follows:
Sec. 319.77-2 Regulated articles.
* * * * *
(f) Bark and bark products;
* * * * *
0
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) are 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)
[[Page 40879]]
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 Sec. 301.45-3
of this chapter) may be imported from any area of Canada without
restriction under this subpart.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
(2) Bark and bark products or logs or pulpwood with bark attached
that are destined for a U.S. noninfested area or will be moved through
a U.S. noninfested area may be imported into the United States from
Canada only under the following conditions:
(i) If the bark, bark products, logs, or pulpwood originated in a
Canadian infested area, they must be either:
* * * * *
(ii) If the bark, bark products, logs, or pulpwood originated in a
Canadian noninfested area, they must be accompanied by a certification
of origin stating that they were produced in an area of Canada where
gypsy moth is not known to occur.
* * * * *
Done in Washington, DC, this 14th day of July 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E6-11431 Filed 7-18-06; 8:45 am]
BILLING CODE 3410-34-P