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.

Rules and Regulations Federal Register

27665

Vol. 60, No. 101

Thursday, May 25, 1995

1Throughout this document, the words ‘‘import’’

and ‘‘importation’’ are used to mean moving or

bringing articles into the territorial limits of the

United States.

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Parts 300 and 319

[Docket No. 91–074–6]

RIN 0579–AA47

Importation of Logs, Lumber, and

Other Unmanufactured Wood Articles

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are establishing

comprehensive regulations concerning

imported unmanufactured wood

articles. The new regulations will affect

persons importing logs, lumber, bark

chips, wood chips, certain wood

packing materials, and other

unmanufactured wood articles. We are

also amending several existing

regulations to remove provisions

concerning the importation of certain

wood articles, and to state that such

articles will instead be covered under

the new regulations. We are also

incorporating by reference Agriculture

Handbook 188, the ‘‘Dry Kiln Operator’s

Manual,’’ which contains treatments

authorized by this final rule. We are

taking these actions because there is

increased interest in importing large

volumes of unmanufactured wood

articles into the United States, and

prohibitions and restrictions are

necessary to eliminate any significant

plant pest risk associated with

importing these articles.

DATES: Final rule effective August 23,

1995. The Director of the Office of the

Federal Register approved the

incorporation by reference in

accordance with 5 U.S.C. 552(a) and 1

CFR part 51 on August 23, 1995.

FOR FURTHER INFORMATION CONTACT: Mr.

Richard L. Orr, Senior Entomologist,

APHIS, Policy and Program

Development, Planning and Risk

Analysis Systems, 4700 River Road Unit

117, Riverdale, MD 20737–1238, 301–

734–8939.

SUPPLEMENTARY INFORMATION:

Background

The Animal and Plant Health

Inspection Service (APHIS) is

establishing comprehensive regulations

to eliminate any significant plant pest

risks presented by the importation 1 of

logs, lumber, and other unmanufactured

wood articles.

A changing national and world

economy has recently increased the

incentives to import wood that may

present a significant increase in the risk

of plant pest introduction into the

United States. An example of this

change is the interest of sawmills and

other wood processors in utilizing

foreign sources of wood to offset

expected harvest reductions in the

United States, or to provide raw

materials for their facilities at prices

competitive with or better than

domestic prices.

Trees produced in many foreign

locations are attacked by a wide variety

of exotic plant pests and pathogens that

do not occur in this country. Logs and

other unmanufactured wood articles

imported into the United States could

pose a significant hazard of introducing

plant pests and pathogens detrimental

to agriculture and to natural, cultivated,

and urban forest resources. Plant pests

and pathogens introduced into the

United States in the past, such as the

gypsy moth and the agents of Dutch elm

disease and chestnut blight, have caused

billions of dollars of damage to United

States forest and plant resources.

Until recently, the quantity and

variety of unmanufactured wood

imported were very limited, and there

was little need to develop regulations

specifically to address such imports.

With few exceptions (see the discussion

below of interim regulations allowing

importation of certain logs from Chile

and New Zealand), APHIS has been

dealing with such imports only by

detaining shipments at ports of first

arrival for inspection, and ordering

further action if warranted pursuant to

the Federal Plant Pest Act and

regulations issued under that Act (7 CFR

part 330). In addition, APHIS has

prohibited the entry into the United

States of logs from the former Soviet Far

East and Siberia because a detailed

plant pest risk assessment found that

dangerous plant pests could occur in

such logs and may be introduced with

them.

However, when large volumes of

wood imports are involved, inspection

at the port of first arrival without other

conditions relating to the wood imports

is not practical or adequate for

preventing the introduction of plant

pests associated with imported wood.

Interest in importing logs and other

unmanufactured wood articles from

various countries is increasing rapidly

toward a point where inspection and

control activities solely at the port of

first arrival will not be feasible. There is

currently an intense commercial interest

in developing a long-term industry in

the Pacific Northwest for importing and

processing logs from foreign countries.

There is also potential for increased log

and other unmanufactured wood article

imports into other areas of the United

States.

Interim Rules Affecting Certain Logs

From Chile and New Zealand

An interim rule published in the

Federal Register on February 16, 1993,

and effective January 19, 1993 (58 FR

8524–8533, Docket No. 91–074–4),

established importation requirements

for Monterey pine and Douglas-fir logs

from New Zealand. Plant pest risks

associated with importing these articles,

and import requirements that would

reduce these risks to insignificant levels,

were identified early in the course of

developing comprehensive wood import

regulations. Therefore, to reduce these

plant pest risks as soon as possible, we

established regulatory requirements in 7

CFR 319.40–1 through 319.40–8 for

certain logs from New Zealand.

A second interim rule published in

the Federal Register on November 9,

1993 (58 FR 59348–59353, Docket No.

91–074–5), and effective November 2,

1993, established importation

requirements for Monterey pine logs

from Chile. This interim rule applied

the same requirements to Monterey pine

logs from Chile that the first interim rule

applied to Monterey pine and Douglasfir logs from New Zealand.
27666 Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations

This final rule replaces the

regulations established by the interim

rules with comprehensive regulations

affecting importation of

unmanufactured wood articles from all

places, including Chile and New

Zealand. The provisions contained in

this rule for Monterey pine logs from

Chile, and for Monterey pine and

Douglas-fir logs from New Zealand are

essentially the same as the requirements

imposed by the interim rule, except that

the interim rule used slightly different

definitions due to its limited scope.

Proposed Rule

On January 20, 1994, we published a

document in the Federal Register (59

FR 3002–3029, Docket No. 91–074–3)

proposing to replace the interim

regulations, ‘‘Subpart—Logs from Chile

and New Zealand,’’ with a new

‘‘Subpart—Logs, Lumber, and Other

Unmanufactured Wood Articles’’

containing prohibitions and restrictions

concerning imported unmanufactured

wood articles.

The proposed rule, and this final rule,

are based on an approach that gives

importers three complementary options

for importing regulated articles. These

are:

(1) If the regulations contain specific

requirements for importing a specific

article from a specific country or area,

you may import the article by

complying with those requirements.

Examples of this option include the

importation of Monterey pine logs and

raw lumber from Chile and New

Zealand in accordance with the

requirements of § 319.40–5,

‘‘Importation and entry requirements for

specified articles.’’ We intend to add

more articles, countries or areas from

which articles may be imported, and

importation requirements to this section

as new requests to import various

articles are evaluated and approved.

(2) If the regulations do not contain

specific requirements for importing the

article you wish to import, or if you

believe the article may be safely

imported under less stringent

conditions than the regulations require,

you may submit an application for a

permit to import the article, and

describe in the application information

about the article’s origin, processing,

treatment, and handling. We will

evaluate the permit request, conducting

plant pest risk assessments as necessary,

and if we determine that the article may

be safely imported under conditions not

already in the regulations, we will

institute rulemaking to add the

appropriate articles and conditions to

§ 319.40–5, ‘‘Importation and entry

requirements for specified articles.’’

(3) If the regulations do not contain

specific requirements for importing the

article you wish to import, you may

wish to import the article before there

is time to complete plant pest risk

assessments and add the article and the

necessary specific importation

requirements to the regulations. In this

case, you may import the article by

complying with one of the universal

importation options in § 319.40–6.

These universal options employ heat

treatment and other conditions for

importing logs and lumber not

otherwise enterable. These universal

options are relatively stringent, because

they must eliminate the spectrum of

potential plant pests and address risks

that have not been characterized. The

universal options are designed to give

importers a way to import articles that

would otherwise be prohibited until

detailed plant pest risk assessments are

completed. Whenever feasible,

importers may choose to employ

universal options while plant pest risk

assessments and rulemaking are

underway to establish less stringent

requirements for the articles they wish

to import. Importers of some articles

may find that complying with a

universal option is the most feasible and

cost-effective way to import their

articles.

Comments on the Proposed Rule

We solicited comments concerning

our proposal for a 90-day comment

period ending April 20, 1994. We

received 56 comments by that date.

Eleven were from companies and

industrial associations involved in the

harvesting and importation of logs and

other wood products, or the

manufacturing of wood products that

could be derived from such imports, or

the sale of products or processes used in

such manufacturing. Eleven comments

were from environmental organizations.

Six comments were from universities.

Four comments were from State

agencies involved in forestry or

agriculture. Four comments were from

agencies of the Canadian government,

and one from the Delegation of the

Commission of the European

Communities. National associations

representing Federal and State

employees involved in forestry,

American growers of nursery stock, and

interested members of the public also

submitted comments.

We carefully evaluated these

comments. While most supported

implementing regulations addressing

the importation of wood, many raised

questions about how to do so in an

optimally effective manner. These

comments are discussed below in detail.

In response to the comments, APHIS

is making eight changes to the proposed

requirements. These changes are:

1. Change the standard for heat

treatment and heat treatment with

moisture reduction from 56 °C for 30

minutes to 71.1 °C for 75 minutes. This

change is in response to several

commenters who recommended that

APHIS use 71.1 °C for 75 minutes as

reported in the Forest Service’s

Scientific Panel Review of January 10,

1992—Proposed Test Shipment Protocol

for Importing Siberian Larch Logs. Upon

reviewing this research and our data

from the proposal supporting a lesser

temperature-time combination, we

believe we were in error in believing

that the proposed heat treatment would

effectively eliminate all plant pests of

concern. Specifically, a heat treatment

of 56 °C for 30 minutes could allow

various harmful fungi to survive.

Research reports show that various

fungi in wood can survive 1 to several

hours of heat treatment at temperatures

ranging from 56 °C to 70 °C, but are

destroyed by a treatment of 71.1 °C for

75 minutes. The heat treatment required

by the regulations must be able to

effectively destroy all potentially

dangerous fungi. Therefore, we are

changing the requirements for heat

treatment and heat treatment with

moisture reduction in § 319.40–7 (c) and

(d) to specify 71.1 °C for 75 minutes. We

will allow heat treatment at lower

temperatures only in specific kiln

drying processes where the fungicidal

action of the heat is extended over a

long period of time and is

complemented by moisture reduction

(see below).

2. Allow kiln drying conducted in

accordance with acceptable industry

practices to qualify as heat treatment

with moisture reduction, in lieu of a

specific temperature-time combination.

As proposed, heat treatment with

moisture reduction had to raise the

temperature at the center of the treated

article to 56 °C for 30 minutes. If we

changed this provision consistent with

the above change in the temperature and

time of heat treatments (i.e., 71.1 °C for

75 minutes), then most articles kiln

dried according to industry practices

would not qualify as heat treated with

moisture reduction, even though they

meet the dryness standard of the

regulations (a moisture content of 20

percent or less, as specified in § 319.40–

7(d)).

In fact, research shows that while

some fungi survive temperatures

between 56 °C and 70 °C for relatively

short periods, all harmful fungi are

destroyed by kiln drying that is

conducted according to standard
Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations 27667

industry practice, which often dries

wood at lower temperatures over a

period of 1 to many days, reducing the

moisture content eventually to 20

percent or less.

In summary, heat treatment with

moisture reduction is an effective

treatment if it is employed in either of

two ways. It may reduce the moisture

content of the article quickly, by

employing a temperature of 71.1 °C for

75 minutes or more; or, it may reduce

the moisture content more slowly by

employing standard industrial dry kiln

practices using a lower temperature.

Several commenters suggested that to

allow industry to use commonly

employed kiln drying techniques to the

extent they are effective, we should

modify the requirement for heat

treatment with moisture reduction.

They cited a publication of the Forest

Service which the wood industry relies

on to specify acceptable kiln drying

practices. This publication is the Dry

Kiln Operator’s Manual, Agriculture

Handbook 188.

We agree with these comments, and

are changing the requirement for heat

treatment with moisture reduction in

§ 319.40–7(d) to provide that heat

treatment with moisture reduction may

employ:

1. Kiln drying conducted in

accordance with the schedules

prescribed for the regulated article in

the Dry Kiln Operator’s Manual,

Agriculture Handbook 188, which is

incorporated by reference at § 300.1 of

this chapter; or,

2. Dry heat, exposure to microwave

energy, or any other method that raises

the temperature of the center of each

treated regulated article to at least 71.1

°C, maintains the regulated articles at

that center temperature for at least 75

minutes, and reduces the moisture

content of the regulated article to 20

percent or less as measured by an

electrical conductivity meter.

We are also incorporating by

reference, in 7 CFR 300.1, the Dry Kiln

Operator’s Manual.

3. Allow noncontainerized wood chips

to be imported under certain conditions.

Many industry commenters cited a

substantial economic burden if they had

to import wood chips only in sealed

containers, rather than on deck or in

open containers. Several suggested

allowing some wood chips to be

imported on barges or other vessels,

covered by tarpaulins, if the wood chips

come from a relatively low-risk source

(live healthy trees from a managed

tropical plantation) and are alone on a

vessel (no other regulated articles) that

is moved directly to the United States.

We agree with this suggestion. Wood

chips derived from live healthy trees

from a managed tropical plantation are

not likely to present plant pest risks that

would not be controlled by the limits

imposed by the regulations on the use

of the chips. This is because there are

few forest pests present in tropical

climates that can survive winters in

temperate climates. The few tropical

plant pests that can survive temperate

winters would likely be excluded from

managed tropical plantations by the

plant pest control practices employed at

such plantations. If such chips are

imported alone on a vessel and covered

by a tarpaulin, there is little risk that the

chips will be infested during transit by

plant pests from higher-risk wood

products. On the other hand, wood

chips from unmanaged trees and trees in

temperate areas are more likely to

present serious plant pest risks. These

chips should be subject to the full

restrictions proposed for wood chips in

the proposed rule, i.e., they should be

imported in sealed containers, and

subject to fumigation or heat treatment,

to prevent the introduction of plant

pests they may harbor.

Therefore, we are changing § 319.40–

6(c)(2), the universal importation

requirement for wood chips and bark

chips, by adding the following sentence:

‘‘If the wood chips or bark chips are

derived from live, healthy, plantationgrown trees in tropical areas, they may

be shipped on deck if no other regulated

articles are present on the vessel, and

the wood chips or bark chips are

completely covered by a tarpaulin

during the entire journey directly to the

United States.’’

4. Allow pallets to be imported in

accordance with the requirements for

solid wood packing materials, even if

the pallets are imported as cargo.

Several commenters noted that pallets

should be allowed to be imported as

cargo under no greater restrictions than

if they are imported in actual use as

packing. They pointed out that in

normal shipping practice, large amounts

of pallets are used to ship articles to a

port, and then may be shipped as cargo

from ports with a pallet surplus to ports

with a pallet shortage. Commenters felt

that pallets that have been in use, and

have met the regulatory requirements

for importation in use, do not present

significant risks and should not have to

meet additional requirements if they are

subsequently moved as cargo.

We agree. We are changing § 319.40–

3(b) to allow pallets that are imported as

cargo to be imported under the same

requirements that apply to pallets that

are in use as packing materials at the

time of importation. Briefly, these

requirements are that if the pallets are

free from bark and are used for articles

that are not regulated articles, they must

be accompanied by an importer

document stating that they are totally

free from bark, and apparently free from

live plant pests. If the pallets are free

from bark and are used for regulated

articles, they must be accompanied by

an importer document stating that they

are totally free from bark, apparently

free from live plant pests, and have been

heat treated, fumigated, or treated with

preservatives in accordance with

§ 319.40–7, or meet all the importation

and entry conditions required for the

regulated article the solid wood packing

material is used to move. If the pallets

are not free from bark, they must be

accompanied by an importer document

stating that the pallets have been heat

treated, fumigated, or treated with

preservatives in accordance with

§ 319.40–7. In all cases, the pallets are

also subject to the inspection and other

port of arrival requirements of § 319.40–

9.

5. Exclude European Russia from the

group of Asian countries to which more

severe prohibitions and restrictions

apply. Several commenters noted that

the apparent intent to exclude European

Russia from these more severe

requirements was not carried out by the

precise language, allowing many

importations to occur from all places

‘‘except countries in Asia that are

wholly or in part east of 60° East

Longitude and north of the Tropic of

Cancer.’’ Russia does extend east of 60°

East Longitude. It was not our intent to

include European Russia in this area, as

can be seen from the context of the

language in the preamble of the

proposed rule. Therefore, we are

changing this geographic description

each time it appears to read ‘‘except

places in Asia that are east of 60° East

Longitude and north of the Tropic of

Cancer.’’

6. Continue to allow the ongoing

importation of railroad ties from

countries outside Asia, for subsequent

pressure treatment and use in the

United States, which APHIS has

allowed to occur for some time.

Commenters noted that these articles are

normally treated within 30 days, and

have been considered low risk. We agree

that the regulations should continue to

allow the importation of these railroad

ties. We are adding the following new

paragraph (f) to § 319.40–5, the section

concerning importation requirements

for specified articles: ‘‘Cross-ties

(railroad ties) from all countries except

places in Asia that are east of 60° East

Longitude and north of the Tropic of

Cancer may be imported if completely
27668 Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations

free of bark and accompanied by an

importer document stating that the

cross-ties will be pressure treated within

30 days following the date of

importation.’’

7. Amend the definition of ‘‘Log’’ so

that it includes cants sawn from logs.

One commenter pointed out that by his

reading of the regulations, it seemed

likely that cants (partly trimmed logs)

were subject to the same requirements

as logs, but the regulations did not make

this point absolutely clear. We did in

fact intend that the regulations treat logs

and cants the same. To make this clear,

we are revising the proposed definition

of ‘‘Log,’’ which read ‘‘The bole of a

tree; trimmed timber that has not been

further sawn,’’ to read ‘‘The bole of a

tree; trimmed timber that has not been

sawn further than to form cants.’’

8. Amend the requirements for

completing an application for an import

permit to require that the applicant

specify not only any chemical

treatments that will be employed prior

to or after importation, but also the

dosage of the chemicals that is

employed. One commenter pointed out

that the permit application procedure in

proposed § 319.40–4(a) required the

applicant to provide, among other

information, the names of any chemicals

employed in treatments prior to or after

importation (proposed § 319.40–4(a) (4)

and (5)). He suggested that the

application should also include the

dosage used for such treatments, so that

APHIS and the public can judge

whether the treatments are effectively

applied. We agree, and are adding a

requirement for dosage information to

the affected sections.

With the exception of the changes just

discussed, and minor editorial changes,

we are adopting the provisions of the

proposed rule as a final rule. Additional

comments are discussed below.

Goals and Mission of APHIS as They

Relate to the Proposed Rule

Comment: APHIS should not consider

the needs of international trade but

should focus exclusively on pest

exclusion as worded in the Federal

Plant Pest Act of 1957.

Response: It is important to recognize

that APHIS has a number of

responsibilities and legal mandates

beyond the Federal Plant Pest Act.

These include international trade

agreements such as the General

Agreement on Tariffs and Trade and the

North American Free Trade Agreement,

statutes such as the Regulatory

Flexibility Act and the Paperwork

Reduction Act, Executive Orders, and

additional legal and policy guides. One

of APHIS’s basic responsibilities is plant

pest exclusion, but this has to be

conducted in balance with other

national needs and goals.

The majority of comments which

specifically addressed the issue of

balancing the needs of international

commerce with prevention of pest

introduction clearly favored such a

balancing. However, some commenters

believed that APHIS should reduce or

terminate raw wood exports, so that

wood could be used to meet domestic

needs, removing the need for the

importation of raw wood. APHIS does

not have statutory authority to stop or

reduce the export of raw logs by U.S.

private land owners and companies so

that the wood can be used for domestic

needs.

Opposition to the Importation of

Unmanufactured Wood

Comment: APHIS should restrict

imports to manufactured and/or

finished wood products only.

Response: APHIS believes that this

approach is too extreme. With proper

mitigation and monitoring, the

importation of some raw wood material

from certain locations presents an

insignificant plant pest risk.

Limitations of the Pest Risk Assessment

Process

Comment: Some comments were

directed toward the risk assessment

process. A few were concerned that the

process did not fully address the

unknowns, did not address enough

pests, or did not incorporate the full

scope of experts needed.

Response: The risk assessments

conducted by the Forest Service were

the most resource extensive risk

assessments ever utilized by APHIS to

determine the plant pest risk associated

with an imported commodity. Great care

was taken to choose which assessments

needed to be completed before the rule

was written. The first assessment

focused on raw timber from Siberia,

which was identified as extremely high

risk. From this assessment, some

universal requirements for the rule were

derived. Two additional risk

assessments were conducted on those

timber commodities which were

identified as lower risk (specific species

of plantation grown trees from New

Zealand and Chile). The specific

requirements for these commodities

were developed from these assessments.

APHIS recognizes both the need for

future assessments and the need to

improve the risk assessment process.

The risk assessment process used for the

various assessments was derived from

the National Research Council’s section

on ecological risk assessment as

published in its 1993 ‘‘Issues in Risk

Assessment’’ and represents the state of

the art as it now stands for conducting

ecological risk assessments.

APHIS recognizes that the process is

not perfect and that evolution will

continue to be necessary. The risk

assessment process is being, and will

continue to be, modified and improved

to make sure that it is the best that the

science of ecological risk assessment

can provide.

One of the most difficult issues is how

to assess the risk associated with

unknown organisms, or with known

organisms that do not have welldescribed characteristics or survival and

spread capabilities. The regulations are

designed to ensure that there is an

insignificant risk that importing

regulated articles will result in the entry

and establishment of either known or

unknown dangerous plant pests.

Need for More Assessments of

Additional Log Species

Comment: APHIS needs to complete

additional assessments for various

timber products considered for

importation.

Response: APHIS agrees, and with the

cooperation of the Forest Service, will

continue to conduct risk assessments

and amend regulations based on them,

as appropriate.

Packing Material

Comment: The regulations proposed

for solid wood packing materials are too

restrictive.

Response: We also received comments

stating that the regulations proposed for

solid wood packing materials are

necessary and appropriate. We believe

that the requirements in this final

rulemaking document for the

importation of solid wood packing

materials are necessary to prevent the

introduction of plant pests into the

United States.

Temperate Hardwoods, Tropical

Hardwoods, and Chips

Comment: Temperate and tropical

hardwoods should be subject to entry

requirements that are as strict as those

for temperate softwoods.

Response: The volume of imported

temperate and tropical hardwoods has

remained at a low sustained level. These

small shipments of high priced logs and

lumber can be monitored and controlled

much more easily than the proposed

large shipments of softwood logs.

Comment: The proposed regulations

for wood chip importations are too

restrictive and it would not be feasible

for importers to meet the requirements.

The 30-day time limit for processing
Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations 27669

wood chips after importation is too

short, and the proposed requirement for

containerized transportation of wood

chips is unnecessary and costly.

Response: APHIS believes that the 30-

day limit for processing the chips is

reasonable. The extension to 60 days

requested by several commenters would

present additional concerns with

monitoring and increased plant pest

risk. One commenter was under the

incorrect assumption that the chips still

had to be processed within the 30-day

period if they had been subjected to an

approved fumigation. This is not the

case. The 30-day limitation is directed

toward raw, untreated chips.

The changes we are making to the

proposed requirement for containerized

transportation of wood chips are

discussed above.

Methyl Bromide

Comment: In view of the negative

effects of methyl bromide (MB) on the

ozone layer, APHIS should not rely

upon use of MB. Also, the regulations

do not include plans for how APHIS

will deal with articles requiring MB

fumigation after MB is removed from

regulatory use around the year 2001.

Response: APHIS is concerned about

the effects of MB on the ozone layer and

will abide by the Environmental

Protection Agency’s phase-out schedule.

However, present reliance by commerce

on MB is such that immediately

terminating all regulatory use of MB is

not realistic.

The regulations were written with the

phase out of MB in mind. All MB

requirements presented in the

regulations have alternative treatments.

It is APHIS’s hope that industry will

develop and implement alternative

mitigation schedules (e.g. irradiation,

heat, borate, etc.) to replace its reliance

on methyl bromide for the importation

of regulated articles.

Bark Removal on Temperate Softwood

Logs

Comment: Temperate softwood logs

should be required to have 100 percent

of the bark removed before importation,

since even small patches of bark can

harbor insect pests.

Response: APHIS recognizes that 100

percent debarking of logs is not realistic.

It is important to remember that APHIS

requires either a heat treatment or

fumigation to complement the

debarking of temperate softwood logs.

This combination of debarking with

other mitigation requirements is

sufficient to destroy plant pests of

concern in the bark or directly under the

bark.

Other Comments and Responses

Comment: APHIS should add other

treatments, such as irradiation and

borates, to the universal importation

requirements.

Response: APHIS recognizes the

potential value of irradiation, borates,

and other treatments for use as universal

or specific treatments. Ongoing research

into the use of irradiation and borates

on timber products looks promising.

However, the data is not yet complete to

the extent necessary for APHIS to

propose specific treatments. Irradiation

treatments as well as other alternatives

will be added to the regulations as they

are developed and proven both effective

and operationally feasible.

Comment: For logs imported from

Chile and New Zealand, APHIS should

change the regulations to facilitate ondeck fumigation and transport of logs,

and extend the time period for

processing such imported logs after they

are imported (currently 60 days).

Response: The restrictions associated

with the movement of logs from Chile

and New Zealand prompted a number of

responses from industry. Extending the

time allowed to process the logs once

they enter the United States and

allowing the fumigation and movement

of logs on the deck of ships were the

two most stated requests.

APHIS believes that allowing

additional time beyond 60 days for

processing the logs would make

monitoring difficult and increase the

plant pest risk. Therefore, APHIS will

maintain the 60-day requirement.

APHIS has prohibited the movement

of logs on the open deck of ships

because of the possibility of infestation

of the logs while at the port of origin

and/or other foreign ports visited while

the ship is in transit. APHIS believes

that until the issue of infestation during

shipment to the United States is

satisfactorily answered, the movement

of logs on the open deck of ships must

continue to be prohibited.

Comment: The regulations should

specify strong penalties that will be

imposed on persons who do not comply

with the regulations. The regulations

should also make importers financially

responsible for damages and control

costs resulting from pests introduced

through their shipments.

Response: For an importer, the

primary practical consequence for noncompliance is future ineligibility to

import additional shipments.

USDA has no authority to require

importers to post bonds or otherwise

stipulate their financial responsibility

for costs that may result from

introduced plant pests. However,

individual shipments will be refused

entry unless the shipments comply with

regulatory requirements.

APHIS can also respond to violations

by canceling compliance agreements.

Because domestic processing facilities

must hold a current compliance

agreement to import and process many

types of regulated articles in the

regulations, APHIS can stop violators

from importing articles by canceling or

refusing to sign a compliance

agreement.

In addition, statutory authority allows

us to impose civil and criminal

penalties on violators. Individuals also

have recourse through the courts;

persons who believe they suffered harm

due to an importer who did not comply

with regulatory requirements may file a

civil suit against that importer.

Comment: APHIS must allocate

additional resources and personnel,

especially inspectors at ports and

sawmills processing imported wood, if

the regulations are to be successfully

enforced and monitored.

Response: We agree that adequate

resources and personnel, especially

inspectors, must be devoted to prevent

the introduction of plant pests into the

United States. Adjustments in the level

of personnel and resources devoted to

APHIS programs are a normal part of

management in the agency. Duties and

staffing levels will be adjusted, at ports

and elsewhere, to take the needs of the

new wood import program into account.

While APHIS will assign some

personnel to major ports to work

specifically with wood imports, and

will assign some personnel to work

specifically with monitoring compliance

both overseas and in domestic

processing facilities, we believe much of

the resources needed for this program

are already in place, in the form of

existing APHIS port personnel and

cooperating personnel from State plant

protection agencies.

Funding levels and agency personnel

may vary from year to year. Import

authorizations will not be provided if

the level of resources decreases below

the level needed to ensure that all

imported regulated articles are subject

to the level of inspection and

monitoring necessary to prevent the

introduction of plant pests into the

United States.

Regarding APHIS resources needed to

ensure compliance with the regulations,

commenters should be aware that user

fees we collect for some program

operations will help to ensure that the

needed resources are available.

Comment: The regulations would

allow importers to self-certify, in the

‘‘importer document,’’ information
27670 Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations

about the type, quantity, and origin of

imported articles and any treatments

that have been applied to them. This

self-certification is not an adequate

substitute for a certificate issued by a

plant protection organization recording

the required information. You cannot

rely on importers to honestly and

completely record the necessary

information in an informal importer

document. In particular, exports from

the former Soviet Union are subject to

rampant corruption, forgery of

documents, and smuggling.

Response: Questions about

enforcement of regulations and how to

deter violators who may present

inaccurate information and documents

opens up a complex nest of issues much

larger than any single regulation. The

general position of APHIS on these

issues is as follows:

1. Violations are most likely when the

profit for the violator is high and the

risk is low. APHIS plans its enforcement

activities accordingly. We tend to

scrutinize carefully large shipments of

regulated articles, especially those of

particularly valuable species. We

employ various means to independently

verify the accuracy of documents

associated with these shipments—

whether the documents are issued by an

importer or by a government agency. We

keep importers aware of the risks they

face if they file inaccurate documents or

fail to meet regulatory requirements.

These risks include civil penalties,

criminal fines and jail sentences, and

loss of business due to APHIS rejection

of permit applications and compliance

agreement applications. Generally,

wood commodities are not so lucrative

that an importer would risk these

penalties, especially long-term loss of

business, for the sake of fraudulently

importing any one shipment. We intend

to vigorously publicize our enforcement

activities related to this final rule during

the initial implementation period, to

make potential violators aware of the

risks they face.

2. Self-certification has worked in

other programs. Many APHIS and other

Federal agencies have programs that

rely in part on regulated individuals

providing accurate certifications to the

agency. Experience has shown that

these programs can work when the

interests of both the regulated party and

the agency are served by accurate selfcertification. Examples of APHIS

programs that have successfully

employed self-certification include the

domestic Gypsy Moth quarantine under

7 CFR 301.45 through 301.45–12 (in

which businesses operating under

compliance agreements may issue

certificates), and the importation

program for greenhouse-grown potted

plants from Canada under 7 CFR

319.37–4(c) (in which greenhouse

growers apply labels which certify that

their plants meet certain growing

requirements). Such programs work, in

part, because our inspectors learn to

evaluate the accuracy of selfcertifications through visual

examination of the materials and

through independent sources of

information. The programs also work

because they are generally employed

where the regulated parties have a

financial reason to desire a continuing

relationship of trust with the regulating

agency, so they can continue to do

business. This is the case with importer

documents employed in this final rule.

3. The accuracy of self-certifications

is often empirically tested at the port of

first arrival. Much of the information in

importer documents can be

independently checked, sometimes by

direct inspection and testing. Inspectors

can discover a great deal about the

accuracy of documents concerning a

shipment by looking for plant pests and

evidence of treatments in the articles.

Moisture content can be directly

measured at ports to determine whether

kiln drying has occurred. Fraudulent

importer documents will often conflict

with waybills, valid importer

documents from earlier shipments, and

other records. We intend to use all of

these opportunities to enhance

enforcement and create a culture in

which importers see that issuing

inaccurate documents is not worth the

risk.

4. Individual ‘‘high-crime’’ areas of

international trade must be addressed

in a larger forum than just the wood

regulations. We agree that doing

business in the former Soviet Union

presents severe problems for honest

businesspersons and the customs

services of many countries. There is

widespread smuggling, forgery of

documents, and coercion of officials

related to exports from this area. While

we are not aware of significant criminal

activities affecting unmanufactured

wood exports from the former Soviet

Union, this may be because such

exports to the United States have not

been allowed to occur in significant

quantities until now.

For these reasons, we will take

particular care in enforcing regulatory

requirements with regard to the

importation of regulated articles from

the former Soviet Union. As discussed

above, there are numerous methods

available to APHIS to confirm that the

importation of regulated articles meets

the regulatory requirements. We intend

to employ them vigorously.

There is an ongoing, international

effort to reduce the level of smuggling,

fraud, and other criminal activity

associated with exports from the former

Soviet Union. The State Department and

the Federal Bureau of Investigation are

working with their counterparts in other

countries and in the former Soviet

republics to try to stabilize the situation,

and APHIS will monitor the results of

these efforts to determine what level of

enforcement activity needs to be

directed toward shipments of regulated

articles from the former Soviet Union.

Comment: The regulations should

minimize the costs associated with

importing wood by imposing

requirements that are both effective in

pest control and cost efficient. To keep

costs under control, the regulations

should not include additional controls

beyond those needed to control pest

risk.

Response: We agree, and believe we

have designed the regulations to

effectively exclude plant pests at

minimal cost. Wherever we had two or

more alternative, equally effective

control methods, we wrote the

regulations to allow importers to choose

whichever method was less costly and

disruptive to commerce in their

particular cases. Whenever control

methods with significant costs were

necessary, such as heat treatment, we

avoided using detailed ‘‘design

standards’’ that can add to costs by

requiring treatment facilities to be built

and operated in particular ways.

Instead, we have employed

‘‘performance standards’’ that allow

maximum freedom for innovation and

cost savings to regulated parties.

Comment: In developing the proposed

rule, APHIS failed to adequately

communicate with the affected parties

and the public. Only 10 representatives

of environmental public interest

organizations were on the distribution

list for National Environmental Policy

Act (NEPA) materials associated with

the rule, and Indian Tribes with

extensive forest holdings were not

contacted.

Response: We disagree. APHIS had

numerous contacts with potentially

affected groups prior to rulemaking. We

actively sought information from

academic, environmental, and industry

organizations and encouraged them to

involve their constituents in

contributing to APHIS development of a

proposed rule. We sent representatives

to forestry conferences to explain APHIS

perspectives early in the process. We

developed a mailing list of persons and

organizations interested in potential

rulemaking for wood imports, which

grew to over 500 members by the time
Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations 27671

2Over the next 50 years, new technologies may

allow wood products companies to remove larger

amounts of wood products from each tree.

the proposal was drafted. Persons on

this list were informed of each

significant step that preceded the

proposal, for example, public meetings,

plant pest risk analyses, and interim

APHIS requirements at ports. We

published an advance notice of

proposed rulemaking prior to the

proposed rule. We also established an

electronic bulletin board, accessible by

direct dial and through the Internet, to

distribute copies of the proposed rule

and associated documents and to accept

public comments on the proposal. These

activities resulted in far greater early

public involvement than is usual for a

Federal informal rulemaking

proceeding.

Also, publication of the proposed rule

in the Federal Register meets the

minimum procedural standard for

adequate public notice. We believe our

outreach activities far exceeded this

minimum standard. Certainly, any

individual or group that was interested

in the wood imports issue and was

involved with the media and forums

where wood and forestry issues are

normally discussed had ample notice of,

and opportunity to participate in,

APHIS decisionmaking prior to the

issuance of the proposed rule.

Comment: To ensure consistent

nationwide requirements for importing

wood, and to facilitate interstate and

international commerce, the APHIS

regulations should preempt all State and

local requirements for wood imports.

Officials in various States appear to

have very different understandings of

what authority they have over imports

and how they are to interact with APHIS

personnel.

Response: Executive Order 12612,

‘‘Federalism,’’ instructs Federal agencies

not to take actions that exceed the

powers enumerated for the Federal

government in the Constitution, and not

to unnecessarily preempt State law or

preclude States from developing

policies and taking actions at their

discretion. We do not believe the

proposed changes to the regulations

raise Federalism implications in terms

of the Executive Order. The regulations

address how a Federal agency will

conduct operations of a Federal

program, and do not preclude States

from developing policies or exercising

their authority to involve their

employees in any plant protection

programs developed by a State. States

are free to pass laws or implement

regulations for State plant protection

programs. However, State programs may

not add requirements for importing

regulated articles that are inconsistent

or in conflict with the requirements

established by the Federal regulations.

States may not cite their participation in

the enforcement of the Federal

regulations as the basis for also

enforcing additional requirements that

are not contained in the Federal

regulations.

In the ‘‘Executive Order 12778’’

section of the proposed rule, we stated

‘‘If this proposed rule is adopted: (1) All

State and local laws and regulations that

are inconsistent with this rule will be

preempted * * *.’’ We believe State

and local laws and regulations would be

inconsistent with our rule if they

prohibit imports allowed by our

regulations, or if they impose conditions

on importation that are in addition to

the conditions set forth in this final rule.

States may impose requirements in

accordance with State law that are not

inconsistent with our regulations.

Executive Order 12866 and Regulatory

Flexibility Act

We are issuing this final rule in

conformance with Executive Order

12866. This rule has been determined to

be significant and has been reviewed by

the Office of Management and Budget

under Executive Order 12866.

We have prepared an economic

analysis concerning this final rule. This

analysis indicates that this rule will not

have significant annual effects on the

economy. Copies of the economic

analysis may be obtained by sending a

written request to APHIS, Policy and

Program Development, Regulatory

Analysis and Development, 4700 River

Road Unit 118, Riverdale, MD 20737–

1238. Copies of the economic analysis

are also available for inspection at

USDA, room 1141, South Building, 14th

Street and Independence Avenue SW.,

Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday,

except holidays. Persons wishing to

inspect the analysis are requested to call

ahead on (202) 690–2817 to facilitate

entry at the reading room.

The United States has become the

world’s leading importer of

unmanufactured wood. In 1990, the

United States imported the equivalent of

34.4 million cubic meters (CBM) of logs,

lumber, and other unmanufactured

wood valued at about $5.1 billion. Total

imports nearly tripled between 1950

and 1990, with most of this increase

occurring after 1970. Historically,

Canada has supplied the United States

with virtually all of its unmanufactured

wood imports.

Domestic production of logs, lumber,

and other unmanufactured wood has

increased steadily since 1950. In

roundwood equivalents, production in

1990 was 1.6 times greater than in 1950.

Most timber production occurs in

southern and western States. In 1990,

Oregon and Washington accounted for

about 16 percent of the total U.S. tree

harvest.

Domestic logging companies are

facing increasing challenges from

conservation groups. Conservationists

are opposed to many tree harvesting

practices, especially clear cutting. In

addition, concern over habitats for

wildlife has raised questions about

replacement of old growth/diversified

forests with monoculture. Conservation

issues are likely to limit future tree

harvests in several northwestern States.

Nationally, commercial forest lands

are projected to decrease by about 4

percent over the next 50 years.

Production is likely to decline in the

Pacific Northwest and increase in the

South and Rocky Mountain States.2 A

slightly limited domestic harvest

combined with higher consumer

demand would likely result in an

increased demand for imported wood

and wood products. Alternative

supplies of logs and other wood

products have been located in the

former Soviet Union, New Zealand,

Chile, Brazil, and other countries. Wood

imports from alternative sources have

the potential to introduce and

disseminate exotic plant pests and

diseases throughout the United States.

This final rule regulates the

importation of logs and other

unmanufactured wood products from all

areas. There are exemptions from some

requirements for imports from Canada

and Mexican border states because most

insects and other wood pests in these

areas are also indigenous to the United

States, or will become so through

natural migration. Therefore, wood

imports from Canada and Mexican

border states do not pose a significant

risk of exotic plant pest introduction.

The regulations will reduce to an

insignificant level the risk of entry and

dissemination of plant pests associated

with unmanufactured wood imports.

Some regulated wood products are

prohibited importation based on plant

pest risk assessments that reveal more

than an insignificant risk of the

introduction of plant pests. Unrestricted

trade in unmanufactured wood would

likely result in losses to domestic

agriculture from plant pest damage.

Without governmental regulation,

private entities might engage in trading

activities that would result in the

introduction of plant pests into the

United States.
27672 Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations

3For the purpose of this economic analysis,

dunnage imported as cargo includes dunnage

produced for first time use, and does not include

dunnage manufactured from used or scrap lumber.

The following items are subject to the

regulations: logs; wood chips; lumber;

whole trees; portions of trees not

consisting solely of leaves, flowers,

fruits, buds, or seeds; bark; cork; laths;

hog fuel; sawdust; painted raw wood

products; excelsior; wood mulch; wood

shavings; pickets; stakes; shingles; solid

wood packing materials; humus;

compost; and litter. Manufactured wood

products are not regulated by the rule.

The regulations require that certain

specified imported unmanufactured

wood products be treated prior to arrival

in the United States.

In 1990 the United States imported

about 255,800 CBM of unmanufactured

wood that would require treatment

under the final regulations. These

unmanufactured wood imports

accounted for less than one percent of

total 1990 domestic supplies. Imported

shipments of kiln dried lumber are not

required to be treated.

About 4.1 million newly

manufactured units of wood dunnage

were imported as cargo from regulated

areas in 1990. Dunnage imported as

cargo can be manufactured from rough

untreated lumber that has not been

stripped of all tree bark.3 Imports

comprised about 27 percent of the

newly manufactured dunnage products

available in the United States during

1990.

Imports of regulated articles that will

now require treatment totaled about

$27.4 million in 1990. Total domestic

supplies of these articles exceeded $80

billion during the same year. Therefore,

the value of imports that will require

treatment under the final regulations

represented less than one percent of

total domestic supplies in 1990.

Our economic analysis estimates that

this action would increase economic

welfare for domestic producers of logs,

lumber, and other regulated wood

products by about $35.2 million.

However, U.S. consumers of these

products will incur a welfare loss of

about $171.9 million.

About 98.8 percent of total estimated

losses are attributable to treatment costs

for dunnage (including scrap lumber)

used to pack various commodities that

are imported into the United States.

APHIS anticipates that this loss will be

mitigated as shipping companies switch

to bark free dunnage materials to avoid

Q–40 related treatment costs. Shippers

will take precautions to ensure that

dunnage is bark free before commodities

are loaded at the foreign port of origin.

The Agency maintains that bark free

dunnage material is readily available

throughout the world and can be

substituted at little or no cost.

Therefore, APHIS estimates that the

required use of bark free dunnage will

result in a negligible cost increase to

shippers in the long run.

Complying with the rule’s

requirements may cost U.S. society up

to $136.7 million; this represents the

cost of plant pest exclusion. This cost

estimate does not include the

opportunity cost associated with

importation of timber products like

Siberian larch that might be imported in

the absence of this rule. Data are not

available to make this estimate.

Additionally, this cost figure does not

take into account either the benefits that

would be accrued by excluding pests, or

the probability that businesses would be

able to reduce cost by switching to less

costly options such as bark free

dunnage.

If the United States does not expend

resources to exclude plant pests through

regulation or other means, such pests

could become established and cause

significant damage to domestic

agriculture. For example, in the past few

years plant pests including the Asian

gypsy moth and pine shoot beetle have

recently been introduced into the U.S.,

and several million dollars have been

spent on efforts to control and prevent

further spread to noninfested areas of

the country. A recent USDA Forest

Service pest risk assessment concerning

potential Siberian timber imports

evaluated the potential costs to U.S.

society of several nonindigenous plant

pests. The risk assessment estimated

that introduction of a single pest, larch

canker, could cause direct timber losses

of $129.0 million annually. The same

study estimated that a worst-case

scenario involving heavy establishment

of exotic defoliators in the United States

could cost $58 billion (about $4.1

billion annually). This is a damage

estimate of resources that would be lost

to established defoliators.

The benefits that would accrue from

pest exclusion may be less because

control efforts would be put in place to

regulate the spread of exotic pests. Total

benefits should be calculated as the

avoided cost of such control efforts and

avoided damages to agricultural and

forest resources. However, past

experiences with introduced exotic

defoliators indicate that control

measures would not likely prevent

further spread and thus make

eradication extremely unlikely.

The initial estimated losses will be

offset over time as businesses adapt to

new international wood marketing

channels. If resource constraints remain

constant after this rule is implemented,

consumers will purchase a slightly

higher volume of domestic wood

products at prices that are slightly

higher than those that currently prevail

in the U.S. market. However, domestic

consumers will continue to supplement

their wood and wood product purchases

with imports whenever the imported

price is lower than the domestic price.

Each year about 6 to 7.5 million nonbulk shipments of various commodities

are imported into the United States.

APHIS estimates that between 3.6 and

4.5 million (60 percent) of annual

imported non-bulk shipments arrive in

the United States packed in dunnage

made of rough untreated wood with

bark. The regulations will prohibit

untreated dunnage with bark from

entering the United States.

APHIS does not expect the economic

impact on U.S. producers of regulated

articles to be uniform across the

country. Producers in southern and

Rocky Mountain States will likely gain

more than producers in the Pacific

Northwest. Conservation issues and

resource constraints will likely limit the

amount of welfare gain acquired by

loggers and sawmills in Oregon and

Washington.

Pursuant to Title II of the Unfunded

Mandates Reform Act of 1995 (‘‘the

Act’’), which the President signed into

law on March 22, 1995, USDA has

assessed the effects of this rulemaking

action on State, local, and tribal

governments, and the private sector.

This action does not compel the

expenditure of $100 million or more by

any State, local or tribal governments, or

by anyone in the private sector, and

therefore a statement under section 202

of the Act is not required.

The Regulatory Flexibility Act

requires that APHIS specifically

consider the economic impact of

regulations on small entities. Small

Business Administration (SBA) data

indicates that about 25,998 domestic

entities could be impacted by the

restrictions on regulated articles. About

25,769 (99 percent) of these entities are

classified as small according to SBA

criteria. These consist of approximately

14,662 small logging companies or

sawmills that produce domestic wood

articles, and approximately 15,642

entities that could import foreign wood

for processing or resale. (These two

figures total more than 25,769 because

some firms process or resell both

domestic and imported wood.) These

small entities should experience most of

the anticipated $35.2 million increase in

domestic welfare. This increase will be

a small average economic benefit for
Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations 27673

affected small entities, as it represents

less than one percent of combined

average annual sales for impacted small

entities. A few small entities will

undoubtedly accrue a disproportionate

share of the domestic welfare increase

due to their individual positions in their

markets and variations in business

strategies for dealing with new

opportunities. The overall impact on

small businesses is expected to be

minor.

Under these circumstances, the

Acting 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 12778

This rule has been reviewed under

Executive Order 12778, 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

In accordance with the National

Environmental Policy Act of 1969

(NEPA) (42 U.S.C. 4321 et seq.), APHIS

has prepared an environmental impact

statement (EIS) addressing the

importation of logs, lumber, and other

unmanufactured wood in accordance

with this rule. On August 12, 1994, a

notice was published in the Federal

Register (59 FR 41441) informing the

public of the availability of the final EIS.

The final EIS considered and

evaluated the six following alternatives:

Alternative 1—No Action (No

Regulations)

Alternative 2—Final Regulations

(Preferred Alternative)

Alternative 3—Prohibit Untreated Wood

Except Packing Material

Alternative 4—Prohibit Untreated Wood

Alternative 5—Prohibit

Unmanufactured Wood Except

Packing Material

Alternative 6—Prohibit

Unmanufactured Wood

The final EIS addressed the potential

impacts to the human environment,

including possible risks to human

health, impacts to forest resources,

impacts to biodiversity, impacts from

the use of methyl bromide, and impacts

to global climate change, cultural

resources, and endangered and

threatened species. A detailed analysis

of potential impacts from the use of

methyl bromide was prepared because

of the classification of methyl bromide

as an ozone depletor.

The analysis of the environmental

impacts to all aspects of the human

environment revealed that impacts

attributable to the six alternatives are

virtually identical, but are entirely

dependent upon the degree to which

plant pests are able to be excluded. Each

alternative demonstrated a different

likelihood of success.

Alternative 6 is the most protective,

that is, the most likely to minimize the

risk of plant pest introduction.

However, it is also the most restrictive

with regard to importation of

unmanufactured wood articles.

Alternative 1, the No Action

Alternative, is believed to be the least

protective, and more likely than the

other alternatives to result in

inadvertent plant pest introductions.

Alternative 4 is similar to Alternative

6 in that it is protective but may

unnecessarily interfere with trade. The

protective capacity of Alternatives 3 and

5 is diminished by the exclusion of

packing materials from treatment

requirements.

Alternative 2, the Preferred

Alternative, offers a balanced approach

to the importation of logs, lumber, and

other unmanufactured wood articles

that requires plant pest treatments in all

cases in which APHIS has identified a

risk of plant pest introductions. This

alternative was selected by the agency

and is reflected by this final rule.

Paperwork Reduction Act

In accordance with the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501

et seq.), the information collection or

recordkeeping requirements included in

this rule have been submitted for

approval to the Office of Management

and Budget.

List of Subjects

7 CFR Part 300

Incorporation by reference, Plant

diseases and pests, Quarantine.

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.

Accordingly, 7 CFR parts 300 and 319

are amended to read as follows:

PART 300—INCORPORATION BY

REFERENCE

1. Part 300 is revised to read as

follows:

Authority: 7 U.S.C. 150ee, 154, 161, 162,

and 167; 7 CFR 2.17, 2.51, and 371.2(c).

§ 300.1 Materials incorporated by

reference; availability.

(a) Plant Protection and Quarantine

Treatment Manual. The Plant Protection

and Quarantine Treatment Manual,

which was reprinted on November 30,

1992, and includes all revisions through

March 1995, has been approved for

incorporation by reference in 7 CFR

chapter III by the Director of the Office

of the Federal Register in accordance

with 5 U.S.C. 552(a) and 1 CFR part 51.

(1) The treatments specified in the

Plant Protection and Quarantine

Treatment Manual and its revisions are

required to authorize the movement of

certain articles regulated by domestic

quarantines (7 CFR parts 301 and 318)

and foreign quarantines (7 CFR part

319).

(2) Availability. Copies of the Plant

Protection and Quarantine Treatment

Manual:

(i) Are available for inspection at the

Office of the Federal Register Library,

800 North Capitol Street NW, Suite 700,

Washington, DC; or,

(ii) May be obtained by writing or

calling the Animal and Plant Health

Inspection Service, Documents

Management Branch, Printing

Distribution and Mail Section, 4700

River Road Unit 1, Riverdale, MD

20737–1229, (301) 734–5524; or

(iii) May be obtained from field offices

of the Animal and Plant Health

Inspection Service, Plant Protection and

Quarantine. Addresses of these offices

may be found in local telephone

directories.

(b) Dry Kiln Operator’s Manual. The

Dry Kiln Operator’s Manual, which was

published in August 1991 as Agriculture

Handbook No. 188 by the United States

Department of Agriculture, Forest

Service, has been approved for

incorporation by reference in 7 CFR

chapter III by the Director of the Office

of the Federal Register in accordance

with 5 U.S.C. 552(a) and 1 CFR part 51.

(1) The kiln drying schedules

specified in the Dry Kiln Operator’s

Manual provide a method by which

certain articles regulated by ‘‘Subpart—

Logs, Lumber, and Other

Unmanufactured Wood Articles’’ (7 CFR

319.40–1 through 319.40–11) may be

imported into the United States.

(2) Availability. Copies of the Dry Kiln

Operator’s Manual are available for

inspection at the Office of the Federal

Register Library, 800 North Capitol

Street NW, Suite 700, Washington, DC,

or are for sale as ISBN 0–16–035819–1

by the U.S. Government Printing Office,

Superintendent of Documents, Mail

Stop: SSOP, Washington, DC 20402–

9328.
27674 Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations

1Regulations concerning the importation into the

United States of bamboo not capable of propagation

are set forth in §§ 319.40–1 through 319.40–11.

1The Plant Protection and Quarantine Program

also enforces regulations promulgated under the

Endangered Species Act of 1973 (P.L. 93–205, as

amended) which contains additional prohibitions

and restrictions on importation into the United

States of articles subject to this subpart (See 50 CFR

parts 17 and 23).

2One or more common names of articles are given

in parentheses after most scientific names (when

common names are known) for the purpose of

helping to identify the articles represented by such

scientific names; however, unless otherwise

specified, a reference to a scientific name includes

all articles within the category represented by the

scientific name regardless of whether the common

name or names are as comprehensive in scope as

the scientific name.

PART 319—FOREIGN QUARANTINE

NOTICES

2. The authority citation for part 319

is revised to read as follows:

Authority: 7 U.S.C. 150dd, 150ee, 150ff,

151–167, 450, 2803, and 2809; 21 U.S.C. 136

and 136a; 7 CFR 2.17, 2.51, and 371.2(c).

Subpart—Citrus Canker and Other

Citrus Diseases

3. In § 319.19, paragraphs (a), (b), (c),

and (d) are revised to read as follows:

§ 319.19 Notice of quarantine.

(a) In order to prevent the

introduction into the United States of

the citrus canker disease (Xanthomonas

citri (Hasse) Dowson) and other citrus

diseases, the importation into the

United States of plants or any plant part,

except fruit and seeds, of all genera,

species, and varieties of the subfamilies

Aurantioideae, Rutoideae, and

Toddalioideae of the botanical family

Rutaceae is prohibited, except as

provided in paragraphs (b), (c), and (d)

of this section.

(b) Plants or plant parts of all genera,

species, and varieties of the subfamilies

Aurantioideae, Rutoideae, and

Toddalioideae of the botanical family

Rutaceae may be imported into the

United States for experimental or

scientific purposes in accordance with

conditions prescribed by the

Administrator, Animal and Plant Health

Inspection Service, United States

Department of Agriculture.

(c) Plants or plant parts of all genera,

species, and varieties of the subfamilies

Aurantioideae, Rutoideae, and

Toddalioideae of the botanical family

Rutaceae may be imported into Guam in

accordance with § 319.37–6.

(d) Plants or plant parts of all genera,

species, and varieties of the subfamilies

Aurantioideae, Rutoideae, and

Toddalioideae of the botanical family

Rutaceae that are regulated articles

under §§ 319.40–1 through 319.40–11

may be imported into the United States

in accordance with §§ 319.40–1 through

319.40–11 and without restriction by

this subpart.

* * * * *

Subpart—Bamboo

4. The title ‘‘Subpart—Bamboo’’ is

revised to read ‘‘Subpart—Bamboo

Capable of Propagation’’.

5. In § 319.34, paragraphs (a) and (c)

are removed; paragraphs (b) and (d) are

redesignated as paragraphs (a) and (b);

and newly designated paragraph (a) is

revised to read as follows:

§ 319.34 Notice of quarantine.

(a) In order to prevent the

introduction into the United States of

dangerous plant diseases, including

bamboo smut (Ustilago shiraiana), the

importation into the United States of

any variety of bamboo seed, bamboo

plants, or bamboo cuttings capable of

propagation,1 including all genera and

species of Bambuseae, is prohibited

unless imported:

(1) For experimental or scientific

purposes by the United States

Department of Agriculture;

(2) For export, or for transportation

and exportation in bond, in accordance

with §§ 352.2 through 352.15 of this

chapter; or,

(3) Into Guam in accordance with

§ 319.37–4(b).

* * * * *

Subpart—Nursery Stock, Plants,

Roots, Bulbs, Seeds, and Other Plant

Products 1 2

6. In § 319.37–1, the definition of

‘‘Prohibited article’’ is revised to read as

follows:

§ 319.37–1 Definitions

* * * * *

Prohibited article. Any nursery stock,

plant, root, bulb, seed, or other plant

product designated in § 319.37–2 (a) or

(b), except wood articles regulated

under §§ 319.40–1 through 319.40–11,

‘‘Subpart—Logs, Lumber, and Other

Unmanufactured Wood Articles.’’

* * * * *

7. ‘‘Subpart—Logs from Chile and

New Zealand’’ of this part is revised to

read as follows:

Subpart—Logs, Lumber, and Other

Unmanufactured Wood Articles

Sec.

319.40–1 Definitions.

319.40–2 General prohibitions and

restrictions; relation to other regulations.

319.40–3 General permits; articles that may

be imported without a specific permit;

articles that may be imported without

either a specific permit or an importer

document.

319.40–4 Application for a permit to import

regulated articles; issuance and

withdrawal of permits.

319.40–5 Importation and entry

requirements for specified articles.

319.40–6 Universal importation options.

319.40–7 Treatments and safeguards.

319.40–8 Processing at facilities operating

under compliance agreements.

319.40–9 Inspection and other requirements

at port of first arrival.

319.40–10 Costs and charges.

319.40–11 Plant pest risk assessment

standards.

Subpart—Logs, Lumber, and Other

Unmanufactured Wood Articles

§ 319.40–1 Definitions.

Administrator. The Administrator of

the Animal and Plant Health Inspection

Service, United States Department of

Agriculture, or any employee of the

United States Department of Agriculture

delegated to act in his or her stead.

APHIS. The Animal and Plant Health

Inspection Service, United States

Department of Agriculture.

Bark chips. Bark fragments broken or

shredded from log or branch surfaces.

Certificate. A certificate of inspection

relating to a regulated article, which is

issued by an official authorized by the

national government of the country in

which the regulated article was

produced or grown, which contains a

description of the regulated article,

which certifies that the regulated article

has been inspected, is believed to be

free of plant pests, and is believed to be

eligible for importation pursuant to the

laws and regulations of the United

States, and which may contain any

specific additional declarations required

under this subpart.

Compliance agreement. A written

agreement between APHIS and a person

engaged in processing, handling, or

moving regulated articles, in which the

person agrees to comply with

requirements contained in the

agreement.

Departmental permit. A document

issued by the Administrator authorizing

the importation of a regulated article for

experimental, scientific, or educational

purposes.

Free from rot. No more than two

percent by weight of the regulated

articles in a lot show visual evidence of

fructification of fungi or growth of other

microorganisms that cause decay and

the breakdown of cell walls in the

regulated articles.

General permit. A written

authorization contained in § 319.40–3
Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations 27675

for any person to import the articles

named by the general permit, in

accordance with the requirements

specified by the general permit, without

being issued a specific permit.

Humus, compost, and litter. Partially

or wholly decayed plant matter.

Import (imported, importation). To

bring or move into the territorial limits

of the United States.

Importer document. A written

declaration signed by the importer of

regulated articles, which must

accompany the regulated articles at the

time of importation, in which the

importer accurately declares

information about the regulated articles

required to be disclosed by § 319.40–

2(b).

Inspector. Any individual authorized

by the Administrator to enforce this

subpart.

Log. The bole of a tree; trimmed

timber that has not been sawn further

than to form cants.

Loose wood packing material.

Excelsior (wood wool), sawdust, and

wood shavings, produced as a result of

sawing or shaving wood into small,

slender, and curved pieces.

Lot. All the regulated articles on a

single means of conveyance that are

derived from the same species of tree

and were subjected to the same

treatments prior to importation, and that

are consigned to the same person.

Lumber. Logs that have been sawn

into boards, planks, or structural

members such as beams.

Permit. A specific permit to import a

regulated article issued in accordance

with § 319.40–4, or a general permit

promulgated in § 319.40–3.

Plant pest. Any living stage of any

insects, mites, nematodes, slugs, snails,

protozoa, or other invertebrate animals,

bacteria, fungi, other parasitic plants or

reproductive parts of parasitic plants,

noxious weeds, viruses, or any organism

similar to or allied with any of the

foregoing, or any infectious substances,

which can injure or cause disease or

damage in any plants, parts of plants, or

any products of plants.

Port of first arrival. The area (such as

a seaport, airport, or land border station)

where a person or a means of

conveyance first arrives in the United

States, and where inspection of

regulated articles is carried out by

inspectors.

Primary processing. Any of the

following processes: cleaning (removal

of soil, limbs, and foliage), debarking,

rough sawing (bucking or squaring),

rough shaping, spraying with fungicide

or insecticide sprays, and fumigation.

Regulated article. The following

articles, if they are unprocessed or have

received only primary processing: logs;

lumber; any whole tree; any cut tree or

any portion of a tree, not solely

consisting of leaves, flowers, fruits,

buds, or seeds; bark; cork; laths; hog

fuel; sawdust; painted raw wood

products; excelsior (wood wool); wood

chips; wood mulch; wood shavings;

pickets; stakes; shingles; solid wood

packing materials; humus; compost; and

litter.

Sealed container; sealable container.

A completely enclosed container

designed for the storage or

transportation of cargo, and constructed

of metal or fiberglass, or other rigid

material, providing an enclosure which

prevents the entrance or exit of plant

pests and is accessed through doors that

can be closed and secured with a lock

or seal. Sealed (sealable) containers are

distinct and separable from the means of

conveyance carrying them.

Solid wood packing material. Wood

packing materials other than loose wood

packing materials, used or for use with

cargo to prevent damage, including, but

not limited to, dunnage, crating, pallets,

packing blocks, drums, cases, and skids.

Specific permit. A written document

issued by APHIS to the applicant in

accordance with § 319.40–4 that

authorizes importation of articles in

accordance with this subpart and

specifies or refers to the regulations

applicable to the particular importation.

Treatment Manual. The Plant

Protection and Quarantine Treatment

Manual, which is incorporated by

reference at § 300.1 of this chapter in

accordance with 5 U.S.C. 552(a) and 1

CFR part 51.

Tropical hardwoods. Hardwood

timber species which grow only in

tropical climates.

United States. All of the States of the

United States, the District of Columbia,

Guam, the Northern Mariana Islands,

Puerto Rico, the Virgin Islands of the

United States, and all other territories

and possessions of the United States.

Wood chips. Wood fragments broken

or shredded from any wood.

Wood mulch. Bark chips, wood chips,

wood shavings, or sawdust intended for

use as a protective or decorative ground

cover.

§ 319.40–2 General prohibitions and

restrictions; relation to other regulations.

(a) Permit required. Except for

regulated articles exempted from this

requirement by paragraph (c) of this

section or § 319.40–3, no regulated

article may be imported unless a

specific permit has been issued for

importation of the regulated article in

accordance with § 319.40–4, and unless

the regulated article meets all other

applicable requirements of this subpart

and any requirements specified by

APHIS in the specific permit.

(b) Importer document;

documentation of type, quantity, and

origin of regulated articles. Except for

regulated articles exempted from this

requirement by paragraph (c) of this

section or § 319.40–3, no regulated

article may be imported unless it is

accompanied by an importer document

stating the following information. A

certificate that contains this information

may be used in lieu of an importer

document at the option of the importer:

(1) The genus and species of the tree

from which the regulated article was

derived;

(2) The country, and locality if

known, where the tree from which the

regulated article was derived was

harvested;

(3) The quantity of the regulated

article to be imported;

(4) The use for which the regulated

article is imported; and

(5) Any treatments or handling of the

regulated article required by this

subpart that were performed prior to

arrival at the port of first arrival.

(c) Regulation of articles imported for

propagation or human consumption.

The requirements of this subpart do not

apply to regulated articles that are

allowed importation in accordance with

§ 319.19, ‘‘Subpart—Citrus Canker and

Other Citrus Diseases’’; § 319.34,

‘‘Subpart—Bamboo Capable of

Propagation’’; or §§ 319.37 through

319.37–14, ‘‘Subpart—Nursery Stock,

Plants, Roots, Bulbs, Seeds, and Other

Plant Products’’; or to regulated articles

imported for human consumption that

are allowed importation in accordance

with §§ 319.56 through 319.56–8,

‘‘Subpart—Fruits and Vegetables.’’

(d) Regulated articles imported for

experimental, scientific or educational

purposes. Any regulated article may be

imported without further restriction

under this subpart if:

(1) Imported by the United States

Department of Agriculture for

experimental, scientific, or educational

purposes;

(2) Imported pursuant to a

Departmental permit issued by APHIS

for the regulated article prior to its

importation and kept on file at the port

of first arrival; and

(3) Imported under conditions

specified on the Departmental permit

and found by the Administrator to be

adequate to prevent the introduction

into the United States of plant pests.

(e) Designation of additional

regulated articles. An inspector may

designate any article as a regulated

article by giving written notice of the
27676 Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations

1Application forms for permits are available

without charge from the Administrator, c/o the

Permit Unit, Plant Protection and Quarantine,

Animal and Plant Health Inspection Service, U.S.

Department of Agriculture, 4700 River Road,

Riverdale, MD 20737, or local offices of Plant

Protection and Quarantine, which are listed in

telephone directories.

designation to the owner or person in

possession or control of the article.

APHIS will implement rulemaking to

add articles designated as regulated

articles to the definition of regulated

article in § 319.40–1 if importation of

the article appears to present a recurring

significant risk of introducing plant

pests. Inspectors may designate an

article as a regulated article after

determining that:

(1) The article was imported in the

same container or hold as a regulated

article;

(2) Other articles of the same type

imported from the same country have

been found to carry plant pests; or

(3) The article appears to be

contaminated with regulated articles or

soil.

§ 319.40–3 General permits; articles that

may be imported without a specific permit;

articles that may be imported without either

a specific permit or an importer document.

(a) Canada and Mexico. APHIS

hereby issues a general permit to import

articles authorized by this paragraph.

Regulated articles from Canada and

from states in Mexico adjacent to the

United States border, other than

regulated articles of the subfamilies

Aurantioideae, Rutoideae, and

Toddalioideae of the botanical family

Rutaceae, may be imported without

restriction under this subpart, except

that they must be accompanied by an

importer document stating that the

regulated articles are derived from trees

harvested in, and have never been

moved outside, Canada or states in

Mexico adjacent to the United States

border, and except that they are subject

to the inspection and other

requirements in § 319.40–9.

(b) Solid wood packing materials—(1)

Free of bark; used with non-regulated

articles. APHIS hereby issues a general

permit to import regulated articles

authorized by this paragraph. Solid

wood packing materials that are

completely free of bark and are in actual

use at the time of importation as

packing materials for articles which are

not regulated articles may be imported

without restriction under this subpart,

except that:

(i) The solid wood packing materials

are subject to the inspection and other

requirements in § 319.40–9; and

(ii) The solid wood packing materials

must be accompanied at the time of

importation by an importer document,

stating that the solid wood packing

materials are totally free from bark, and

apparently free from live plant pests.

(2) Free of bark; used with regulated

articles. APHIS hereby issues a general

permit to import regulated articles

authorized by this paragraph. Solid

wood packing materials that are

completely free of bark and are in actual

use at the time of importation as

packing materials for regulated articles

may be imported without restriction

under this subpart, except that:

(i) The solid wood packing materials

are subject to the inspection and other

requirements in § 319.40–9;

(ii) The solid wood packing materials

must be accompanied at the time of

importation by an importer document,

stating that the solid wood packing

materials are totally free from bark, and

apparently free from live plant pests;

and

(iii) The solid wood packing materials

must be accompanied at the time of

importation by an importer document,

stating that the solid wood packing

materials have been heat treated,

fumigated, or treated with preservatives

in accordance with § 319.40–7, or meet

all the importation and entry conditions

required for the regulated article the

solid wood packing material is used to

move.

(3) Not free of bark; used with

regulated or nonregulated articles.

APHIS hereby issues a general permit to

import regulated articles authorized by

this paragraph. Solid wood packing

materials that are not completely free of

bark and are in actual use as packing at

the time of importation may be

imported without restriction under this

subpart, except that:

(i) The solid wood packing materials

are subject to the inspection and other

requirements in § 319.40–9;

(ii) The solid wood packing materials

must be accompanied at the time of

importation by an importer document,

stating that the solid wood packing

materials have been heat treated,

fumigated, or treated with preservatives

in accordance with § 319.40–7.

(4) Pallets moved as cargo. APHIS

hereby issues a general permit to import

regulated articles authorized by this

paragraph. Pallets that are completely

free of bark and that are not in actual

use as packing at the time of

importation (i.e., pallets moved as

cargo) may be imported without

restriction under this subpart, except

that:

(i) The pallets are subject to the

inspection and other requirements in

§ 319.40–9; and

(ii) The pallets are accompanied by an

importer document stating that the

pallets were previously eligible for

importation in accordance with

paragraph (b) of this section and have

not had wood added to them since that

use. Solid wood packing materials other

than pallets that are imported as cargo

must be imported in accordance with

the requirements of this subpart for raw

lumber.

(c) Loose wood packing materials.

APHIS hereby issues a general permit to

import regulated articles authorized by

this paragraph. Loose wood packing

materials (whether in use as packing or

imported as cargo) that are dry may be

imported subject to the inspection and

other requirements in § 319.40–9 and

without further restriction under this

subpart.

(d) Bamboo timber. APHIS hereby

issues a general permit to import

regulated articles authorized by this

paragraph. Bamboo timber which is free

of leaves and seeds and has been sawn

or split lengthwise and dried may be

imported subject to the inspection and

other requirements in § 319.40–9 and

without further restriction under this

subpart.

(e) Regulated articles the permit

process has determined to present no

plant pest risk. Regulated articles for

which a specific permit has been issued

in accordance with § 319.40–4(b)(2)(i)

may be imported without other

restriction under this subpart, except

that they are subject to the inspection

and other requirements in § 319.40–9.

§ 319.40–4 Application for a permit to

import regulated articles; issuance and

withdrawal of permits.

(a) Application procedure. A written

application for a permit 1 must be

submitted to the Animal and Plant

Health Inspection Service, Plant

Protection and Quarantine, Port

Operations Permit Unit, 4700 River

Road Unit 136, Riverdale, MD 20737–

1236. The completed application must

include the following information:

(1) The specific type of regulated

article to be imported, including the

genus and species name of the tree from

which the regulated article was derived;

(2) Country, and locality if known,

where the tree from which the regulated

article was derived was harvested;

(3) The quantity of the regulated

article to be imported;

(4) A description of any processing,

treatment or handling of the regulated

article to be performed prior to

importation, including the location

where any processing or treatment was

or will be performed and the names and

dosage of any chemicals employed in

treatments;
Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations 27677

2Section 105(a) of the Federal Plant Pest Act (7

U.S.C. 150dd(a)) provides, among other things, that

the Secretary of Agriculture may, whenever he

deems it necessary as an emergency measure in

order to prevent the dissemination of any plant pest

new to or not theretofore known to be widely

prevalent or distributed within and throughout the

United States, seize, quarantine, treat, apply other

remedial measures to, destroy, or dispose of, in

such manner as he deems appropriate, subject to

section 105(d) of the Federal Plant Pest Act (7

U.S.C. 150dd(d)), any product or article, including

any article subject to this subpart, which is moving

into or through the United States, and which he has

reason to believe is infested with any such plant

pest at the time of the movement, or which has

moved into the United States, and which he has

reason to believe was infested with any such plant

pest at the time of the movement. Section 10 of the

Plant Quarantine Act (7 U.S.C. 164a) and section

107 of the Federal Plant Pest Act (7 U.S.C. 150ff)

also authorize measures against regulated articles

which are not in compliance with this subpart.

(5) A description of any processing,

treatment, or handling of the regulated

article intended to be performed

following importation, including the

location where any processing or

treatment will be performed and the

names and dosage of any chemicals

employed in treatments;

(6) Whether the regulated article will

or will not be imported in a sealed

container or in a hold;

(7) The means of conveyance to be

used to import the regulated article;

(8) The intended port of first arrival

in the United States of the regulated

article, and any subsequent ports in the

United States at which regulated articles

may be unloaded;

(9) The destination and general

intended use of the regulated article;

(10) The name and address of the

applicant and, if the applicant’s address

is not within the United States, the

name and address of an agent in the

United States whom the applicant

names for acceptance of service of

process; and

(11) A statement certifying the

applicant as the importer of record.

(b) Review of application and

issuance of permit. After receipt and

review of the application, APHIS shall

determine whether it appears that the

regulated article at the time of

importation will meet either the specific

importation requirements in § 319.40–5

or the universal importation

requirements in § 319.40–6.

(1) If it appears that the regulated

article proposed for importation will

meet the requirements of either

§ 319.40–5 or § 319.40–6, a permit

stating the applicable conditions for

importation under this subpart shall be

issued for the importation of the

regulated article identified in the

application.

(2) If it appears that the regulated

article proposed for importation will not

meet the requirements of either

§ 319.40–5 or § 319.40–6 because these

sections do not address the particular

regulated article identified in the

application, APHIS shall review the

application by applying the plant pest

risk assessment standards specified in

§ 319.40–11.

(i) If this review reveals that

importation of the regulated article

under a permit and subject to the

inspection and other requirements in

§ 319.40–9, but without any further

conditions, will not result in the

introduction of plant pests into the

United States, a permit for importation

of the regulated article shall be issued.

The permit may only be issued in

unique and unforeseen circumstances

when the importation of the regulated

article is not expected to recur.

(ii) If this review reveals that the

regulated article may be imported under

conditions that would reduce the plant

pest risk to an insignificant level, APHIS

may implement rulemaking to add the

additional conditions to this subpart,

and after the regulations are effective,

may issue a permit for importation of

the regulated article.

(3) No permit will be issued to an

applicant who has had a permit

withdrawn under paragraph (d) of this

section during the 12 months prior to

receipt of the permit application by

APHIS, unless the withdrawn permit

has been reinstated upon appeal.

(c) Permit does not guarantee

eligibility for import. Even if a permit

has been issued for the importation of

a regulated article, the regulated article

may be imported only if all applicable

requirements of this subpart are met and

only if an inspector at the port of first

arrival determines that no emergency

measures pursuant to the Federal Plant

Pest Act or other measures pursuant to

the Plant Quarantine Act are necessary

with respect to the regulated article.2

(d) Denial and withdrawal of permits.

Any permit which has been issued may

be withdrawn by an inspector or the

Administrator if he or she determines

that the person to whom the permit was

issued has violated any requirement of

this subpart. If the withdrawal is oral,

the decision to withdraw the permit and

the reasons for the withdrawal of the

permit shall be confirmed in writing as

promptly as circumstances permit. Any

person whose permit has been denied or

withdrawn may appeal the decision in

writing to the Administrator within 10

days after receiving the written

notification of the withdrawal. The

appeal shall state all of the facts and

reasons upon which the person relies to

show that the permit was wrongfully

denied or withdrawn. The

Administrator shall grant or deny the

appeal, in writing, stating the reasons

for granting or denying the appeal as

promptly as circumstances permit. If

there is a conflict as to any material fact

and the person from whom the permit

is withdrawn requests a hearing, a

hearing shall be held to resolve the

conflict. Rules of practice concerning

the hearing shall be adopted by the

Administrator.

§ 319.40–5 Importation and entry

requirements for specified articles.

(a) Bamboo timber. Bamboo timber

consisting of whole culms or canes may

be imported into Guam or the Northern

Mariana Islands subject to inspection

and other requirements of § 319.40–9.

Bamboo timber consisting of whole

culms or canes that are completely dry

as evidenced by lack of moisture in

node tissue may be imported into any

part of the United States subject to

inspection and other requirements of

§ 319.40–9.

(b) Monterey pine logs and lumber

from Chile and New Zealand; Douglasfir logs and lumber from New Zealand—

(1) Logs. (i) Requirements prior to

importation. Monterey or Radiata pine

(Pinus radiata) logs from Chile or New

Zealand and Douglas-fir (Pseudotsuga

menziesii) logs from New Zealand that

are accompanied by a certificate stating

that the logs meet the requirements of

paragraph (b)(1)(i) (A) through (D) of

this section, and that are consigned to

a facility in the United States that

operates in accordance with § 319.40–8,

may be imported in accordance with

paragraphs (b)(1)(i)(A) through (b)(1)(iii)

of this section.

(A) The logs must be from live healthy

trees which are apparently free of plant

pests, plant pest damage, and decay

organisms.

(B) The logs must be debarked in

accordance with § 319.40–7(b) prior to

fumigation.

(C) The logs and any solid wood

packing materials to be used with the

logs during shipment to the United

States must be fumigated in accordance

with § 319.40–7(f)(1), within 45 days

following the date the trees are felled

and prior to arrival of the logs in the

United States, in the holds or in sealable

containers. Fumigation must be

conducted in the same sealable

container or hold in which the logs and

solid wood packing materials are

exported to the United States.

(D) During shipment to the United

States, no other regulated article is

permitted on the means of conveyance

with the logs, unless the logs and the

other regulated articles are in separate
27678 Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations

holds or separate sealed containers, or,

if the logs and other regulated articles

are mixed in a hold or sealed container,

the other regulated articles either have

been heat treated with moisture

reduction in accordance with § 319.40–

7(d), or have been fumigated in the hold

or sealable container in accordance with

paragraph (b)(1)(i)(C) of this section.

(ii) Requirements upon arrival in the

United States. The following

requirements apply upon arrival of the

logs in the United States.

(A) The logs must be kept segregated

from other regulated articles from the

time of discharge from the means of

conveyance until the logs are

completely processed at a facility in the

United States that operates under a

compliance agreement in accordance

with § 319.40–8.

(B) The logs must be moved from the

port of first arrival to the facility that

operates under a compliance agreement

in accordance with § 319.40–8 by as

direct a route as reasonably possible.

(iii) Requirements at the processing

facility. The logs must be consigned to

a facility operating under a compliance

agreement in accordance with § 319.40–

8 that includes the following

requirements:

(A) Logs or any products generated

from logs, including lumber, must be

heat treated in accordance with

§ 319.40–7(c), or heat treated with

moisture reduction in accordance with

§ 319.40–7(d).

(B) The logs, including sawdust, wood

chips, or other products generated from

the logs in the United States, must be

processed in accordance with paragraph

(b)(1)(iii) of this section within 60 days

from the time the logs are released from

the port of first arrival.

(C) Sawdust, wood chips, and waste

generated by sawing or processing the

logs must be disposed of by burning,

heat treatment in accordance with

§ 319.40–7(c), heat treatment with

moisture reduction in accordance with

§ 319.40–7(d), or other processing that

will destroy any plant pests associated

with the sawdust, wood chips, and

waste. Composting and use of the

sawdust, wood chips, and waste as

mulch are prohibited unless composting

and use as mulch are preceded by

fumigation in accordance with § 319.40–

7(f)(3), heat treatment in accordance

with § 319.40–7(c), or heat treatment

with moisture reduction in accordance

with § 319.40–7(d). Wood chips,

sawdust, and waste may be moved in

enclosed trucks for processing at

another facility operating under a

compliance agreement in accordance

with § 319.40–8.

(2) Raw lumber. Raw lumber,

including solid wood packing materials

imported as cargo, from Chile or New

Zealand derived from Monterey or

Radiata pine (Pinus radiata) logs and

raw lumber from New Zealand derived

from Douglas-fir (Pseudotsuga

menziesii) logs may be imported in

accordance with paragraphs (b)(2) (i)

and (ii) of this section.

(i) During shipment to the United

States, no other regulated article (other

than solid wood packing materials) is

permitted on the means of conveyance

with the raw lumber, unless the raw

lumber and the other regulated articles

are in separate holds or separate sealed

containers; Except for mixed shipments

of logs and raw lumber fumigated in

accordance with § 319.40–7(f)(2) and

moved in accordance with paragraph

(b)(1)(i)(D) of this section. Raw lumber

on the vessel’s deck must be in a sealed

container.

(ii) The raw lumber must be

consigned to a facility operating under

a compliance agreement in accordance

with § 319.40–8 that requires the raw

lumber to be heat treated in accordance

with § 319.40–7(c) or heat treated with

moisture reduction in accordance with

§ 319.40–7(d) before any cutting,

planing, or sawing of the raw lumber,

and within 30 days from the time the

lumber is released from the port of first

arrival.

(c) Tropical hardwoods.—(1)

Debarked. Tropical hardwood logs and

lumber that have been debarked in

accordance with § 319.40–7(b) may be

imported subject to the inspection and

other requirements of § 319.40–9.

(2) Not debarked. Tropical hardwood

logs that have not been debarked may be

imported if fumigated in accordance

with § 319.40–7(f)(1) prior to arrival in

the United States.

(3) Not debarked; small lots. Tropical

hardwood logs that have not been

debarked may be imported into the

United States, other than into Hawaii,

Puerto Rico, or the Virgin Islands of the

United States, if imported in a lot of 15

or fewer logs and subject to the

inspection and other requirements of

§ 319.40–9.

(d) Temperate hardwoods. Temperate

hardwood logs and lumber (with or

without bark) from all places except

places in Asia that are east of 60° East

Longitude and north of the Tropic of

Cancer may be imported if fumigated in

accordance with § 319.40–7(f) prior to

arrival in the United States and subject

to the inspection and other

requirements of § 319.40–9.

(e) Regulated articles associated with

exclusively tropical climate pests.

Regulated articles that have been

identified by a plant pest risk

assessment as associated solely with

plant pests that can successfully become

established only in tropical or

subtropical climates may be imported if:

(1) The regulated article is imported

only to a destination in the continental

United States; and,

(2) the regulated article is not

imported into any tropical or

subtropical areas of the United States

specified in the permit.

(f) Cross-ties (railroad ties) from all

places except places in Asia that are east

of 60° East Longitude and north of the

Tropic of Cancer may be imported if

completely free of bark and

accompanied by an importer document

stating that the cross-ties will be

pressure treated within 30 days

following the date of importation.

§ 319.40–6 Universal importation options.

(a) Logs. Logs may be imported if

prior to importation the logs have been

debarked in accordance with § 319.40–

7(b) and heat treated in accordance with

§ 319.40–7(c). During the entire interval

between treatment and export, the logs

must be stored and handled in a manner

which excludes any access to the logs

by plant pests.

(b) Lumber.—(1) Heat treated or heat

treated with moisture reduction. Lumber

that prior to importation has been heat

treated in accordance with § 319.40–

7(c), or heat treated with moisture

reduction in accordance with § 319.40–

7(d), may be imported in accordance

with paragraphs (b)(1) (i) and (ii) of this

section.

(i) During shipment to the United

States, no other regulated article (other

than solid wood packing materials) is

permitted on the means of conveyance

with the lumber, unless the lumber and

the other regulated articles are in

separate holds or separate sealed

containers, or, if the lumber and other

regulated articles are mixed in a hold or

sealed container, all the regulated

articles have been heat treated in

accordance with § 319.40–7(c), or heat

treated with moisture reduction in

accordance with § 319.40–7(d). Lumber

on the vessel’s deck must be in a sealed

container, unless it has been heat

treated with moisture reduction in

accordance with § 319.40–7(d).

(ii) If lumber has been heat treated in

accordance with § 319.40–7(c), that fact

must be stated on the importer

document, or by a permanent marking

on each piece of lumber in the form of

the letters ‘‘HT’’ or the words ‘‘Heat

Treated.’’ If lumber has been heat

treated with moisture reduction in

accordance with § 319.40–7(d), that fact

must be stated on the importer
Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations 27679

document, or by a permanent marking,

on each piece of lumber or on the cover

of bundles of lumber, in the form of the

letters ‘‘KD’’ or the words ‘‘Kiln Dried.’’

(2) Raw lumber. Raw lumber,

including solid wood packing materials

imported as cargo, from all places

except places in Asia that are wholly

east of 60° East Longitude and north of

the Tropic of Cancer may be imported

in accordance with paragraphs (b)(2) (i)

and (ii) of this section.

(i) During shipment to the United

States, no other regulated article (other

than solid wood packing materials) is

permitted on the means of conveyance

with the raw lumber, unless the raw

lumber and the other regulated articles

are in separate holds or separate sealed

containers. Raw lumber on the vessel’s

deck must be in a sealed container.

(ii) The raw lumber must be

consigned to a facility operating under

a compliance agreement in accordance

with § 319.40–8 that requires the raw

lumber to be heat treated in accordance

with § 319.40–7(c) or heat treated with

moisture reduction in accordance with

§ 319.40–7(d), within 30 days from the

time the lumber is released from the

port of first arrival. Heat treatment must

be completed before any cutting,

planing, or sawing of the raw lumber.

(c) Wood chips and bark chips. Wood

chips and bark chips from any place

except countries in Asia that are wholly

east of 60° East Longitude and wholly or

in part north of the Tropic of Cancer

may be imported in accordance with

this paragraph.

(1) The wood chips or bark chips

must be accompanied by an importer

document stating that the wood chips or

bark chips were either:

(i) Derived from live, healthy, tropical

species of plantation-grown trees grown

in tropical areas; or

(ii) Fumigated with methyl bromide

in accordance with § 319.40–7(f)(3), heat

treated in accordance with § 319.40–

7(c), or heat treated with moisture

reduction in accordance with § 319.40–

7(d).

(2) During shipment to the United

States, no other regulated articles (other

than solid wood packing materials) are

permitted in the holds or sealed

containers carrying the wood chips or

bark chips. Wood chips or bark chips on

the vessel’s deck must be in a sealed

container; Except that; If the wood chips

or bark chips are derived from live,

healthy, plantation-grown trees in

tropical areas, they may be shipped on

deck if no other regulated articles are

present on the vessel, and the wood

chips or bark chips are completely

covered by a tarpaulin during the entire

journey directly to the United States.

(3) The wood chips or bark chips

must be free from rot at the time of

importation, unless accompanied by an

importer document stating that the

entire lot was fumigated with methyl

bromide in accordance with § 319.40–

7(f)(3), heat treated in accordance with

§ 319.40–7(c), or heat treated with

moisture reduction in accordance with

§ 319.40–7(d).

(4) Wood chips or bark chips

imported in accordance with this

paragraph must be consigned to a

facility operating under a compliance

agreement in accordance with § 319.40–

8. The wood chips or bark chips must

be burned, heat treated in accordance

with § 319.40–7(c), heat treated with

moisture reduction in accordance with

§ 319.40–7(d), or otherwise processed in

a manner that will destroy any plant

pests associated with the wood chips or

bark chips, within 30 days of arrival at

the facility. If the wood chips or bark

chips are to be used for mulching or

composting, they must first be

fumigated in accordance with § 319.40–

7(f)(3), heat treated in accordance with

§ 319.40–7(c), or heat treated with

moisture reduction in accordance with

§ 319.40–7(d).

(d) Wood mulch, humus, compost,

and litter. Wood mulch, humus,

compost, and litter may be imported if

accompanied by an importer document

stating that the wood mulch, humus,

compost, or litter was fumigated in

accordance with § 319.40–7(f)(3), heat

treated in accordance with § 319.40–

7(c), or heat treated with moisture

reduction in accordance with § 319.40–

7(d).

(e) Cork and bark. Cork and cork bark,

cinnamon bark, and other bark to be

used for food, manufacture of medicine,

or chemical extraction may be imported

if free from rot at the time of

importation and subject to the

inspection and other requirements of

§ 319.40–9.

§ 319.40–7 Treatments and safeguards.

(a) Certification of treatments or

safeguards. If APHIS determines that a

document required for the importation

of regulated articles is inaccurate, the

regulated articles which are the subject

of the certificate or other document

shall be refused entry into the United

States. In addition, APHIS may

determine not to accept any further

certificates for the importation of

regulated articles in accordance with

this subpart from a country in which an

inaccurate certificate is issued, and

APHIS may determine not to allow the

importation of any or all regulated

articles from any such country, until

corrective action acceptable to APHIS

establishes that certificates issued in

that country will be accurate.

(b) Debarking. Except for raw lumber,

no more than 2 percent of the surface of

all regulated articles in a lot may retain

bark, with no single regulated article

retaining bark on more than 5 percent of

its surface. For raw lumber, debarking

must remove 100 percent of the bark.

(c) Heat treatment. Heat treatment

must be performed only at a facility

where APHIS or an inspector authorized

by the Administrator and the national

government of the country in which the

facility is located has inspected the

facility and determined that its

operation complies with the standards

of this paragraph. Heat treatment

procedures may employ steam, hot

water, kilns, exposure to microwave

energy, or any other method (e.g., the

hot water and steam techniques used in

veneer production) that raises the

temperature of the center of each treated

regulated article to at least 71.1 °C and

maintains the regulated article at that

center temperature for at least 75

minutes. For regulated articles heat

treated prior to arrival in the United

States, during the entire interval

between treatment and export the

regulated article must be stored,

handled, or safeguarded in a manner

which excludes any infestation of the

regulated article by plant pests.

(d) Heat treatment with moisture

reduction. (1) Heat treatment with

moisture reduction may employ:

(i) Kiln drying conducted in

accordance with the schedules

prescribed for the regulated article in

the Dry Kiln Operator’s Manual,

Agriculture Handbook 188, which is

incorporated by reference at § 300.1 of

this chapter; or,

(ii) Dry heat, exposure to microwave

energy, or any other method that raises

the temperature of the center of each

treated regulated article to at least 71.1

°C, maintains the regulated articles at

that center temperature for at least 75

minutes, and reduces the moisture

content of the regulated article to 20

percent or less as measured by an

electrical conductivity meter.

(2) For regulated articles heat treated

with moisture reduction prior to arrival

in the United States, during the entire

interval between treatment and export

the regulated article must be stored,

handled, or safeguarded in a manner

which excludes any infestation of the

regulated article by plant pests.

(e) Surface pesticide treatments. All

United States Environmental Protection

Agency registered surface pesticide

treatments are authorized for regulated

articles imported in accordance with

this subpart. Surface pesticide
27680 Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations

treatments must be conducted in

accordance with label directions

approved by the United States

Environmental Protection Agency.

When used on heat treated logs, a

surface pesticide treatment must be first

applied within 48 hours following heat

treatment. The surface pesticide

treatment must be repeated at least

every 30 days during storage of the

regulated article, with the final

treatment occurring no more than 30

days prior to departure of the means of

conveyance that carries the regulated

articles to the United States.

(f) Methyl bromide fumigation. The

following minimum standards for

methyl bromide fumigation treatment

are authorized for the regulated articles

listed in paragraphs (f)(1) through (f)(3)

of this section. Any method of

fumigation that meets or exceeds the

specified temperature/time/

concentration products is acceptable.

(1) Logs. (i) T–312 schedule. The

entire log and the ambient air must be

at a temperature of 5 °C or above

throughout fumigation. The fumigation

must be conducted using schedule T–

312 contained in the Treatment Manual.

In lieu of the schedule T–312 methyl

bromide concentration, fumigation may

be conducted with an initial methyl

bromide concentration of at least 240 g/

m3 with exposure and concentration

levels adequate to provide a

concentration-time product of at least

17,280 gram-hours calculated on the

initial methyl bromide concentration.

(ii) T–404 schedule. The entire log

and the ambient air must be at a

temperature of 5 °C or above throughout

fumigation. The fumigation must be

conducted using schedule T–404

contained in the Treatment Manual. In

lieu of the schedule T–404 methyl

bromide concentration, fumigation may

be conducted with an initial methyl

bromide concentration of at least 120 g/

m3 with exposure and concentration

levels adequate to provide a

concentration-time product of at least

1920 gram-hours calculated on the

initial methyl bromide concentration.

(2) Lumber. The lumber and the

ambient air must be at a temperature of

5 °C or above throughout fumigation.

The fumigation must be conducted

using schedule T–404 contained in the

Treatment Manual. In lieu of the

schedule T–404 methyl bromide

concentration, fumigation may be

conducted with an initial methyl

bromide concentration of at least 120 g/

m3 with exposure and concentration

levels adequate to provide a

concentration-time product of at least

1920 gram-hours calculated on the

initial methyl bromide concentration.

(3) Regulated articles other than logs

or lumber. (i) If the ambient air and the

regulated articles other than logs or

lumber are at a temperature of 21 °C or

above throughout fumigation, the

fumigation must be conducted using

schedule T–404 contained in the

Treatment Manual. In lieu of the

schedule T–404 methyl bromide

concentration, fumigation may be

conducted with an initial methyl

bromide concentration of at least 48 g/

m3 with exposure and concentration

levels adequate to provide a

concentration-time product of at least

760 gram-hours calculated on the initial

methyl bromide concentration.

(ii) If the ambient air and the

regulated articles other than logs or

lumber are at a temperature of 4.5–20.5

°C throughout fumigation, the

fumigation must be conducted using

schedule T–404 contained in the

Treatment Manual. In lieu of the

schedule T–404 methyl bromide

concentration, fumigation may be

conducted with an initial methyl

bromide concentration of at least 120 g/

m3 with exposure and concentration

levels adequate to provide a

concentration-time product of at least

1920 gram-hours calculated on the

initial methyl bromide concentration.

(g) Preservatives. All preservative

treatments that use a preservative

product that is registered by the United

States Environmental Protection Agency

are authorized for treatment of regulated

articles imported in accordance with

this subpart. Preservative treatments

must be performed in accordance with

label directions approved by the United

States Environmental Protection

Agency.

§ 319.40–8 Processing at facilities

operating under compliance agreements.

(a) Any person who operates a facility

in which imported regulated articles are

processed may enter into a compliance

agreement to facilitate the importation

of regulated articles under this subpart.

The compliance agreement shall specify

the requirements necessary to prevent

spread of plant pests from the facility,

requirements to ensure the processing

method effectively destroys plant pests,

and the requirements for the application

of chemical materials in accordance

with the Treatment Manual. The

compliance agreement shall also state

that inspectors must be allowed access

to the facility to monitor compliance

with the requirements of the compliance

agreement and of this subpart.

Compliance agreement forms may be

obtained from the Administrator or an

inspector.

(b) Any compliance agreement may be

canceled by the inspector who is

supervising its enforcement, orally or in

writing, whenever the inspector finds

that the person who entered into the

compliance agreement has failed to

comply with the conditions of the

compliance agreement. If the

cancellation is oral, the decision to

cancel the compliance agreement and

the reasons for cancellation of the

compliance agreement shall be

confirmed in writing, as promptly as

circumstances permit. Any person

whose compliance agreement has been

canceled may appeal the decision in

writing to the Administrator within 10

days after receiving written notification

of the cancellation. The appeal shall

state all of the facts and reasons upon

which the person relies to show that the

compliance agreement was wrongfully

canceled. The Administrator shall grant

or deny the appeal, in writing, stating

the reasons for granting or denying the

appeal, as promptly as circumstances

permit. If there is a conflict as to any

material fact and the person whose

compliance agreement has been

canceled requests a hearing, a hearing

shall be held to resolve the conflict.

Rules of practice concerning the hearing

will be adopted by the Administrator.

§ 319.40–9 Inspection and other

requirements at port of first arrival.

(a) Procedures for all regulated

articles. (1) All imported regulated

articles shall be inspected at the port of

first arrival. If the inspector finds signs

of plant pests on or in the regulated

article, or finds that the regulated article

may have been associated with other

articles infested with plant pests, the

regulated article shall be cleaned or

treated as required by an inspector, and

the regulated article and any products of

the regulated article shall also be subject

to reinspection, cleaning, and treatment

at the option of an inspector at any time

and place before all applicable

requirements of this subpart have been

accomplished.

(2) Regulated articles shall be

assembled for inspection at the port of

first arrival, or at any other place

prescribed by an inspector, at a place

and time and in a manner designated by

an inspector.

(3) If an inspector finds that an

imported regulated article is so infested

with a plant pest that, in the judgment

of the inspector, the regulated article

cannot be cleaned or treated, or contains

soil or other prohibited contaminants,

the entire lot may be refused entry into

the United States.

(4) No person shall move any

imported regulated article from the port
Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations 27681

3Certain regulated articles may also be subject to

§§ 319.56 through 319.56–8, ‘‘Subpart—Fruits and

Vegetables,’’ or to Noxious Weed Act regulations

under part 360 of this chapter, or to Endangered

Species Act regulations under parts 355 and 356 of

this chapter and 50 CFR parts 17 and 23.

4A list of APHIS Officers in Charge may be

obtained from the Administrator, c/o Port

Operations, Plant Protection and Quarantine,

Animal and Plant Health Inspection Service, 4700

River Road, Riverdale, MD 20737.

5Provisions relating to costs for other services of

an inspector are contained in part 354 of this

chapter.

of first arrival unless and until an

inspector notifies the person, in writing

or through an electronic database, that

the regulated article:

(i) Is in compliance with all

applicable regulations and has been

inspected and found to be apparently

free of plant pests; 3 or,

(ii) Has been inspected and the

inspector requires reinspection,

cleaning, or treatment of the regulated

article at a place other than the port of

first arrival.

(b) Notice of arrival; visual

examination of regulated articles at port

of first arrival. (1) At least 7 days prior

to the expected date of arrival in the

United States of a shipment of regulated

articles imported in accordance with

this subpart, the permittee or his or her

agent must notify the APHIS Officer in

Charge at the port of arrival of the date

of expected arrival. The address and

telephone number of the APHIS Officer

in Charge will be specified in any

specific permit issued by APHIS 4. This

notice may be in writing or by

telephone. The notice must include the

number of any specific permit issued for

the regulated articles; the name, if any,

of the means of conveyance carrying the

regulated articles; the type and quantity

of the regulated articles; the expected

date of arrival; the country of origin of

the regulated articles; the name and the

number, if any, of the dock or area

where the regulated articles are to be

unloaded; and the name of the importer

or broker at the port of arrival.

(2) Imported regulated articles which

have been debarked in accordance with

§ 319.40–7(b) and can be safely and

practically inspected will be visually

examined for plant pests by an inspector

at the port of first arrival. If plant pests

are found on or in the regulated articles

or if the regulated article cannot be

safely and practically inspected, the

regulated articles must be treated in

accordance with the Treatment Manual.

(c) Marking and identity of regulated

articles. Any regulated article, at the

time of importation shall bear on the

outer container (if in a container), on the

regulated article (if not in a container),

or on a document accompanying the

regulated article the following

information:

(1) General nature and quantity of the

regulated articles;

(2) Country and locality, if known,

where the tree from which the regulated

article was derived was harvested;

(3) Name and address of the person

importing the regulated article;

(4) Name and address of consignee of

the regulated article;

(5) Identifying shipper’s mark and

number; and

(6) Number of the permit (if one was

issued) authorizing the importation of

the regulated article into the United

States.

(d) Sampling for plant pests at port of

first arrival. Any imported regulated

article may be sampled for plant pests

at the port of first arrival. If an inspector

finds it necessary to order treatment of

a regulated article at the port of first

arrival, any sampling will be done prior

to treatment.

§ 319.40–10 Costs and charges.

The services of an inspector during

regularly assigned hours of duty and at

the usual places of duty shall be

furnished without cost to the importer.5

The inspector may require the importer

to furnish any labor, chemicals, packing

materials, or other supplies required in

handling regulated articles under this

subpart. APHIS will not be responsible

for any costs or charges, other than

those identified in this section.

§ 319.40–11 Plant pest risk assessment

standards.

When evaluating a request to import

a regulated article not allowed

importation under this subpart, or a

request to import a regulated article

under conditions other than those

prescribed by this subpart, APHIS will

conduct the following analysis to

determine the plant pest risks associated

with each requested importation in

order to determine whether or not to

issue a permit under this subpart or to

propose regulations establishing

conditions for the importation into the

United States of the regulated article.

(a) Collecting commodity information.

(1) APHIS will evaluate the application

for information describing the regulated

article and the origin, processing,

treatment, and handling of the regulated

article; and

(2) APHIS will evaluate history of past

plant pest interceptions or introductions

(including data from foreign countries)

associated with the regulated article.

(b) Cataloging quarantine pests. For

the regulated article specified in an

application, APHIS will determine what

plant pests or potential plant pests are

associated with the type of tree from

which the regulated article was derived,

in the country and locality from which

the regulated article is to be exported. A

plant pest that meets one of the

following criteria is a quarantine pest

and will be further evaluated in

accordance with paragraph (c) of this

section:

(1) Non-indigenous plant pest not

present in the United States;

(2) Non-indigenous plant pest, present

in the United States and capable of

further dissemination in the United

States;

(3) Non-indigenous plant pest that is

present in the United States and has

reached probable limits of its ecological

range, but differs genetically from the

plant pest in the United States in a way

that demonstrates a potential for greater

damage potential in the United States;

(4) Native species of the United States

that has reached probable limits of its

ecological range, but differs genetically

from the plant pest in the United States

in a way that demonstrates a potential

for greater damage potential in the

United States; or

(5) Non-indigenous or native plant

pest that may be able to vector another

plant pest that meets one of the criteria

in paragraphs (b)(1) through (4) of this

section.

(c) Determining which quarantine

pests to assess. (1) APHIS will divide

quarantine pests identified in paragraph

(b) of this section into groups depending

upon where the plant pest is most likely

to be found. The plant pests would be

grouped as follows:

(i) Plant pests found on the bark;

(ii) Plant pests found under the bark;

and

(iii) Plant pests found in the wood.

(2) APHIS will subdivide each of the

groups in paragraph (c)(1) of this section

into associated taxa.

(3) APHIS will rank the plant pests in

each group in paragraph (c)(2) of this

section according to plant pest risk,

based on the available biological

information and demonstrated plant

pest importance.

(4) APHIS will identify any plant

pests ranked in paragraph (c)(3) of this

section for which plant pest risk

assessments have previously been

performed in accordance with this

section. APHIS will conduct individual

plant pest risk assessments for the

remaining plant pests, starting with the

highest ranked plant pest(s) in each

group.

(5) The number of plant pests in each

group to be evaluated through

individual plant pest risk assessment

will be based on biological similarities
27682 Federal Register / Vol. 60, No. 101 / Thursday, May 25, 1995 / Rules and Regulations

of members of the group as they relate

to measures taken in connection with

the importation of the regulated article

to mitigate the plant pest risk associated

with the regulated article. For example,

if the plant pest risk assessment for the

highest ranked plant pest indicates a

need for a mitigation measure that

would result in the same reduction of

risk for other plant pests ranked in the

group, the other members need not be

subjected to individual plant pest risk

assessment.

(d) Conducting individual plant pest

risk assessments. APHIS will evaluate

each of the plant pests identified in

paragraph (c)(4) of this section by:

(1) Estimation of the probability of the

plant pest being on, with, or in the

regulated article at the time of

importation;

(2) Estimation of the probability of the

plant pest surviving in transit on the

regulated article and entering the United

States undetected;

(3) Estimation of the probability of the

plant pest colonizing once it has entered

into the United States;

(4) Estimation of the probability of the

plant pest spreading beyond any

colonized area; and

(5) Estimation of the damage to plants

that could be expected upon

introduction and dissemination within

the United States of the plant pest.

(e) Estimating unmitigated overall

plant pest risk. APHIS will develop an

estimation of the overall plant pest risk

associated with importing the regulated

article based on compilation of

individual plant pest risk assessments

performed in accordance with

paragraph (d) of this section.

(f) Evaluating available requirements

to determine whether they would allow

safe importation of the regulated article.

The requirements of this subpart, and

any other requirements relevant to the

regulated article and plant pests

involved, will be compared with the

individual plant pest risk assessments

in order to determine whether particular

conditions on the importation of the

regulated article would reduce the plant

pest risk to an insignificant level. If

APHIS determines that the imposition

of particular conditions on the

importation of the regulated article

could reduce the plant pest risk to an

insignificant level, and determines that

sufficient APHIS resources are available

to implement or ensure implementation

of the conditions, APHIS will

implement rulemaking to allow

importation of the requested regulated

article under the conditions identified

by the plant pest risk assessment

process.

Subpart—Packing Materials

§ 319.69 [Amended]

8. The introductory text to § 319.69 is

removed.

9. In § 319.69, paragraph (a), the

phrase ‘‘On and after July 1, 1933, the’’

is removed and the word ‘‘The’’ is

added in its place.

10. In § 319.69, paragraph (b), the

phrase ‘‘On and after June 8, 1953, the’’

is removed and the word ‘‘The’’ is

added in its place.

11. In § 319.69, paragraph (b)(3) is

removed, and paragraphs (b)(4) and

(b)(5) are redesignated as paragraphs

(b)(3) and (b)(4), respectively.

§ 319.69a [Amended]

12. In § 319.69a, paragraph (a) is

amended by removing the reference

‘‘(b)(1), (3), and (4)’’ and adding the

reference ‘‘(b)(1) and (3)’’ in its place.

Done in Washington, DC, this 19th day of

May 1995.

Terry L. Medley,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 95–12789 Filed 5–24–95; 8:45 am]

BILLING CODE 3410–34–P

Agricultural Marketing Service

7 CFR Part 946

[FV95–946–2FR]

Irish Potatoes Grown in Washington;

Establishment of Interest Charge on

Overdue Assessment Payments and

Clarification of Operating Reserve

Authority

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This final rule establishes an

interest charge on overdue assessments

under the marketing order and clarifies

authority for an operating reserve not to

exceed approximately two fiscal

periods’ expenses. This action will

contribute to the efficient operation of

the order by ensuring that adequate

funds are available to cover authorized

expenses incurred under the order. This

rule was recommended by the State of

Washington Potato Committee

(Committee), the agency responsible for

the local administration of the order.

EFFECTIVE DATE: May 25, 1995.

FOR FURTHER INFORMATION CONTACT:

Dennis L. West, Northwest Marketing

Field Office, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, 1220

SW Third Avenue, room 369, Portland,

Oregon 97204–2807; telephone: (503)

326–2724; or James B. Wendland,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room

2523–S, Washington, D.C. 20090–6456;

telephone: (202) 720–2170.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

No. 113 and Marketing Order No. 946 (7

CFR part 946), both as amended,

regulating the handling of Irish potatoes

grown in Washington, hereinafter

referred to as the ‘‘order.’’ The order is

authorized by the Agricultural

Marketing Agreement Act of 1937, as

amended (7 U.S.C. 601–674), hereinafter

referred to as the ‘‘Act.’’

The Department of Agriculture

(Department) is issuing this final rule in

conformance with Executive Order

12866.

This rule has been reviewed under

Executive Order 12778, Civil Justice

Reform. This action is not intended to

have retroactive effect. This rule will

not preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this action.

The Act provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

section 608c(15)(A) of the Act, any

handler subject to an order may file

with the Secretary of Agriculture

(Secretary) a petition stating that the

order, any provision of the order, or any

obligation imposed in connection with

the order is not in accordance with law

and request a modification of the order

or to be exempted therefrom. A handler

is afforded the opportunity for a hearing

on the petition. After the hearing the

Secretary would rule on the petition.

The Act provides that the district court

of the United States in any district in

which the handler is an inhabitant, or

has his or her principal place of

business, has jurisdiction in equity to

review the Secretary’s ruling on the

petition, provided a bill in equity is

filed not later than 20 days after the date

of the entry of the ruling.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Administrator of the Agricultural

Marketing Service (AMS) has

considered the economic impact of this

action on small entities.

The purpose of the RFA is to fit

regulatory actions to the scale of

business subject to such actions in order

that small businesses will not be unduly

or disproportionately burdened.

Marketing orders issued pursuant to the

Act, and rules issued thereunder, are

unique in that they are brought about

through group action of essentially