Importation of Logs, Lumber, and Other Unmanufactured Wood Articles

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 91-074-3]

RIN 0579-AA47

Importation of Logs, Lumber, and Other Unmanufactured Wood

Articles

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We propose to amend our foreign quarantine regulations by

adding a new ``Subpart--Logs, Lumber, and Other Unmanufactured Wood

Articles'' to establish prohibitions and restrictions concerning

imported unmanufactured wood articles. The new subpart would affect

persons importing logs, lumber, bark chips, wood chips, certain wood

packing materials, and other unmanufactured wood articles. The new

subpart would not affect imports of manufactured wood products such as

furniture. We also propose to change several existing foreign

quarantine regulations that currently restrict importation of certain

wood articles, to state that such articles would instead be regulated

under the proposed new subpart. These changes appear necessary because

there is increased interest in importing large volumes of

unmanufactured wood articles into the United States, and prohibitions

and restrictions appear necessary to eliminate any significant plant

pest risk associated with importing these articles.

DATES: Consideration will be given only to comments received on or

before April 20, 1994. We also will consider comments made at public

hearings to be held on February 10, 1994, in Portland, Oregon, and on

February 23, 1994, in Washington, DC.

ADDRESSES: A public hearing in Portland, Oregon, will be held at

Cheatham Hall, World Forestry Center, 4033 S.W. Canyon Road, Portland,

Oregon 97221. A Washington, DC, public hearing will be held at the

Jefferson Auditorium, United States Department of Agriculture, South

Building, 14th Street and Independence Avenue SW., Washington, DC.

To submit comments by mail, please send an original and three

copies of your comments to Chief, Regulatory Analysis and Development,

PPD, APHIS, USDA, room 804, Federal Building, 6505 Belcrest Road,

Hyattsville, MD 20782. Please state that your comments refer to Docket

No. 91-074-3. Comments received may be inspected at USDA, room 1141,

South Building, 14th Street and Independence Avenue SW., Washington,

DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except

holidays. Persons wishing to inspect comments are encouraged to call

ahead (202-690-2817) to facilitate entry into the comment reading room.

You may also submit comments to an electronic bulletin board APHIS

has established for this purpose, and review online comments posted to

this bulletin board by other commenters. Printed copies of comments

posted to this bulletin board will also be available in our comment

reading room. To access the bulletin board via modem at 1200 through

14,400 baud, dial (703) 243-9696. Set your modem parity, data bits, and

stop bits to N,8,1. You can also access the bulletin board via INTERNET

with the command TELNET tmn.com. To log in to the bulletin board, use

the userid ``woodrule'' and the password ``aphis23'' (type both in

lower case, not capital letters).

FOR FURTHER INFORMATION CONTACT: Mr. Richard L. Orr, Senior

Entomologist, Planning and Risk Analysis Systems, PPD, APHIS, USDA,

room 810, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782,

301-436-8939.

SUPPLEMENTARY INFORMATION:

Public Hearings

The public hearings will be held on February 10, 1994, in Portland,

Oregon, and on February 23, 1994, in Washington, DC. The Portland,

Oregon, public hearing will begin at 10 a.m. at Cheatham Hall, World

Forestry Center, 4033 S.W. Canyon Road, Portland, Oregon 97221. The

Washington, DC, public hearing will begin at 10 a.m. at the Jefferson

Auditorium, United States Department of Agriculture, South Building,

14th Street and Independence Avenue SW., Washington, DC.

Persons wishing to speak at a public hearing are requested to

contact Mr. Richard Kelly no later than ten days prior to the hearing

date, at (301) 436-5455, or by writing to him at APHIS, PPD, RAD, room

804, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782 (FAX

number 301-436-8934).

A representative of the Animal and Plant Health Inspection Service

(APHIS) will preside at each public hearing. Any interested person may

appear and be heard in person, by attorney, or by other representative.

Each public hearing will begin each day at 10 a.m. local time and

is scheduled to end at 5 p.m. local time. However, the hearing may be

terminated at any time after it begins if all persons desiring to speak

have been heard. We request that all persons who wish to speak at the

public hearing contact us as requested above, and provide their name,

organization, the hearing they plan to attend, and the approximate

length of their presentation. This will allow us to determine whether

we need to schedule additional time for a hearing. Speakers who

register in advance will be informed prior to the hearing of the time

they are scheduled to speak. Attendees who do not register in advance

will be allowed to speak after all scheduled speakers have been heard.

We ask that anyone who reads a statement provide two copies to the

presiding officer at the hearing.

If the number of speakers at a hearing warrants it, the presiding

officer may limit the time for each presentation so that everyone

wishing to speak has the opportunity.

The purpose of the hearings is to give interested persons an

opportunity for oral presentations of data, views, and arguments.

Questions about the content of the proposed rule may be part of the

commenters' oral presentations. However, neither the presiding officer

nor any other representative of APHIS will respond to comments at a

hearing, except to clarify or explain provisions of the proposed rule.

Background

The Animal and Plant Health Inspection Service (APHIS) is proposing

to establish comprehensive regulations to eliminate any significant

pest risks presented by the importation1 of logs, lumber, and

other unmanufactured wood articles.

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\1\Throughout this document, the words ``import'' and

``importation'' are used to mean moving or bringing articles into

the territorial limits of the United States.

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Although serious plant pests have been introduced into the United

States in association with wood imports in the past, little wood has

been imported recently in forms, or from places, that pose significant

risks of introducing plant pests that could harm United States forests

or agriculture. A changing national and world economy has recently

increased the incentives to import wood that may present a significant

increase in plant pest risk. 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 which 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 consequently no regulations were

developed specifically to address such imports. 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 the Federal

Plant Pest Act (7 CFR part 330). In addition, APHIS has prohibited the

entry into the United States of logs from the Soviet Far East and

Siberia, because a detailed pest risk assessment found that dangerous

plant pests could occur in such logs and may be introduced with them.

APHIS has also published interim regulations allowing importation of

certain logs from Chile and New Zealand, discussed below.

However, when large volumes of wood imports are involved,

inspection at the port of first arrival without other conditions

relating to the wood imports may not be practical or adequate for

preventing the introduction of plant pests associated with imported

wood in all cases. 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.

Representatives of domestic timber industries, State governments,

academia, and environmental organizations have requested that we

propose to add regulations to 7 CFR part 319 to establish an organized

system for importing unmanufactured wood articles under conditions

adequate to prevent the introduction into the United States of plant

pests and pathogens. These groups have suggested that the current

practice of allowing unmanufactured wood articles to enter the United

States based solely on inspection and other actions at the port of

first arrival (or prohibiting imports in the case of logs from Siberia

and nearby areas) is not sufficient for dealing with large-volume

imports of unmanufactured wood articles from many sources.

We believe that establishing a more comprehensive procedure for

importing logs and other unmanufactured wood articles would result in a

greater level of pest protection, and would also allow importers to

plan their transactions in an orderly way, to meet known regulatory

requirements.

In developing this proposal, APHIS worked with Federal and State

regulatory and forestry officials from many States, and representatives

from Agriculture Canada, the Foreign Agricultural Service and the

Forest Service of the United States Department of Agriculture, and key

industries with an immediate interest or involvement in present or

potential importations. We also solicited public comment on approaches

to regulating wood imports in an Advance Notice of Proposed Rulemaking

published in the Federal Register on September 22, 1992 (57 FR 43628-

43631, Docket No. 91-074-2). We received 66 comments on the Advance

Notice prior to the closing date of November 23, 1992. Almost all the

comments favored establishing regulations on the importation of wood

products, and many provided useful technical information which was

considered in developing this proposed rule.

As part of the development of this proposed rule, the Forest

Service of the United States Department of Agriculture completed pest

risk assessments for the importation of certain types of wood from

Siberia2, New Zealand3, and Chile4. APHIS employed a

great deal of the information generated by these assessments in

developing this proposed rule. These studies helped us expand and adapt

methodologies for addressing plant pest risks associated with importing

unmanufactured wood articles on a worldwide basis, by providing

valuable case studies in how to identify, evaluate, and control plant

pest risks associated with particular unmanufactured wood articles from

particular areas. We wish to stress that these proposed regulations do

not simply extrapolate the requirements found appropriate for Siberia,

New Zealand, and Chile to apply them on a world-wide basis. That

approach would have reduced validity due to the immense variety of

forest types, plant pests, and risk situations in other countries.

However, experience from the Siberian, New Zealand and Chile

assessments did give us insight into better ways to identify plant pest

risks and develop controls for other situations world-wide.

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\2\``Pest Risk Assessment of the Importation of Larch from

Siberia and the Soviet Far East,'' USDA, Forest Service,

Miscellaneous Publication No. 1495, September, 1991; ``An Efficacy

Review of Control Measures for Potential Pests of Imported Soviet

Timber,'' USDA, APHIS, Miscellaneous Publication No. 1496, September

1991.

\3\``Pest Risk Assessment of the Importation of Pinus radiata

and Douglas-fir Logs from New Zealand,'' USDA, Forest Service,

Miscellaneous Publication No. 1508, October 1992.

\4\``Pest Risk Assessment of the Importation of Pinus radiata,

Nothofagus dombeyi and Laurelia philippiana Logs from Chile,'' USDA,

Forest Service, Miscellaneous Publication, May 1993.

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Interim Rules Affecting Certain Logs From Chile and New Zealand

An interim rule published in the Federal Register on February 16,

1993, and effective upon signature on 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 Douglas-fir logs from New Zealand.

This proposed rule would replace the regulations established by the

interim rules with comprehensive wood import regulations affecting

importation of unmanufactured wood articles from all places, including

Chile and New Zealand. The provisions contained in this proposed 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.

Policy of the Proposed Regulations

These proposed regulations attempt to establish a comprehensive,

user-friendly framework for the importation of unmanufactured wood

articles into the United States. A primary goal of the regulations is

to protect the nation's forests and other plant resources against the

introduction of plant pests. The scientific literature contains a very

large inventory of known plant pests associated with trees and wood

articles in various parts of the world. Ample scientific evidence

indicates that there is an equal or larger number of unknown plant

pests associated with wood in foreign countries that could be harmful

if introduced into the United States. The history of inadvertent

introductions of plant pests supports this concern about currently

unknown plant pests. For example, two plant pests that have caused

immense damage in the United States, the Dutch elm disease fungus and

the dogwood anthracnose fungus, were not identified as significant

plant pests prior to their introduction into the United States, and

their place of origin and exact method of introduction into the United

States are still disputed.

Therefore, our proposed regulations use a dual approach that

addresses both known and unknown plant pests. The regulations would

establish sufficient controls to deter the introduction of known plant

pests. The regulations also would establish procedures for identifying

and assessing risks associated with currently unknown plant pests, and

maintain a threshold level of deterrence for all imported

unmanufactured wood articles that will prevent the introduction of

currently unknown plant pests. Any lessening of the threshold

requirements for importation of unmanufactured wood articles must be

based on adequate knowledge about the plant pest risks associated with

importing the regulated articles involved.

Approach of the Proposed Regulations

We have attempted to accomplish the following objectives in this

proposed rule:

Identify the types of articles proposed to be regulated;

Propose requirements that can reduce plant pest risks

associated with the importation of unmanufactured wood articles to an

insignificant level (e.g., permits issued by APHIS; documentation by

the importer of the nature and quantity of the articles; harvesting,

storage, and shipping practices; chemical and physical treatments;

restriction of destinations or uses for the imported articles);

Propose universal importation requirements for certain

types of regulated articles. Using this alternative, an importer would

know that a given regulated article may be imported and entered from

anywhere if the proposed requirements are met;

Propose specific importation and entry requirements for

particular article-origin combinations. These proposed requirements

would allow some articles from some locations to be imported under less

restrictive conditions than the proposed universal importation

requirements;

Propose a procedure for making case-by-case evaluations of

whether unmanufactured wood articles could be imported without

significant risk under conditions less stringent than the proposed

universal importation requirements. Under this procedure, APHIS would

first identify plant pest risks associated with importation of a

regulated article. We would then apply risk assessment standards

contained in the regulations to analyze the entry potential,

colonization potential, spread potential, and damage potential of the

plant pests. APHIS would then evaluate the effectiveness of available

mitigation measures to prevent introduction of the plant pests. If safe

importation of the regulated article is feasible with no plant pest

mitigation measures, APHIS would issue a permit authorizing the

regulated article to be imported. However, if the plant pest risk

assessment shows that the regulated article may be safely imported if

it is subjected to requirements not currently in the regulations, APHIS

would propose regulations containing requirements for its importation.

After the regulations are adopted as a final rule, the regulated

article could be imported in accordance with them.

These objectives should establish a useful framework to eliminate

significant plant pest risks associated with importing unmanufactured

wood articles. This proposed rule addresses these objectives through a

variety of regulatory requirements contained in the proposed 7 CFR

319.40-1 through 319.40-11, ``Subpart--Logs, Lumber, and Other

Unmanufactured Wood Articles'' (referred to below as the regulations).

Permits, Certificates, and Other Documents Employed by the Proposed

Regulations

Importing wood articles under the proposed regulations would

involve a certain amount of paperwork. We would require several forms

and other documents to record and transmit information that would be

necessary for effective implementation of our wood importation

regulations. This section explains how these documents would be used

and why they appear to be necessary.

This proposed rule attempts to limit paperwork to documents that

actively support the pest exclusion goals of the regulations, and to

require a document only if the information contained in it is not

readily available through other means. To reduce the paperwork burden,

the proposed regulations would require certificates only for the

importation of a few specified articles. The proposed regulations would

also provide for the use of multi-product, multi-shipment permits, and

informal documents written by the importer. Another important feature

of the proposed regulations is that some types of articles may be

imported under a general permit (an authorization contained in the text

of the proposed regulations) instead of an individual specific permit

issued by APHIS to an importer.

1. Permits (Required by Proposed Sec. 319.40-2(a))

A permit is written authorization issued or promulgated by APHIS

that allows an importer to bring specified articles into the United

States. The specific permit specifies, or refers to regulations that

specify, the type of articles allowed import and the requirements the

articles must meet to be eligible for importation. A general permit is

a permit that is contained in the text of the regulations.

We refer to the document that authorizes an importer to bring

articles into the United States in accordance with our regulations as a

``permit,'' because ``permit'' is the term used in the Federal Plant

Pest Act and the Plant Quarantine Act, two statutes that constitute the

statutory basis for this proposal. Our permit serves the same function

as documents that other national governments call authorizations,

affidavits, licenses, or various other names; all refer to a document

that a government gives to importers to notify them that they may

import certain articles.

There are both legal and practical reasons for using permits in the

proposed regulations. The primary legal reason is that the Federal

Plant Pest Act, in 7 U.S.C. 150bb, requires that, except for plant

pests from Canada, a person may move a plant pest into the United

States only ``under general or specific permit from the Secretary [of

Agriculture],'' and the Plant Quarantine Act, in 7 U.S.C. 154, requires

that certain articles may not be imported ``unless and until a permit

shall have been issued therefor by the Secretary of Agriculture,

provided however that the Secretary of Agriculture may waive this

permit requirement for nursery stock imported or offered for entry from

Canada.'' Articles requiring a permit include nursery stock and other

plant products whose unrestricted importation may result in the entry

into the United States of injurious plant diseases or insect pests (7

U.S.C. 159). We have determined that unmanufactured wood is such an

article, due to the wide range of pests associated with unmanufactured

wood and discussed elsewhere in this document. Therefore, a permit

would be required to import wood articles that will be regulated if

this proposed rule is adopted.

There are also practical reasons for using permits in connection

with importing wood. These are:

A permit shows that risks associated with a shipment were

evaluated, and the necessary mitigation measures were prescribed, prior

to import. The proposed regulations are designed to ensure that

articles with unacceptably high pest risks do not even get to U.S.

ports of arrival. Regulations referenced by specific permits inform

importers of our entry requirements before they ship articles, rather

than at the port of arrival. Permits give importers pre-arrival notice

of our requirements. By requiring permits, APHIS also discourages the

arrival of unexpected shipments of articles that present unknown pest

risks.

A permit expedites processing at the port of arrival. The

application for a permit provides crucial information about shipments,

which is provided to our inspectors at ports. Without a permit,

inspectors would have to obtain this information from a variety of

sources--shipping documents, physical inspection and inventory, even

phone calls--which would delay inspection and release of arriving

shipments.

A permit preserves data needed for future pest risk

assessments and program operations. Without permit application data, it

would be difficult for APHIS to collect the data it needs to continue

to operate and improve its regulations for importing unmanufactured

wood articles. Permit information allows us to track the type and

quantity of wood articles arriving at U.S. ports, and the conditions

and treatments employed for their importation. We need to accumulate

this data to continually evaluate whether our regulatory restrictions

are effectively preventing the introduction of pests associated with

wood, and whether any of our regulatory restrictions are unnecessarily

severe.

APHIS permits tend to be broad rather than narrow. Most of

our import permits are issued to allow importation of multiple articles

through multiple shipments, over extended time periods. Under such a

permit, it is not necessary to obtain a new permit each time articles

are imported by the same permittee. Once our wood importation program

is well established, we intend to use permits for multiple articles

through multiple shipments wherever possible. However, many of the

permits issued during the first year of implementing the program may be

limited to cover one or a few shipments, or a period of only a few

months, to allow us to confirm that the program is operating

effectively before we issue permits that are effective for long periods

of time.

Obtaining an APHIS permit is usually not a long and

frustrating process. Whatever delays an importer encounters in

obtaining authorization to import new articles into the United States

are usually the result of a pest risk assessment or rulemaking that

often must precede new import requirements, not the result of actually

issuing the permit. Our Plant Protection and Quarantine Port Operations

staff issues thousands of permits each year. Most of these permits are

for articles that are already being imported, by some other importer.

Some permits are for articles specifically allowed to be imported by

our regulations, but that no one happens to be importing currently. We

can usually issue a permit in these cases within about 10 days after

the request is received. For new articles whose risks have not been

evaluated, we must conduct risk assessments before we allow such

articles to be imported. If any risk assessment identifies plant pest

risks, we would need to conduct rulemaking to establish requirements to

control these risks. In such cases a permit may not be issued until

several to many months after the request is made. However, this delay

does not result from the requirement for a permit; it reflects risk

assessment and rulemaking activities we would perform even if our

regulations did not employ permits.

In some cases importers will not need a specific permit.

In some cases a general authorization to import is provided in the text

of the regulations covering certain classes of articles, so that

importers of these articles need not obtain a specific written permit

to import these articles. (Under 7 U.S.C. 150bb, articles must be

imported ``under general or specific permit''; this is an example of a

``general'' permit.)\5\ See our discussion below of proposed

Sec. 319.40-3, ``General permits; articles that may be imported without

a specific permit or importer document.'' In that section, we would

exempt certain articles from the requirement for a specific permit,

because we already know a great deal about the plant pest risks

associated with these articles. Our inspectors at the ports already

have substantial experience dealing with such articles. Therefore, most

of the reasons discussed above for using specific permits do not apply

to these articles, and we do not intend to require specific permits for

them.

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\5\The general permits discussed in this document should not be

confused with the ``general permits'' utilized in 7 CFR part 355,

which are written permits issued to particular persons authorizing

them to engage in business as importers, exporters, or reexporters

of any terrestrial plants protected under the Endangered Species Act

of 1973, as amended (16 U.S.C. 1531 et seq.) and listed in 50 CFR

17.12 or 23.23.

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We will probably establish ``general permits'' in the regulations

for more classes of articles over time, as we gain enough experience

with the importation of additional classes of articles. Over time, we

would expect to see fewer and fewer specific permit requirements for

importation of wood articles.

2. Application for a Permit (Required by Proposed Sec. 319.40-4(a))

We propose to require that in order to obtain a specific permit a

person must complete a written application. This application would

require the submission of information we would need to consider in

deciding whether the regulations allowed a person to import the

articles requested in the application. We would also use this

information to determine what conditions, restrictions, and treatments

in the regulations would apply to a request.

The completed application would provide information about the place

of harvest of the tree from which the regulated article was derived;

the type and quantity of articles the applicant wishes to import; any

processing or treatments the applicant plans to apply to the articles

either before or after they are imported; the port of arrival and final

destination in the United States for the articles; the identity and

address of the applicant, and other matters.

You could use the permit application to your advantage by providing

as much information as possible in your answers. For example, if you

wished to import logs and you answered the question about their place

of origin with the name of a country, we would have no way of knowing

where in that country the logs originated. Some localities in that

country may present lower pest risks than other localities. If we knew

the logs came from a low pest risk locality, we might be able to impose

less stringent requirements. But if we only knew the country of origin,

we would have to impose requirements that protect against pest risk

from all localities in that country.

Similarly, it could help an applicant to be forthcoming about

processing and treatments, the final destination and use of the

articles, and other information we request. To the extent the

regulations allow, we would use all this information to impose the

minimum requirements necessary to protect against introduction of plant

pests.

The permit application is discussed in more detail below in

Sec. 319.40-4, ``Application for a permit to import regulated articles;

issuance and withdrawal of permits.''

3. Certificates (Required for a few Articles by Proposed Sec. 319.40-

5(b))

In many of its plant import regulations, APHIS requires that the

articles be accompanied by certificates of inspection issued by foreign

governments. These certificates indicate that an article has been

inspected, and may make additional certifications concerning the

origin, treatment, or handling of the article.

Certificates issued by foreign governments would only be required

in these proposed regulations in a few cases, discussed below. Instead,

we propose in most cases to require articles to be accompanied by

written declarations signed by the importer of the article (``importer

documents''), or, at the option of the importer, a certificate issued

by a government.

Certificates would be required in certain cases where there is no

adequate substitute for involvement of a foreign government's plant

protection or forestry officials in the inspection or treatment of

articles. There are two situations in the proposed rule where

certificates are required: the importation of logs from both Chile and

New Zealand (see proposed Sec. 319.40-5(b)). In both these situations,

industry and government in the exporting country worked together to

develop programs where government officials monitor the harvest,

treatment, and movement of unmanufactured wood articles, and issue

certificates documenting that these activities followed our

regulations. The request presented to APHIS by these groups for

importation of logs specified use of certificates, and we agree that

certificates are a useful tool in these cases. The certificate would

officially record a determination by officials authorized by the

government of Chile or New Zealand that the logs meet the requirement

of proposed Sec. 319.40-5(b)(1)(i)(A), which requires the logs must be

from live healthy trees which are apparently free of plant pests, plant

pest damage, and decay organisms. It would be difficult to enforce this

requirement without employing certification.

4. Importer Documents (Required by Proposed Sec. 319.40-2(b))

Instead of requiring certificates for most importations, we propose

to require a document written by the importer to provide certain

information we will need at the port of arrival. We believe that an

importer could compose a document far more easily that he or she could

obtain a certificate from a foreign government, and that this

requirement would minimize the paperwork burden on importers. We

believe importer documents would provide APHIS with information we need

regarding regulated articles to be imported. An importer document (or

at the importer's option, a certificate containing the information

required by an importer document) must accompany every shipment of

regulated articles imported into the United States, with a few

exceptions discussed below under proposed Sec. 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.''

We are not concerned about the form the importer document takes as

long as it is an accurate written declaration by the importer. All that

we would require for an importer document is that it be signed by the

importer, and that it contain the required information. The information

that would be required is described in detail in proposed Sec. 319.40-

2(b). The importer document would be required to include the following

information: (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

treatment or handling of the regulated article performed prior to

arrival at the port of first arrival.

5. Compliance Agreements, Notice of Arrival, Withdrawal and Appeal

Letters

Compliance agreements would be developed on a case-by-case basis

between APHIS and U.S. processing facilities that would subject

regulated articles to processing necessary to eliminate pest risk

associated with the articles. Proposed Sec. 319.40-8 would allow

persons who operate facilities in which imported regulated articles are

processed to enter into compliance agreements to facilitate

importation. We expect to develop only a few compliance agreements each

year. These agreements would provide a clear standard for both APHIS

and the persons operating these processing facilities as to what

procedures and safeguards must be employed during processing to ensure

the elimination of plant pests.

Proposed Sec. 319.40-9(b) would require that persons to whom

permits have been issued or their agents give APHIS notice of the

impending arrival of a shipment in the United States at least 7 days

prior to the expected date of arrival. We do not believe this notice

would be particularly burdensome to persons who have been issued

permits or their agents, and we believe it is needed to allow our

inspectors to prepare for a shipment.

Proposed Secs. 319.40-4(d) and 319.40-8(b) would allow APHIS to

withdraw permits and cancel compliance agreements with a written

notice, and allow the holders of withdrawn documents to appeal the

withdrawal or cancellation in writing to the Administrator of APHIS.

Based upon past experience with other similar programs, we believe that

withdrawal of permits and cancellation of compliance agreements will

occur infrequently. Therefore, the paperwork burden of appealing

withdrawal of permits and cancellation of compliance agreements should

not impose a significant paperwork burden. Further, the written appeal

would only be required to include the facts and reasons upon which a

person relies to show that the permit was wrongfully withdrawn or the

compliance agreement was wrongfully canceled.

Section-by-Section Description of Proposed Rule

The proposed rule consists of the following sections:

Section 319.40-1 Definitions

This section would establish definitions of terms used throughout

the regulations. The definitions of Administrator, APHIS, Certificate,

Compliance agreement, Departmental permit, Import, Inspector, Permit,

Plant pest, Port of first arrival, Treatment Manual, and United States

are consistent with our use of these terms in other foreign quarantine

regulations in part 319, and describe the framework in which we propose

to conduct operations to enforce our regulations.

A key definition, Regulated article, identifies the articles to

which the requirements of the proposed rule would apply. Our intent is

to make any imported wood article a regulated article if it has not

been sufficiently processed and manufactured to remove, and prevent

reinfestation by, any pests that might be associated with the tree from

which the article was derived.

The definition of regulated article would include a great variety

of materials derived from trees. Regulated articles would include logs;

lumber; solid wood packing materials; 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 (small wood

fragments used as fuel to fire a furnace, kiln, or boiler); sawdust;

painted raw wood products; excelsior (wood wool); wood chips; wood

mulch; wood shavings; pickets; stakes; shingles; humus; compost; and

litter. Regulated articles are the types of wood and wood products that

often have pests associated with them. Sometimes the pests are from the

tree from which the article was derived, and sometimes pests that

attack wood can become associated with regulated articles later in the

production and shipping process.

The definition of regulated article would also include any article

designated as a regulated article in accordance with Sec. 319.40-2(f).

This provision would allow an inspector to designate articles other

than the articles identified in the definition of the term regulated

article in proposed Sec. 319.40-1 as regulated articles. An inspector

may designate any article as a regulated article by giving written

notice of the designation to the owner or person in possession or

control of the article. 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. This provision would give

APHIS inspectors authority to regulate articles that are not defined in

proposed Sec. 319.40-1 as regulated articles in situations where the

articles appear to present a risk of introducing plant pests. The

Administrator will implement rulemaking to add articles temporarily

designated as regulated articles to the definition of regulated article

in proposed Sec. 319.40-1 if importation of the article appears to

present a recurring risk of introducing plant pests.

Manufactured wood articles such as furniture made of kiln dried

lumber and wooden artwork or ornaments (without bark) would not be

regulated articles. No article is entirely free from the risk of

introducing plant pests, and there have been occasional reports of

plant pests found in or associated with imported furniture and similar

articles; for example, wood borers emerging from imported furniture

months after importation. However, addressing all risks would require

practically unlimited resources, and the proposed regulations must

focus available resources on those articles which pose the greatest

plant pest risk. Therefore, the definition of regulated articles

includes only articles that are unprocessed or have received only

primary processing. Primary processing is defined to include cleaning

(removal of soil, limbs, and foliage), debarking, rough sawing (bucking

or squaring), rough shaping, spraying with fungicide or insecticide

sprays, and fumigation.

Articles that have received more than primary processing present

less of a risk because their manufacturing processes destroy many plant

pests associated with the articles, and, therefore, they would not be

included in the proposed definition of the term ``regulated article.''

The provision discussed above to allow inspectors to designate

additional articles as regulated articles would address plant pest

risks associated with occasional situations where manufactured articles

present a significant plant pest risk. In addition, APHIS will continue

to evaluate plant pest risks associated with importation of articles

not included in the proposed definition of regulated articles, and may

propose further regulations in the future to address these risks.

Solid wood packing materials (dunnage, crating, pallets, etc.)

which are unprocessed or subjected only to primary processing would be

regulated. Solid wood packing materials are commonly used in

association with the movement of a very large volume of goods imported

into the United States. Currently, the only requirement applied to

imported solid wood packing materials is that they are subject to

inspection at the port of first arrival, followed by mandatory

treatment, destruction, or re-export if certain plant pests are found.

Under the proposed regulations, certain solid wood packing materials

would have to meet additional requirements to be eligible for entry.

We also propose to define the term ``Sealed (sealable) container''

as follows. ``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.''

This definition of sealed container is important because the

proposed regulations require that various regulated articles be

enclosed in such containers at various times, to prevent the movement

of plant pests to or from the regulated articles in the containers.

The word ``lot'' is defined as 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. This definition is necessary

to prevent manipulation of articles because some of the proposed

requirements apply to each ``lot'' of regulated articles. For example,

proposed Sec. 319.40-5(c)(3) imposes certain requirements on tropical

hardwood logs imported in lots of 15 or fewer logs; the definition of

``lot'' would prevent an importer from importing a shipment of 60 such

logs on a single means of conveyance as four ``separate'' lots.

The proposed regulations require that to be eligible for

importation, certain regulated articles must be free from rot, because

rot is sometimes caused by plant pests, and rot also renders wood more

susceptible to some other plant pests. We propose to define ``free from

rot'' to mean ``[n]o 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.'' We believe this standard is

consistent with common industrial standards for rot in wood chips and

other regulated articles, and is also an effective standard for

minimizing plant pests associated with rot. Our inspectors can readily

enforce this standard for wood chips by examining samples taken from

wood chip shipments, and calculating the percentage of rot by comparing

the quantity of chips afflicted by rot in a sample to the total

quantity of chips in the sample. The presence of rot in other types of

regulated articles is also detectable through inspection.

Other proposed definitions establish certain subgroups of regulated

articles so that requirements can be targeted to the subgroups based on

the plant pest risks presented by each and the commercial practices and

treatments available for each subgroup. The following subgroups of

regulated articles would be separately defined.

Bark chips. Defined as bark fragments broken or shredded from log

or branch surfaces. Bark chips would be regulated because many plant

pests are associated with bark on trees, and some plant pests may

remain with the bark even after it is chipped from the underlying wood.

Humus, compost, and litter. Defined as partially or wholly decayed

plant matter. Humus, compost, and litter is often derived from forest

products and byproducts. This material would be regulated because, if

untreated, it is a good medium for plant pests, and it is often used as

a soil amendment, where it could easily spread plant pests into the

environment.

Log. Defined as the bole of a tree; trimmed timber that has not

been further sawn. Logs are regulated because they provide ecological

niches for a wide variety of plant pests. Logs and lumber (defined

below) are the two most commercially important regulated articles, and

constitute the major volume of wood imports.

Loose wood packing material. Defined as excelsior (wood wool),

sawdust, and wood shavings, produced as a result of sawing or shaving

wood into small, slender, and curved pieces. While the processes that

produce these materials generally remove or destroy plant pests

associated with these articles, they are regulated because they may

become contaminated with plant pests after manufacture if the loose

wood packing materials become wet or come in contact with other

materials bearing plant pests.

Lumber. Defined as logs that have been sawn into boards, planks, or

structural members such as beams. Lumber would be regulated because it

can harbor deep-wood plant pests.

Solid wood packing material. Defined as wood packing materials

other than loose wood packing materials, including but not limited to

dunnage, crating, pallets, packing blocks, drums, cases, and skids,

that are used or for use with cargo to prevent damage. Solid wood

packing materials are used for packing and blocking in connection with

both regulated and unregulated articles. Solid wood packing materials

would be regulated because they present a plant pest risk in themselves

(especially if they are not free from bark or treated), and because

when used in connection with the movement of regulated articles, they

may either spread plant pests to the regulated articles or be

contaminated with plant pests from the regulated articles.

Tropical hardwoods. Defined as hardwood timber species which grow

only in tropical climates. We particularly seek comments on how to

improve this definition, since it is virtually impossible to list all

hardwood species that grow only in tropical climates.

Wood chips. Defined as wood fragments broken or shredded from any

wood. Wood chips are usually generated from raw wood, but occasionally

from manufactured articles made of wood. All wood chips would be

regulated because some plant pests survive the process that produces

wood chips or may contaminate the wood chips at a later time.

Wood mulch. Defined as bark chips, wood chips, wood shavings, or

sawdust intended for use as a protective or decorative ground cover.

Like humus, compost, and litter, the use of wood mulch would tend to

spread any plant pests that are associated with it.

Section 319.40-2 General Prohibitions and Restrictions; Relation to

Other Regulations

This section would establish general requirements for importation

that apply to regulated articles. These requirements would include a

permit issued by APHIS, and a document signed by the importer that

contains information about the genus of tree from which the regulated

article was derived, quantity, and the treatment and handling of the

regulated articles prior to arrival at the port of first arrival.

The proposed permit requirement would ensure that for each request

to allow importation of a regulated article, APHIS has determined the

regulated article is eligible for importation in accordance with the

regulations and has given permission for importation of the regulated

article into the United States.

The requirement for a document signed by the importer (an

``importer document'') is designed to provide APHIS with a declaration

of certain information we need to determine the eligibility of a

shipment for importation. We would require that the importer provide us

with the following information in this document: The genus and species

of the tree from which the regulated article was derived; the country

and, if known, the locality where the tree from which the regulated

article was derived was harvested; the quantity of the regulated

article to be imported; any treatment or handling of the regulated

article required by the proposed regulations which was performed prior

to arrival at the port of first arrival in the United States; and the

use for which the regulated article is imported.

This section would also state that articles that meet the

definition of regulated article, but are allowed importation for

propagation or human consumption under other regulations in 7 CFR part

319, will not be regulated under proposed Sec. 319.40, but rather under

the other appropriate regulations in part 319.

Finally, this section would establish a separate procedure for

importing regulated articles by the United States Department of

Agriculture under a Departmental permit for experimental, scientific,

or educational purposes.

Section 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

General Permits. This section would establish a number of general

permits issued by APHIS for the importation of articles listed in this

section. To import these articles, importers would have to comply with

the general permit conditions specified in this section, but they would

not have to obtain a specific permit issued to them by APHIS.

Exemption from Specific Permits. This section would exempt most

regulated articles that originate in Canada and states in Mexico

bordering the United States from the specific permit requirements of

proposed Sec. 319.40-2, and from most of the other proposed

requirements of the regulations. Most regulated articles from Canada

and from Mexican border states do not present a risk of introducing

exotic plant pests if imported into the United States. The climatic

conditions in areas on both sides of these borders are similar, and

there has been much trade across these borders for generations, with

the result that the same plant pests generally exist on both sides of

the borders. Therefore, we propose to allow most regulated articles

from Canada and Mexican border states to be imported without

restriction under the regulations, except that they must be accompanied

by documents verifying their origin (to prevent transshipment of

regulated articles from other places), and would be subject to

inspection and other requirements in proposed Sec. 318.40-9 (discussed

below). To prevent the possibility that regulated articles from Canada

or Mexican border states may have originated in or been moved through

other areas where they may have been exposed to plant pests, regulated

articles imported from Canada or Mexican border states must be

accompanied by a document signed by the importer stating that the

regulated articles are derived from trees harvested in, and never

before moved outside, Canada or states in Mexico adjacent to the United

States border.

However, certain regulated articles from Canada and Mexico present

a risk of spreading citrus diseases, and would not be covered by this

general exemption for regulated articles from Canada and Mexican border

states. Regulated articles not covered by this exemption would include

articles of the subfamilies Aurantioideae, Rutoideae, and Toddalioideae

of the botanical family Rutaceae. Both Canada and Mexico are under

quarantine for citrus diseases in accordance with 7 CFR 319.19, which

prohibits importation into the United States of plants or plant parts,

except fruit or seeds, of these subfamilies from Canada and Mexico. To

address the citrus disease risk, the proposed regulations would allow

regulated articles from these subfamilies to be imported from Canada

and Mexico, but only if they are imported in accordance with the

proposed regulations.

This section would also exempt solid wood packing materials used as

packing for regulated articles from the specific permit requirements

that would otherwise apply to imported solid wood packing materials.

The exemption for solid wood packing materials would provide as

follows:

If the solid wood packing material is being used as

packing for a regulated article, there is a risk that plant pests

associated with the packing material could attack the regulated article

in transit, and there is a risk that plant pests associated with the

regulated article could attack the solid wood packing material.

Therefore, we propose to require that solid wood packing materials used

as packing for regulated articles be treated to destroy plant pests

prior to importation, using a heat, fumigation, or preservative

treatment described below in Sec. 319.40-7. Alternatively, solid wood

packing material which is free of bark and poses less of a risk of

introducing plant pests would be eligible for importation if it meets

all the importation and entry conditions specified in the permit issued

for the regulated article the solid wood packing material is used to

move. (It would generally be possible for solid wood packing materials

to meet the same requirements imposed on the regulated articles moved

with them only when the requirements are a specific treatment, e.g.,

heat, fumigation, or preservative. Regulated articles would often be

subject to requirements packing materials cannot readily meet, e.g., a

maximum time limit between harvest and shipment.)

While treatment of solid wood packing materials is necessary, we do

not believe a separate permit for the solid wood packing material is

needed, since in most cases the regulated article the solid wood

packing materials accompany will have a permit and an importer

document. Therefore, we propose that if the solid wood packing material

was treated prior to importation, that fact could be recorded in a

document signed by the importer and accompanying the shipment.

We do not propose to require that solid wood packing materials must

be treated immediately before they are used to move regulated articles

or within any maximum time preceding their use. Once solid wood packing

materials are treated, the plant pest risk associated with the solid

wood packing materials is reduced to a level similar to manufactured

wood articles that are not regulated. We do not believe there is a

significant enough risk of reinfestation after treatment of solid wood

packing materials to require that they be treated within a fixed time

prior to their use to move regulated articles. Also, in view of the

vast volume of solid wood packing materials used and reused in

shipping, we believe requiring that such materials be treated within a

fixed time prior to their use, or retreated if they were treated

earlier, would impose a substantial economic burden without

significantly reducing plant pest risk.

If the solid wood packing material is being used as

packing for an article that is not a regulated article, there is less

risk that plant pests from the solid wood packing material will attack

the article being moved. Still, it is important to prevent such solid

wood packing materials from introducing plant pests. The plant pests of

particular concern are the type found on or under bark attached to

solid wood packing materials. Such plant pests could spread to wood

articles in the United States after the solid wood packing materials

are unloaded and discarded or reused. Therefore, we propose that solid

wood packing materials used as packing for articles that are not

regulated articles must be either: (1) Totally free from bark, and

apparently free from live plant pests, or (2) treated prior to

importation, using a heat, fumigation, or preservative treatment

described below in Sec. 319.40-7. Again, we do not believe a specific

permit is necessary to enforce this requirement. We propose that solid

wood packing materials be accompanied by a document signed by the

importer and accompanying the solid wood packing material. This

document would affirm that the solid wood packing material either: (1)

Is totally free from bark, and apparently free from live plant pests,

or (2) was treated prior to importation, using a heat, fumigation, or

preservative treatment described below in Sec. 319.40-7.

Solid wood packing materials imported as cargo, i.e., not in actual

use as packing, would not be exempted from the specific permit and

importer document requirements and would have to be imported in

accordance with requirements for lumber in proposed Sec. 319.40-5 or

Sec. 319.40-6, discussed below.

Exemption From Both Specific Permit and Importer Document Requirements

This section would also exempt dry loose wood packing materials

(excelsior, sawdust, and wood shavings) from the specific permit

requirement and the importer document requirement, whether they are

imported in use as packing material or not in use (i.e., as cargo). The

processes by which loose wood packing materials are produced generally

remove any significant pest risk that may be associated with them, and

we propose to admit them only if they are dry (to control rot), and are

inspected at the port of first arrival.

Bamboo timber that is free of leaves and seeds and that has been

sawn or split lengthwise and dried presents only a minimal plant pest

risk and therefore would not require either a specific permit or an

importer document. Such bamboo timber would be subject only to

inspection and other requirements in proposed Sec. 319.40-9.

Section 319.40-4 Application for a Permit to Import Regulated

Articles; Issuance and Withdrawal of Permits

This proposed section describes the requirements for applying for a

permit, how APHIS would evaluate the application and issue a permit,

and how APHIS could withdraw a permit if the person to whom the permit

is issued does not comply with importation requirements.

A person who wishes to obtain a permit must submit a written

application that provides detailed information about the regulated

articles proposed for importation. APHIS would evaluate this

information to determine whether to issue a permit. The permit

application would have to 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 performed prior to importation, including the

location where any processing or treatment was or will be performed and

the names of any chemicals employed in treatments;

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 of any chemicals employed in treatments;

6. Whether the regulated article will or will not be imported in a

sealable container or in a hold;

7. The means of conveyance to be used to import the regulated

article into the United States;

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. (General intended use means, for example, if the article is

logs, will they be sawn into lumber, used for veneer, sold whole, or

used otherwise; for wood chips, will they be pulped, burned, or

composted; or similar information about the article's intended use that

may affect pest dissemination risk);

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.

This information is needed to determine whether the regulated

article covered by the application is eligible for importation and to

coordinate APHIS activities for enforcing the regulations at ports of

first arrival and elsewhere (e.g., at processing facilities operating

under compliance agreements; see Sec. 319.40-8 below).

Proposed Sec. 319.40-4(b) states that when APHIS reviews a permit

application, it would first determine whether the regulated article

covered by the application is eligible for importation under either

Sec. 319.40-5, ``Importation requirements for specified articles from

specified countries,'' or Sec. 319.40-6, ``Universal importation

options,'' discussed below. If the regulated article is eligible for

importation under either of these sections, APHIS would issue a permit

for the importation of the regulated article identified in the

application. However, APHIS would not issue a permit to any applicant

who has had a permit withdrawn due to noncompliance with the

regulations within the past 12 months, unless the permit has been

reinstated upon appeal.

If the regulated article is not eligible for importation under

either proposed Sec. 319.40-5 or proposed Sec. 319.40-6, APHIS would

review the application by applying the plant pest risk assessment

standards contained in proposed Sec. 319.40-11. This process is

designed to deal with (1) regulated articles whose importation is not

specifically provided for in the regulations, and (2) regulated

articles that are named in the regulations, but that are proposed for

importation without treatments or safeguards, or under a combination of

treatments and safeguards not provided for in the regulations. Under

this process, APHIS would assess the plant pest risk presented by the

proposed importation and determine whether, and under what conditions,

importation of the regulated article should be allowed.

If this pest risk assessment reveals that the nature of the

regulated article presents a negligible risk of introducing plant pests

into the United States, and, therefore, no importation conditions are

needed, APHIS would issue a permit for importation of the regulated

article. The permit may only be issued in unique and unforeseen

circumstances when the importation is not expected to reoccur. We do

not expect that many regulated articles would be found to qualify on

this basis, because most regulated articles present greater than a

negligible plant pest risk that justifies treatment, handling, or other

importation conditions. However, we do expect that occasionally

regulated articles may be found to present negligible plant pest risk.

Under this provision we would allow the importation of such regulated

articles with a minimum of regulatory burden, i.e., with only a permit

to document that APHIS has determined that the regulated article may be

imported subject to inspection and other requirements in proposed

Sec. 319.40-9.

Some applicants may wish to import regulated articles under

conditions or treatments that are not currently prescribed by the

regulations. If the pest risk assessment reveals that importation of

the regulated articles under the conditions proposed in the

application, or under other conditions acceptable to the applicant,

would not result in a significant risk of introducing plant pests into

the United States, APHIS would implement rulemaking containing the

applicable conditions for importation. If the regulations are amended

to include the new conditions, APHIS would issue a permit for

importation of the regulated articles.

We propose that no permit will be issued to an applicant who has

had a permit withdrawn during the 12 months prior to receipt of the

permit application by APHIS, unless the withdrawn permit has been

reinstated upon appeal. This provision appears necessary to ensure that

applicants who have had a permit withdrawn under the procedures in

proposed Sec. 319.40-4(d) are not able to immediately reapply for a new

permit. We believe this provision is necessary to discourage violation

of the regulations, and to support the effectiveness of the permit

system as a tool to help exclude plant pests from the United States.

Proposed Sec. 319.40-4(c) states that 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 the

subpart are met and only if an inspector at the port of arrival

determines that no measures pursuant to the Federal Plant Pest Act or

the Plant Quarantine Act are necessary with respect to the regulated

article. We included this proposed provision to ensure that those who

are issued a permit understand that the issuance of a permit does not

guarantee that the regulated articles that are the subject of the

permit can be imported.

Proposed Sec. 319.40-4 would also authorize us to withdraw a permit

if an inspector or the Administrator determines that the person to whom

a permit is issued has violated any provision of subpart 319.40. This

section also allows a permit holder to appeal the denial or withdrawal

of a permit, and to obtain a hearing on the denial or withdrawal.

Section 319.40-5 Importation and Entry Requirements for Specified

Articles

This section proposes requirements for the importation of specific

regulated articles.

Bamboo timber. Bamboo imported for propagation would not be

regulated under proposed Sec. 319.40, but would continue to be

regulated in accordance with Sec. 319.34, our regulations that

currently apply to bamboo nursery stock.

Bamboo timber consisting of whole culms or canes would be allowed

to be imported into Guam or the Northern Mariana Islands subject to

inspection and other requirements in Sec. 319.40-9. Any bamboo timber

consisting of whole culms or canes would be allowed into Guam and the

Northern Mariana Islands because the plant pests of concern associated

with bamboo culms or canes are already present in these islands and not

in other parts of the United States.

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 in proposed Sec. 319.40-9. Absence of moisture in

the node tissue indicates that the bamboo is not capable of

propagation, which would be the major avenue for spread of plant pests

from bamboo timber.

Monterey pine logs and lumber from Chile and New Zealand; Douglas-

fir logs and lumber from New Zealand. The importation requirements

established for logs and lumber from these species are designed to

control the plant pest risks identified in ``Pest Risk Assessment of

the Importation of Pinus radiata and Douglas-fir Logs from New

Zealand'' (the New Zealand assessment; see footnote 3) and the ``Pest

Risk Assessment of the Importation of Pinus radiata Logs from Chile''

(the Chile assessment; see footnote 4).

The New Zealand assessment screened over 300 plant pests that have

been recorded on Monterey pine and Douglas-fir in New Zealand, and

included detailed studies of the plant pest risks associated with four

insects and two pathogenic fungi that were identified as representative

of the groups of organisms posing the greatest potential plant pest

problem. The insects, which are all deep wood borers that would not be

removed from logs by surface treatments, are Kalotermes brouni (New

Zealand brownwood termite), Platypus apicalis (Platypus gracilis)

(native pinhole borer), Prionoplus reticularis (huhu beetle), and Sirex

noctilio (a woodwasp). The pathogenic fungi are Leptographium truncatum

and Amylostereum areolatum.

The Chile assessment screened insect pests from eight orders

associated with Monterey pine in Chile (Coleoptera, Hemiptera,

Homoptera, Hymenoptera, Isoptera, Lepidoptera, Orthoptera,

Thysanoptera). Ten insects with the greatest risk potential were chosen

as subjects of individual pest risk assessments: introduced pine bark

beetles (Hylurgus ligniperda, Hylastes ater, and Orthotomicus erosus);

bark weevils of the genus Rhyephenes; a pine bark anobiid (Ernobius

mollis); a siricid (Urocerus gigas gigas); wood-boring beetles

(Buprestis novemmaculata, Colobura alboplagiata, Callideriphus laetus);

termites (Cryptotermes brevis, Neotermes chilensis, Porotermes

quadricollis); the spiny pine caterpillar (Ormiscodes cinnamonea); a

bagworm (Thanatopsyche chilensis); white grubs (Hylamorpha spp.,

Brachysternus sp., Sericoides sp.); and the European pine shoot moth

(Rhyacionia buoliana).

Four types of diseases of radiata pine in Chile were evaluated in

detail for plant pest risk: Diplodia shoot blight (Sphaeropsis

sapinea), needle diseases (Dothistroma pini, among others), stain fungi

(Ophiostoma spp.), and root/stem rots (Armillaria spp., Phellinus

spp.).

The plant pest risk assessment process was used to evaluate these

plant pests of potentially high risk. Of the insect pests of Monterey

pine in Chile, only the bark beetle Hylurgus ligniperda was found to

have a high plant pest risk potential. Among the pathogens, the stain

fungi (Ophiostoma spp.) present a moderate to high risk. Other plant

pests found to present significant but lesser risks were bark weevils

of the genus Rhyephenes, the siricid Urocerus gigas gigas, the termites

Neotermes chilensis and Porotermes quadricollis, and the wood-boring

beetles Buprestis novemmaculata and Colobura alboplagiata.

We are proposing that Monterey pine from Chile, and Monterey pine

and Douglas-fir from New Zealand, may be imported only under conditions

that will prevent the introduction of the plant pests discussed above.

The importation requirements and treatments needed to control the risk

of introducing these plant pests into the United States would also

serve to prevent the introduction of other plant pests that were

identified in the Chile and New Zealand assessments. For example, we

propose to require methyl bromide fumigation of the logs prior to

importation to help reduce the risk associated with the four insects

named above. The required methyl bromide fumigation would also destroy

other plant pests identified in the Chile and New Zealand assessments

(such as insects of the families Cerambycidae, Curculionidae,

Termopsidae, and Scolytidae), eliminating the need to develop separate

requirements to address the risks presented by the other plant pests.

Similarly, we propose to require that both logs and lumber imported

from Chile and New Zealand be sent to facilities in the United States

that will heat treat products generated from the logs and lumber. This

requirement primarily addresses the pathogenic fungi Leptographium

truncatum, Ophiostoma, and Amylostereum areolatum, but the heat

treatment will also destroy any other plant pests associated with the

logs and lumber, in the unlikely event that such plant pests survived

the methyl bromide fumigation or became associated with the regulated

article following methyl bromide fumigation.

We propose the following requirements for importation of Monterey

pine logs from Chile and New Zealand, and for Douglas-fir logs from New

Zealand. Some of the handling and treatment requirements apply prior to

importation, some at the port of first arrival, and some after movement

of the logs to a facility for processing in the United States.

The requirements that would apply to these logs prior to

importation include a requirement that the logs be from live healthy

trees which are apparently free of plant pests, plant pest damage, and

decay organisms. This requirement would eliminate logs that present a

high risk of introducing plant pests into the United States. Another

pre-importation requirement is that the logs be debarked and fumigated

with methyl bromide within 45 days of the date the trees are felled, in

accordance with Sec. 319.40-7 of the proposed regulations. Debarking

would remove plant pests associated with the bark and would enable

inspection to reveal holes made by wood-boring plant pests. Methyl

bromide fumigation would be required because it effectively controls

plant pests that may be associated with the surface and subsurface of

these logs and that might otherwise spread from the logs during

movement to a processing facility in the United States. We would

require this fumigation be performed within 45 days following the date

the trees are felled because logs are more vulnerable to plant pest

attack the longer they are stored untreated, and delaying fumigation

for a longer period could result in plant pests multiplying in the logs

to an extent that might not be effectively controlled by fumigation.

The 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.

We propose that the logs must be kept segregated from other

regulated articles during transit and after arrival in the United

States (unless the other regulated articles were also fumigated, or

were heat treated with moisture reduction), to control possible

movement of plant pests to or from other regulated articles. After

importation, the logs would be moved in as direct a route as reasonably

possible from the port of first arrival to a sawmill or other

processing facility that operates under a compliance agreement in

accordance with proposed Sec. 319.40-8. At the facility, any lumber

sawn from the logs would have to be heat treated, or heat treated with

moisture reduction. (We define what is meant by ``heat treatment'' and

``heat treatment with moisture reduction'' below in Sec. 319.40-7,

where we discuss treatments. We are using the term ``heat treatment

with moisture reduction'' rather than the term ``kiln dried'' to avoid

confusion caused by the wide variety of meanings assigned to the term

``kiln dried'' in the wood industry. However, we believe almost all

articles that are considered ``kiln dried'' by common industry

understanding would meet or exceed the standard we propose for ``heat

treated with moisture reduction'').

If the facility generates products other than lumber from the logs,

these products would also have to be heat treated, either with or

without moisture reduction. Moisture reduction is not feasible for some

non-lumber wood products such as veneer. We have determined that the

proposed heat treatment (without moisture reduction) proposed in

Sec. 319.40-7(c) would provide sufficient protection against pests that

might be associated with these non-lumber products.

Logs which are not cut or processed at the facility into lumber or

other products would have to be heat treated, either with or without

moisture reduction.

The facility must heat treat the logs, lumber, or other products

within certain time limits, to minimize risks of plant pests spreading

from the articles. For wood imported as logs, including sawdust, wood

chips, or other products generated from the logs, this time limit is 60

days from the date the logs arrive at the port of first arrival. For

imported raw lumber, the limit is 30 days. The time limit is longer for

logs because it takes facilities longer to schedule and perform cutting

operations to convert logs into lumber or other products, than it takes

to heat treat articles that arrive at the facility as already cut

lumber.

Sawdust, wood chips and waste generated from the logs at the

processing facility would have to be burned, heat treated in accordance

with proposed Sec. 319.40-7(c) or proposed Sec. 319.40-7(d), or

otherwise processed in a manner that will destroy plant pests

associated with the sawdust, wood chips, or waste.

These time limits would reduce opportunities for the logs and

lumber to be processed other than in accordance with the regulations,

and would reduce the time during which our inspectors monitor

compliance to a manageable span of time for each shipment. The time

limits also reduce the time during which any plant pests that may be

associated with the regulated articles could escape to surrounding

areas or contaminate other articles.

Composting or use as mulch of the sawdust, wood chips, and waste

generated by sawing or processing the logs would be prohibited unless

the composting or use as mulch was preceded by fumigation in accordance

with proposed Sec. 319.40-7(f)(3) or heat treatment in accordance with

proposed Sec. 319.40-7(c) or Sec. 319.40-7(d). This would reduce the

risk of the spread of plant pests. We also propose to allow wood chips,

sawdust, and waste generated from processing the logs to be moved for

processing to another facility operating under a compliance agreement

for processing, if they are moved in enclosed trucks to control plant

pest risk in transit.

The importation requirements we propose for raw lumber of Monterey

pine species from Chile or New Zealand and Douglas-fir species from New

Zealand are similar to the requirements for logs of the same species in

proposed Sec. 319.40-5(b)(1). The primary difference is that we do not

propose to require fumigation with methyl bromide for the lumber6.

Fumigation would not be required because in general, lumber is more

easily inspected and therefore represents less plant pest risk than

logs with regard to deep wood boring insects. For lumber cut in Chile

or New Zealand, the waste material stays in Chile or New Zealand,

reducing plant pest risk. Also, the process of cutting the lumber

frequently exposes any deep wood boring insects that are present, and

affected lumber would not be shipped. The remaining requirements,

including heat treatment with moisture reduction at the destination in

the United States, would provide protection against the introduction of

plant pests.

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\6\However, raw lumber would have to be fumigated if it is moved

in the same hold or container as logs. See proposed Sec. 319.40-

5(b)(1)(i)(D).

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Tropical hardwood logs and lumber. The importation of tropical

hardwoods into the United States tends to involve relatively small

shipments (compared to softwoods) of high-quality, high-value products

such as teak and mahogany. In general, tropical hardwoods present less

plant pest risk for the United States because the great majority of

plant pests associated with them cannot successfully become established

in most areas of the United States due to climatic conditions.

We anticipate, based on previous importations of tropical

hardwoods, that most importers will wish to import debarked tropical

hardwoods. We propose to allow debarked tropical hardwood logs and

lumber to be imported subject to inspection and other requirements of

proposed Sec. 319.40-9. Inspection would allow us to confirm the nature

of the shipment and check for pests on the logs.

Some importers may wish to import tropical hardwood logs that have

not been debarked. We propose to require methyl bromide fumigation as a

requirement for these logs, to control plant pests that may be

associated with the bark. However, we also propose to allow small lots

of logs with bark (15 logs or fewer) to be imported subject to

inspection and other requirements in proposed Sec. 319.40-9, rather

than fumigation. Although effective inspection of logs with bark is

time-consuming for our inspectors, some importers wish to import

tropical hardwoods with bark, but are concerned that fumigation will

damage their market value. We believe we can accommodate this desire by

allowing inspection instead of fumigation for small lots (15 logs or

fewer). Our operational experience inspecting hardwood log shipments at

ports leads us to believe we can readily inspect lots of 15 or fewer

hardwood logs. However, because Hawaii, Puerto Rico, and the Virgin

Islands of the United States have climates that are conducive to the

establishment of tropical hardwood pests, we would not allow this

provision to be used to import tropical hardwoods into these places.

Temperate hardwoods. Temperate hardwood logs and lumber from any

place could be imported in accordance with the universal importation

options described in Sec. 319.40-6. Otherwise, we propose to establish

lesser requirements for the importation of temperate hardwood logs and

lumber (with or without bark) from all places except countries in Asia

that are wholly or in part east of 60 deg. East Longitude and north of

the Tropic of Cancer. We would prohibit importing temperate hardwoods

from this area (unless they are imported in accordance with the

universal importation options in Sec. 319.40-6) because the ``Pest Risk

Assessment of the Importation of Larch from Siberia and the Soviet Far

East'' (the Siberian assessment; see Footnote 2) identified a large

variety of plant pests associated with larch and hardwoods in this

area. Many of these plant pests have the potential to infest extensive

areas of one or more forest types in the United States, where they

could cause massive defoliation and other damage. At this time, we do

not know of treatments or requirements, short of the universal

importation options, that have been demonstrated to effectively destroy

the plant pests of concern identified in countries in Asia that are

wholly or in part east of 60 deg. East Longitude and north of the

Tropic of Cancer.

We propose that temperate hardwood logs (with or without bark) and

lumber from all other places may be imported if fumigated in accordance

with proposed Sec. 319.40-7(f) prior to arrival in the United States

and if subject to inspection and other requirements in proposed

Sec. 319.40-9. Although we do not have detailed plant pest risk

assessment information of the type collected by the Siberian assessment

for temperate hardwoods from all other areas of the world, both our

operational experience and available plant pest distribution data

suggest that requiring fumigation of such hardwood imports would

effectively destroy plant pests of the type likely to be associated

with temperate hardwood logs and lumber and is a reasonable measure to

guard against possible unknown plant pests that could be associated

with their importation. We have many years of experience inspecting

small volumes of temperate hardwood logs imported each year from

various parts of the world (not including the area covered by the

Siberian assessment). Temperate hardwood articles imported to date tend

to be high quality logs that were selected, harvested and handled with

care, resulting in a low degree of plant pest risk. Our experience

inspecting such shipments has not revealed them to be infested with

plant pests, and consequently we propose to allow importation of

temperate hardwood logs and lumber subject to fumigation and inspection

and other requirements in proposed Sec. 319.40-9. However, if future

plant pest risk assessments or interceptions of plant pests associated

with temperate hardwood shipments indicate a greater plant pest risk

than is currently apparent, we would increase the restrictions on

importation of temperate hardwoods.

Regulated Articles Associated With Exclusively Tropical Pests.

There are some plant pests that would not be of concern unless they are

introduced into areas of the United States with a tropical climate

because they cannot survive outside of tropical areas. Regulated

articles that have been identified by a pest risk assessment as

possibly being infested solely with pests that can successfully become

established only in tropical climates would therefore be subject to the

following conditions:

(1) The regulated article may be imported only to a destination in

the continental United States; and

(2) The regulated article may be prohibited entry into tropical or

subtropical areas of the United States specified in the permit.

This provision would allow us to issue permits for the importation

of regulated articles into nontropical areas of the United States, if

the only pests associated with the articles need tropical conditions to

survive.

Section 319.40-6 Universal Importation Options

This section would establish importation requirements for several

classes of regulated articles. These standards are designed to allow

importation of regulated articles from any source under conditions that

will not present a significant risk of entry of known plant pests and

unknown plant pests that may be associated with them. These standards

may be used for importation of regulated articles not specifically

addressed in Sec. 319.40-5. For example, logs from Siberia could be

imported in accordance with proposed Sec. 319.40-6(a) of this section.

The efficacy of treatments and the standards for performing the

treatments required by proposed Sec. 319.40-6 are discussed below in

proposed Sec. 319.40-7. The requirements use a variety of approaches to

destroy plant pests prior to importation, or to contain and segregate

regulated articles so that plant pests cannot spread from them, until

the regulated articles are processed in the United States in a manner

that would destroy the plant pests. We propose universal importation

options for the following regulated articles: logs; lumber; wood chips

and bark chips; wood mulch, humus, compost, and litter; and cork and

bark.

All regulated articles that would be allowed importation under

proposed Sec. 319.40-6 would require a permit in accordance with

proposed Sec. 319.40-4, and would be subject to inspection and other

requirements of proposed Sec. 319.40-9.

Logs. We propose that logs from any place may be imported if prior

to importation the logs have been debarked in accordance with proposed

Sec. 319.40-7(b) and heat treated in accordance with proposed

Sec. 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.

Lumber. We propose that lumber from any place may be imported if

prior to importation the lumber has been heat treated in accordance

with proposed Sec. 319.40-7(c), or heat treated with moisture reduction

in accordance with proposed Sec. 319.40-7(d), and if the lumber is

imported under the following conditions:

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 proposed Sec. 319.40-7(c), or heat treated with

moisture reduction in accordance with proposed Sec. 319.40-7(d). Lumber

on the vessel's deck must be in a sealed container, unless the lumber

has been heat treated with moisture reduction in accordance with

proposed Sec. 319.40-7(d). These requirements would control possible

movement of plant pests to or from other regulated articles.

If lumber has been heat treated in accordance with

proposed Sec. 319.40-7(c), that fact must be recorded on the importer

document accompanying the lumber, 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 proposed Sec. 319.40-7(d), that fact must be recorded

on the importer document accompanying the lumber, 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.''

We also propose that raw lumber (in contrast to lumber that has

been heat treated or heat treated with moisture reduction, discussed

above) may be imported from any place except countries in Asia that are

wholly or in part east of 60 deg. East Longitude and north of the

Tropic of Cancer. (We exclude raw lumber from this area because the

plant pests discussed above in reference to logs from this area may

also be associated with raw lumber from this area.) Raw lumber must

meet the following requirements.

During shipment to the United States, no other regulated

articles (other than solid wood packing materials) are 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. These requirements would control possible movement of plant

pests to or from the regulated articles.

After importation, the raw lumber must be consigned to a

sawmill or other processing facility that operates under a compliance

agreement in accordance with proposed Sec. 319.40-8. At the facility,

the raw lumber must be heat treated in accordance with proposed

Sec. 319.40-7 (c) or (d), no more than 30 days after the lumber is

released from the port of arrival. If the raw lumber is to be cut,

planed, or sawed, the heat treatment must be conducted prior to any

cutting, planing, or sawing of the lumber, to prevent spread of any

plant pests that might be associated with the raw lumber.

Wood chips and bark chips. We propose that wood chips and bark

chips from any place except countries in Asia that are wholly or in

part east of 60 deg. East Longitude and north of the Tropic of Cancer

may be imported under the following conditions:

The wood chips must be accompanied by an importer document

that states that the wood chips were either (1) derived from live,

healthy, plantation-grown trees in tropical areas; or (2) fumigated in

accordance with proposed Sec. 319.40-7(f)(3) or heat treated in

accordance with proposed Sec. 319.40-7(c) or proposed Sec. 319.40-7(d).

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.

These requirements would control possible movement of plant pests to or

from other regulated articles.

Imported wood chips or bark chips must be consigned to a

facility operating under a compliance agreement in accordance with

Sec. 319.40-8. The wood chips or bark chips must be burned, heat

treated in accordance with proposed Sec. 319.40-7(c) or Sec. 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. We do not want to allow imported chips to be

stored for long periods of time because this increases the

opportunities for movement of plant pests from the chips. Mulching and

composting of the wood chips or bark chips are prohibited unless, prior

to use, the wood chips or bark chips that are to be mulched or

composted are fumigated in accordance with proposed Sec. 319.40-7(f)(3)

or heat treated in accordance with proposed Sec. 319.40-7(c) or

proposed Sec. 319.40-7(d). Mulching or composting of unfumigated chips

would distribute the chips in soil and enhance opportunities for plant

pest movement.

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 proposed Sec. 319.40-7(f)(3) or heat treated in accordance with

proposed Sec. 319.40-7 (c) or (d). Wood chips or bark chips which have

not been fumigated with methyl bromide in accordance with proposed

Sec. 319.40-7(f)(3) or heat treated in accordance with proposed

Sec. 319.40-7 (c) or (d) and which an inspector finds not to be free

from rot will be refused entry into the United States.

Wood mulch, humus, compost, and litter. We propose that wood mulch,

humus, compost, and litter from any place may be imported if

accompanied by an importer document stating that the wood mulch, humus,

compost, or litter was fumigated in accordance with proposed

Sec. 319.40-7(f)(3) or heat treated in accordance with proposed

Sec. 319.40-7 (c) or (d). These treatments effectively destroy all

plant pests commonly found in wood mulch, humus, compost, and litter.

Cork and bark. Large amounts of cork are imported each year, and in

general only hitchhiking and opportunistic plant pests have been

associated with its importation. Varying amounts of other barks are

imported for food or spices (particularly cinnamon), or for the

manufacture of chemicals or medicines (e.g., yew bark for taxol

production).

Based on APHIS inspections of imported bark at ports of entry, we

do not believe that importations of cork and cork bark, cinnamon bark,

and other bark intended for food or manufacture of medicine, or

chemicals extraction represent a significant plant pest risk if the

bark is free from rot when imported.

Therefore, we propose that 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 if subject to inspection and other requirements of proposed

Sec. 319.40-9.

Section 319.40-7 Treatments and Safeguards

This proposed section describes the methods for conducting several

treatments that are required in other parts of the regulations in

connection with importing regulated articles. The descriptions of the

treatments generally establish minimum acceptable standards and attempt

to allow persons employing the treatments a degree of latitude as to

exactly how to meet the treatment standards.

APHIS has studied these treatments and determined that they are

effective means for eliminating any significant plant pest risk in

regulated articles for which their use is required. No one treatment is

a panacea for all plant pests; the treatments assigned for various

regulated articles reflect the plant pest risks associated with the

regulated articles. We continue to evaluate the effectiveness of other

treatments, and it is likely that this section of the regulations will

be revised from time to time as new information on treatments becomes

available.

Many regulated articles may only be imported if accompanied by an

importer document that certifies that the regulated articles have been

subjected to treatments which we propose to be required prior to

importation of regulated articles. Proposed Sec. 319.40-7(a) concerns

APHIS actions in the event that importer documents or other documents

accompanying regulated articles prove to be inaccurate. Under this

proposed provision, if APHIS determined that a document required for

the importation of regulated articles is inaccurate, the regulated

articles which are the subject of the document would be refused entry

into the United States. In addition, if the inaccurate document was a

certificate issued by the government of a foreign country, APHIS could

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 could 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 in the future will be

accurate.

There is no general requirement in the proposed regulations that

treatments performed outside the United States must be performed under

the supervision of an APHIS inspector. To ensure the proper application

of treatments and safeguards that do not occur under direct APHIS

supervision, APHIS will conduct monitoring inspections of treatments

and safeguards applied in foreign countries in accordance with this

section.

Proposed paragraphs (b) through (g) of Sec. 319.40-7 contain the

minimum requirements for the following treatments: Debarking; heat

treatment; heat treatment with moisture reduction; surface pesticide

treatments; methyl bromide fumigation; and preservative treatments.

Various combinations of these treatments are required for the

importation of regulated articles in accordance with proposed

Sec. 319.40-5 and Sec. 319.40-6. The requirements for performing each

treatment are discussed below.

Debarking. The proposed standard is that for regulated articles

except 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. (Heat treated

lumber may retain up to 2 percent of bark because the heat treatment

substantially reduces the plant pest risk.)

Debarking would be effective in eliminating plant pests and

pathogens on the surface of the logs, as well as those found within and

immediately beneath the bark. Debarking would facilitate inspection for

the presence of boring insects at the port of first arrival. Inspecting

bark on large quantities of logs is a difficult, time-consuming process

and would not be practical.

To be effective, bark removal must be thorough. From a practical

viewpoint, APHIS recognizes that complete removal of every scrap of

bark is probably impossible, except for lumber. A tolerance level of 2

percent, with no single regulated article, except raw lumber, retaining

bark on more than 5 percent of its surface, appears reasonable to us

based on our experience inspecting regulated articles at ports and

observing commercial debarking operations. We believe that the plant

pest risk associated with the remaining 2 percent of bark on an

imported regulated article would not be significant because of the

other regulatory measures applied to importation of the regulated

article, which may include (depending on the type of regulated article)

treatments such as surface pesticide sprays and fumigation.

Heat treatment. We propose that heat treatment procedures may

employ steam, hot water, kilns, exposure to microwave energy, or any

other method that raises the temperature of the center of each treated

regulated article to at least 56 deg.C and maintains the regulated

article at that center temperature for at least 30 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 reinfestation of the regulated article by plant pests.

Heat in various forms has long been used as a nonchemical treatment

for wood. The efficacy of heat treatments depends on heating the

treated article throughout to a temperature that will kill plant pests.

Based on the available scientific literature7 and inspection of

heat-treated materials, we have determined that heating any article

until the center of the article reaches at least 56 deg.C and

maintaining that temperature for at least 30 minutes will destroy plant

pests. To reduce the risk that heat-treated regulated articles could

become recontaminated with plant pests, between heat treatment and

export the regulated article must be stored, handled, or safeguarded in

a manner which excludes any reinfestation of the regulated article by

plant pests. This protection could be accomplished using a wide variety

of methods, such as shrink-wrap plastic covers or storage in pest-free

warehouses. Another safeguard available is treatment with surface

pesticide sprays every 30 days prior to departure, in accordance with

proposed Secs. 319.40-6(a) and 319.40-7(e), and we believe these spray

treatments would control risks of reinfestation of heat treated

articles prior to shipment.

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\7\Citations are contained in the rulemaking record, and are

available upon request to the office identified in FOR FURTHER

INFORMATION CONTACT.

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We do not believe we can currently develop a useful list of

effective safeguarding methods without leaving out many possibilities

that businesses may wish to employ. We intend to review importer

proposals for safeguard techniques during our permit approval process,

and we will inform importers at that time whether the safeguards they

propose to use are adequate.

Heat treatment must be performed only at a facility where APHIS or

an inspector authorized by 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 the regulations for

performing heat treatment. We believe such inspection is necessary to

ensure that heat treatment facilities attain the necessary time-

temperature combinations needed to destroy pests. However, inspection

of facilities performing heat treatment with moisture reduction is not

necessary, because the effectiveness of heat treatment with moisture

reduction can be measured by testing the moisture content of treated

articles at the port of arrival, as discussed below.

Heat treatment with moisture reduction. This is a form of heat

treatment that is also designed to reduce the moisture content of the

treated regulated article, eliminating deep wood plant pests and making

the regulated article less vulnerable to reinfestation by some plant

pests. We propose that heat treatment with moisture reduction may

employ 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 56 deg.C, maintains the regulated articles at that center

temperature for at least 30 minutes, and reduces the moisture content

of the regulated article to 20 percent or less, as measured by an

electrical conductivity meter. Electrical conductivity meters are

devices in common use in wood industries that calculate the moisture

content of wood by measuring the electrical conductivity of the wood,

which varies with its moisture content and density. As necessary, our

inspectors will use electrical conductivity meters to confirm the

moisture content of regulated articles.

Regulated articles heat treated with moisture reduction prior to

arrival in the United States would also have to be stored, handled, or

safeguarded in a manner which excludes any reinfestation of the

regulated article by plant pests during the time the articles are

stored between heat treatment and export.

Surface pesticide treatments. In general, the proposed regulations

do not employ surface pesticide sprays or dips as a primary treatment

to eliminate plant pests; instead, these treatments are used to provide

prophylactic protection during the period when treated regulated

articles are awaiting shipment to the United States. Their purpose is

to control reinfestation of treated regulated articles, and to control

incidental or ``hitchhiking'' attachment of plant pests to regulated

articles. We propose to authorize use of all United States

Environmental Protection Agency (EPA) registered surface pesticide

treatments for regulated articles. Surface pesticide treatments must be

conducted in accordance with EPA-approved label directions. Surface

pesticides must be applied within 48 hours following treatment to

prevent reinfestation of the articles. Because many surface pesticide

treatments lose some or all of their effectiveness after 30 days, the

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 the departure of the means of conveyance that carries the

regulated article to the United States.

Methyl bromide fumigation. Methyl bromide is very effective against

plant pests, including all stages of insects, mites, snails, slugs, and

nematodes, as well as most fungi. Its effectiveness as a fumigant was

discovered in 1932. Since then, it has become the fumigant of choice in

quarantine treatments.

Methyl bromide is currently in widespread use as a fumigant.

However, the environmental effects of this use have undergone close

review by international, Federal, and State agencies. The United States

Environmental Protection Agency has recently evaluated data concerning

the ozone depletion potential of methyl bromide and, as a result, has

published a Notice of Proposed Rulemaking indicating their intent to

reclassify methyl bromide as a Class I substance under the Clean Air

Act as amended (58 FR 15014-15049, March 18, 1993). Should this

proposal be finalized, methyl bromide production would be frozen at

1991 levels and the domestic use of methyl bromide would be phased out

by the year 2000. APHIS is studying the effectiveness and environmental

acceptability of alternative treatments to prepare for the

unavailability of methyl bromide fumigation. For the interim, this

proposed rule attempts to provide alternatives to the use of methyl

bromide in as many circumstances as possible. For example, all

regulated articles could be imported in accordance with one of the

universal importation options in proposed Sec. 319.40-6, without the

use of methyl bromide fumigation.

However, our regulations assume continued use of methyl bromide

fumigation for at least the next few years. The characteristics of

methyl bromide treatments are discussed below.

Methyl bromide diffuses laterally and downward readily, and upward

slowly. These characteristics make blower or fan circulation essential,

at least during the first 15-60 minutes, to ensure thorough gas

distribution. In addition, circulation enhances penetration. A

volatilizer is necessary when introducing methyl bromide.

Studies have shown that methyl bromide fumigation effectively kills

plant pests if conducted in a way that ensures exposure of the entire

article to the necessary gas concentration for the necessary time.

However, circumstances during treatment can reduce the effectiveness of

the fumigation. In particular, because the diffusion of methyl bromide

through frozen wood is sharply reduced, it is necessary that regulated

articles be maintained at a temperature above freezing throughout

fumigation.

The following minimum standards for methyl bromide fumigation

treatment are proposed for the listed regulated articles. We are

providing two options for applying each treatment. The person applying

the treatment can follow a schedule in the Plant Protection and

Quarantine Treatment Manual (the Treatment Manual), which is

incorporated by reference at 7 CFR 300.1 in accordance with 5 U.S.C.

552(a) and 1 CFR part 51. The treatment schedules specify the exact

length of the treatment, the initial methyl bromide concentration, and

subsequent points during the treatment when the concentration must be

checked. Under an alternative option provided by our proposal, the

Treatment Manual methyl bromide concentration is not used, although all

other Treatment Manual requirements for fumigation must be followed.

Instead, the treatment must produce a specified concentration-time

product, which represents the concentration of methyl bromide

multiplied by the hours of fumigation. The concentration-time product

specified for each treatment was calculated to ensure that the

treatment would effectively destroy plant pests at the temperature

range allowed for the treatment.

For example, one treatment requirement for logs states that

schedule T-312 from the Treatment Manual may be used, or else the

treatment can be conducted at a temperature of over 5 deg.C, by

introducing methyl bromide at a concentration of at least 240 g/m3

and maintaining it long enough to achieve a concentration-time product

of 17,280 gram-hours. Simple arithmetic allows calculation of the

necessary duration of the treatment depending on the concentration of

methyl bromide employed. If the concentration used is 240 g/m3,

the logs must be fumigated for 72 hours (240 x 72 = 17,280). If a

concentration of 300 g/m3 is used the logs must be fumigated for

57.6 hours, and so on.

Any method of fumigation that meets or exceeds the specified

temperature/time/concentration products is acceptable. Information

documenting the effectiveness of methyl bromide fumigation for various

articles when used in accordance with the specified concentration-time

products is available through the office identified in the FOR FURTHER

INFORMATION CONTACT section of this document. The methyl bromide

fumigation treatments proposed by this document are as follows:

Logs. We propose two fumigation requirements for logs, based on

treatment schedules T-312 and T-404 in the Plant Protection and

Quarantine Treatment Manual. In general T-312 has been used in the past

for logs, and T-404 for other wood products. Persons employing these

fumigation treatments can either follow the specific T-312 or T-404

treatment schedules, or employ other fumigation techniques that result

in the same methyl bromide exposure and concentration levels.

For the T-312 alternative, the logs and the ambient air must be at

a temperature of 5 deg.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.

For the T-404 alternative, the logs and the ambient air must be at

a temperature of 5 deg.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.

Lumber. For fumigation of lumber, we propose that the lumber and

the ambient air must be at a temperature of 5 deg.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.

Regulated articles other than logs or lumber. We propose that if

regulated articles other than logs and lumber and the ambient air are

at a temperature of 21 deg.C or above throughout fumigation, the

fumigation must be conducted using schedule T-404 contained in the

Treatment Manual (i.e., the subschedule applicable to articles at a

temperature of 21 deg.C or above). 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.

We propose that if the ambient air and the regulated articles other

than logs or lumber are at a temperature of 4.5-20.5 deg.C throughout

fumigation, the fumigation must be conducted using schedule T-404

contained in the Treatment Manual (i.e., the schedule applicable to

articles at a temperature of 4.5-20.5 deg.C), or, using any fumigation

method 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 dosage.

Preservatives. Numerous chemicals are in commercial use as

preservative treatments for wood, and application of some of these

chemicals protects wood from insects and fungi for long periods of

time, often years. However, some insects or pathogens already present

deep in the wood may not be killed by topical applications.

Methods of application for preservatives include dipping, pressure

treating, and injection into drill holes (either directly or in gelatin

capsules). Target organisms are mainly wood-decay fungi. The most

common purpose of application is to lengthen the useful life of rough

timber used for fence posts, marine pilings, bridge timbers, railroad

ties, and utility poles.

We propose to authorize any preservative treatment that uses a

preservative product that is registered by the EPA. Preservative

treatments would have to be performed in accordance with EPA-approved

label directions.

Section 319.40-8 Processing at Facilities Operating Under Compliance

Agreements

We propose to allow the importation of some regulated articles that

may continue to present a low level risk of introducing plant pests

into the United States until the time the regulated articles are

processed. To prevent the introduction of plant pests from these

regulated articles into the environment, we propose to require that

such articles be moved from the port of first arrival to a processing

facility and processed there, under conditions contained in the

compliance agreement that are based on the nature of the regulated

articles and the nature of the destination facility, that would prevent

the introduction of plant pests.

To ensure that such facilities operate in a manner that will

prevent introduction of plant pests, we propose to require that such

facilities operate under a compliance agreement signed with APHIS. Each

compliance agreement would be developed and signed in conjunction with

issuance of a permit to import regulated articles. The compliance

agreement would specify safeguards necessary to prevent spread of plant

pests from the facility, such as disinfestation practices, covering or

container requirements, requirements for disposal of waste wood or

byproducts, requirements to ensure the processing method effectively

destroys plant pests, and application of chemical materials in

accordance with the Treatment Manual. Each compliance agreement would

also state that APHIS inspectors must be allowed access to the facility

to monitor compliance with the requirements of the compliance agreement

and the regulations.

This section also proposes that an inspector supervising

enforcement of a compliance agreement may cancel the agreement, orally

or in writing, if the person who entered into the compliance agreement

fails to meet its conditions. We also propose provisions to appeal

cancellation of a compliance agreement and to obtain a hearing on the

cancellation if there is a conflict as to any material fact. These

requirements would aid enforcement of compliance agreement provisions

and protect the rights of persons who enter into compliance agreements.

During initial implementation of the proposed regulations, the

requirements of each compliance agreement would be set as we collect

information about the regulated articles imported in accordance with

this provision and the physical layout and operating procedures of the

facilities. Over time, we may be able to develop standardized

compliance agreements for different types of facilities. If this

occurs, we will publish a proposed rule in the Federal Register

describing standard compliance agreements.

Section 319.40-9 Inspection and Other Requirements at Port of First

Arrival

This section proposes standards for enforcement of the proposed

regulations at the ports where imported regulated articles arrive in

the United States. This section states that an inspector may order

imported regulated articles 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; that an

inspector may order a regulated article to be treated or re-exported if

the shipper or importer does not comply with regulatory requirements or

the shipment is contaminated with plant pests or prohibited

contaminants; and requires that regulated articles meet certain marking

and identity requirements designed to assist inspection and processing

of regulated articles at the port. This section also allows inspectors

to take samples from regulated articles for the purpose of determining

whether the regulated articles contain plant pests.

Proposed Sec. 319.40-9 contains the following specific

requirements:

Procedures for all regulated articles. We propose that all

regulated articles imported would be inspected. 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 must be cleaned or treated as

required by an inspector, and the regulated articles and any products

of the regulated articles shall 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.

Regulated articles would be assembled for inspection at the port of

first arrival at a place and time and in a manner designated by an

inspector. If an inspector finds that a shipment of regulated articles

imported into the United States 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 shipment may be refused entry into the United States.

No person could move any regulated article imported into the United

States from the port of first arrival unless and until an inspector

notifies the person, in writing or through an electronic database that

preserves a record of the notice, that the regulated article has been

inspected and found to be apparently free of plant pests, and is in

compliance with all applicable regulations, or has been inspected and

the inspector requires reinspection, cleaning, or treatment of the

regulated articles at a place other than the port of first arrival.

Visual examination of regulated articles at port of first

arrival. We propose that regulated articles imported into the United

States which have been debarked in accordance with Sec. 319.40-7(b) and

can be safely and practically inspected would be visually examined for

plant pests at the port of first arrival. Treatment appropriate to the

regulated article and contained in the Treatment Manual would be

required if plant pests are found or if the regulated article cannot be

safely and practically inspected.

Marking and identity of regulated articles. We propose

that any regulated article, at the time of importation, would be

required to 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 grown;

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.

Sampling for plant pests at port of first arrival. We

propose that 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 would be done prior to treatment.

Notice of arrival by importers. Proposed Sec. 319.40-9(b)

would require that importers give APHIS notice of arrival of a shipment

7 days prior to the expected date of arrival. The notice of arrival

could be done by telephone, or by an informal letter containing the

necessary arrival information. We do not believe this notice would be

particularly burdensome to importers, and we believe it is needed to

allow our inspectors to prepare for a shipment, and to allow them to

ensure that incompatible shipments (i.e., situations where articles

from one shipment could spread pests to another shipment) are not

accidentally mingled on docks.

Section 319.40-10 Costs and Charges

This proposed section, which is consistent with similar language in

our other regulations in part 319, addresses the availability of

inspector services and the distribution of costs associated with

importation of regulated articles. The services of an inspector during

regularly assigned hours of duty and at the usual places of duty would

be furnished without cost to the importer. The inspector may require

the importer to furnish any labor, chemicals, packing materials, or

other supplies required in handling regulated articles under the

regulations. APHIS would not be responsible for any costs or charges,

other than those identified in this section.

Section 319.40-11 Pest Risk Assessment Standards.

As discussed above, proposed Sec. 319.40-4(b)(2) states that if

APHIS reviews an application to import regulated articles and finds

that the proposed importation is not allowed under the existing

regulations, a pest risk assessment would be performed to determine

whether the importation could be accomplished under conditions not in

the current regulations. If such conditions (e.g., treatment or

handling requirements, limits on the source, type, or quantity of the

regulated articles, etc.) are identified through a plant pest risk

assessment, APHIS would implement rulemaking to add the newly

identified conditions. After the regulations are amended, APHIS could

issue an import permit for the request that initiated the plant pest

risk assessment process.

Proposed Sec. 319.40-11 contains the plant pest risk assessment

standards we would apply in making such decisions. This section is

based on a model of plant pest risk assessment developed by USDA and

utilized extensively in the Chile, New Zealand, and Siberian

assessments. This proposed section does not attempt to provide a

complete foundation in the discipline of risk assessment, or to

describe every factor that APHIS may find relevant to decisions on

whether or not to propose new conditions for importation of regulated

articles. Instead, these standards describe the type of plant pest risk

information that must be collected and evaluated in the course of our

plant pest risk assessments, and some factors used to distinguish risk

categories and to evaluate the effectiveness of various mitigation

measures. This proposed section does not provide an exact formula for

how we would determine whether or not to admit a particular regulated

article, because it is impossible to develop an exact formula for such

decisionmaking. Although the proposed new section would not provide the

public with an exact formula for determining whether particular

regulated articles should be imported, it would provide a substantial

amount of information about APHIS decisionmaking in this area.

For each pest risk assessment for a regulated article considered

for importation, we need to collect and assess information regarding

the probability that plant pests will accompany the regulated article,

and the probability that any plant pests that may accompany the

regulated article could become established in the United States, as

plant pests of either the type of article imported or of other types of

plants in the United States. We also need to consider information about

the biological characteristics of such plant pests, their distribution

in the area of origin of the imported regulated article and in the

United States, and the type of damage the plant pests cause. We also

need to consider information about the potential range of such plant

pests in the United States, and the availability and effectiveness of

mitigation methods to prevent the introduction, establishment, and

spread of such pests.

Our plant pest risk assessment process involves:

Collecting commodity information. This includes evaluating

the application for information describing the regulated article and

the origin, processing, treatment, and handling of the regulated

article; and evaluating the history of past plant pest interceptions or

introductions (including data from foreign countries) associated with

the regulated article.

Cataloging quarantine pests. This includes determining

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 will be further evaluated if it is a:

Non-indigenous plant pest not present in the United

States;

Non-indigenous plant pest, present in the United States

and capable of further dissemination in the United States;

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;

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

Non-indigenous or native plant pest that may be able to

vector another plant pest of the types described above.

Determining which quarantine pests to assess. This

involves dividing the group of plant pests identified above into three

groups, each of which generally presents a different level of risk. The

three groups are plant pests found on or in the bark, under the bark,

and in the wood. Within each group, the plant pests would then be

ranked according to plant pest risk, from highest to lowest plant pest

risk, based on the available information, and demonstrated plant pest

importance.

The next step would be to conduct individual plant pest risk

assessments for the highest ranked plant pest(s) in each group. In some

cases, plant pests may have been previously subjected to a plant pest

risk assessment in accordance with this section; such assessments may

be used if they are still current and accurate.

The number of plant pests in each group to be evaluated through

individual plant pest risk assessments would be based on biological

similarities of members of the group as they relate to mitigation

measures. 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.

Conducting individual pest risk assessments. The

individual pest risk assessments would estimate:

The probability of the plant pest being on, with, or in

the regulated article at the time of importation;

The probability of the plant pest surviving in transit on

the regulated article and entering the United States undetected;

The probability of the plant pest colonizing once it has

entered into the United States;

The probability of the plant pest spreading beyond the

colonized area;

The damage that could be expected upon introduction and

dissemination within the United States of the plant pest; and

The overall plant pest risk associated with importing the

regulated article, based on compilation of the individual plant pest

risk assessments.

Evaluating available mitigation measures to determine

whether they would allow safe importation of the regulated article.

Mitigation measures currently in use as requirements of this subpart,

and any other mitigation measures relevant to the regulated article and

plant pests involved, would be compared with the individual plant pest

risk assessments in order to determine whether requiring particular

mitigation measures in connection with importation of the regulated

article would reduce the plant pest risk to an insignificant level. If

APHIS determines that use of particular mitigation measures 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 appropriate mitigation measures, APHIS would

implement rulemaking to allow importation of the requested regulated

article under the appropriate requirements identified by the plant pest

risk assessment process.

Changes to Other Regulations To Make Them Consistent With the

Proposed Regulations

There is a degree of overlap between the subject matter of the

proposed regulations and other regulations in 7 CFR part 319. We are

proposing to make changes in several places in part 319, to clarify

which regulations apply to which articles.

Subpart--Citrus Canker and Other Citrus Diseases

In the citrus canker regulations in Sec. 319.19, we propose to add

a statement that articles of the subfamilies Aurantioideae, Rutoideae,

and Toddalioideae of the botanical family Rutaceae which are regulated

articles under proposed Sec. 319.40 may be imported in accordance with

Sec. 319.40, and without restriction by Sec. 319.19. We also propose to

edit this section to clarify it and remove surplus language.

Subpart--Bamboo

In the bamboo regulations in Sec. 319.34, we propose to add

language stating that this section applies to bamboo capable of

propagation, and to add a footnote stating that bamboo not capable of

propagation is regulated under Sec. 319.40. We also propose to edit

this section to clarify it and remove surplus language.

Subpart--Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other

Plant Products

In the nursery stock regulations in Sec. 319.37, we propose to

amend the definition of ``prohibited article'' to exclude articles

regulated under Sec. 319.40. We also propose to edit this section to

clarify it and remove surplus language.

Subpart--Packing Materials

In the packing materials regulations in Sec. 319.69, we propose to

remove paragraph (b)(3), which regulates imported willow twigs, since

willow twigs would be regulated under subpart 319.40.

Executive Order 12866 and Regulatory Flexibility Act

We are issuing this proposed rule in conformance with Executive

Order 12866.

We have prepared a preliminary economic analysis concerning this

proposed rule. This analysis indicates that this proposed rule would

have an effect on the economy of less than $100 million. The economic

analysis addresses the impacts of establishing the proposed

regulations, and will be revised in response to comments received on

this proposed rule. Copies of the economic analysis may be obtained by

sending a written request to the Chief, Regulatory Analysis and

Development, PPD, APHIS, USDA, room 804, Federal Building, 6505

Belcrest Road, Hyattsville, MD 20782. 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.

The United States has become the world's leading importer of wood

and wood products. In 1990, the U.S. imported the equivalent of 34.4

million cubic meters (CBM) of logs, lumber, and other wood products

valued at about $5.1 billion. Total imports nearly tripled between 1950

and 1990, with most of this increase occurring after 1970.

Historically, virtually all wood product imports have been from Canada.

Domestic production of logs, lumber, and other wood products 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.8 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.

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\8\Over the next 50 years, new technologies may allow wood

products companies to remove larger amounts of wood products from

each tree.

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The proposed regulations would regulate the importation of logs and

other unmanufactured wood products from all areas. There are exemptions

from some proposed 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. Therefore, wood imports from

Canada and Mexican border States do not pose a significant biological

risk of exotic plant pest introduction.

The proposed regulations would reduce to an insignificant level the

risk of entry and dissemination of plant pests associated with wood

imports. Prohibition of a regulated wood product would be based on

plant pest risk assessments that reveal more than an insignificant risk

of the introduction of plant pests. Unrestricted trade in wood products

would likely result in losses to domestic agriculture from plant pest

damages. Without governmental regulation, private entities might engage

in trading activities that would result in the introduction of plant

pests into the United States.

The following items would be subject to the regulations: (1) Logs;

(2) wood chips; (3) lumber; (4) whole trees; (5) portions of trees not

consisting solely of leaves, flowers, fruits, buds, or seeds; (6) bark;

(7) cork; (8) laths; (9) hog fuel; (10) sawdust; (11) painted raw wood

products; (12) excelsior; (13) wood mulch; (14) wood shavings; (15)

pickets; (16) stakes; (17) shingles; (18) solid wood packing materials;

(19) humus; (20) compost; and (21) litter. Manufactured wood products

would not be regulated by the proposed rule. The proposed regulations

would require that certain specified imported unmanufactured wood

products be treated prior to arrival in the United States.

In 1990 the United States imported about 600,000 CBM of wood

products that would require treatment under the proposed regulations.

These wood imports accounted for less than one percent of total 1990

domestic supplies. Imported shipments of kiln dried lumber would not

require treatment.

About 4.1 million newly manufactured units of wood dunnage were

imported as cargo from proposed regulated areas in 1990. Dunnage

imported as cargo can be manufactured from rough untreated lumber that

has not been stripped of all tree bark.9 Imports comprised about

27 percent of the newly manufactured dunnage products available in the

United States during 1990.

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\9\For 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.

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Imports of regulated articles that would require treatment totaled

about $80.2 million in 1990. Total domestic supplies of these articles

exceeded $80 billion during the same year. Therefore, the value of

imports that would require treatment under the proposed regulations

represented less than one percent of total domestic supplies in 1990.

Our economic analysis estimates that domestic producers of

regulated articles would benefit from a welfare gain of about $60.2

million, while domestic consumers of regulated articles would incur a

welfare loss of about $64.3 million for U.S. society during the first

year. A similar net loss could be expected for the next several years.

This net loss occurs because the additional regulatory restrictions

would raise prices and decrease the availability of imported

unmanufactured wood articles. Therefore, the price and demand for less

costly domestic wood would likely rise as higher import prices

encourage U.S. consumers to change their purchasing practices.

The estimated $4.1 million loss in welfare to U.S. society

represents the cost of plant pest exclusion. If the United States does

not expend resources to exclude plant pests through the proposed

regulations or through 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 the

pine shoot beetle have been introduced into this country, and several

million dollars have already been spent on efforts to control them. The

Siberian assessment discussed above evaluated potential costs of

various plant pest introduction scenarios, and that introduction of a

single pest, larch canker, could cause direct timber losses of $129

million. The same study estimated that a worst-case scenario involving

heavy establishment of exotic defoliators in the United States could

cost $58 billion.

The initial net welfare loss will be offset over time as businesses

adapt to new international wood marketing channels. If resource

constraints remain constant, implementation of the proposed rule would

result in domestic consumers buying a slightly higher volume of

domestic production at slightly higher prices than currently prevail in

the U.S. market. However, domestic consumers will continue to

supplement their wood purchases with imports whenever the imported

price is cheaper than the domestic price.

Foreign firms that import unmanufactured wood articles into the

United States would incur a share of the estimated net reduction in

importer welfare, since both foreign and domestic firms that import

unmanufactured wood articles into the United States would face

increased costs associated with entering those articles. However, APHIS

cannot quantify the proportional loss between domestic and foreign

importers of regulated articles.

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 would likely gain more than

producers in the Pacific Northwest. Conservation issues and resource

constraints would likely limit the amount of welfare gain acquired by

loggers and sawmills in Oregon and Washington.

Each year about 6 to 7.5 million non-bulk 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 proposed regulations would prohibit

untreated dunnage with bark from entering the United States.

Initially, APHIS estimates that U.S. shipping lines would incur

additional dunnage treatment and disposal costs of between $2.4 to $3.0

million dollars per year.10 However, if the proposed regulations

become effective, APHIS anticipates that shipping companies would take

steps that ensure that wood dunnage is bark free.

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\1\0United States shipping companies transport about two percent

of annual imported shipments. APHIS estimates that the total cost of

dunnage treatment and disposal would cost the shipping industry

(foreign and domestic) between $119.5 and $149.4 million during the

initial year.

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The Regulatory Flexibility Act requires that APHIS specifically

consider the economic impact of proposed regulations on small entities.

Small Business Administration (SBA) data indicates that about 25,998

domestic entities could be impacted by the proposed 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 may process or resell both domestic and

imported wood.) These small entities would experience most of the

anticipated $64.3 million increase in domestic welfare. This increase

would be a small average economic benefit for affected small entities,

as it represents less than one percent of combined average annual sales

for impacted small entities. A few small entities would 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 estimated $4.1 million net welfare loss to the U.S. economy

would be distributed among millions of ultimate consumers of wood

products in the form of price increases, without significant impacts on

small business entities. Therefore, the impact of the proposed

regulations on small businesses is expected to derive from part of the

$64.3 million gross increase in domestic welfare, and should be

positive but minor for a large number of small entities.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action would

not have a significant economic impact on a substantial number of small

entities.

Executive Order 12778

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. If this proposed rule is adopted: (1) All State

and local laws and regulations that are inconsistent with this rule

will be preempted; (2) no retroactive effect will be given to this

rule; and (3) administrative proceedings will not be required before

parties may file suit in court challenging this rule, except for the

withdrawal or denial of a permit or cancellation of a compliance

agreement.

National Environmental Policy Act

In accordance with the National Environmental Policy Act of 1969

(NEPA) (42 U.S.C. 4321 et seq.), APHIS is preparing an environmental

impact statement addressing the importation of logs, lumber, and other

unmanufactured wood in accordance with this proposed rule. On July 26,

1993, a notice was published in the Federal Register (58 FR 39726-

39727, Docket No. 92-195-1) informing the public of our intent to

prepare an environmental impact statement and inviting comments.

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 proposed rule will be submitted for approval to the

Office of Management and Budget. Please send written comments to the

Office of Information and Regulatory Affairs, OMB, Attention: Desk

Officer for APHIS, Washington, DC 20503. Please send a copy of your

comments to: (1) Chief, Regulatory Analysis and Development, PPD,

APHIS, USDA, room 804, Federal Building, 6505 Belcrest Road,

Hyattsville, MD 20782, and (2) Clearance Officer, OIRM, USDA, room 404-

W, 14th Street and Independence Avenue SW., Washington, DC 20250.

List of Subjects in 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.

PART 319--FOREIGN QUARANTINE NOTICES

Accordingly, 7 CFR part 319 would be amended as follows:

1. The authority citation for part 319 would be 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

2. In Sec. 319.19, paragraphs (a), (b), (c), and (d) would be

revised to read as follows:

Sec. 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

Sec. 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 which are regulated articles under subpart

319.40 may be imported into the United States in accordance with

subpart 319.40 and without restriction by this subpart.

* * * * *

Subpart--Bamboo

Sec. 319.34 [Amended]

3. The title of subpart 319.34, ``Subpart--Bamboo'', would be

revised to read ``Subpart--Bamboo Capable of Propagation''.

4. In Sec. 319.34, paragraphs (a) and (c) would be removed;

paragraphs (b) and (d) would be redesignated as paragraphs (a) and (b);

and newly designated paragraph (a) would be revised to read as follows:

Sec. 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\Regulations concerning the importation into the United States

of bamboo not capable of propagation are set forth in Sec. 319.40.

---------------------------------------------------------------------------

(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 Secs. 352.2 through 352.15 of this chapter; or,

(3) Into Guam in accordance with Sec. 319.37-4(b).

* * * * *

Subpart--Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other

Plant Products\1\,\2\

5. In Sec. 319.37-1, the definition of ``Prohibited article'' would

be revised to read as follows:

---------------------------------------------------------------------------

\1\The Plant Protection and Quarantine Programs also enforces

regulations promulgated under the Endangered Species Act of 1973

(Public Law 93-205, as amended) which contain additional

prohibitions and restrictions on importation into the United States

of articles subject to this subpart (See 50 CFR Parts 17 and 23).

\2\One 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.

---------------------------------------------------------------------------

Sec. 319.37-1 Definitions.

* * * * *

Prohibited article. Any nursery stock, plant, root, bulb, seed, or

other plant product designated in Sec. 319.37-2(a) or (b), except wood

articles regulated under Sec. 319.40.

* * * * *

6. ``Subpart--Logs from New Zealand,'' Secs. 319.40-1 through

319.40-8, would be 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.

319.40-6 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.

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).

Sec. 319.40-1 Definitions.

Wherever in this subpart the following terms are used they shall be

construed to mean:

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 to whom

authority to act in his or her stead is delegated.

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 Sec. 319.40-3

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

Sec. 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 further

sawn.

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 Sec. 319.40-4, or a general permit promulgated in

Sec. 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 Sec. 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 Sec. 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.

Sec. 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 Sec. 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

Sec. 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 Sec. 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

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