[Federal Register Volume 68, Number 100 (Friday, May 23, 2003)]
[Proposed Rules]
[Pages 28157-28161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12985]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 301 and 319

[Docket No. 00-067-1]
RIN 0579-AB55


Gypsy Moth; Regulated Articles

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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[[Page 28158]]

SUMMARY: We are proposing to amend the gypsy moth regulations by 
removing restrictions on the interstate movement of wood chips, which 
do not pose a risk of containing gypsy moth egg masses, and by adding 
restrictions on the movement and importation of bark and bark products, 
which pose a risk of containing gypsy moth egg masses. In addition, we 
are proposing to extend by 2 months the period during which regulated 
articles originating outside of any generally infested area must be 
safeguarded from infestation in order to be eligible for interstate 
movement directly through any generally infested area without a 
certificate or permit. These proposed changes are necessary to update 
the provisions in these regulations to ensure consistent actions by the 
Animal and Plant Health Inspection Service, our cooperators, and 
industry in order to limit the artificial spread of gypsy moth.

DATES: We will consider all comments that we receive on or before July 
22, 2003.

ADDRESSES: You may submit comments by postal mail/commercial delivery 
or by e-mail. If you use postal mail/commercial delivery, please send 
four copies of your comment (an original and three copies) to: Docket 
No. 00-067-1, Regulatory Analysis and Development, PPD, APHIS, Station 
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. 00-067-1. If you use e-mail, 
address your comment to [email protected]. Your comment must 
be contained in the body of your message; do not send attached files. 
Please include your name and address in your message and ``Docket No. 
00-067-1'' on the subject line.
    You may read any comments that we receive on this docket in our 
reading room. The reading room is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Weyman Fussell, Program Manager, 
Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit 
134, Riverdale, MD 20737-1236; (301) 734-5705.

SUPPLEMENTARY INFORMATION:

Background

    The gypsy moth, Lymantria dispar (Linnaeus), is an introduced, 
highly destructive insect of trees that, during its caterpillar stage, 
poses a serious threat to hundreds of species of trees and shrubs. A 
female gypsy moth lays a cluster of eggs (called an egg mass) on and 
near trees. Up to a thousand caterpillars can hatch from a single egg 
mass. The caterpillars feed on nearby trees and shrubs, removing much, 
if not all, foliage. This defoliation, when combined with other forms 
of stress such as drought and soil compaction, may ultimately result in 
the death of the tree.
    The first major outbreak of gypsy moth in the United States 
occurred in Massachusetts in 1889. Since then, the gypsy moth has 
infested 19 States and the District of Columbia and has defoliated 
thousands of acres of hardwood forests across the northeastern United 
States. The infestation continues to move south and west despite 
ongoing eradication and control efforts.

Regulated Articles

    Because eradication efforts have been largely unsuccessful, Federal 
and State regulations focus on limiting the artificial spread of gypsy 
moth, which occurs when the insect, in any of its life stages, attaches 
to items such as nursery stock, vehicles, outdoor household articles, 
and forest products that are moved long distances. The regulations in 
``Subpart--Gypsy Moth'' (7 CFR 301.45 through 301.45-12, referred to 
below as the regulations) restrict the interstate movement of regulated 
articles from generally infested areas of States quarantined for gypsy 
moth. In Sec.  301.45-1, the term ``regulated articles'' is defined as: 
(1) Trees without roots (e.g., Christmas trees), trees with roots, and 
shrubs with roots and persistent woody stems, unless they are 
greenhouse grown throughout the year; (2) logs, pulpwood, and wood 
chips; (3) mobile homes and associated equipment; and (4) any other 
products, articles, or means of conveyance, of any character 
whatsoever, when it is determined by an inspector that any life stage 
of gypsy moth is in proximity to such articles and the articles present 
a high risk of artificial spread of gypsy moth infestation and the 
person in possession thereof has been so notified.
    The Animal and Plant Health Inspection Service (APHIS) Gypsy Moth 
Management Team (GMMT) and our State cooperators recently reviewed the 
regulations, focusing on the restrictions on the interstate movement of 
regulated articles. Based on the results of this review, we are 
proposing to amend the list of regulated articles found in Sec.  
301.45-1 by removing wood chips from that list and adding bark and bark 
products as regulated articles. The GMMT and State cooperators 
determined that wood chips do not play a role in the artificial spread 
of gypsy moth because the bark of the tree, where the female gypsy moth 
deposits her eggs, is removed prior to chipping the log. Therefore, 
wood chips are considered to be free of egg masses. Conversely, bark 
and bark products, including mulch, do pose a risk of spreading gypsy 
moth because egg masses may survive the debarking process. The 
regulations in Sec.  301.45-4(c)(2) that set forth the requirements for 
the movement of logs, pulpwood, and wood chips would also be amended to 
replace restrictions on wood chips with restrictions on bark and bark 
products. These changes are necessary to update the current regulations 
and to relieve restrictions on wood chips, which are not necessary, and 
to impose restrictions on bark and bark products, which would ensure 
that bark and bark products do not contribute to the artificial spread 
of gypsy moth.
    These proposed changes would also make it necessary to amend the 
regulations found in ``Subpart--Gypsy Moth Host Material from Canada'' 
(7 CFR 319.77-1 through 319.77-5), which are intended to limit the 
artificial spread of gypsy moth from infested areas of Canada into 
noninfested areas of the United States by restricting the importation 
of gypsy moth host material into the United States from Canada. Section 
319.77-2 lists the following as regulated articles: (1) Trees without 
roots (e.g., Christmas trees), unless they were greenhouse-grown 
throughout the year; (2) trees with roots, unless they were greenhouse-
grown throughout the year; (3) shrubs with roots and persistent woody 
stems, unless they were greenhouse-grown throughout the year; (4) logs 
with bark attached; (5) pulpwood with bark attached; (6) outdoor 
household articles; and (7) mobile homes and their associated 
equipment. Based on the recommendations of the GMMT and State 
cooperators, we are proposing to add bark and bark products to this 
list of regulated articles because, as noted previously, gypsy moth egg 
masses can survive the debarking process used to produce the raw bark 
products.
    We would also amend the regulations in Sec.  319.77-4(b), which set 
forth the

[[Page 28159]]

conditions for the importation from Canada of logs and pulpwood with 
bark attached, so that those conditions would also apply to bark and 
bark products imported from Canada. With this proposed change, bark and 
bark products to be moved into or through a U.S. noninfested area could 
be imported into the United States from Canada only under the following 
conditions:
    [sbull] If the bark or bark products originated in a Canadian 
infested area, they would have to be accompanied by an officially 
endorsed Canadian phytosanitary certificate that includes an additional 
declaration confirming that they have been inspected and found free of 
gypsy moth or treated for gypsy moth in accordance with the Plant 
Protection and Quarantine (PPQ) Treatment Manual, or they would have to 
be consigned to a specified U.S. processing plant or mill operating 
under a compliance agreement with APHIS for specified handling or 
processing.
    [sbull] If the bark or bark products originated in a Canadian 
noninfested area, they would have to be accompanied by a certification 
of origin stating that they were produced in an area of Canada where 
gypsy moth is not known to occur.
    These proposed changes are necessary to ensure that the importation 
of bark and bark products into noninfested areas of the United States 
from generally infested areas of Canada will not result in the 
artificial spread of gypsy moth from Canada into the United States.
    With respect to regulated articles, there is some overlap between 
the regulations in ``Subpart--Gypsy Moth Host Material from Canada'' 
and the regulations in ``Subpart--Lumber, Logs, and Other 
Unmanufactured Wood Articles'' (7 CFR 319.40.1 through 319.40-11). 
Because of that overlap, the regulations in Sec.  319.40-2(f) note that 
in addition to meeting the requirements of the unmanufactured wood 
regulations, logs and pulpwood with bark attached imported from Canada 
are subject to the inspection and certification requirements for gypsy 
moth in Sec.  319.77-4. Similarly, Sec.  319.77-4(b) of ``Subpart--
Gypsy Moth Host Material from Canada'' includes a footnote stating that 
logs from Canada are also subject to restrictions under the 
unmanufactured wood regulations in Sec. Sec.  319.40 though 319.40-11. 
Given that bark and bark products are already subject to restrictions 
under the unmanufactured wood regulations, and would also be subject to 
restrictions under the regulations regarding gypsy moth host material 
from Canada, we would update the cross references described above in 
each subpart to include bark and bark products.

Safeguarding

    In ``Subpart--Gypsy Moth,'' Sec.  301.45-4 sets forth the 
requirements for the interstate movement of regulated articles from 
generally infested areas. Paragraph (b) of Sec.  301.45-4 provides that 
a regulated article that originates outside of any generally infested 
area may be moved interstate directly through any generally infested 
area without a certificate or permit if, among other things, the 
article has been safeguarded while in any generally infested area 
during the months of April through June. Based on the review of these 
regulations by the GMMT and State cooperators, we are proposing to 
extend the close of this safeguarding period from June until August. 
Because the female gypsy moth generally lays eggs in July and August, 
and because the flight period of the gypsy moth in northern States is 
later in the year, there is a risk that articles could become infested 
during transport through a generally infested area during these months. 
The proposed extension of the safeguarding period would help protect 
against this risk and would also make Sec.  301.45-4(b) consistent with 
the provisions of Sec.  301.45-5(a)(2), which require a regulated 
article to be inspected within 5 days of the date of movement during 
the months of April through August before an inspector can certify the 
article for movement.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    In this document, we are proposing to amend the gypsy moth 
regulations by removing restrictions on the interstate movement of wood 
chips, which do not pose a risk of containing gypsy moth egg masses, 
and by adding restrictions on the movement and importation of bark and 
bark products, which pose a risk of containing gypsy moth egg masses. 
In addition, we are proposing to extend by 2 months the period during 
which regulated articles originating outside of any generally infested 
area must be safeguarded from infestation in order to be eligible for 
interstate movement directly through any generally infested area 
without a certificate or permit. These proposed changes are necessary 
to update the provisions in these regulations to ensure consistent 
actions by APHIS, our cooperators, and industry in order to limit the 
artificial spread of gypsy moth.
    The U.S. forest industry employs close to 1.4 million people and 
contributes approximately $200 billion annually to the national 
economy.\1\ Although the United States is a net importer of wood and 
wood products, wood exports totaled $5.24 billion in 2001. The gypsy 
moth is a pest of concern for the U.S. forest industry. Defoliation of 
trees by gypsy moths often results in the death of the trees, which 
leads to economic loss, changes in ecosystems and wildlife habitat, and 
disturbed water flow and water quality. Economic costs to the U.S. 
forest industry, in addition to the costs of timber losses and pest 
control, can also arise from trade reductions as importers impose 
protective restrictions on access to their markets for wood products. 
Gypsy moths are already causing losses in quarantined areas in the 
United States. Annual losses attributable to gypsy moths are estimated 
to be about $22 million.\2\ Thus, any spread of gypsy moth to 
nonregulated areas could have a negative economic and environmental 
impact. The changes in this proposed rule are necessary to limit the 
artificial spread of the gypsy moth.
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    \1\ Southeastern Lumber Manufacturing Association, Inc., U.S. 
Forest Industry Statistics (http://www.slma.org/consumers).
    \2\ David Pimentel, Lori Latch, Rodolfo Zuniga, and Doug 
Morrison, ``Environmental and Economic Costs Associated with Non-
indigenous Species in the United States,'' College of Agriculture 
and Life Sciences, Cornell University, Ithaca, NY 14850-0901, June 
12, 1999.
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Interstate Movement Restrictions

    The proposed changes to the domestic gypsy moth regulations would 
affect sawmills, pulp mills, and nurseries and garden centers that are 
involved in the interstate movement of wood chips and bark and bark 
products from gypsy moth generally infested areas. Restrictions would 
no longer apply to the movement of wood chips, but entities involved in 
the interstate movement of bark and bark products would be required to 
have each shipment of bark or bark products inspected or treated under 
the direction of an inspector, or self-inspect and certify each 
shipment in accordance with the Gypsy Moth Program Manual, no more than 
5 days prior to moving it from a generally infested area to an area 
that is not generally infested. While self-inspection minimizes 
regulatory costs and time delay costs, other costs associated with 
time, salary, and recordkeeping could be incurred.
    The Small Business Administration (SBA) has established size 
standards

[[Page 28160]]

based on the North American Industry Classification System (NAICS) to 
determine and to classify which economic entities can be considered 
small entities. The SBA classifies sawmills as small if they employ 500 
or fewer employees. Pulp mills are considered small if they employ 750 
or fewer employees. Nursery and garden centers are considered small if 
their annual sales are less than $6 million. In 1997, the most recent 
year for which data are available, there were 1,678 sawmills (NAICS 
code 321113) in quarantined States,\3\ 9 pulp mills (NAICS code 322110) 
in generally infested areas, and 3,446 nursery and garden centers 
(NAICS code 444220) in generally infested areas of the United States. 
Approximately 93 percent of those sawmills, 95 percent of those nursery 
and garden centers, and 93 percent of those pulp mills are considered 
to be small entities under the SBA's standards.\4\
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    \3\ Information on the number of sawmills is available at the 
State level only. County information is withheld to avoid disclosing 
data for individual establishments. This may result in an 
overestimate of the number of affected entities because not all 
counties within quarantined States are in generally infested areas.
    \4\ U.S. Census Bureau, 1997 Economic Census: Manufacturing and 
Retail Geographic Area Series, November 1999 (revised November 
2002).
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    In 1997, sawmills in quarantined States produced 2,896,170 tons of 
primary bark residue (see table 1), which was approximately 12 percent 
of the national total.\5\ However, these data do not include the bark 
residue produced in urban areas and by land clearing operations. 
Additionally, most commercially available bark and mulch products are 
not produced at sawmills. Independent bark and mulch producers buy bark 
and wood residue from sawmills, reprocess the material, and then sell 
it in bulk or bagged. The number and size of these independent entities 
are not available. The impact upon these entities would depend upon 
what proportion of their business is bark mulch and what percentage of 
that is shipped to areas that are not generally infested. The higher 
the percentage shipped to areas that are not generally infested, the 
greater the negative effect would be.
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    \5\ W.B. Smith, John S. Visage, David R. Darr, and Raymond M. 
Sheffield, Forest Resources of the United States, 1997.

   Table 1.--Potentially Affected Entities and Bark Residue Production
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                                                 Generally
                                                  infested    U.S. total
                                                   areas
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Sawmills*.....................................        1,678        4,390
Pulp mills....................................            9           36
Nursery and garden centers....................        3,446       16,432
Primary bark residue production (tons)........    2,896,170  24,528,380
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* Information about the number of sawmills is available at the State
  level only. County data is withheld to avoid disclosing data for
  individual establishments. This may result in an overestimate of the
  number of affected entities because not all counties within
  quarantined States are in generally infested areas.
 Source: U.S. Census Bureau, 1997 Economic Census: Manufacturing and
  Retail Geographic Area Series, November 1999 (revised November 2002).
 Note: Primary bark residue production data from USDA/FS, ``Bark and
  wood residue production in gypsy moth quarantined States in 2000,''
  Lew R. McCreery, Economic Action Program USDA/FS Northeastern Area.

    The potential economic effects of these proposed changes would vary 
by State, depending on the number and size of entities to be regulated, 
the levels of infestation, the quantity of shipments to areas that are 
not generally infested, and whether delays occur and whether treatment 
is needed. Entities most likely to be affected by the proposed changes 
are those that produce bark products and wood chips and independent 
mulch and bark producers. There would be opposing results. Removal of 
wood chips from the list of regulated articles would result in savings, 
if there had been costs before the proposed changes, while the 
imposition of restrictions on the movement of bark and bark products 
may result in additional costs. Since entities located in generally 
infested areas produce a relatively smaller share of bark residue, as 
shown in table 1, most shipments of bark products are likely to be 
small in quantity and to be contained within generally infested areas 
with very few shipments to areas that are not generally infested.
    If the inspection of a shipment intended for movement to an area 
that is not generally infested reveals the presence of gypsy moths, the 
infested articles would not be eligible for movement unless they were 
treated or consigned to a facility operating under a compliance 
agreement with APHIS for specified handling or processing. If treated, 
fumigation could cost between $100 and $150 per truck load, depending 
upon the size of the shipment. The need to treat infested bark or bark 
products may increase business for certified fumigant applicators 
located in generally infested areas. However, overall, the results of 
removing wood chips and adding bark and bark products to the list of 
regulated articles may cancel each other out, resulting in no increase 
of business for certified applicators. Regional variation is possible.
    The proposed changes are expected to cause a slight increase in the 
costs of business for the affected entities. The negative economic 
impact that may result from the proposed changes is small compared to 
the potential for harm to related industries and to the U.S. economy as 
a whole that would result from an increase in the artificial spread of 
the gypsy moth, however. Benefits from the unrestricted movement of 
wood chips are expected to either cancel out or be greater than any 
negative effects of new restrictions on the movement of bark and bark 
products. Since the proposed changes would not prohibit their movement, 
regulated articles that meet the requirements of the regulations would 
continue to enter the market. The overall impact on price and 
competitiveness is expected to be relatively insignificant.

Import Restrictions

    Under the unmanufactured wood regulations in Sec.  319.40-3, 
regulated articles, which include bark and bark products, to be 
imported into the United States from Canada are subject to the 
inspection and other requirements in Sec.  319.40-9 and must be 
accompanied by an importer document stating that the articles are 
derived from trees harvested in, and have never been moved outside, 
Canada. Under Sec.  319.40-9, regulated articles must have been 
inspected and found free of plant pests or have been treated for pests 
as required by the inspector before the regulated article may be moved 
from the port of first arrival. Adding bark and bark products as a 
regulated articles under the regulations related to gypsy moth host 
material from Canada would mean that bark and bark products to be moved 
into or through a noninfested area of the United States from an 
infested area of Canada would have to be accompanied by an officially 
endorsed Canadian phytosanitary certificate confirming that they have 
been inspected and found free of gypsy moth or have been treated in 
accordance with the PPQ Treatment Manual prior to importation. Because 
the restrictions that would apply under the regulations for gypsy moth 
host material from Canada are only slightly more restrictive than the 
restrictions that already apply under the

[[Page 28161]]

unmanufactured wood regulations, requiring certification or treatment 
prior to importation rather than at the port of first arrival, we do 
not believe that they will have a significant economic impact. In 
addition, we could not find any data on the importation of bark or bark 
products into the United States from Canada, which indicates that there 
is not a high volume of trade in these articles.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) State and 
local laws and regulations will not be preempted; (2) no retroactive 
effect will be given to this rule; and (3) administrative proceedings 
will not be required before parties may file suit in court challenging 
this rule.

Paperwork Reduction Act

    This proposed rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects

7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

List of Subjects

7 CFR Part 319

    Bees, Coffee, Cotton, Fruits, Honey, Imports, Nursery Stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.
    Accordingly, 7 CFR parts 301 and 319 would be amended as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 would continue to read as 
follows:

    Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.

    Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also 
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 
U.S.C. 1421 note).


Sec.  301.45-1  [Amended]

    2. In Sec.  301.45-1, in the definition of regulated articles, 
paragraph (2) would be amended by removing the words ``wood chips'' and 
adding in their place the words ``bark and bark products''.


Sec.  301.45-4  [Amended]

    3. In Sec.  301.45-4, paragraph (b) would be amended by removing 
the word ``June'' and adding in its place the word ``August'', and 
paragraph (c)(2) would be amended by removing the words ``wood chips'' 
and adding in their place the words ``bark and bark products''.

PART 319--FOREIGN QUARANTINE NOTICES

    4. The authority citation for part 319 would continue to read as 
follows:

    Authority: 7 U.S.C. 450, 7711-7714, 7718, 7731, 7732, 7751-7754, 
and 7760; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.


Sec.  319.40-2  [Amended]

    5. In Sec.  319.40-2, paragraph (f) would be amended by adding the 
words ``bark and bark products and'' before the word ``logs''.
    6. Section 319.77-2 would be amended by redesignating paragraphs 
(f) and (g) as paragraphs (g) and (h), respectively, and by adding a 
new paragraph (f) to read as follows:


Sec.  319.77-2  Regulated articles.

* * * * *
    (f) Bark and bark products;
* * * * *
    7. In Sec.  319.77-4, the introductory text of paragraph (b), 
including footnote 2; paragraph (b)(1); the introductory text of 
paragraph (b)(2); the introductory text of paragraph (b)(2)(i); and 
paragraph (b)(2)(ii) would be revised to read as follows:


Sec.  319.77-4  Conditions for the importation of regulated articles.

* * * * *
    (b) Bark and bark products and logs and pulpwood with bark 
attached.\2\ (1) Bark and bark products or logs or pulpwood with bark 
attached that are destined for a U.S. infested area and that will not 
be moved through any U.S. noninfested area other than noninfested areas 
in the counties of Aroostock, Franklin, Oxford, Piscataquis, Penobscot, 
and Somerset, ME (i.e., areas in those counties that are not listed in 
7 CFR 301.45-3) may be imported from any area of Canada without 
restriction under this subpart.
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    \2\ Bark, bark products, and logs from Canada are also subject 
to restrictions under ``Subpart--Logs, Lumber, and Other 
Unmanufactured Wood Articles'' (Sec. Sec.  319.40 through 319.40-11 
of this part).
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    (2) Bark and bark products or logs or pulpwood with bark attached 
that are destined for a U.S. noninfested area or will be moved through 
a U.S. noninfested area may be imported into the United States from 
Canada only under the following conditions:
    (i) If the bark, bark products, logs, or pulpwood originated in a 
Canadian infested area, they must be either:
* * * * *
    (ii) If the bark, bark products, logs, or pulpwood originated in a 
Canadian noninfested area, they must be accompanied by a certification 
of origin stating that they were produced in an area of Canada where 
gypsy moth is not known to occur.
* * * * *

    Done in Washington, DC, this 16th day of May 2003.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-12985 Filed 5-22-03; 8:45 am]
BILLING CODE 3410-34-P