[Federal Register Volume 69, Number 165 (Thursday, August 26, 2004)]
[Rules and Regulations]
[Pages 52409-52419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19519]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 69, No. 165 / Thursday, August 26, 2004 /
Rules and Regulations
[[Page 52409]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 98-054-3]
RIN 0579-AB02
Importation of Unmanufactured Wood Articles From Mexico
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the regulations to add restrictions on the
importation of pine and fir logs and lumber, as well as other
unmanufactured wood articles, from Mexican States adjacent to the
United States/Mexico border. This rule requires that these wood
articles meet certain treatment and handling requirements to be
eligible for importation into the United States. This action is
necessary to prevent the introduction into the United States of plant
pests, including forest pests, with unmanufactured wood articles from
Mexico.
DATES: Effective September 27, 2004.
FOR FURTHER INFORMATION CONTACT: Mr. Hesham Abuelnaga, Import
Specialist, Phytosanitary Issues Management, PPQ, APHIS, 4700 River
Road Unit 140, Riverdale, MD 20737-1236; (301) 734-5334.
SUPPLEMENTARY INFORMATION:
Background
The regulations in ``Subpart--Logs, Lumber, and Other
Unmanufactured Wood Articles'' (7 CFR 319.40-1 through 319.40-11,
referred to below as the regulations) are intended to mitigate the
plant pest risk presented by the importation of logs, lumber, and other
unmanufactured wood articles.
The regulations have provided, in part, that unmanufactured wood
articles may be imported into the United States from Canada and from
Mexican States adjacent to the United States/Mexico border \1\ under a
general permit, while unmanufactured wood articles from Mexican States
that are not adjacent to the United States/Mexico border are subject to
more rigorous requirements. The less restrictive importation
requirements for unmanufactured wood articles imported into the United
States from Canada and from Mexican States adjacent to the United
States/Mexico border were based on the premise that the forests in the
United States share a common forested boundary with Canada and adjacent
States in Mexico and, therefore, share, to a reasonable degree, the
same forest pests. However, a Forest Service pest risk assessment
published in February 1998 showed that a significant pest risk exists
in the movement of raw wood material into the United States from the
adjacent States of Mexico.\2\ This conclusion was later confirmed by
United States Department of Agriculture (USDA) inspectors during
inspections at ports of entry along the United States/Mexico border.
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\1\ The Mexican States adjacent to the United States/Mexico
border are Baja California Norte, Chihuahua, Coahuila, Nuevo Leon,
Sonora, and Tamaulipas.
\2\ Copies of ``Pest Risk Assessment of the Importation Into the
United States of Unprocessed Pinus and Abies Logs From Mexico,'' may
be obtained from the person listed under FOR FURTHER INFORMATION
CONTACT or viewed on the Internet at http://www.fpl.fs.fed.us/documnts/fplgtr/fplgtr104.pdf.
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In response to these findings, on June 11, 1999, we published in
the Federal Register (64 FR 31512-31518, Docket No. 98-054-1) a
proposal to amend the regulations by adding restrictions on the
importation of pine and fir logs and lumber, as well as other
unmanufactured wood articles, from the northern border States of
Mexico. We proposed to amend the regulations to provide that pine and
fir logs and lumber, as well as other unmanufactured wood articles,
imported into the United States from Mexican States adjacent to the
United States/Mexico border would be subject to the same requirements
as Mexican States that are not adjacent to the United States/Mexico
border.
Specifically, for unmanufactured wood articles from Mexico, we
proposed to limit the scope of the general permit under Sec. 319.40-
3(a) to cover only the importation, from the northern border States, of
unmanufactured mesquite wood for cooking, unmanufactured wood for
firewood, and small, noncommercial packages of unmanufactured wood for
personal cooking or personal medicinal purposes. We proposed several
miscellaneous changes, including requiring that the pressure treatment
for railroad ties required by Sec. 319.40-5(f) be conducted at a U.S.
facility under compliance agreement with the Animal and Plant Health
Inspection Service (APHIS); removing the provision in Sec. 319.40-3(a)
that the importer document required by that paragraph must state that
the articles have never been moved outside Canada or the northern
border States of Mexico; and specifying that an importer document is
necessary only for commercial shipments of unmanufactured wood articles
imported into the United States under a general permit.
We also proposed to amend Sec. 319.40-5 to add methyl bromide
fumigation as an additional treatment option for cross-ties and pine
and fir lumber from all of Mexico. However, upon further consideration,
we have determined that it is not necessary to provide for the use of
methyl bromide fumigation for cross-ties and pine and fir lumber from
all of Mexico. To date, Mexican States that are not adjacent to the
United States/Mexico border have been able to export cross-ties and
pine and fir lumber to the United States in accordance with the
existing regulations. Therefore, these States do not appear to need the
alternative treatment of methyl bromide fumigation. In contrast, kiln
drying capacity is very limited in the Mexican States adjacent to the
United States/Mexico border, and we expect that it will take some time
for new kilns to be built in those States. Given the limited kiln
drying capacity and the fact that all of the quarantine pests
identified in the pest risk assessment can be mitigated by methyl
bromide fumigation, we believe it is reasonable to add methyl bromide
fumigation as an alternative treatment for cross-ties and pine and fir
lumber from Mexican States adjacent to the United States/Mexico border.
Accordingly, paragraph (l) of Sec. 319.40-
[[Page 52410]]
5 in this final rule adds methyl bromide fumigation as an alternative
treatment for cross-ties and pine and fir lumber from Mexican States
adjacent to the United States/Mexico border. In addition, we have added
a footnote to indicate that cross-ties from these States may also be
imported if pressure treated with a preservative or heat treated. As
additional kilns are built in the Mexican States adjacent to the United
States/Mexico border, we expect that kiln drying will become the
preferred method of treatment because it increases the commercial value
of unmanufactured wood while satisfying phytosanitary treatment
requirements.
We solicited comments concerning our proposal for 60 days ending on
August 10, 1999. We received 21 comments by that date. They were from
various timber industry representatives, environmental groups, State
representatives, and other interested individuals. Although the
commenters generally supported our efforts to close a potential pathway
for the introduction of dangerous plant pests into the United States,
some commenters expressed concern about specific provisions of the
proposal. These are discussed by subject below.
Lumber and Cross-Ties
Comment: For cross-ties and pine and fir lumber, APHIS should
require mandatory fumigation immediately prior to importation and heat
or pressure treatment within 30 days following importation. The
proposal's provision to limit treatment only to methyl bromide
fumigation prior to importation does not adequately address the pest
risk associated with the importation of these articles.
Response: We do not agree that both fumigation with methyl bromide
and heat or pressure treatment should be required as a condition of
entry for cross-ties and pine and fir lumber. Methyl bromide fumigation
was proposed merely as an alternative treatment for cross-ties and pine
and fir lumber from Mexico. We are confident that requiring that lumber
and cross-ties be completely free of bark and treated with only one of
these treatment options affords the adequate level of pest protection
needed to allow entry of these articles from Mexican States adjacent to
the United States/Mexico border.
Comment: The proposed requirements for lumber and cross-ties from
Mexico should apply to all other countries.
Response: We do not agree that the proposed alternative methyl
bromide treatment for cross-ties and pine and fir lumber from Mexico
should be expanded to other countries. Indeed, in this final rule, we
have limited the proposed alternative methyl bromide treatment to only
cross-ties and pine and fir lumber from Mexican States adjacent to the
United States/Mexico border. We proposed methyl bromide fumigation as
an alternative treatment based upon the results of an extensive pest
risk assessment of wood from Mexico conducted by the U.S. Forest
Service. All of the quarantine pests identified in the pest risk
assessment can be mitigated by methyl bromide fumigation. This is not
true for all pests known to exist in other countries.
Comment: APHIS should require cross-ties from Mexico imported into
the United States to be treated at the point of origin in Mexico, not
treated after arrival in the United States. The provision that allows
cross-ties from Mexico to enter the United States untreated if they
will be treated within 30 days of importation presents a high pest risk
and requires less stringent importation measures for Mexico than for
other countries with less diverse populations of forest pests.
Response: The provisions of Sec. 319.40-5(f) that allow cross-ties
to enter the United States untreated as long as they are completely
free of bark and pressure treated within 30 days following importation
are not new, nor do they apply only to cross-ties from Mexico. Rather,
those provisions, since they became effective on August 23, 1995, have
applied to cross-ties from all places except places in Asia that are
east of 60[deg] East Longitude and north of the Tropic of Cancer. Thus,
the importation measures for Mexico are no different than those for
other countries from which cross-ties may be imported into the United
States.
Consistent with what we discussed in the proposed rule, we are
amending Sec. 319.40-5(f) in this final rule to add the requirement
that the post-importation pressure treatment for cross-ties be
conducted at a U.S. facility that is operating under a compliance
agreement.
Comment: APHIS needs to add provisions to the proposal that will
help prevent lumber and cross-ties imported by rail or truck from
Mexico from being reinfested, or infesting U.S. forests, during
transport. Such provisions may include sealed containers, requiring
rail doors to remain closed, and trucks to be securely covered. The
provisions should apply to movement to and within the United States.
Response: We believe the requirements in this rule and the
applicable permits are sufficient to prevent the reinfestation of
articles treated prior to shipment to the United States, as well as the
infestation of U.S. forests, during transport. Lumber and cross-ties
treated in Mexico are at low risk of reinfestation, or infesting U.S.
forests, during transport to and within the United States. Therefore,
there is little need for additional safeguards. Moreover, there is
reduced risk of infestation from untreated cross-ties and lumber from
Mexico due to the requirements for debarking, inspection, restrictions
on commingling of regulated articles, and direct transport to a
treatment facility.
Comment: It appears that the proposal would not require an import
permit for cross-ties entering the United States from Mexico. This is
inconsistent with the current regulations. APHIS should require an
import permit for cross-ties from Mexico to ensure that APHIS personnel
and State officials can identify, and place under compliance agreement,
mills that will process the ties.
Response: This rule amends the regulations to provide that, with
the exception of certain articles covered by general permit,
unmanufactured wood articles imported into the United States from
Mexican States adjacent to the United States/Mexico border are subject
to substantially the same requirements that apply to those articles
imported from Mexican States that are not adjacent to the United
States/Mexico border. (We say ``substantially the same'' due to our
inclusion of fumigation as a treatment option for cross-ties and pine
and fir lumber from Mexican States adjacent to the United States/Mexico
border; otherwise, the requirements are the same.) Specifically, for
articles from Mexico, this rule limits the use of a general permit
under Sec. 319.40-3(a) to the importation, from Mexican States
adjacent to the United States/Mexico border, of unmanufactured mesquite
wood for cooking, unmanufactured wood for firewood, and small,
noncommercial packages of unmanufactured wood for personal cooking or
personal medicinal purposes. Accordingly, specific permits under Sec.
319.40-2(a) will, in fact, be required for the importation of regulated
articles from Mexico, including cross-ties.
Comment: According to the proposed text of Sec. 319.40-5(1),
cross-ties from Mexico may only be imported into the United States if
they are 100 percent bark-free and have been fumigated according to the
T312 treatment schedule. APHIS should also allow heat or pressure
treatment of these articles.
Response: We currently allow cross-ties to be imported from all
places,
[[Page 52411]]
except certain places in Asia, if they are pressure treated with a
preservative in accordance with Sec. 319.40-5(f). In this final rule,
we have amended paragraph (f) of Sec. 319.40-5 to specify that cross-
ties must be pressure treated ``with a preservative.'' This has always
been the way Sec. 319.40-5(f) has been interpreted; however, we are
adding, for clarification purposes, the words ``with a preservative.''
We also currently allow heat treatment of cross-ties from all places,
in accordance with Sec. 319.40-7(c). For clarification, we have
amended paragraph (f) of Sec. 319.40-5 in this final rule to indicate
that cross-ties from Mexico may be imported if pressure treated with a
preservative or heat treated.
As previously noted, this final rule provides an alternative
treatment for cross-ties from Mexican States adjacent to the United
States/Mexico border. For clarification, we have amended paragraph (l)
of Sec. 319.40-5 in this final rule to indicate that cross-ties from
Mexican States adjacent to the United States/Mexico border may be
imported if pressure treated with a preservative, heat treated, or
fumigated.
Comment: Do the proposed changes for lumber apply to finished
lumber, raw lumber, or both?
Response: The regulations do not define finished or raw lumber. The
regulations in the subpart apply to regulated articles, including
lumber, that are unprocessed or have received only primary processing,
such as cleaning (removal of soil, limbs, and foliage), debarking,
rough sawing (bucking or squaring), rough shaping, spraying with
fungicide or insecticide sprays, and fumigation. Hence, for example,
the regulations would apply to commercial types of lumber, such as 2 x
4's, but would not apply to processed articles such as plywood or
veneer.
Comment: APHIS should require additional handling measures (besides
segregation from domestic stock) for U.S. processing mills handling
lumber from Mexico. Such requirements would help protect forests
adjacent to these processing mills.
Response: Currently, U.S. processing facilities enter into
compliance agreements. These compliance agreements specify the
requirements necessary to prevent the spread of plant pests from the
facility.
Methyl Bromide Fumigation
Comment: APHIS should not propose methyl bromide fumigation as a
treatment option for the importation of unmanufactured wood articles
from Mexico because there are effective and available alternative
treatments, such as heat treatment. The continued use of methyl bromide
as a quarantine treatment to control pests is allowed under the
Montreal Protocol and the Clean Air Act; however, this does not
necessarily mean that this treatment should be added as an option when
other effective treatments exist. For example, Decisions VI/11 and VII/
5 of the Meetings of the Parties to the Montreal Protocol urge all
countries to refrain from the use of methyl bromide in quarantine
applications and to use non-ozone depleting technologies wherever
possible. Allowing the use of methyl bromide for quarantine treatment
of Mexican wood articles when other effective treatments exist would be
inconsistent with these decisions.
Response: On January 2, 2003, the U.S. Environmental Protection
Agency (EPA) published in the Federal Register a final rule titled
``Protection of Stratospheric Ozone: Process for Exempting Quarantine
and Preshipment Applications of Methyl Bromide'' which, among other
things, sets forth the parameters for the quarantine exemption. In that
final rule, the EPA stated that, ``For commodities imported to,
exported from, and transported within the U.S., the exemption for
quarantine applications will apply when: (1) Methyl bromide is
identified within quarantine regulations as the unique treatment option
for specific quarantine pests; (2) methyl bromide is identified within
quarantine regulations as one among a list of treatment options for
specific quarantine pests; and (3) methyl bromide is required for an
emergency quarantine application'' (68 FR 242). We believe that APHIS'
adoption of methyl bromide fumigation as an alternative treatment for
cross-ties and pine and fir lumber from Mexican States adjacent to the
United States/Mexico border falls within these parameters.
APHIS is committed to finding environmentally acceptable
alternative treatments to methyl bromide fumigation. However, we are
also committed to fulfilling our certain obligations under
international agreements to recognize efficacious and economically
feasible quarantine treatments to control pests. In this instance, we
have determined that allowing methyl bromide fumigation as an
alternative treatment option for imported cross-ties and pine and fir
lumber from Mexican States adjacent to the United States/Mexico border
would provide the necessary level of pest protection with minimal
impact on the environment.
This determination is supported by an environmental impact
statement (EIS) titled ``Rule for the Importation of Unmanufactured
Wood Articles From Mexico, With Consideration for Cumulative Impact of
Methyl Bromide Use,'' which considered the potential cumulative impact
on the environment of methyl bromide use that could result if the
proposed rule was adopted.\3\ The EIS calculates that a realistic worst
case scenario would be an increase in annual methyl bromide use of 24
metric tons (MT) \4\ and the emissions from this increase would be 21
MT, and notes that 24 MT is less than one-tenth of 1 percent of the
annual current total worldwide methyl bromide consumption (63,960 MT).
The EIS further notes that the actual increase in methyl bromide use
most likely would be much less than 24 MT because it is believed that
most suppliers of unmanufactured wood articles from Mexican border
States would choose heat treatment over methyl bromide treatment
because heat treated wood is preferred for commercial purposes.
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\3\ Copies of the EIS may be obtained from the person listed
under FOR FURTHER INFORMATION CONTACT. The EIS may also be viewed on
the Internet at http://www.aphis.usda.gov/ppd/es/mb.html.
\4\ The EIS notes that the 1998 environmental assessment for the
proposed rule estimated that the amount of methyl bromide required
to fumigate wood articles was 72 MT, rather than 24 MT. The EIS
clarifies that the 72 MT figure was based on potentially fumigating
every unmanufactured wood article imported into the United States
from Mexico, whereas the 24 MT figure is a more likely estimate of
methyl bromide use on unmanufactured wood articles from only the
Mexican border States.
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Comment: APHIS needs to assess, not presume, the efficacy of the
proposed methyl bromide treatments for lumber and cross-ties from
Mexico. One of the proposed treatment schedules, T404, was developed to
address the pest risk presented by wood boring insects. Its efficacy
against other pests is unknown. The other proposed treatment schedule,
T312, was developed to treat logs infested with oak root fungus. Its
efficacy against other pests is also unknown. Any assessment of these
proposed treatment schedules should include an analysis of each
treatment's effectiveness against a complex of pests in a variety of
hard and soft woods.
Response: Methyl bromide fumigation has a long history of use for
treatment of logs and other wood articles because of its high
volatility, ability to rapidly penetrate most materials, and broad
toxicity against a wide variety of plant pests (all life stages of
insects, mites, and ticks; nematodes, including cysts; snails and
slugs; and fungi, such as oak wilt fungus). Yet there is little
specific
[[Page 52412]]
scientific information available about the efficacy of methyl bromide
fumigation against many pests and pathogens.
APHIS' Plant Protection and Quarantine (PPQ) Treatment Manual,
which is incorporated by reference in the regulations, provides two
methyl bromide fumigation schedules for wood products: T404 and T312.
Treatment schedule T404 is a generic treatment for general insect
control, while treatment schedule T312 is a more rigorous treatment
that has been demonstrated to be effective in eradicating oak wilt
disease. This final rule adds methyl bromide fumigation in accordance
with treatment schedule T312 as an additional treatment option for
imported cross-ties and pine and fir lumber from Mexican States
adjacent to the United States/Mexico border; treatment schedule T404
was not offered as a treatment option in the proposed rule and is not
included in this final rule.
We believe that treatment schedule T312 will be efficacious against
all quarantine pests of concern identified by the pest risk assessment.
We are confident that this dose will be sufficient to mitigate any
other pests of concern in or on the wood. This dose of methyl bromide
has been effective in eradicating oak wilt fungus, and a much lower
dose of methyl bromide (treatment schedule T404) has been effective
against wood boring insects.
Comment: APHIS needs to develop a focused program to eliminate the
use of methyl bromide. Currently, APHIS appears to be more concerned
with economics and the facilitation of imports to the United States
than with taking a proactive position regarding methyl bromide. The
proposal only serves to enhance this impression.
Response: Through collaborative research agreements with the USDA's
Agricultural Research Service, we continue to study alternatives to the
use of methyl bromide as a phytosanitary measure. In recent years, we
have approved several alternative treatments including hot forced air,
hot water treatment, and irradiation.
Solid Wood Packing Material (SWPM)
As previously noted, this rule amends the regulations by providing
that most unmanufactured wood articles, including SWPM, imported into
the United States from Mexican States adjacent to the United States/
Mexico border are subject to substantially the same requirements that
apply to those articles imported from Mexican States that are not
adjacent to the United States/Mexico border. Therefore, under the
regulations, all SWPM entering the United States from Mexico must now
be totally free from bark and apparently free from live plant pests or
must have been heat treated, fumigated, or treated with preservatives
(Sec. 319.40-3(b)).
Comment: APHIS needs to impose stricter import requirements on SWPM
from Mexico. At the very least, APHIS should require that all SWPM
entering the United States from Mexico be debarked before importation.
As a more complete solution, APHIS should adopt the North American
Plant Protection Organization's standards for risk mitigation of SWPM.
Response: As noted in the paragraph preceding this comment, SWPM
from all areas of Mexico will now have to satisfy the requirements of
Sec. 319.40-3(b), which provides for debarking and/or treatment of
SWPM as a condition of entry. These phytosanitary requirements for the
entry of SWPM from Mexico are consistent with the requirements that
apply to SWPM from the rest of the world, except for Canada and China.
Nevertheless, we note that on May 20, 2003, we published in the Federal
Register (68 FR 27480-27491, Docket No. 02-032-2) a proposal to amend
the regulations for the importation of unmanufactured wood articles to
adopt an international standard entitled ``Guidelines for Regulating
Wood Packaging Material in International Trade'' that was approved by
the Interim Commission on Phytosanitary Measures of the International
Plant Protection Convention on March 15, 2002.
Comment: APHIS should prohibit, under the provisions of a gradual
phase-out program, the importation of SWPM from Mexico. There are
alternatives to SWPM that would not harbor pests.
Response: While a prohibition on SWPM from Mexico would eliminate
the pest risks associated with those articles, we cannot justify such a
restrictive measure given the availability of effective and less
restrictive mitigation measures.
Comment: Additional treatment options, such as treatment with an
EPA-registered borate product, should be allowed for SWPM from Mexico.
These products do not affect the strength of the wood and offer natural
protection against most common wood-destroying insects and decay fungi
when applied through dip diffusion. Further, due to their retention in
wood, borates provide protection against reinfestation for the life of
the SWPM.
Response: We do not agree that treatment with an EPA-registered
borate product should be allowed for SWPM from Mexico. As noted in the
EIS, borate is a chemical that has been used to protect lumber from
decay, fungi, and beetles during shipment. Borate treatments work best
when the wood is kept moist during the diffusion period. Although
generally considered to diffuse readily into green wood, borate may not
be able to migrate through the larger dimension materials of less
permeable species in the timeframes typical of imported wood products.
Furthermore, borate treatments may not be effective against all life
stages of insects and some fungi.
Comment: For the movement of certain commodities, such as food,
chemical treatment of SWPM may not be acceptable to other Federal
agencies. Therefore, it would be best not to allow the chemical
treatment of any SWPM imported into the United States.
Response: Any treatment of SWPM must be in accordance with the PPQ
Treatment Manual and any other applicable Federal laws and regulations,
including the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), as amended.
Comment: SWPM made of reused wood consistently has a moisture
content of less than 20 percent and, therefore, greater resistance to
pest infestation. APHIS should allow this type of SWPM to be marked and
be exempt from the proposed regulations. This change would be in
accordance with Sec. 319.40-3(b)(4)(ii) of the current regulations.
Response: Current Sec. 319.40-3(b)(4) contains specific provisions
regarding the importation of pallets moved as cargo, and thus does not
apply to the SWPM referred to by the commenter. Because SWPM is very
often re-used, recycled, or remanufactured, the true origin of any
piece of SWPM is difficult to determine and thus its phytosanitary
status cannot be ascertained. As previously noted, on May 20, 2003, we
published in the Federal Register (68 FR 27480-27491, Docket No. 02-
032-2) a proposal to amend the regulations for the importation of
unmanufactured wood articles to adopt an international standard
entitled ``Guidelines for Regulating Wood Packaging Material in
International Trade.''
Comment: The provisions of the proposed rule that relate to the
importation of SWPM from Mexico are not cost-effective. The proposed
changes will raise costs for the Mexican business community and result
in Mexico adding requirements for U.S. exports to that country, which
will mean added costs for U.S. businesses and U.S. consumers. This
proposal will also result in costly delays at U.S. ports of entry.
Also, if more contract inspectors are hired to
[[Page 52413]]
meet demand, the proposal could result in the inconsistent enforcement
of regulatory requirements. Further, this proposal could result in a
shift from affordable SWPM to non-wood substitutes, thereby creating
potential environmental and disposal problems for U.S. businesses.
Because whatever changes APHIS decides to make to the importation of
SWPM from Mexico will likely be costly and disruptive, a 5-year phase-
in period should be allowed.
Response: This rule amends the regulations by providing that
unmanufactured wood articles, including SWPM, imported into the United
States from Mexican States adjacent to the United States/Mexico border
are subject to substantially the same requirements that apply to those
articles from Mexican States that are not adjacent to the United
States/Mexico border. The economic analysis in the proposed rule noted
that a negligible amount of SWPM that is untreated or not free of bark
has historically entered the United States from the northern border
States of Mexico. Indeed, the economic analysis went on to note that
nearly all SWPM from Mexico's border States already meets the entry
requirements that will be imposed by this rule.
Accordingly, we do not anticipate that this rule will raise costs
for the Mexican business community such that Mexico will add
requirements for U.S. exports to Mexico, resulting in added costs for
U.S. businesses and consumers. Furthermore, since nearly all SWPM from
Mexico's border States already meets the entry requirements that will
be imposed by this rule, we do not expect that this rule will result in
costly delays at U.S. ports of entry, inconsistent enforcement by
inspectors, or the use of non-wood substitutes for SWPM. Finally, we do
not agree that a 5-year phase-in of these regulations is necessary. As
previously noted, nearly all SWPM from Mexico's border States already
meets the entry requirements that will be imposed by this rule.
Therefore, we do not expect that this rule will be costly and
disruptive, necessitating a 5-year phase-in of the regulations.
Firewood and Small Quantities of Wood for Personal Use
Comment: APHIS should ensure that any commercial or noncommercial
shipments of mesquite wood for cooking and firewood, and small,
noncommercial shipments of unmanufactured wood for personal cooking or
medicinal purposes, imported into the United States under general
permit from Mexico are: From Mexican border States, inspected for the
presence of dangerous insects, and subject to appropriate remedial
measures if suspicious organisms are found.
Response: We agree that it is important to inspect and determine
the origin of noncommercial shipments of mesquite wood for cooking and
firewood, and small, noncommercial shipments of unmanufactured wood for
personal cooking or medicinal purposes. Accordingly, we have amended
Sec. 319.40-3 in this final rule to indicate that noncommercial
shipments would be subject to inspection and other requirements of
Sec. 319.40-9 and must be accompanied by an importer document or oral
declaration stating that they are derived from trees harvested in
States in Mexico adjacent to the United States border. In the proposed
rule, we acknowledged that it would not be administratively feasible to
require an importer document for such noncommercial shipments. However,
by allowing oral declarations, we anticipate that APHIS will have the
resources to carry out this added requirement. We note that all
shipments are subject to inspection upon entry into the United States
and mitigation if quarantine significant pests are intercepted.
Comment: Diseases and insects can be transported on firewood and
small quantities of wood for personal use. Therefore, APHIS should not
retain provisions to allow such articles from Mexico to enter the
United States under general permit.
Response: As noted in the proposed rule, we do not believe that
firewood and small quantities of unmanufactured wood for personal use
pose a significant pest risk. Firewood does not pose a significant pest
risk because of its limited distribution and consumption near the
United States/Mexico border. Similarly, small, noncommercial packages
of unmanufactured wood to be used for personal cooking or personal
medicinal purposes does not pose a significant pest risk because the
packages are limited in quantity and therefore easily inspected, and
likely will be distributed and consumed near the border.
Wood Chips
Comment: APHIS should establish treatment requirements, such as
steam heat or fumigation, for the phytosanitary treatment of wood chips
from Mexico, as well as wood chips from other countries.
Response: Such treatment requirements are already in place.
Specifically, Sec. 319.40-6(c) of the current regulations contains the
entry requirements, including treatments, for wood chips from all parts
of the world, except for certain places in Asia.
Systems Approach
Comment: APHIS should use a systems approach to mitigate the risk
of introducing dangerous pests into the United States in unmanufactured
wood articles from Mexico. The steps of the approach could include
targeting certain pests, rather than articles, in Mexico; establishing
programs to control the presence of these pests in Mexico; and
cooperating with Mexican authorities to monitor pest outbreaks and to
apply specific measures to prevent the introduction of these pests into
the United States. Such an approach would be beneficial to U.S.
businesses, consumers, and forest resources.
Response: We believe the phytosanitary measures used as entry
requirements for unmanufactured wood articles afford the United States
the appropriate level of protection against plant pests and are the
least restrictive of trade. However, we would consider any specific
suggestions for alternative phytosanitary measures, including a systems
approach, for unmanufactured wood articles.
Environmental Analysis
Comment: APHIS' environmental assessment that accompanied the
proposal omits important information, uses outdated information to
analyze the proposal's effects (including the effects that the methyl
bromide treatment option would have on our environment), and presents
an inadequate comparison of alternatives.
Response: As noted previously, we prepared an EIS titled ``Rule for
the Importation of Unmanufactured Wood Articles From Mexico, With
Consideration for Cumulative Impact of Methyl Bromide Use'' following
the publication of the proposed rule to consider the increase in methyl
bromide use for wood imports from Mexico that could result from the
adoption of the proposed rule. The focus of the EIS is the incremental
contribution of methyl bromide use from the proposed action when added
to other methyl bromide uses for the cumulative impact on the
environment. The EIS discusses alternatives to the proposed rule, the
environmental consequences of methyl bromide on the environment, and
the potential cumulative impact of methyl bromide use associated with
the proposed rule.
Economic Analysis
Comment: It is untrue that the majority of firms likely to be
impacted
[[Page 52414]]
by this rule are located in the southwestern United States.
Unmanufactured wood articles from Mexico can be shipped wherever there
is a U.S. market for them.
Response: In our economic analysis, we did not definitively state
that the majority of small entities likely to be affected would be
located in the southwestern United States, we only presumed that would
be the case. This presumption was based on the geographic proximity of
the southwestern United States to exporting Mexican border States, and
considered the small fraction of the U.S. supply of unmanufactured wood
articles imported from Mexico, and the even smaller percentage
originating in the Mexican border States. If unmanufactured wood
articles from Mexico are shipped throughout the United States, the
effects on small entities in the United States would be so spread out
as to be considered negligible.
Miscellaneous
Comment: APHIS should establish adequate compliance monitoring to
ensure that unmanufactured wood articles from Mexico entering the
United States under permit to be treated later or heat treated prior to
importation are indeed treated and handled in conformance with the
regulations.
Response: We believe the current monitoring program is sufficient
to ensure compliance with the regulations. For wood articles treated
prior to entry, inspectors review treatment documentation at the ports
of entry for compliance with the regulations. For untreated wood
articles, inspectors verify that all applicable requirements in the
regulations have been met and that all required import documentation is
in order before allowing the articles to move to approved processing
facilities. An approved processing facility must enter into a
compliance agreement before it can receive untreated wood articles from
Mexico. These compliance agreements contain stipulations relating to
proper compliance with the regulations. The facilities are inspected
prior to entering into the compliance agreement and undergo random
monitoring visits. All of these provisions are designed to ensure
compliance with the regulations.
Comment: APHIS should describe how kiln drying will provide
adequate protection from pest infestation, particularly fungi.
Response: We are confident that kiln drying will provide sufficient
protection from pest infestation. The effectiveness of dry heat against
wood boring insects is well-documented in the Dry Kiln Operator's
Manual, which is incorporated by reference in the regulations, as well
as in many published articles. Moisture reduction, such as kiln drying,
is also effective for fungi. Since fungi require a moist environment in
which to grow, moisture reduction deprives the fungi of the necessary
wetness to grow while the elevated temperature makes it difficult for
fungal spores to survive. Although it could be argued that heat
penetration is more efficient under moist environments, we believe that
requiring moist heat would cause damage, such as warping, to the wood
being treated.
Comment: Kiln drying capacity in Mexico is very limited. Therefore,
until more kiln drying facilities are built in Mexico, few articles
will be able to be kiln dried there.
Response: Pretreatment of wood articles by kiln drying is not the
only option allowed under the regulations. Heat treatments, including
kiln drying, are allowed to be completed after entry into the United
States. Also, this rule allows methyl bromide fumigation as an option
for imported cross-ties and pine and fir lumber from Mexican States
adjacent to the United States/Mexico border.
Comment: Since previous assumptions of risk levels have been shown
to be in error, it may be time for APHIS to review the risk associated
with Canadian unmanufactured wood articles.
Response: Given the pest risk assessment that found that a
significant pest risk exists in the movement of raw wood material into
the United States from the adjacent States of Mexico, we agree that we
need to determine the pest risk associated with unmanufactured wood
articles from Canada. Accordingly, we have initiated a pest risk
assessment for unmanufactured wood articles from Canada.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule with the
changes discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be significant for the purposes of Executive
Order 12866 and, therefore, has been reviewed by the Office of
Management and Budget.
For this final rule, we have prepared an economic analysis that
provides a cost-benefit analysis as required by Executive Order 12866,
as well as an analysis of the potential economic effects of this rule
on small entities as required by the Regulatory Flexibility Act. The
economic analysis is summarized below. Copies of the full analysis are
available by contacting the person listed under FOR FURTHER INFORMATION
CONTACT.
We are amending the regulations to add restrictions on the
importation of pine and fir logs and lumber, as well as other
unmanufactured wood articles, from the northern border States of
Mexico. This rule requires that these wood articles meet certain
treatment and handling requirements to be eligible for importation into
the United States. This action is necessary to prevent the introduction
into the United States of plant pests, including forest pests, with
unmanufactured wood articles from Mexico.
Specifically, we are amending the regulations as follows:
By limiting the applicability of the general permit in
Sec. 319.40-3 for unmanufactured wood articles from Mexican States
adjacent to the United States/Mexico border to unmanufactured mesquite
wood for cooking, unmanufactured wood for firewood, and small,
noncommercial packages of unmanufactured wood for personal cooking or
personal medicinal purposes.
By making all other unmanufactured wood articles imported
from Mexican States adjacent to the United States/Mexico border subject
to substantially the same entry requirements that apply to those
articles from the rest of Mexico.
By adding methyl bromide fumigation as a treatment option
for debarked pine and fir lumber imports and railroad cross-ties
imported from Mexican States adjacent to the United States/Mexico
border.
Alternatives to the rule would be to not make any changes at all,
prohibit unmanufactured wood articles from Mexican States adjacent to
the United States/Mexico border, or not include methyl bromide
fumigation as a treatment alternative. If the regulations are left
unchanged, pest risks identified in the Forest Service risk assessment
would not be addressed. Risks to U.S. agricultural and forestry
resources would remain at their current unacceptable level. By placing
unmanufactured wood imports from Mexican States adjacent to the United
States/Mexico border under substantially the same phytosanitary
restrictions as the rest of Mexico, the border Mexican States will be
able to continue to export these commodities to the United States.
Prohibition of unmanufactured wood imports from Mexican States
adjacent to
[[Page 52415]]
the United States/Mexican border would be inconsistent with APHIS'
position that effective means of pest risk mitigation are available.
Not including methyl bromide fumigation as a treatment option could
limit unmanufactured wood imports from Mexican States adjacent to the
United States/Mexico border if alternative means of treatment in the
region are of insufficient capacity. Insufficient kiln drying capacity
is possible because unmanufactured wood articles currently enter the
United States from Mexican States adjacent to the United States/Mexico
border under general permit and phytosanitary treatment is not
required. In sum, the amended regulations, in providing a set of
balanced, science-based requirements in response to identified pest
risks, is the preferred alternative.
Approximated percentages of unmanufactured softwood imports that
originate in Mexican States adjacent to the United States/Mexico border
are used to evaluate the impact of the regulatory amendments. In its
pest risk assessment, the Forest Service used pine and fir pests as
surrogates for determining overall pest risks. Similarly, this analysis
focuses on softwood imports, since they comprise over 90 percent, by
value, of lumber and wood molding imported by the United States from
Mexico and globally.
Molding is the most significant of softwood imports from Mexico,
comprising over 60 percent. This commodity group includes both
manufactured and unmanufactured articles. Available statistics do not
allow for the two categories of softwood molding imports to be
distinguished. Since only unmanufactured wood articles are affected by
this rule, two analyses are performed, one including and one excluding
softwood molding.
We approximate that between 35 and 40 percent, by value, of
softwood articles imported from Mexico originate in Mexican States
adjacent to the United States/Mexico border. When molding is not
included in the analysis, the total annual value of articles
originating in Mexican States adjacent to the United States/Mexico
border is about $19.3 million. When softwood molding is included, the
total value is about $53.9 million.
The significance of these values can be put in perspective by
comparing them to overall U.S. import and supply levels. Unmanufactured
wood articles include a variety of commodities, but the main U.S.
import, softwood lumber, provides a reasonable basis for comparison.
Global imports contribute about one-fourth of the U.S. softwood lumber
supply, and imports from Mexico comprise about 0.8 percent of total
imports. Thus, Mexico's share of the U.S. supply is only about 0.2
percent. Given that about 35 to 40 percent of Mexico's softwood lumber
shipments to the United States originates in Mexican States adjacent to
the United States/Mexico border, shipments from these border Mexican
States represent about 0.3 percent of softwood lumber imports by the
United States, and less than 0.1 percent of U.S. supply.
Including softwood molding articles in the analysis increases the
level of imports from Mexico (and the approximated import level from
Mexican States adjacent to the United States/Mexico border) by a factor
of about 2.8. Mexico's share of U.S. imports of softwood lumber and
softwood molding is about 2.1 percent. Shipments from Mexican States
adjacent to the United States/Mexico border of these principal softwood
articles represent about 0.8 percent of U.S. imports (35 to 40 percent
of 2.1 percent). Since at least some softwood molding articles are
manufactured, this percentage exceeds the amount of softwood imports
affected by the regulatory amendments, but serves here as an upper
bound. Thus, between 0.3 percent and 0.8 percent of U.S. imports of
unmanufactured wood articles originate in Mexican States adjacent to
the United States/Mexico border.
The most common method used to treat unmanufactured wood articles
entering the United States is kiln drying. The cost of kiln drying,
based on recent prices for green and kiln-dried framing lumber in the
United States, ranges between $23 and $30 per thousand board feet. This
cost range is equivalent to between $9.75 and $12.71 per cubic meter
(m\3\). Methyl bromide fumigation costs in the United States average
about $400 to $600 per standard container. This range in fumigation
costs for lumber shipments, assuming containers are loaded 80 to 90
percent of capacity, converts to $6.13 to $10.34 per m\3\ of lumber.
Kiln drying and methyl bromide fumigation costs in Mexico may
differ from those in the United States, but any difference in the
relative costs of the two treatment methods is not thought to be
significant. APHIS does not know the extent to which either method will
be used to treat unmanufactured wood articles imported from Mexican
States adjacent to the United States/Mexico border. The decision will
depend not only on relative costs, but also on the value added through
kiln drying and on the availability of kiln drying capacity in the
border Mexican States.
In the United States, kiln-dried softwood lumber is commercially
preferred, and temperatures attained in the kiln drying process exceed
those required for heat treatment with moisture reduction. Kiln drying
of unmanufactured wood imports thus serves to increase its commercial
value while satisfying phytosanitary treatment requirements. Importers
are likely to choose kiln drying as the preferred treatment method when
treatment costs are similar.
The advantage of kiln drying over methyl bromide fumigation
presupposes sufficient kiln drying capacity within the region. Kiln
drying facilities are not as likely to be found in Mexican States
adjacent to the United States/Mexico border as they are in other
Mexican States where phytosanitary treatment of unmanufactured wood
articles exported to the United States has been required. Pine and fir
lumber imports from Mexican States adjacent to the United States/Mexico
border would be constrained if there is insufficient kiln drying
capacity and if heat treatments with or without moisture reduction were
the only phytosanitary treatment alternatives (not considering other
options of using kiln drying facilities elsewhere in Mexico or in the
United States within 30 days following importation). Inclusion of
methyl bromide fumigation as a treatment alternative lessens the
possibility that pine and fir lumber imports from Mexican States
adjacent to the United States/Mexico border may be impeded due to
insufficient kiln drying capacity in the region, as firms adjust to the
new treatment requirements.
Economic effects of the treatment requirements for U.S. importers
will be minor, given the small quantity of unmanufactured wood articles
imported from Mexican States adjacent to the United States/Mexico
border and the minor costs of treatment. The value of unmanufactured
softwood articles imported annually from Mexican States adjacent to the
United States/Mexico border ranges between $19.3 million and $53.9
million, depending on the portion of softwood molding that is
unmanufactured. These values represent from 0.3 to 0.8 percent of the
value of all U.S. imports of these articles.
Costs of kiln drying and methyl bromide fumigation are small when
compared to the value of the wood articles treated. The average price
of softwood lumber imported from Mexico in 1999 and 2000 was about $343
per m 3. Methyl bromide fumigation costs of about $6 to $10
per m 3 and kiln drying
[[Page 52416]]
costs of about $10 to $13 per m 3 are equivalent to about 2
to 4 percent of this import price. Assuming that treatment costs are
equal to 4 percent of the value of the commodities imported and that
importers bear the full cost of treatment, the combined treatment cost
for U.S. importers of unmanufactured wood articles from Mexican States
adjacent to the United States/Mexico border would total between
$773,000 and $2,157,000 per year, depending on the percentage of wood
molding imports that is unmanufactured.
This expenditure is an acceptable cost when one considers possible
adverse impacts for the Nation's agriculture and forests if
unmanufactured wood articles are allowed to continue to enter from
Mexican States adjacent to the United States/Mexico border under
general permit. The possibility of pest introductions that could cost
the United States tens of millions of dollars a year necessitates that
these imports be subject to substantially the same mitigation measures
as are required of unmanufactured wood articles imported from the rest
of Mexico.
As a part of the rulemaking process, APHIS evaluates whether new
regulations are likely to have a significant economic impact on a
substantial number of small entities. Entities that import
unmanufactured wood articles that originate in Mexican States adjacent
to the United States/Mexico border will be directly affected. The
impact will be the cost of newly required phytosanitary treatments.
Principal industries affected by the new regulations will be (by
North American Industry Classification System category): Sawmills and
Wood Preservation; Lumber, Plywood, Millwork, and Wood Panel Merchant
Wholesalers; Other Miscellaneous Durable Goods Merchant Wholesalers;
and Construction of Buildings. The Small Business Administration has
established criteria for determining whether an establishment may be
considered small with respect to the Regulatory Flexibility Act. Nearly
all establishments that will be affected are small entities.
The impact of additional costs of treatment for U.S. small entities
will be minor, given that only between 0.3 and 0.8 percent of
unmanufactured wood articles imported by the United States come from
Mexican States adjacent to the United States/Mexico border, and costs
of treatment are equal to between 2 and 4 percent of the value of the
imported articles. Moreover, commercial benefits of kiln drying will be
realized when that treatment alternative is used. A substantial number
of small entities will not be significantly affected by the regulatory
amendments. Small as well as large U.S. entities will benefit from
reduced risks of pest introduction.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Use of Methyl Bromide
The United States is fully committed to the objectives of the
Montreal Protocol, including the reduction and ultimately the
elimination of reliance on methyl bromide for quarantine and pre-
shipment uses in a manner that is consistent with the safeguarding of
U.S. agriculture and ecosystems. APHIS reviews its methyl bromide
policies and their effect on the environment in accordance with the
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
et seq.) and Decision XI/13 (paragraph 5) of the 11th Meeting of the
Parties to the Montreal Protocol, which calls on the Parties to review
their ``national plant, animal, environmental, health, and stored
product regulations with a view to removing the requirement for the use
of methyl bromide for quarantine and pre-shipment where technically and
economically feasible alternatives exist.''
The United States Government encourages methods that do not use
methyl bromide to meet phytosanitary standards where alternatives are
deemed to be technically and economically feasible. In some
circumstances, however, methyl bromide continues to be the only
technically and economically feasible treatment against specific
quarantine pests. In addition, in accordance with Montreal Protocol
Decision XI/13 (paragraph 7), APHIS is committed to promoting and
employing gas recapture technology and other methods whenever possible
to minimize harm to the environment caused by methyl bromide emissions.
National Environmental Policy Act
On September 20, 2002, the U.S. Environmental Protection Agency
(EPA) published in the Federal Register (67 FR 59284-59285) a notice of
availability of the final environmental impact statement (EIS) titled
``Rule for the Importation of Unmanufactured Wood Articles From Mexico,
With Consideration for Cumulative Impact of Methyl Bromide Use.'' The
EIS considers the incremental increase in methyl bromide use for wood
imports from Mexico that could result from our adoption of the proposed
rule as a final rule.\5\ The EIS was prepared in accordance with: (1)
The National Environmental Policy Act of 1969 (NEPA), as amended (42
U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental
Quality for implementing the procedural provisions of NEPA (40 CFR
parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part
1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).
---------------------------------------------------------------------------
\5\ Copies of the EIS are available for public inspection at
USDA, room 1141, South Building, 14th Street and Independence Avenue
SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through
Friday, except holidays. Persons wishing to inspect copies are
requested to call ahead on (202) 690-2817 to facilitate entry into
the reading room. In addition, the EIS may be viewed on the Internet
at http://www.aphis.usda.gov/ppd/es/mb.html, and copies may be
obtained by writing to the individual listed under FOR FURTHER
INFORMATION CONTACT.
---------------------------------------------------------------------------
Pursuant to the implementing regulations for NEPA, in cases
requiring an EIS, APHIS must prepare a record of decision at the time
of its decision. This final rule constitutes the required record of
decision for the EIS.
The NEPA implementing regulations require that a record of decision
state what decision is being made; identify alternatives considered in
the environmental impact statement process; specify the environmentally
preferable alternative; discuss preferences based on relevant factors--
economic and technical considerations, as well as national policy
considerations, where applicable; and state how all of the factors
discussed entered into the decision. In addition, the record of
decision must indicate whether the ultimate decision has been designed
to avoid or minimize environmental harm and, if not, why not.
The Decision
APHIS has decided, in this final rule, to amend its regulations to
provide that pine and fir logs and lumber, as well as other
unmanufactured wood articles, imported into the United States from
[[Page 52417]]
Mexican States adjacent to the United States/Mexico border will be
subject to substantially the same requirements as Mexican States not
adjacent to the United States. Methyl bromide fumigation has been added
as an optional treatment for railroad cross-ties and pine and fir
lumber from Mexican States adjacent to the United States/Mexico border.
Alternatives Considered in the Impact Statement Process
The EIS, which focuses mainly on cumulative effects of methyl
bromide use, considers a reasonable range of alternatives, including:
(1) No action, essentially maintaining the exemption from treatment
requirements for importation of unmanufactured wood articles from
Mexican States that border the United States, (2) removal of the
Mexican border State exemption, requiring the same treatments for
similar commodities as non-border Mexican States, (3) permitting use of
methyl bromide as a treatment option for railroad cross-ties and pine
and fir lumber from Mexico, (4) a combination of alternatives (2) and
(3), above, and (5) prohibiting the importation of unmanufactured wood
articles from Mexico.
Environmentally Preferable Alternative
The environmentally preferable alternative would be to prohibit
importation of unmanufactured wood articles from Mexico, which would
virtually eliminate all associated pest risks, as well as the need to
use methyl bromide. However, APHIS believes that this alternative would
be more trade restrictive than necessary to prevent the introduction
into the United States of plant pests from Mexico.
Preferences Among Alternatives
There is a preference for the approach taken in this final rule,
which we adopt herein (alternative (4), above). Among all of the
alternatives considered, APHIS believes that this alternative best
satisfies all of our international and domestic obligations, including
the North American Free Trade Agreement (NAFTA), the Montreal Protocol,
the Plant Protection Act (PPA), NEPA, and the Clean Air Act.
Factors in the Decision
APHIS is guided by the PPA, under which the detection, control,
eradication, suppression, prevention, and retardation of the spread of
plant pests or noxious weeds have been determined by Congress to be
necessary and appropriate for the protection of the agriculture,
environment, and economy of the United States. The PPA also has been
designed to facilitate exports, imports, and interstate commerce in
agricultural products and other commodities. In order to achieve these
objectives, use of pesticides, including methyl bromide, has often been
prescribed.
Methyl bromide is an ozone depleting substance that is strictly
regulated under the Montreal Protocol and the Clean Air Act. While the
goal of these authorities and agreements is to limit and ultimately
phase out all ozone depleting substances, certain exemptions and
exclusions are recognized, including an exemption for methyl bromide
use for plant quarantine and pre-shipment purposes, including the
purposes provided for in this final rule. The exemption is not
unconditional, however. The United States, like other signatories to
the Montreal Protocol, must review its national plant health
regulations with a view to removing the requirement for the use of
methyl bromide for quarantine and preshipment application where
technically and economically feasible alternatives exist.
By authorizing and encouraging limited use of methyl bromide--only
so much as is necessary to meet the mandates of the PPA--for imports
from Mexican border States, the Agency is achieving the purposes of its
enabling legislation, while promoting the goals of the Montreal
Protocol, the Clean Air Act, NEPA, and other applicable authorities or
agreements.
Avoid or Minimize Environmental Harm
The environment can be harmed by using methyl bromide, in which
case recovery of the ozone layer may be delayed, or by not using methyl
bromide, in which case agriculture and forested ecosystems, among other
aspects of environmental quality, could be devastated. By assuring that
use of methyl bromide is limited only to those situations in which
substitute materials are not available and only in those amounts
necessary to eliminate pest threats to agriculture and ecosystems, the
Agency strikes a proper balance in its efforts to minimize
environmental harm. APHIS is committed to monitoring these efforts
through the NEPA process, and otherwise. (See, for example, the final
EIS titled ``Importation of Solid Wood Packing Material, Final
Environmental Impact Statement'' for which a notice of availability was
published in the Federal Register (68 FR 54900-54901) on September 19,
2003.) Furthermore, where appropriate, measures--gas recapture
technology, for example--to minimize harm to environmental quality
caused by methyl bromide emissions have been, and will continue to be,
put in place by APHIS.
Other
Methyl bromide used in quarantine applications prescribed by the
United States contributes just a small fraction of total anthropogenic
bromine released into the atmosphere. Nevertheless, the Montreal
Protocol is action-forcing in the sense that signatories must review
their national plant health regulations with a view to finding
alternatives to exempted uses of methyl bromide. The EPA has also
cautioned that, regardless of the incremental contribution, it is
important to recognize that any additional methyl bromide releases
would delay recovery of the ozone layer.
A considerable amount of research and development on methyl bromide
alternatives has been conducted within the USDA and continues today.
Under the Clean Air Act, EPA has also established a program to identify
alternatives to ozone depleting substances, including methyl bromide.
But EPA's listing of an acceptable alternative does not always
adequately address its suitability for a particular use. We must not
put agriculture and ecosystems at risk based on unproven technology.
APHIS is firmly committed to the objectives of the Montreal
Protocol to reduce and ultimately eliminate reliance on methyl bromide
for quarantine uses, consistent with its responsibilities to safeguard
this country's agriculture and ecosystems. Searching for cost-effective
alternatives to major quarantine and pre-shipment uses of methyl
bromide, then, is an Agency--indeed, a worldwide--priority. In order to
achieve the twin objectives of reducing and ultimately eliminating
methyl bromide emissions while safeguarding agriculture and ecosystems
in the most expeditious, cost-effective way possible, research,
developmental, and testing efforts within the Federal Government must
be closely coordinated. APHIS is determined to cooperate actively with
the Agricultural Research Service, EPA, the Office of Management and
Budget, and others involved in this effort to find effective
alternatives to quarantine methyl bromide uses.
In a letter dated October 25, 2002, EPA stated that it has no
objections to the alternative selected by APHIS. Copies of the EPA
letter may be obtained from the person listed under FOR FURTHER
INFORMATION CONTACT.
[[Page 52418]]
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this rule have been approved by the Office of Management
and Budget (OMB) under OMB control number 0579-0049.
Government Paperwork Elimination Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the Government Paperwork Elimination Act (GPEA), which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. For information pertinent to GPEA
compliance related to this rule, please contact Mrs. Celeste Sickles,
APHIS' Information Collection Coordinator, at (301) 734-7477.
List of Subjects in 7 CFR Part 319
Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock,
Plant diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Rice, Vegetables.
0
Accordingly, we are amending 7 CFR part 319 as follows:
PART 319-FOREIGN QUARANTINE NOTICES
0
1. The authority citation for part 319 continues to read as follows:
Authority: 7 U.S.C. 450 and 7701-7772; 21 U.S.C. 136 and 136a; 7
CFR 2.22, 2.80, and 371.3.
Sec. 319.40-2 [Amended]
0
2. Section 319.40-2 is amended by adding, at the end of the section,
the following:
``(Approved by the Office of Management and Budget under control
number 0579-0049)''.
0
3. Section 319.40-3 is amended as follows:
0
a. By revising paragraph (a) to read as set forth below.
0
b. By adding, at the end of the section, the following:
``(Approved by the Office of Management and Budget under control
number 0579-0049)''.
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.
(a) Canada and Mexico. (1) The following articles may be imported
into the United States under general permit:
(i) From Canada: Regulated articles, other than regulated articles
of the subfamilies Aurantioideae, Rutoideae, and Toddalioideae of the
botanical family Rutaceae; and
(ii) From States in Mexico adjacent to the United States:
Commercial and noncommercial shipments of mesquite wood for cooking;
commercial and noncommercial shipments of unmanufactured wood for
firewood; and small, noncommercial packages of unmanufactured wood for
personal cooking or personal medicinal purposes.
(2) Commercial shipments allowed in paragraph (a)(1) of this
section are subject to the inspection and other requirements in Sec.
319.40-9 and must be accompanied by an importer document stating that
they are derived from trees harvested in Canada or States in Mexico
adjacent to the United States border.
(3) Noncommercial shipments allowed in paragraph (a)(1) of this
section are subject to inspection and other requirements of Sec.
319.40-9 and must be accompanied by an importer document or oral
declaration stating that they are derived from trees harvested in
Canada or States in Mexico adjacent to the United States border.
* * * * *
Sec. 319.40-4 [Amended]
0
4. Section 319.40-4 is amended by adding, at the end of the section,
the following:
``(Approved by the Office of Management and Budget under control
number 0579-0049)''.
0
5. Section 319.40-5 is amended as follows:
0
a. By revising paragraph (f) to read as set forth below.
0
b. By adding a new paragraph (l) to read as set forth below.
0
c. By adding, at the end of the section, the following:
``(Approved by the Office of Management and Budget under control
numbers 0579-0049 and 0579-0135)''.
Sec. 319.40-5 Importation and entry requirements for specified
articles.
* * * * *
(f) Cross-ties (railroad ties) from all places, except places in
Asia that are east of 60[deg] East Longitude and north of the Tropic of
Cancer, may be imported if completely free of bark and accompanied by
an importer document stating that the cross-ties will be pressure
treated with a preservative within 30 days following the date of
importation at a U.S. facility under compliance agreement. Cross-ties
(railroad ties) may also be imported if heat treated in accordance with
Sec. 319.40-7(c).
* * * * *
(l) Cross-ties (railroad ties) and pine and fir lumber from Mexican
States adjacent to the United States/Mexico border.\3\ Cross-ties
(railroad ties) 8 inches or less at maximum thickness and lumber
derived from pine and fir may be imported from Mexican States adjacent
to the United States/Mexico border into the United States if they:
---------------------------------------------------------------------------
\3\ Cross-ties (railroad ties) may also be imported in
accordance with paragraph (f) of this section, or may be imported if
heat treated in accordance with Sec. 319.40-7(c).
---------------------------------------------------------------------------
(1) Originate from Mexican States adjacent to the United States/
Mexico border;
(2) Are 100 percent free of bark; and
(3) Are fumigated prior to arrival in the United States. The
regulated article and the ambient air must be at a temperature of 5
[deg]C or above throughout fumigation. The fumigation must be conducted
using schedule T312 contained in the Treatment Manual. In lieu of the
schedule T312 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.
Sec. 319.40-6 [Amended]
0
6. Section 319.40-6 is amended by adding, at the end of the section,
the following:
``(Approved by the Office of Management and Budget under control
number 0579-0049)''.
Sec. 319.40-7 [Amended]
0
7. Section 319.40-7 is amended by adding, at the end of the section,
the following:
``(Approved by the Office of Management and Budget under control
number 0579-0049)''.
Sec. 319.40-8 [Amended]
0
8. Section 319.40-8 is amended by adding, at the end of the section,
the following:
``(Approved by the Office of Management and Budget under control
number 0579-0049)''.
Sec. 319.40-9 [Amended]
0
9. Section 319.40-9 is amended as follows:
0
a. By redesignating footnotes 3 and 4 as footnotes 4 and 5,
respectively.
0
b. By adding, at the end of the section, the following:
``(Approved by the Office of Management and Budget under control
number 0579-0049)''.
Sec. 319.40-10 [Amended]
0
10. In Sec. 319.40-10, footnote 5 is redesignated as footnote 6.
[[Page 52419]]
Done in Washington, DC, this 20th day of August 2004.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 04-19519 Filed 8-25-04; 8:45 am]
BILLING CODE 3410-34-P