[Federal Register Volume 69, Number 179 (Thursday, September 16, 2004)]
[Rules and Regulations]
[Pages 55719-55733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20763]
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Rules and Regulations
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Federal Register / Vol. 69, No. 179 / Thursday, September 16, 2004 /
Rules and Regulations
[[Page 55719]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 02-032-3]
RIN 0579-AB48
Importation of Wood Packaging Material
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending 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. The standard calls for wood packaging material to be
either heat treated or fumigated with methyl bromide, in accordance
with the Guidelines, and marked with an approved international mark
certifying treatment. This change will affect all persons using wood
packaging material in connection with importing goods into the United
States.
EFFECTIVE DATE: September 16, 2005.
FOR FURTHER INFORMATION CONTACT: Mr. William Aley, Senior Import
Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700
River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-5057.
SUPPLEMENTARY INFORMATION:
Background
Logs, lumber, and other unmanufactured wood articles imported into
the United States pose a significant hazard of introducing plant pests,
including pathogens, detrimental to agriculture and to natural,
cultivated, and urban forest resources. The regulations in 7 CFR
319.40-1 through 319.40-11 (referred to below as the regulations)
contain provisions to mitigate plant pest risk presented by the
importation of logs, lumber, or other unmanufactured wood articles.
The regulations restrict the importation of many types of wood
articles, including wooden packaging material such as pallets, crates,
boxes, and pieces of wood used to support or brace cargo. The
regulations currently refer to these types of wood packaging material
as solid wood packing material (SWPM), defined as ``[w]ood packing
materials other than loose wood packing materials, used or for use with
cargo to prevent damage, including, but not limited to, dunnage,
crating, pallets, packing blocks, drums, cases, and skids.''
Introductions into the United States of exotic plant pests such as the
pine shoot beetle Tomicus piniperda (Scolytidae) and the Asian
longhorned beetle Anaplophora glabripennis (Cerambycidae) have been
linked to the importation of SWPM. These and other plant pests that are
carried by some imported SWPM pose a serious threat to U.S. agriculture
and to natural, cultivated, and urban forests.
Beyond the threat to the United States, the introduction of pests
associated with SWPM is a worldwide problem. Because SWPM is very often
reused, recycled or remanufactured, the true origin of any piece of
SWPM is difficult to determine and thus its phytosanitary status cannot
be ascertained. This often precludes national plant protection
organizations from conducting useful specific risk analyses focused on
the pests associated with SWPM of a particular type or place of origin,
and imposing particular mitigation measures based on the results of
such analysis. For this reason, there is a need to develop globally
accepted measures that may be applied to SWPM by all countries to
practically eliminate the risk for most quarantine pests and
significantly reduce the risk from other pests that may be associated
with the SWPM. In the case of phytosanitary standards, the
international standard-setting organization is the International Plant
Protection Convention (IPPC).
In a proposed rule published in the Federal Register on May 20,
2003 (68 FR 27480-27491; Docket No. 02-032-2), the Animal and Plant
Health Inspection Service (APHIS) proposed to amend the regulations to
decrease the risk of SWPM introducing plant pests into the United
States by adopting the international phytosanitary standard \1\ for
wood packaging material (referred to below as the IPPC Guidelines) that
was approved by the IPPC on March 15, 2002. We proposed to apply the
standard to wood packaging material from all places, including China,
and to remove the special provisions for wood packaging material from
China in 7 CFR 319.40-5(g) through (k).
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\1\ ``International Standards for Phytosanitary Measures:
Guidelines for Regulating Wood Packaging Material in International
Trade,'' Secretariat of the International Plant Protection
Convention, Food and Agriculture Organization of the United Nations,
Rome: 2002.
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The IPPC Guidelines were developed after the IPPC determined that
worldwide, the movement of SWPM made of unprocessed raw wood is a
pathway for the introduction and spread of a variety of pests (IPPC
Guidelines, p. 5). The IPPC Guidelines list the major categories of
these pests, and establish a heat treatment and a fumigation treatment
determined to be effective against them (IPPC Guidelines, p. 10). We
proposed to adopt the IPPC Guidelines because they represent the
current international standard determined in 2002 to be necessary and
effective for controlling pests in SWPM. The need to adopt the IPPC
Guidelines is further supported by analysis of pest interceptions at
U.S. ports that show an increase in dangerous pests associated with
certain SWPM. This increase in pests was found in SWPM that does not
meet the IPPC Guidelines (e.g., SWPM from everywhere except China).
There has been a decrease in pests associated with SWPM material from
China since we began requiring that material be treated prior to
importation.
Another reason to adopt the IPPC Guidelines at this time is that
adopting them would simplify and standardize trade requirements. China,
Canada, the European Union, and many other countries are preparing to
implement the IPPC Guidelines requirements. Given the difficulty of
identifying the source of SWPM and the recycling of SWPM in trade,
successful reduction of the pest risk posed by SWPM requires
[[Page 55720]]
all trading partners to take action on a similar timeline.
Furthermore, adopting a uniform international standard means that
U.S. companies will not need to comply with one set of SWPM
requirements for goods exported from the United States and another set
of requirements for goods imported into the United States. Companies
engaged in both import and export would have particular difficulties in
ensuring that their SWPM supply chain is sorted and routed to comply
with differing requirements for different destinations. After this
final rule takes effect, these companies will be able to use SWPM that
complies with the Guidelines for both import and export purposes,
leveling the trade playing field with regard to SWPM. Using SWPM that
has been treated and marked in accordance with the Guidelines will also
reduce the practice, common in trade today, of re-treating SWPM
immediately prior to its reuse to assure the receiving country that
treated SWPM is used with a shipment. This reduction in re-treatment
will reduce costs to importers and procedural burdens for national
plant protection agencies, and will also reduce unnecessary emissions
of methyl bromide associated with such unnecessary re-treatment.
We accepted comments on the proposed rule for 60 days, ending July
21, 2003. We also accepted comments at three public hearings held in
Seattle, WA, on June 23, 2003; in Long Beach, CA, on June 25, 2003; and
in Washington, DC, on June 27, 2003. During the comment period we
received approximately 970 comments on the proposal, including
approximately 905 slight variants of a single e-mail form letter. The
issues raised in these comments are discussed below.
As a result of our review of comments, we have decided to make the
following changes from the proposal in this final rule:
We are changing the term ``solid wood packing material''
to ``wood packaging material'' throughout the regulations; and
We are excluding from the definition of wood packaging
material, and thereby excluding from treatment requirements, pieces of
wood that are less than 6 mm (0.24 in) in any dimension, because pieces
of wood of this size are too thin to present any significant pest risk.
Comments have also led APHIS to make some changes in our plans and
schedule for implementing the final rule. No changes to the text of the
rule were necessary in response to these comments. Changes we made to
the rule and to our implementation plans are discussed below in detail.
Summary and Analysis of Comments
More than 95 percent of the comments applauded the intent of APHIS
to protect United States forest and agricultural resources against the
danger represented by pests associated with wood packaging material.
However, the same commenters were concerned that the proposed rule
would not adequately protect our forests from plant pests like the
Asian longhorned beetle and were concerned that the proposal would
cause other harm to the environment, namely increased depletion of the
ozone layer due to use of methyl bromide as a fumigant. These
commenters urged APHIS not to adopt the proposed rule, but to look for
alternatives that will fully protect the United States from wood-borne
invasive species while not sacrificing the ozone layer. These
commenters suggested that one option would be to phase out the use of
wood packaging material and replace it with manufactured wood and
plastic crates and pallets, which the commenters suggested would be
free of pest dangers and could be reused for a long time.
A number of commenters supported adoption of the IPPC Guidelines,
but suggested a variety of exemptions for particular articles, or
modifications of import clearance procedures, in order to minimize
adverse effects of implementing the IPPC Guidelines. Several commenters
also suggested that the regulation should be implemented on a delayed
basis, or on a scheduled phase-in with several incremental levels, in
order to give importers and other businesses time to adjust to the new
requirements.
Several commenters made comments about the effectiveness or
availability of the fumigation and heat treatments contained in the
IPPC Guidelines, or suggested alternative treatments.
Several commenters addressed the international standard mark that
we proposed should be placed on every piece of wood packaging material
that has been treated in accordance with the regulations. Some of these
commenters suggested that it was not practical to apply the mark to all
packaging materials, especially materials such as dunnage that are
specially cut to support cargo.
APHIS has carefully considered all the comments, suggestions,
requests for clarification, and concerns raised by commenters. Several
modifications have been made in this final rule in response to the
comments. In the next section we provide detailed responses to the
issues raised by commenters, and explain the modifications made in
response to these comments.
Terminology
Comment: APHIS regulations refer to the materials being regulated
as solid wood packing materials (SWPM), but the IPPC Guidelines uses
the term wood packaging material (WPM). It would be less confusing if
APHIS used the term wood packaging material, since this is the
preferred term in international commerce and in the IPPC Guidelines
that many other countries are adopting.
Response: We agree, and throughout our regulations we are changing
the term solid wood packing materials (SWPM) to wood packaging material
(WPM).
In the proposal, APHIS did not use the term ``wood packaging
material'' for two reasons. Our existing regulations have used the
alternate term ``solid wood packing materials'' for more than 8 years,
and persons applying our regulations are familiar with the term. Also,
in the IPPC Guidelines the term wood packaging material is defined as
``Wood or wood products (excluding paper products) used in supporting,
protecting or carrying a commodity (includes dunnage).'' This
definition is broader than the APHIS term solid wood packing material.
WPM as defined by the IPPC includes manufactured wood such as plywood,
veneer, and fiberboard, as well as loose wood materials such as
shavings and excelsior. The IPPC Guidelines then distinguish between
types of WPM that should be regulated because they present a risk
(e.g., raw wood pallets and dunnage), and types that should not be
regulated because they present little risk (e.g., manufactured wood and
shavings).
We thought this approach was ungainly when used in regulations, and
that it would be better to use a different term (SWPM) that applied
only to the types of wooden materials used in packing that we wanted to
regulate. Upon further consideration, we agree that the benefits of
using the term WPM outweigh the advantages of using the term SWPM.
However, while the definition of WPM in our regulations will match the
definition used in the IPPC Guidelines, we will also add a definition
of regulated wood packaging material. The definition of this new term
includes only the types of WPM we consider to be regulated articles.
The new definition of regulated WPM closely resembles our current
definition of SWPM, and reads as follows: ``Wood packing materials
other than manufactured wood materials, loose
[[Page 55721]]
wood packing materials, and wood pieces less than 6 mm (0.24 in) thick
in any dimension, that are used or that are for use with cargo to
prevent damage, including, but not limited to, dunnage, crating,
pallets, packing blocks, drums, cases, and skids.'' Therefore, in our
regulations WPM refers to the type of articles covered by the IPPC
Guidelines definition of WPM, and regulated WPM refers to the type of
articles that the IPPC Guidelines refer to in their section on
``Regulated Wood Packaging Material.''
This definition of regulated WPM differs from the existing
definition of SWPM in that it explicitly excludes manufactured wood
materials, such as fiber board, plywood, whisky and wine barrels, and
veneer. APHIS has never regulated such materials, but the definition of
SWPM did not make that clear. The definition of regulated WPM also
excludes pieces of wood that are less than 6 mm in any dimension.
Pieces of wood of this size are excluded because they are too thin to
present any significant pest risk, and because the IPPC Guidelines
suggest the 6 mm threshold for excluding wood pieces from regulation.
This exclusion will exempt from regulation many types of small boxes
used to ship fruit or other articles.
Phasing Out WPM in Favor of Manufactured Materials
Comment: APHIS should look for alternatives that will fully protect
the United States from wood-borne invasive species while not
sacrificing the ozone layer by encouraging methyl bromide fumigation.
One such option would be to phase out the use of WPM and replace it
with manufactured wood and plastic crates and pallets, which would be
free of pest dangers and could be re-used for a long time.
Response: APHIS has considered many alternatives to diminish pest
risk from WPM. Many commenters have suggested that APHIS reduce
worldwide methyl bromide emissions by relying instead on one of two
pest reduction alternatives, either requiring heat treatment of WPM, or
banning use of unmanufactured WPM and requiring use of manufactured
wood, plastic, metal, or other alternative packing materials.
In keeping with our commitments to the objectives of the Montreal
Protocol, APHIS actively cooperates with other agencies and
institutions to identify and validate technically and economically
feasible alternatives to methyl bromide. Also, as the agency
responsible for representing the United States to the International
Plant Protection Convention with respect to the international
phytosanitary standards established by the IPPC, APHIS will work
closely with current initiatives within the IPPC to develop alternative
treatments to methyl bromide and will strive to have any validated
treatments incorporated into future revisions of the IPPC Guidelines.
APHIS will also be working independently to evaluate and consider
treatment alternatives to methyl bromide, and communicate this
information through the proper channels in IPPC for technical review
and approval. Whenever either APHIS independent evaluations or
revisions to IPPC Guidelines make such validated alternatives
available, APHIS will make the necessary changes to its quarantine
regulations and procedures to provide for their use.
A comprehensive review of the IPPC Guidelines is due to be
initiated under the IPPC by 2007. The United States intends to
participate in, and bring to bear our technical and research expertise
on, this review within the IPPC to ensure alternatives are continually
examined and given due consideration. The IPPC Guidelines itself
recognizes that phosphine and CPI methods are particularly worth
revisiting with respect to the availability of data related to the
efficacy of these methods in treating target pests for wood packaging
material.
Methyl bromide as a class I ozone-depleting substance has been
found to cause or contribute significantly to harmful effects on the
stratospheric ozone layer and has adverse atmospheric effects
substantially greater than those associated with the alternatives of
heat treatment of WPM or use of alternative packing materials. Whenever
APHIS advises on treatment alternatives, we encourage use of heat
treatment or alternative packing materials in preference to methyl
bromide fumigation. At present, it appears that manufacturers in many
countries, including the European Union and the United States, prefer
to use only heat treatment for the WPM they produce. Trends suggest
substitution of heat treatment for methyl bromide will continue to
grow. However, during development of the IPPC Guidelines some
developing nations advised against allowing only heat treatment and not
methyl bromide as an allowed treatment on the grounds that the higher
cost of heat treatment makes it economically unfeasible for these
countries at this time.
Regarding alternative packing materials, the final environmental
impact statement (FEIS) concluded (pp. 79-80) that these would achieve
the greatest possible reduction in risk from the introduction of pests
and pathogens associated with WPM. While heat treating or fumigating
WPM are also both highly efficacious in controlling risk, use of
alternative packing materials reduces risk even more. The manufacture
and use of alternative packing materials also generates only minimal
amounts of ozone-depleting chemicals. However, fumigation of WPM with
methyl bromide and heat treatment of WPM are currently the most
economical means of producing safe packing materials. Alternative
packing materials cost much more. In addition to a cost that is
currently beyond the reach of exporters in many developing countries,
recovery and reuse of alternative packing materials requires a more
complex infrastructure than is required by reuse of WPM. Finally, there
are some costs associated with the durability of alternative materials.
While many metal, plastic, and manufactured wood alternatives are very
durable and can be used for more shipments than typical WPM, some
alternative packing materials, such as particle board, are limited in
their ability to withstand the conditions that routinely occur during
transport.
It is difficult to quantitatively compare the costs of requiring
alternative packing materials to the benefits that would accrue from
their use. The FEIS and the economic analysis for this rule do estimate
costs to exporters of using substitute packing materials and compare
these to the cost of heat treatment or methyl bromide fumigation.
However, we are unable to realistically estimate the benefits that
could result using substitute materials. None of the commenters
suggested methods or provided data to do such analysis.
APHIS will continue to encourage use of alternative packing
materials by exporters for whom they are economically feasible. There
is incentive for the shipping industry to contain costs of packing
material, and by requiring treatment of WPM, this rule will slightly
increase the average cost of WPM. This increase in the cost of WPM may
actually provide incentive to some exporters to seek cost-effective
alternatives such as corrugated board, veneer, oriented strand board,
and plywood.
In choosing among alternatives, APHIS looks for choices that are
both technically and economically feasible. Since treated WPM does
provide an acceptable level of protection against pests, we believe
that it is not necessary to exclude unmanufactured wood from use as
packaging material for imported
[[Page 55722]]
cargo. Properly treated WPM is a safe packaging material that can be
reused many times and that causes minimal environmental impacts when
disposed of or recycled.
On the other hand, prohibiting the use of unmanufactured wood as a
packaging material would have significant negative consequences in
economic and environmental arenas. Wood is often the only packaging
material readily and cheaply available (either through domestic
production or importation) in developing countries that export basic
products without elaborate packaging. The major alternative materials
for packaging are processed wood, plastic, and metal. Pallets or crates
made from these materials cost from two to four times more than WPM.
Comment: The APHIS proposal is of uncertain effectiveness and will
result in damage to the stratospheric ozone layer, and APHIS therefore
should adopt a regulation that specifies a deadline by which all
incoming packaging must be made from materials other than solid wood or
boards. These commenters stated that this strategy would achieve all
three national goals at stake in this rule: Accommodating rising trade
volumes, protecting forests from exotic pests, and protecting the
stratospheric ozone layer.
Several commenters also stated that APHIS should require use of
manufactured alternatives to WPM because the cost of these alternative
materials is easily offset by the reduction of inspection costs and
speeding the movement of cargo through our ports. They stated this
would also reduce the necessity for expensive government programs to
control invasive species that come in as hitchhikers in solid wood
built crates and containers.
A commenter who disagreed with those advocating that APHIS require
manufactured alternatives stated that a preference for using these
alternate materials is based on flawed and inaccurate arguments that
assume that the IPPC Guidelines will result in an increased demand for
wood products and thus translate into negative environmental effects.
This commenter stated that overall life-cycle impacts show far greater
negative environmental impacts from using nonwood substitute materials.
Also, the commenter stated that an outright ban on the use of WPM, in
favor of substitute materials, without credible and proven scientific
justification would be inconsistent with the World Trade Organization
agreements.
Response: Please also see the above response. This rule allows, but
does not require, methyl bromide use, and also allows use of untreated
alternative (manufactured) packing materials, and also offers heat
treatment as an alternative to fumigation with methyl bromide. Heat
treatment does not generate gases that could cause damage to the
stratospheric ozone layer.
The commenters who suggested that the cost of using alternative
materials would be offset by the reduction of inspection costs and
speeding the movement of cargo did not offer data to support that
theory. While inspectors do spend somewhat less time clearing
manufactured packing materials compared to clearing WPM, APHIS doubts
that the savings would come close to offsetting the costs, because many
articles besides WPM must be inspected at ports (such as the regulated
articles often packed in WPM). While faster cargo clearance would
benefit importers, the value of this benefit is uncertain, and in any
event, importers are free to use alternative packing materials if they
perceive a benefit in doing so. We also note that importers can also
achieve faster cargo clearance and fewer inspections by establishing a
history of compliance for their shipments; if their WPM is consistently
properly treated and marked, and free from pests of concern, their
shipments may be cleared faster.
Regarding the commenter who stated that the rule will not result in
an increase in the use of WPM versus alternative materials, we agree.
As discussed above, the rule may actually act to increase the number of
exporters choosing alternative materials, since the additional cost of
treating WPM will bring its total cost closer to the cost of some
alternative materials. We also agree with the commenter that overall
life-cycle impacts show negative environmental impacts from using
nonwood substitute materials, but we do not agree that these would be
``far greater'' than the environmental impacts from using treated WPM.
We have not seen any quantitative data that supports the position that
the environmental costs of using nonwood substitutes would likely be
greater than those for using WPM. We agree that mandating use of
alternative materials would not represent the least restrictive
necessary action, and would have adverse effects throughout the
international trade economy.
Comment: An adequate assessment of any adverse environmental
impacts associated with use of WPM must include a comparison of
substitute materials that would take the place of wood-based packaging
material. On those terms, the results are crystal clear. By any water
quality, air pollution, or energy use environmental measure, wood
products are clearly environmental performance leaders. It takes
between 33 and 47 percent less energy to produce a wood product than to
produce a similar product made from competing materials such as
concrete and steel, and producing WPM results in less carbon dioxide
emissions.
Response: Alternative packaging materials do have higher production
costs than WPM, including greater energy costs. When harvested under
careful management, trees can be a replenishable resource, unlike
petroleum or metal ores. When WPM has exhausted its useful life, it can
be recycled into products like particle board at a lower fiscal and
environmental cost than plastic or metal can be recycled. However, the
need to treat WPM must be taken into account when assessing the
environmental impacts associated with it. While we believe authorizing
use of treated WPM is a reasonable balance among pest risk, economic,
and environmental concerns, we do not conclude that WPM is the ``clear
environmental performance leader.'' For further discussion of this
issue, see the section of this document titled ``National Environmental
Policy Act,'' and section IV(A)(5) of the FEIS, which states ``Wood has
certain advantages from the environmental perspective. Renewability
gives wood a large advantage over other materials. The manufacture of
wood products requires substantially less energy than the production of
substitute products. Wood product manufacture results in less
greenhouse gas and other air pollutant emissions.''
Comment: If WPM were banned in favor of alternative materials, it
would not only destroy an industry, it would significantly increase
costs to shippers, which would be passed on to consumers. Metal pallets
are too expensive and heavy. Plastic pallets, unlike WPM, are not
biodegradable, and are a major and toxic fire hazard. More goods are
coming into this country than are going out. Most of them are on
pallets. Wooden pallets can be disassembled and recycled, if not as
pallets then as landscape mulch or wood stove pellets. Pallets made of
plastic or metal will begin to pile up in landfills across America.
Landfills could expect to realize exponential growth of
nonbiodegradable pallets.
Response: We partly agree with this comment, as discussed above.
However, a minority of shippers already choose to use alternative
pallet materials, which shows that the choice must be economically
viable in some
[[Page 55723]]
circumstances. We also note that because this rule applies only to
articles imported into the United States, neither the rule nor the
alternative of requiring alternative materials would destroy the market
for WPM produced in the United States. Untreated WPM could still be
used in domestic commerce, or in exports to any country that has not
implemented the IPPC Guidelines or a similar treatment requirements.
In addition, selection of the available alternate packaging
materials does include the continuing use of processed wood. This
includes plywood, corrugated packaging materials, etc. These are
products of the wood industry that pose comparable disposal and
recycling capability to that of WPM. Some are cost-competitive with
WPM, and required treatment costs under adoption of the IPPC Guidelines
could make the selection of some of these alternate packing materials
more favorable to the shipping industry.
Treatment Effectiveness
Comment: The proposed treatment measures, especially methyl bromide
fumigation, have not been proven effective against pathogens. While
APHIS says that few pathogens are detected on wood packaging, the
agency concedes in its draft environmental impact statement (DEIS) and
other publications that inspectors have great difficulty detecting
pathogens; therefore, it has not been proved that pathogens represent
as minor a threat as APHIS now implies. Furthermore, the DEIS
associated with this rulemaking states that some deep wood-borers also
might not be killed by the proposed treatments. Our concerns about
efficacy are heightened by the fact that the IPPC standard does not
require debarking the wood before further treatment. Debarking is key
to improving the already questionable ability of methyl bromide to
penetrate the wood to kill deep wood pests.
Response: The basis for international acceptance of the efficacy
provided by the IPPC Guidelines is the review by IPPC member countries
of certain reference documents that are now posted in a link from the
APHIS Web page at http://www.aphis.usda.gov/ppq/swp/approved_guideline.html. Historically, the pest risks of WPM were manageable by
inspection when international trade was more limited. All commenters
have acknowledged the need for increased protection of wood resources,
but there are differences of opinion about the level of protection
needed to mitigate pest risks.
Although some may contend that the regulations are overly
protective, others are not satisfied with this level of protection. The
approach taken by APHIS is to regulate according to demonstrated risk
level. The adoption of the IPPC Guidelines would dramatically decrease
the pest risk of concern to APHIS posed by importation of WPM.
Selection of this regulatory approach does not prevent APHIS from
further deliberation on more intensive regulation if the protection
measures are determined to be inadequate for specific risks from pests
of concern. Enforcement of the IPPC Guidelines could provide a baseline
for determining any need for further protective measures.
Comment: The two treatment options allowed under the rule--heat
treatment and methyl bromide fumigation--have an unacceptably high rate
of failure to stop invasive pests traveling in solid wood packaging. In
the DEIS, APHIS itself has questioned the efficacy of heat and methyl
bromide treatments.
Response: There are differences of opinion among commenters
regarding the effectiveness of treatments in the IPPC Guidelines to
eliminate invasive pests in WPM. The DEIS does not question the
efficacy of these treatment methods per se, but it does indicate the
advantages and limitations of each treatment method to eliminate pest
risks. The DEIS does not take a position as to whether the treatments
in the IPPC Guidelines will be the ultimate solution or part of the
ultimate solution, but the development of additional data about
efficacy and pest exclusion for all potential pests and pathogens may
lead to further consideration of these phytosanitary regulations by
APHIS.
Comment: Instead of the proposed treatments, APHIS should require
WPM to be subject to the documented effective treatment for wood
products, heat treatment with or without moisture reduction as
specified under the APHIS universal treatment option: 71 [deg]C at the
center of the material for 75 minutes. This treatment would
substantially minimize the threat of introduction of injurious
organisms. Until other efficacious wood treatments are sufficiently
documented, this heat treatment provides the broadest and safest
approach to the wood importation issue.
Response: The proposed treatment requirements for WPM would provide
much more protection against pest risk than the current requirement of
debarking and apparent freedom from pests. The 71.1 [deg]C treatment
was not established with SWPM in mind, but rather as a universal
treatment option that would be certain to eliminate pests in all wood
materials regardless of their risk level. As the 1995 final rule (60 FR
27666, May 25, 1995) that first established the regulations said,
``These universal options employ heat treatment and other conditions
for importing logs and lumber not otherwise enterable. These universal
options are relatively stringent, because they must eliminate the
spectrum of potential plant pests and address risks that have not been
characterized. The universal options are designed to give importers a
way to import articles that would otherwise be prohibited until
detailed plant pest risk assessments are completed. Whenever feasible,
importers may choose to employ universal options while plant pest risk
assessments and rulemaking are underway to establish less stringent
requirements for the articles they wish to import.''
Also, as stated in the August 2000, ``Pest Risk Assessment for
Importation of Solid Wood Packing Materials into the United States,''
APHIS is preparing a pest risk reduction analysis that will evaluate
the effectiveness of various available treatments and potential
mitigation alternatives for WPM. If information gathered during
development of the pest risk reduction analysis suggests that the
stringency of existing WPM treatment requirements should be either
strengthened or lessened, APHIS will undertake rulemaking to do so.
Comment: Methyl bromide is ineffective against many deep-wood
pathogens and pests because it does not penetrate to the center of
thick boards or timbers. Its use cannot be verified at a later date,
and it does not prevent reinfestation.
Response: While methyl bromide is ineffective against some deep
wood pathogens, and a few deep wood pests, these pathogens and pests
usually are not significant pests associated with the WPM pathway. Many
treatments cannot be verified at a later date by physical analysis or
examination at ports. That is one reason this rule requires marking of
treated materials. The marking system, coupled with registration and
monitoring/auditing of treatment facilities by national governments, is
the means for ensuring treatment has occurred. Finally, while
reinfestation of fumigated WPM is possible, the risk is low (beyond the
level of hitchhiking pests that might attach to any kind of packaging).
Canada and Mexico
Comment: The current exemptions from the regulations for wood
articles from Canada and from Mexican border states should be extended
to include WPM that is imported into the United
[[Page 55724]]
States from the balance of Mexico. This action would be consistent with
the North American Free Trade Agreement (NAFTA) and the North America
Plant Protection Organization announcement dated April 25, 2003. It
would avoid administrative complexities and the cost of a partial
exemption from border States only, as well as avoid the production of
additional export pallets from Mexico to the United States.
Response: APHIS took final action on this issue in a final rule
titled ``Importation of Unmanufactured Wood Articles From Mexico'' that
was published in the Federal Register on August 26, 2004 (69 FR 52409-
52419, Docket No. 98-054-3). In that final rule, APHIS amended the
regulations to remove the exemption for most unmanufactured wood,
including WPM, imported into the United States from Mexican States
adjacent to the United States/Mexico border. The only exemption that
continues for Mexican border States covers firewood, mesquite wood for
cooking, and small, noncommercial packages of unmanufactured wood for
personal cooking or personal medicinal purposes. The effect of that
change was that all WPM from Mexico will be subject to the same
requirements in Sec. 319.40-3(b) that apply to WPM from any place
except Canada.
Comment: The United States and Canada must work together to curtail
the disproportionate numbers of introductions of forest pests that are
occurring in the Great Lakes region. They are far out of proportion to
the volume of foreign shipping in that region or to the volume of
interceptions by Federal inspectors. It is equally important that APHIS
quickly complete the separate rulemaking to close the loophole that
allows untreated WPM to enter the country from northern Mexican states.
Response: Please see the response above. APHIS is actively working
with the Canadian Food Inspection Agency to curtail pest introductions.
Most of these introductions are pests not of Canadian origin that
arrive via transshipped materials. We expect their level to decrease as
Canada implements its own regulations requiring WPM imported into
Canada to be treated in accordance with the IPPC Guidelines. Also,
APHIS is currently developing a pest risk assessment for wood from
Canada, and if we identify any significant risks that have not been
addressed by current regulations, we will take appropriate rulemaking
action.
Methyl Bromide--Montreal Protocol
Comment: The proposed use of methyl bromide would violate the
spirit and intent of the Montreal Protocol. It would exceed the intent
of the quarantine exemption. It is inconsistent with Protocol Decisions
that were adopted by the Montreal Protocol parties with the consent of
the United States. Decision VI/11 of the Meeting of the Parties to the
Montreal Protocol, for instance, states that developed country parties
``are urged to refrain from use of methyl bromide and to use non-ozone
depleting technologies wherever possible.'' The U.S. Environmental
Protection Agency (EPA) wrote in its comment on the proposed rule
regarding wood imports from Mexico (June 11, 1999, 64 FR 31512-31518)
that because of the need to honor the Montreal Protocol and protect the
ozone layer, ``allowing the use of methyl bromide in quarantine
treatment of Mexican wood articles where other effective treatments
exist would be inconsistent'' with Protocol Decisions.
Response: APHIS is committed to finding environmentally acceptable
alternative treatments to methyl bromide fumigation. At the current
time, methyl bromide is an efficacious and economically feasible
quarantine treatment to control pests in WPM, and we have determined
that allowing it as an alternative treatment for WPM in the context of
this rule will provide the necessary level of pest protection while
minimizing impact on the environment given the absence, in many cases,
of technically and economically feasible alternatives. This
determination is supported by the FEIS, as discussed below in the
section titled ``National Environmental Policy Act.''
As discussed above, APHIS actively cooperates with other agencies
and to identify and validate technically and economically feasible
alternatives to methyl bromide. APHIS will continue to work
cooperatively with the IPPC as APHIS explores alternative treatments to
methyl bromide and incorporates validated, economically feasible
alternatives into our quarantine regulations.
Comment: The U.S. Department of Agriculture (USDA) estimate that
methyl bromide emissions will increase by 5,145 metric tons, increasing
total world usage by more than 10 percent, is a vast underestimate
because it was based on the assumption that WPM would be fumigated
before use. From experience in China, fumigation occurs at port
facilities, after goods are packed in raw wood materials. USDA even
states in the proposal that most wood packaging fumigation consist of
about 35 percent WPM and 65 percent cargo. The USDA FEIS on wood from
Mexico predicts a massive increase in methyl bromide use of more than
102,000 tons per year. That would increase current world use for
quarantine purposes by 10 times. It would triple total world use of
methyl bromide for all purposes. Under these circumstances, USDA has
not complied with its obligations to present a rational basis for its
proposed action under the National Environmental Policy Act (NEPA), the
Plant Protection Act, or the Administrative Procedure Act.
Response: The draft and final EIS projections are based upon
ongoing review of actual usage data and observations of activities at
Chinese ports by APHIS personnel. The initial usage analyses were based
upon the limited available time for exporters and shippers to prepare
to treat WPM as required by APHIS in an interim rule published on
September 18, 1998 (63 FR 50099-50111, Docket No. 98-087-1). These
analyses considered the fumigation of WPM with already loaded cargo
rather than fumigation of WPM before loading. Although there was
primarily fumigation of WPM with loaded cargo by the exporters and
shippers in China initially, this approach to WPM treatments did not
continue. Many shippers and exporters from China began fumigating WPM
prior to loading, for at least three reasons. The cost savings to the
shippers and exporters from less use of methyl bromide in fumigations
of WPM prior to loading were substantial. Also, many agricultural
commodities lack a tolerance for the bromine residues imparted by
fumigation with methyl bromide. Finally, fumigation after loading could
make food commodities illegal for human consumption in the United
States and could damage certain other commodities (e.g., leather goods
and some electronic parts).
Unlike the limited time exporters and shippers in China had to
prepare for the September 18, 1998, interim rule, shippers and
exporters throughout the world are aware of the IPPC Guidelines and
have had time to prepare for these regulations. In addition, the IPPC
Guidelines require marking the wood used in WPM, and it is easier and
less expensive to treat and mark prior to loading than to unload after
treatment to place markings on the treated WPM and then reload. Based
upon this, it is reasonable to expect most exporters and shippers to
fumigate WPM before loading. The fact that the projection in the FEIS
assumes fumigation as the method of treatment for all WPM
[[Page 55725]]
indicates that it is actually a high estimate because we know that many
developed nations will actually use heat treatment rather than
fumigation for compliance with IPPC Guidelines.
We expect fumigation of WPM to decline over time as shippers build
a stockpile of treated pallets, which normally can be used for up to 3
years. We also expect heat treatment to substitute for fumigation in
some additional locations as more facilities are built.
Comment: The final rule should explain more about the EPA's plans
to phase out methyl bromide, particularly its intent to publish a plan
and timeline in the Federal Register about December 2003.
Response: Since the EPA is continuing to develop its plans and
timeline for this issue, APHIS cannot provide conclusive information
about them. We suggest that readers interested in the EPA's actions
concerning methyl bromide follow EPA publications in the Federal
Register.
Methyl Bromide--Other Issues
Comment: Methyl bromide fumigation and heat treatment facilities
are generally unavailable in many parts of Africa and Indonesia. Rubber
exports from these areas have been shipped without risk using WPM
treated with Borax as per the Rubber Research Institute of Malaysia No.
122 method, or with a fungicide and insecticide called Xylolit B4.
Response: Neither of these are approved treatments for WPM under
APHIS regulations, and neither has been documented to be as effective
as methyl bromide and heat treatment against target pests. APHIS is
willing to review any scientific data regarding other treatments, and
to consider adding treatments that are proven effective. However, when
this rule goes into effect we will only accept WPM treated according to
the new regulations, which do not authorize borax or insecticide/
fungicide treatments. We recognize that some importers may have to make
substantial adjustments to their business practices and packing
material suppliers to comply with the regulations, but we believe the
pest risk associated with WPM justifies the new requirements.
Exempt Certain Articles From Regulation
Comment: The treatment requirements of the proposal should not
apply to the WPM containers of imported fresh fruits and vegetables.
Specifically, APHIS should exempt typical small fruit and vegetable
crates in common use. These crates are made of mixed plywood and
natural wood, and are about 12'' x 7'' x 4'' high, with 1.1'' x 1.1'' x
4'' high natural wood corner supports. WPM used in the international
trade of regulated goods, such as fresh fruits and vegetables that are
documented by an official phytosanitary certificate of the country of
origin, presents a phytosanitary risk significantly lower than WPM in
general. Phytosanitary certificates apply to both the commodity being
exported and the WPM used in their transportation.
Response: APHIS interceptions records from 1996-2001 show an
increasing number of pests associated with WPM, including in containers
for fresh fruits and vegetables. Based on interceptions at ports, WPM
used for the shipment of fruits and vegetables can pose a significant
risk. Importers of these products may be able to avoid having their
containers considered to be regulated articles by redesigning them to
eliminate the thicker pieces of raw wood often used as corner supports.
Containers that use pieces of raw wood less than 6 mm (0.24 in) thick
and containers made wholly of manufactured wood would be exempt from
regulation. For the specific crates to be exempted, the corner supports
would have to be replaced with exempt materials (plywood, particle
board, veneer, etc.) or with bundled pieces of raw wood each of which
is no more than 6 mm (0.24 in) thick.
Comment: We request that APHIS address compliance requirements for
WPM originating in the United States, shipped to a foreign location and
then exported back to this country. It seems unlikely that WPM exported
from the United States will be marked according to the IPPC Guidelines
until all other countries have adopted those Guidelines. Consequently
WPM originating in the United States that is exported and then returned
would not satisfy the IPPC Guidelines unless an interim marking
mechanism is established and used. Will APHIS allow U.S.-origin WPM
that is exported and reimported into the United States to be marked
according to requirements established by relevant foreign jurisdictions
on an interim basis until all other countries adopt the IPPC
Guidelines?
Response: We are not adopting the suggested approach because using
additional markings to indicate that WPM originated in the United
States would require a major regulatory program to ensure the validity
of such markings. It would be expensive, inconvenient, and a drain on
APHIS resources that can be employed more usefully elsewhere. It would
also be confusing to foreign governments that are just getting used to
the markings in the IPPC Guidelines. There are already many sources of
treated WPM in the United States, and APHIS, as the national plant
protection organization of the United States, is currently developing
procedures to meet its responsibilities under the IPPC Guidelines to
inspect, monitor, accredit, and audit commercial companies that treat
WPM and apply the official mark to it that indicates treatment. There
are also many foreign sources of WPM treated in accordance with the
regulations, and many U.S. shippers doing business with Canada already
obtain their WPM from foreign sources.
Dunnage and Small Wood Pieces
Comment: Does the proposed marking requirement mean that every
piece of the 40 to 80 tons of dunnage that may be carried on board a
steel transport ship could be subject to inspection prior to discharge?
This is a serious problem because dunnage is used under the steel since
it is intended to prevent movement of the cargo during the voyage. Long
steel products are carried stowed in a fore-and-aft direction in ships'
holds. Dunnage is used athwartship. In such a correctly stowed hold
there should be little or no dunnage showing on completion of loading,
so that marking may not make a difference as far as inspection prior to
discharge is concerned. Also, sometimes ships meet with such bad
weather during their sea voyage that part of the dunnage is crushed or
broken. As a result, there will then be pieces of dunnage unmarked.
What measures are then intended?
Response: We recognize the difficulty in ensuring that required
treatment marks are present on some dunnage that is custom cut to brace
or fill gaps in a particular load. However, dunnage is frequently made
from the type of low quality wood that poses the greatest pest risk,
and it is therefore necessary that dunnage be treated and marked the
same way as any other regulated WPM. The fact that the nature of some
cargoes makes it impossible to inspect the associated dunnage aboard
ship is not particularly relevant because dunnage inspection is
normally done following cargo discharge.
Alternatives to Marking WPM
Comment: To speed port clearance and aid enforcement, we support
using very simple self-declarations of compliance to accompany any and
all international shipments, even those totally free of solid wood
packaging.
[[Page 55726]]
The self-declaration would affirm that all packaging in the shipment
complies with the provisions of the IPPC Guidelines. This is vital
information and therefore should be repeated in key shipping documents
such as bills of lading, invoices, and so on.
Response: We welcome the use of electronic records for many port
operations purposes, and we are working with the U.S. Department of
Homeland Security (DHS) on projects in that area. However, APHIS has
decided that the system of authorized WPM markings applied by
facilities operating under the supervision of national governments is
more reliable than a system where individual invoices and shipping
documents affirm compliance. Affirmations in shipping documents about
whether or not cargoes contain WPM, and whether or not the WPM has been
treated, are frequently unreliable. Our experience clearing shipments
from China showed frequent incidents where shipping documents contained
an affirmation that no WPM was in the cargo, despite its presence.
Under this final rule, inspectors can tell directly from observation of
the WPM whether or not it is in compliance (barring fraudulent misuse
of the mark, which will be addressed by auditing and monitoring). This
process does not need to be significantly slower than using shipping
documents. Importers that establish a record of compliance over a
number of shipments generally will be subject to less inspection.
Clearance time will also decrease as importers and exporting countries
gain experience with the new requirements and acquire a history of
moving shipments without inspectors finding pests of concern associated
with them.
Comment: Clearing WPM at ports based on physical inspection to see
if it is marked will cause significant delays in the clearance of
imports without commensurate benefits. Containers and air cargo will
have to be unloaded individually and each pallet, crate, or other
regulated item inspected. This is highly burdensome and costly for both
importers and the government, and will cause major disruptions to
importers' supply chains, many of which are part of just-in-time
inventory management systems. For the government these inspections will
divert inspectors of the U.S. Bureau of Customs and Border Protection
(CBP), DHS, from their primary cargo security mission.
We urge APHIS to offer an alternative that would be consistent with
the best practices being implemented throughout the regulatory realm,
which allow for electronic filing of compliance information. In an
electronic system, importers would be allowed to transmit a compliance
code to the CBP, by which code they would certify that the WPM is
compliant or that there is no WPM contained in the shipment. This is
how compliance certifications are presented to other government
agencies such as the Federal Communications Commission and the Food and
Drug Administration. A paper alternative, such as a stamped statement
on a bill of lading or invoice, should be available for situations in
which electronic certification is not practical.
Additionally, we recommend that APHIS consider providing for a
blanket certification for importers who can assure to the satisfaction
of APHIS that their WPM is routinely compliant. In the electronic
environment, this would consist of importer information established as
part of its CBP account profile. CBP is developing these profiles as
part of its Automated Commercial Environment architecture. We urge
APHIS to work closely with CBP to implement the necessary interfaces
between CBP's system and APHIS. In the interim, we request that APHIS
accept blanket paper certificates of compliance by which importers
certify that for a designated period of time all imports of WPM into
the United States are compliant.
Response: See the response to the previous comment.
Inspection Procedures
Comment: Because not all WPM poses equal risks, APHIS should use
risk management to avoid unnecessary shipment delays caused by
ineffective random inspections. Take advantage of data from existing
importers quality control procedures and compliance programs. Highly
compliant importers, as verified by valid statistical sampling of
imports, should be subject to a lower rate of physical inspections than
unknown or noncompliant importers.
Response: APHIS intends to use risk management techniques and data
from a variety of sources to target its inspection activities and its
monitoring and auditing activities for facilities conducting
treatments.
Delayed Effective Date and Noncompliant Shipments
Comment: Instead of immediately starting to order the reexport of
unmarked WPM, we request a 2-year transitional period to phase out old
WPM with previously acceptable marking (for example, ``HT'' without the
IPPC symbol) provided the treatment requirements prescribed by the
proposed rule are satisfied.
Response: APHIS received a number of comments stating that
exporting countries and shippers would need time to adapt to the new
requirements of the rule and to change some of their business practices
and WPM sources. We agree, and in response we have set the effective
date for this final rule at a date 1 year after its publication date.
We believe affected parties will be able to prepare for the new
requirements during this period. APHIS will also conduct a very active
information campaign during this period to ensure that affected parties
are aware of the new regulatory requirements. Consistent with parties'
commitments under the Montreal Protocol, this campaign will also stress
to affected parties that use of alternate packing materials or heat
treatment of WPM are environmentally preferable alternatives for
meeting the requirements, as documented by the FEIS. As part of this
campaign, APHIS inspectors at ports will focus on imported WPM
shipments that do not meet the new requirements, and will give the
importers official notice explaining what they must do for future
shipments (i.e., those arriving after the effective date of this final
rule) to comply with the new requirements.
Comment: In case of noncompliance, the proposal would require
reexport after separating the cargo, if possible. Why not allow the
other measures explained in item 6.1 of the IPPC Guidelines, such as
incineration, processing or treatment, etc.?
Response: Reexportation is necessary because we need to achieve
compliance (treatment and marking of WPM before arrival) in order to
fully protect against the introduction of plant pests. In recent years,
several destructive plant pests, including the Asian longhorned beetle
and the emerald ash borer, have been introduced into the United States.
We believe that these pests have entered the United States in WPM at
ports of entry. Therefore, we believe that proper treatment of WPM,
prior to importation into the United States, is essential to safeguard
our agricultural resources from further pest introductions. We believe
requiring the reexportation of noncompliant WPM is the only option that
will ensure that WPM is properly treated prior to its arrival in the
United States. Also, allowing post-entry treatment is not feasible
because space and services at ports are limited and ports cannot be
burdened with vast quantities of noncompliant materials awaiting
treatment or incineration. Further, allowing post-entry treatment would
place an additional burden on already scarce port resources since it
would be necessary to track shipments
[[Page 55727]]
to ensure proper treatment. Finally, the reexportation requirement is
consistent with the approach adopted by other IPPC member countries,
such as Canada.
Comment: The requirement to reexport noncompliant imports is too
stringent. Some WPM might not be stamped due to simple error. In cases
where marking is absent but no pests have been intercepted, the cargo
should be accepted. Even if pests are found WPM could be fumigated or
treated appropriately at the expense of the importer in the routine
manner for other noncompliant goods. Equivalent measures should be
explored. The national plant protection organization (NPPO) of the
exporting country could then be informed about the non-compliance with
the details of the exporter so that the NPPO could monitor that
exporter.
Response: Please see the above responses about the 1-year delay in
the effective date of this rule, which will give affected parties time
to comply with the new requirements. We intend to inform the NPPO's of
exporting countries about noncompliance in shipments from their
countries, but this is in addition to, not a substitute for,
enforcement action by APHIS.
Comment: When imported WPM is not in compliance, APHIS should
require both the WPM and cargo to be treated at the port of entry.
Separating the cargo from the WPM without treatment could result in the
introduction of wood borers into the environment. Similarly, any
properly marked WPM that proves infested should be required to be
treated at the port of arrival. Fumigators at the ports of entries have
years of experience treating cargo upon arrival and have the expertise
to ensure that any destructive pests are destroyed and that the free
flow of trade is not impeded. Requiring the reexport of WPM and
associated cargo will impede international trade and hurt the U.S.
economy.
Response: As discussed above, the reexport option will be necessary
to achieve compliance (treatment and marking of WPM before arrival),
and also because space and services at ports are limited. In some
cases, APHIS inspectors at a port of entry may discover signs of pests
in a shipment that is apparently in compliance and order treatment in
accordance with Sec. 319.40-9. APHIS is committed to protecting U.S.
agricultural resources and will ensure that any treatment after arrival
is done under safeguards adequate to prevent the spread of pests.
Sometimes this will involve treating cargo along with WPM, and
sometimes it will not, based on the type of cargo and the nature of any
pests that are identified.
Economic Impacts on WPM Producers
Comment: Forty percent of all hardwood lumber manufactured in the
United States, and a goodly portion of the softwood as well, go into
the manufacture of WPM like dunnage, crating, pallets, packing blocks,
drums, cases, and skids. It is absolutely essential for the hardwood
industry and very important to the softwood industry to preserve this
huge market for their lowest quality lumber. Also, unloading containers
in transit to verify whether the packing material has really been
treated would greatly endanger certain products being transported
(e.g., fragile wood veneers), in addition to adding more time to the
transportation.
Response: The problem is that the use of low grade, untreated wood
in international WPM is exactly the practice that must be ended to
protect U.S. resources against foreign plant pests. We do not see any
alternative that would allow continued use of untreated WPM and also
protect against these risks. With regard to unloading cargoes for
inspection purposes, CBP inspectors at ports are experienced and well
trained and deal professionally with any shipments. APHIS is developing
new operational procedures to minimize delays caused by WPM inspections
at ports. We also expect that the need for substantial unloading and
inspection will decline over time as shippers and exporting countries
become familiar with the new requirements and develop a history in
which no pests of concern are found associated with their shipments.
Comment: Nearly 7,000 U.S. facilities produce pallets nationwide
and are a vital utilizer for low grade wood which would otherwise have
to be burned at high temperature for lack of other use. This, in turn,
would considerably increase the cost of marketing high quality wood
products like veneer, lumber, flooring, plywood, and particle board as
well as other engineered wood products.
Response: We recognize that this rule will have some adverse
economic effects, as discussed below in the section ``Executive Order
12866 and Regulatory Flexibility Act.'' Such effects are sometimes
unavoidable when APHIS takes steps to protect agricultural resources
against plant pest risk. There will still be a market for domestically
produced pallets because untreated WPM could still be used in domestic
commerce or in exports to any country that has not implemented the IPPC
Guidelines or similar treatment requirements.
Economic Impacts on U.S. Fumigators at Ports
Comment: The rule would reduce fumigation at ports of arrival,
financially hurting quarantine fumigators that often are small family-
owned businesses. These economic losses would be on top of significant
revenue losses that fumigators incurred when APHIS implemented its
interim rule on WPM from China.
Response: APHIS' main goal is protecting against any possible
infestation that might be associated with imported WPM. There is a
general trend throughout the world to reduce methyl bromide usage.
While this final rule may result in reduced fumigation of wood products
at U.S. ports of arrival, the 1-year delay in the effective date should
give fumigation businesses time to adjust business plans. Also, as
discussed above, APHIS may discover signs of pests in a shipment that
is properly marked and may order treatment of either the WPM, the
cargo, or both, as appropriate.
Implementation Schedule
Comment: The effective date of the final rule should be at least 1
year after publication, to allow developing countries to implement the
necessary means and conditions, including national systems of
treatment, inspection, registration or accreditation, and auditing of
WPM to be shipped to the United States, thus avoiding an obstacle to
international trade.
Response: We agree, as discussed above, and have delayed the
effective date for 1 year. In general, APHIS has communicated very well
with its trading partners, which should allow them to implement the
needed systems within 1 year. After the effective date, we will enforce
compliance with the new requirements.
Comment: We seriously doubt that any country outside of North
America will be prepared to fully implement the standard by January
2004. We encourage the USDA to adopt the standard but also apply a
generous grace period to allow importing countries to get up to speed
on the marking systems and underlying audit programs. Otherwise, we
will end up seeing a lot of ``IPPC symbols'' on pallets which may not
have been treated to the same degree of quality and control as we would
expect in the United States, thereby casting doubt on the efficacy of
the whole program.
Response: Please see the responses above about the 1-year delay in
the effective date. CBP will audit all
[[Page 55728]]
material shipped, as well as records for facilities treating WPM and
applying the mark. Shipments from countries with high levels of
noncompliance will face higher levels of inspection.
Miscellaneous Comments
Comment: The IPPC Guidelines do not specifically require that WPM
be free of bark. Does APHIS intend to specify a bark-free requirement
for WPM in the final rule?
Response: No, APHIS will not require the wood to be bark free, as
long as it has been properly treated. Currently available data shows
that treatment alone will adequately kill the pests of concern.
Comment: There is no provision in the proposed rule describing what
mark should be used by non-IPPC member countries. There will be
trademark registration on the IPPC mark so non-IPPC member countries
may not be entitled to use this marking.
Response: APHIS is not responsible for any country's decision on
whether or not to join the IPPC, or for how any country addresses
trademark issues. We do note that the IPPC is in the process of
registering the mark in many countries at this time for use on
materials treated in accordance with the IPPC Guidelines. We also note
that, even if a country cannot establish treatment facilities
authorized to apply the mark in their own country, they can readily
obtain treated and marked WPM from other countries, or they can use
alternative materials to WPM.
Miscellaneous Editorial Changes
In addition to the changes discussed above, we are making some
minor changes for clarity and consistency. We are removing the
definitions of exporter statement, importer statement, and solid wood
packing material because these terms are no longer used in the
regulations. We are slightly editing the table in Sec. 319.40-
3(b)(1)(ii) that provides the methyl bromide treatment schedule so that
it provides concentrations in lbs./1,000 c.f., as well as in g/m\3\. We
are also adding a graphic and description of the approved IPPC mark to
Sec. 319.40-3(b)(2).
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.
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.
Below is a summary of the economic analysis for the changes in WPM
import requirements in this document. The economic analysis provides a
cost-benefit analysis as required by Executive Order 12866 and an
analysis of the potential economic effects on small entities as
required by the Regulatory Flexibility Act. A copy of the full economic
analysis is available for review at the location listed in the
ADDRESSES section at the beginning of this document, or on the Internet
at http://www.aphis.usda.gov/ppq/swp/.
In accordance with 5 U.S.C. 604, we have performed a final
regulatory flexibility analysis, which is set out below, regarding the
effects of this rule on small entities. The initial regulatory
flexibility analysis in our proposed rule stated that we did not have
all the data necessary for a comprehensive analysis of the potential
effects of this rule on small entities. Therefore, we invited comments
concerning potential economic effects, particularly the number and kind
of small entities that might incur benefits or costs. We did not
receive any comments providing the specific data we requested, but we
did receive several comments stating that some small business will be
adversely affected by the rule, including importers with substantial
inventories of WPM on hand in foreign countries, which they would no
longer be able to use for shipments to the United States, and
fumigators at U.S. ports that currently treat large volumes of WPM upon
arrival and expect to lose much of this business after the rule is
implemented. Several commenters also suggested that domestic WPM
manufacturers faced indirect effects that could result when other
countries adopt the IPPC Guidelines, reducing the demand for untreated
WPM.
Under the Plant Protection Act (7 U.S.C. 7701-7772), the Secretary
of Agriculture is authorized to regulate the importation of plants,
plant products, and other articles to prevent the introduction of
injurious plant pests.
This analysis evaluates a final rule adopting the IPPC standards on
wood packaging material, the International Standard for Phytosanitary
Measures No. 15. This standard contains globally accepted measures that
may be applied to WPM to reduce the entry of pests via this pathway.
The IPPC Guidelines require WPM to be heat treated at 56 [deg]C for 30
minutes, or fumigated with methyl bromide.
Alternatives considered and rejected included the alternative of
taking no action. This alternative was rejected because recent
interceptions of pests at ports of entry show a steady increase in
serious pests associated with WPM from everywhere except China, whose
WPM must already be treated due to past pest interceptions. If left
unchecked, pests introduced by imported WPM have the potential to cause
significant economic damage to the agricultural and forest resources of
the United States.
We also rejected the alternative of extending the China interim
rule to all WPM worldwide, because that would not ensure long-term
exclusion of some wood pests of quarantine concern, such as certain
deep wood-borers, fungi, rots, and wilts. The adoption of the IPPC
treatment standards for all importing countries will address pest
threats posed not only by Cerambycidae, which was the primary target of
the China interim rule, but nine other pest families as well.
Additionally, adoption of the China interim rule requirements would
result in the greatest additional use of methyl bromide of all the
alternatives.
Another alternative not adopted was a comprehensive risk reduction
program allowing differing, circumstance-dependent risk mitigation
strategies that include various options for complying with United
States import requirements. A comprehensive risk reduction program
would consist of an array of mitigation methods (e.g., inspection,
various heat treatments, various fumigants and other chemical
treatments, irradiation, etc.) that is more extensive than that
contained in either the China Interim Rule or the IPPC Guidelines. Many
of the treatment methods being considered as components of a
comprehensive risk reduction program require more research and
development to demonstrate that they could be used effectively and
economically to treat the required range of WPM products. Some of the
remaining issues include inadequate control, incomplete efficacy data,
safety issues, and lack of adequate facilities or supplies. Therefore,
while comprehensive risk reduction is still considered a possible
future approach for WPM import requirements, it is not practical to
adopt it at this time.
Another alternative, substitution of other packing materials, was
rejected because it requires use of materials the cost of which exceed
the likely costs of SWPM that is either heat treated or fumigated with
methyl bromide.
We believe it is appropriate and necessary to adopt the IPPC
Guidelines because they were developed as an international standard to
control pests associated with WPM. The types of pests the IPPC
Guidelines were developed to control have been
[[Page 55729]]
intercepted at U.S. ports for many years and pose significant risks to
U.S. resources. The damage they cause could be similar in magnitude to
the recent introduction of the Asian longhorned beetle (ALB)
Anaplophora glabripennis (Coleoptera: Cerambycidae). Our regulations
have already been changed to prevent further introductions of ALB from
China, but adopting the IPPC guidelines could prevent the introduction
of ALB or similar wood borers from other parts of the world, as well as
prevent the introduction of other types of pests such as woodwasps and
bark beetles. Imposing the IPPC Guidelines' treatment and other
requirements to prevent these introductions will yield net benefits.
The benefits (avoided losses) that can be gained by preventing
introduction of these pest types are discussed below. The actual
magnitude of the benefits cannot be definitively ascertained, but they
are likely to be much larger than the associated costs.
As an indicator of the damage ALB or similar wood borers could
cause if introduced again in the future, consider the costs of the ALB
introduction from China. The ALB, first discovered in New York, NY, in
1996 and in Chicago, IL, in 1998, was most likely introduced on wood
packing material from China. The present value of urban trees at risk
in the two affected cities is estimated at $59 million over some 50
years. About $6 million of urban trees have been destroyed due to pest
infestation and eradication efforts since the introduction of ALB. So
far, APHIS and State and local governments have spent over $59 million
in eradicating the pest in the two localities. If only New York City
and Chicago were considered, it would appear that the current
eradication program has spent an amount equal to the value of the
resource being protected. However, the eradication and quarantine
activities have slowed the spread within New York and Chicago. Without
these activities, the faster spread in these cities would increase the
net present value because the resources would be lost in a much shorter
amount of time. The eradication and quarantine activities are also the
reason the pest has been confined to the two cities where it was
initially detected. The potential damages from ALB spread to other
areas can be gleaned from the Nowak et al. study that estimated losses
to seven other cities. The present value of damage to urban trees in
Baltimore, MD, alone, not allowing for intervention, was estimated to
be $399 million. Additionally, without governmental intervention,
forest resources would also be at risk.
Wood borers such as ALB could cause the most damage of all types of
pests associated with WPM, but we have also projected that other types
of pests could cause substantial damage. These include the Sirex
woodwasp (Family: Siricidae) and the Eurasian spruce bark beetle Ips
typographus (Family: Scolytidae). Projections of physical damages that
can be caused by these types of pests range up to $48-$607 million and
$208 million, respectively. Perhaps the greatest devastation posed by
these pests that cannot be fully captured monetarily is their potential
to cause irreversible loss to native tree species and consequential
alterations to the environment and ecosystem.
The recent introduction of the emerald ash borer (EAB), Agrilus
planipennis (Coleoptera: Buprestidae), a pest of ash trees, in Michigan
and parts of Canada in June 2002 is a reminder of this threat. It is
not known how the pest arrived in North America but, as with other
exotic beetles, infested WPM from Asia is suspected. The pest may have
arrived some 6 years ago, before the interim rule on China was
implemented in September 1998 (63 FR 50099-50111, Docket No. 98-087-1).
Ironically, many of the large ash trees favored by the pest were
originally planted to replace elm trees killed by Dutch elm disease
caused by yet another exotic pathogen. A preliminary assessment of the
potential impact of the EAB on urban and timberland ash trees in the
six counties originally quarantined by Michigan comes to about $11
billion in replacement costs alone. The nursery stock industry in the
affected counties reported a loss in sales so far of $2 million. These
estimates serve to highlight the potential magnitude of damage that
could be caused by one outbreak alone of a pest on the targeted list.
The adoption of the IPPC treatment standards for all importing
countries will address pest threats posed not only by Cerambycidae,
which was the primary target of the China interim rule, but nine other
pest families as well. Approximately 95 percent of pests intercepted by
APHIS inspectors in shipments worldwide are pests on the IPPC target
pest list.
The treatment requirements in this rule are not expected to
completely eliminate all pest interceptions related to WPM. As evident
from data reported between 2000 and 2001, 2 years following the
implementation of the China rule, 7 percent of pest interceptions was
still associated with China imports. To the extent that pest
interceptions will be reduced, the risk of an outbreak will also be
lower than in the absence of the rule. However, because pests continue
to be intercepted albeit at a lower rate, benefits need to be
correspondingly adjusted to reflect the risk.
In discussing the costs that might result from adopting this rule,
it is essential to recognize that to some degree these costs will
accrue when other countries adopt the IPPC Guidelines, whether or not
the United States also adopts them. As other countries impose IPPC
treatment requirements on imports containing WPM the global WPM market
will be greatly affected, likely causing a broader impact on the
domestic wood packaging industry than the provisions of this rule.
Adopting this rule may also cause general societal costs due to
human health issues (increases in skin cancer, cataracts, and other
conditions) and reduction in crop yields that may result if increased
use of methyl bromide as a result of this rule delays recovery of the
ozone layer. It is impossible to confirm or estimate such costs at the
present time.
The effects of this rule will fall largely on foreign manufacturers
of pallets. The increased treatment cost may add to the cost of
packaging and transporting of goods which, in turn, will affect
importers of commodities transported on pallets and final consumers of
those goods are potentially affected by this rule. The required
treatments will add to the cost of packaging and transport of goods.
Due to the very large number of pallets that are used to assist
imported cargo, the overall cost may be substantial. The extent of the
impact on U.S. consumers will depend on the ability of importers to
pass on the additional costs to respective buyers. It is expected that
most of the cost of treating pallets will be borne by foreign pallet
manufacturers. Furthermore, given the small value of pallets as
compared to the value of trade, increases in pallet prices are not
expected to have a measurable effect on domestic consumers or on trade.
We also expect this rule to affect U.S. purchasers of imported
pallets, crates and boxes. Between 1999 and 2001, an average of 38
million pallets was imported into the United States, over 80 percent of
which came from Canada. Imported WPM was valued at $150 million during
this time period. At approximately $3.95 per piece, imported pallets
are less expensive than domestic pallets where the average price ranges
between $8 and $12 per pallet. Canadian pallets are primarily used by
industries close to the U.S. and
[[Page 55730]]
Canadian border. The wood pallet market is highly competitive, and the
demand for imported pallets can be characterized as elastic. While
pallets made of alternative materials such as plastic, corrugated
fiberboard, or processed wood are imperfect substitutes for wood, one
wood pallet can easily substitute for another wood pallet.
Assuming a perfectly elastic supply and perfectly inelastic demand
for imported pallets, and assuming a treatment cost that adds about $2
on average to a pallet, U.S. purchasers of imported pallets could lose
an estimated $76 million in higher costs. The true extent of the
impact, however, will be lower than this amount because demand is
likely to be elastic and foreign importers are expected to share a
greater burden of the cost increase. We do not know treatment costs for
foreign pallet producers, but given the availability of substitutable
domestic wood pallets, we do not expect U.S. purchasers of imported
pallets to be significantly affected.
Recent and forthcoming decisions by other countries to adopt the
IPPC standard, while not an effect of this rule, represent an
associated issue that will indirectly affect manufacturers who sell
pallets, crates, and boxes to foreign buyers. There are an estimated
3,000 manufacturers of pallets and containers in the United States. The
primary importers of these items are Canada and Mexico. As these two
countries prepare to implement the IPPC standard, only treated wood
packaging material will likely be in demand for export. The extent of
the impact on pallet and container manufacturers will depend on the
ability of individual firms to put in place the necessary
infrastructure for conducting treatments as required by the
international standard. The number of U.S. firms that export WPM and
will therefore be affected is unknown. Regardless, the impact on the
overall WPM industry is expected to be small as the quantity of total
pallets exported, estimated at about 10 million units, comprises only
2.5 percent of the 400 to 500 million pallets in production in the
United States each year.
Domestic manufacturers of wood pallets may be indirectly affected
in one other way. Because of the increasing trend in recycling of
pallets for cost-cutting purposes, manufacturers may be faced with new
demands for treated WPM from domestic exporters who reuse pallets and
wood containers to ship goods back from foreign countries.
Effects on Small Businesses
The provisions of this rule are not expected to directly affect
U.S. manufacturers of wood packaging material. There may be some
decrease in the demand for pallets if some exporters decide to use
alternate packing materials rather than WPM due to treatment costs for
WPM. However, this should be more than balanced by new purchases of
treated pallets by exporter/importers, who must now use treated pallets
when they reuse pallets used to ship goods overseas to subsequently
ship goods back to the United States. This may create an increased
demand by exporters for treated pallets. Also, some U.S. pallet makers
also make alternative packing materials (plywood, particle board) and
could maintain their business levels even if there is a small demand
shift from one category to the other.
The pallet industry in the United States is characterized by many
small firms and a few larger firms. No one firm is able to dominate the
market. U.S. Census data show that there are approximately 3,000 firms
in the wood pallet and container industry. Other estimates of the
number of firms in the industry range up to 3,500 pallet manufacturers
in the United States. Most firms sell their products within a 350 mile
radius. The average number of employees in 1997 was 17. Thirty two
percent of the firms had fewer than five employees. The average sales
were $1.5 million.
The Small Business Administration (SBA) classifies wood container
and pallet manufacturers as small businesses if they have 500 or fewer
employees. According to the U.S. Census Bureau, 1997 Economic Census,
all pallet manufacturers are considered small businesses.
Fumigation services are currently available at several dozen ports
of entry on a permanent or ad hoc basis. In most cases these fumigation
services are provided by large businesses that serve a number of ports.
Two commenters on the proposed rule stated that several fumigators at
ports were small businesses that could be adversely affected if the
demand for fumigation upon arrival decreases, but these commenters did
not provide any specific data on the number or location of these
businesses or the scope of the potential impacts.
While decisions by other countries to adopt the IPPC standard are
independent actions not directly resulting from adoption of this rule,
those decisions do raise the associated issue that the international
WPM market will adjust as Canada, Mexico, and other countries adopt the
IPPC standard. Small businesses such as pallet manufacturers and
fumigators at ports may be adversely affected by those countries'
decisions if they are unable to adapt to the increased demand for
treated pallets. The number of small businesses potentially affected by
other countries' decisions to adopt the IPPC standard is unknown.
However, the adoption of the treatment standards by IPPC member
countries that will then apply to U.S. exports will likely create a
broader impact on the domestic wood packaging industry (small and large
businesses alike) than the provisions of this rule.
Conclusion
This rule will affect foreign manufacturers of pallets which may,
in turn, affect importers and final consumers of goods transported on
pallets. Because the cost of a pallet is a very small share of the
bundle of goods transported on pallets, cost increases due to the
treatment requirements are not expected to significantly affect
domestic consumers and thus will not have a measurable impact on the
flow of trade. This rule is not expected to reduce the amount of goods
shipped internationally as is evident from observing trends in imports
from China since implementation of the interim rule in 1999.
This rule will also affect U.S. consumers of imported pallets.
Given the substitutability of wood pallets, the impact on consumers is
expected to be small due to the availability of wood pallets. Foreign
importers are likely to absorb a greater share of the cost increase.
The simultaneous adoption of the treatment standards by IPPC member
countries that is directed at U.S. exports will likely create a broader
impact on the domestic wood packaging industry than the provisions of
this rule.
This rule contains information collection requirements, which have
been approved by the Office of Management and Budget (see ``Paperwork
Reduction Act'' below.)
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under this rule: (1) All State and local laws and
regulations that are inconsistent with this rule will be preempted; (2)
no retroactive effect will be given to this rule; and (3)
administrative proceedings will not be required before parties may file
suit in court challenging this rule.
[[Page 55731]]
National Environmental Policy Act
On September 19, 2003, the U.S. Environmental Protection Agency
(EPA) published in the Federal Register (68 FR 54900-54901) a notice of
availability of the final environmental impact statement titled
``Importation of Solid Wood Packing Material.'' The FEIS considers the
environmental impacts from importation of wood packaging material that
could result from our adoption of the proposed rule as a final rule.\2\
The FEIS 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).
---------------------------------------------------------------------------
\2\ Copies of the FEIS 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 FEIS may be viewed from the
APHIS Internet site at http://www.aphis.usda.gov/ppd/es/swpm.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 FEIS.
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 wood packaging material imported into the United States
from other countries will be subject to the requirements stipulated in
the IPPC Guidelines. This includes specific treatment requirements for
either heat treatment or fumigation with methyl bromide of the wood
packaging material.
Alternatives Considered in the Impact Statement Process
The FEIS focuses mainly on pest risk issues from the use of wood
packaging material, potential impacts from treatments with methyl
bromide, and potential impacts from use of substitute packaging made
from materials other than unmanufactured solid wood. The FEIS considers
a reasonable range of alternatives, including: (1) No action,
essentially maintaining the exemption from treatment requirements for
importation of wood packaging material from foreign countries except as
regulated under the September 18, 1998, interim rule that required
treatment of WPM from China (China interim rule, 63 FR 50099-50111,
Docket No. 98-087-1), (2) extension to all countries of the treatments
in the China interim rule, (3) adoption of the IPPC Guidelines, (4)
establishment of a comprehensive risk reduction program, and (5) use of
substitute (non-solid wood) packaging material only.
Environmentally Preferable Alternative
The environmentally preferable alternative would be to prohibit
importation of wood packaging material, which would virtually eliminate
all associated pest risks, as well as the need for quarantine
treatments. This regulatory approach (alternative 5 above) would
require all commodities that are to be imported to the United States to
be transported with only substitute packaging material, which at the
current time would be technically and economically infeasible for many
exporters, especially in developing countries.
Preferences Among Alternatives
There is a preference for the approach taken in this final rule,
which we adopt herein (alternative (3), above). The preference for this
alternative is based principally on the determination that it meets the
Agency's obligations under the Plant Protection Act (PPA), and other
legislation such as NEPA and the Clean Air Act.
The no action alterative (alternative 1 above) was rejected because
recent interceptions of pests at ports of entry show a steady increase
in serious pests associated with WPM from everywhere except China,
whose WPM must already be treated due to past pest interceptions. If
left unchecked, pests introduced by imported WPM have the potential to
cause significant economic damage to the agricultural and forest
resources of the United States.
The alternative of extending the China interim rule to all WPM
worldwide (alternative 2 above) would not ensure long-term exclusion of
some wood pests of quarantine concern, such as certain deep wood-
borers, fungi, rots, and wilts. The adoption of the IPPC treatment
standards for all importing countries will address pest threats posed
not only by Cerambycidae, which was the primary target of the China
interim rule, but nine other pest families as well. Additionally,
adoption of the China interim rule requirements would result in the
greatest additional use of methyl bromide of all the alternatives.
The comprehensive risk reduction program (alternative 4 above)
would consist of an array of mitigation methods (e.g., inspection,
various heat treatments, various fumigants and other chemical
treatments, irradiation, etc.) that is more extensive than that
contained in either the China Interim Rule or the IPPC Guidelines. Many
of the methods are in various phases of research and development that
do not provide adequate basis for any final decisions about program
usage.
Substitution of other packing materials (alternative 5 above)
requires use of materials the cost of which exceed the likely costs of
SWPM that is either heat treated or fumigated with methyl bromide.
Please see the FEIS for a full discussion of the reasons why
adopting the IPPC standard was considered the preferred alternative.
Factors in the Decision
APHIS' mission 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 preshipment purposes, including the
purposes provided for in this final rule. The
[[Page 55732]]
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 applications where
technically and economically feasible alternatives exist.
This rule authorizes the use of methyl bromide, as well as heat
treatment, to treat WPM imported from other countries in order to meet
the mandates of the PPA. In addition, the Agency is working to promote
environmental quality with ongoing work to identify and add to our
regulations valid technically and economically feasible alternatives to
methyl bromide.
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 unless other
equally or more effective alternatives were strictly enforced (i.e.,
heat treatment or use of substitute packing materials). By assuring
that use of methyl bromide is limited, 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. 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,
encouraged by APHIS. The prudent use of heat treatment and substitute
packaging materials by developed nations is expected to promote this
regulatory approach in developing countries as their trade
opportunities expand.
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. Achieving the objectives of
both reducing (and ultimately eliminating) methyl bromide emissions as
well as safeguarding agriculture and ecosystems in the most
expeditious, cost-effective way possible, requires close coordination
within the Federal Government of research, development, and testing
efforts. 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 notice summarizing EPA comments on recent environmental impact
statements and proposed regulations that was published in the Federal
Register on January 17, 2003 (68 FR 2539), EPA expressed no objection
to the draft EIS and the APHIS proposed rule.
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 0579-0225.
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, 7 CFR part 319 is amended 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.
0
2. In Sec. 319.40-1, the definitions for Exporter statement, Importer
statement, and Solid wood packing material are removed, and two
definitions are added in alphabetical order to read as follows:
Sec. 319.40-1 Definitions.
* * * * *
Regulated wood packaging material. Wood packaging material other
than manufactured wood materials, loose wood packing materials, and
wood pieces less than 6 mm thick in any dimension, that are used or for
use with cargo to prevent damage, including, but not limited to,
dunnage, crating, pallets, packing blocks, drums, cases, and skids.
* * * * *
Wood packaging material. Wood or wood products (excluding paper
products) used in supporting, protecting or carrying a commodity
(includes dunnage).
0
3. In Sec. 319.40-3, paragraph (b) is revised to read as follows:
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.
* * * * *
(b) Regulated wood packaging material. Regulated wood packaging
material, whether in actual use as packing for regulated or
nonregulated articles or imported as cargo, may be imported into the
United States under a general permit in accordance with the following
conditions:
(1) Treatment. The wood packaging material must have been:
(i) Heat treated to achieve a minimum wood core temperature of 56
[deg]C for a minimum of 30 minutes. Such treatment may employ kiln-
drying, chemical pressure impregnation, or other treatments that
achieve this specification through the use of steam, hot water, or dry
heat; or,
[[Page 55733]]
(ii) Fumigated with methyl bromide in an enclosed area for at least
16 hours at the following dosage, stated in terms of grams of methyl
bromide per cubic meter or pounds per 1,000 cubic feet of the enclosure
being fumigated. Following fumigation, fumigated products must be
aerated to reduce the concentration of fumigant below hazardous levels,
in accordance with label instructions approved by the U.S.
Environmental Protection Agency:
----------------------------------------------------------------------------------------------------------------
Minimum required concentration (g/m\3\
Initial dose and lbs./1,000 c.f.) after:
Temperature ([deg]C/[deg]F) (g/m\3\ and -------------------------------------------
lbs./1,000 c.f) 0.5 hrs 2 hrs. 4 hrs. 16 hrs.
----------------------------------------------------------------------------------------------------------------
21/70 or above..................................... 48/3.0 36/2.25 24/1.5 17/1.06 14/0.875
16/61 or above..................................... 56/3.5 42/2.63 28/1.75 20/1.25 17/1.06
11/52 or above..................................... 64/4.0 48/3.0 32/2.0 22/1.38 19/1.19
----------------------------------------------------------------------------------------------------------------
(2) Marking. The wood packaging material must be marked in a
visible location on each article, preferably on at least two opposite
sides of the article, with a legible and permanent mark that indicates
that the article meets the requirements of this paragraph. The mark
must be approved by the International Plant Protection Convention in
its International Standards for Phytosanitary Measures to certify that
wood packaging material has been subjected to an approved measure, and
must include a unique graphic symbol, the ISO two-letter country code
for the country that produced the wood packaging material, a unique
number assigned by the national plant protection agency of that country
to the producer of the wood packaging material, and an abbreviation
disclosing the type of treatment (e.g., HT for heat treatment or MB for
methyl bromide fumigation). The currently approved format for the mark
is as follows, where XX would be replaced by the country code, 000 by
the producer number, and YY by the treatment type (HT or MB):
[GRAPHIC] [TIFF OMITTED] TR16SE04.000
(3) Immediate reexport of regulated wood packaging material without
required mark. An inspector at the port of first arrival may order the
immediate reexport of regulated wood packaging material that is
imported without the mark required by paragraph (b)(2) of this section,
in addition to or in lieu of any port of first arrival procedures
required by Sec. 319.40-9 of this part.
(4) Exception for Department of Defense. Regulated wood packaging
material used by the Department of Defense (DOD) of the U.S. Government
to package nonregulated articles, including commercial shipments
pursuant to a DOD contract, may be imported into the United States
without the mark required by paragraph (b)(2) of this section.
* * * * *
(Approved by the Office of Management and Budget under control numbers
0579-0049 and 0579-0225.)
Sec. 319.40-5 [Amended]
0
3. In Sec. 319.40-5, paragraphs (b)(1)(i)(C), (b)(2), and (b)(2)(i),
the words ``solid wood packing materials'' are removed each time they
occur and the words ``regulated wood packaging material'' are added in
their place, and paragraphs (g) through (k) are removed.
Sec. 319.40-10 [Amended]
0
4. In Sec. 319.40-10, footnote 6, the words ``without a complete
certificate or exporter statement'' are removed and the words ``without
meeting the requirements of this subpart'' are added in their place.
Done in Washington, DC, this 9th day of September 2004.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 04-20763 Filed 9-15-04; 8:45 am]
BILLING CODE 3410-34-P