[Federal Register Volume 71, Number 53 (Monday, March 20, 2006)]
[Rules and Regulations]
[Pages 13923-13925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2626]



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  Federal Register / Vol. 71, No. 53 / Monday, March 20, 2006 / Rules 
and Regulations  

[[Page 13923]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 04-031-2]


Pine Shoot Beetle; Interstate Movement of Pine Bark Products From 
Quarantined Areas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the pine shoot beetle regulations to allow 
pine bark products to be moved interstate from quarantined areas during 
the shoot feeding stage (July 1 through October 31) of the pine shoot 
beetle's life cycle without treatment. We are making this change 
because pine shoot beetles are not present in pine bark products during 
that stage. We are also establishing a management method to allow pine 
bark products to be moved interstate from quarantined areas during the 
overwintering stage (November 1 through March 31) and spring flight 
stage (April 1 through June 30) of the pine shoot beetle's life cycle. 
This action relieves restrictions on the interstate movement of pine 
bark products from quarantined areas during 4 months of the year and 
provides for the use of a management method as an alternative to 
fumigation with methyl bromide for pine bark products moved interstate 
from quarantined areas during the rest of the year.

DATES: Effective Date: April 19, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Weyman Fussell, Program Manager, 
Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit 
134, Riverdale, MD 20737-1231; (301) 734-5705.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 7 CFR 301.50 through 301.50-10 (referred to 
below as the regulations) restrict the interstate movement of certain 
regulated articles from quarantined areas in order to prevent the 
spread of pine shoot beetle (PSB) into noninfested areas of the United 
States.
    On June 6, 2005, we published in the Federal Register (70 FR 32733-
32738, Docket No. 04-031-1) a proposed rule to amend the regulations to 
allow pine bark products to be moved interstate from quarantined areas 
during the shoot feeding stage (July 1 through October 31) of the PSB's 
life cycle without treatment. We also proposed to establish a 
management method to allow pine bark products to be moved interstate 
from quarantined areas during the overwintering stage (November 1 
through March 31) and spring flight stage (April 1 through June 30) of 
the PSB's life cycle.
    We solicited comments concerning our proposal for 60 days ending 
August 5, 2005. We received one comment by that date, from a private 
citizen.
    The commenter was generally opposed to the proposed rule and 
pointed to the statement in the proposed rule that no research has yet 
been conducted regarding the mortality rate for PSB that results from 
mechanical debarking. In the proposed rule, we noted that research on 
mortality rates for two beetles that are of a size similar to PSB, Ips 
typographicus and I. calligraphicus, indicates that mechanical 
debarking produces mortality rates of 93 percent and 99 percent, 
respectively, for those beetles. The commenter expressed concern that 
the number of beetles surviving the mechanical debarking process would 
be sufficient to spread PSB to areas that are now free of the pest.
    As we explained in the proposed rule, during the winter, 97 percent 
of the PSB are under the bark in the bottom 4 inches of the tree trunk. 
As described in the proposed rule and in this final rule, we will 
require that trees be harvested no less than 4 inches above the ground 
level in order to leave 97 percent of the beetles behind. The log then 
must be debarked using either a Rosser head debarker or a ring 
debarker. Either of these debarkers can be expected to kill 93 percent 
of any beetles present. Thus, the combination of harvesting trees at 
least 4 inches above ground level and debarking the harvested logs can 
be expected to kill approximately 99.8 percent of the beetles that were 
present before the log was harvested. This is an extremely low survival 
rate.
    Also, as we explained in the proposed rule, debarking is just one 
step in the management method. After being removed from the log, the 
bark must be either ground into pieces of 1 inch in diameter or less, 
or composted according to the specific procedure described in the 
proposed rule and this final rule. Research and testing have shown that 
either grinding or composting is sufficient to mitigate the risk of 
spreading PSB via the interstate movement of pine bark.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review under 
Executive Order 12866.
    In accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis, which is set out below, regarding the 
economic effects of this rule on small entities.
    We have used all available data to estimate the potential economic 
effects of this rule. However, some of the data we believe would be 
helpful in making this determination have not been available. 
Specifically, data are not available on the costs of stump cutting, 
debarking, bark grinding, and composting processes that serve as 
components of the management plan described in the rule. In our 
proposed rule, we asked the public to provide such data. In addition, 
we invited the public to comment on the potential effects of the 
proposed rule on small entities, in particular the number and kind of 
small entities that may incur benefits or costs from the implementation 
of the proposed rule. However, we did not receive any additional 
information or data in response to those requests.
    This final rule amends the PSB regulations to allow pine bark 
products to be moved interstate from quarantined areas during the shoot 
feeding stage (July 1 through October 31) of the PSB's

[[Page 13924]]

life cycle without treatment. We are making this change because PSB is 
not present in pine bark products during this stage. We are also 
establishing a management method to allow pine bark products to be 
moved interstate from quarantined areas during the overwintering stage 
(November 1 through March 31) and the spring flight stage (April 1 
through June 30) of the PSB's life cycle.
    The regulations have required that pine bark products be fumigated 
with methyl bromide before a certificate can be issued allowing the 
interstate movement of pine bark products from a quarantined area into 
a nonquarantined area. The pine logging and processing industry has not 
considered fumigation with methyl bromide a viable treatment option due 
to its costs.
    This rule establishes a pine bark product management method under 
which a certificate would be issued for the interstate movement of pine 
bark products from a quarantined area without the use of methyl 
bromide. Only mechanical procedures or composting will be required, and 
at some times pine bark products will be allowed to move without 
treatment. This rule has the strong backing of the pine bark industry 
as well as the National Plant Board. APHIS, along with the National 
Plant Board, has found that the mechanical methods, composting, and 
specific handling procedures described in this rule will provide the 
necessary protection against the artificial spread of PSB into 
noninfested areas.
    The groups affected by this action would be any logging, sawmill, 
paper mill, wood chip-energy, and wood chip-mulch operations in the 444 
counties currently quarantined because of PSB.\1\ This rule will 
benefit all of these operations, allowing them to move pine bark 
products out of a quarantined area without the economic burden of first 
fumigating the bark products with methyl bromide.
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    \1\ Under Sec.  301.50-3, part or all of 13 States are 
quarantined for PSB: Illinois, Indiana, Maine, Maryland, Michigan, 
New Hampshire, New York, Ohio, Pennsylvania, Vermont, Virginia, West 
Virginia, and Wisconsin.
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    States in the northeast region, specifically Maine, New Hampshire, 
New York, and Vermont, will benefit from this regulation due to the 
significant contribution the forest industry makes to their economies. 
According to a study published by the North East State Foresters 
Association in March 2001, forest-based manufacturing in this 4-State 
region provides employment for almost 97,000 people and generates $15.7 
billion annually in receipts.\2\
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    \2\ The Economic Importance of the Northeast's Forests, North 
East State Foresters Association (NESFA), March 2001.
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    The forest industry relies heavily on the wood chip processors to 
remove waste bark. The waste pine chips are used for landscaping 
material, burned to produce energy, or used to produce paper. Not only 
do the sawmill and logging operations benefit from this waste removal, 
but the wood chip industry is able to package and sell the bark to 
consumers for landscaping needs. Turning this waste into mulch or other 
products is financially and environmentally beneficial to the forest 
industry and consumers.

Treatment Costs

    Putting aside the environmental impact of using methyl bromide and 
the consumer's possible reluctance to purchase mulch treated with 
methyl bromide, the treatment costs alone of fumigation with methyl 
bromide are prohibitive. The average cost of fumigating a 48-foot 
tractor-trailer loaded with mulch with methyl bromide according to the 
treatment schedule in Sec.  301.50-10(a) is estimated to be $1,435.\3\ 
Considering that a 48-foot tractor trailer holds between 82 and 96 
yards of mulch, the cost of fumigation with methyl bromide is 
approximately $14.95 to $17.50 per yard.
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    \3\ Based on information provided by the Michigan State 
University, Agricultural Extension Service. Cost includes labor and 
materials; sealing of 48-ft. trailer; monitoring of fumigant (4-5 
lbs. per 1,000 cubic ft.); aeration of trailer; and loading and 
unloading of pine mulch and nuggets.
---------------------------------------------------------------------------

    The treatment costs are so high that the wood chip industry is 
unable to absorb these costs, as pine mulch retails for $16 a yard. The 
wood chip industry would have to pass these treatment costs on to 
consumers, approximately doubling the retail price of mulch to $32 per 
yard. Wood chip processors in areas quarantined for PSB are unable to 
compete with wood chip processors in nonquarantined areas due to the 
treatment costs. Sawmill and logging operations are forced to dispose 
of the wood chips themselves.
    Precise cost estimates for the management plan for pine bark 
products could not be obtained. However, for 4 months of the year, pine 
bark products will be able to be moved without restrictions. With 
regard to the other mitigations that would be required in the pine bark 
products management plan, most loggers already cut pine trees more than 
4 inches above the stump, and most pine logs are already debarked using 
a mechanical debarker, meaning that the costs associated with these 
procedures should be low, if they impose any new burden at all. Pine 
bark mulch is typically made either by bark grinding or composting; 
without data on bark processors' current bark grinding and composting 
procedures, it is difficult to estimate what, if any, costs would be 
associated with implementing the management method for pine bark 
processors. However, we believe that any additional costs would still 
be far lower than the cost of fumigation with methyl bromide.

Impact on Small Entities

    The Regulatory Flexibility Act requires that agencies specifically 
consider the economic impact of their regulations on small entities. 
The Small Business Administration (SBA) has established size criteria 
using the North American Industry Classification System (NAICS) to 
determine which economic entities meet the definition of a small firm.
    Most businesses that will be affected by this rule belong to one of 
two NAICS categories: (1) Logging firms, which fall within NAICS 
category 113310, ``Logging,'' and (2) sawmills and other wood 
processing firms, which would fall within NAICS category 113310, 
``Sawmills.'' Firms in both of these categories are considered by the 
SBA to be small entities if they employ fewer than 500 people. Using 
the data provided by the National Agriculture Statistics Service's 2002 
Census of Agriculture, we can assume that most firms in these 
categories would be considered small entities. We do not have any 
specific data regarding how many firms that will be affected by this 
rule are considered to be small entities; we invited public comment on 
this issue in the proposed rule and did not receive any new 
information.
    We believe that this rule will have a positive impact on all 
affected entities, because we believe the management method described 
in the rule would dramatically lower treatment costs for pine bark 
products derived from trees during 8 months of the year and eliminate 
such costs entirely for pine bark products derived from trees felled 
during 4 months of the year.
    This final rule contains no new information collection or 
recordkeeping requirements (see ``Paperwork Reduction Act'' below).

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with

[[Page 13925]]

State and local officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

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

List of Subjects in 7 CFR Part 301

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

0
Accordingly, we are amending 7 CFR part 301 as follows:

PART 30--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3. Section 301.75-15 also issued under Sec. 204, Title II, 
Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-
16 also issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 
400 (7 U.S.C. 1421 note).


0
2. In Sec.  301.50-1, a new definition of pine bark products is added 
in alphabetical order to read as follows:


Sec.  301.50-1  Definitions.

* * * * *
    Pine bark products. Pieces of pine bark including bark chips, bark 
nuggets, bark mulch and bark compost.
* * * * *


Sec.  301.50-2  [Amended]

0
3. In Sec.  301.50-2, paragraph (a) is amended by removing the words 
``Bark nuggets (including bark chips)'' and adding the words ``Bark 
products'' in their place.

0
4. Section 301.50-5 is amended as follows:
0
a. In paragraph (a)(1)(i), by adding the words ``, or, if pine bark 
products, produced according to the requirements of the management 
method in Sec.  301.50-10(d) of this subpart'' after the word 
``subpart''.
0
b. In paragraph (a)(1)(v), by removing the words ``July through 
October'' and adding the words ``July 1 through October 31'' in their 
place; and by adding the words ``or if the regulated article is pine 
bark products produced from a tree felled and debarked during the 
period of July 1 through October 31'' before the word ``; and''.
0
c. By revising paragraph (a)(2)(iii) to read as set forth below.


Sec.  301.50-5  Issuance and cancellation of certificates and limited 
permits.

    (a) * * *
    (2) * * *
    (iii) The pine log with pine bark attached, pine lumber with bark 
attached, or pine stump from a tree felled during the period of July 1 
through October 31, or the pine bark products produced from a tree 
felled and debarked during the period of July 1 through October 31, 
will be shipped interstate from the quarantined area during the period 
of July 1 through October 31 of the same year in which the source tree 
was felled; and
* * * * *

0
5. Section 301.50-10 is amended as follows:
0
a. By revising the section heading to read as set forth below.
0
b. In paragraph (a), by removing the words ``pine bark nuggets 
(including bark chips)'' and adding the words ``pine bark products'' in 
their place.
0
c. By adding a new paragraph (d) to read as set forth below.


Sec.  301.50-10  Treatments and management method.

* * * * *
    (d) Management method for pine bark products. The following 
procedures are authorized for use with pine bark products derived from 
white pine (Pinus strobus), Scotch pine (P. sylvestris), red pine (P. 
resinosa), and jack pine (P. banksiana) trees. Pine bark products will 
only be considered to have been produced in accordance with this 
management method if the following procedures are followed:
    (1) For pine bark products produced from trees felled during the 
period November 1 through March 31:
    (i) The trees must be harvested at a height of 4 inches or more 
above the duff line; and
    (ii) The trees must have been mechanically debarked with a ring 
debarker or a Rosser head debarker; and
    (iii) For Scotch pine, red pine, and jack pine, the bark must 
either be ground into pieces of 1 inch or less in diameter or composted 
in accordance with the procedure in paragraph (d)(3) of this section.
    (2) For pine bark products produced from trees felled during the 
period April 1 through June 30:
    (i) The trees must have been mechanically debarked with a ring 
debarker or a Rosser head debarker; and
    (ii) The bark must either be ground into pieces of 1 inch or less 
in size or composted in accordance with the procedure in paragraph 
(d)(3) of this section.
    (3) Composting for pine bark products for the management method in 
this paragraph (d) must be performed as follows:
    (i) The pile of pine bark to be composted must be at least 200 
cubic yards in size; and
    (ii) The compost pile must remain undisturbed until the interior 
temperature of the pile reaches 120 [deg]F (49 [deg]C) and remains at 
or over that temperature for 4 consecutive days; and
    (iii) After the 4-day period is completed, the outer layer of the 
compost pile must be removed to a depth of 3 feet; and
    (iv) A second compost pile must be started using the cover material 
previously removed as a core. Core material must be removed from the 
first pile and used to cover the second compost pile to a depth of 3 
feet; and
    (v) The second compost pile must remain undisturbed until the 
interior temperature of the pile reaches 120 [deg]F (49 [deg]C) and 
remains at or over that temperature for 4 consecutive days. After this 
4-day period, the composting procedure is complete.
    (vi) Previously composted material generated using this procedure 
may be used as cover material for subsequent compost piles. A compost 
pile that uses previously composted material must remain undisturbed 
until the interior temperature of the pile reaches 120 [deg]F (49 
[deg]C) and remains at or over that temperature for 4 consecutive days. 
After this 4-day period, the composting procedure is complete.

    Done in Washington, DC, this 14th day of March 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 06-2626 Filed 3-17-06; 8:45 am]
BILLING CODE 3410-34-P