[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Rules and Regulations]
[Pages 12437-12444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4962]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Rules
and Regulations
[[Page 12437]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. APHIS-2007-0117]
RIN 0579-AC90
Importation of Wooden Handicrafts From China
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the regulations to provide for the importation
of wooden handicrafts from China under certain conditions. From 2002 to
2005, the Animal and Plant Health Inspection Service (APHIS) issued
more than 300 emergency action notices and conducted national recalls
to remove infested Chinese-origin wooden handicrafts from the U.S.
marketplace. In 2005, APHIS suspended the importation of certain wooden
handicrafts until we could more fully analyze the pest risks associated
with those articles. Based on evidence from a pest risk analysis, APHIS
has determined that these articles can be safely imported from China,
provided certain conditions are met. This action allows for trade in
Chinese wooden handicrafts to resume while continuing to protect the
United States against the introduction of plant pests.
DATES: Effective Date: April 30, 2012.
FOR FURTHER INFORMATION CONTACT: Mr. John Tyrone Jones, Trade Director
(Forestry Products), Phytosanitary Issues Management, PPQ, APHIS, 4700
River Road Unit 140, Riverdale, MD 20737-1231; (301) 734-8860.
SUPPLEMENTARY INFORMATION:
Background
The regulations in ``Subpart-Logs, Lumber, and Other Unmanufactured
Wood Articles'' (7 CFR 319.40-1 through 319.40-11, referred to below as
the regulations) govern the importation of various logs, lumber, and
other unmanufactured wood products into the United States. Under Sec.
319.40-9 of the regulations, all regulated articles must be inspected
at the port of first arrival. If a regulated article shows any signs of
pest infestation, the inspector may require treatment, if an approved
treatment exists, or refuse entry of the consignment.
Prior to 2005, wood decorative items and craft products (wooden
handicrafts) from China had been entering the United States in
increasing quantities. However, between 2002 and 2005, the Animal and
Plant Health Inspection Service (APHIS) issued more than 300 emergency
action notices for wooden handicrafts from China. Moreover, in 2004,
the United States Department of Agriculture (USDA) intercepted live
wood-boring beetles, Callidiellum villosulum (Coleoptera:
Cerambycidae), on articles manufactured from wood components and
imported from China. Subsequent to these interceptions, shipments of
the articles were recalled from retail stores. Based on these pest
interceptions, in 2005, we suspended the importation of most wooden
handicrafts (i.e., all handicrafts made from wooden logs, limbs,
branches, or twigs greater than 1 centimeter in diameter) from China
until a more thorough evaluation of the pest risks associated with
those articles could be conducted.
APHIS prepared a pest risk assessment, titled ``Pests and
mitigations for manufactured wood d[eacute]cor and craft products from
China for importation into the United States,'' to evaluate the risks
associated with the importation of such wooden handicrafts into the
United States from China. We also prepared a risk management document,
titled ``Pests and mitigations for manufactured wood d[eacute]cor and
craft products from China for importation into the United States,'' to
determine mitigations necessary to prevent pest entry, introduction, or
establishment associated with imported wooden handicrafts from China.
Based on the conclusions in the pest risk assessment and the
accompanying risk management document, we determined that wooden
handicrafts could be imported from China provided they met certain
requirements for treatment, issuance of a phytosanitary certificate,
inspection, and box identification.
Accordingly, on April 9, 2009, we published in the Federal Register
(74 FR 16146-16151, Docket No. APHIS-2007-0117) a proposal \1\ to
authorize the importation of wooden handicrafts from China under those
conditions. We solicited comments concerning the proposed rule for 60
days ending June 8, 2009. We received eight comments by that date. They
were from the national plant protection organization (NPPO) of China, a
State department of agriculture, manufacturers of Chinese wooden
handicrafts, a public advocacy organization, and private citizens.
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\1\ To view the proposed rule, supporting documents, and the
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2007-0117.
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One of the commenters urged us to finalize the proposed rule
without change. The remaining commenters provided comments on the rule
in general, and requested modifications to certain of its provisions.
Based on one of the comments received on the proposed rule, on
September 23, 2010, we published in the Federal Register a supplemental
proposal (75 FR 57864-57866, Docket No. APHIS-2007-0117) to modify the
heat treatment requirements of the proposed rule. We solicited comments
concerning the supplemental proposal for 60 days ending November 22,
2010. We received six comments by that date. They were from State
Departments of Agriculture, a manufacturer of wooden picture frames,
and two private citizens.
The comments on both the proposed rule and the supplemental
proposal are discussed below by topic.
General Comments on the Proposed Rule
One commenter stated that the measures that we proposed for Chinese
wooden handicrafts were not the least restrictive necessary to mitigate
the plant pest risk associated with such articles. As a result, the
commenter stated that the proposed rule violated World Trade
Organization principles.
The provisions of the proposed rule reflect the substantive plant
pest risk that wooden handicrafts from China
[[Page 12438]]
have historically presented, our analysis of the quarantine pests
currently known to exist in China, and our determination regarding the
likelihood that the importation of wooden handicrafts from China will
present a pathway for introducing or disseminating these pests within
the United States. Accordingly, the provisions represent the least
restrictive measures that we considered possible at the time that we
initiated rulemaking for the proposed rule.
That said, in response to comments received on the proposed rule,
we issued the supplemental proposal mentioned above to propose to
modify the heat treatment requirements of the proposed rule. We have
also determined that one other provision of the proposed rule, which
would have required the handicrafts to be accompanied by a
phytosanitary certificate issued by the NPPO of China and containing an
additional declaration stating that the handicrafts were treated in
accordance with the regulations and found free from quarantine pests,
is unnecessary. We discuss this change in greater detail later in this
document, in the section titled ``Comments Regarding Phytosanitary
Certificates.''
One commenter stated that it appeared that the greatest remedial
measure APHIS would take in response to violations of the proposed rule
would be to prohibit the importation of wooden handicrafts from certain
manufacturers into the United States. The commenter expressed concern
that this would not be a sufficient incentive for manufacturers to
adhere to the provisions of the proposed rule, given that these
manufacturers currently have little to no access to the U.S. market.
Under the regulations, all wooden handicrafts from China would have
to be accompanied by a permit stating the intended treatment for the
articles, as well as an importer document or certificate stating that
the intended treatment has in fact been applied to the articles. In
response to inaccuracies on a permit, importer document, or
certificate, APHIS may determine not to accept any further certificates
from China, or may not allow the importation of any further wooden
handicrafts or regulated articles from China until corrective action
acceptable to APHIS establishes that certificates issued in China are
accurate. We consider the possibility of such general prohibitions a
sufficient incentive for Chinese manufacturers to adhere to the
provisions of this rule.
We discuss these possible remedial measures at greater length later
in this document, in the section titled ``Comments Regarding
Phytosanitary Certificates.''
One commenter suggested that the scope of the final rule be
expanded to include wooden handicrafts from other countries. The
commenter asserted that many countries have plant pests that are
identical or similar to those found in China.
To date, only wooden handicrafts from China have been determined to
be infested with quarantine pests as a result of an inspection at a
port of first arrival. If, in the future, an inspector discovers
quarantine pests in or on handicrafts from another country, he or she
will prohibit their entry into the United States subject to remedial
measures. As a result of such a detection, APHIS may prohibit further
importation of all such handicrafts from that country, pending
completion of a pest risk analysis. If this analysis concludes that
subjecting the handicrafts to the same mitigation measures that we are
requiring for wooden handicrafts from China will adequately mitigate
the risk associated with their importation, we will initiate rulemaking
to amend the regulations accordingly.
One commenter stated that we should take into consideration the
potential environmental impact associated with the importation of
wooden handicrafts from China.
We evaluated these possible impacts in the environmental assessment
that accompanied the proposed rule. Based on the comments we received,
we are issuing a finding of no significant impact along with this final
rule.
Finally, the NPPO of China requested that we delay the effective
date of this rule for one year in order to give the NPPO sufficient
time to establish internal policies and procedures to facilitate
manufacturers' compliance with the rule's provisions. The NPPO also
requested that, during this delay, we authorize the importation of
wooden handicrafts from China under the conditions for importation that
were in effect prior to 2005.
Because of the significant plant pest risk associated with the
importation of wooden handicrafts from China, as evidenced by the more
than 300 emergency action notices we issued for such handicrafts
between 2002 and 2005, we cannot authorize the importation of wooden
handicrafts from China under conditions other than those of this final
rule, and, accordingly, cannot grant such a delayed implementation
date.
Comments Regarding Proposed Definitions
Section 319.40-1 contains definitions for certain terms used in the
regulations pertaining to logs, lumber, and other wood articles. We
proposed to add a new definition to this section for wooden handicraft.
We proposed to define a wooden handicraft as a commodity class of
regulated articles derived or made from natural components of wood,
twigs, and vines, and including bamboo poles and garden stakes. The
proposed definition provided that handicrafts included the following
products where wood is present: Carvings, baskets, boxes, bird houses,
garden and lawn/patio furniture (rustic), potpourri, artificial trees
(typically artificial ficus trees), trellis towers, garden fencing and
edging, and other items composed of wood.
We also proposed to revise the definition of regulated article so
that articles that contain parts that are either unprocessed or have
received only primary processing and are not feasibly separable from
the other parts of the articles would be considered regulated articles
for the purposes of the regulations. We stated that wooden handicrafts,
as we proposed to define them, would always contain such unprocessed or
partially processed parts.
It was within the framework of these definitions that we proposed
to add a new paragraph (o) to Sec. 319.40-5, which contains
importation requirements for specified regulated articles, to authorize
the importation of wooden handicrafts from China.
One commenter stated that the definition of wooden handicraft was
too broad, and would subject wooden handicrafts from China that are
currently authorized for importation into the United States to the
provisions of the proposed rule. The commenter suggested that we modify
the proposed definition to include only those wooden handicrafts
currently prohibited importation into the United States from China,
that is, handicrafts more than 1 centimeter in diameter.
We agree with the commenter that the proposed rule would have
regulated handicrafts 1 centimeter or less in diameter, and that such
handicrafts are currently authorized for importation into the United
States.
However, we do not consider it necessary to revise our definition
of wooden handicraft in the manner requested by the commenter. The
definitions in Sec. 319.40-1 are intended to have general
applicability within the subpart, and it is possible that we will
[[Page 12439]]
initiate rulemaking at some future point to restrict the importation of
wooden handicrafts from another country in which quarantine pests are
determined to infest handicrafts less than 1 centimeter in diameter.
Moreover, if we revised the definition of wooden handicraft to state
that it only includes items more than 1 centimeter in diameter, this
could be construed to exempt handicrafts less than 1 centimeter in
diameter from the definition of regulated article. This is not the
case; although such handicrafts are exempt from the requirements of
Sec. 319.40-5(o), they are regulated articles, and thus are subject to
all other applicable provisions of the subpart.
Accordingly, we have instead decided to modify proposed Sec.
319.40-5(o) to state that the provisions of that paragraph apply only
to wooden handicrafts from China that are more than 1 centimeter in
diameter, and that articles less than 1 centimeter in diameter,
although exempt from the requirements of Sec. 319.40-5(o), are still
subject to all other applicable provisions of 7 CFR chapter III.
Two commenters stated that they manufactured wooden handicrafts
that fell within the definition of wooden handicrafts, but not the
definition of regulated article. The commenters stated that these
articles had wooden parts, but that the parts were fully, rather than
partially, processed. Both commenters asked if their products would be
regulated under the provisions of the proposed rule.
Wooden handicrafts are a class of regulated articles. Accordingly,
we will consider an article to be a wooden handicraft only if it also
meets the definition of regulated article. Thus, the commenters'
products would be exempt from the provisions of this rule.
The same commenters stated that they manufactured handicrafts that
fell within the scope of both wooden handicraft and regulated article,
but that these handicrafts presented a minimal pest risk and should
therefore be exempt from the requirements of Sec. 319.40-5(o).
As we pointed out in our proposed rule, Chinese wooden handicrafts
have historically been a pathway for the introduction of quarantine
pests into the United States. Based on this plant pest risk and the
findings of our pest risk assessment, it would be not be appropriate to
exempt certain wooden handicrafts from China from the provisions of the
regulations. Indeed, one of these commenters implied that quarantine
pests are occasionally discovered on wooden handicrafts at its
production facility.
Comments Regarding Heat Treatment
In proposed Sec. 319.40-5(o)(1)(i), we stated that wooden
handicrafts would have to be treated with heat treatment in accordance
with Sec. 319.40-7(c) or heat treatment with moisture reduction in
accordance with Sec. 319.40-7(d). At the time the proposed rule was
published, Sec. 319.40-7(c) provided that heat treatment may take
place only at a facility where APHIS or an inspector authorized by the
Administrator and the national government of the country in which the
facility is located has inspected the facility and determined that its
operation complies with the treatment specifications as follows: Heat
treatment procedures may employ steam, hot water, kilns, exposure to
microwave energy, or any other method (e.g., the hot water and steam
techniques used in veneer production) that raises the temperature of
the center of each treated regulated article to at least 71.1 [deg]C
(160[emsp14][deg]F) and maintains the regulated article at that center
temperature for at least 75 minutes.
Similarly, at the time our proposed rule was published, Sec.
319.40-7(d) provided that heat treatment with moisture reduction may
include kiln drying conducted in accordance with the schedules
prescribed for the regulated article in the Dry Kiln Operator's Manual,
Agriculture Handbook 188, which we have incorporated by reference at
Sec. 300.2, or dry heat, exposure to microwave energy, or any other
method that raises the temperature of the center of each treated
regulated article to at least 71.1 [deg]C (160 [deg]F), maintains the
regulated articles at that center temperature for at least 75 minutes,
and reduces the moisture content of the regulated article to 20 percent
or less as measured by an electrical conductivity meter.
A commenter suggested that APHIS authorize the NPPO of China to
approve heat treatment facilities.
Under Sec. 305.8, which contains general heat treatment
requirements for 7 CFR chapter III, all heat treatment facilities must
be certified by APHIS and facilities located outside the United States
must operate in accordance with workplan signed by a representative of
the heat treatment facilities located outside the United States, the
NPPO of the country of origin, and APHIS. The workplan must contain
requirements for equipment, temperature, water quality, circulation,
and other measures to ensure that heat treatments are administered
properly. Workplans for facilities outside the United States must
include trust fund agreement information regarding payment of the
salaries and expenses of APHIS employees on site. Workplans must also
allow officials of the NPPO and APHIS to inspect the facility to
monitor compliance with APHIS regulations. Given these requirements,
the NPPO of China will play a significant role, along with APHIS, in
the process of certifying heat treatment facilities.
Two commenters stated that the moisture of a regulated article can
be reduced to 20 percent or less by a number of means other than heat
treatment with moisture reduction, such as drying the article for 24
hours. The commenters suggested that we modify the regulations to
incorporate these alternate moisture reduction techniques.
Moisture reduction, in and of itself, is not an adequate mitigation
measure for wooden articles. It is efficacious only in conjunction with
heat treatment.
One commenter asked whether handicrafts made entirely from lumber
that has been treated with heat treatment prior to processing would
have to be treated a second time, while another stated that handicrafts
that have been treated with heat treatment as part of their partial
processing should not have to be treated a second time prior to
exportation.
Provided that the lumber or handicrafts have been treated in an
approved facility according to an authorized treatment schedule and
provided that they have been stored, handled, and safeguarded since
treatment in a manner that excludes infestation of the lumber or
handicrafts by plant pests, the handicrafts would not have to be
treated a second time.
Finally, a commenter pointed out that the proposed rule would
require most wooden handicrafts to be treated at a significantly higher
temperature and for a longer duration than the temperature and duration
recommended by International Standard for Phytosanitary Measures (ISPM)
15, which recommends that wood packaging material (WPM) be treated
according to a heat treatment schedule that raises the temperature at
the center of the WPM to at least 56 [deg]C and maintains the WPM at
that center temperature for at least 30 minutes.\2\ The commenter
suggested that we should modify the proposed heat treatment requirement
for Chinese wooden handicrafts to make it consistent with ISPM 15.
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\2\ To view ISPM 15, go to: https://www.ippc.int/index.php?id=13399&tx_publication_pi1*showUid]=133703&frompage=13399&type=publication&subtype=&L=0#item
.
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In response to this comment, we reviewed the relevant scientific
literature, and determined that
[[Page 12440]]
treatment consistent with ISPM 15, although effective in neutralizing
most of the pests of greatest concern identified in the pest risk
assessment as likely to follow the pathway on imported wooden
handicrafts from China, would not be effective for emerald ash borer
(EAB). Because EAB is an extremely destructive pest, we determined that
treatment consistent with ISPM 15 would not adequately mitigate the
pest risk.
However, an article by Scott Myers et al. titled ``Evaluation of
Heat Treatment Schedules for Emerald Ash Borer (Coloeptera:
Buprestidae)'' in the December 2009 issue of Journal of Economic
Entomology \3\ led us to reevaluate the treatment schedule in the
proposed rule. Myers et al. documented four independent experiments to
determine the minimum core temperature and time duration necessary to
neutralize EAB on firewood via heat treatment or heat treatment with
moisture reduction. As part of the experiments, researchers obtained
ash wood from trees showing visible signs of EAB infestation, split the
wood, and stored it. They then heat-treated the articles in laboratory
facilities (a drying oven and an environmental chamber) at temperatures
and durations ranging from 45 to 65 [deg]C and 15 to 60 minutes,
respectively. Myers et al. found that the experiments suggested that
``a minimum heat treatment of 60 [deg]C for 60 minutes * * * would
provide >99.9% control (for EAB) based on probit estimates.''
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\3\ Myers, Scott, Ivich Fraser, and Victor Mastro, ``Evaluation
of Heat Treatment Schedules for Emerald Ash Borer (Coloeptera:
Buprestidae)'', Journal of Economic Entomology, 102:6 (December
2009), 2048-2055. Referred to below as ``Myers et al.''
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Since firewood presents similar or greater plant pest risks than
wooden handicrafts, we determined that the Myers et al. findings were
applicable to wooden handicrafts from China.
This determination led us to issue the September 2010 supplemental
proposal. In it, we proposed to modify proposed Sec. 319.40-5(o)(1)(i)
to state that wooden handicrafts would have to be treated as specified
in the PPQ Treatment Manual \4\ in accordance with 7 CFR part 305, and
to add heat treatment that raises the core temperature of handicrafts
to 60 [deg]C for a duration of 60 minutes to the PPQ Treatment Manual
as an approved treatment schedule for wooden handicrafts from China.
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\4\ The Treatment Manual is available on the Internet, at http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/treatment.pdf.
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One commenter agreed that Myers et al. did in fact provide a basis
for such a modification.
In contrast, another commenter raised numerous concerns regarding
the appropriateness of our use of Myers et al. as the basis for
modifying our proposed heat treatment requirements for wooden
handicrafts from China. The commenter pointed out that Myers et al.
only sought to determine the minimum heat treatment necessary to
neutralize EAB. The commenter stated that, because of its morphology
and burrowing patterns, EAB is more susceptible to heat treatment than
other plant pests in the families Cerambycidae and Siricidae identified
in the pest risk assessment as possibly following the pathway on wooden
handicrafts from China.
The commenter provided no information in support of this assertion.
Moreover, as documented in the treatment evaluation document that
accompanied the supplemental proposal, all scientific evidence
available to APHIS suggests that heat treatment consistent with ISPM
15--that is, treatment at a lower temperature and duration than that
specified in our supplemental proposal--will kill all other pests
identified in the pest risk assessment as likely to follow the pathway
on wooden handicrafts from China.
The commenter pointed out that the kilns used by Myers et al. were
relatively small, as was the volume of firewood heat-treated in the
experiments. The commenter then referred to an article in the October
2010 issue of the Journal of Economic Entomology by P. Charles Goebel
et al.\5\ as providing evidence that larger volumes of wood products in
larger kilns tend to heat more unevenly than smaller products in
smaller kilns, and stated that Chinese wooden handicrafts would likely
be treated en masse in large-scale kilns. For this reason, the
commenter stated that the treatment methods and apparati employed by
Myers et al. fundamentally differed from those that manufacturers of
Chinese handicrafts are likely to employ, and that the results of Myers
et al. could therefore not be considered a reliable indicator of the
efficacy of heat treatment of Chinese handicrafts under the provisions
of the supplemental proposal.
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\5\ Goebel, P. Charles, Matthew Bumgardner, Daniel Herms, and
Andrew Sabula, ``Failure to Phytosanitize Ash Firewood Infested with
Emerald Ash Borer in a Small Dry Kiln Using ISPM 15 Standards,''
Journal of Economic Entomology, 103:3 (October 2010), 597-602.
Available on the Internet at http://www.nrs.fs.fed.us/pubs/jrnl/2010/nrs_2010_goebel_001.pdf. Referred to below as ``Goebel et
al.''
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Our supplemental proposal to modify the heat treatment requirements
was based not on an assumption that Chinese manufacturers will
reduplicate the methods of Myers et al. but on the conclusion of Myers
et al. that heat treatment that ``achieves a temperature of 60 [deg]C
for 60 minutes * * * would provide >99.9% control (for EAB),'' and on
our evaluation of the accuracy of the probit estimates that led to this
conclusion. (A probit refers to a unit of measurement of statistical
probability based on deviations from the normal distribution of
results. Probit estimates are often used within statistics to assess
the risk of an event occurring in comparison to the likelihood that it
will not occur.)
Moreover, as we mentioned above, the regulations require all heat
treatments that occur in a foreign country to take place in a facility
certified by APHIS, and specify that certification is, in part,
predicated upon a facility's having equipment able to meet treatment
schedule parameters. This aspect of the certification process would
include evaluating the suitability of any large-scale kilns at the
facility for conducting the requisite heat treatment.
The same commenter pointed out that the conclusion of Myers et al.
was based on probit estimates and mathematical regression, rather than
on the actual results of a full range of experiments. The commenter
pointed out that Myers et al. did not repeatedly treat firewood at 60
[deg]C for 60 minutes in order to establish the efficacy of such a
treatment and questioned the reliability of probit estimates.
In evaluating heat treatment schedules, probit estimates are
intended to provide, not the minimum temperature and time duration that
may achieve 100 percent mortality of a quarantine pest, but the minimum
temperature and time duration that will prove efficacious in doing so
with a high degree of statistical reliability. In other words,
treatment schedules established through probit estimates are, by
design, more conservative, both in temperature and duration, than
schedules established through simple reduplication of a particular
experiment in order to achieve a minimal efficacious treatment
schedule.
The commenter stated that, based on their experiments, Goebel et
al. determined that heat treatment at 56 [deg]C for a duration of 82
minutes was not an effective treatment schedule for EAB. The commenter
asserted that this determination called into question the efficacy of
heat treatment at 60 [deg]C for a duration of 60 minutes for EAB.
[[Page 12441]]
The efficacy of heat treatment as a mitigation for a particular
pest is dependent not only on the duration of the treatment, but also
on the temperature it achieves in the treated article. Accordingly,
Goebel et al.'s determination does not necessarily contradict the
determination of Myers et al. Moreover, the commenter provided no
scientific basis for considering the determinations contradictory.
The same commenter stated that heat treatment at 60 [deg]C for a
duration of 60 minutes would not be effective in killing certain types
of phytopathogenic fungi.
Phytopathogenic fungi were determined to be likely to follow the
pathway on wooden handicrafts from China only if they were introduced
by an arthropod vector. Arthropods that could serve as such vectors
were considered in the pest risk assessment.
Finally, the commenter stated that heat treatment consistent with
ISPM 15 would not be efficacious in treating wooden handicrafts from
China for all quarantine pests likely to follow the pathway on the
handicrafts.
We agree with the commenter. That is why we proposed to require a
more stringent treatment.
As we mentioned in the supplemental proposal, we published a final
rule in the Federal Register on January 26, 2010 (75 FR 4228-4253,
Docket No. APHIS-2008-0022), that was effective on February 25, 2010,
and that, among other things, removed all treatment schedules found in
7 CFR chapter III, including those in Sec. 319.40-7(c) and (d). It
replaced all such schedules with a reference to 7 CFR part 305, which
contains our regulations governing phytosanitary treatments. Last, it
amended 7 CFR part 305 itself to state that all approved treatment
schedules for regulated articles are found not in the regulations but
in the PPQ Treatment Manual, and to establish a process for adding new
treatment schedules for regulated articles to the Treatment Manual.
In accordance with this process, we are modifying proposed Sec.
319.40-5(o)(1) to state that wooden handicrafts from China must be
treated as specified in the PPQ Treatment Manual in accordance with 7
CFR part 305. We have also added the relevant treatment schedules for
the handicrafts to the Treatment Manual; the schedules for heat
treatment and heat treatment with moisture reduction specify that the
treatment must raise the core temperature of the handicrafts to 60
[deg]C for a duration of 60 minutes.
Comments Regarding Treatment With Methyl Bromide
In proposed Sec. 319.40-5(o)(1)(ii), we stated that wooden
handicrafts that are less than 6 inches in diameter may be treated with
methyl bromide fumigation in accordance with 7 CFR part 305, instead of
with heat treatment or heat treatment with moisture reduction.
Several commenters stated that methyl bromide is known to deplete
the stratospheric ozone layer, and that authorizing its use for
treating Chinese wooden handicrafts violates the Montreal Protocol, in
which the United States agreed to gradually reduce and ultimately
eliminate use of methyl bromide. Another commenter stated that, while
the number of applications of methyl bromide that would initially occur
under the provisions of the proposed rule would likely be minimal, as
the U.S. market for Chinese wooden handicrafts became more established
and trade in those commodities increased, the number of applications
would also increase. The same commenter stated that such an increase in
trade with China could lead other countries to request that APHIS
authorize the use of methyl bromide for similar regulated articles. All
these commenters asked APHIS not to authorize the use of methyl bromide
for wooden handicrafts from China, and to pursue alternate treatment
options.
The United States Government encourages methods that do not use
methyl bromide to meet phytosanitary standards where alternatives are
deemed to be technically and economically feasible. As stated in the
proposed rule, APHIS would allow fumigation only for a certain type of
wooden handicrafts from China, those less than 6 inches in diameter.
All other handicrafts would have to be treated with heat treatment or
heat treatment with moisture reduction. In addition, in accordance with
Montreal Protocol Decision XI/13 (paragraph 7), APHIS is committed to
promoting and employing gas recapture technology and other methods
whenever possible to minimize harm to the environment caused by methyl
bromide emissions.
However, paragraph 5 of Article 2H of the Montreal Protocol does
allow for quarantine and preshipment uses of methyl bromide, and does
not specify a maximum number of such applications. Therefore, the
provisions of this rule are not in conflict with the protocol.
Finally, in accordance with the overarching objectives of the
protocol, APHIS is currently examining the efficacy of other treatment
options for Chinese wooden handicrafts. If we determine that treatments
exist that are equally efficacious and are available within China, we
will amend the Treatment Manual.
One commenter expressed concerns about the human health impacts
associated with the use of methyl bromide. The commenter stated that
methyl bromide is known to be a carcinogen, skin and lung irritant, and
neurotoxin if persons are exposed to it for prolonged periods of time.
In a similar manner, another commenter suggested that we modify the
proposed rule so that methyl bromide fumigation may only take place in
an approved facility that adheres to stringent human health standards.
APHIS' statutory authority extends only to establishing regulations
to mitigate the plant pest risk associated with the importation of
plants and plant products into the United States. Accordingly, it is
the responsibility of the Chinese government to establish and enforce
human health standards regarding the safe use of methyl bromide.
Accordingly, based on our evaluation of the issue, we have decided
to approve methyl bromide fumigation as a treatment for wooden
handicrafts from China that are less than 6 inches in diameter, and
have added this treatment to the Treatment Manual. However, because, as
we mentioned above, we are currently examining the efficacy of other
treatment options for Chinese wooden handicrafts, Sec. 319.40-5(o)(1),
as finalized, does not make explicit reference to any one treatment
option for the handicrafts. Such a modification will allow us to use
the approach established by the January 26, 2010, final rule to add any
new treatment schedules that we determine to be efficacious for Chinese
wooden handicrafts to the Treatment Manual through publishing notices
in the Federal Register, rather than through rules.
Comments Regarding Phytosanitary Certificates
In proposed Sec. 319.40-5(o)(2), we stated that all consignments
of wooden handicrafts would have to be accompanied by a phytosanitary
certificate issued by the NPPO of China, and that the certificate would
have to contain an additional declaration stating that the handicrafts
were treated in accordance with Sec. 319.40-5 and inspected and found
free from quarantine pests.
Two commenters stated that the certificate would duplicate existing
documentation required under the
[[Page 12442]]
regulations, and therefore should not be required.
In response to these comments, we reexamined the proposed provision
in light of existing regulations within the subpart. In Sec. 319.40-
2(a), we require a specific permit to be issued in accordance with
Sec. 319.40-4 prior to the importation of a regulated article, unless
the article is imported for propagation or human consumption, or is
authorized importation under a general permit. Section 319.40-4 sets
forth the procedure for applying for a specific permit. As part of this
procedure, we require that each application include a description of
any treatment to be performed prior to importation, including the
location where the treatment will be performed, as well as the name and
address of the importer of record.
Similarly, in Sec. 319.40-2(b), we require an importer document or
certificate to accompany all regulated articles, unless the article is
imported for propagation or human consumption, or is authorized
importation under a general permit. This importer document or
certificate must state the treatment performed on the article prior to
arrival at the point of first arrival.
Wooden handicrafts from China are not imported for propagation or
human consumption, and are not authorized importation under a general
permit. Hence, each importation of wooden handicrafts from China must
be authorized under a specific permit and accompanied by an importer
document or certificate.
Finally, Sec. 319.40-7 sets forth treatment requirements for
regulated articles. Paragraph (a) of that section provides that, in
response to inaccuracies on a document accompanying a regulated
article, APHIS may determine not to accept any further certificates for
the importation of regulated articles from that country, or may not
allow the importation of any or all regulated articles from the country
until corrective action acceptable to APHIS establishes that
certificates issued in the country are accurate.
Collectively, these requirements provide APHIS with information
regarding the treatment applied to wooden handicrafts from China, a
responsible party in the event that any imported handicrafts are
determined to be infested with quarantine pests, and sufficiently
stringent remedial measures to deter parties from providing inaccurate
information on documents associated with the importation. As a result,
we do not consider a phytosanitary certificate necessary, and are not
including that requirement in this final rule.
Three commenters stated that China has repeatedly authorized the
export of contaminated or infested commodities in recent years. One of
these commenters stated that Chinese officials are not concerned with
the veracity of information on documents pertaining to the importation
of these commodities. All the commenters stated that APHIS should not
allow the NPPO of China to issue phytosanitary certificates, but should
instead station personnel in China to monitor all treatments of wooden
handicrafts and inspect all consignments destined for export to the
United States.
As we stated above, we consider the regulations to provide
sufficient remedial measures to deter parties from providing inaccurate
information on any document pertaining to the importation of wooden
handicrafts from China. Moreover, we note that, under Sec. 319.40-9,
all regulated articles must be inspected at the port of first arrival.
If a regulated article shows any signs of pest infestation, the
inspector may require treatment, if an approved treatment exists, or
refuse entry of the consignment.
Comment Regarding Identification Tags
In proposed Sec. 319.40-5(o)(3), we stated that all individual
packages of wooden handicrafts would have be labeled with a merchandise
tag containing the identity of the product manufacturer. We further
stated that the tag would have to be applied to each package in China
prior to exportation and remain attached to the package until it
reaches the location at which the wooden handicraft would be sold in
the United States.
Two commenters stated that they manufacture wooden handicrafts that
are packaged in a manner that prevents an identification tag from being
applied to the package. One of these commenters requested that APHIS
provide guidance regarding how manufacturers could apply the tag to
packaging in a manner that would not deter consumers from purchasing
their product.
The tag must be applied to each shipping package containing wooden
handicrafts, rather than to the packaging for any particular
handicraft. For example, if a wooden train containing partially
processed parts were sealed in a blister package in China, and a box
containing several dozen of these trains were exported to the United
States for sale at a toy store, the identification tag would have to be
applied to the box that is shipped to the store, rather than to the
individual blister packages. We have modified proposed Sec. 319.40-
5(o)(3) to clarify that it refers to shipping packages, rather than
packaging.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, with the
changes discussed in this document.
Executive Orders 12866 and 13563 and Regulatory Flexibility Act
This final 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.
We have prepared an economic analysis for this rule. The economic
analysis provides a cost-benefit analysis, as required by Executive
Orders 12866 and 13563, which direct agencies to assess all costs and
benefits of available regulatory alternatives, and if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, and equity). Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility. The economic analysis
also examines the potential effects of this rule on small entities, as
required by the Regulatory Flexibility Act. The economic analysis is
summarized below. Copies of the full analysis are available by
contacting the person listed under FOR FURTHER INFORMATION CONTACT or
on the Regulations.gov Web site (see footnote 1 at the beginning of
this document for a link to Regulations.gov).
This rule will allow for the resumption of imports of wooden
handicrafts from China, provided certain conditions are met. In 2005,
APHIS suspended the importation of certain wooden handicrafts until we
could more fully analyze the pest risks associated with those articles.
We have determined that the heat, heat with moisture reduction, and
methyl bromide fumigation treatment options prescribed in this rule
will sufficiently mitigate these pest risks.
Protection of U.S. forests against the introduction and spread of
invasive pests is vital to the economic well-being of the forestry
industries as well as to maintaining the forests' environmental and
aesthetic benefits for the general public. The hundreds of millions of
dollars that have been spent to control the spread of EAB and the Asian
longhorned beetle exemplify the enormous cost to the United States when
invasive pests become
[[Page 12443]]
established. This rule will establish safeguards against further
incursions of wood-boring pests such as these via the importation of
infested handicrafts from China, while allowing the importation of such
handicrafts to resume.
U.S. entities are expected to be minimally affected by this rule.
Wooden handicrafts comprised a very small fraction of wood products
imported from China prior to April 2005, and similar levels of
importation are expected following promulgation of this rule.
Nonetheless, U.S. consumers of wooden handicrafts will benefit from
reestablished access to these products from China. Treatment costs,
representing on average less than 2 percent of the value of the
products shipped, will be borne by firms in China, and any fraction of
those costs that may be passed on to U.S. buyers will be negligible. In
addition, benefits are expected to exceed costs.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
National Environmental Policy Act
An environmental assessment and finding of no significant impact
have been prepared for this final rule. The environmental assessment
provides a basis for the conclusion that the importation of wooden
handicrafts from China under the conditions specified in the rule will
not have a significant impact on the quality of the human environment.
Based on the finding of no significant impact, the Administrator of the
Animal and Plant Health Inspection Service has determined that an
environmental impact statement need not be prepared.
The environmental assessment and finding of no significant impact
were 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).
The environmental assessment and finding of no significant impact
may be viewed on the Regulations.gov Web site.\6\ Copies of the
environmental assessment and finding of no significant impact are also
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, copies may be
obtained by writing to the individual listed under FOR FURTHER
INFORMATION CONTACT.
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\6\ Go to http://www.regulations.gov/#!docketDetail;D=APHIS-
2007-0117. The environmental assessment and finding of no
significant impact will appear in the resulting list of documents.
---------------------------------------------------------------------------
Paperwork Reduction Act
This final rule does not include an information collection
requirement that had been included in the proposed rule. Specifically,
for the reasons described earlier in this document, this final rule
does not include a requirement for the completion of phytosanitary
certificates.
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 0579-0357.
E-Government Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government Act to promote the use of the Internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this rule, please contact Mrs. Celeste Sickles,
APHIS' Information Collection Coordinator, at (301) 851-2908.
List of Subjects in 7 CFR Part 319
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant
diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Rice, Vegetables.
Accordingly, we are amending 7 CFR part 319 as follows:
PART 319--FOREIGN QUARANTINE NOTICES
0
1. The authority citation for part 319 continues to read as follows:
Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136
and 136a; 7 CFR 2.22, 2.80, and 371.3.
0
2. The subpart heading for ``Subpart-Logs, Lumber, and Other
Unmanufactured Wood Articles'' is amended by removing the word
``Unmanufactured''.
0
3. Section 319.40-1 is amended by revising the definition of regulated
article and adding, in alphabetical order, a definition for wooden
handicraft to read as follows:
Sec. 319.40-1 Definitions.
* * * * *
Regulated article. The following articles, if they are unprocessed,
have received only primary processing, or contain parts that are either
unprocessed or have received only primary processing and are not
feasibly separable from the other parts of the article: Logs; lumber;
any whole tree; any cut tree or any portion of a tree, not solely
consisting of leaves, flowers, fruits, buds, or seeds; bark; cork;
laths; hog fuel; sawdust; painted raw wood products; excelsior (wood
wool); wood chips; wood mulch; wood shavings; pickets; stakes;
shingles; solid wood packing materials; humus; compost; litter; and
wooden handicrafts.
* * * * *
Wooden handicraft. A commodity class of articles derived or made
from natural components of wood, twigs, and vines, and including bamboo
poles and garden stakes. Handicrafts include the following products
where wood is present: Carvings, baskets, boxes, bird houses, garden
and lawn/patio furniture (rustic), potpourri, artificial trees
(typically artificial ficus trees), trellis towers, garden fencing and
edging, and other items composed of wood.
0
4. Section 319.40-5 is amended by adding a new paragraph (o) and
revising the OMB citation at the end of the section to read as follows:
Sec. 319.40-5 Importation and entry requirements for specified
articles.
* * * * *
(o) Wooden handicrafts from China. Wooden handicrafts more than 1
centimeter in diameter may be imported into the United States from
China only in accordance with this paragraph and all other applicable
provisions of this title. Wooden handicrafts less than 1 centimeter in
diameter are exempt from the requirements of this paragraph, but
[[Page 12444]]
are still subject to all other applicable provisions of this chapter.
(1) Treatment. Wooden handicrafts must be treated in accordance
with part 305 of this chapter.
(2) Identification tag. All packages in which wooden handicrafts
are shipped must be labeled with a merchandise tag containing the
identity of the product manufacturer. The identification tag must be
applied to each shipping package in China prior to exportation and
remain attached to the shipping package until it reaches the location
at which the wooden handicraft will be sold in the United States.
(Approved by the Office of Management and Budget under control
numbers 0579-0049, 0579-0257, 0579-0319, and 0579-0367)
Done in Washington, DC, this 27th day of February 2012.
Edward Avalos,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2012-4962 Filed 2-29-12; 8:45 am]
BILLING CODE 3410-34-P