[Federal Register Volume 69, Number 165 (Thursday, August 26, 2004)]
[Rules and Regulations]
[Pages 52409-52419]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-19519]



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Federal Register / Vol. 69, No. 165 / Thursday, August 26, 2004 / 
Rules and Regulations

[[Page 52409]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 98-054-3]
RIN 0579-AB02


Importation of Unmanufactured Wood Articles From Mexico

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations to add restrictions on the 
importation of pine and fir logs and lumber, as well as other 
unmanufactured wood articles, from Mexican States adjacent to the 
United States/Mexico border. This rule requires that these wood 
articles meet certain treatment and handling requirements to be 
eligible for importation into the United States. This action is 
necessary to prevent the introduction into the United States of plant 
pests, including forest pests, with unmanufactured wood articles from 
Mexico.

DATES:  Effective September 27, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. Hesham Abuelnaga, Import 
Specialist, Phytosanitary Issues Management, PPQ, APHIS, 4700 River 
Road Unit 140, Riverdale, MD 20737-1236; (301) 734-5334.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Logs, Lumber, and Other 
Unmanufactured Wood Articles'' (7 CFR 319.40-1 through 319.40-11, 
referred to below as the regulations) are intended to mitigate the 
plant pest risk presented by the importation of logs, lumber, and other 
unmanufactured wood articles.
    The regulations have provided, in part, that unmanufactured wood 
articles may be imported into the United States from Canada and from 
Mexican States adjacent to the United States/Mexico border \1\ under a 
general permit, while unmanufactured wood articles from Mexican States 
that are not adjacent to the United States/Mexico border are subject to 
more rigorous requirements. The less restrictive importation 
requirements for unmanufactured wood articles imported into the United 
States from Canada and from Mexican States adjacent to the United 
States/Mexico border were based on the premise that the forests in the 
United States share a common forested boundary with Canada and adjacent 
States in Mexico and, therefore, share, to a reasonable degree, the 
same forest pests. However, a Forest Service pest risk assessment 
published in February 1998 showed that a significant pest risk exists 
in the movement of raw wood material into the United States from the 
adjacent States of Mexico.\2\ This conclusion was later confirmed by 
United States Department of Agriculture (USDA) inspectors during 
inspections at ports of entry along the United States/Mexico border.
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    \1\ The Mexican States adjacent to the United States/Mexico 
border are Baja California Norte, Chihuahua, Coahuila, Nuevo Leon, 
Sonora, and Tamaulipas.
    \2\ Copies of ``Pest Risk Assessment of the Importation Into the 
United States of Unprocessed Pinus and Abies Logs From Mexico,'' may 
be obtained from the person listed under FOR FURTHER INFORMATION 
CONTACT or viewed on the Internet at http://www.fpl.fs.fed.us/
documnts/fplgtr/fplgtr104.pdf.
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    In response to these findings, on June 11, 1999, we published in 
the Federal Register (64 FR 31512-31518, Docket No. 98-054-1) a 
proposal to amend the regulations by adding restrictions on the 
importation of pine and fir logs and lumber, as well as other 
unmanufactured wood articles, from the northern border States of 
Mexico. We proposed to amend the regulations to provide that pine and 
fir logs and lumber, as well as other unmanufactured wood articles, 
imported into the United States from Mexican States adjacent to the 
United States/Mexico border would be subject to the same requirements 
as Mexican States that are not adjacent to the United States/Mexico 
border.
    Specifically, for unmanufactured wood articles from Mexico, we 
proposed to limit the scope of the general permit under Sec.  319.40-
3(a) to cover only the importation, from the northern border States, of 
unmanufactured mesquite wood for cooking, unmanufactured wood for 
firewood, and small, noncommercial packages of unmanufactured wood for 
personal cooking or personal medicinal purposes. We proposed several 
miscellaneous changes, including requiring that the pressure treatment 
for railroad ties required by Sec.  319.40-5(f) be conducted at a U.S. 
facility under compliance agreement with the Animal and Plant Health 
Inspection Service (APHIS); removing the provision in Sec.  319.40-3(a) 
that the importer document required by that paragraph must state that 
the articles have never been moved outside Canada or the northern 
border States of Mexico; and specifying that an importer document is 
necessary only for commercial shipments of unmanufactured wood articles 
imported into the United States under a general permit.
    We also proposed to amend Sec.  319.40-5 to add methyl bromide 
fumigation as an additional treatment option for cross-ties and pine 
and fir lumber from all of Mexico. However, upon further consideration, 
we have determined that it is not necessary to provide for the use of 
methyl bromide fumigation for cross-ties and pine and fir lumber from 
all of Mexico. To date, Mexican States that are not adjacent to the 
United States/Mexico border have been able to export cross-ties and 
pine and fir lumber to the United States in accordance with the 
existing regulations. Therefore, these States do not appear to need the 
alternative treatment of methyl bromide fumigation. In contrast, kiln 
drying capacity is very limited in the Mexican States adjacent to the 
United States/Mexico border, and we expect that it will take some time 
for new kilns to be built in those States. Given the limited kiln 
drying capacity and the fact that all of the quarantine pests 
identified in the pest risk assessment can be mitigated by methyl 
bromide fumigation, we believe it is reasonable to add methyl bromide 
fumigation as an alternative treatment for cross-ties and pine and fir 
lumber from Mexican States adjacent to the United States/Mexico border. 
Accordingly, paragraph (l) of Sec.  319.40-

[[Page 52410]]

5 in this final rule adds methyl bromide fumigation as an alternative 
treatment for cross-ties and pine and fir lumber from Mexican States 
adjacent to the United States/Mexico border. In addition, we have added 
a footnote to indicate that cross-ties from these States may also be 
imported if pressure treated with a preservative or heat treated. As 
additional kilns are built in the Mexican States adjacent to the United 
States/Mexico border, we expect that kiln drying will become the 
preferred method of treatment because it increases the commercial value 
of unmanufactured wood while satisfying phytosanitary treatment 
requirements.
    We solicited comments concerning our proposal for 60 days ending on 
August 10, 1999. We received 21 comments by that date. They were from 
various timber industry representatives, environmental groups, State 
representatives, and other interested individuals. Although the 
commenters generally supported our efforts to close a potential pathway 
for the introduction of dangerous plant pests into the United States, 
some commenters expressed concern about specific provisions of the 
proposal. These are discussed by subject below.

Lumber and Cross-Ties

    Comment: For cross-ties and pine and fir lumber, APHIS should 
require mandatory fumigation immediately prior to importation and heat 
or pressure treatment within 30 days following importation. The 
proposal's provision to limit treatment only to methyl bromide 
fumigation prior to importation does not adequately address the pest 
risk associated with the importation of these articles.
    Response: We do not agree that both fumigation with methyl bromide 
and heat or pressure treatment should be required as a condition of 
entry for cross-ties and pine and fir lumber. Methyl bromide fumigation 
was proposed merely as an alternative treatment for cross-ties and pine 
and fir lumber from Mexico. We are confident that requiring that lumber 
and cross-ties be completely free of bark and treated with only one of 
these treatment options affords the adequate level of pest protection 
needed to allow entry of these articles from Mexican States adjacent to 
the United States/Mexico border.
    Comment: The proposed requirements for lumber and cross-ties from 
Mexico should apply to all other countries.
    Response: We do not agree that the proposed alternative methyl 
bromide treatment for cross-ties and pine and fir lumber from Mexico 
should be expanded to other countries. Indeed, in this final rule, we 
have limited the proposed alternative methyl bromide treatment to only 
cross-ties and pine and fir lumber from Mexican States adjacent to the 
United States/Mexico border. We proposed methyl bromide fumigation as 
an alternative treatment based upon the results of an extensive pest 
risk assessment of wood from Mexico conducted by the U.S. Forest 
Service. All of the quarantine pests identified in the pest risk 
assessment can be mitigated by methyl bromide fumigation. This is not 
true for all pests known to exist in other countries.
    Comment: APHIS should require cross-ties from Mexico imported into 
the United States to be treated at the point of origin in Mexico, not 
treated after arrival in the United States. The provision that allows 
cross-ties from Mexico to enter the United States untreated if they 
will be treated within 30 days of importation presents a high pest risk 
and requires less stringent importation measures for Mexico than for 
other countries with less diverse populations of forest pests.
    Response: The provisions of Sec.  319.40-5(f) that allow cross-ties 
to enter the United States untreated as long as they are completely 
free of bark and pressure treated within 30 days following importation 
are not new, nor do they apply only to cross-ties from Mexico. Rather, 
those provisions, since they became effective on August 23, 1995, have 
applied to cross-ties from all places except places in Asia that are 
east of 60[deg] East Longitude and north of the Tropic of Cancer. Thus, 
the importation measures for Mexico are no different than those for 
other countries from which cross-ties may be imported into the United 
States.
    Consistent with what we discussed in the proposed rule, we are 
amending Sec.  319.40-5(f) in this final rule to add the requirement 
that the post-importation pressure treatment for cross-ties be 
conducted at a U.S. facility that is operating under a compliance 
agreement.
    Comment: APHIS needs to add provisions to the proposal that will 
help prevent lumber and cross-ties imported by rail or truck from 
Mexico from being reinfested, or infesting U.S. forests, during 
transport. Such provisions may include sealed containers, requiring 
rail doors to remain closed, and trucks to be securely covered. The 
provisions should apply to movement to and within the United States.
    Response: We believe the requirements in this rule and the 
applicable permits are sufficient to prevent the reinfestation of 
articles treated prior to shipment to the United States, as well as the 
infestation of U.S. forests, during transport. Lumber and cross-ties 
treated in Mexico are at low risk of reinfestation, or infesting U.S. 
forests, during transport to and within the United States. Therefore, 
there is little need for additional safeguards. Moreover, there is 
reduced risk of infestation from untreated cross-ties and lumber from 
Mexico due to the requirements for debarking, inspection, restrictions 
on commingling of regulated articles, and direct transport to a 
treatment facility.
    Comment: It appears that the proposal would not require an import 
permit for cross-ties entering the United States from Mexico. This is 
inconsistent with the current regulations. APHIS should require an 
import permit for cross-ties from Mexico to ensure that APHIS personnel 
and State officials can identify, and place under compliance agreement, 
mills that will process the ties.
    Response: This rule amends the regulations to provide that, with 
the exception of certain articles covered by general permit, 
unmanufactured wood articles imported into the United States from 
Mexican States adjacent to the United States/Mexico border are subject 
to substantially the same requirements that apply to those articles 
imported from Mexican States that are not adjacent to the United 
States/Mexico border. (We say ``substantially the same'' due to our 
inclusion of fumigation as a treatment option for cross-ties and pine 
and fir lumber from Mexican States adjacent to the United States/Mexico 
border; otherwise, the requirements are the same.) Specifically, for 
articles from Mexico, this rule limits the use of a general permit 
under Sec.  319.40-3(a) to the importation, from Mexican States 
adjacent to the United States/Mexico border, of unmanufactured mesquite 
wood for cooking, unmanufactured wood for firewood, and small, 
noncommercial packages of unmanufactured wood for personal cooking or 
personal medicinal purposes. Accordingly, specific permits under Sec.  
319.40-2(a) will, in fact, be required for the importation of regulated 
articles from Mexico, including cross-ties.
    Comment: According to the proposed text of Sec.  319.40-5(1), 
cross-ties from Mexico may only be imported into the United States if 
they are 100 percent bark-free and have been fumigated according to the 
T312 treatment schedule. APHIS should also allow heat or pressure 
treatment of these articles.
    Response: We currently allow cross-ties to be imported from all 
places,

[[Page 52411]]

except certain places in Asia, if they are pressure treated with a 
preservative in accordance with Sec.  319.40-5(f). In this final rule, 
we have amended paragraph (f) of Sec.  319.40-5 to specify that cross-
ties must be pressure treated ``with a preservative.'' This has always 
been the way Sec.  319.40-5(f) has been interpreted; however, we are 
adding, for clarification purposes, the words ``with a preservative.'' 
We also currently allow heat treatment of cross-ties from all places, 
in accordance with Sec.  319.40-7(c). For clarification, we have 
amended paragraph (f) of Sec.  319.40-5 in this final rule to indicate 
that cross-ties from Mexico may be imported if pressure treated with a 
preservative or heat treated.
    As previously noted, this final rule provides an alternative 
treatment for cross-ties from Mexican States adjacent to the United 
States/Mexico border. For clarification, we have amended paragraph (l) 
of Sec.  319.40-5 in this final rule to indicate that cross-ties from 
Mexican States adjacent to the United States/Mexico border may be 
imported if pressure treated with a preservative, heat treated, or 
fumigated.
    Comment: Do the proposed changes for lumber apply to finished 
lumber, raw lumber, or both?
    Response: The regulations do not define finished or raw lumber. The 
regulations in the subpart apply to regulated articles, including 
lumber, that are unprocessed or have received only primary processing, 
such as cleaning (removal of soil, limbs, and foliage), debarking, 
rough sawing (bucking or squaring), rough shaping, spraying with 
fungicide or insecticide sprays, and fumigation. Hence, for example, 
the regulations would apply to commercial types of lumber, such as 2 x 
4's, but would not apply to processed articles such as plywood or 
veneer.
    Comment: APHIS should require additional handling measures (besides 
segregation from domestic stock) for U.S. processing mills handling 
lumber from Mexico. Such requirements would help protect forests 
adjacent to these processing mills.
    Response: Currently, U.S. processing facilities enter into 
compliance agreements. These compliance agreements specify the 
requirements necessary to prevent the spread of plant pests from the 
facility.

Methyl Bromide Fumigation

    Comment: APHIS should not propose methyl bromide fumigation as a 
treatment option for the importation of unmanufactured wood articles 
from Mexico because there are effective and available alternative 
treatments, such as heat treatment. The continued use of methyl bromide 
as a quarantine treatment to control pests is allowed under the 
Montreal Protocol and the Clean Air Act; however, this does not 
necessarily mean that this treatment should be added as an option when 
other effective treatments exist. For example, Decisions VI/11 and VII/
5 of the Meetings of the Parties to the Montreal Protocol urge all 
countries to refrain from the use of methyl bromide in quarantine 
applications and to use non-ozone depleting technologies wherever 
possible. Allowing the use of methyl bromide for quarantine treatment 
of Mexican wood articles when other effective treatments exist would be 
inconsistent with these decisions.
    Response: On January 2, 2003, the U.S. Environmental Protection 
Agency (EPA) published in the Federal Register a final rule titled 
``Protection of Stratospheric Ozone: Process for Exempting Quarantine 
and Preshipment Applications of Methyl Bromide'' which, among other 
things, sets forth the parameters for the quarantine exemption. In that 
final rule, the EPA stated that, ``For commodities imported to, 
exported from, and transported within the U.S., the exemption for 
quarantine applications will apply when: (1) Methyl bromide is 
identified within quarantine regulations as the unique treatment option 
for specific quarantine pests; (2) methyl bromide is identified within 
quarantine regulations as one among a list of treatment options for 
specific quarantine pests; and (3) methyl bromide is required for an 
emergency quarantine application'' (68 FR 242). We believe that APHIS' 
adoption of methyl bromide fumigation as an alternative treatment for 
cross-ties and pine and fir lumber from Mexican States adjacent to the 
United States/Mexico border falls within these parameters.
    APHIS is committed to finding environmentally acceptable 
alternative treatments to methyl bromide fumigation. However, we are 
also committed to fulfilling our certain obligations under 
international agreements to recognize efficacious and economically 
feasible quarantine treatments to control pests. In this instance, we 
have determined that allowing methyl bromide fumigation as an 
alternative treatment option for imported cross-ties and pine and fir 
lumber from Mexican States adjacent to the United States/Mexico border 
would provide the necessary level of pest protection with minimal 
impact on the environment.
    This determination is supported by an environmental impact 
statement (EIS) titled ``Rule for the Importation of Unmanufactured 
Wood Articles From Mexico, With Consideration for Cumulative Impact of 
Methyl Bromide Use,'' which considered the potential cumulative impact 
on the environment of methyl bromide use that could result if the 
proposed rule was adopted.\3\ The EIS calculates that a realistic worst 
case scenario would be an increase in annual methyl bromide use of 24 
metric tons (MT) \4\ and the emissions from this increase would be 21 
MT, and notes that 24 MT is less than one-tenth of 1 percent of the 
annual current total worldwide methyl bromide consumption (63,960 MT). 
The EIS further notes that the actual increase in methyl bromide use 
most likely would be much less than 24 MT because it is believed that 
most suppliers of unmanufactured wood articles from Mexican border 
States would choose heat treatment over methyl bromide treatment 
because heat treated wood is preferred for commercial purposes.
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    \3\ Copies of the EIS may be obtained from the person listed 
under FOR FURTHER INFORMATION CONTACT. The EIS may also be viewed on 
the Internet at http://www.aphis.usda.gov/ppd/es/mb.html.
    \4\ The EIS notes that the 1998 environmental assessment for the 
proposed rule estimated that the amount of methyl bromide required 
to fumigate wood articles was 72 MT, rather than 24 MT. The EIS 
clarifies that the 72 MT figure was based on potentially fumigating 
every unmanufactured wood article imported into the United States 
from Mexico, whereas the 24 MT figure is a more likely estimate of 
methyl bromide use on unmanufactured wood articles from only the 
Mexican border States.
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    Comment: APHIS needs to assess, not presume, the efficacy of the 
proposed methyl bromide treatments for lumber and cross-ties from 
Mexico. One of the proposed treatment schedules, T404, was developed to 
address the pest risk presented by wood boring insects. Its efficacy 
against other pests is unknown. The other proposed treatment schedule, 
T312, was developed to treat logs infested with oak root fungus. Its 
efficacy against other pests is also unknown. Any assessment of these 
proposed treatment schedules should include an analysis of each 
treatment's effectiveness against a complex of pests in a variety of 
hard and soft woods.
    Response: Methyl bromide fumigation has a long history of use for 
treatment of logs and other wood articles because of its high 
volatility, ability to rapidly penetrate most materials, and broad 
toxicity against a wide variety of plant pests (all life stages of 
insects, mites, and ticks; nematodes, including cysts; snails and 
slugs; and fungi, such as oak wilt fungus). Yet there is little 
specific

[[Page 52412]]

scientific information available about the efficacy of methyl bromide 
fumigation against many pests and pathogens.
    APHIS' Plant Protection and Quarantine (PPQ) Treatment Manual, 
which is incorporated by reference in the regulations, provides two 
methyl bromide fumigation schedules for wood products: T404 and T312. 
Treatment schedule T404 is a generic treatment for general insect 
control, while treatment schedule T312 is a more rigorous treatment 
that has been demonstrated to be effective in eradicating oak wilt 
disease. This final rule adds methyl bromide fumigation in accordance 
with treatment schedule T312 as an additional treatment option for 
imported cross-ties and pine and fir lumber from Mexican States 
adjacent to the United States/Mexico border; treatment schedule T404 
was not offered as a treatment option in the proposed rule and is not 
included in this final rule.
    We believe that treatment schedule T312 will be efficacious against 
all quarantine pests of concern identified by the pest risk assessment. 
We are confident that this dose will be sufficient to mitigate any 
other pests of concern in or on the wood. This dose of methyl bromide 
has been effective in eradicating oak wilt fungus, and a much lower 
dose of methyl bromide (treatment schedule T404) has been effective 
against wood boring insects.
    Comment: APHIS needs to develop a focused program to eliminate the 
use of methyl bromide. Currently, APHIS appears to be more concerned 
with economics and the facilitation of imports to the United States 
than with taking a proactive position regarding methyl bromide. The 
proposal only serves to enhance this impression.
    Response: Through collaborative research agreements with the USDA's 
Agricultural Research Service, we continue to study alternatives to the 
use of methyl bromide as a phytosanitary measure. In recent years, we 
have approved several alternative treatments including hot forced air, 
hot water treatment, and irradiation.

Solid Wood Packing Material (SWPM)

    As previously noted, this rule amends the regulations by providing 
that most unmanufactured wood articles, including SWPM, imported into 
the United States from Mexican States adjacent to the United States/
Mexico border are subject to substantially the same requirements that 
apply to those articles imported from Mexican States that are not 
adjacent to the United States/Mexico border. Therefore, under the 
regulations, all SWPM entering the United States from Mexico must now 
be totally free from bark and apparently free from live plant pests or 
must have been heat treated, fumigated, or treated with preservatives 
(Sec.  319.40-3(b)).
    Comment: APHIS needs to impose stricter import requirements on SWPM 
from Mexico. At the very least, APHIS should require that all SWPM 
entering the United States from Mexico be debarked before importation. 
As a more complete solution, APHIS should adopt the North American 
Plant Protection Organization's standards for risk mitigation of SWPM.
    Response: As noted in the paragraph preceding this comment, SWPM 
from all areas of Mexico will now have to satisfy the requirements of 
Sec.  319.40-3(b), which provides for debarking and/or treatment of 
SWPM as a condition of entry. These phytosanitary requirements for the 
entry of SWPM from Mexico are consistent with the requirements that 
apply to SWPM from the rest of the world, except for Canada and China. 
Nevertheless, we note that on May 20, 2003, we published in the Federal 
Register (68 FR 27480-27491, Docket No. 02-032-2) a proposal to amend 
the regulations for the importation of unmanufactured wood articles to 
adopt an international standard entitled ``Guidelines for Regulating 
Wood Packaging Material in International Trade'' that was approved by 
the Interim Commission on Phytosanitary Measures of the International 
Plant Protection Convention on March 15, 2002.
    Comment: APHIS should prohibit, under the provisions of a gradual 
phase-out program, the importation of SWPM from Mexico. There are 
alternatives to SWPM that would not harbor pests.
    Response: While a prohibition on SWPM from Mexico would eliminate 
the pest risks associated with those articles, we cannot justify such a 
restrictive measure given the availability of effective and less 
restrictive mitigation measures.
    Comment: Additional treatment options, such as treatment with an 
EPA-registered borate product, should be allowed for SWPM from Mexico. 
These products do not affect the strength of the wood and offer natural 
protection against most common wood-destroying insects and decay fungi 
when applied through dip diffusion. Further, due to their retention in 
wood, borates provide protection against reinfestation for the life of 
the SWPM.
    Response: We do not agree that treatment with an EPA-registered 
borate product should be allowed for SWPM from Mexico. As noted in the 
EIS, borate is a chemical that has been used to protect lumber from 
decay, fungi, and beetles during shipment. Borate treatments work best 
when the wood is kept moist during the diffusion period. Although 
generally considered to diffuse readily into green wood, borate may not 
be able to migrate through the larger dimension materials of less 
permeable species in the timeframes typical of imported wood products. 
Furthermore, borate treatments may not be effective against all life 
stages of insects and some fungi.
    Comment: For the movement of certain commodities, such as food, 
chemical treatment of SWPM may not be acceptable to other Federal 
agencies. Therefore, it would be best not to allow the chemical 
treatment of any SWPM imported into the United States.
    Response: Any treatment of SWPM must be in accordance with the PPQ 
Treatment Manual and any other applicable Federal laws and regulations, 
including the Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA), as amended.
    Comment: SWPM made of reused wood consistently has a moisture 
content of less than 20 percent and, therefore, greater resistance to 
pest infestation. APHIS should allow this type of SWPM to be marked and 
be exempt from the proposed regulations. This change would be in 
accordance with Sec.  319.40-3(b)(4)(ii) of the current regulations.
    Response: Current Sec.  319.40-3(b)(4) contains specific provisions 
regarding the importation of pallets moved as cargo, and thus does not 
apply to the SWPM referred to by the commenter. Because SWPM is very 
often re-used, recycled, or remanufactured, the true origin of any 
piece of SWPM is difficult to determine and thus its phytosanitary 
status cannot be ascertained. As previously noted, on May 20, 2003, we 
published in the Federal Register (68 FR 27480-27491, Docket No. 02-
032-2) a proposal to amend the regulations for the importation of 
unmanufactured wood articles to adopt an international standard 
entitled ``Guidelines for Regulating Wood Packaging Material in 
International Trade.''
    Comment: The provisions of the proposed rule that relate to the 
importation of SWPM from Mexico are not cost-effective. The proposed 
changes will raise costs for the Mexican business community and result 
in Mexico adding requirements for U.S. exports to that country, which 
will mean added costs for U.S. businesses and U.S. consumers. This 
proposal will also result in costly delays at U.S. ports of entry. 
Also, if more contract inspectors are hired to

[[Page 52413]]

meet demand, the proposal could result in the inconsistent enforcement 
of regulatory requirements. Further, this proposal could result in a 
shift from affordable SWPM to non-wood substitutes, thereby creating 
potential environmental and disposal problems for U.S. businesses. 
Because whatever changes APHIS decides to make to the importation of 
SWPM from Mexico will likely be costly and disruptive, a 5-year phase-
in period should be allowed.
    Response: This rule amends the regulations by providing that 
unmanufactured wood articles, including SWPM, imported into the United 
States from Mexican States adjacent to the United States/Mexico border 
are subject to substantially the same requirements that apply to those 
articles from Mexican States that are not adjacent to the United 
States/Mexico border. The economic analysis in the proposed rule noted 
that a negligible amount of SWPM that is untreated or not free of bark 
has historically entered the United States from the northern border 
States of Mexico. Indeed, the economic analysis went on to note that 
nearly all SWPM from Mexico's border States already meets the entry 
requirements that will be imposed by this rule.
    Accordingly, we do not anticipate that this rule will raise costs 
for the Mexican business community such that Mexico will add 
requirements for U.S. exports to Mexico, resulting in added costs for 
U.S. businesses and consumers. Furthermore, since nearly all SWPM from 
Mexico's border States already meets the entry requirements that will 
be imposed by this rule, we do not expect that this rule will result in 
costly delays at U.S. ports of entry, inconsistent enforcement by 
inspectors, or the use of non-wood substitutes for SWPM. Finally, we do 
not agree that a 5-year phase-in of these regulations is necessary. As 
previously noted, nearly all SWPM from Mexico's border States already 
meets the entry requirements that will be imposed by this rule. 
Therefore, we do not expect that this rule will be costly and 
disruptive, necessitating a 5-year phase-in of the regulations.

Firewood and Small Quantities of Wood for Personal Use

    Comment: APHIS should ensure that any commercial or noncommercial 
shipments of mesquite wood for cooking and firewood, and small, 
noncommercial shipments of unmanufactured wood for personal cooking or 
medicinal purposes, imported into the United States under general 
permit from Mexico are: From Mexican border States, inspected for the 
presence of dangerous insects, and subject to appropriate remedial 
measures if suspicious organisms are found.
    Response: We agree that it is important to inspect and determine 
the origin of noncommercial shipments of mesquite wood for cooking and 
firewood, and small, noncommercial shipments of unmanufactured wood for 
personal cooking or medicinal purposes. Accordingly, we have amended 
Sec.  319.40-3 in this final rule to indicate that noncommercial 
shipments would be subject to inspection and other requirements of 
Sec.  319.40-9 and must be accompanied by an importer document or oral 
declaration stating that they are derived from trees harvested in 
States in Mexico adjacent to the United States border. In the proposed 
rule, we acknowledged that it would not be administratively feasible to 
require an importer document for such noncommercial shipments. However, 
by allowing oral declarations, we anticipate that APHIS will have the 
resources to carry out this added requirement. We note that all 
shipments are subject to inspection upon entry into the United States 
and mitigation if quarantine significant pests are intercepted.
    Comment: Diseases and insects can be transported on firewood and 
small quantities of wood for personal use. Therefore, APHIS should not 
retain provisions to allow such articles from Mexico to enter the 
United States under general permit.
    Response: As noted in the proposed rule, we do not believe that 
firewood and small quantities of unmanufactured wood for personal use 
pose a significant pest risk. Firewood does not pose a significant pest 
risk because of its limited distribution and consumption near the 
United States/Mexico border. Similarly, small, noncommercial packages 
of unmanufactured wood to be used for personal cooking or personal 
medicinal purposes does not pose a significant pest risk because the 
packages are limited in quantity and therefore easily inspected, and 
likely will be distributed and consumed near the border.

Wood Chips

    Comment: APHIS should establish treatment requirements, such as 
steam heat or fumigation, for the phytosanitary treatment of wood chips 
from Mexico, as well as wood chips from other countries.
    Response: Such treatment requirements are already in place. 
Specifically, Sec.  319.40-6(c) of the current regulations contains the 
entry requirements, including treatments, for wood chips from all parts 
of the world, except for certain places in Asia.

Systems Approach

    Comment: APHIS should use a systems approach to mitigate the risk 
of introducing dangerous pests into the United States in unmanufactured 
wood articles from Mexico. The steps of the approach could include 
targeting certain pests, rather than articles, in Mexico; establishing 
programs to control the presence of these pests in Mexico; and 
cooperating with Mexican authorities to monitor pest outbreaks and to 
apply specific measures to prevent the introduction of these pests into 
the United States. Such an approach would be beneficial to U.S. 
businesses, consumers, and forest resources.
    Response: We believe the phytosanitary measures used as entry 
requirements for unmanufactured wood articles afford the United States 
the appropriate level of protection against plant pests and are the 
least restrictive of trade. However, we would consider any specific 
suggestions for alternative phytosanitary measures, including a systems 
approach, for unmanufactured wood articles.

Environmental Analysis

    Comment: APHIS' environmental assessment that accompanied the 
proposal omits important information, uses outdated information to 
analyze the proposal's effects (including the effects that the methyl 
bromide treatment option would have on our environment), and presents 
an inadequate comparison of alternatives.
    Response: As noted previously, we prepared an EIS titled ``Rule for 
the Importation of Unmanufactured Wood Articles From Mexico, With 
Consideration for Cumulative Impact of Methyl Bromide Use'' following 
the publication of the proposed rule to consider the increase in methyl 
bromide use for wood imports from Mexico that could result from the 
adoption of the proposed rule. The focus of the EIS is the incremental 
contribution of methyl bromide use from the proposed action when added 
to other methyl bromide uses for the cumulative impact on the 
environment. The EIS discusses alternatives to the proposed rule, the 
environmental consequences of methyl bromide on the environment, and 
the potential cumulative impact of methyl bromide use associated with 
the proposed rule.

Economic Analysis

    Comment: It is untrue that the majority of firms likely to be 
impacted

[[Page 52414]]

by this rule are located in the southwestern United States. 
Unmanufactured wood articles from Mexico can be shipped wherever there 
is a U.S. market for them.
    Response: In our economic analysis, we did not definitively state 
that the majority of small entities likely to be affected would be 
located in the southwestern United States, we only presumed that would 
be the case. This presumption was based on the geographic proximity of 
the southwestern United States to exporting Mexican border States, and 
considered the small fraction of the U.S. supply of unmanufactured wood 
articles imported from Mexico, and the even smaller percentage 
originating in the Mexican border States. If unmanufactured wood 
articles from Mexico are shipped throughout the United States, the 
effects on small entities in the United States would be so spread out 
as to be considered negligible.

Miscellaneous

    Comment: APHIS should establish adequate compliance monitoring to 
ensure that unmanufactured wood articles from Mexico entering the 
United States under permit to be treated later or heat treated prior to 
importation are indeed treated and handled in conformance with the 
regulations.
    Response: We believe the current monitoring program is sufficient 
to ensure compliance with the regulations. For wood articles treated 
prior to entry, inspectors review treatment documentation at the ports 
of entry for compliance with the regulations. For untreated wood 
articles, inspectors verify that all applicable requirements in the 
regulations have been met and that all required import documentation is 
in order before allowing the articles to move to approved processing 
facilities. An approved processing facility must enter into a 
compliance agreement before it can receive untreated wood articles from 
Mexico. These compliance agreements contain stipulations relating to 
proper compliance with the regulations. The facilities are inspected 
prior to entering into the compliance agreement and undergo random 
monitoring visits. All of these provisions are designed to ensure 
compliance with the regulations.
    Comment: APHIS should describe how kiln drying will provide 
adequate protection from pest infestation, particularly fungi.
    Response: We are confident that kiln drying will provide sufficient 
protection from pest infestation. The effectiveness of dry heat against 
wood boring insects is well-documented in the Dry Kiln Operator's 
Manual, which is incorporated by reference in the regulations, as well 
as in many published articles. Moisture reduction, such as kiln drying, 
is also effective for fungi. Since fungi require a moist environment in 
which to grow, moisture reduction deprives the fungi of the necessary 
wetness to grow while the elevated temperature makes it difficult for 
fungal spores to survive. Although it could be argued that heat 
penetration is more efficient under moist environments, we believe that 
requiring moist heat would cause damage, such as warping, to the wood 
being treated.
    Comment: Kiln drying capacity in Mexico is very limited. Therefore, 
until more kiln drying facilities are built in Mexico, few articles 
will be able to be kiln dried there.
    Response: Pretreatment of wood articles by kiln drying is not the 
only option allowed under the regulations. Heat treatments, including 
kiln drying, are allowed to be completed after entry into the United 
States. Also, this rule allows methyl bromide fumigation as an option 
for imported cross-ties and pine and fir lumber from Mexican States 
adjacent to the United States/Mexico border.
    Comment: Since previous assumptions of risk levels have been shown 
to be in error, it may be time for APHIS to review the risk associated 
with Canadian unmanufactured wood articles.
    Response: Given the pest risk assessment that found that a 
significant pest risk exists in the movement of raw wood material into 
the United States from the adjacent States of Mexico, we agree that we 
need to determine the pest risk associated with unmanufactured wood 
articles from Canada. Accordingly, we have initiated a pest risk 
assessment for unmanufactured wood articles from Canada.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule with the 
changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be significant for the purposes of Executive 
Order 12866 and, therefore, has been reviewed by the Office of 
Management and Budget.
    For this final rule, we have prepared an economic analysis that 
provides a cost-benefit analysis as required by Executive Order 12866, 
as well as an analysis of the potential economic effects of this rule 
on small entities as required by the Regulatory Flexibility Act. The 
economic analysis is summarized below. Copies of the full analysis are 
available by contacting the person listed under FOR FURTHER INFORMATION 
CONTACT.
    We are amending the regulations to add restrictions on the 
importation of pine and fir logs and lumber, as well as other 
unmanufactured wood articles, from the northern border States of 
Mexico. This rule requires that these wood articles meet certain 
treatment and handling requirements to be eligible for importation into 
the United States. This action is necessary to prevent the introduction 
into the United States of plant pests, including forest pests, with 
unmanufactured wood articles from Mexico.
    Specifically, we are amending the regulations as follows:
     By limiting the applicability of the general permit in 
Sec.  319.40-3 for unmanufactured wood articles from Mexican States 
adjacent to the United States/Mexico border to unmanufactured mesquite 
wood for cooking, unmanufactured wood for firewood, and small, 
noncommercial packages of unmanufactured wood for personal cooking or 
personal medicinal purposes.
     By making all other unmanufactured wood articles imported 
from Mexican States adjacent to the United States/Mexico border subject 
to substantially the same entry requirements that apply to those 
articles from the rest of Mexico.
     By adding methyl bromide fumigation as a treatment option 
for debarked pine and fir lumber imports and railroad cross-ties 
imported from Mexican States adjacent to the United States/Mexico 
border.
    Alternatives to the rule would be to not make any changes at all, 
prohibit unmanufactured wood articles from Mexican States adjacent to 
the United States/Mexico border, or not include methyl bromide 
fumigation as a treatment alternative. If the regulations are left 
unchanged, pest risks identified in the Forest Service risk assessment 
would not be addressed. Risks to U.S. agricultural and forestry 
resources would remain at their current unacceptable level. By placing 
unmanufactured wood imports from Mexican States adjacent to the United 
States/Mexico border under substantially the same phytosanitary 
restrictions as the rest of Mexico, the border Mexican States will be 
able to continue to export these commodities to the United States.
    Prohibition of unmanufactured wood imports from Mexican States 
adjacent to

[[Page 52415]]

the United States/Mexican border would be inconsistent with APHIS' 
position that effective means of pest risk mitigation are available. 
Not including methyl bromide fumigation as a treatment option could 
limit unmanufactured wood imports from Mexican States adjacent to the 
United States/Mexico border if alternative means of treatment in the 
region are of insufficient capacity. Insufficient kiln drying capacity 
is possible because unmanufactured wood articles currently enter the 
United States from Mexican States adjacent to the United States/Mexico 
border under general permit and phytosanitary treatment is not 
required. In sum, the amended regulations, in providing a set of 
balanced, science-based requirements in response to identified pest 
risks, is the preferred alternative.
    Approximated percentages of unmanufactured softwood imports that 
originate in Mexican States adjacent to the United States/Mexico border 
are used to evaluate the impact of the regulatory amendments. In its 
pest risk assessment, the Forest Service used pine and fir pests as 
surrogates for determining overall pest risks. Similarly, this analysis 
focuses on softwood imports, since they comprise over 90 percent, by 
value, of lumber and wood molding imported by the United States from 
Mexico and globally.
    Molding is the most significant of softwood imports from Mexico, 
comprising over 60 percent. This commodity group includes both 
manufactured and unmanufactured articles. Available statistics do not 
allow for the two categories of softwood molding imports to be 
distinguished. Since only unmanufactured wood articles are affected by 
this rule, two analyses are performed, one including and one excluding 
softwood molding.
    We approximate that between 35 and 40 percent, by value, of 
softwood articles imported from Mexico originate in Mexican States 
adjacent to the United States/Mexico border. When molding is not 
included in the analysis, the total annual value of articles 
originating in Mexican States adjacent to the United States/Mexico 
border is about $19.3 million. When softwood molding is included, the 
total value is about $53.9 million.
    The significance of these values can be put in perspective by 
comparing them to overall U.S. import and supply levels. Unmanufactured 
wood articles include a variety of commodities, but the main U.S. 
import, softwood lumber, provides a reasonable basis for comparison. 
Global imports contribute about one-fourth of the U.S. softwood lumber 
supply, and imports from Mexico comprise about 0.8 percent of total 
imports. Thus, Mexico's share of the U.S. supply is only about 0.2 
percent. Given that about 35 to 40 percent of Mexico's softwood lumber 
shipments to the United States originates in Mexican States adjacent to 
the United States/Mexico border, shipments from these border Mexican 
States represent about 0.3 percent of softwood lumber imports by the 
United States, and less than 0.1 percent of U.S. supply.
    Including softwood molding articles in the analysis increases the 
level of imports from Mexico (and the approximated import level from 
Mexican States adjacent to the United States/Mexico border) by a factor 
of about 2.8. Mexico's share of U.S. imports of softwood lumber and 
softwood molding is about 2.1 percent. Shipments from Mexican States 
adjacent to the United States/Mexico border of these principal softwood 
articles represent about 0.8 percent of U.S. imports (35 to 40 percent 
of 2.1 percent). Since at least some softwood molding articles are 
manufactured, this percentage exceeds the amount of softwood imports 
affected by the regulatory amendments, but serves here as an upper 
bound. Thus, between 0.3 percent and 0.8 percent of U.S. imports of 
unmanufactured wood articles originate in Mexican States adjacent to 
the United States/Mexico border.
    The most common method used to treat unmanufactured wood articles 
entering the United States is kiln drying. The cost of kiln drying, 
based on recent prices for green and kiln-dried framing lumber in the 
United States, ranges between $23 and $30 per thousand board feet. This 
cost range is equivalent to between $9.75 and $12.71 per cubic meter 
(m\3\). Methyl bromide fumigation costs in the United States average 
about $400 to $600 per standard container. This range in fumigation 
costs for lumber shipments, assuming containers are loaded 80 to 90 
percent of capacity, converts to $6.13 to $10.34 per m\3\ of lumber.
    Kiln drying and methyl bromide fumigation costs in Mexico may 
differ from those in the United States, but any difference in the 
relative costs of the two treatment methods is not thought to be 
significant. APHIS does not know the extent to which either method will 
be used to treat unmanufactured wood articles imported from Mexican 
States adjacent to the United States/Mexico border. The decision will 
depend not only on relative costs, but also on the value added through 
kiln drying and on the availability of kiln drying capacity in the 
border Mexican States.
    In the United States, kiln-dried softwood lumber is commercially 
preferred, and temperatures attained in the kiln drying process exceed 
those required for heat treatment with moisture reduction. Kiln drying 
of unmanufactured wood imports thus serves to increase its commercial 
value while satisfying phytosanitary treatment requirements. Importers 
are likely to choose kiln drying as the preferred treatment method when 
treatment costs are similar.
    The advantage of kiln drying over methyl bromide fumigation 
presupposes sufficient kiln drying capacity within the region. Kiln 
drying facilities are not as likely to be found in Mexican States 
adjacent to the United States/Mexico border as they are in other 
Mexican States where phytosanitary treatment of unmanufactured wood 
articles exported to the United States has been required. Pine and fir 
lumber imports from Mexican States adjacent to the United States/Mexico 
border would be constrained if there is insufficient kiln drying 
capacity and if heat treatments with or without moisture reduction were 
the only phytosanitary treatment alternatives (not considering other 
options of using kiln drying facilities elsewhere in Mexico or in the 
United States within 30 days following importation). Inclusion of 
methyl bromide fumigation as a treatment alternative lessens the 
possibility that pine and fir lumber imports from Mexican States 
adjacent to the United States/Mexico border may be impeded due to 
insufficient kiln drying capacity in the region, as firms adjust to the 
new treatment requirements.
    Economic effects of the treatment requirements for U.S. importers 
will be minor, given the small quantity of unmanufactured wood articles 
imported from Mexican States adjacent to the United States/Mexico 
border and the minor costs of treatment. The value of unmanufactured 
softwood articles imported annually from Mexican States adjacent to the 
United States/Mexico border ranges between $19.3 million and $53.9 
million, depending on the portion of softwood molding that is 
unmanufactured. These values represent from 0.3 to 0.8 percent of the 
value of all U.S. imports of these articles.
    Costs of kiln drying and methyl bromide fumigation are small when 
compared to the value of the wood articles treated. The average price 
of softwood lumber imported from Mexico in 1999 and 2000 was about $343 
per m 3. Methyl bromide fumigation costs of about $6 to $10 
per m 3 and kiln drying

[[Page 52416]]

costs of about $10 to $13 per m 3 are equivalent to about 2 
to 4 percent of this import price. Assuming that treatment costs are 
equal to 4 percent of the value of the commodities imported and that 
importers bear the full cost of treatment, the combined treatment cost 
for U.S. importers of unmanufactured wood articles from Mexican States 
adjacent to the United States/Mexico border would total between 
$773,000 and $2,157,000 per year, depending on the percentage of wood 
molding imports that is unmanufactured.
    This expenditure is an acceptable cost when one considers possible 
adverse impacts for the Nation's agriculture and forests if 
unmanufactured wood articles are allowed to continue to enter from 
Mexican States adjacent to the United States/Mexico border under 
general permit. The possibility of pest introductions that could cost 
the United States tens of millions of dollars a year necessitates that 
these imports be subject to substantially the same mitigation measures 
as are required of unmanufactured wood articles imported from the rest 
of Mexico.
    As a part of the rulemaking process, APHIS evaluates whether new 
regulations are likely to have a significant economic impact on a 
substantial number of small entities. Entities that import 
unmanufactured wood articles that originate in Mexican States adjacent 
to the United States/Mexico border will be directly affected. The 
impact will be the cost of newly required phytosanitary treatments.
    Principal industries affected by the new regulations will be (by 
North American Industry Classification System category): Sawmills and 
Wood Preservation; Lumber, Plywood, Millwork, and Wood Panel Merchant 
Wholesalers; Other Miscellaneous Durable Goods Merchant Wholesalers; 
and Construction of Buildings. The Small Business Administration has 
established criteria for determining whether an establishment may be 
considered small with respect to the Regulatory Flexibility Act. Nearly 
all establishments that will be affected are small entities.
    The impact of additional costs of treatment for U.S. small entities 
will be minor, given that only between 0.3 and 0.8 percent of 
unmanufactured wood articles imported by the United States come from 
Mexican States adjacent to the United States/Mexico border, and costs 
of treatment are equal to between 2 and 4 percent of the value of the 
imported articles. Moreover, commercial benefits of kiln drying will be 
realized when that treatment alternative is used. A substantial number 
of small entities will not be significantly affected by the regulatory 
amendments. Small as well as large U.S. entities will benefit from 
reduced risks of pest introduction.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

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

Use of Methyl Bromide

    The United States is fully committed to the objectives of the 
Montreal Protocol, including the reduction and ultimately the 
elimination of reliance on methyl bromide for quarantine and pre-
shipment uses in a manner that is consistent with the safeguarding of 
U.S. agriculture and ecosystems. APHIS reviews its methyl bromide 
policies and their effect on the environment in accordance with the 
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 
et seq.) and Decision XI/13 (paragraph 5) of the 11th Meeting of the 
Parties to the Montreal Protocol, which calls on the Parties to review 
their ``national plant, animal, environmental, health, and stored 
product regulations with a view to removing the requirement for the use 
of methyl bromide for quarantine and pre-shipment where technically and 
economically feasible alternatives exist.''
    The United States Government encourages methods that do not use 
methyl bromide to meet phytosanitary standards where alternatives are 
deemed to be technically and economically feasible. In some 
circumstances, however, methyl bromide continues to be the only 
technically and economically feasible treatment against specific 
quarantine pests. In addition, in accordance with Montreal Protocol 
Decision XI/13 (paragraph 7), APHIS is committed to promoting and 
employing gas recapture technology and other methods whenever possible 
to minimize harm to the environment caused by methyl bromide emissions.

National Environmental Policy Act

    On September 20, 2002, the U.S. Environmental Protection Agency 
(EPA) published in the Federal Register (67 FR 59284-59285) a notice of 
availability of the final environmental impact statement (EIS) titled 
``Rule for the Importation of Unmanufactured Wood Articles From Mexico, 
With Consideration for Cumulative Impact of Methyl Bromide Use.'' The 
EIS considers the incremental increase in methyl bromide use for wood 
imports from Mexico that could result from our adoption of the proposed 
rule as a final rule.\5\ The EIS was prepared in accordance with: (1) 
The National Environmental Policy Act of 1969 (NEPA), as amended (42 
U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental 
Quality for implementing the procedural provisions of NEPA (40 CFR 
parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 
1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).
---------------------------------------------------------------------------

    \5\ Copies of the EIS are available for public inspection at 
USDA, room 1141, South Building, 14th Street and Independence Avenue 
SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through 
Friday, except holidays. Persons wishing to inspect copies are 
requested to call ahead on (202) 690-2817 to facilitate entry into 
the reading room. In addition, the EIS may be viewed on the Internet 
at http://www.aphis.usda.gov/ppd/es/mb.html, and copies may be 
obtained by writing to the individual listed under FOR FURTHER 
INFORMATION CONTACT.
---------------------------------------------------------------------------

    Pursuant to the implementing regulations for NEPA, in cases 
requiring an EIS, APHIS must prepare a record of decision at the time 
of its decision. This final rule constitutes the required record of 
decision for the EIS.
    The NEPA implementing regulations require that a record of decision 
state what decision is being made; identify alternatives considered in 
the environmental impact statement process; specify the environmentally 
preferable alternative; discuss preferences based on relevant factors--
economic and technical considerations, as well as national policy 
considerations, where applicable; and state how all of the factors 
discussed entered into the decision. In addition, the record of 
decision must indicate whether the ultimate decision has been designed 
to avoid or minimize environmental harm and, if not, why not.

The Decision

    APHIS has decided, in this final rule, to amend its regulations to 
provide that pine and fir logs and lumber, as well as other 
unmanufactured wood articles, imported into the United States from

[[Page 52417]]

Mexican States adjacent to the United States/Mexico border will be 
subject to substantially the same requirements as Mexican States not 
adjacent to the United States. Methyl bromide fumigation has been added 
as an optional treatment for railroad cross-ties and pine and fir 
lumber from Mexican States adjacent to the United States/Mexico border.

Alternatives Considered in the Impact Statement Process

    The EIS, which focuses mainly on cumulative effects of methyl 
bromide use, considers a reasonable range of alternatives, including: 
(1) No action, essentially maintaining the exemption from treatment 
requirements for importation of unmanufactured wood articles from 
Mexican States that border the United States, (2) removal of the 
Mexican border State exemption, requiring the same treatments for 
similar commodities as non-border Mexican States, (3) permitting use of 
methyl bromide as a treatment option for railroad cross-ties and pine 
and fir lumber from Mexico, (4) a combination of alternatives (2) and 
(3), above, and (5) prohibiting the importation of unmanufactured wood 
articles from Mexico.

Environmentally Preferable Alternative

    The environmentally preferable alternative would be to prohibit 
importation of unmanufactured wood articles from Mexico, which would 
virtually eliminate all associated pest risks, as well as the need to 
use methyl bromide. However, APHIS believes that this alternative would 
be more trade restrictive than necessary to prevent the introduction 
into the United States of plant pests from Mexico.

Preferences Among Alternatives

    There is a preference for the approach taken in this final rule, 
which we adopt herein (alternative (4), above). Among all of the 
alternatives considered, APHIS believes that this alternative best 
satisfies all of our international and domestic obligations, including 
the North American Free Trade Agreement (NAFTA), the Montreal Protocol, 
the Plant Protection Act (PPA), NEPA, and the Clean Air Act.

Factors in the Decision

    APHIS is guided by the PPA, under which the detection, control, 
eradication, suppression, prevention, and retardation of the spread of 
plant pests or noxious weeds have been determined by Congress to be 
necessary and appropriate for the protection of the agriculture, 
environment, and economy of the United States. The PPA also has been 
designed to facilitate exports, imports, and interstate commerce in 
agricultural products and other commodities. In order to achieve these 
objectives, use of pesticides, including methyl bromide, has often been 
prescribed.
    Methyl bromide is an ozone depleting substance that is strictly 
regulated under the Montreal Protocol and the Clean Air Act. While the 
goal of these authorities and agreements is to limit and ultimately 
phase out all ozone depleting substances, certain exemptions and 
exclusions are recognized, including an exemption for methyl bromide 
use for plant quarantine and pre-shipment purposes, including the 
purposes provided for in this final rule. The exemption is not 
unconditional, however. The United States, like other signatories to 
the Montreal Protocol, must review its national plant health 
regulations with a view to removing the requirement for the use of 
methyl bromide for quarantine and preshipment application where 
technically and economically feasible alternatives exist.
    By authorizing and encouraging limited use of methyl bromide--only 
so much as is necessary to meet the mandates of the PPA--for imports 
from Mexican border States, the Agency is achieving the purposes of its 
enabling legislation, while promoting the goals of the Montreal 
Protocol, the Clean Air Act, NEPA, and other applicable authorities or 
agreements.

Avoid or Minimize Environmental Harm

    The environment can be harmed by using methyl bromide, in which 
case recovery of the ozone layer may be delayed, or by not using methyl 
bromide, in which case agriculture and forested ecosystems, among other 
aspects of environmental quality, could be devastated. By assuring that 
use of methyl bromide is limited only to those situations in which 
substitute materials are not available and only in those amounts 
necessary to eliminate pest threats to agriculture and ecosystems, the 
Agency strikes a proper balance in its efforts to minimize 
environmental harm. APHIS is committed to monitoring these efforts 
through the NEPA process, and otherwise. (See, for example, the final 
EIS titled ``Importation of Solid Wood Packing Material, Final 
Environmental Impact Statement'' for which a notice of availability was 
published in the Federal Register (68 FR 54900-54901) on September 19, 
2003.) Furthermore, where appropriate, measures--gas recapture 
technology, for example--to minimize harm to environmental quality 
caused by methyl bromide emissions have been, and will continue to be, 
put in place by APHIS.

Other

    Methyl bromide used in quarantine applications prescribed by the 
United States contributes just a small fraction of total anthropogenic 
bromine released into the atmosphere. Nevertheless, the Montreal 
Protocol is action-forcing in the sense that signatories must review 
their national plant health regulations with a view to finding 
alternatives to exempted uses of methyl bromide. The EPA has also 
cautioned that, regardless of the incremental contribution, it is 
important to recognize that any additional methyl bromide releases 
would delay recovery of the ozone layer.
    A considerable amount of research and development on methyl bromide 
alternatives has been conducted within the USDA and continues today. 
Under the Clean Air Act, EPA has also established a program to identify 
alternatives to ozone depleting substances, including methyl bromide. 
But EPA's listing of an acceptable alternative does not always 
adequately address its suitability for a particular use. We must not 
put agriculture and ecosystems at risk based on unproven technology.
    APHIS is firmly committed to the objectives of the Montreal 
Protocol to reduce and ultimately eliminate reliance on methyl bromide 
for quarantine uses, consistent with its responsibilities to safeguard 
this country's agriculture and ecosystems. Searching for cost-effective 
alternatives to major quarantine and pre-shipment uses of methyl 
bromide, then, is an Agency--indeed, a worldwide--priority. In order to 
achieve the twin objectives of reducing and ultimately eliminating 
methyl bromide emissions while safeguarding agriculture and ecosystems 
in the most expeditious, cost-effective way possible, research, 
developmental, and testing efforts within the Federal Government must 
be closely coordinated. APHIS is determined to cooperate actively with 
the Agricultural Research Service, EPA, the Office of Management and 
Budget, and others involved in this effort to find effective 
alternatives to quarantine methyl bromide uses.
    In a letter dated October 25, 2002, EPA stated that it has no 
objections to the alternative selected by APHIS. Copies of the EPA 
letter may be obtained from the person listed under FOR FURTHER 
INFORMATION CONTACT.

[[Page 52418]]

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0049.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 319

    Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock, 
Plant diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.


0
Accordingly, we are amending 7 CFR part 319 as follows:

PART 319-FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

    Authority: 7 U.S.C. 450 and 7701-7772; 21 U.S.C. 136 and 136a; 7 
CFR 2.22, 2.80, and 371.3.


Sec.  319.40-2  [Amended]

0
2. Section 319.40-2 is amended by adding, at the end of the section, 
the following:

``(Approved by the Office of Management and Budget under control 
number 0579-0049)''.


0
3. Section 319.40-3 is amended as follows:
0
a. By revising paragraph (a) to read as set forth below.
0
b. By adding, at the end of the section, the following:

``(Approved by the Office of Management and Budget under control 
number 0579-0049)''.


Sec.  319.40-3  General permits; articles that may be imported without 
a specific permit; articles that may be imported without either a 
specific permit or an importer document.

    (a) Canada and Mexico. (1) The following articles may be imported 
into the United States under general permit:
    (i) From Canada: Regulated articles, other than regulated articles 
of the subfamilies Aurantioideae, Rutoideae, and Toddalioideae of the 
botanical family Rutaceae; and
    (ii) From States in Mexico adjacent to the United States: 
Commercial and noncommercial shipments of mesquite wood for cooking; 
commercial and noncommercial shipments of unmanufactured wood for 
firewood; and small, noncommercial packages of unmanufactured wood for 
personal cooking or personal medicinal purposes.
    (2) Commercial shipments allowed in paragraph (a)(1) of this 
section are subject to the inspection and other requirements in Sec.  
319.40-9 and must be accompanied by an importer document stating that 
they are derived from trees harvested in Canada or States in Mexico 
adjacent to the United States border.
    (3) Noncommercial shipments allowed in paragraph (a)(1) of this 
section are subject to inspection and other requirements of Sec.  
319.40-9 and must be accompanied by an importer document or oral 
declaration stating that they are derived from trees harvested in 
Canada or States in Mexico adjacent to the United States border.
* * * * *


Sec.  319.40-4  [Amended]

0
4. Section 319.40-4 is amended by adding, at the end of the section, 
the following:

``(Approved by the Office of Management and Budget under control 
number 0579-0049)''.


0
5. Section 319.40-5 is amended as follows:
0
a. By revising paragraph (f) to read as set forth below.
0
b. By adding a new paragraph (l) to read as set forth below.
0
c. By adding, at the end of the section, the following:

``(Approved by the Office of Management and Budget under control 
numbers 0579-0049 and 0579-0135)''.


Sec.  319.40-5  Importation and entry requirements for specified 
articles.

* * * * *
    (f) Cross-ties (railroad ties) from all places, except places in 
Asia that are east of 60[deg] East Longitude and north of the Tropic of 
Cancer, may be imported if completely free of bark and accompanied by 
an importer document stating that the cross-ties will be pressure 
treated with a preservative within 30 days following the date of 
importation at a U.S. facility under compliance agreement. Cross-ties 
(railroad ties) may also be imported if heat treated in accordance with 
Sec.  319.40-7(c).
* * * * *
    (l) Cross-ties (railroad ties) and pine and fir lumber from Mexican 
States adjacent to the United States/Mexico border.\3\ Cross-ties 
(railroad ties) 8 inches or less at maximum thickness and lumber 
derived from pine and fir may be imported from Mexican States adjacent 
to the United States/Mexico border into the United States if they:
---------------------------------------------------------------------------

    \3\ Cross-ties (railroad ties) may also be imported in 
accordance with paragraph (f) of this section, or may be imported if 
heat treated in accordance with Sec.  319.40-7(c).
---------------------------------------------------------------------------

    (1) Originate from Mexican States adjacent to the United States/
Mexico border;
    (2) Are 100 percent free of bark; and
    (3) Are fumigated prior to arrival in the United States. The 
regulated article and the ambient air must be at a temperature of 5 
[deg]C or above throughout fumigation. The fumigation must be conducted 
using schedule T312 contained in the Treatment Manual. In lieu of the 
schedule T312 methyl bromide concentration, fumigation may be conducted 
with an initial methyl bromide concentration of at least 240 g/
m3 with exposure and concentration levels adequate to 
provide a concentration-time product of at least 17,280 gram-hours 
calculated on the initial methyl bromide concentration.


Sec.  319.40-6  [Amended]

0
6. Section 319.40-6 is amended by adding, at the end of the section, 
the following:

``(Approved by the Office of Management and Budget under control 
number 0579-0049)''.


Sec.  319.40-7  [Amended]

0
7. Section 319.40-7 is amended by adding, at the end of the section, 
the following:

``(Approved by the Office of Management and Budget under control 
number 0579-0049)''.


Sec.  319.40-8  [Amended]

0
8. Section 319.40-8 is amended by adding, at the end of the section, 
the following:

``(Approved by the Office of Management and Budget under control 
number 0579-0049)''.


Sec.  319.40-9  [Amended]

0
9. Section 319.40-9 is amended as follows:
0
a. By redesignating footnotes 3 and 4 as footnotes 4 and 5, 
respectively.
0
b. By adding, at the end of the section, the following:

``(Approved by the Office of Management and Budget under control 
number 0579-0049)''.


Sec.  319.40-10  [Amended]

0
10. In Sec.  319.40-10, footnote 5 is redesignated as footnote 6.


[[Page 52419]]


    Done in Washington, DC, this 20th day of August 2004.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 04-19519 Filed 8-25-04; 8:45 am]
BILLING CODE 3410-34-P