[Federal Register Volume 72, Number 126 (Monday, July 2, 2007)]
[Rules and Regulations]
[Pages 35915-35917]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-12770]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 353

[Docket No. APHIS-2006-0122]
RIN 0579-AC43


Export Certification for Wood Packaging Material

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the export certification regulations to 
clarify that an International Standards for Phytosanitary Measures No. 
15 (ISPM 15) quality/treatment mark is an industry-issued certificate 
within the meaning of 7 CFR part 353 and thus may only be issued when 
the organization applying the certification mark has entered into an 
agreement with the Animal and Plant Health Inspection Service. We are 
also removing all references to a certificate of heat treatment from 
the regulations because those certificates have been replaced by the 
ISPM 15 quality/treatment mark. These changes are necessary in order to 
ensure the appropriate issuance of the ISPM 15 quality/treatment mark.

DATES: This interim rule is effective July 2, 2007. We will consider 
all comments that we receive on or before August 31, 2007.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov, select ``Animal and Plant Health Inspection 
Service'' from the agency drop-down menu, then click ``Submit.'' In the 
Docket ID column, select APHIS-2006-0122 to submit or view public 
comments and to view supporting and related materials available 
electronically. Information on using Regulations.gov, including 
instructions for accessing documents, submitting comments, and viewing 
the docket after the close of the comment period, is available through 
the site's ``User Tips'' link.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. APHIS-
2006-0122, Regulatory Analysis and Development, PPD, APHIS, Station 3A-
03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your

[[Page 35916]]

comment refers to Docket No. APHIS-2006-0122.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. John Tyrone Jones II, Export 
Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 
River Road Unit 140, Riverdale, MD 20737-1231; (301) 734-8860.

SUPPLEMENTARY INFORMATION:

Background

    The export certification regulations in 7 CFR part 353 (referred to 
below as the regulations) contain provisions for export certification 
of plant and plant products. The export certification program does not 
require certification of any exports, but does provide for 
certification of plants and plant products as a service to exporters. 
After assessing the phytosanitary condition of the plants or plant 
products intended for export relative to the receiving country's 
regulations, an inspector issues an internationally recognized 
phytosanitary certificate (PPQ Form 577), a phytosanitary certificate 
for reexport (PPQ Form 579), an export certificate for processed plant 
products (PPQ Form 578), or a certificate of heat treatment (PPQ Form 
553), if warranted.
    The regulations in Sec.  353.7(d) also provide for industry-issued 
certification of certain plant products under the terms of a written 
agreement between the concerned agricultural or forestry company and 
Animal and Plant Health Inspection Service (APHIS). Each agreement 
specifies the articles subject to the agreement and the measures 
necessary to prevent the introduction of specified plant pests into the 
foreign countries specified in the agreement.
    One form of an industry-issued certificate that is being issued 
under these regulations is an approved international quality/treatment 
mark that certifies wood packaging material as having been either heat 
treated or fumigated with methyl bromide in accordance with the 
guidelines contained in International Standards for Phytosanitary 
Measures No. 15 (ISPM 15), ``Guidelines for Regulating Wood Packaging 
Material in International Trade.'' ISPM 15 is a standard that describes 
the application of phytosanitary measures to reduce the risk of 
introduction and dissemination of quarantine pests associated with wood 
packaging material (including dunnage) made of coniferous and non-
coniferous raw wood that is in use in international trade.
    As the national plant protection organization (NPPO) of the United 
States, APHIS is responsible for ISPM 15 certification of wood 
packaging material that is exported from the United States. As provided 
for under the regulations in Sec.  353.7(d), APHIS currently has 
agreements with two private organizations to issue certificates of 
compliance with ISPM 15 for wood packaging material for export. 
Certification of compliance with ISPM 15 comes in the form of a 
quality/treatment mark that is applied to each regulated article.
    Since the adoption of ISPM 15, we have encountered several cases 
where private firms have developed and applied ISPM 15 quality/
treatment marks to wood packaging material for export without entering 
into an agreement with APHIS and, it appears, without applying the 
treatments that are required under ISPM 15. These companies have 
developed a mark similar to what is described and pictured in ISPM 15 
and are using this mark outside of the export certification regulatory 
program. Although we acknowledge that the regulations do not explicitly 
state that the certification of compliance with ISPM 15 (the mark) is 
an industry-issued certificate, this practice is clearly not in 
conformity with the purpose and intent of the regulations.
    In order to ensure integrity of our export certification program 
and to fulfill our responsibilities under the Plant Protection Act and 
our international obligations as the NPPO of the United States, we are 
amending the regulations in part 353 to make it clear that certificates 
of compliance with ISPM 15 are industry-issued certificates and thus 
may only be issued when the person, company, or entity applying the 
certification mark has first entered into a written agreement with 
APHIS and applies the mark in accordance with all applicable 
requirements. Specifically, we are amending Sec.  353.1, the definition 
for industry-issued certificate; Sec.  353.2; and Sec.  353.7(d) by 
adding the following sentence to each: ``An industry-issued certificate 
includes an ISPM 15 quality/treatment mark.''
    Now that the ISPM 15 quality/treatment mark is the international 
standard for confirming that wood packaging material has been treated, 
we no longer issue a certificate of heat treatment (PPQ Form 553). This 
form is, therefore, obsolete, so we are amending the regulations to 
remove all references to PPQ Form 553.

Immediate Action

    Immediate action is necessary to ensure the integrity of our export 
certification program and to fulfill our responsibilities under the 
Plant Protection Act and our international obligations as the NPPO for 
the United States. Under these circumstances, the Administrator has 
determined that prior notice and opportunity for public comment are 
contrary to the public interest and that there is good cause under 5 
U.S.C. 553 for making this action effective less than 30 days after 
publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    We are amending the export certification regulations to clarify 
that an ISPM 15 quality/treatment mark is an industry-issued 
certificate within the meaning of our export certification regulations 
and thus may only be issued when the organization applying the 
certification mark has entered into an agreement with APHIS and applies 
the mark in accordance with all applicable requirements. We are also 
removing all references to a certificate of heat treatment from the 
regulations because those certificates have been replaced by the ISPM 
15 quality/treatment mark. These changes are necessary in order to 
ensure the appropriate issuance of the ISPM 15 quality/treatment mark.
    The pallet industry in the United States is characterized by many 
small firms and a few larger firms. No one firm is able to dominate the 
market. U.S. Census data show that there are approximately 3,000 firms 
in the wood pallet and container industry. Other estimates of the 
number of firms in the

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industry range up to 3,500 pallet manufacturers in the U.S. National 
Wooden Pallet and Container Association. Most firms sell their products 
within a 350-mile radius. The average number of employees is fewer than 
20. Thirty-two percent of the firms had fewer than five employees. The 
average yearly sales were $1.7 million.
    The Small Business Administration (SBA) classifies wood container 
and pallet manufacturers as small businesses if they have fewer than 
500 employees. According to the U.S. Census Bureau, 2002 Economic 
Census (the most recent one available), all pallet manufacturers are 
considered small businesses. In 2002, there were 2,948 establishments 
that produced wooden containers and pallets employing 51,003 persons. 
The total value of shipments was $5.5 billion dollars.
    This rule will affect only those firms that have been using an ISPM 
15 compliance mark without entering into an agreement with APHIS in 
accordance with the export certification regulations of 7 CFR part 353. 
There have been cases where the mark has been applied in these 
circumstances. Given that there are nearly 3,000 firms that produce 
wooden containers and pallets, only a very small percentage will be 
affected by this interim rule. This rule will not have a significant 
economic impact nor will it affect a substantial number of small 
entities.
    This rule does not impose any additional costs on firms; it only 
clarifies that the ISPM 15 quality/treatment mark may be applied only 
in accordance with the requirements of the regulations regarding the 
use of industry-issued certificates. The benefits of this rule are 
derived from ensuring APHIS' ability to fulfill its responsibilities 
under the Plant Protection Act and its international obligations as the 
NPPO of the United States and the reduced risk due to better compliance 
with existing international standards. We do not expect to see any 
measurable adverse economic impact as a result of this rule.
    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 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

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

Paperwork Reduction Act

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

List of Subjects in 7 CFR Part 353

    Exports, Plant diseases and pests, Reporting and recordkeeping 
requirements.


0
Accordingly, we are amending 7 CFR part 353 as follows:

PART 353--EXPORT CERTIFICATION

0
1. The authority citation for part 353 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 
136a; 7 CFR 2.22, 2.80, and 371.3.


Sec.  353.1  [Amended]

0
2. In Sec.  353.1, the definition for certificate of heat treatment is 
removed and the definition for industry-issued certificate is amended 
by adding the sentence ``An industry-issued certificate includes an 
ISPM 15 quality/treatment mark.'' after the last sentence.


Sec.  353.2  [Amended]

0
3. Section 353.2 is amended by adding the word ``or'' before the words 
``an export''; by removing the words ``, or a certificate of heat 
treatment (PPQ Form 553)''; and by adding the sentence ``An industry-
issued certificate includes an ISPM 15 quality/treatment mark.'' after 
the last sentence.

0
4. In Sec.  353.5, paragraph (a) is revised to read as follows:


Sec.  353.5  Application for certification.

    (a) To request the services of an inspector, a written application 
(PPQ Form 572) shall be made as far in advance as possible, and shall 
be filed in the office of inspection at the port of certification.
* * * * *


Sec.  353.7  [Amended]

0
5. Section 353.7 is amended as follows:
0
a. In the introductory text of paragraph (d), by adding the sentence 
``An industry-issued certificate includes an ISPM 15 quality/treatment 
mark.'' immediately before the last sentence.
0
b. By removing paragraph (e).

    Done in Washington, DC, this 26th day of June 2007.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E7-12770 Filed 6-29-07; 8:45 am]
BILLING CODE 3410-34-P