[Federal Register Volume 67, Number 31 (Thursday, February 14, 2002)]
[Rules and Regulations]
[Pages 6827-6837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3721]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 67, No. 31 / Thursday, February 14, 2002 /
Rules and Regulations
[[Page 6827]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 01-054-1]
Phytophthora Ramorum; Quarantine and Regulations
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and notice of public hearings.
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SUMMARY: We are quarantining 10 counties in the State of California and
a portion of 1 county in the State of Oregon because of the presence of
Phytophthora ramorum and regulating the interstate movement of
regulated and restricted articles from the quarantined area. This
action is necessary on an emergency basis to prevent the spread of P.
ramorum to noninfested areas of the United States.
DATES: This interim rule is effective February 14, 2002. We will
consider all comments we receive that are postmarked, delivered, or e-
mailed by April 15, 2002. We will also consider comments made at public
hearings to be held in Petaluma, CA, on February 27, 2002; and in
Riverdale, MD, on March 27, 2002.
ADDRESSES: You may submit comments by postal mail/commercial delivery
or electronically. If you use postal mail/commercial delivery, please
send four copies (an original and three copies) to: Docket No. 01-054-
1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your
comment refers to Docket No. 01-054-1. To submit a comment
electronically, please visit http://comments.aphis.usda.gov.
You may read any comments that we receive on this docket in our
reading room, or by visiting http://comments.aphis.usda.gov. 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.
APHIS documents published in the Federal Register, and related
information, including the names of organizations and individuals who
have commented on APHIS dockets, are available on the Internet at
http://www.aphis.usda.gov/ppd/rad/webrepor.html.
Public hearing regarding this rule will be held at the following
locations:
1. Petaluma, CA: Petaluma Community Center, 320 N. McDowell Blvd.,
Petaluma, CA.
2. Riverdale, MD: USDA Center at Riverside, 4700 River Road,
Riverdale, MD.
FOR FURTHER INFORMATION CONTACT: Mr. Jonathan Jones, Operations
Officer, Invasive Species and Pest Management, PPQ, APHIS, 4700 River
Road Unit 134, Riverdale, MD 20737; (301) 734-8247.
SUPPLEMENTARY INFORMATION:
Public Hearings
We are advising the public that we are hosting two public hearings
on this interim rule. The first public hearing will be held in
Petaluma, CA, on Wednesday, February 27, 2002. The second public
hearing will be held in Riverdale, MD, on Wednesday, March 27, 2002.
A representative of the Animal and Plant Health Inspection Service
(APHIS), U.S. Department of Agriculture (USDA or the Department), will
preside at the public hearings. Any interested person may appear and be
heard in person, by attorney, or by other representative. Written
statements may be submitted and will be made part of the hearing
record. A transcript of the public hearings will be placed in the
rulemaking record and will be available for public inspection.
The purpose of the hearings is to give interested persons an
opportunity for oral presentation of data, views, and arguments.
Questions about the content of the interim rule may be part of the
commenters' oral presentations. However, neither the presiding officer
nor any other representative of APHIS will respond to comments at the
hearings, except to clarify or explain provisions of the interim rule.
The public hearings will begin at 9 a.m. and are scheduled to end
at 4:30 p.m., local time. The presiding officer may limit the time for
each presentation so that all interested persons appearing at each
hearing have an opportunity to participate. Each hearing may be
terminated at any time if all persons desiring to speak have been
heard.
Registration for the hearings may be accomplished by registering
with the presiding officer between 8:30 a.m. and 9 a.m. on the day of
the hearing. Persons who wish to speak at a hearing will be asked to
sign in with their name and organization to establish a record for the
hearing. We ask that anyone who reads a statement provide two copies to
the presiding officer at the hearing. Those who wish to form a panel to
present their views will be asked to provide the name of each member of
the panel and the organizations the panel members represent.
Persons or panels wishing to speak at one or both of the public
hearings may register in advance by phone or e-mail. Persons wishing to
register by phone should call the Regulatory Analysis and Development
voice mail at (301) 734-4339. Callers must leave a message clearly
stating (1) the location of the hearing the registrant wishes to speak
at, (2) the registrant's name and organization, and, if registering for
a panel, (3) the name of each member of the panel and the organization
each panel member represents. Persons wishing to register by e-mail
must send an e-mail with the same information described above to
[email protected]. Please write ``Public Hearing Registration'' in
the subject line of your e-mail. Advance registration for the Petaluma,
CA, hearing must be received by 3 p.m. on Monday, February 25, 2002.
Advance registration for the Riverdale, MD, hearing must be received by
3 p.m. on Tuesday, March 26, 2002.
If you require special accommodations, such as a sign language
interpreter, please contact the person listed under FOR FURTHER
INFORMATION CONTACT.
[[Page 6828]]
Parking and Security Procedures at the USDA Center
Please note that a fee of $2.25 is required to enter the parking
lot at the USDA Center. The machine accepts $1 bills and quarters.
Upon entering the building, visitors should inform security
personnel that they are attending the Phytophthora ramorum quarantine
public hearing. Identification is required. Security personnel will
direct visitors to the registration tables located outside of
Conference Rooms C and D on the first floor. Registration upon arrival
is necessary for all participants, including those who have registered
to speak in advance. Visitor badges must be worn throughout the day.
Background
Phytophthora ramorum is a harmful fungus that has been found in
arrowwood (Viburnum x bodnantense), big leaf maple (Acer macrophyllum),
black oak (Quercus kelloggii), California bay laurel (Umbellularia
californica), California buckeye (Aesculus californhica), California
coffeeberry (Rhamnus californica), California honeysuckle (Lonicera
hispidula), coast live oak (Quercus agrifolia), huckleberry (Vaccinium
ovatum), madrone (Arbutus menziesii), manzanita (Arctostaphylos spp.),
rhododendron (Rhododendron spp., including azalea), Shreve's oak
(Quercus parvula var. shrevei), tanoak (Lithocarpus densiflorus), and
Toyon (Heteromeles arbutifolia).
According to available research and observations, similar symptoms
of infection with P. ramorum have been identified in tanoak, coast live
oak, black oak and Shreve's oak. Although symptoms are similar in these
species, their appearance, both chronologically and physically, varies
somewhat. In tanoak, leaf symptoms are usually the first to appear, as
new growth may droop or turn yellow to brown. In coast live oak, black
oak, and Shreve's oak, the earliest symptom is the appearance of a
bleeding canker; burgundy-red to tar-black thick sap oozes on the bark
surface. Similar bleeding, though less viscous, has been observed on
tanoak, although tanoak may not show the bleeding symptom at all. This
bleeding is a response to infection with P. ramorum, and is typically
found from the root crown (the area where the trunk fans out to the
roots) to a height of 6 feet. Bleeding has occasionally been observed
at greater heights. Oaks showing these symptoms typically die within a
few months of the appearance of symptoms. Other hosts are not typically
killed by P. ramorum. Symptoms of infection in other hosts include leaf
spotting and stem canker infections.
Since its initial discovery in Marin County, CA, in 1995, P.
ramorum has been confirmed to exist in nine additional counties along
or near the northern California coastline: Alameda, Mendocino,
Monterey, Napa, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma.
P. ramorum also has been found in a portion of Curry County, OR. P.
ramorum, which has been commonly referred to as Sudden Oak Death or Oak
Mortality Syndrome, has caused the death of thousands of mature oaks in
these counties, and there is presently no known treatment for infected
plants that kills the fungus but allows plants to survive.
Infected plants and plant products that move interstate could serve
as a pathway for the introduction of P. ramorum to other areas of the
United States. It is unclear how P. ramorum spreads, though available
research suggests it is spread by water, soil, and infected plant
material. It is also possible that P. ramorum spreads by air.
Regardless, the movement of infected plants and plant products of the
P. ramorum hosts listed earlier in this document is believed to provide
a pathway for the spread of P. ramorum.
As explained below, the States of California and Oregon have
restricted the intrastate movement of certain articles from infested
areas to prevent the spread of P. ramorum within California and Oregon.
However, Federal regulations are necessary to restrict the interstate
movement of certain articles from the infested area to prevent the
spread of P. ramorum to noninfested areas of the United States.
We are amending the ``Domestic Quarantine Notices'' in 7 CFR part
301 by adding a new subpart, ``Phytophthora Ramorum'' (Secs. 301.92
through 301.92-10, referred to below as the regulations). The
regulations, which are described below, quarantine portions of the
States of California and Oregon because of P. ramorum and restrict the
interstate movement of regulated and restricted articles from
quarantined areas. The interstate movement of regulated and restricted
articles from nonquarantined areas is not restricted under this interim
rule.
Section 301.92--Restrictions on the Interstate Movement of Regulated
Articles
Section 301.92 prohibits the interstate movement of regulated and
restricted articles from quarantined areas except in accordance with
the regulations.
Section 301.92-1--Definitions
Section 301.92-1 contains definitions of the following terms:
Administrator, Animal and Plant Health Inspection Service, bark chips,
certificate, compliance agreement, departmental permit, duff, firewood,
forest stock, inspector, interstate, log, moved (move, movement),
mulch, nursery stock, person, Plant Protection and Quarantine,
quarantined area, regulated article, restricted article, soil, and
State.
Section 301.92-2--Regulated and Restricted Articles
Certain articles present a significant risk of spreading P. ramorum
if they are moved from quarantined areas without restrictions. We call
these articles regulated and restricted articles. Regulated articles
may be moved interstate from quarantined areas under certificates
issued by an inspector in accordance with Sec. 301.92-5. Restricted
articles, however, may only be moved interstate by USDA under
departmental permits issued in accordance with Sec. 301.92-4(a)(2).
Paragraph (a) of Sec. 301.92-2 lists soil and nursery stock (except
acorns and seeds), unprocessed wood and wood products including
firewood, logs, lumber, wreaths, garlands, and greenery of the
following species as regulated articles:
Arrowwood (Viburnum x bodnantense);
Big leaf maple (Acer macrophyllum);
Black oak (Quercus kelloggii);
California bay laurel (Umbellularia californica);
California buckeye (Aesculus californica);
California coffeeberry (Rhamnus californica);
California honeysuckle (Lonicera hispidula);
Coast live oak (Quercus agrifolia);
Huckleberry (Vaccinium ovatum);\1\
Madrone (Arbutus menziesii);
Manzanita (Arctostaphylos manzanita);
Rhododendron (Rhododendron spp., including azalea);
Shreve's oak (Quercus parvula var. shrevei);
Tanoak (Lithocarpus densiflorus); and
Toyon (Heteromeles arbutifolia).
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\1\ Fruits of huckleberry are not regulated articles.
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Paragraph (b) of the regulations lists bark chips, forest stock,
and mulch of the species of plants listed above as restricted articles.
Again, restricted articles may only be moved interstate by USDA under a
departmental permit
[[Page 6829]]
issued in accordance with Sec. 301.92-4(a)(2).
The regulations in Sec. 301.92-2 also provide that any other
product or article that an inspector determines to present a risk of
spreading P. ramorum can also be considered a regulated or restricted
article if the inspector notifies the person in possession of the
product or article that it is subject to the restrictions in the
regulations. This provision is necessary to ensure that APHIS is able
to regulate the movement of all articles, especially newly identified
hosts of P. ramorum not listed in the regulations, that pose a risk of
spreading P. ramorum if moved without restriction.
Section 301.92-3--Quarantined Areas
Paragraph (a) of Sec. 301.92-3 provides the criteria for the
inclusion of States, or portions of States, in the list of quarantined
areas. Under these criteria, any State or portion of a State in which
P. ramorum is found by an inspector, or in which the Administrator has
reason to believe that P. ramorum is present, will be listed as a
quarantined area. These criteria also provide that an area will be
designated as a quarantined area when the Administrator considers it
necessary due to the area's inseparability for quarantine enforcement
purposes from localities in which P. ramorum has been found.
Paragraph (a) of Sec. 301.92-3 also provides that we will designate
less than an entire State as a quarantined area only if we determine
that the State has adopted and is enforcing restrictions on the
intrastate movement of regulated articles that are equivalent to those
imposed on the interstate movement of regulated articles and that the
designation of less than the entire State as a quarantined area will
prevent the interstate spread of P. ramorum. These determinations would
indicate that infestations are confined to the quarantined areas and
eliminate the need for designating an entire State as a quarantined
area.
We have determined that it is not necessary to designate the entire
States of California and Oregon as quarantined areas. The State of
California has adopted restrictions on the intrastate movement of
regulated and restricted articles from the following counties: Alameda,
Marin, Mendocino, Monterey, Napa, San Mateo, Santa Clara, Santa Cruz,
Solano, and Sonoma.
The State of Oregon has adopted restrictions on the intrastate
movement of regulated and restricted articles from a 9-square-mile area
near the Brookings area of Curry County.
P. ramorum has not been found in any other areas of California or
Oregon besides those listed above, and California and Oregon have
adopted and are enforcing restrictions on the intrastate movement of
regulated and restricted articles from those areas that are
substantially the same as those we are imposing on the interstate
movement of regulated and restricted articles.
The State of California is not attempting to eradicate P. ramorum
from the State, and has quarantined any county where P. ramorum has
been confirmed to exist, regardless of the distribution of P. ramorum
within that county. APHIS is also using this criterion in setting the
P. ramorum quarantine boundaries for the State of California.
Oregon is attempting to eradicate P. ramorum from the area in Curry
County where it has been detected. The quarantined area covers 9 square
miles in the Brookings area of Curry County. All boundaries of the
quarantined area are at least \1/2\ to 1 mile from any P. ramorum
detection site. APHIS believes that this distance is sufficient to
ensure that P. ramorum is not spread to areas outside the quarantined
area. The boundary lines may vary due to factors such as the location
of P. ramorum host material and the use of clearly identifiable lines
for the boundaries. The boundaries themselves are described in the rule
portion of this document.
Paragraph (b) of Sec. 301.92-3 provides that we may temporarily
designate any nonquarantined area in a State as a quarantined area when
we determine that the nonquarantined area meets the criteria for
designation as a quarantined area described in Sec. 301.92-3(a). In
such cases, we will give the owner or person in possession of the area
a copy of the regulations along with written notice of the area's
temporary designation as a quarantined area, after which time the
interstate movement of any regulated or restricted article from the
area will be subject to the regulations. This provision is necessary to
prevent the spread of P. ramorum during the time between the detection
of the disease and the time a document quarantining the area can be
made effective and published in the Federal Register. In the event that
an area's designation as a temporary quarantined area is terminated, we
will provide written notice of that termination to the owner or person
in possession of the area as soon as is practicable.
Section 301.92-4--Conditions Governing the Interstate Movement of
Regulated and Restricted Articles from Quarantined Areas
This section provides that regulated articles may be moved
interstate from quarantined areas if they are accompanied by a
certificate issued in accordance with Secs. 301.92-5 and 301.92-8, and
provided that they are moved through the quarantined area without
stopping except for refueling, rest stops, emergency repairs, and for
traffic conditions, such as traffic lights or stop signs.
Additionally, this section provides that restricted articles may be
moved interstate from quarantined areas by APHIS or the Department for
experimental or scientific purposes. Such articles must be moved in
accordance with a departmental permit issued by the Administrator,
under conditions specified on the permit to prevent the spread of P.
ramorum.
Regulated or restricted articles that are moved from outside
quarantined areas and that are accompanied by a waybill that indicates
the point of origin may be moved interstate through a quarantined area
without a certificate or a departmental permit. The articles must also
be moved from outside the quarantined area through the quarantined area
without stopping (except for refueling, rest stops, emergency repairs,
and for traffic conditions such as traffic lights and stop signs), and
the articles must not be unpacked or unloaded in the quarantined area.
Section 301.92-5--Issuance and Cancellation of Certificates
Certificates are issued for regulated articles when an inspector
finds that, because of certain conditions, there is no disease risk
associated with moving a regulated article from a quarantined area.
Regulated articles accompanied by a certificate may be moved interstate
without further restrictions. Section 301.92-5(a) provides that a
certificate will be issued by an inspector for the movement of
regulated articles if the inspector determines that any one of the
following conditions have been met:
The regulated articles have been treated under the
direction of an inspector in accordance with Sec. 301.92-10 of this
subpart.
The regulated articles are wood products such as firewood,
logs, or lumber that are free of bark.
The regulated article is soil that has not been in direct
physical contact with any article infected with P. ramorum,
[[Page 6830]]
and from which all duff \2\ has been removed.
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\2\ Duff is decaying plant material including leaf litter, green
waste, stem material, bark, and any other plant material that, upon
visual inspection, does not appear to have completely decomposed
into soil.
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The regulated articles are articles of nursery stock that
(1) are shipped from a nursery or premises in a quarantined area that
is inspected annually by an inspector for P. ramorum in accordance with
the inspection and sampling protocol described in Sec. 301.92-11(a),
and that has been found free of P. ramorum; (2) are part of a shipment
of nursery stock that has been inspected immediately prior to
interstate movement in accordance with Sec. 301.92-11(b), and that has
been found free of P. ramorum; (3) have been kept separate from
regulated articles not inspected between the time of the inspection and
the time of interstate movement; and (4) have not been grown in, or
moved from, other areas within a quarantined area except nurseries or
premises that have been inspected for P. ramorum in accordance with
this section; and that have been found free of P. ramorum.
The regulations in Sec. 301.92-5(a) also require that inspectors
may only issue certificates for the interstate movement of regulated
articles if the inspector determines that the regulated articles: (1)
Are to be moved in compliance with any additional emergency conditions
the Administrator may impose under section 414 of the Plant Protection
Act (7 U.S.C. 7714)\3\ to prevent the spread of P. ramorum, and (2) are
eligible for unrestricted movement under all other Federal domestic
plant quarantines and regulations applicable to the regulated article.
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\3\ Sections 414, 421, and 434 of the Plant Protection Act (7
U.S.C. 7714, 7731, and 7754) provide that the Secretary of
Agriculture may, under certain conditions, hold, seize, quarantine,
treat, apply other remedial measures to destroy or otherwise dispose
of any plant, plant pest, plant product, article, or means of
conveyance that is moving, or has moved into or through the United
States or interstate if the Secretary has reason to believe the
article is a plant pest or is infested with a plant pest at the time
of movement.
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We have included a footnote that provides an address for securing
the addresses and telephone numbers of the local Plant Protection and
Quarantine offices at which services of inspectors may be requested. We
have also included a footnote that explains that the Secretary of
Agriculture can, under the Plant Protection Act, take emergency actions
to seize, quarantine, treat, destroy, or apply other remedial measures
to articles that are, or that he or she has reason to believe are,
infested or infected by or contain plant pests.
Paragraph (b) of Sec. 301.92-5 allows any person who has entered
into and is operating under a compliance agreement to issue a
certificate for the interstate movement of a regulated article after an
inspector has determined that the article is eligible for a certificate
under Sec. 301.92-5(a).
Also, Sec. 301.92-5(c) contains provisions for the withdrawal of a
certificate by an inspector if the inspector determines that the holder
of the certificate has not complied with conditions for the use of the
document. This section also contains provisions for notifying the
holder of the reasons for the withdrawal and for holding a hearing if
there is any conflict concerning any material fact in the event that
the person wishes to appeal the cancellation.
Section 301.92-6--Compliance Agreements and Cancellation
Section 301.92-6 provides for the issuance and cancellation of
compliance agreements. Persons who enter into compliance agreements
with APHIS are allowed to self-certify that certain regulated articles
meet APHIS requirements for interstate movement. Compliance agreements
are provided in order to facilitate the interstate movement of certain
regulated articles while still minimizing the risk that P. ramorum
could spread interstate. A compliance agreement will be issued when an
inspector has determined that the person requesting the compliance
agreement is knowledgeable regarding the requirements of the
regulations and the person has agreed to comply with those
requirements. Since movements of nursery stock are dependent on
inspection or testing by an inspector, compliance agreements will not
be issued to persons interested in moving nursery stock interstate.
Inspectors will issue certificates for the interstate movement of
regulated articles of nursery stock after they inspect, and if
necessary, test regulated articles of nursery stock and determine that
they are free of P. ramorum.
Section 301.92-6 contains a footnote that explains how compliance
agreements may be arranged. Section 301.92-6 also provides that an
inspector may cancel the compliance agreement upon finding that a
person who has entered into the agreement has failed to comply with any
of the provisions of the regulations. The inspector will notify the
holder of the compliance agreement of the reasons for cancellation and
offer an opportunity for a hearing to resolve any conflicts of material
fact in the event that the person wishes to appeal the cancellation.
Section 301.92-7--Assembly and Inspection of Regulated Articles
Section 301.92-7 provides that any person (other than a person
authorized to issue certificates under Sec. 301.92-5(b)) who desires a
certificate to move regulated articles must request, at least 14 days
before the desired interstate movement, that an inspector issue a
certificate. The regulated articles must be assembled in a place and
manner directed by the inspector. These provisions are necessary to
ensure that persons desiring inspection services can obtain them before
the intended movement date.
Section 301.92-8--Attachment and Disposition of Certificates
Section 301.92-8 requires the certificate issued for movement of
the regulated article to be attached, during the interstate movement,
to the regulated article, or to a container carrying the regulated
article, or to the accompanying waybill. Further, the section requires
that the carrier must furnish the certificate to the consignee listed
on the certificate upon arrival at the location provided on the
certificate. These provisions are necessary for enforcement purposes.
Section 301.92-9--Costs and Charges
Section 301.92-9 explains the APHIS policy that the services of an
inspector that are needed to comply with the regulations are provided
without cost between 8 a.m. and 4:30 p.m., Monday through Friday,
except holidays, to persons requiring those services, but that we will
not be responsible for any other costs or charges (such as overtime
costs for inspections conducted at times other than between 8 a.m. to
4:30 p.m., Monday through Friday, except holidays).
Section 301.92-10--Treatments
Section 301.92-10 lists treatments that qualify soil and certain
regulated articles for interstate movement with a certificate, as
provided in Sec. 301.92-5(a)(1)(i).
Under paragraph (a), soil may be heat-treated to a temperature of
at least 180 deg.F for 30 minutes in the presence of an inspector.\4\
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\4\ Soil may also be moved interstate without heat treatment if
it meets the requirements in Sec. 301.92-5(a)(1)(iii) or (iv).
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Under paragraph (b), wreaths, garlands, and greenery of arrowwood
(Viburnum x bodnantense), big leaf maple (Acer macrophyllum), black
oak (Quercus kelloggii), California bay laurel (Umbellularia
californica), California buckeye (Aesculus californica),
[[Page 6831]]
California coffeeberry (Rhamnus californica), California honeysuckle
(Lonicera hispidula), coast live oak (Quercus agrifolia), huckleberry
(Vaccinium ovatum), madrone (Arbutus menziesii), manzanita
(Arctostaphylos spp.), rhododendron (Rhododendron spp., including
azalea), Shreve's oak (Quercus parvula var. shrevei), tanoak
(Lithocarpus densiflorus), and Toyon (Heteromeles arbutifolia) may be
dipped for 1 hour in water that is held at a temperature of at least
160 deg.F.
Section 301.92-11--Inspection and Sampling Protocol
Section 301.92-11 describes the inspection and sampling protocol
that must be followed by nurseries moving regulated articles of nursery
stock interstate from quarantined areas. Under the regulations,
regulated articles of nursery stock will be subject to two kinds of
inspections: (1) Annual inspection and sampling of regulated articles
of nursery stock contained in a nursery, and
(2) inspection of individual interstate shipments of nursery stock
and testing of symptomatic plants prior to interstate movement of the
shipment from the quarantined area.
Annual Nursery Inspections
For an annual nursery inspection, an inspector must visually
inspect regulated articles of nursery stock for symptoms of P. ramorum.
If the nursery contains 100 or fewer regulated articles, an inspector
will inspect each regulated article. If the nursery contains more than
100 regulated articles, an inspector will inspect 100 regulated
articles and at least 2 percent of the number of regulated articles
contained in the nursery that exceeds 100. The regulated articles to be
inspected will be randomly selected from throughout the nursery.
If symptomatic plants are found upon inspection, the inspector will
collect at least one sample per symptomatic plant. If fewer than 40
symptomatic plants are found in a nursery during an inspection, the
inspector must collect samples from nonsymptomatic regulated articles
of nursery stock so that the total number of sampled plants is at least
40. Samples must then be labeled and sent for testing to a laboratory
approved by APHIS.
If any regulated articles within a nursery are found to be infected
with P. ramorum, the nursery will be prohibited from moving regulated
articles interstate until such time as an inspector can determine that
the nursery is free of P. ramorum.
Inspections of Individual Interstate Shipments
For an inspection of a shipment of regulated articles of nursery
stock, an inspector must visually inspect the nursery stock for
symptoms of P. ramorum. If the shipment contains 100 or fewer regulated
articles, an inspector will inspect each regulated article. If the
shipment contains more than 100 regulated articles, an inspector will
inspect 100 regulated articles and at least 2 percent of the number of
regulated articles contained in the shipment that exceeds 100. The
regulated articles to be inspected will be randomly selected.
If symptomatic plants are found upon inspection, the inspector must
collect at least one sample per symptomatic plant, and one sample per
regulated article of nursery stock that is in close proximity to, or
that has had physical contact with a symptomatic plant. Samples must be
labeled and sent for testing to a laboratory approved by APHIS, and
must be found free of P. ramorum prior to the interstate movement of
any regulated articles contained in the shipment.
If any plants intended for interstate movement are found to be
infected with P. ramorum, the nursery from which they originate will be
prohibited from moving regulated articles interstate until such as time
as an inspector can determine that the nursery is free of P. ramorum.
Request for Information
As stated earlier in this document, there is much that is unknown
about P. ramorum. In this rule, APHIS has endeavored to regulate the
movement of articles that could cause P. ramorum to spread to
unaffected areas based on the best scientific evidence available to us
at this time. We invite the public to submit any information that
supports or contradicts our regulatory strategy, including:
Evidence demonstrating whether contaminated soil provides
a viable or likely pathway for the spread of, or infection of natural
hosts by, P. ramorum.
Evidence demonstrating whether debarked wood provides a
viable or likely pathway for the spread of, or infection of natural
hosts by, P. ramorum.
Evidence demonstrating whether acorns, seeds, or fruits of
host plants are naturally infected by P. ramorum or carry P. ramorum,
and whether acorns, seeds, or fruits of host plants provide viable or
likely pathways for the spread of, or infection of natural hosts by, P.
ramorum.
Comments on the inspection and sampling requirements for
nurseries, including comments providing a scientific basis for a longer
or shorter inspection cycle, or an alternative sampling protocol.
Data related to the accuracy, specificity, ease of use,
and cost effectiveness of tests that can be used to detect P. ramorum
on nursery stock of host plants.
Evidence demonstrating whether certain treatments are
effective in eliminating P. ramorum infection in regulated articles.
Emergency Action
This rulemaking is necessary on an emergency basis to prevent P.
ramorum from spreading to noninfested areas of 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 rule
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 as a result of the comments.
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.
In accordance with 5 U.S.C. 603, we have performed an initial
regulatory flexibility analysis, which is set out below, regarding the
economic effects of this interim rule on small entities. Based on the
information we have, there is no basis to conclude that adoption of
this interim rule would result in any significant economic effect on a
substantial number of small entities. However, we do not currently have
all of the data necessary for a comprehensive analysis of the effects
of this interim rule on small entities. Therefore, we are inviting
comments on potential effects. In particular, we are interested in
determining the number and kind of small entities that may incur
benefits or costs from the implementation of this interim rule.
[[Page 6832]]
The Plant Protection Act (7 U.S.C. 7701-7772) authorizes the
Secretary of Agriculture to prohibit or restrict the interstate
movement of any plant, plant product, article, or means of conveyance
if the Secretary determines that the prohibition or restriction is
necessary to prevent the dissemination of a plant pest within the
United States.
As stated earlier in this document, Phytophthora ramorum is known
to infect arrowwood (Viburnum x bodnantense), big leaf maple (Acer
macrophyllum), black oak (Quercus kelloggii), California bay laurel
(Umbellularia californica), California buckeye (Aesculus califorica),
California coffeeberry (Rhamnus californica), California honeysuckle
(Lonicera hispidula), coast live oak (Quercus agrifolia), huckleberry
(Vaccinium ovatum), madrone (Arbutus menziesii), manzanita (
Arctostaphylos spp.), rhododendron (Rhododendron spp., including
azalea), Shreve's oak (Quercus parvula var. shrevei), tanoak
(Lithocarpus densiflorus), and Toyon (Heteromeles arbutifolia). P.
ramorum has been confirmed to exist in 10 counties along or near the
northern California coastline: Alameda, Marin, Mendocino, Monterey,
Napa, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma. P.
ramorum also has been found in a portion of Curry County, OR.
This interim rule is issued to quarantine portions of the States of
California and Oregon where P. ramorum is confirmed to exist, and
regulate the movement of certain host articles to prevent the risk of
spread of P. ramorum to other noninfested areas in the United States.
California is not attempting to eradicate P. ramorum from the 10
counties in the State where the disease is confirmed to exist. Oregon
is attempting to eradicate the disease from an area in Curry County,
the only county where P. ramorum is known to exist in the State. Both
States have restricted the intrastate movement of certain articles from
infested areas to prevent the spread of P. ramorum within California
and Oregon. A Federal quarantine of the affected counties, comprising
approximately 5 percent of the area of the State of California, and a
portion of one county in Oregon is necessary to protect oak forests and
urban tree resources across the United States.
P. ramorum is apparently capable of killing healthy, mature black
oaks (Quercus kelloggii), coast live oak (Quercus agrifolia), and
tanoaks (Lithocarpus densiflorus). Quercus spp. are considered the most
important and widespread of the hardwood trees in the north temperate
zone, consisting of about 300 species. The United States has about 58
oak species of tree size and 10 species that are classified as shrubs.
If other Quercus or Lithocarpus spp. in the Eastern deciduous forests
prove susceptible to the pathogen under natural environmental
conditions, the economic impact could be significant. The commercial
hardwood timber production in the United States alone is worth over $30
billion. Should the disease become widespread, some countries would
likely place restrictions on U.S. exports of oak and other hardwood
products which generated nearly $3 billion in revenue in 2000.
The pathogen has also been isolated from Rhododendron spp.,
arrowwood (Viburnum x bodnantense), and in huckleberry (Vaccinium
spp.), the genus of which includes the commercially important
blueberries and cranberries. P. ramorum causes leaf spotting and twig
dieback on these species, and in severe cases in huckleberry, can kill
the plant. Nursery stock is a probable route of long distance spread of
the disease since spores that give rise to P. ramorum can be dispersed
by soil, or infected shoots, and foliage. Federal restrictions on
nursery stock is necessary as Rhododendron spp. and viburnum are
important components of the ornamental nursery trade. Additionally, two
of the host species of oak are sold as nursery stock and are used as
ornamentals in landscaping. The importance of the Federal quarantine
and restrictions is further underscored by the fact that there is
currently no known treatment for infected plants that kills the fungus
but allows plants to survive. Federal action is necessary to protect
the U.S. nursery industry whose sales in 1997 was estimated at almost
$11 billion.
Impact of the Interim Rule
Under the interim rule, nursery stock moving interstate from the
quarantined area must be accompanied by a certificate stating that,
among other things, the stock (1) originates from a nursery that has
been inspected for P. ramorum on an annual basis and that has been
found free, and (2) is part of shipment of nursery stock that has been
inspected for P. ramorum prior to interstate movement and that has been
found free. The impact of the restriction on interstate movement of
nursery stock would depend on the amount of host products that are to
be moved outside the quarantined area. The 1997 Census of Agriculture
data show that in that year, there were some 1,214 nurseries in the 10
affected counties in California which accounted for 24 percent of the
number of nurseries and 27 percent of the value of nursery sales in
California, or 5.5 percent of total U.S. sales of nursery stock in
1997. There were 7 nurseries in Curry County, OR, which comprised less
than 0.2 percent of the number of nurseries, and 0.15 percent of sales.
Not all of the 1,214 nurseries in the 10 California counties, however,
are expected to be affected by this rule. Some indication of the impact
may be surmised from the preliminary results of a survey jointly
conducted by the California Department of Food and Agriculture and
USDA/APHIS, between January and March 2001. The respondents to the
survey were 517 wholesale and retail establishments in 6 counties in
California (no survey was available for Oregon). These businesses
include facilities that sold lumber, firewood cutters and dealers, and
nurseries involved in propagation and sale of oaks, rhododendrons, and
other host products.
Approximately 234, or 45 percent, of the businesses surveyed had
contact with host materials. The total sales value of these businesses
amounted to some $7 million. A large amount of the aggregate receipts
(nearly 85 percent) were derived from the sale of azaleas and
rhododendron. The next largest category of sales is from oak firewood
(12.7 percent), followed by oak nursery stock (2.5 percent), and mulch
and chips from oak (0.17 percent).
This interim rule may impact some of the wholesale nurseries who
move rhododendrons and oak nursery stock to nurseries outside the
State. Nurseries that do not meet APHIS's requirements must divert
their products to markets within the quarantined area, or if a market
cannot be found, lose sales of that commodity. Although some
information is available from the survey on the number of businesses
who have contact with host materials (234 establishments), and the
relatively large amount of receipts earned from sales of Rhododendron
spp. (including azaleas) is also known, the amount of these hosts that
are intended for interstate shipment is unknown. Thus, a conclusive
statement cannot be made about the extent of the impact due to the
movement restriction. APHIS invites comments from members of the public
who may be impacted by the restriction on interstate movement of
Rhododendron spp.
Besides rhododendrons and azaleas, wholesale nurseries within the
affected area that sell oak seedlings and trees to nurseries outside
the State would also be affected by the rule. The proportion of the 234
establishments that would be affected by the restrictions on movement
of oak seedlings is unknown.
[[Page 6833]]
However, trade of seedlings is primarily on one type of host species,
the coast live oak, which is not believed to be shipped interstate to a
significant degree. We therefore expect that the restriction on the
movement of oak nursery stock to be small.
Under this rule, producers in the quarantined counties who wish to
sell wreaths, garlands, or greenery outside their counties are required
to treat these products with hot water. The cost of hot water treatment
is not known, and we invite public comments on treatment costs.
The economic effects that could result from the requirement that
unprocessed wood or wood products (including firewood, logs, lumber,
and other wood products) be debarked prior to interstate movement are
unknown. We invite public comments on any costs to affected entities
that may result from the debarking requirements of this rule.
The businesses surveyed that are involved in firewood distribution,
from cutters to wholesalers to retailers, are generally small entities
who sell primarily intrastate. The economic effects of the rule on
entities involved in the firewood business is expected to be small as
their sales are believed to be largely to markets within the
quarantined area.
The effects of this rule on persons moving soil interstate from
quarantined areas, and persons who wish to move forest stock (non-
nursery grown trees, shrubs, etc.) interstate is also unknown at this
time. We invite public comments on these potential effects.
In general, the economic effects of this rule could be small
because many host products are sold primarily within the affected
States, often within quarantined areas. Consequently, State regulations
on intrastate movement would likely have a larger impact on business
within the affected counties than APHIS's quarantine and regulations on
interstate movement.
Regulatory Flexibility Analysis
The Regulatory Flexibility Act requires that APHIS specifically
consider the economic impact of the interim rule on small entities. The
Small Business Administration (SBA) has established size criteria for
determining which economic entities meet the definition of a small
firm. The small entity size standard for nursery and tree production
(NAICS 111421) is $750,000 or less in annual receipts; for forest
nurseries and gathering of forest products (NAICS 113210) is $5,000,000
or less in annual receipts. The SBA classifies logging operations
(NAICS 113310), as well as sawmills, and wood product manufacturers as
small entities if fewer than 500 people are employed.
Based on the above criteria, the majority of nurseries in the
affected counties of California and Oregon would likely be classified
as small entities. The impact of the rule on businesses handling host
materials, whether small or large, would depend on the amount of
regulated articles moved in interstate commerce that would have to meet
APHIS's requirements as a condition of movement. Some businesses may
incur additional costs for hot water treatment or debarking.
Preliminary results from a survey of businesses in 6 of the 10
affected counties in California indicate that host materials worth over
$7 million in annual sales may be potentially affected by the interim
rule. The actual impact (that is, the number of affected establishments
and the amount of additional costs or losses incurred) is not known.
The negative impact of this interim rule could be small as a majority
of host products is sold primarily within the regulated counties in the
States. Consequently, State regulations on intrastate movement would
likely have a larger impact on businesses within the affected counties
than APHIS's regulations on interstate movement. The public is invited
to submit information regarding the percentage of sales of regulated
articles that moves intra-county, inter-county, and interstate.
The economic effects of this rule are expected to be offset by
large benefits to the public in terms of preventing disease spread and
harm to forest and urban resources in unaffected regions across the
country.
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
In accordance with section 3507(j) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection and
recordkeeping requirements included in this interim rule have been
submitted for emergency approval to the Office of Management and Budget
(OMB). OMB has assigned control number 0579-0191 to the information
collection and recordkeeping requirements.
We plan to request continuation of that approval for 3 years.
Please send written comments on the 3-year approval request to the
following addresses: (1) Office of Information and Regulatory Affairs,
OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2)
Docket No. 01-054-1, Regulatory Analysis and Development, PPD, APHIS,
Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238.
Please state that your comments refer to Docket No. 01-054-1 and send
your comments within 60 days of publication of this rule.
This interim rule quarantines portions of the States of California
and Oregon because of the presence of P. ramorum and restricts the
interstate movement of regulated articles from quarantined areas. Its
implementation will require us to engage in certain information
collection activities, in that regulated articles may not be moved
interstate from quarantined areas unless they are accompanied by a
certificate. A certificate may be issued by an inspector (i.e., an
APHIS employee or other person authorized by the APHIS Administrator to
enforce the regulations) or by a person who has entered into a written
compliance agreement with APHIS. We are soliciting comments from the
public concerning our information collection and recordkeeping
requirements. These comments will help us:
(1) Evaluate whether the information collection is necessary for
the proper performance of our agency's functions, including whether the
information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
information collection, including the validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information
[[Page 6834]]
is estimated to average 0.07372 hours per response.
Respondents: Persons engaged in growing, processing, handling, or
moving regulated articles.
Estimated annual number of respondents: 387.
Estimated annual number of responses per respondent: 43.002.
Estimated annual number of responses: 16,642.
Estimated total annual burden on respondents: 1,227 hours. (Due to
averaging, the total annual burden hours may not equal the product of
the annual number of responses multiplied by the reporting burden per
response.)
Copies of this information collection can be obtained from Mrs.
Celeste Sickles, APHIS' Information Collection Coordinator, at (301)
734-7477.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, we are amending 7 CFR part 301 as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 continues to read as
follows:
Authority: 7 U.S.C. 166, 7711, 7712, 7714, 7731, 7735, 7751,
7752, 7753, and 7754; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L.
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7
U.S.C. 1421 note).
2. Part 301 is amended by adding a new ``Subpart--Phytophthora
Ramorum,'' Secs. 301.92 through 301.92-10, to read as follows:
Subpart--Phytophthora Ramorum
Sec.
301.92 Restrictions on the interstate movement of regulated and
restricted articles.
301.92-1 Definitions.
301.92-2 Regulated and restricted articles.
301.92-3 Quarantined areas.
301.92-4 Conditions governing the interstate movement of regulated
and restricted articles from quarantined areas.
301.92-5 Issuance and cancellation of certificates.
301.92-6 Compliance agreements and cancellation.
301.92-7 Assembly and inspection of regulated articles.
301.92-8 Attachment and disposition of certificates.
301.92-9 Costs and charges.
301.92-10 Treatments.
301.92-11 Inspection and sampling protocol.
Subpart--Phytophthora Ramorum
Sec. 301.92 Restrictions on the interstate movement of regulated and
restricted articles.
No person may move interstate from any quarantined area any
regulated or restricted article except in accordance with this
subpart.\1\
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\1\ Any properly identified inspector is authorized to stop and
inspect persons and means of conveyance and to seize, quarantine,
treat, apply other remedial measures to, destroy, or otherwise
dispose of regulated or restricted articles as provided in sections
414, 421, and 434 of the Plant Protection Act (7 U.S.C. 7714, 7731,
and 7754).
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Sec. 301.92-1 Definitions.
Administrator. The Administrator, Animal and Plant Health
Inspection Service, or any person authorized to act for the
Administrator.
Animal and Plant Health Inspection Service. The Animal and Plant
Health Inspection Service (APHIS) of the United States Department of
Agriculture.
Bark chips. Bark fragments broken or shredded from a log or tree.
Certificate. A document in which an inspector or person operating
under a compliance agreement affirms that a specified regulated article
meets the requirements of Sec. 301.92-5(a) of this subject and may be
moved interstate to any destination.
Compliance agreement. A written agreement between APHIS and a
person engaged in growing, processing, handling, or moving regulated
articles, wherein the person agrees to comply with this subpart.
Departmental permit. A document issued by the Administrator in
which he or she affirms that interstate movement of the regulated
article identified on the document is for scientific or experimental
purposes and that the regulated article is eligible for interstate
movement in accordance with Sec. 301.92-4(a)(2) of this subpart.
Duff. Decaying plant matter that includes leaf litter, green waste,
stem material, bark, and any other plant material that, upon visual
inspection, does not appear to have completely decomposed into soil.
Firewood. Wood that has been cut, sawn, or chopped into a shape and
size commonly used for fuel.
Forest stock. All flowers, trees, shrubs, vines, scions, buds,
fruit pits, or other seeds of fruit and ornamental trees or shrubs that
are wild-grown, backyard-grown, or naturally occurring and do not meet
the definition of nursery stock, and that are not located on a nursery
premises.
Inspector. Any employee of APHIS, the U.S. Department of
Agriculture, or other person authorized by the Administrator to perform
the duties required under this subpart.
Interstate. From any State into or through any other State.
Log. The bole of a tree; trimmed timber that has not been sawn
further than to form cants.
Lumber. Logs that have been sawn into boards, planks, or structural
members such as beams.
Moved (move, movement). Shipped, offered for shipment, received for
transportation, transported, carried, or allowed to be moved, shipped,
transported, or carried.
Mulch. Bark chips, wood chips, wood shavings, or sawdust, or a
mixture thereof, that could be used as a protective or decorative
ground cover.
Nursery stock. All greenhouse or field-grown florist's stock,
trees, shrubs, vines, cuttings, grafts, scions, buds, fruit pits, and
other seeds of fruit and ornamental trees or shrubs, and other plants
and plant products for propagation, except field, vegetable, and flower
seeds, bedding plants, and other herbaceous plants, bulbs, and roots.
Person. Any association, company, corporation, firm, individual,
joint stock company, partnership, society, or other entity.
Plant Protection and Quarantine. Plant Protection and Quarantine,
Animal and Plant Health Inspection Service, United States Department of
Agriculture.
Quarantined area. Any State, or any portion of a State, listed in
Sec. 301.92-3(c) of this subpart or otherwise designated as a
quarantined area in accordance with Sec. 301.92-3(b) of this subpart.
Regulated article. Any article listed in Sec. 301.92-2(a) of this
subpart.
Restricted article. Any article listed in Sec. 301.92-2(b) of this
subpart.
Soil. Any non-liquid combination of organic and/or inorganic
material in which plants can grow.
State. The District of Columbia, Puerto Rico, the Northern Mariana
Islands, or any State, territory, or possession of the United States.
Sec. 301.92-2 Regulated and restricted articles.
(a) The following are regulated articles, and may be moved
interstate from a quarantined area only if accompanied by a certificate
issued in accordance with the regulations in this subpart:
(1) Nursery stock (except acorns and seeds), unprocessed wood and
wood products, and plant products, including firewood, logs, lumber,
wreaths,
[[Page 6835]]
garlands, and greenery of arrowwood (Viburnum x bodnantense), big leaf
maple (Acer macrophyllum), black oak (Quercus kelloggii), California
bay laurel (Umbellularia californica), California buckeye (Aesculus
californica), California coffeeberry (Rhamnus californica), California
honeysuckle (Lonicera hispidula), coast live oak (Quercus agrifolia),
huckleberry (Vaccinium ovatum) (except fruit), madrone (Arbutus
menziesii), manzanita (Arctostaphylos spp.), rhododendron (Rhododendron
spp., including azalea), Shreve's oak (Quercus parvula var. shrevei),
tanoak (Lithocarpus densiflorus), and Toyon (Heteromeles arbutifolia).
(2) Soil.
(3) Any other product or article that an inspector determines to
present a risk of spreading Phytophthora ramorum, if an inspector
notifies the person in possession of the product or article that it is
subject to the restrictions in the regulations.
(b) The following are restricted articles, and may only be moved
interstate from a quarantined area by the U.S. Department of
Agriculture for experimental or scientific purposes, and only in
accordance with the regulations in Sec. 301.92-4(a)(2) of this subpart:
(1) Bark chips, forest stock, or mulch of arrowwood (Viburnum x
bodnantense), big leaf maple (Acer macrophyllum), black oak (Quercus
kelloggii), California bay laurel (Umbellularia californica),
California buckeye (Aesculus californica), California coffeeberry
(Rhamnus californica), California honeysuckle (Lonicera hispidula),
coast live oak (Quercus agrifolia), huckleberry (Vaccinium ovatum),
madrone (Arbutus menziesii), manzanita (Arctostaphylos spp.),
rhododendron (Rhododendron spp., including azalea), Shreve's oak
(Quercus parvula var. shrevei), tanoak (Lithocarpus densiflorus), and
Toyon (Heteromeles arbutifolia).
(2) Any other product or article that an inspector determines to
present a risk of spreading Phytophthora ramorum, if an inspector
notifies the person in possession of the product or article that it is
a restricted article.
Sec. 301.92-3 Quarantined areas.
(a) Except as otherwise provided in paragraph (b) of this section,
the Administrator will list as a quarantined area in paragraph (c) of
this section each State, or each portion of a State, in which
Phytophthora ramorum has been found by an inspector, in which the
Administrator has reason to believe that Phytophthora ramorum is
present, or that the Administrator considers necessary to quarantine
because of its inseparability for quarantine enforcement purposes from
localities in which Phytophthora ramorum has been found. Less than an
entire State will be designated as a quarantined area only if the
Administrator determines that:
(1) The State has adopted and is enforcing restrictions on the
intrastate movement of the regulated articles that are substantially
the same as those imposed by this subpart on the interstate movement of
regulated articles; and
(2) The designation of less than the entire State as a quarantined
area will prevent the interstate spread of Phytophthora ramorum.
(b) The Administrator or an inspector may temporarily designate any
nonquarantined area in a State as a quarantined area in accordance with
paragraph (a) of this section. The Administrator will give a copy of
this regulation along with a written notice for the temporary
designation to the owner or person in possession of the nonquarantined
area. Thereafter, the interstate movement of any regulated article from
an area temporarily designated as a quarantined area will be subject to
this subpart. As soon as practicable, this area will be added to the
list in paragraph (c) of this section or the designation will be
terminated by the Administrator or an inspector. The owner or person in
possession of an area for which designation is terminated will be given
notice of the termination as soon as practicable.
(c) The following areas are designated as quarantined areas:
California
Alameda County. The entire county.
Marin County. The entire county.
Mendocino County. The entire county.
Monterey County. The entire county.
Napa County. The entire county.
San Mateo County. The entire county.
Santa Clara County. The entire county.
Santa Cruz County. The entire county.
Solano County. The entire county.
Sonoma County. The entire county.
Oregon
Curry County. That portion of the county bounded by a line drawn
as follows: Beginning in the northwest corner of sec. 17, T. 40 S.,
R. 13 W., then east along sec. 17 and 16, T. 40 S., R. 13 W., to
sec. 16, T. 40 S., R. 13 W., then south along sec. 16, 21, 28, and
33, T. 40 S., R. 13 W., to sec. 33, T. 40 S., R. 13 W., then west
along sec. 33 and 32, T. 40 S., R. 13 W., to sec. 32, T. 40 S., R.
13 W., then north along sec. 32 and 29, T. 40 S., R. 13 W., to the
midway point of the western boundary of sec. 29, T. 40 S., R. 13 W.,
then west to the center of sec. 30, T. 40 S., R. 13 W., then north
through sec. 30 and 19, T. 40 S., R. 13 W., to the center of sec.
19, T. 40 S., R. 13 W., then east to the western boundary of sec.
20, T. 40 S., R. 13 W., then north along sec. 20 and 17, T. 40 S.,
R. 13 W., to the point of beginning.
Sec. 301.92-4 Conditions governing the interstate movement of
regulated and restricted articles from quarantined areas.
Regulated articles and restricted articles may be moved interstate
from a quarantined area \2\ only if moved in accordance with this
section.
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\2\ Requirements under all other applicable Federal domestic
plant quarantines and regulations must also be met.
---------------------------------------------------------------------------
(a) With a certificate or departmental permit.
(1) Any regulated articles may be moved interstate from a
quarantined area if accompanied by a certificate issued and attached in
accordance with Secs. 301.92-5 and 301.92-8 of this subpart, and
provided that the regulated article is moved through the quarantined
area without stopping except for refueling, rest stops, emergency
repairs, and for traffic conditions, such as traffic lights or stop
signs.
(2) Any restricted article may be moved interstate from a
quarantined area only if the article is moved:
(i) By the United States Department of Agriculture for experimental
or scientific purposes;
(ii) Pursuant to a departmental permit issued by the Administrator
for the article;
(iii) Under conditions specified on the departmental permit and
found by the Administrator to be adequate to prevent the spread of
Phytophthora ramorum; and
(iv) With a tag or label bearing the number of the departmental
permit issued for the article attached to the outside of the container
holding the article, or attached to the article itself if not in a
container.
(b) Without a certificate or departmental permit.
(1) The regulated or restricted article originated outside the
quarantined area and the point of origin of the article is indicated on
the waybill of the vehicle transporting the article; and
(2) The regulated or restricted article is moved from outside the
quarantined area through the quarantined area without stopping except
for refueling or for traffic conditions, such as traffic lights or stop
signs, and the article is not unpacked or unloaded in the quarantined
area. (Approved by the Office of Management and Budget under control
number 0579-0191)
[[Page 6836]]
Sec. 301.92-5 Issuance and cancellation of certificates.
(a) An inspector \3\ may issue a certificate for the interstate
movement of regulated articles if an inspector determines that:
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\3\ Services of an inspector may be requested by contacting
local offices of Plant Protection and Quarantine, which are listed
in telephone directories. The addresses and telephone numbers of
local offices may also be obtained from the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, Invasive
Species and Pest Management, 4700 River Road Unit 134, Riverdale MD
20737-1236, or the APHIS web site at http://www.aphis.usda.gov/travel/aqi.html.
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(1)(i) The regulated articles have been treated under the direction
of an inspector in accordance with Sec. 301.92-10 of this subpart; or
(ii) The regulated articles are wood products such as firewood,
logs, or lumber that are free of bark; or
(iii) The regulated article is soil that has not been in direct
physical contact with any article infected with P. ramorum, and from
which all duff has been removed.
(iv) The regulated articles are articles of nursery stock that:
(A) Are shipped from a nursery or premises in a quarantined area
that is inspected annually in accordance with the inspection and
sampling protocol described in Sec. 301.92-11(a) of this subpart, and
that has been found free of Phytophthora ramorum; and
(B) Are part of a shipment of nursery stock that has been inspected
prior to interstate movement in accordance with Sec. 301.92-11(b) of
this subpart, and that has been found free of Phytophthora ramorum; and
(C) Have been kept separate from regulated articles not inspected
between the time of the inspection and the time of interstate movement;
and
(D) Have not been grown in, or moved from, other areas within a
quarantined area except nurseries or premises that are annually
inspected for Phytophthora ramorum in accordance with this section, and
that have been found free of Phytophthora ramorum.
(2) The regulated article is to be moved in compliance with any
additional emergency conditions the Administrator may impose under
section 414 of the Plant Protection Act (7 U.S.C. 7714) \4\ to prevent
the spread of Phytophthora ramorum; and
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\4\ Sections 414, 421, and 434 of the Plant Protection Act (7
U.S.C. 7714, 7731, and 7754) provide that the Secretary of
Agriculture may, under certain conditions, hold, seize, quarantine,
treat, apply other remedial measures to destroy or otherwise dispose
of any plant, plant pest, plant product, article, or means of
conveyance that is moving, or has moved into or through the United
States or interstate if the Secretary has reason to believe the
article is a plant pest or is infested with a plant pest at the time
of movement.
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(3) The regulated article is eligible for unrestricted movement
under all other Federal domestic plant quarantines and regulations
applicable to the regulated article.
(b) Certificates may be issued by any person engaged in the
business of growing, processing, handling, or moving regulated articles
provided such person has entered into and is operating under a
compliance agreement. Any such person may execute and issue a
certificate for the interstate movement of regulated articles if an
inspector has previously made the determination that the article is
eligible for a certificate in accordance with Sec. 301.92-5(a) of this
subpart.
(c) Any certificate that has been issued may be withdrawn, either
orally or in writing, by an inspector if he or she determines that the
holder of the certificate has not complied with all conditions in this
subpart for the use of the certificate. If the withdrawal is oral, the
withdrawal and the reasons for the withdrawal will be confirmed in
writing as promptly as circumstances allow. Any person whose
certificate has been withdrawn may appeal the decision in writing to
the Administrator within 10 days after receiving the written
notification of the withdrawal. The appeal must state all of the facts
and reasons upon which the person relies to show that the certificate
was wrongfully withdrawn. As promptly as circumstances allow, the
Administrator will grant or deny the appeal, in writing, stating the
reasons for the decision. A hearing will be held to resolve any
conflict as to any material fact. Rules of practice concerning a
hearing will be adopted by the Administrator.
(Approved by the Office of Management and Budget under control
number 0579-0191)
Sec. 301.92-6 Compliance agreements and cancellation.
(a) Any person engaged in growing, processing, handling, or moving
regulated articles other than nursery stock may enter into a compliance
agreement when an inspector determines that the person understands this
subpart, agrees to comply with its provisions, and agrees to comply
with all the provisions contained in the compliance agreement.\5\
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\5\ Compliance agreement forms are available without charge from
the Animal and Plant Health Inspection Service, Plant Protection and
Quarantine, Invasive Species and Pest Management, 4700 River Road
Unit 134, Riverdale, MD 20737-1236, and from local offices of the
Plant Protection and Quarantine, which are listed in telephone
directories.
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(b) Any compliance agreement may be canceled, either orally or in
writing, by an inspector whenever the inspector finds that the person
who has entered into the compliance agreement has failed to comply with
this subpart. If the cancellation is oral, the cancellation and the
reasons for the cancellation will be confirmed in writing as promptly
as circumstances allow. Any person whose compliance agreement has been
canceled may appeal the decision, in writing, within 10 days after
receiving written notification of the cancellation. The appeal must
state all of the facts and reasons upon which the person relies to show
that the compliance agreement was wrongfully canceled. As promptly as
circumstances allow, the Administrator will grant or deny the appeal,
in writing, stating the reasons for the decision. A hearing will be
held to resolve any conflict as to any material fact. Rules of practice
concerning a hearing will be adopted by the Administrator.
Sec. 301.92-7 Assembly and inspection of regulated articles.
(a) Any person (other than a person authorized to issue
certificates under Sec. 301.92-5(b) of this subpart) who desires to
move a regulated article interstate accompanied by a certificate must
notify an inspector \6\ as far in advance of the desired interstate
movement as possible, but no less than 14 days before the desired
interstate movement.
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\6\ See footnote 3 of this subpart.
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(b) The regulated article must be assembled at the place and in the
manner the inspector designates as necessary to comply with this
subpart.
Sec. 301.92-8 Attachment and disposition of certificates.
(a) A certificate required for the interstate movement of a
regulated article must, at all times during the interstate movement,
be:
(1) Attached to the outside of the container containing the
regulated article; or
(2) Attached to the regulated article itself if not in a container;
or
(3) Attached to the consignee's copy of the accompanying waybill.
If the certificate is attached to the consignee's copy of the waybill,
the regulated article must be sufficiently described on the certificate
and on the waybill to identify the regulated article.
(b) The certificate for the interstate movement of a regulated
article must be furnished by the carrier to the consignee listed on the
certificate upon arrival at the location provided on the certificate.
(Approved by the Office of Management and Budget under control
number 0579-0191)
[[Page 6837]]
Sec. 301.92-9 Costs and charges.
The services of the inspector during normal business hours (8 a.m.
to 4:30 p.m., Monday through Friday, except holidays) will be furnished
without cost. The user will be responsible for all costs and charges
arising from inspection and other services provided outside normal
business hours.
Sec. 301.92-10 Treatments.
The following methods may be used to treat the regulated articles
listed for Phytophthora ramorum:
(a) Soil must be heated to a temperature of at least 180 deg.F for
30 minutes in the presence of an inspector.
(b) Wreaths, garlands, and greenery of arrowwood (Viburnum x
bodnantense), big leaf maple (Acer macrophyllum), black oak (Quercus
kelloggii), California bay laurel (Umbellularia californica),
California buckeye (Aesculus californica), California coffeeberry
(Rhamnus californica), California honeysuckle (Lonicera hispidula),
coast live oak (Quercus agrifolia), huckleberry (Vaccinium ovatum),
madrone (Arbutus menziesii), manzanita (Arctostaphylos spp.),
rhododendron (Rhododendron species, including azalea), Shreve's oak
(Quercus parvula var. shrevei), tanoak (Lithocarpus densiflorus), and
Toyon (Heteromeles arbutifolia) must be dipped for 1 hour in water that
is held at a temperature of at least 160 deg.F.
Sec. 301.92-11 Inspection and sampling protocol.
(a) Annual nursery inspection and sampling. To meet the
requirements of Sec. 301.92-5(a)(1)(iv) of this subpart, nurseries that
ship regulated articles of nursery stock interstate must be inspected
for symptoms of Phytophthora ramorum annually in accordance with this
section.
(1) If the nursery contains 100 or fewer regulated articles, an
inspector will inspect each regulated article. If the nursery contains
more than 100 regulated articles, an inspector will inspect 100
regulated articles and at least 2 percent of the number of regulated
articles contained in the nursery that exceeds 100. The regulated
articles to inspected will be randomly selected from throughout the
nursery.
(2) If symptomatic plants are found upon inspection, the inspector
must collect at least one sample per symptomatic plant.
(3) If fewer than 40 symptomatic plants are found in a nursery
during an annual inspection, the inspector must collect samples from
nonsymptomatic regulated articles of nursery stock so that the total
number of sampled plants is at least 40.
(4) Samples must be labeled and sent for testing to a laboratory
approved by APHIS.
(5) If any regulated articles within a nursery are found to be
infected with Phytophthora ramorum, the nursery will be prohibited from
moving regulated articles interstate until such time as an inspector
can determine that the nursery is free of Phytophthora ramorum.
(b) Inspection and sampling of individual shipments. To meet the
requirements of Sec. 301.92-5(a)(1)(iv) of this subpart, each shipment
of regulated articles of nursery stock intended for interstate movement
must be inspected for symptoms of Phytophthora ramorum in accordance
with this section.
(1) If a shipment contains 100 or fewer regulated articles, an
inspector will inspect each regulated article. If a shipment contains
more than 100 regulated articles, an inspector will inspect 100
regulated articles and at least 2 percent of the number of regulated
articles contained in the shipment that exceeds 100. The regulated
articles to be inspected will be randomly selected.
(2) If symptomatic plants are found upon inspection, the inspector
will collect at least one sample per symptomatic plant, and one sample
per regulated article of nursery stock that is in close proximity to,
or that has had physical contact with a symptomatic plant.
(3) Samples will be labeled and sent for testing to a laboratory
approved by APHIS, and must be found free of Phytophthora ramorum prior
to the interstate movement of any regulated articles contained in the
shipment.
(4) If any plants intended for interstate movement are found to be
infected with Phytophthora ramorum, the nursery from which they
originate will be prohibited from moving regulated articles interstate
until such as time as an inspector can determine that the nursery is
free of Phytophthora ramorum.
Done in Washington, DC, this 12th day of February 2002.
W. Ron DeHaven,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 02-3721 Filed 2-13-02; 8:45 am]
BILLING CODE 3410-34-P