Federal Register, Volume 72 Issue 38 (Tuesday, February 27, 2007)

[Federal Register Volume 72, Number 38 (Tuesday, February 27, 2007)]
[Rules and Regulations]
[Pages 8585-8604]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-892]

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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
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 /
Rules and Regulations

[[Page 8585]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 01-054-3]
RIN 0579-AB82

Phytophthora Ramorum; Quarantine and Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the Phytophthora ramorum regulations to
establish restrictions on the interstate movement of nursery stock from
nurseries in nonquarantined areas in California, Oregon, and
Washington. We are also amending the regulations to update conditions
for the movement of regulated articles of nursery stock from
quarantined areas, to add restrictions on the movement of decorative
trees without roots from quarantined areas, as well as to restrict the
interstate movement of all other nursery stock from nurseries in
quarantined areas. We are also updating the list of plants regulated
because of P. ramorum and the list of areas that are quarantined for P.
ramorum, and making other miscellaneous amendments to the regulations.
These actions are necessary to prevent the spread of P. ramorum to
noninfested areas of the United States.

DATES: This interim rule is effective February 27, 2007. We will
consider all comments that we receive on or before April 30, 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-2005-0102 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. 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. 01-054-3.
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. Jonathan Jones, National
Phytophthora ramorum Program Manager, Pest Detection and Management
Programs, PPQ, APHIS, 4700 River Road Unit 160, Riverdale, MD 20737;
(301) 734-8247.

SUPPLEMENTARY INFORMATION:

Background

Under the regulations in ``Subpart-Phytophthora Ramorum'' (7 CFR
301.92 through 301.92-11, referred to below as the regulations), the
Animal and Plant Health Inspection Service (APHIS) of the U.S.
Department of Agriculture (USDA) restricts the interstate movement of
certain regulated and restricted articles from quarantined areas in
California and Oregon to prevent the artificial spread of Phytophthora
ramorum, the pathogen that causes the plant diseases commonly known as
sudden oak death, ramorum leaf blight, and ramorum dieback.
The regulations, which were established in February 2002,
quarantined 10 counties in California and part of 1 county in Oregon,
and restrict the interstate movement of regulated and restricted
articles from those areas. Regulated articles, which may be moved
interstate from quarantined areas contingent upon the application of
certain phytosanitary measures, include soil and nursery stock (except
acorns and seeds), unprocessed wood and wood products (including
firewood, logs, and lumber), and plant products (including wreaths,
garlands, and greenery) of 14 species and 1 genus of plants. Restricted
articles from quarantined areas, which are prohibited from moving
interstate except under departmental permit, include bark chips, forest
stock, and mulch of the same 14 species and 1 genus of plants. The
regulations also include provisions for the issuance of certificates
and compliance agreements, as well as provisions regarding treatments
for regulated articles and inspection and sampling protocols for
nurseries shipping host plants interstate.
The regulatory changes codified by this rule are consistent with an
order issued by APHIS on December 21, 2004, that restricted the
interstate movement of nursery stock from California, Oregon, and
Washington nurseries.\1\ The requirements established by this rule
supercede the requirements of the order.
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\1\ The emergency order can be viewed on the Internet at: http:/
/www.aphis.usda.gov/ppq/ispm/pramorum/.
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In this interim rule, we are amending the regulations to establish
restrictions on the interstate movement of nursery stock from nurseries
in nonquarantined counties in California, Oregon, and Washington. We
are also amending the regulations to update conditions for the movement
of regulated articles of nursery stock from quarantined areas, to add
restrictions on the movement of decorative trees without roots from
quarantined areas, as well as to restrict the interstate movement of
all other nursery stock from nurseries in quarantined areas. We are
also updating the list of plants regulated because of P. ramorum and
the list of areas that are quarantined for P. ramorum, and making other
miscellaneous amendments to the regulations. These actions are
necessary to prevent the

[[Page 8586]]

spread of P. ramorum to noninfested areas of the United States.

Changes to the Regulations Made by this Rule

Since 2002, P. ramorum has been confirmed to be established in
natural areas in four additional counties in California and a small
additional area in Curry County, OR, and many additional plants have
been confirmed as hosts of the pathogen. In this document, we are
updating the regulations to reflect these developments.
Specifically, we are adding Contra Costa, Humboldt, Lake, and San
Francisco Counties in California to the list of quarantined areas and
revising the description of the portion of Curry County, OR, that is a
quarantined area to reflect the fact that the previously quarantined
area has been expanded, and that the area remains under an eradication
program. The updated list of quarantined areas appears in Sec. 301.92-
3(a)(3) in this rule.
We are also amending the regulations in Sec. 301.92-2 that
designate regulated and restricted articles to include additional taxa
of P. ramorum hosts. The complete list of proven host taxa can be found
in Sec. 301.92-2(d) in the rule portion of this document. The proven
genera, species, or hybrids added by this rule are:

Acer pseudoplatanus Planetree maple
Adiantum aleuticum Western maidenhair fern
Adiantum jordanii California maidenhair fern
Aesculus hippocastanum horse chestnut
Calluna vulgaris Scotch heather
Camellia spp. Camellia--all species, hybrids, and cultivars
Castanea sativa Sweet chestnut
Fagus sylvatica European beech
Frangula purshiana ([equiv]Rhamnus purshiana) Cascara
Fraxinus excelsior European ash
Griselinia littoralis Griselinia
Hamamelis virginiana Witch hazel
Kalmia spp. Kalmia-all species, hybrids, and cultivars
Laurus nobilis Bay laurel
Maianthemum racemosum ([equiv]Smilacina racemosa) False
Solomon's seal
Michelia doltsopa Michelia
Parrotia persica Persian ironwood
Photinia fraseri Red tip photinia
Pieris spp. Pieris-all species, hybrids, and cultivars
Pseudotsuga menziesii var. menziesii Douglas fir and all
nursery-grown P. menziesii
Quercus cerris European turkey oak
Quercus chrysolepis Canyon live oak
Quercus falcata Southern red oak
Quercus ilex Holm oak
Rosa gymnocarpa Wood rose
Salix caprea Goat willow
Sequoia sempervirens Coast redwood
Syringa vulgaris Lilac
Taxus baccata European yew
Trientalis latifolia Western starflower
Viburnum spp. Viburnum-all species, hybrids, and cultivars

The plant taxa listed above are proven hosts of P. ramorum based
upon completion, documentation, review, and acceptance of traditional
Koch's postulates. Note that several updates have been made to
previously listed taxa:
Black oak is now listed as California black oak;
The scientific name for California coffeeberry has been
corrected;
Huckleberry is now listed as evergreen huckleberry;
Arrowwood is now listed as Bodnant viburnum;
All nursery-grown Quercus parvula are now regulated;
All species, hybrids, and cultivars of Pieris spp. are now
regulated;
All species, hybrids, and cultivars of Kalmia spp. are now
regulated;
All species, hybrids, and cultivars of Rhododendron spp.
are now regulated; and
The listing for Umbellularia californica is clarified to
include other recognized common names--pepperwood and Oregon myrtle.
We are also clarifying that firewood, logs, and lumber of specific
proven host plant taxa are not regulated because available research
shows that P. ramorum infections are limited to other parts (i.e.,
twigs, leaves, and sprouts) of those hosts. These hosts are indicated
with an asterisk in revised Sec. 301.92-2(d).
In addition to amending the lists of regulated and restricted
articles, we are adding a new category of article to the regulations:
Associated articles. Several plant species have been associated with P.
ramorum after symptoms were observed on the plants and culture or
polymerase chain reaction (PCR) tests of the plants returned positive
results for P. ramorum. Traditional Koch's postulates, which will
confirm or exclude them as hosts, have not yet been completed for any
of these plant species, but the positive results of culture or PCR
tests indicate that they present a risk of transmitting P. ramorum. We
are, therefore, imposing restrictions on their interstate movement
(discussed in detail later in this document) until the results of the
application of Koch's postulates are known. At that time, we will list
proven hosts as regulated and restricted articles and remove from the
list of associated articles those plant species that are not proven
hosts of P. ramorum via application of Koch's postulates.
Associated plant taxa are listed in Sec. 301.92-2(e); only nursery
stock of these plant taxa are regulated under this rule (i.e.,
interstate movement of unprocessed wood and wood products, and plant
products, including bark chips, mulch, firewood, logs, lumber, wreaths,
garlands, and greenery of associated plant taxa are not regulated).

Abies concolor White fir
Abies grandis Grand fir
Abies magnifica Red fir
Acer circinatum Vine maple
Acer davidii Striped bark maple
Acer laevigatum Evergreen maple
Arbutus unedo Strawberry tree
Arctostaphylos columbiana Manzanita
Arctostaphylos uva-ursi Kinnikinnick, bearberry
Ardisia japonica Ardisia
Calycanthus occidentalis Spicebush
Castanopsis orthacantha Castanopsis
Ceanothus thyrsiflorus Blueblossom
Cinnamomum camphora Camphor tree
Clintonia andrewsiana Andrew's clintonia bead lily
Corylus cornuta California hazelnut
Cornus kousa x Cornus capitata Cornus Norman Haddon
Distylium myricoides Myrtle-leafed distylium
Drimys winteri Winter's bark
Dryopteris arguta California wood fern
Eucalyptus haemastoma Scribbly gum
Euonymus kiautschovicus Spreading euonymus
Fraxinus latifolia Oregon ash
Gaultheria shallon Salal, Oregon wintergreen
Hamamelis mollis Chinese witch-hazel
Hamamelis x intermedia (H. mollis & H. japonica) Hybrid
witchhazel
Ilex purpurea Oriental holly
Leucothoe axillaris Fetter-bush, dog hobble
Leucothoe fontanesiana Drooping leucothoe
Loropetalum chinense Loropetalum
Magnolia grandiflora Southern magnolia
Magnolia stellata Star magnolia
Magnolia x loebneri Loebner magnolia
Magnolia x soulangeana Saucer magnolia
Manglietia insignis Red lotus tree
Michelia maudiae Michelia
Michelia wilsonii Michelia
Nerium oleander Oleander

[[Page 8587]]

Nothofagus obliqua Roble beech
Osmanthus decorus ([equiv]Phillyrea decora; [equiv]P.
vilmoriniana) Osmanthus
Osmanthus delavayi Delavay Osmanthus, Delavay tea olive
Osmanthus fragrans Sweet olive
Osmanthus heterophyllus Holly olive
Osmorhiza berteroi Sweet Cicely
Parakmeria lotungensis Eastern joy lotus tree
Pittosporum undulatum Victorian box
Prunus laurocerasus English laurel, cherry laurel
Prunus lusitanica Portuguese laurel cherry
Pyracantha koidzumii Formosa firethorn
Quercus acuta Japanese evergreen oak
Quercus petraea Sessile oak
Quercus rubra Northern red oak
Rosa (specific cultivars) hybrid roses
Royal Bonica (tagged: ``MEImodac''), Pink Meidilland (tagged:
``MEIpoque''), Pink Sevillana (tagged: ``MEIgeroka'')
Rosa rugosa Rugosa rose
Rubus spectabilis Salmonberry
Schima wallichii Chinese guger tree
Taxus brevifolia Pacific yew
Taxus x media Yew
Torreya californica California nutmeg
Toxicodendron diversilobum Poison oak
Vancouveria planipetala Redwood ivy

Nurseries Located Outside Quarantined Areas

A primary purpose of this rule is to address the discovery of P.
ramorum in nurseries in California, Oregon, and Washington that are
outside quarantined areas. Nurseries outside the quarantined area were
not previously covered by the regulations. While P. ramorum is present
and in some cases widespread in the natural environment in the
quarantined areas of California and Oregon, the detections of P.
ramorum in the nonquarantined areas of California and Oregon and in the
State of Washington have been limited to commercially produced nursery
plants. These nurseries are a proven source of P. ramorum moved in the
interstate trade of nursery stock, therefore, we are regulating the
interstate movement of nursery stock from nurseries in nonquarantined
areas in California, Oregon, and Washington (referred to elsewhere in
this document and in the amended regulations as regulated areas \2\) in
order to prevent the spread of P. ramorum to noninfested areas of the
United States. As stated in the previous section, we are not regulating
the interstate movement of any other restricted or regulated articles
from regulated areas because positive finds in regulated areas have
been limited to nursery stock.
---------------------------------------------------------------------------

\2\ Note the distinction between regulated areas and quarantined
areas. Quarantined areas include the 14 counties in California and a
portion of 1 county in Oregon listed in Sec. 301.92-3(a)(3).
Regulated areas include all remaining areas of California and
Oregon, and the entire State of Washington.
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Specifically, any nursery located in a regulated area that contains
regulated articles of nursery stock or associated articles is
prohibited from moving nursery stock interstate until certain
conditions are met. In some cases, nurseries may also be prohibited
from shipping non-host nursery stock \3\ until the same or similar
conditions are met. These conditions, which are contained in Sec.
301.92-11 of the regulations, are described below.
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\3\ Non-host nursery stock is defined as any taxa of nursery
stock not listed in Sec. 301.92-2 as a regulated or associated
article.
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Requirements for Moving Regulated Articles of Nursery Stock and
Associated Articles Interstate From Regulated Areas

Paragraph (c) of Sec. 301.92-11 pertains to nurseries located in
regulated areas that ship regulated articles of nursery stock or
associated articles interstate. Under paragraph (c), such nurseries
must be inspected for symptoms of P. ramorum by an APHIS, State, or
county inspector.\4\ Inspection will focus on, but not be limited to,
regulated articles of nursery stock and associated articles.
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\4\ Persons operating under compliance agreements in accordance
with Sec. 301.92-6 are eligible to issue certificates for the
interstate movement of regulated and associated articles, but only
APHIS, State, and county inspectors are authorized to conduct
nursery inspections required by the regulations.
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Samples must be taken from all symptomatic plants. If fewer than 40
symptomatic plants are present, each symptomatic plant must be sampled
and additional samples must be taken from asymptomatic plants so that
the minimum number of plants sampled totals 40. If no symptomatic
plants are present, 40 asymptomatic plants must be sampled. Each sample
may contain more than one leaf, and may come from more than one plant,
but all plants in the sample must be from the same lot.\5\ If the
samples are collected from asymptomatic plants, the samples must be
taken from regulated and associated articles and nearby plants.
Inspectors must conduct inspections at times when the best expression
of symptoms is anticipated (typically within 30-90 days of bud break)
and must take nursery fungicide programs into consideration to maximize
the opportunity to observe symptoms. We recommend that inspections be
performed 2 to 9 weeks after any application of fungicides that are
efficacious for Phytophthora spp. or oomycetes, (depending on the type
of fungicide used and the plant treated), and prior to any subsequent
applications of such fungicides. Nursery owners must also keep records
of fungicide applications for 2 years and must make them available to
inspectors upon request.
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\5\ ``Lot'' is defined as a contiguous block of plants of the
same species or cultivar, of the same container size and from the
same source, if known.
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Annual Certification and Recordkeeping

All plant samples must be tested in accordance with Sec. 301.92-
12. If samples return negative results for P. ramorum, an inspector may
certify that the nursery is free of evidence of Phytophthora ramorum
infestation at the time the plants were inspected. Nurseries in a
regulated area must have current and valid certification to ship
regulated articles of nursery stock and associated articles interstate.
If annual certification expires prior to reinspection, all plants in
the nursery are prohibited interstate movement until the nursery is
inspected, tested, and re-certified in accordance with the regulations.
All nurseries that are operating under compliance agreements must
maintain records of all incoming shipments of plants for a minimum of
24 months and must make them available to inspectors upon request. In
addition, all nurseries that are operating under compliance agreements,
except retail dealers, must maintain records of outgoing shipments for
a minimum of 24 months. This recordkeeping will help to facilitate
tracebacks and traceforwards in the event that articles infected with
P. ramorum are discovered upon inspection.

Requirements for Moving Non-Host Nursery Stock Interstate From
Regulated Areas

Paragraph (d) of Sec. 301.92-11 pertains to nurseries in regulated
areas that contain only non-host nursery stock. If a nursery located in
a regulated area moves non-host nursery stock interstate but the
nursery contains regulated articles of nursery stock or associated
articles, the nursery must meet the requirements of Sec. 301.92-11(c),
which are described above, even if the nursery only ships non-host
nursery stock interstate. Alternately, under paragraph (d), if there
are no regulated or associated articles in the nursery, a nursery in a
regulated area may ship non-host nursery stock interstate if the
following conditions are met:
The nursery must be visually inspected annually and found
free of symptoms of P. ramorum at the time

[[Page 8588]]

when the best expression of symptoms is anticipated (typically within
30-90 days of bud break).
If symptomatic plants are found upon inspection, all such
plants must be tested, and the following plants must be withheld from
interstate shipment until testing is completed and the nursery is found
free of evidence of P. ramorum by an inspector: All symptomatic plants,
any plants located in the same lot as the symptomatic plant, and any
plants located within 2 meters of the affected lot(s) of plants.
If no symptomatic plants are found, an inspector may
certify that the nursery is free of evidence of P. ramorum, and non-
host nursery stock will be eligible for interstate movement. Note that
no certificate is required for non-host plants moving interstate in
accordance with Sec. 301.92-11(d).
The States of California, Oregon, and Washington, and local
governments cooperate with APHIS in enforcing the requirements of this
rule. The States have agreed to maintain on the Internet a current list
of nurseries that have been certified as free of evidence of P. ramorum
infestation in accordance with this rule. Links to the States' lists
can be found at http://www.aphis.usda.gov/ppq/ispm/pramorum/
resources.html.

Sunset Clause

In the December 2004 Federal Order, the provisions described above
pertaining to nurseries located in regulated areas and the interstate
movement of nursery stock from regulated areas were scheduled to expire
three years from the effective date, unless APHIS issued another rule
before that time to extend or revise that aspect of the P. ramorum
regulatory program. That expiration date only pertained to regulated
areas in California, Oregon, and Washington that are outside
quarantined areas. We have decided that the sunset clause included in
the Federal Order is no longer necessary or appropriate, therefore we
are not including it in this rule and are continuing the provisions
described above pertaining to nurseries located in regulated areas and
the interstate movement of nursery stock from regulated areas until
further notice.

Additional Restrictions on the Movement of Associated Articles and Non-
Host Nursery Stock From Quarantined Areas

This rule also restricts the interstate movement of associated
articles \6\ and non-host nursery stock from quarantined areas.
Associated articles must meet the same conditions for interstate
movement from a quarantined area that apply to regulated articles of
nursery stock; those conditions can be found in revised Sec. 301.92-
11(a). Non-host nursery stock must typically meet the same conditions
for interstate movement from a quarantined area that apply to regulated
articles of nursery stock, but if a nursery in a quarantined area
contains no regulated articles of nursery stock or associated articles,
non-host nursery stock may be moved interstate from that nursery
provided the nursery is inspected and found free of evidence of P.
ramorum in accordance with revised Sec. 301.92-11(b), which contains
essentially the same inspection and sampling protocol described above
under the heading ``Requirements for Moving Non-Host Nursery Stock
Interstate from Regulated Areas.'' Note that to be eligible for
interstate movement, non-host nursery stock that is rooted in soil or
growing media requires certification that the soil or growing media
meets the requirements of Sec. 301.92-5(a)(1)(iii).
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\6\ As described earlier in this document, associated articles
include only nursery stock of plant taxa listed in Sec. 301.92-
2(e).
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Most revisions made to the regulations by this rule pertain to
inspection and sampling protocols for nursery stock moving interstate
from California, Oregon, and Washington. In order to eliminate
confusion over what provisions apply in a given situation, we have
prepared the following table.

----------------------------------------------------------------------------------------------------------------
Inspection and certification protocol
Type(s) of plants in the Type(s) of plants ---------------------------------------------------------
nursery shipped interstate Origin: Quarantined areas Origin: Regulated areas
----------------------------------------------------------------------------------------------------------------
Regulated articles only....... None.................. Not regulated.............. Not regulated.
Regulated articles only....... Regulated articles.... Sec. 301.92-11(a)........ Sec. 301.92-11(c).
Associated articles only...... None.................. Not Regulated.............. Not Regulated.
Associated articles only...... Associated articles... Sec. 301.92-11(a)........ Sec. 301.92-11(c).
Regulated and associated Regulated or Sec. 301.92-11(a)........ Sec. 301.92-11(c).
articles only. associated articles,
or both.
Regulated and associated None.................. Not regulated.............. Not regulated.
articles and non-hosts.
Regulated and associated Regulated or Sec. 301.92-11(a)........ Sec. 301.92-11(c).
articles and non-hosts. associated articles,
or both.
Regulated and associated Non-hosts only........ Sec. 301.92-11(a)........ Sec. 301.92-11(c).
articles and non-hosts.
Non-hosts only................ None.................. Not regulated.............. Not regulated.
Non-hosts only................ Non-hosts............. Sec. 301.92-11(b) \1\.... Sec. 301.92-11(d).
Decorative trees without roots Proven host plant taxa Sec. 301.92-11(a)........ Not regulated.
(e.g., Christmas trees).
Decorative trees without roots Associated plant taxa. Not regulated.............. Not regulated.
(e.g., Christmas trees).
----------------------------------------------------------------------------------------------------------------
\1\ Under Sec. 301.92-4, non-host nursery stock from a nursery in a quarantined area that contains no
regulated or associated articles does not require a certificate for interstate movement, provided that the
plants are moved bare-root; if soil or growing media is attached to non-host nursery stock, to be eligible for
interstate movement, the soil or growing media must be certified in accordance with Sec. 301.92-
5(a)(1)(iii).

This rule also amends certain existing provisions pertaining to
inspection and testing of nurseries in quarantined areas. Prior to the
effective date of this interim rule, the inspection and sampling
protocol contained in Sec. 301.92-11 required nurseries that ship
regulated articles of nursery stock interstate to be inspected and
tested annually for P. ramorum, and each shipment intended for
interstate movement to be inspected for symptoms of P. ramorum, and if

[[Page 8589]]

necessary, tested. This rule amends the text of those provisions in
order to clarify them and improve their effectiveness. Specifically, in
this rule:
The provisions for inspecting nurseries are revised. We
are requiring the inspections to be focused on the detection and
identification of symptomatic regulated articles of nursery stock and
associated articles, and are requiring that all symptomatic plants be
sampled and tested. We believe inspecting the entire nursery and
focusing on all proven host nursery stock and associated plant taxa
will best enable us to determine if P. ramorum is present in the
nursery being inspected.
The testing protocol is specified. The regulations in
effect prior to this rule simply required samples to be sent to an
APHIS-approved laboratory for testing. This rule requires samples to be
tested and evaluated using an APHIS-approved method at an APHIS-
approved laboratory in order to ensure that the tests produce accurate
and consistent results. This rule also describes the only currently
approved test protocol. The protocol is described in detail later in
this document under the heading ``Testing.''
We are clarifying that nurseries in quarantined areas must
have a current and valid annual certification of freedom from evidence
of P. ramorum in order to submit individual shipments of nursery stock
for inspection.
We are specifying conditions under which nurseries in
quarantined and regulated areas may continue to move articles
interstate if the nursery receives articles from an uncertified nursery
in a quarantined or regulated area. These conditions are located in
Sec. 301.92-5, paragraphs (a)(1)(iv)(D) and (b)(1)(ii), respectively.

New Proven Hosts or Associated Plants and Effects on Regulated
Nurseries

New hosts of P. ramorum are being identified on a monthly,
sometimes weekly, basis. As such, the regulations may not always
reflect all known proven hosts and associated plant taxa. Under the
regulations in Sec. 301.92-2, an inspector may notify a person that a
given product or article is subject to the regulations, even if the
product or article is not specifically listed in the regulations. This
might occur if the product or article (i.e. non-host nursery stock,
pots, or potting tools) was associated with other products or articles
that are likely infected with P. ramorum. In those instances, the
product or article would be held until determined free from P. ramorum
using official, APHIS-approved testing. APHIS inspectors provide notice
to affected States and stakeholders when new hosts are confirmed and
associated plants are identified. Such plants and their products then
become subject to the regulations. Hosts are added when official
samples (samples taken by Federal, State, or county inspectors and
submitted to APHIS) are confirmed to be infected with P. ramorum.
National plant protection organizations (NPPO) of foreign countries are
also recognized as credible sources for the identification of new
hosts, as well as known P. ramorum researchers who publish their new
host findings in peer reviewed journals or report their findings. When
researchers report new host finds, these finds are verified either by
the NPPO of the country in which the researcher resides or by APHIS.
In this rule, we clarify that the following provisions apply when
APHIS informs a nursery owner that additional proven hosts or
associated plants have been confirmed:
Nurseries operating under a compliance agreement in
accordance with Sec. 301.92-6 may continue to ship plants interstate
in accordance with the regulations.
Nurseries that had not previously contained any regulated
or associated articles, and that had been inspected in accordance with
Sec. 301.92-11(b)(3) and allowed to ship plants interstate without a
certificate, but that contain a newly identified proven host or
associated plant must cease interstate shipments of regulated and
associated articles until the nursery is reinspected and found free of
evidence of P. ramorum in accordance with Sec. 301.92-11. Nurseries
that come under regulation during winter dormancy periods and that are
not able to be inspected in accordance with Sec. 301.92-11 prior to
desired shipments of non-host nursery stock may be allowed to ship non-
host nursery stock interstate at the discretion of an inspector.
These provisions provide clear guidance to affected persons as to
how they will be affected by additions to the lists of proven hosts and
associated plant taxa.

Testing

We are also amending the regulations to clearly describe the
testing protocols that must be used to determine whether plant samples
taken in accordance with the regulations are infected with P. ramorum.
These testing requirements are located in a new Sec. 301.92-12. Under
this section, samples must be analyzed using a methodology approved by
APHIS at a laboratory approved by APHIS. The process for testing and
analyzing samples is described below.\7\
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\7\ Detailed descriptions of testing and sample analysis
procedures can be viewed on the Internet at http://
www.aphis.usda.gov/ppq/ ispm/pramorum/.
---------------------------------------------------------------------------

Any samples collected in accordance with the regulations may be
prescreened using an APHIS-approved enzyme-linked immunosorbent assay
(ELISA) to determine the presence of Phytophthora spp. ELISA tests are
optional; however, if all samples collected from a single nursery or a
single shipment are found to be negative through ELISA prescreening, no
further testing of the plants sampled is required. A nursery or
shipment of plants may be considered free of evidence of P. ramorum
based on negative results of ELISA tests, and provided all other
applicable requirements are met, the plants are eligible for interstate
movement.\8\
---------------------------------------------------------------------------

\8\ Nurseries in quarantined areas require both current annual
certification and certification of individual interstate shipments
of regulated articles of nursery stock and associated articles.
---------------------------------------------------------------------------

If ELISA prescreening is not performed, or if results of ELISA
prescreening are positive for Phytophthora spp. in any sample, the
sample must be analyzed using an APHIS-approved \9\ test. Samples will
be considered positive for P. ramorum based on positive results of any
approved test. Positive PCR or other molecular tests do not require
confirmatory culture tests, nor do positive culture tests require
confirmatory PCR or other molecular tests; however, if culture tests
return other than positive results, an APHIS-approved PCR or other
molecular test must be conducted, as described below. No culture test
is required if an APHIS-approved PCR or other molecular test returns
negative results. Plants in the nursery must be withheld from
interstate movement pending negative test results in accordance with
applicable provisions of Sec. 301.92-11.
---------------------------------------------------------------------------

\9\ See footnote 7.
---------------------------------------------------------------------------

PCR and Other Molecular Tests

If the results of PCR or other molecular tests are negative for all
samples from a nursery or single shipment, no further testing is
required. The nursery or shipment sampled may be considered free of
evidence of P. ramorum.
If any samples tested using the PCR protocol or another approved
protocol return positive results for P. ramorum, the nursery from which
they originate is prohibited from moving plants interstate until an
inspector determines that plants intended for interstate movement are
free of evidence of P. ramorum

[[Page 8590]]

infection. When an inspector determines that a nursery in a regulated
area is free of evidence of P. ramorum infestation, the nursery will be
eligible to move plants interstate under certificate. Nurseries in
quarantined and regulated areas that contain only non-host nursery
stock are eligible to move plants interstate in accordance with Sec.
301.92-11(b) and (d).
Similarly, when an inspector determines that a shipment of nursery
stock intended for interstate movement from a nursery in a quarantined
area is free of evidence of P. ramorum infection, and provided the
nursery has current and valid annual certification in accordance with
the regulations, the shipment of nursery stock is eligible for
interstate movement under certificate.

Culture Test

If the results of culture tests are other than positive for any
samples taken from a nursery or a single shipment, each plant sample
that returns other than positive culture results must be tested again
using an approved PCR or other molecular test, and plants from the
nursery or shipment are only eligible for interstate movement if
results of such tests are negative for all samples taken.
If any culture tests return positive results for P. ramorum, the
movement of nursery stock is restricted under the same conditions
described above for positive PCR and other molecular tests.

Restrictions on the Interstate Movement of Decorative Trees Without
Roots From Quarantined Areas

We are restricting the interstate movement of decorative trees
without roots (e.g., Christmas trees) of proven P. ramorum host taxa.
Under the regulations, locations where trees are grown for sale as
decorative trees without roots, and locations where decorative trees
without roots are stored or distributed are considered nurseries. As
such, any such location that ships trees interstate and that grows
decorative trees without roots of proven P. ramorum host taxa is
subject to the same inspection, testing, and certification requirements
as any other nursery. Thus, decorative trees without roots that are
shipped interstate from quarantined areas must originate from a nursery
that has current, valid annual certification of freedom from evidence
of infestation by P. ramorum in accordance with Sec. 301.92-11(a)(1)
and individual shipments must also be inspected and certified in
accordance with Sec. 301.92-11(a)(2).
Note that locations that grow, store, or distribute decorative
trees without roots that are not proven hosts of P. ramorum are not
regulated under this rule unless the location contains proven hosts. If
the nursery ships interstate and contains any proven hosts, the nursery
is subject to the regulations.
The interstate movement of decorative trees without roots from
regulated areas is not regulated under this rule.

Additional Provisions for the Interstate Movement of Wreaths, Garlands,
and Greenery of Proven Host Taxa From Quarantined Areas

Prior to this rule, the regulations only allowed the movement of
regulated articles of wreaths, garlands, and greenery from a
quarantined area if the articles were treated in accordance with a
treatment listed in 7 CFR part 305 or a treatment listed in Sec.
301.92-10. In this rule, we are amending the regulations to allow
wreaths, garlands, and greenery of proven P. ramorum host taxa to be
moved interstate from a quarantined area if the articles originate from
a nursery that has current, valid annual certification of freedom from
evidence of infestation by P. ramorum, in accordance with Sec. 301.92-
11(a)(1), and provided that individual shipments of such articles are
inspected and certified in accordance with Sec. 301.92-11(a)(2).

Permits

The regulations in Sec. 301.92-4 have provided for the interstate
movement of restricted articles via departmental permit.\10\ APHIS does
issue permits for the movement of restricted articles for research
purposes, but technically not via a departmental permit. Therefore, we
are amending the regulations in Sec. 301.92-4 to provide that we will
issue permits for such movements in accordance with the requirements of
7 CFR part 330, which provides for the movement of plant pests and
material that may be infected or infested with plants pests.
---------------------------------------------------------------------------

\10\ Permits are not required for the interstate movement of
regulated or associated articles, or non-host nursery stock. A
certificate issued in accordance with Sec. 301.92-5 is required for
those articles.
---------------------------------------------------------------------------

Miscellaneous

We are clarifying in revised Sec. 301.92 that the interstate
movement of regulated, restricted, or associated articles, or nursery
stock that has been tested with a test approved by APHIS and found
infected with P. ramorum, or that is part of a plant that was found
infected with P. ramorum, is prohibited, unless such movement is in
accordance with the plant pest regulations in 7 CFR part 330.
In conjunction with the changes described in this document, we are
adding definitions for the terms associated article, from, lot, non-
host nursery stock, nursery, and regulated area to Sec. 301.92-1. The
definitions for associated article, lot, non-host nursery stock and
regulated area are described earlier in this document. The term from is
defined in order to clarify when a particular nursery requires
inspection. An article is considered to be ``from'' a specific site or
location if it was grown or propagated in, stored or sold, or
distributed from the site or location.
The term nursery is defined in order to clarify what types of
businesses are subject to the regulations pertaining to the interstate
movement of nursery stock. Nursery is defined as any location where
nursery stock is grown, propagated, stored, or sold; or any location
from which nursery stock is distributed. Also, as described earlier in
this document, locations that grow trees for sale without roots (e.g.,
as Christmas trees) are considered to be nurseries for the purpose of
the regulations.
In addition, we are revising the definitions of certificate, forest
stock, mulch, nursery stock, and soil in Sec. 301.92-1. The definition
of certificate is revised to reflect the fact that certificates issued
in accordance with the regulations may be in the form of a stamp or
imprint that looks like this:

[[Page 8591]]

[GRAPHIC] [TIFF OMITTED] TR27FE07.007

The definition for mulch is revised to clarify that plant material
meeting the definition of mulch (bark chips, wood chips, wood shavings,
or sawdust, or a mixture thereof) is regulated as mulch if used as part
of a growing media mixture.
The definition of nursery stock is revised to (1) ensure that it
applies to all potential P. ramorum host materials, bedding plants, and
other herbaceous plants, bulbs, and roots, (2) clarify that it applies
to tree seedlings being used for reforestation, and (3) remove
references to seeds and fruit pits, as those articles are not subject
to regulation under the quarantine. In conjunction with this change,
and with the addition of a definition for nursery, we are also revising
the definition for forest stock to reflect that forest stock includes
all flowers, trees, shrubs, vines, scions, buds, or other plants that
are wild-grown, backyard-grown, or naturally occurring.
The definition for soil is revised to reflect the definition used
by the International Plant Protection Convention glossary of
phytosanitary terms: \11\ The loose surface material of the earth in
which plants grow, in most cases consisting of disintegrated rock with
an admixture of organic material. As a result of revising the
definition of soil, we also need to add provisions to the regulations
to ensure the regulations continue to cover growing media mixtures that
were clearly regulated under the prior regulations as soil. As such, we
are adding a definition of growing media to the regulations, as well as
updating the regulations so that growing media is regulated in the same
fashion as soil. Growing media is defined as any material in which
plant roots are growing or intended for that purpose.
---------------------------------------------------------------------------

\11\ Available at http://www.ippc.int/.
---------------------------------------------------------------------------

We are revising the provisions pertaining to quarantined areas in
Sec. 301.92-3 to make it clear that APHIS will quarantine an area
based on confirmed detections of P. ramorum in the natural environment,
not based on detections in artificial environments such as nurseries.
We are also clarifying provisions throughout the regulations
regarding certifications of freedom from P. ramorum. The regulations in
effect prior to this interim rule restricted the interstate movement of
regulated articles from nurseries until such a time as an inspector
could determine that the nurseries are free of evidence of P. ramorum.
This rule provides that nurseries must be free of evidence of P.
ramorum infestation; certification of ``pest freedom'' can only be made
if each individual plant is tested for the pathogen.
We are also updating Sec. 301.92-7 regarding advance notice for
the services of an inspector to require that a person wishing to move
plants that require a certificate for interstate movement must notify
the inspector as far in advance of the desired interstate movement as
possible, but no less than 48 hours before the desired time of
inspection. This section had previously stated that we require 14 days'
advance notice, but we are able to respond with 48 hours' notice.
We are updating Sec. 301.92-10 pertaining to treatments to make it
clear that soil treated for P. ramorum must be heated such that the
temperature at the center of the load reaches at least 180 [deg]F for
30 minutes. We are also clarifying that the hot water dip for wreaths,
garlands, and greenery is applicable to all regulated articles,
including newly listed ones, as well as referencing the approved
treatment for bay leaves listed in 7 CFR part 305.

Need for Additional Revisions to the Regulations

The study of P. ramorum is constantly producing new information
that allows us to better regulate the interstate movement of plant
material to prevent the spread of the diseases caused by the pathogen.
APHIS and the Forest Service, USDA, have been conducting annual
national surveys to determine whether and where P. ramorum exists in
other areas of the United States. If additional hosts of P. ramorum are
identified during the course of the national survey or by other
scientific research, we will add those hosts to the list of regulated
and restricted articles as appropriate. Detection of P. ramorum on
other species through PCR or culture tests could result in those
species being added to the list of associated articles. Completion of
Koch's postulates would prove them as hosts.
This rule is being promulgated on an emergency basis to address
specific imminent risks. We recognize that several facets of the
regulations require additional revision to bring them up to date with
current operational practices and the state of scientific knowledge
regarding P. ramorum. We intend to publish another document for public
comment in the future that will focus on treatments. We also intend to
update the conditions for interstate movement for certain articles
other than nursery stock, including wreaths and garlands, leaves, stems
and branches, green waste, and other articles.

[[Page 8592]]

We will continue to review our P. ramorum regulatory program and
evaluate the new restrictions on nurseries in regulated areas upon
receipt of comments on this rule, and upon evaluation of data derived
from the program so far. We will provide public notification of any
changes to the regulations via a document published in the Federal
Register.

Emergency Action

This rulemaking is necessary on an emergency basis to prevent the
spread of P. ramorum outside quarantined areas in California and Oregon
and infected nursery sites in California, Oregon, and Washington. 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.

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.
We have prepared an economic analysis for this interim rule. It
provides a cost-benefit analysis as required by Executive Order 12866,
as well as an initial regulatory flexibility analysis, which considers
the potential economic effects of this interim rule on small entities,
as required by the Regulatory Flexibility Act. The economic analysis is
summarized below. The full economic analysis may be viewed on the
Regulations.gov Web site (see ADDRESSES at the beginning of this
document for instructions for accessing Regulations.gov). You may
request paper copies of the economic analysis by calling or writing to
the person listed under FOR FURTHER INFORMATION CONTACT. Please refer
to Docket No. 01-054-3 when requesting copies. The economic analysis is
also available for review in our reading room (information on the
location and hours of the reading room is listed under the heading
ADDRESSES at the beginning of this document).
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, APHIS welcomes public comment that would enable us
to more fully consider impacts of the rule, specifically information on
costs that may be incurred due to complying with the interstate
movement restrictions.

Expected Costs of the Interim Rule

This interim rule places restrictions on the interstate movement of
nursery stock from California, Oregon, and Washington. This economic
analysis will focus primarily on the effects of restricting nursery
stock from the regulated and quarantined areas. While there are other
articles regulated besides nursery stock, such as trees without roots
(i.e., Christmas trees), the economic impacts of restricting the
movement of these other articles are expected to be relatively smaller,
and therefore are not a primary focus of the analysis.\12\
---------------------------------------------------------------------------

\12\ The only species of Christmas tree that is affected by the
rule is the Douglas fir, which reportedly is not a high volume
product in the quarantined area. As such, we do not believe this
particular aspect of the interim rule will cause significant impact
on affected nurseries.
---------------------------------------------------------------------------

Those nurseries wishing to engage in interstate movement of nursery
stock of proven and associated hosts of P. ramorum may only do so if it
is accompanied by a certificate issued under an APHIS Phytophthora
ramorum compliance agreement. Nurseries located in the quarantined area
that are planning to ship host articles must undergo annual inspection,
as well as inspection of individual shipments, prior to being certified
to ship interstate. In order to ship non-host articles interstate,
nurseries in the quarantined area must follow these same protocols,
with the exception that nurseries containing no proven or associated
host stock may receive certification to ship after undergoing annual
inspection and will not be required to inspect individual shipments. On
the other hand, nurseries in the regulated area that intend to ship
nursery stock of proven or associated host taxa must undergo annual
inspection to be certified to ship interstate. Only those nurseries
that contain only non-host nursery stock can ship without
certification, provided that they have undergone annual inspection. In
order to enter into a compliance agreement and obtain certification to
ship regulated articles, the nursery must take certain steps, such as
undergoing annual inspection and sampling of nursery stock, and testing
plant samples at a USDA approved laboratory using federally approved
laboratory protocols. Thus, there are two major components to
certification: Inspection and testing. It is important to note that the
costs associated with entering into and maintaining a compliance
agreement were covered by regulating agencies, specifically USDA and
State departments of agriculture in 2005 and 2006. Funding for entering
into and maintaining a compliance agreement in 2007 will transition and
have to be borne by the entity under the compliance agreement for any
amount not covered by available Federal or State funding. APHIS will
provide affected entities with advance notice and guidance before we
change the way we fund--including the possibility of requiring
additional funding support from program participants and other
cooperators--the specific activities associated with entering into and
maintaining compliance agreements.

Inspection

Nurseries will be required to undergo annual inspection and be
certified free of P. ramorum. This inspection and sampling will be
provided by Federal and State inspectors, the cost of which was covered
by USDA in 2005 and 2006, when conducted during normal business hours.
Individual nursery operators are responsible for all costs and charges
arising from inspection and other services provided outside normal
business hours. In addition, for those nurseries that must undergo
inspection and sampling of individual shipments, the costs of those
services were also covered by USDA in 2005 and 2006. Likewise, Federal
funds are expected to cover the costs for these inspection and sampling
activities in 2007, to the extent that funds are available. APHIS will
provide affected entities with advance notice and guidance before we
change the way we fund those inspection and sampling activities.

Testing

The interim rule will further amend the regulations by specifically
describing the testing protocols that must be used to determine whether
plant samples are infected with P. ramorum. While samples are being
tested, nurseries must withhold shipments from movement until negative
results are returned. The actual cost impact on nurseries will vary,
depending on the classification of article shipped and/or the type of
testing performed. Nurseries may choose to prescreen samples by using

[[Page 8593]]

the optional APHIS-approved ELISA test to determine the presence of
Phytophthora spp. If all samples collected from a single nursery or a
single shipment are found to be negative through ELISA prescreening, no
further testing of the plants sampled is required. If ELISA
prescreening is not performed, or if results of the prescreening are
positive for Phytophthora spp. in any sample, the sample must be
analyzed using APHIS-approved testing such as PCR or other molecular
tests, or a culture test. Samples will be considered positive for P.
ramorum based on positive results of any approved test. If the results
of PCR assay or other molecular tests are negative for all samples in a
nursery, no further testing is required, and the nursery may be
considered free of P. ramorum. In the case of any of the samples tested
using PCR or other molecular tests, or a culture test, returning a
positive result for P. ramorum, the nursery from which they originated
is prohibited from moving plants interstate until an inspector
determines that those plants are free of evidence of P. ramorum. In the
event a nursery opts to test samples using a culture test, and the
results are negative for P. ramorum, it is important to note that these
samples must continue to be withheld from shipment until they return a
negative result to a PCR or other molecular test. General estimates
approximate the cost of ELISA, PCR and other molecular tests to be $15
per test, whereas the approximate cost of a culture test is about $10
per test.\13\ This testing has been provided by Federal and State
inspectors, the cost of which was covered by USDA or States in 2005 and
2006. Funding for testing activities in 2007 and beyond will transition
to the nursery for costs not covered by any available Federal or State
funding. APHIS will provide affected entities with advance notice and
guidance before we change the way we fund those testing activities.
---------------------------------------------------------------------------

\13\ Source: Phillip Berger, National Science Program Leader--
Molecular Diagnostics & Biotechnology, USDA APHIS PPQ (Raleigh, NC).
NOTE: These estimates would cover the cost of materials and
supplies, and some but possibly not all labor. These estimates do
not consider the cost of instrumentation, service contracts,
maintenance, etc.
---------------------------------------------------------------------------

The P. ramorum program was fully funded for the fiscal year (FY)
2006, with the total available funds being $8.353 million.\14\ In FY
2006, we estimated spending approximately $6.35 million in P. ramorum
activities in California, Washington, and Oregon, of which
approximately $4.15 million was allocated to inspection, sampling,
testing, and certification activities. The remainder of the spending
was allocated to national survey, trace forwards and trace backs,
eradication, and enforcement activities of the regulation.
---------------------------------------------------------------------------

\14\ Source: Jonathan Jones, APHIS/PPQ, and Rick Lewis, APHIS/
PPD.
---------------------------------------------------------------------------

In addition to the monetary costs of compliance agreements and
nursery and shipment certifications borne by the public sector, there
are also indirect costs to the nurseries as a result of regulation. For
example, there could be potential costs associated with lost sales
while withholding plants for shipment during inspection and testing.
Further, the presence of P. ramorum, and the accompanying movement
restrictions where there were none previously could result in a
potential loss in consumer confidence for nursery stock from the
regulated area. These potential indirect losses are not quantifiable;
however, we examine them to the extent possible in the sections that
follow. In researching the possible impacts of the rule on nurseries,
we solicited comments from State departments of agriculture, as well as
industry associations. In some cases, no information was provided,
either because it was unavailable and/or unidentifiable, or because it
was considered to be confidential business information. We welcome
public comment on the impacts of the interim rule.

California

As of July 2005, there were 861 nurseries in California that have
been inspected and determined to be free of P. ramorum, and were
authorized to ship non-host nursery stock interstate without a
certificate. In addition, there were 81 locations in the quarantined
area authorized to ship host material under P. ramorum compliance
agreements, and 323 locations in the regulated area operating under P.
ramorum compliance agreements.\15\ As mentioned earlier, the majority
of direct enforcement costs of the regulation associated with entering
into compliance agreements, such as inspection, sampling, and testing,
have been paid for by regulatory agencies. In 2005, $4.2 million in
regulatory funds were allocated to P. ramorum quarantine and survey
activities in California. In 2006, this amount increased to $5.4
million. It is important to note that these allocated funds do not
include costs associated with trace back, trace forward, or eradication
activities in the event of an infestation of nurseries as a result of
interstate trade.\16\
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\15\ Source: California Department of Food & Agriculture,
Quarantine and Survey Information (http://www.cdfa.ca.gov/phpps/pe/
sod_survey/).
\16\ Source: Jonathan Jones, APHIS/PPQ.
---------------------------------------------------------------------------

In addition, there are other costs of the regulation, many of which
are indirect and more difficult to quantify. For example, in the case
of a nursery in Azusa County found to be infected with P. ramorum,
there were both direct and indirect losses. Direct losses due to plants
being destroyed at cost, not at the wholesale value, as well as
customer credits and other expenses totaled over $4.5 million for the
2004/2005 year. Other costs, such as lost sales while plants were on
hold and possible loss of customer base due to loss in confidence,
could not be quantified.\17\
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\17\ Source: John Keller, Research Director for Monrovia
Growers, as reported by Carolyn Pizzo, Operations Support Officer,
California Plant Health Director's Office.
---------------------------------------------------------------------------

Other potential indirect costs were examined by a report on the
economic impact of P. ramorum on the Californian nursery sector,
prepared by researchers at the University of California, Berkeley.\18\
In their study they found that many nurseries are investing in
preventative pest management actions to reduce the risk of P. ramorum
infection, which in turn increased their production expenses. These
nurseries invested in preventative pest management by changing their
inventory and labor practices and by applying fungicide to limit
potential exposure to P. ramorum. The additional investments were
estimated to account for less than 3 percent of all production expenses
for the average nursery, suggesting that the average nursery has not
been significantly impacted as a result of P. ramorum. However, there
was evidence presented to suggest that the implications of the presence
of P. ramorum are not borne equally among large and small entities.
Small nurseries with a high percentage of host products face cost
constraints which make it difficult to make the optimal investment in
inventory management, thereby placing the smaller nurseries at greater
risk of P. ramorum infestation. It is important to note that this
impact is not a direct result of the regulation, but rather is a
voluntary investment in preventative management to lessen the risk of
P. ramorum infestation. Though this study was prepared with respect to
nurseries in California, we can assume nurseries in Oregon and
Washington are operating in much the same way, and

[[Page 8594]]

face similar costs of P. ramorum regulation.
---------------------------------------------------------------------------

\18\ ``The Economic Impact of Sudden Oak Death on the California
Nursery Sector'' by Alix Peterson Zwane and J. Keith Gilless March
2005. Unpublished report prepared for the USDA-Forest Service,
Pacific Southwest Research Station. NOTE: All information in this
paragraph is adapted from this study.
---------------------------------------------------------------------------

Officials at the California Department of Food and Agriculture
(CDFA) confirmed that while no concrete figures are available, they
have received reports from several nurseries of having lost revenue
while holding plants during inspection, sampling, and testing. In
addition, some in the industry feel the emergency Federal order did not
adequately protect against further sanctions of nursery products from
California by other nations.

Oregon \19\
---------------------------------------------------------------------------

\19\ Source: Gary McAninch, Program Manager of Nursery and
Christmas Tree Program (Oregon Department of Agriculture).
---------------------------------------------------------------------------

The quarantined area of Oregon, an 11.5 square mile area as
described in the regulations, contains no nurseries, and thus there are
no entities subject to the movement restrictions on plants within the
quarantined area. In the regulated area, there are 778 nurseries that
contain host or associated plant material under compliance agreement to
ship interstate. Additionally, there are 1,039 nurseries only growing,
distributing, and storing non-host plant material under compliance
agreement to ship non-host nursery stock interstate. The Oregon
Department of Agriculture (ODA) estimates the total cost of certifying
nurseries within the regulated area with proven and associated host
nursery stock to be $307,820 per year. For nurseries containing only
non-host nursery stock located within the regulated area, the total
cost of annual inspection is estimated at $122,936. Neither of these
estimates includes any potential indirect costs. In 2005, over $200,000
in regulatory funds was allocated to P. ramorum survey and quarantine
activities in Oregon. In 2006, this amount increased to over $549,000.
It is important to note that these allocated funds do not include costs
associated with trace back, trace forward, or eradication activities in
the event of an infestation of nurseries as a result of interstate
trade.\20\
---------------------------------------------------------------------------

\20\ Source: Jonathan Jones, APHIS/PPQ.
---------------------------------------------------------------------------

Further, there may be indirect costs of the regulation incurred by
nurseries. For example, ODA has received reports that some out-of-State
customers are purchasing nursery stock from other States rather than
Oregon because of the negative publicity related to finding a limited
number of infested nurseries through inspection. While this regulation
only concerns restricting interstate movement of nursery stock, it is
interesting to note the anecdotal evidence of potential impacts of
quarantining portions of Curry County for P. ramorum. For instance,
Canada has quarantined the entire county, effectively prohibiting host
plant genera and soil. ODA reports that Easter lily bulb growers have
been particularly impacted, as it is impossible to remove all the soil
from their bulbs. As a result, shipments of this high-value commodity
to Canada have essentially been shut down. As a point of interest, 99
percent of Easter lily bulbs produced in the United States are grown in
Curry County, OR, and Del Norte County, CA. Again, it is important to
note that Canada's decision to quarantine all of Curry County is not an
impact or result of this interim rule.

Washington \21\
---------------------------------------------------------------------------

\21\ Source: Tom Wessels, Nursery Program Manager (Washington
State Department of Agriculture), as reported by Linda Stark, State
Operations Support Officer, WA (APHIS), and Jeanne McNeil, Executive
Director (WSNLA).
---------------------------------------------------------------------------

As of August 11, 2005, there were 131 nurseries in Washington
growing or selling P. ramorum proven or associated host plants that had
been inspected, are under a compliance agreement and are authorized to
ship host material interstate. In addition, there are 138 nurseries
under a compliance agreement and certified to ship non-host plants
interstate. Again, it is important to note that cost of nursery
inspections were covered by funds allotted to the Washington State
Department of Agriculture (WSDA) by USDA-APHIS in 2006, and will be in
2007, to the extent that Federal funding is available. APHIS will
provide affected entities with advance notice and guidance before we
change the way we fund those inspection and testing activities.
Therefore, the non-Federal direct cost of implementing the regulation
will be minimal. As a point of interest, WSDA provided cost information
of inspecting nurseries and performing laboratory tests on plant
samples. In 2004, WSDA incurred a cost of $500 per host nursery for
collecting samples and laboratory testing, in addition to an inspection
fee of $31.10 per hour, bringing the average cost to approximately $600
per nursery. In 2005, over $104,000 in regulatory funds was allocated
to P. ramorum survey and regulatory activities in Washington. In 2006,
this amount increased to over $323,000. It is important to note that
these allocated funds do not include costs associated with trace back,
trace forward, or eradication activities in the event of an infestation
of nurseries as a result of interstate trade.\22\ Nurseries under the
compliance agreement are permitted to bring in proven and associated
host stock from non-certified nurseries in Oregon or California,
provided that these shipments are held separately until they have been
inspected, tested, and found free of P. ramorum. WSDA estimates that
the cost of holding the plants for inspection and testing is probably
negligible, since these activities are usually done as soon as
requested. WSDA officials believe the Federal response has assisted in
alleviating any misconceptions regarding P. ramorum infestations of
West Coast nursery stock. Rather than create any negative stigma, the
regulations and emergency Federal order have actually worked to boost
sales which had been lagging in recent years.
---------------------------------------------------------------------------

\22\ Source: Jonathan Jones, APHIS/PPQ.
---------------------------------------------------------------------------

In summary, because USDA has been covering the cost of inspection,
testing, and certification, the direct costs of the interim rule for
nurseries are expected to be minimal. USDA-APHIS currently covers some
of the inspection and testing charges for all nurseries under the
Federal Order. There are approximately 4,000 nurseries subject to the
inspection requirements under the interim rule.\23\ Approximately $4
million was expected to be spent in FY 2006 on inspection and testing
activities in the regulated area, which translates to an average cost
of $1,000 per nursery. This cost estimate is expected to hold for FY
2007 and FY 2008, to the extent that Federal funding is available. Of
course there is a possibility that the number of nurseries required to
be inspected subject to the rule may increase in the event that the
number of host plants increases, thereby making more nurseries subject
to this part of the regulations. In any case, to the extent that
Federal funding is not available, the unfunded portion of the
inspection and testing activities would have to be borne by the
affected entity. APHIS plans to issue guidance on the implementation of
transferring the costs of inspection and testing to nurseries in the
event funding becomes unavailable.
---------------------------------------------------------------------------

\23\ Source: Jonathan Jones, APHIS/PPQ.
---------------------------------------------------------------------------

Moreover, in the event that a nursery is found infected with P.
ramorum, there will be additional costs of labor and revenue loss
associated with plant destruction, but this cost would be limited by
the extent of infestation. For example, the additional labor costs to
destroy one infected plant would be less than that of a nursery full of
infected plants. In addition, this interim rule requires nurseries to
maintain fungicide reports for at least 2 years; however, regulated
entities are already required to maintain fungicide reports, and
because

[[Page 8595]]

of that fact there are minimal recordkeeping costs associated with this
interim rule. All nurseries that are operating under compliance
agreements must also maintain records of all incoming shipments of
plants for a minimum of 24 months and must make them available to
inspectors upon request. In addition, all nurseries that are operating
under compliance agreements, except retail dealers, must maintain
records of outgoing shipments for a minimum of 24 months and make them
available to inspectors upon request. Again, labor costs and
recordkeeping costs are difficult to quantify as the magnitude varies
by each nursery and by the level of infestation. As such, we welcome
public comment regarding estimates of these costs as a result of the
interim rule.
As is evident in each State's analysis, likely effects of the rule
on consumer confidence in nursery stock from the West Coast are
difficult to capture as it is largely dependent on buyers' perceptions.
However, in light of the public's growing awareness of P. ramorum's
threat to the natural environment and nurseries, we believe that
failure to promulgate this interim rule and place Federal restrictions
on the interstate movement of nursery stock would further lessen
consumer confidence in West Coast nursery stock. Hence, we believe the
interim rule will boost confidence in West Coast nursery stock rather
than lessen it. We welcome public comment on this indirect cost of the
rule. In our research we have discovered other impacts of the
regulation. For instance, the study conducted in California suggests
that, in response to P. ramorum regulations, some nurseries are
engaging in increased pest management activities so as to avoid
infestation. These additional production expenses are not a result of
the interim rule. Rather, such precautionary or risk-reducing
activities are a rational response to the potential regulatory costs
and production value loss of infestation.

Expected Benefits of the Interim Rule

This interim rule will amend the P. ramorum regulations to protect
against the artificial spread of P. ramorum. This rule will provide two
chief benefits: (1) Protect the environment outside of the quarantined
area from the pathogen; and (2) protect nurseries outside the regulated
area from becoming infected with the pathogen, while facilitating
interstate sales of regulated articles from West Coast nurseries.
Benefits of the rule will accrue both to entities in the immediate
regulated area as well as to the general public and private enterprises
across the nation, as this rule expands the quarantined boundary in
order to contain the pathogen's spread in the natural environment and
addresses the artificial spread via interstate movement restrictions.
The extensive environmental damage caused by P. ramorum makes its
control a matter of public interest, all the more so given our
incomplete understanding of the range of susceptible species. By
expanding the quarantined area, we hope to confine the spread of the
pathogen in the natural environment, with the goal of protecting
forests and ecological areas in the regulated area and beyond.
Ecological threats include a change in species composition in infested
forests and therefore, in ecosystem functioning; loss of food sources
for wildlife; a change in fire frequency or intensity; and decreased
water quality due to an increase in exposed soil surfaces.\24\
---------------------------------------------------------------------------

\24\ Source: http://nature.berkeley.edu/comtf/html/history_
background.html.
---------------------------------------------------------------------------

We do not have an estimate of the environmental costs that would be
incurred if P. ramorum were to become widespread regionally or
nationally. Given the tens of thousands of oak trees that have died in
California, it is reasonable to assume that movement of the pathogen
outside of the current area of quarantine would be potentially
devastating.
With respect to benefits of the rule to the nursery industry, we
queried State agricultural departments in the regulated area on the
benefits of the emergency Federal order which went into effect January
10, 2005. However, that data was not available at the time this
analysis was completed. We welcome public comment from the greenhouse/
nursery industry and others on these benefits.
In the absence of data needed to analyze commercial benefits of
this interim rule, we relate expected benefits to the sales value of
the West Coast nursery industry. We present a description of that
industry.
The nursery stock industry ranks second in value of agricultural
production in California, with cash receipts totaling $2.44 billion in
2003.\25\ Nursery and greenhouse production in California accounts for
11.9 percent of the State's total farm receipt value, and contributes
21.8 percent of the Nation's nursery and greenhouse products
inventory.\26\ The top five counties in production are San Diego,
Orange, Riverside, Monterey, and Los Angeles. Of these only one,
Monterey, is located in the area quarantined for P. ramorum. In Oregon,
the nursery and greenhouse industry is the top agricultural industry,
with sales of $844 million in 2004.\27\ This equates to approximately
21 percent of the total value of agricultural production in Oregon. The
Oregon Nursery and Greenhouse survey estimates there were 2,073
operations in 2004, with over half of those operations making less than
$20,000 per year in sales. As was mentioned previously, there are no
nursery operations in the quarantined portion of Curry County. In
Washington, the value of production of specialty products was
approximately $508 million in 2003. They include forest products,
Christmas trees, floriculture, nursery and other horticultural
products, and mushrooms. By itself, nursery and greenhouse products
(including floriculture) had a total value of $313 million in 2003.\28\
As a whole, the greenhouse/nursery industry represents the sixth most
valuable category of agricultural commodities in the United States,
with over $15 billion in cash receipts in 2003, and accounting for 7.2
percent of U.S. total agricultural value.\29\
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\25\ NASS-CA, California Agricultural Overview. Sacramento, CA:
California Agricultural Statistics Service, 2003.
\26\ California: Leading Commodities for Cash Receipt, 2003.
Washington, DC: Economic Research Service, 2005.
\27\ NASS-OR, 2004 Oregon Nursery and Greenhouse Survey.
Portland, OR: National Agricultural Statistics Service--Oregon Field
Office, 2004.
\28\ NASS-WA, Washington 2004 Annual Bulletin. Olympia, WA:
NASS, Washington Agricultural Statistics, 2004.
\29\ United States: Leading Commodities for Cash Receipts, 2003.
Washington, DC: Economic Research Service, 2005.
---------------------------------------------------------------------------

The interim rule will protect against the artificial spread of P.
ramorum in commercial nurseries both in the regulated areas as well as
nationwide. We do not have estimates of how the rule will reduce the
probability of such spread. However, when the emergency Federal order
was issued in December 2004, the total number of confirmed positive
sites from the trace forward, national, and other survey was 176 in 22
States. Since the Order went into effect, the rate of new detections in
nurseries outside the regulated area has declined sharply. Based on
this experience, we believe that this interim rule will continue to
protect commercial nurseries outside of the regulated area from
artificial spread of the pathogen, and will also support sales of
regulated articles from entities in the regulated area.
In sum, there are far-reaching benefits of the rule that we are
unable to assess and quantify at this time. In light of the wide-
ranging environmental resources

[[Page 8596]]

that will be protected by this rule as well as the importance of the
nursery industry, nationally and in the regulated area, the benefits of
preventing the artificial spread of P. ramorum via interstate movement
restrictions far outweigh the costs of implementing and complying with
the interim rule.

Small Entities Potentially Affected

The interim rule will affect all nurseries located in California,
Oregon, and Washington. The Oregon Nursery and Greenhouse Survey
estimates there were 2,073 operations in 2004, with over half having
sales of less than $20,000 per year. According to the 2002 Census of
Agriculture, there were 4,388 operations in California, 4,291 in
Oregon, and 2,211 operations in Washington engaged in greenhouse,
nursery, and floriculture production.\30\ Of the 4,388 operations in
California, there are 1,228 located within the quarantined area. Again,
according to the ODA, there are no nurseries located within the
quarantined area of Curry County, Oregon. We believe that the majority
of operations would be considered small by SBA standards. SBA size
standards for operations in nursery and tree production (North American
Industry Classification System (NAICS) code 111421), or floriculture
production (NAICS code 111422) are $750,000 or less in annual receipts.
The SBA size standard for retail nursery and garden center operations
(NAICS code 444220) is $6 million or less in annual receipts.
---------------------------------------------------------------------------

\30\ USDA, 2002 Census of Agriculture, Table 51. NAICS code:
1114 (Includes farms engaged in greenhouse, nursery, and
floriculture production). Washington, DC: National Agricultural
Statistics Service.
---------------------------------------------------------------------------

Alternatives

As described in section I, subsection C, of the full economic
analysis, APHIS does not believe that there are alternatives to the
interim rule that would satisfactorily accomplish the goals of the
regulation. Our preferred action balances the need to protect forests
and nurseries outside the regulated area while facilitating the
interstate movement of proven and associated host articles and non-host
articles.
This proposed rule contains certain reporting and recordkeeping
requirements (see ``Paperwork Reduction Act'' below).

Executive Order 12372

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

Environmental Considerations

The regulation of potential host plants and plant parts susceptible
to P. ramorum has developed as the knowledge of the plant disease and
the understanding of the epidemiology of the potential for spread of
the causal agent increase. This interim rule is based on the best
available science, and applies to plants that are both proven hosts or
shown to be associated with this plant pathogen based upon positive
test results. In addition, diagnostics to be used in support of these
regulations have undergone a formal validation process by APHIS to
ensure that regulatory actions are based upon results obtained from the
most sensitive and accurate diagnostic tools available.
The purpose of this rule is to prevent the spread of the plant
diseases to other parts of the United States; it is specifically
designed to avoid or minimize adverse environmental impacts. The rule's
expanded quarantine and movement restrictions do not pose any new
environmental hazards nor any new methods not analyzed for potential
risks. The expanded inspection, sampling, and testing are all
requirements designed to enhance the protection of the environment.
Based upon the increased protection of the environment afforded by
this interim rule and the recognition that this rule will be subject to
revision as our knowledge of the disease and plant pathogen increase,
there is no need for further environmental documentation at this time.
As additional information becomes available, further decisions are
likely and public input will be requested.

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 0579-0310 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. 01-054-3, 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. 01-054-3 and send
your comments within 60 days of publication of this rule.
This interim rule restricts the interstate movement of nursery
stock from nurseries in nonquarantined areas in California, Oregon, and
Washington, updates conditions for the movement of regulated articles
of nursery stock from quarantined areas, adds restrictions on the
movement of decorative trees without roots from quarantined areas, and
restricts the interstate movement of all other nursery stock from
nurseries in quarantined areas. This rule also updates the list of
plants regulated because of P. ramorum and the list of areas that are
quarantined for P. ramorum.
Its implementation will require us to engage in certain information
collection activities, in that, in certain cases, nursery stock may not
be moved interstate from nurseries in quarantined or regulated areas
unless they are accompanied by a certificate. A certificate may be
issued by an inspector (i.e., an APHIS employee, State, or County
inspector, 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. Nursery owners must also keep records
of fungicide applications for 2 years and must make them available to
inspectors upon request. All nurseries that are operating under
compliance agreements must also maintain records of all incoming
shipments of plants for a minimum of 24 months and must make them
available to inspectors upon request. In addition, all nurseries that
are operating under compliance agreements, except retail dealers, must
maintain records of outgoing shipments for a minimum of 24 months and
must make them available to inspectors upon request. We are soliciting
comments from the public concerning our information collection and
recordkeeping requirements. These comments will help us:

[[Page 8597]]

(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 is estimated to average 0.31313 hours per response.
Respondents: Nurseries in the States of California, Oregon, and
Washington.
Estimated annual number of respondents: 1,425.
Estimated annual number of responses per respondent: 5.0715789.
Estimated annual number of responses: 7,227.
Estimated total annual burden on respondents: 2,263 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.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government Act to promote the use of the Internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this interim rule, please contact 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.

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

PART 301--DOMESTIC QUARANTINE NOTICES

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

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

0
2. Part 301 is amended by revising ``Subpart-Phytophthora Ramorum,''
Sec. Sec. 301.92 through 301.92-11, to read as follows:

Subpart--Phytophthora Ramorum

Sec.
301.92 Restrictions on interstate movement.
301.92-1 Definitions.
301.92-2 Restricted, regulated, and associated articles; lists of
proven hosts and associated plant taxa.
301.92-3 Quarantined and regulated areas.
301.92-4 Conditions governing the interstate movement of regulated,
restricted, and associated articles, and non-host nursery stock from
quarantined and regulated areas.
301.92-5 Issuance and cancellation of certificates.
301.92-6 Compliance agreements and cancellation.
301.92-7 Availability of inspectors; assembly for inspection.
301.92-8 Attachment and disposition of certificates and
recordkeeping.
301.92-9 Costs and charges.
301.92-10 Treatments.
301.92-11 Inspection and sampling protocols.
301.92-12 Testing protocols.

Sec. 301.92 Restrictions on interstate movement.

(a) No person may move interstate from any quarantined area any
regulated, restricted, or associated article or any other nursery stock
except in accordance with this subpart.\1\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

(b) No person may move interstate from any nursery in any regulated
area any nursery stock except in accordance with this subpart.
(c) No person may move interstate from any quarantined or regulated
area any regulated restricted, or associated article or nursery stock
that has been tested with a test approved by APHIS and found infected
with Phytophthora ramorum, or that is part of a plant that was found
infected with Phytophthora ramorum, unless such movement is in
accordance with part 330 of this chapter.

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.
Associated article. Any article listed in Sec. 301.92-2(c).
Bark chips. Bark fragments broken or shredded from a log or tree.
Certificate. A document, stamp, or imprint by which an inspector or
person operating under a compliance agreement affirms that a specified
regulated or associated article meets applicable requirements of this
subpart 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 or
associated articles, wherein the person agrees to comply with 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.
Firewood. Wood that has been cut, sawn, or chopped into a shape and
size commonly used for fuel, or other wood intended for fuel.
Forest stock. All flowers, trees, shrubs, vines, scions, buds, or
other plants that are wild-grown, backyard-grown, or naturally
occurring.
From. An article is considered to be ``from'' a specific site or
location for the purposes of this subpart if it was grown or propagated
in, stored or sold, or distributed from the site or location.
Growing media. Any material in which plant roots are growing or
intended for that purpose.
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.
Lot. A contiguous block of plants of the same species or cultivar,
of the same container size and from the same source, if known.

[[Page 8598]]

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 or as part of a growing media mixture.
Non-host nursery stock. Any taxa of nursery stock not listed in
Sec. 301.92-2 as a regulated or associated article.
Nursery. Any location where nursery stock is grown, propagated,
stored, or sold, or any location from which nursery stock is
distributed. Locations that grow trees for sale without roots (e.g., as
Christmas trees) are considered to be nurseries for the purposes of
this subpart.
Nursery stock. All plants for planting, including houseplants,
propagative material that is grown in a nursery, and tree seedlings for
reforestation, except the following: Seeds; turf or sod; bulbs, tubers,
corms, or rhizomes; \2\ greenhouse grown cactus, succulents, and
orchids; aquarium grown aquatic plants; greenhouse, container, or field
grown palms; greenhouse, container, or field grown cycads, and tissue
culture plants grown in vitro; and plants meeting the definition of
forest stock.
---------------------------------------------------------------------------

\2\ Bulbs, tubers, corms, or rhizomes are only considered
nursery stock (and therefore, regulated under this subpart) if they
are of plant taxa listed in Sec. 301.92-2 as regulated articles or
associated articles.
---------------------------------------------------------------------------

Permit. A written authorization issued by APHIS to allow the
interstate movement of restricted articles in accordance with part 330
of this chapter.
Person. Any association, company, corporation, firm, individual,
joint stock company, partnership, society, or other entity.
Plant Protection and Quarantine. The Plant Protection and
Quarantine program of the 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(a)(3) of this subpart or otherwise designated as a
quarantined area in accordance with Sec. 301.92-3(a)(2) of this
subpart.
Regulated area. Any area listed in Sec. 301.92-3(b) of this
subpart.
Regulated article. Any article listed in Sec. 301.92-2(b) of this
subpart.
Restricted article. Any article listed in Sec. 301.92-2(a) of this
subpart.
Soil. The loose surface material of the earth in which plants grow,
in most cases consisting of disintegrated rock with an admixture of
organic material.
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 Restricted, regulated, and associated articles; lists
of proven hosts and associated plant taxa.

(a) Restricted articles. The following are restricted articles:
(1) Bark chips or mulch \3\ located in a quarantined area and that
are proven host plant taxa listed in paragraph (d) of this section.
---------------------------------------------------------------------------

\3\ Bark chips or mulch of species listed in paragraph (d) of
this section and that are marked with an asterisk (*) are not
restricted articles.
---------------------------------------------------------------------------

(2) Forest stock located or grown in a quarantined area and that
are proven host plant taxa or associated plant taxa listed in paragraph
(d) or (e) of this section.
(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
a restricted article.
(b) Regulated articles. The following are regulated articles:
(1) Nursery stock, decorative trees without roots, unprocessed wood
and wood products, and plant products, including firewood, logs,
lumber,\4\ wreaths, garlands, and greenery of proven host plant taxa
listed in paragraph (d) of this section.
---------------------------------------------------------------------------

\4\ Firewood, logs, and lumber of species listed in paragraph
(d) of this section and that are marked with an asterisk (*) are not
regulated articles.
---------------------------------------------------------------------------

(2) Soil and growing media.
(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.
(c) Associated articles. The following are associated articles:
Nursery stock of associated plant taxa listed in paragraph (e) of this
section.
(d) Proven host plant taxa. The following are proven hosts of
Phytophthora ramorum:

*Acer macrophyllum Bigleaf maple
Acer pseudoplatanus Planetree maple
*Adiantum aleuticum Western maidenhair fern
*Adiantum jordanii California maidenhair fern
*Aesculus californica California buckeye
Aesculus hippocastanum horse chestnut
*Arbutus menziesii Madrone
*Arctostaphylos manzanita Manzanita
*Calluna vulgaris Scotch heather
*Camellia spp. Camellia--all species, hybrids and cultivars
*Castanea sativa Sweet chestnut
Fagus sylvatica European beech
*Frangula californica ([equiv]Rhamnus californica) California
coffeeberry
*Frangula purshiana ([equiv]Rhamnus purshiana) Cascara
Fraxinus excelsior European ash
*Griselinia littoralis Griselinia
*Hamamelis virginiana Witch hazel
*Heteromeles arbutifolia Toyon
*Kalmia spp. Kalmia--includes all species, hybrids, and cultivars
*Laurus nobilis Bay laurel
Lithocarpus densiflorus Tanoak
*Lonicera hispidula California honeysuckle
*Maianthemum racemosum (=Smilacina racemosa) False Solomon's seal
*Michelia doltsopa Michelia
*Parrotia persica Persian ironwood
*Photinia fraseri Red tip photinia
*Pieris spp. Pieris--includes all species, hybrids, and cultivars
*Pseudotsuga menziesii var. menziesii and all nursery-grown P.
menziesii Douglas fir
Quercus agrifolia Coast live oak
Quercus cerris European turkey oak
Quercus chrysolepis Canyon live oak
Quercus falcata Southern red oak
*Quercus ilex Holm oak
Quercus kelloggii California black oak
Quercus parvula var. shrevei and all nursery grown Q. parvula
Shreve's oak
*Rhododendron spp. Rhododendron (including azalea)--includes all
species, hybrids, and cultivars
*Rosa gymnocarpa Wood rose
*Salix caprea Goat willow
*Sequoia sempervirens Coast redwood
*Syringa vulgaris Lilac
*Taxus baccata European yew
*Trientalis latifolia Western starflower
*Umbellularia californica California bay laurel, pepperwood, Oregon
myrtle
*Vaccinium ovatum Evergreen huckleberry
*Viburnum spp. Viburnum-all species, hybrids, and cultivars

(e) Associated plant taxa. The following plant taxa are considered
to be associated with Phytophthora ramorum:

[[Page 8599]]

Eucalyptus haemastoma Scribbly gum
Euonymus kiautschovicus Spreading euonymus
Fraxinus latifolia Oregon ash
Gaultheria shallon Salal, Oregon wintergreen
Hamamelis mollis Chinese witch-hazel
Hamamelis x intermedia (H. mollis & H. japonica) Hybrid witchhazel
Ilex purpurea Oriental holly
Leucothoe axillaris Fetter-bush, dog hobble
Leucothoe fontanesiana Drooping leucothoe
Loropetalum chinense Lorapetalum
Magnolia grandiflora Southern magnolia
Magnolia stellata Star magnolia
Magnolia x loebneri Loebner magnolia
Magnolia x soulangeana Saucer magnolia
Manglietia insignis Red lotus tree
Michelia maudiae Michelia
Michelia wilsonii Michelia
Nerium oleander Oleander
Nothofagus obliqua Roble beech
Osmanthus decorus ([equiv]Phillyrea decora; [equiv]P. vilmoriniana)
Osmanthus
Osmanthus delavayi Delavay Osmanthus, Delavay tea olive
Osmanthus fragrans Sweet olive
Osmanthus heterophyllus Holly olive
Osmorhiza berteroi Sweet Cicely
Parakmeria lotungensis Eastern joy lotus tree
Pittosporum undulatum Victorian box
Prunus laurocerasus English laurel, cherry laurel
Prunus lusitanica Portuguese laurel cherry
Pyracantha koidzumii Formosa firethorn
Quercus acuta Japanese evergreen oak
Quercus petraea Sessile oak
Quercus rubra Northern red oak
Rosa (specific cultivars)
Royal Bonica (tagged: ``MEImodac'')
Pink Meidiland (tagged: ``MEIpoque'')
Pink Sevillana (tagged: ``MEIgeroka'')
Rosa rugosa Rugosa rose
Rubus spectabilis Salmonberry
Schima wallichii Chinese guger tree
Taxus brevifolia Pacific yew
Taxus x media Yew
Torreya californica California nutmeg
Toxicodendron diversilobum Poison oak
Vancouveria planipetala Redwood ivy

Sec. 301.92-3 Quarantined and regulated areas.

(a) Quarantined areas. (1) Except as otherwise provided in
paragraph (a)(2) of this section, the Administrator will list as a
quarantined area in paragraph (a)(3) of this section each State, or
each portion of a State, in which Phytophthora ramorum has been
confirmed by an inspector to be established in the natural environment,
in which the Administrator has reason to believe that Phytophthora
ramorum is present in the natural environment, 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 in the natural environment.
Less than an entire State will be designated as a quarantined area only
if the Administrator determines that:
(i) The State has adopted and is enforcing restrictions on the
intrastate movement of the regulated, restricted, and associated
articles that are substantially the same as those imposed by this
subpart on the interstate movement of regulated, restricted, and
associated articles; and
(ii) The designation of less than the entire State as a quarantined
area will prevent the interstate spread of Phytophthora ramorum.
(2) The Administrator or an inspector may temporarily designate any
nonquarantined area in a State as a quarantined area in accordance with
paragraph (a)(1) 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, restricted,
or associated 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 (a)(3) 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.
(3) The following areas are designated as quarantined areas:

California

Alameda County. The entire county.
Contra Costa County. The entire county.
Humboldt County. The entire county.
Lake 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 Francisco 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 as follows: In T. 39
S., R. 13 W., secs. 32, 33, and 34; T. 40 S., R. 13 W., secs. 3, 4,
5, 8, 9, 10, southeast quarter of sec. 11, southwest quarter of sec.
12, northwest quarter of sec. 13, northeast quarter of secs. 14, 15,
16, and 17, east half of sec. 18, east half of secs. 19, 20, 21, 22,
28, and 29, northeast quarter of secs. 30, 32, 33, and 34; T. 40 S.,
R. 14 W., southeast quarter of sec. 23, southwest quarter of sec.
24, northwest quarter of sec. 25, and the northeast quarter of sec.
26.

(b) Regulated areas. The following areas are designated as
regulated areas:

California

All counties in the State not listed in paragraph (a) of this
section as quarantined areas.

Oregon

All areas in the State not listed in paragraph (a) of this
section as quarantined areas.

Washington

The entire State.

Sec. 301.92-4 Conditions governing the interstate movement of
regulated, restricted, and associated articles, and non-host nursery
stock from quarantined and regulated areas.

(a) Interstate movement of regulated and associated articles from
quarantined areas. Regulated and associated articles may be moved
interstate from a quarantined area \5\ only in accordance with this
subpart.
---------------------------------------------------------------------------

\5\ Requirements under all other applicable Federal domestic
plant quarantines and regulations must also be met.
---------------------------------------------------------------------------

(1) With a certificate. Any regulated or associated article may be
moved interstate from a quarantined area if accompanied by a
certificate issued and attached in accordance with Sec. Sec. 301.92-5
and 301.92-8, and provided that the regulated or associated 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) Without a certificate.
(i) The regulated or associated 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
(ii) The regulated or associated 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.
(b) Interstate movement of restricted articles from quarantined
areas. Restricted articles may be moved interstate from a quarantined
area \6\ only in accordance with this section.
---------------------------------------------------------------------------

\6\ See footnote 4 of this subpart.
---------------------------------------------------------------------------

(1) With a permit. Any restricted article may be moved interstate
from a quarantined area only if the article is moved pursuant to a
permit issued by the Administrator in accordance with part 330 of this
chapter.
(2) Without a permit.
(i) The restricted article originated outside the quarantined area
and the point of origin of the article is indicated

[[Page 8600]]

on the waybill of the vehicle transporting the article; and
(ii) The 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.
(c) Interstate movement of nursery stock from nurseries in
quarantined areas--(1) Regulated articles of nursery stock and
associated articles. Regulated articles of nursery stock and associated
articles may only be moved interstate from nurseries in quarantined
areas in accordance with paragraph (a) of this section.
(2) Non-host nursery stock. Any nursery stock of a taxon not listed
in Sec. 301.92-2 as a regulated or associated article may only be
moved interstate from nurseries in quarantined areas as follows:
(i) With a certificate. If the non-host nursery stock originates
from a nursery in a quarantined area that contains regulated or
associated articles, the nursery stock must be accompanied by a
certificate issued and attached in accordance with Sec. Sec. 301.92-5
and 301.92-8, and be 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.
(ii) Without a certificate. If the non-host nursery stock
originates from a nursery in a quarantined area that does not contain
regulated or associated articles, the nursery stock may be moved
interstate without a certificate, provided that:
(A) The nursery from which plants originate has been inspected and
found free of evidence of Phytophthora ramorum in accordance with Sec.
301.92-11(b)(3), and
(B) The nursery stock is not rooted in soil or growing media.\7\
---------------------------------------------------------------------------

\7\ To be eligible for interstate movement, non-host nursery
stock that is rooted in soil or growing media requires certification
that the soil or growing media meets the requirements of Sec.
301.92-5(a)(1)(iii).
---------------------------------------------------------------------------

(d) Interstate movement of nursery stock from nurseries in
regulated areas--(1) Regulated and associated articles of nursery
stock. Regulated articles of nursery stock and associated articles may
only be moved interstate from nurseries in regulated areas if
accompanied by a certificate issued and attached in accordance with
Sec. Sec. 301.92-5 and 301.92-8, and provided that, if moved through a
quarantined area en route to another State, the regulated articles of
nursery stock or associated articles 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.
(2) Non-host nursery stock. Any nursery stock of a taxon not listed
in Sec. 301.92-2 as a regulated or associated article may only be
moved interstate from nurseries in regulated areas as follows:
(i) With a certificate. If non-host nursery stock originates from a
nursery in a regulated area that contains regulated or associated
articles, the nursery stock must be accompanied by a certificate issued
and attached in accordance with Sec. Sec. 301.92-5 and 301.92-8, and
provided that, if moved through a quarantined area en route to another
State, the nursery stock 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.
(ii) Without a certificate. If non-host nursery stock originates
from a nursery in a regulated area that does not contain regulated or
associated articles, the nursery stock may be moved interstate without
a certificate, provided that the nursery from which plants originate
has been inspected and found free of evidence of Phytophthora ramorum
in accordance with Sec. 301.92-11(d)(3).

Sec. 301.92-5 Issuance and cancellation of certificates.

(a) Movements from quarantined areas. (1) An inspector \8\ may
issue a certificate for the interstate movement of regulated articles,
associated articles, or non-host nursery stock \9\ from a quarantined
area if the inspector determines that:
---------------------------------------------------------------------------

\8\ 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 160, Riverdale, MD
20737, or the APHIS Web site at http://www.aphis.usda.gov/ppq/sphd/.
\9\ Paragraph (d)(2)(ii) of Sec. 301.92-4 allows the interstate
movement of non-host nursery stock without a certificate under
certain conditions.
---------------------------------------------------------------------------

(i) The regulated articles have been treated under the direction of
an inspector in accordance with Sec. 301.92-10 or part 305 of this
chapter; or
(ii) The regulated articles are wood products such as firewood,
logs, or lumber that are free of bark; \10\ or
---------------------------------------------------------------------------

\10\ Firewood, logs, lumber of species listed in 301.92-2(d) and
marked with an asterisk are not regulated articles, as noted in
Sec. 301.92-2(b)(1).
---------------------------------------------------------------------------

(iii) The regulated article is soil or growing media that has not
been in direct physical contact with any article infected with
Phytophthora ramorum, and from which all duff has been removed; or
(iv) The articles are nursery stock or regulated articles of
decorative trees without roots, wreaths, garlands, or greenery that:
(A) Are shipped from a nursery in a quarantined area that has been
inspected in accordance with the inspection and sampling protocol
described in Sec. 301.92-11(a)(1), and the nursery is free of evidence
of Phytophthora ramorum infestation; and
(B) Are part of a shipment of nursery stock, decorative trees
without roots, wreaths, garlands, or greenery that has been inspected
prior to interstate movement in accordance with Sec. 301.92-11(a)(2),
and the regulated articles in the shipment are free of evidence of
Phytophthora ramorum infection; and
(C) Have been kept separate from regulated and associated articles
and non-host nursery stock 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 that are annually inspected for
Phytophthora ramorum in accordance with Sec. 301.92-11 and that have
been found free of evidence of Phytophthora ramorum infestation, except
that certified nurseries which receive articles from a non-certified
nursery in a quarantined or regulated area may continue to ship other
plants interstate, provided that the uncertified plants are
safeguarded, segregated, and withheld from interstate movement until
the plants are inspected and tested and found free of evidence of
Phytophthora ramorum.
(v) The regulated or associated article or non-host nursery stock
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) \11\ to prevent the spread of Phytophthora ramorum;
and
---------------------------------------------------------------------------

\11\ 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.
---------------------------------------------------------------------------

(vi) The regulated or associated article or non-host nursery stock
is eligible for unrestricted movement under all other Federal domestic
plant quarantines and

[[Page 8601]]

regulations applicable to the regulated or associated article.
(2) Reserved.
(b) Movements from regulated areas. (1) An inspector \12\ may issue
a certificate for the interstate movement of regulated articles of
nursery stock, associated articles, or non-host nursery stock \13\ from
a nursery in a regulated area if an inspector determines that:
---------------------------------------------------------------------------

\12\ See footnote 7 of this subpart.
\13\ Paragraph (d)(2)(ii) of Sec. 301.92-4 allows the
interstate movement of non-host nursery stock without a certificate
under certain conditions.
---------------------------------------------------------------------------

(i) The nursery from which the nursery stock originates has been
inspected in accordance with Sec. 301.92-11(c) and found free of
evidence of Phytophthora ramorum infestation; and
(ii) All nursery stock in the nursery have not been grown in, or
moved from, nurseries except those that have been inspected for
Phytophthora ramorum in accordance with Sec. 301.92-11(c) and that
have been found free of evidence of Phytophthora ramorum infestation,
except that certified nurseries which receive articles from a non-
certified nursery in a quarantined or regulated area may continue to
ship other plants interstate, provided that the uncertified plants are
safeguarded, segregated, and withheld from interstate movement until
the plants are inspected and tested and found free of evidence of
Phytophthora ramorum; and
(iii) The nursery stock 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) \14\ to prevent
the spread of Phytophthora ramorum; and
---------------------------------------------------------------------------

\14\ See footnote 7 of this subpart.
---------------------------------------------------------------------------

(iv) The nursery stock is eligible for unrestricted movement under
all other Federal domestic plant quarantines and regulations applicable
to the nursery stock.
(2) Reserved.
(c) Certificates issued under paragraphs (a) and (b) of this
section may be issued by any person engaged in the business of growing,
processing, handling, or moving regulated or associated articles or
nursery stock provided such person has entered into and is operating
under a compliance agreement in accordance with Sec. 301.92-6. Any
such person may execute and issue a certificate for the interstate
movement of regulated or associated articles or nursery stock if an
inspector has previously made the determination that the article is
eligible for a certificate in accordance with any applicable section of
this subpart.
(d) 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
numbers 0579-0310 and 0579-0088)

Sec. 301.92-6 Compliance agreements and cancellation.

(a) Any person engaged in growing, processing, handling, or moving
regulated articles, associated articles, or non-host 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.\15\
---------------------------------------------------------------------------

\15\ 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 160, Riverdale, MD 20737-1236, and from local
offices of the Plant Protection and Quarantine, which are listed in
telephone directories. Forms are also available on the Internet at
http://www.aphis.usda.gov/ppq/ispm/pramorum/resources.html.
---------------------------------------------------------------------------

(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.

(Approved by the Office of Management and Budget under control
numbers 0579-0310)

Sec. 301.92-7 Availability of inspectors; assembly for inspection.

(a) Any person (other than a person authorized to issue
certificates under Sec. 301.92-5(c)) who desires to move a regulated
or associated article or non-host nursery stock interstate accompanied
by a certificate must notify an inspector \16\ as far in advance of the
desired interstate movement as possible, but no less than 48 hours
before the desired time of inspection.
---------------------------------------------------------------------------

\16\ See footnote 7 of this subpart.
---------------------------------------------------------------------------

(b) The regulated or associated article or non-host nursery stock
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 and
recordkeeping.

(a) A certificate required for the interstate movement of a
regulated article, associated article, or non-host nursery stock must,
at all times during the interstate movement, be:
(1) Attached to the outside of the container containing the
regulated article, associated article, or non-host nursery stock; or
(2) Attached to the regulated article, associated article, or non-
host nursery stock 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, associated article, or non-host nursery stock
must be sufficiently described on the certificate and on the waybill to
identify the regulated article, associated article, or non-host nursery
stock.
(b) The certificate for the interstate movement of a regulated
article, associated article, or non-host nursery stock must be
furnished by the carrier to the consignee listed on the certificate
upon arrival at the location provided on the certificate.
(c) All nurseries that are operating under compliance agreements
must maintain records of all incoming shipments of plants for a minimum
of 24 months and must make them available to inspectors upon request.
In addition, all nurseries that are operating under compliance
agreements, except

[[Page 8602]]

retail dealers, must maintain records of outgoing shipments for a
minimum of 24 months and must make them available to inspectors upon
request.

(Approved by the Office of Management and Budget under control
numbers 0579-0088 and 0579-0310)

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.

Treatment schedules listed in part 305 of this chapter are
authorized for use on certain regulated articles to prevent the spread
of Phytophthora ramorum. The following treatments also may be used for
the regulated articles indicated:
(a) Soil--Heat to a temperature of at least 180 [deg]F at the
center of the load for 30 minutes in the presence of an inspector.
(b) Wreaths, garlands, and greenery of host material--Dip for 1
hour in water that is held at a temperature of at least 160 [deg]F.
(c) Bay leaves--Treat with vacuum heat in accordance with part 305
of this chapter.

Sec. 301.92-11 Inspection and sampling protocols.

----------------------------------------------------------------------------------------------------------------
Inspection and certification protocol
Type(s) of plants in the Type(s) of plants ---------------------------------------------------------
nursery shipped interstate Origin: Quarantined areas Origin: Regulated areas
----------------------------------------------------------------------------------------------------------------
Regulated articles only....... None.................. Not regulated.............. Not regulated.
Regulated articles only....... Regulated articles.... Sec. 301.92-11(a)........ Sec. 301.92-11(c).
Associated articles only...... None.................. Not regulated.............. Not regulated.
Associated articles only...... Associated articles... Sec. 301.92-11(a)........ Sec. 301.92-11(c).
Regulated and associated Regulated or Sec. 301.92-11(a)........ Sec. 301.92-11(c).
articles only. associated articles,
or both.
Regulated and associated None.................. Not regulated.............. Not regulated.
articles and non-hosts.
Regulated and associated Regulated or Sec. 301.92-11(a)........ Sec. 301.92-11(c).
articles and non-hosts. associated articles,
or both.
Regulated and associated Non-hosts only........ Sec. 301.92-11(a)........ Sec. 301.92-11(c).
articles and non-hosts.
Non-hosts only................ None.................. Not regulated.............. Not regulated.
Non-hosts only................ Non-hosts............. Sec. 301.92-11(b)........ Sec. 301.92-11(d).
Decorative trees without roots Proven host plant taxa Sec. 301.92-11(a)......... Not regulated.
(e.g., Christmas trees).
Decorative trees without roots Associated plant taxa. Not regulated.............. Not regulated.
(e.g., Christmas trees).
----------------------------------------------------------------------------------------------------------------

(a) Nurseries in quarantined areas shipping regulated articles of
nursery stock and associated articles interstate. To meet the
requirements of Sec. 301.92-5(a)(1)(iv), nurseries located in
quarantined areas and that move regulated articles of nursery stock,
decorative trees without roots, wreaths, garlands, or greenery,
associated articles, or non-host nursery stock interstate must meet the
requirements in this section. Nurseries in quarantined areas that do
not meet the requirements of this section are prohibited from moving
regulated articles and associated articles interstate. Nurseries in
quarantined areas that do not meet the requirements of this section or
paragraph (b) of this section are prohibited from moving non-host
nursery stock interstate.
(1) Annual inspection, sampling, and testing.
(i) Inspection. The nursery must be inspected annually for symptoms
of Phytophthora ramorum by an inspector.\17\ Inspectors will visually
inspect for symptomatic plants throughout the nursery, and inspection
will focus on, but not be limited to, regulated articles and associated
articles.
---------------------------------------------------------------------------

\17\ Persons operating under compliance agreements are eligible
to issue certificates for the interstate movement of regulated and
associated articles, but only inspectors are authorized to conduct
nursery inspections required under the regulations.
---------------------------------------------------------------------------

(ii) Sampling. A minimum of 40 plant samples must be tested per
nursery location. Samples must be taken from all symptomatic plants if
symptomatic plants are present. If fewer than 40 symptomatic plants are
present, each symptomatic plant must be sampled and the remainder of
the 40 sample minimum must be taken from asymptomatic plants. If no
symptomatic plants are present, 40 asymptomatic plants must be sampled;
biased toward proven hosts. Each sample may contain more than one leaf,
and may come from more than one plant, but all plants in the sample
must be from the same lot. Asymptomatic samples, if collected, must be
taken from regulated and associated articles and nearby plants.
Inspectors must conduct inspections at times when the best expression
of symptoms is anticipated and must take nursery fungicide programs
into consideration. Nursery owners must keep records of fungicide
applications for 2 years and must make them available to inspectors
upon request.
(iii) Testing. Samples must be labeled and sent for testing to a
laboratory approved by APHIS and must be tested using a test method
approved by APHIS, in accordance with Sec. 301.92-12.
(iv) Annual certification. If all plant samples tested in
accordance with this section and Sec. 301.92-12 return negative
results for Phytophthora ramorum, an inspector may certify that the
nursery is free of evidence of Phytophthora ramorum infestation at the
time of inspection, and the nursery will be eligible to enter into a
compliance agreement in accordance with Sec. 301.92-6.\18\
---------------------------------------------------------------------------

\18\ See footnote 14 of this subpart.
---------------------------------------------------------------------------

(2) Pre-shipment inspection, sampling, and testing.
(i) Inspection. During the 30 days prior to interstate movement
from a nursery in a quarantined area, regulated articles or associated
articles intended for interstate movement must be inspected for
symptoms of Phytophthora ramorum by an inspector.\19\ Inspection will
focus on,

[[Page 8603]]

but not be limited to, regulated articles and associated articles. No
inspections of shipments will be conducted unless the nursery from
which the shipment originates has a current and valid annual
certification in accordance with paragraph (a)(1)(iv) of this section.
---------------------------------------------------------------------------

\19\ See footnote 7 of this subpart.
---------------------------------------------------------------------------

(A) If no symptomatic plants are found upon inspection, the
shipment may be considered free of evidence of Phytophthora ramorum
infection and is eligible for interstate movement, provided that the
nursery is operating under a compliance agreement with APHIS in
accordance with Sec. 301.92-6.
(B) If symptomatic plants are found upon inspection, the inspector
will collect at least one sample per symptomatic plant, and one sample
per regulated article or associated article that is in close proximity
to, or that has had physical contact with, a symptomatic plant.
(ii) Testing and withholding from interstate movement. Samples
taken in accordance with paragraph (a)(2)(i)(B) of this section must be
labeled and sent for testing to a laboratory approved by APHIS and must
be tested using a test method approved by APHIS, in accordance with
Sec. 301.92-12. The interstate movement of plants in the shipment is
prohibited until the plants in the shipment are determined to be free
of evidence of Phytophthora ramorum infection in accordance with Sec.
301.92-12.
(b) Nurseries in quarantined areas shipping non-host nursery stock
interstate. Nurseries located in quarantined areas and that move non-
host nursery stock interstate must meet the requirements of this
paragraph or the requirements of paragraph (a) of this section.\20\ If
such nurseries contain any regulated or associated articles, the
nursery must meet the requirements of paragraph (a). This paragraph (b)
only applies if there are no regulated or associated articles of
nursery stock in the nursery. Nurseries that do not meet the
requirements of paragraphs (a) or (b) of this section are prohibited
from moving non-host nursery stock interstate.
---------------------------------------------------------------------------

\20\ In addition, to be eligible for interstate movement, non-
host nursery stock that is rooted in soil or growing media requires
certification that the soil or growing media meets the requirements
of Sec. 301.92-5(a)(1)(iii).
---------------------------------------------------------------------------

(1) Annual visual inspection. The nursery must be visually
inspected annually for symptoms of Phytophthora ramorum. Inspections
and determinations of freedom from evidence of Phytophthora ramorum
infestation must occur at the time when the best expression of symptoms
is anticipated.
(2) Sampling. All plants showing symptoms of infection with
Phytophthora ramorum upon inspection will be sampled and tested in
accordance with Sec. 301.92-12. If symptomatic plants are found upon
inspection, the following plants must be withheld from interstate
shipment until testing is completed and the nursery is found free of
evidence of Phytophthora ramorum in accordance with this paragraph
(b)(3) of this section and Sec. 301.92-12: All symptomatic plants, any
plants located in the same lot as the suspect plant, and any plants
located within 2 meters of this lot of plants.
(3) Certification. If all plant samples tested in accordance with
this section and Sec. 301.92-12 return negative results for
Phytophthora ramorum, or if an inspector determines that plants in a
nursery exhibit no signs of infection with Phytophthora ramorum, the
inspector may certify that the nursery is free of evidence of
Phytophthora ramorum infestation at the time of inspection.
Certification is valid for 1 year and must be renewed each year to
continue shipping plants interstate.
(c) Nurseries in regulated areas shipping regulated articles of
nursery stock or associated articles interstate. To meet the conditions
of Sec. 301.92-5(b), any nursery that is located in a regulated area
and contains regulated articles of nursery stock or associated
articles, and ships any nursery stock interstate must meet the
following requirements:
(1) Annual inspection. The nursery must be inspected annually for
symptoms of Phytophthora ramorum by an inspector.\21\ Inspection will
focus on, but not be limited to, regulated articles of nursery stock
and associated articles.
---------------------------------------------------------------------------

\21\ See footnote 7 of this subpart.
---------------------------------------------------------------------------

(2) Sampling. Samples must be taken from all symptomatic plants. If
fewer than 40 symptomatic plants are present, each symptomatic plant
must be sampled and additional samples must be taken from asymptomatic
plants so that the minimum number of plants sampled is 40. If no
symptomatic plants are present, 40 asymptomatic plants must be sampled.
Each sample may contain more than one leaf, and may come from more than
one plant, but all plants in the sample must be from the same lot. If
samples are collected from asymptomatic plants, the samples must be
taken from regulated and associated articles and nearby plants.
Inspectors must conduct inspections at times when the best expression
of symptoms is anticipated and must take nursery fungicide programs
into consideration. Nursery owners must keep records of fungicide
applications for 2 years and must make them available to inspectors
upon request.
(3) Annual certification. If all plant samples tested in accordance
with this section and Sec. 301.92-12 return negative results for
Phytophthora ramorum, the inspector may certify that the nursery is
free of evidence of Phytophthora ramorum infestation at the time of
inspection. Nurseries in a regulated area must have current and valid
certification to ship regulated articles of nursery stock and
associated articles interstate. If annual certification expires prior
to reinspection, all plants in the nursery are prohibited interstate
movement until the nursery is inspected, tested, and re-certified in
accordance with this section and Sec. 301.92-12.
(d) Nurseries in regulated areas shipping non-host nursery stock
interstate. Nurseries located in regulated areas and that move non-host
nursery stock interstate must meet the requirements in this paragraph
or the requirements of paragraph (c) of this section. If such nurseries
contain any regulated or associated articles, the nursery must meet the
requirements of paragraph (c). This paragraph (d) only applies if there
are no regulated or associated articles in the nursery. Nurseries that
do not meet the requirements of paragraphs (c) or (d) of this section
are prohibited from moving non-host nursery stock interstate.
(1) Annual visual inspection. The nursery must be visually
inspected annually for symptoms of Phytophthora ramorum. Inspections
and determinations of apparent pest freedom for such nurseries must
occur at the time when the best expression of symptoms is anticipated.
(2) Sampling. All plants showing symptoms infection with
Phytophthora ramorum upon inspection will be sampled and tested in
accordance with Sec. 301.92-12. If symptomatic plants are found upon
inspection, the following plants must be withheld from interstate
shipment until testing is completed and the nursery is found free of
evidence of Phytophthora ramorum in accordance with Sec. 301.92-12:
All symptomatic plants, any plants located in the same lot as the
symptomatic plant, and any plants located within 2 meters of that lot
of plants.
(3) Certification. If all plant samples tested in accordance with
this section and Sec. 301.92-12 return negative results for
Phytophthora ramorum, or if an inspector determines that plants in the
nursery exhibit no signs of infection with Phytophthora ramorum, the
inspector may certify that the nursery is

[[Page 8604]]

free of evidence of Phytophthora ramorum infestation at the time of
inspection. Certification is valid for 1 year and must be renewed each
year to continue shipping plants interstate.
(e) Additions to the lists of proven hosts and associated plants.
In the event that APHIS informs a nursery owner that additional proven
hosts or associated plants exist, but those taxa are not yet listed in
this subpart, the following provisions apply:
(1) Nurseries operating under a compliance agreement in accordance
with Sec. 301.92-6 may continue to ship plants interstate in
accordance with this subpart.
(2) Nurseries that had not previously contained any regulated or
associated articles, and that had been inspected in accordance with
Sec. 301.92-11(b)(3) and allowed to ship plants interstate without
certificate, but that contain a newly identified proven host or
associated plant must cease interstate shipments of regulated articles
and associated hosts until the nursery is reinspected and found free of
evidence of Phytophthora ramorum in accordance with Sec. 301.92-11.
Nurseries that come under regulation during winter dormancy periods and
that are not able to be inspected in accordance with Sec. 301.92-11
prior to desired shipments of non-host nursery stock may be allowed to
ship non-host nursery stock interstate at the discretion of an
inspector.

(Approved by the Office of Management and Budget under control
number 0579-0310)

Sec. 301.92-12 Testing protocols.

Samples must be analyzed using a methodology approved by APHIS at a
laboratory approved by APHIS. The following methodology is approved by
APHIS.
(a) Optional ELISA Prescreening. An APHIS-approved ELISA may be
used to prescreen plant samples to determine the presence of
Phytophthora spp.
(1) Negative prescreening results. If all samples from a single
nursery are found to be negative through APHIS-approved ELISA
prescreening, no further testing is required. The nursery may be
considered free of evidence of Phytophthora ramorum, and plants in the
nursery are eligible for interstate movement under certificate in
accordance with Sec. 301.92-5.
(2) Positive prescreening results. If ELISA prescreening reveals
the presence of Phytophthora spp. in any plants, each sample that
returns positive ELISA results must be tested as provided in paragraph
(b) of this section.
(b) Mandatory testing procedures. If ELISA prescreening is not
performed, or if results of ELISA prescreening are positive for
Phytophthora spp. in any sample, the sample must be analyzed using an
APHIS-approved test. Samples will be considered positive for
Phytophthora ramorum based on positive results of any approved test.
Positive PCR or other molecular tests do not require confirmatory
culture tests, nor do positive culture tests require confirmatory PCR
or other molecular tests; however, if culture tests return other than
positive results, an APHIS-approved PCR or other molecular test must be
conducted, as provided in paragraph (b)(1) of this section.
(1) PCR or other molecular tests.
(i) Negative results. If the results of PCR or other molecular
tests are negative for all samples in a nursery, no further testing is
required. The nursery may be considered free of evidence of
Phytophthora ramorum and plants in the nursery are eligible for
interstate movement under certificate in accordance with Sec. 301.92-
5.
(ii) Positive results. If any samples tested using PCR or other
molecular tests return positive results for Phytophthora ramorum, the
nursery from which they originate is prohibited from moving plants
interstate. The nursery will be eligible to ship certain plants
interstate when an inspector determines that those plants are free of
evidence of Phytophthora ramorum.
(2) Culture Test.
(i) Negative results. If the results of culture tests are other
than positive for any samples taken from a single nursery, plants in
the nursery must continue to be withheld from shipment in accordance
with Sec. 301.92-11 and each plant sample must be tested again using a
PCR or other molecular test, as described in this section.
(ii) Positive results. If any culture tests return positive results
for Phytophthora ramorum, the nursery from which they originate is
prohibited from moving plants interstate as directed by an inspector.
The nursery will be eligible to ship certain plants interstate when an
inspector determines that those plants are free of evidence of
Phytophthora ramorum.
(c) Other test methods. Other test methods may be acceptable if
approved by APHIS.

Done in Washington, DC, this 16th day of February 2007.
Bruce Knight,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 07-892 Filed 2-26-07; 8:45 am]
BILLING CODE 3410-34-P