[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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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/.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
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    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:

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
Cornus kousa x Cornus capitata Cornus Norman Haddon
Corylus cornuta California hazelnut
Distylium myricoides Myrtle-leafed distylium
Drimys winteri Winter's bark
Dryopteris arguta California wood fern

[[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).
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    (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.
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    \21\ See footnote 7 of this subpart.
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    (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