[Federal Register Volume 67, Number 31 (Thursday, February 14, 2002)]
[Rules and Regulations]
[Pages 6827-6837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3721]



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 Rules and Regulations
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  Federal Register / Vol. 67, No. 31 / Thursday, February 14, 2002 / 
Rules and Regulations  

[[Page 6827]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 01-054-1]


Phytophthora Ramorum; Quarantine and Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and notice of public hearings.

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SUMMARY: We are quarantining 10 counties in the State of California and 
a portion of 1 county in the State of Oregon because of the presence of 
Phytophthora ramorum and regulating the interstate movement of 
regulated and restricted articles from the quarantined area. This 
action is necessary on an emergency basis to prevent the spread of P. 
ramorum to noninfested areas of the United States.

DATES: This interim rule is effective February 14, 2002. We will 
consider all comments we receive that are postmarked, delivered, or e-
mailed by April 15, 2002. We will also consider comments made at public 
hearings to be held in Petaluma, CA, on February 27, 2002; and in 
Riverdale, MD, on March 27, 2002.

ADDRESSES: You may submit comments by postal mail/commercial delivery 
or electronically. If you use postal mail/commercial delivery, please 
send four copies (an original and three copies) to: Docket No. 01-054-
1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 01-054-1. To submit a comment 
electronically, please visit http://comments.aphis.usda.gov.
    You may read any comments that we receive on this docket in our 
reading room, or by visiting http://comments.aphis.usda.gov. The 
reading room is located in room 1141 of the USDA South Building, 14th 
Street and Independence Avenue SW., Washington, DC. Normal reading room 
hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. 
To be sure someone is there to help you, please call (202) 690-2817 
before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.
    Public hearing regarding this rule will be held at the following 
locations:
    1. Petaluma, CA: Petaluma Community Center, 320 N. McDowell Blvd., 
Petaluma, CA.
    2. Riverdale, MD: USDA Center at Riverside, 4700 River Road, 
Riverdale, MD.

FOR FURTHER INFORMATION CONTACT: Mr. Jonathan Jones, Operations 
Officer, Invasive Species and Pest Management, PPQ, APHIS, 4700 River 
Road Unit 134, Riverdale, MD 20737; (301) 734-8247.

SUPPLEMENTARY INFORMATION:

Public Hearings

    We are advising the public that we are hosting two public hearings 
on this interim rule. The first public hearing will be held in 
Petaluma, CA, on Wednesday, February 27, 2002. The second public 
hearing will be held in Riverdale, MD, on Wednesday, March 27, 2002.
    A representative of the Animal and Plant Health Inspection Service 
(APHIS), U.S. Department of Agriculture (USDA or the Department), will 
preside at the public hearings. Any interested person may appear and be 
heard in person, by attorney, or by other representative. Written 
statements may be submitted and will be made part of the hearing 
record. A transcript of the public hearings will be placed in the 
rulemaking record and will be available for public inspection.
    The purpose of the hearings is to give interested persons an 
opportunity for oral presentation of data, views, and arguments. 
Questions about the content of the interim rule may be part of the 
commenters' oral presentations. However, neither the presiding officer 
nor any other representative of APHIS will respond to comments at the 
hearings, except to clarify or explain provisions of the interim rule.
    The public hearings will begin at 9 a.m. and are scheduled to end 
at 4:30 p.m., local time. The presiding officer may limit the time for 
each presentation so that all interested persons appearing at each 
hearing have an opportunity to participate. Each hearing may be 
terminated at any time if all persons desiring to speak have been 
heard.
    Registration for the hearings may be accomplished by registering 
with the presiding officer between 8:30 a.m. and 9 a.m. on the day of 
the hearing. Persons who wish to speak at a hearing will be asked to 
sign in with their name and organization to establish a record for the 
hearing. We ask that anyone who reads a statement provide two copies to 
the presiding officer at the hearing. Those who wish to form a panel to 
present their views will be asked to provide the name of each member of 
the panel and the organizations the panel members represent.
    Persons or panels wishing to speak at one or both of the public 
hearings may register in advance by phone or e-mail. Persons wishing to 
register by phone should call the Regulatory Analysis and Development 
voice mail at (301) 734-4339. Callers must leave a message clearly 
stating (1) the location of the hearing the registrant wishes to speak 
at, (2) the registrant's name and organization, and, if registering for 
a panel, (3) the name of each member of the panel and the organization 
each panel member represents. Persons wishing to register by e-mail 
must send an e-mail with the same information described above to 
[email protected]. Please write ``Public Hearing Registration'' in 
the subject line of your e-mail. Advance registration for the Petaluma, 
CA, hearing must be received by 3 p.m. on Monday, February 25, 2002. 
Advance registration for the Riverdale, MD, hearing must be received by 
3 p.m. on Tuesday, March 26, 2002.
    If you require special accommodations, such as a sign language 
interpreter, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT.

[[Page 6828]]

Parking and Security Procedures at the USDA Center

    Please note that a fee of $2.25 is required to enter the parking 
lot at the USDA Center. The machine accepts $1 bills and quarters.
    Upon entering the building, visitors should inform security 
personnel that they are attending the Phytophthora ramorum quarantine 
public hearing. Identification is required. Security personnel will 
direct visitors to the registration tables located outside of 
Conference Rooms C and D on the first floor. Registration upon arrival 
is necessary for all participants, including those who have registered 
to speak in advance. Visitor badges must be worn throughout the day.

Background

    Phytophthora ramorum is a harmful fungus that has been found in 
arrowwood (Viburnum x bodnantense), big leaf maple (Acer macrophyllum), 
black oak (Quercus kelloggii), California bay laurel (Umbellularia 
californica), California buckeye (Aesculus californhica), California 
coffeeberry (Rhamnus californica), California honeysuckle (Lonicera 
hispidula), coast live oak (Quercus agrifolia), huckleberry (Vaccinium 
ovatum), madrone (Arbutus menziesii), manzanita (Arctostaphylos spp.), 
rhododendron (Rhododendron spp., including azalea), Shreve's oak 
(Quercus parvula var. shrevei), tanoak (Lithocarpus densiflorus), and 
Toyon (Heteromeles arbutifolia).
    According to available research and observations, similar symptoms 
of infection with P. ramorum have been identified in tanoak, coast live 
oak, black oak and Shreve's oak. Although symptoms are similar in these 
species, their appearance, both chronologically and physically, varies 
somewhat. In tanoak, leaf symptoms are usually the first to appear, as 
new growth may droop or turn yellow to brown. In coast live oak, black 
oak, and Shreve's oak, the earliest symptom is the appearance of a 
bleeding canker; burgundy-red to tar-black thick sap oozes on the bark 
surface. Similar bleeding, though less viscous, has been observed on 
tanoak, although tanoak may not show the bleeding symptom at all. This 
bleeding is a response to infection with P. ramorum, and is typically 
found from the root crown (the area where the trunk fans out to the 
roots) to a height of 6 feet. Bleeding has occasionally been observed 
at greater heights. Oaks showing these symptoms typically die within a 
few months of the appearance of symptoms. Other hosts are not typically 
killed by P. ramorum. Symptoms of infection in other hosts include leaf 
spotting and stem canker infections.
    Since its initial discovery in Marin County, CA, in 1995, P. 
ramorum has been confirmed to exist in nine additional counties along 
or near the northern California coastline: Alameda, Mendocino, 
Monterey, Napa, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma. 
P. ramorum also has been found in a portion of Curry County, OR. P. 
ramorum, which has been commonly referred to as Sudden Oak Death or Oak 
Mortality Syndrome, has caused the death of thousands of mature oaks in 
these counties, and there is presently no known treatment for infected 
plants that kills the fungus but allows plants to survive.
    Infected plants and plant products that move interstate could serve 
as a pathway for the introduction of P. ramorum to other areas of the 
United States. It is unclear how P. ramorum spreads, though available 
research suggests it is spread by water, soil, and infected plant 
material. It is also possible that P. ramorum spreads by air. 
Regardless, the movement of infected plants and plant products of the 
P. ramorum hosts listed earlier in this document is believed to provide 
a pathway for the spread of P. ramorum.
    As explained below, the States of California and Oregon have 
restricted the intrastate movement of certain articles from infested 
areas to prevent the spread of P. ramorum within California and Oregon. 
However, Federal regulations are necessary to restrict the interstate 
movement of certain articles from the infested area to prevent the 
spread of P. ramorum to noninfested areas of the United States.
    We are amending the ``Domestic Quarantine Notices'' in 7 CFR part 
301 by adding a new subpart, ``Phytophthora Ramorum'' (Secs. 301.92 
through 301.92-10, referred to below as the regulations). The 
regulations, which are described below, quarantine portions of the 
States of California and Oregon because of P. ramorum and restrict the 
interstate movement of regulated and restricted articles from 
quarantined areas. The interstate movement of regulated and restricted 
articles from nonquarantined areas is not restricted under this interim 
rule.

Section 301.92--Restrictions on the Interstate Movement of Regulated 
Articles

    Section 301.92 prohibits the interstate movement of regulated and 
restricted articles from quarantined areas except in accordance with 
the regulations.

Section 301.92-1--Definitions

    Section 301.92-1 contains definitions of the following terms: 
Administrator, Animal and Plant Health Inspection Service, bark chips, 
certificate, compliance agreement, departmental permit, duff, firewood, 
forest stock, inspector, interstate, log, moved (move, movement), 
mulch, nursery stock, person, Plant Protection and Quarantine, 
quarantined area, regulated article, restricted article, soil, and 
State.

Section 301.92-2--Regulated and Restricted Articles

    Certain articles present a significant risk of spreading P. ramorum 
if they are moved from quarantined areas without restrictions. We call 
these articles regulated and restricted articles. Regulated articles 
may be moved interstate from quarantined areas under certificates 
issued by an inspector in accordance with Sec. 301.92-5. Restricted 
articles, however, may only be moved interstate by USDA under 
departmental permits issued in accordance with Sec. 301.92-4(a)(2).
    Paragraph (a) of Sec. 301.92-2 lists soil and nursery stock (except 
acorns and seeds), unprocessed wood and wood products including 
firewood, logs, lumber, wreaths, garlands, and greenery of the 
following species as regulated articles:
     Arrowwood (Viburnum x bodnantense);
     Big leaf maple (Acer macrophyllum);
     Black oak (Quercus kelloggii);
     California bay laurel (Umbellularia californica);
     California buckeye (Aesculus californica);
     California coffeeberry (Rhamnus californica);
     California honeysuckle (Lonicera hispidula);
     Coast live oak (Quercus agrifolia);
     Huckleberry (Vaccinium ovatum);\1\
     Madrone (Arbutus menziesii);
     Manzanita (Arctostaphylos manzanita);
     Rhododendron (Rhododendron spp., including azalea);
     Shreve's oak (Quercus parvula var. shrevei);
     Tanoak (Lithocarpus densiflorus); and
     Toyon (Heteromeles arbutifolia).
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    \1\ Fruits of huckleberry are not regulated articles.
---------------------------------------------------------------------------

    Paragraph (b) of the regulations lists bark chips, forest stock, 
and mulch of the species of plants listed above as restricted articles. 
Again, restricted articles may only be moved interstate by USDA under a 
departmental permit

[[Page 6829]]

issued in accordance with Sec. 301.92-4(a)(2).
    The regulations in Sec. 301.92-2 also provide that any other 
product or article that an inspector determines to present a risk of 
spreading P. ramorum can also be considered a regulated or restricted 
article if the inspector notifies the person in possession of the 
product or article that it is subject to the restrictions in the 
regulations. This provision is necessary to ensure that APHIS is able 
to regulate the movement of all articles, especially newly identified 
hosts of P. ramorum not listed in the regulations, that pose a risk of 
spreading P. ramorum if moved without restriction.

Section 301.92-3--Quarantined Areas

    Paragraph (a) of Sec. 301.92-3 provides the criteria for the 
inclusion of States, or portions of States, in the list of quarantined 
areas. Under these criteria, any State or portion of a State in which 
P. ramorum is found by an inspector, or in which the Administrator has 
reason to believe that P. ramorum is present, will be listed as a 
quarantined area. These criteria also provide that an area will be 
designated as a quarantined area when the Administrator considers it 
necessary due to the area's inseparability for quarantine enforcement 
purposes from localities in which P. ramorum has been found.
    Paragraph (a) of Sec. 301.92-3 also provides that we will designate 
less than an entire State as a quarantined area only if we determine 
that the State has adopted and is enforcing restrictions on the 
intrastate movement of regulated articles that are equivalent to those 
imposed on the interstate movement of regulated articles and that the 
designation of less than the entire State as a quarantined area will 
prevent the interstate spread of P. ramorum. These determinations would 
indicate that infestations are confined to the quarantined areas and 
eliminate the need for designating an entire State as a quarantined 
area.
    We have determined that it is not necessary to designate the entire 
States of California and Oregon as quarantined areas. The State of 
California has adopted restrictions on the intrastate movement of 
regulated and restricted articles from the following counties: Alameda, 
Marin, Mendocino, Monterey, Napa, San Mateo, Santa Clara, Santa Cruz, 
Solano, and Sonoma.
    The State of Oregon has adopted restrictions on the intrastate 
movement of regulated and restricted articles from a 9-square-mile area 
near the Brookings area of Curry County.
    P. ramorum has not been found in any other areas of California or 
Oregon besides those listed above, and California and Oregon have 
adopted and are enforcing restrictions on the intrastate movement of 
regulated and restricted articles from those areas that are 
substantially the same as those we are imposing on the interstate 
movement of regulated and restricted articles.
    The State of California is not attempting to eradicate P. ramorum 
from the State, and has quarantined any county where P. ramorum has 
been confirmed to exist, regardless of the distribution of P. ramorum 
within that county. APHIS is also using this criterion in setting the 
P. ramorum quarantine boundaries for the State of California.
    Oregon is attempting to eradicate P. ramorum from the area in Curry 
County where it has been detected. The quarantined area covers 9 square 
miles in the Brookings area of Curry County. All boundaries of the 
quarantined area are at least \1/2\ to 1 mile from any P. ramorum 
detection site. APHIS believes that this distance is sufficient to 
ensure that P. ramorum is not spread to areas outside the quarantined 
area. The boundary lines may vary due to factors such as the location 
of P. ramorum host material and the use of clearly identifiable lines 
for the boundaries. The boundaries themselves are described in the rule 
portion of this document.
    Paragraph (b) of Sec. 301.92-3 provides that we may temporarily 
designate any nonquarantined area in a State as a quarantined area when 
we determine that the nonquarantined area meets the criteria for 
designation as a quarantined area described in Sec. 301.92-3(a). In 
such cases, we will give the owner or person in possession of the area 
a copy of the regulations along with written notice of the area's 
temporary designation as a quarantined area, after which time the 
interstate movement of any regulated or restricted article from the 
area will be subject to the regulations. This provision is necessary to 
prevent the spread of P. ramorum during the time between the detection 
of the disease and the time a document quarantining the area can be 
made effective and published in the Federal Register. In the event that 
an area's designation as a temporary quarantined area is terminated, we 
will provide written notice of that termination to the owner or person 
in possession of the area as soon as is practicable.

Section 301.92-4--Conditions Governing the Interstate Movement of 
Regulated and Restricted Articles from Quarantined Areas

    This section provides that regulated articles may be moved 
interstate from quarantined areas if they are accompanied by a 
certificate issued in accordance with Secs. 301.92-5 and 301.92-8, and 
provided that they are moved through the quarantined area without 
stopping except for refueling, rest stops, emergency repairs, and for 
traffic conditions, such as traffic lights or stop signs.
    Additionally, this section provides that restricted articles may be 
moved interstate from quarantined areas by APHIS or the Department for 
experimental or scientific purposes. Such articles must be moved in 
accordance with a departmental permit issued by the Administrator, 
under conditions specified on the permit to prevent the spread of P. 
ramorum.
    Regulated or restricted articles that are moved from outside 
quarantined areas and that are accompanied by a waybill that indicates 
the point of origin may be moved interstate through a quarantined area 
without a certificate or a departmental permit. The articles must also 
be moved from outside the quarantined area through the quarantined area 
without stopping (except for refueling, rest stops, emergency repairs, 
and for traffic conditions such as traffic lights and stop signs), and 
the articles must not be unpacked or unloaded in the quarantined area.

Section 301.92-5--Issuance and Cancellation of Certificates

    Certificates are issued for regulated articles when an inspector 
finds that, because of certain conditions, there is no disease risk 
associated with moving a regulated article from a quarantined area. 
Regulated articles accompanied by a certificate may be moved interstate 
without further restrictions. Section 301.92-5(a) provides that a 
certificate will be issued by an inspector for the movement of 
regulated articles if the inspector determines that any one of the 
following conditions have been met:
     The regulated articles have been treated under the 
direction of an inspector in accordance with Sec. 301.92-10 of this 
subpart.
     The regulated articles are wood products such as firewood, 
logs, or lumber that are free of bark.
     The regulated article is soil that has not been in direct 
physical contact with any article infected with P. ramorum,

[[Page 6830]]

and from which all duff \2\ has been removed.
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    \2\ Duff is decaying plant material including leaf litter, green 
waste, stem material, bark, and any other plant material that, upon 
visual inspection, does not appear to have completely decomposed 
into soil.
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     The regulated articles are articles of nursery stock that 
(1) are shipped from a nursery or premises in a quarantined area that 
is inspected annually by an inspector for P. ramorum in accordance with 
the inspection and sampling protocol described in Sec. 301.92-11(a), 
and that has been found free of P. ramorum; (2) are part of a shipment 
of nursery stock that has been inspected immediately prior to 
interstate movement in accordance with Sec. 301.92-11(b), and that has 
been found free of P. ramorum; (3) have been kept separate from 
regulated articles not inspected between the time of the inspection and 
the time of interstate movement; and (4) have not been grown in, or 
moved from, other areas within a quarantined area except nurseries or 
premises that have been inspected for P. ramorum in accordance with 
this section; and that have been found free of P. ramorum.
    The regulations in Sec. 301.92-5(a) also require that inspectors 
may only issue certificates for the interstate movement of regulated 
articles if the inspector determines that the regulated articles: (1) 
Are to be moved in compliance with any additional emergency conditions 
the Administrator may impose under section 414 of the Plant Protection 
Act (7 U.S.C. 7714)\3\ to prevent the spread of P. ramorum, and (2) are 
eligible for unrestricted movement under all other Federal domestic 
plant quarantines and regulations applicable to the regulated article.
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    \3\ Sections 414, 421, and 434 of the Plant Protection Act (7 
U.S.C. 7714, 7731, and 7754) provide that the Secretary of 
Agriculture may, under certain conditions, hold, seize, quarantine, 
treat, apply other remedial measures to destroy or otherwise dispose 
of any plant, plant pest, plant product, article, or means of 
conveyance that is moving, or has moved into or through the United 
States or interstate if the Secretary has reason to believe the 
article is a plant pest or is infested with a plant pest at the time 
of movement.
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    We have included a footnote that provides an address for securing 
the addresses and telephone numbers of the local Plant Protection and 
Quarantine offices at which services of inspectors may be requested. We 
have also included a footnote that explains that the Secretary of 
Agriculture can, under the Plant Protection Act, take emergency actions 
to seize, quarantine, treat, destroy, or apply other remedial measures 
to articles that are, or that he or she has reason to believe are, 
infested or infected by or contain plant pests.
    Paragraph (b) of Sec. 301.92-5 allows any person who has entered 
into and is operating under a compliance agreement to issue a 
certificate for the interstate movement of a regulated article after an 
inspector has determined that the article is eligible for a certificate 
under Sec. 301.92-5(a).
    Also, Sec. 301.92-5(c) contains provisions for the withdrawal of a 
certificate by an inspector if the inspector determines that the holder 
of the certificate has not complied with conditions for the use of the 
document. This section also contains provisions for notifying the 
holder of the reasons for the withdrawal and for holding a hearing if 
there is any conflict concerning any material fact in the event that 
the person wishes to appeal the cancellation.

Section 301.92-6--Compliance Agreements and Cancellation

    Section 301.92-6 provides for the issuance and cancellation of 
compliance agreements. Persons who enter into compliance agreements 
with APHIS are allowed to self-certify that certain regulated articles 
meet APHIS requirements for interstate movement. Compliance agreements 
are provided in order to facilitate the interstate movement of certain 
regulated articles while still minimizing the risk that P. ramorum 
could spread interstate. A compliance agreement will be issued when an 
inspector has determined that the person requesting the compliance 
agreement is knowledgeable regarding the requirements of the 
regulations and the person has agreed to comply with those 
requirements. Since movements of nursery stock are dependent on 
inspection or testing by an inspector, compliance agreements will not 
be issued to persons interested in moving nursery stock interstate. 
Inspectors will issue certificates for the interstate movement of 
regulated articles of nursery stock after they inspect, and if 
necessary, test regulated articles of nursery stock and determine that 
they are free of P. ramorum.
    Section 301.92-6 contains a footnote that explains how compliance 
agreements may be arranged. Section 301.92-6 also provides that an 
inspector may cancel the compliance agreement upon finding that a 
person who has entered into the agreement has failed to comply with any 
of the provisions of the regulations. The inspector will notify the 
holder of the compliance agreement of the reasons for cancellation and 
offer an opportunity for a hearing to resolve any conflicts of material 
fact in the event that the person wishes to appeal the cancellation.

Section 301.92-7--Assembly and Inspection of Regulated Articles

    Section 301.92-7 provides that any person (other than a person 
authorized to issue certificates under Sec. 301.92-5(b)) who desires a 
certificate to move regulated articles must request, at least 14 days 
before the desired interstate movement, that an inspector issue a 
certificate. The regulated articles must be assembled in a place and 
manner directed by the inspector. These provisions are necessary to 
ensure that persons desiring inspection services can obtain them before 
the intended movement date.

Section 301.92-8--Attachment and Disposition of Certificates

    Section 301.92-8 requires the certificate issued for movement of 
the regulated article to be attached, during the interstate movement, 
to the regulated article, or to a container carrying the regulated 
article, or to the accompanying waybill. Further, the section requires 
that the carrier must furnish the certificate to the consignee listed 
on the certificate upon arrival at the location provided on the 
certificate. These provisions are necessary for enforcement purposes.

Section 301.92-9--Costs and Charges

    Section 301.92-9 explains the APHIS policy that the services of an 
inspector that are needed to comply with the regulations are provided 
without cost between 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays, to persons requiring those services, but that we will 
not be responsible for any other costs or charges (such as overtime 
costs for inspections conducted at times other than between 8 a.m. to 
4:30 p.m., Monday through Friday, except holidays).

Section 301.92-10--Treatments

    Section 301.92-10 lists treatments that qualify soil and certain 
regulated articles for interstate movement with a certificate, as 
provided in Sec. 301.92-5(a)(1)(i).
    Under paragraph (a), soil may be heat-treated to a temperature of 
at least 180  deg.F for 30 minutes in the presence of an inspector.\4\
---------------------------------------------------------------------------

    \4\ Soil may also be moved interstate without heat treatment if 
it meets the requirements in Sec. 301.92-5(a)(1)(iii) or (iv).
---------------------------------------------------------------------------

    Under paragraph (b), wreaths, garlands, and greenery of arrowwood 
(Viburnum  x  bodnantense), big leaf maple (Acer macrophyllum), black 
oak (Quercus kelloggii), California bay laurel (Umbellularia 
californica), California buckeye (Aesculus californica),

[[Page 6831]]

California coffeeberry (Rhamnus californica), California honeysuckle 
(Lonicera hispidula), coast live oak (Quercus agrifolia), huckleberry 
(Vaccinium ovatum), madrone (Arbutus menziesii), manzanita 
(Arctostaphylos spp.), rhododendron (Rhododendron spp., including 
azalea), Shreve's oak (Quercus parvula var. shrevei), tanoak 
(Lithocarpus densiflorus), and Toyon (Heteromeles arbutifolia) may be 
dipped for 1 hour in water that is held at a temperature of at least 
160  deg.F.

Section 301.92-11--Inspection and Sampling Protocol

    Section 301.92-11 describes the inspection and sampling protocol 
that must be followed by nurseries moving regulated articles of nursery 
stock interstate from quarantined areas. Under the regulations, 
regulated articles of nursery stock will be subject to two kinds of 
inspections: (1) Annual inspection and sampling of regulated articles 
of nursery stock contained in a nursery, and
    (2) inspection of individual interstate shipments of nursery stock 
and testing of symptomatic plants prior to interstate movement of the 
shipment from the quarantined area.

Annual Nursery Inspections

    For an annual nursery inspection, an inspector must visually 
inspect regulated articles of nursery stock for symptoms of P. ramorum. 
If the nursery contains 100 or fewer regulated articles, an inspector 
will inspect each regulated article. If the nursery contains more than 
100 regulated articles, an inspector will inspect 100 regulated 
articles and at least 2 percent of the number of regulated articles 
contained in the nursery that exceeds 100. The regulated articles to be 
inspected will be randomly selected from throughout the nursery.
    If symptomatic plants are found upon inspection, the inspector will 
collect at least one sample per symptomatic plant. If fewer than 40 
symptomatic plants are found in a nursery during an inspection, the 
inspector must collect samples from nonsymptomatic regulated articles 
of nursery stock so that the total number of sampled plants is at least 
40. Samples must then be labeled and sent for testing to a laboratory 
approved by APHIS.
    If any regulated articles within a nursery are found to be infected 
with P. ramorum, the nursery will be prohibited from moving regulated 
articles interstate until such time as an inspector can determine that 
the nursery is free of P. ramorum.

Inspections of Individual Interstate Shipments

    For an inspection of a shipment of regulated articles of nursery 
stock, an inspector must visually inspect the nursery stock for 
symptoms of P. ramorum. If the shipment contains 100 or fewer regulated 
articles, an inspector will inspect each regulated article. If the 
shipment contains more than 100 regulated articles, an inspector will 
inspect 100 regulated articles and at least 2 percent of the number of 
regulated articles contained in the shipment that exceeds 100. The 
regulated articles to be inspected will be randomly selected.
    If symptomatic plants are found upon inspection, the inspector must 
collect at least one sample per symptomatic plant, and one sample per 
regulated article of nursery stock that is in close proximity to, or 
that has had physical contact with a symptomatic plant. Samples must be 
labeled and sent for testing to a laboratory approved by APHIS, and 
must be found free of P. ramorum prior to the interstate movement of 
any regulated articles contained in the shipment.
    If any plants intended for interstate movement are found to be 
infected with P. ramorum, the nursery from which they originate will be 
prohibited from moving regulated articles interstate until such as time 
as an inspector can determine that the nursery is free of P. ramorum.

Request for Information

    As stated earlier in this document, there is much that is unknown 
about P. ramorum. In this rule, APHIS has endeavored to regulate the 
movement of articles that could cause P. ramorum to spread to 
unaffected areas based on the best scientific evidence available to us 
at this time. We invite the public to submit any information that 
supports or contradicts our regulatory strategy, including:
     Evidence demonstrating whether contaminated soil provides 
a viable or likely pathway for the spread of, or infection of natural 
hosts by, P. ramorum.
     Evidence demonstrating whether debarked wood provides a 
viable or likely pathway for the spread of, or infection of natural 
hosts by, P. ramorum.
     Evidence demonstrating whether acorns, seeds, or fruits of 
host plants are naturally infected by P. ramorum or carry P. ramorum, 
and whether acorns, seeds, or fruits of host plants provide viable or 
likely pathways for the spread of, or infection of natural hosts by, P. 
ramorum.
     Comments on the inspection and sampling requirements for 
nurseries, including comments providing a scientific basis for a longer 
or shorter inspection cycle, or an alternative sampling protocol.
     Data related to the accuracy, specificity, ease of use, 
and cost effectiveness of tests that can be used to detect P. ramorum 
on nursery stock of host plants.
     Evidence demonstrating whether certain treatments are 
effective in eliminating P. ramorum infection in regulated articles.

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent P. 
ramorum from spreading to noninfested areas of the United States. Under 
these circumstances, the Administrator has determined that prior notice 
and opportunity for public comment are contrary to the public interest 
and that there is good cause under 5 U.S.C. 553 for making this rule 
effective less than 30 days after publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule as a result of the comments.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    In accordance with 5 U.S.C. 603, we have performed an initial 
regulatory flexibility analysis, which is set out below, regarding the 
economic effects of this interim rule on small entities. Based on the 
information we have, there is no basis to conclude that adoption of 
this interim rule would result in any significant economic effect on a 
substantial number of small entities. However, we do not currently have 
all of the data necessary for a comprehensive analysis of the effects 
of this interim rule on small entities. Therefore, we are inviting 
comments on potential effects. In particular, we are interested in 
determining the number and kind of small entities that may incur 
benefits or costs from the implementation of this interim rule.

[[Page 6832]]

    The Plant Protection Act (7 U.S.C. 7701-7772) authorizes the 
Secretary of Agriculture to prohibit or restrict the interstate 
movement of any plant, plant product, article, or means of conveyance 
if the Secretary determines that the prohibition or restriction is 
necessary to prevent the dissemination of a plant pest within the 
United States.
    As stated earlier in this document, Phytophthora ramorum is known 
to infect arrowwood (Viburnum  x  bodnantense), big leaf maple (Acer 
macrophyllum), black oak (Quercus kelloggii), California bay laurel 
(Umbellularia californica), California buckeye (Aesculus califorica), 
California coffeeberry (Rhamnus californica), California honeysuckle 
(Lonicera hispidula), coast live oak (Quercus agrifolia), huckleberry 
(Vaccinium ovatum), madrone (Arbutus menziesii), manzanita ( 
Arctostaphylos spp.), rhododendron (Rhododendron spp., including 
azalea), Shreve's oak (Quercus parvula var. shrevei), tanoak 
(Lithocarpus densiflorus), and Toyon (Heteromeles arbutifolia). P. 
ramorum has been confirmed to exist in 10 counties along or near the 
northern California coastline: Alameda, Marin, Mendocino, Monterey, 
Napa, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma. P. 
ramorum also has been found in a portion of Curry County, OR.
    This interim rule is issued to quarantine portions of the States of 
California and Oregon where P. ramorum is confirmed to exist, and 
regulate the movement of certain host articles to prevent the risk of 
spread of P. ramorum to other noninfested areas in the United States. 
California is not attempting to eradicate P. ramorum from the 10 
counties in the State where the disease is confirmed to exist. Oregon 
is attempting to eradicate the disease from an area in Curry County, 
the only county where P. ramorum is known to exist in the State. Both 
States have restricted the intrastate movement of certain articles from 
infested areas to prevent the spread of P. ramorum within California 
and Oregon. A Federal quarantine of the affected counties, comprising 
approximately 5 percent of the area of the State of California, and a 
portion of one county in Oregon is necessary to protect oak forests and 
urban tree resources across the United States.
    P. ramorum is apparently capable of killing healthy, mature black 
oaks (Quercus kelloggii), coast live oak (Quercus agrifolia), and 
tanoaks (Lithocarpus densiflorus). Quercus spp. are considered the most 
important and widespread of the hardwood trees in the north temperate 
zone, consisting of about 300 species. The United States has about 58 
oak species of tree size and 10 species that are classified as shrubs. 
If other Quercus or Lithocarpus spp. in the Eastern deciduous forests 
prove susceptible to the pathogen under natural environmental 
conditions, the economic impact could be significant. The commercial 
hardwood timber production in the United States alone is worth over $30 
billion. Should the disease become widespread, some countries would 
likely place restrictions on U.S. exports of oak and other hardwood 
products which generated nearly $3 billion in revenue in 2000.
    The pathogen has also been isolated from Rhododendron spp., 
arrowwood (Viburnum  x  bodnantense), and in huckleberry (Vaccinium 
spp.), the genus of which includes the commercially important 
blueberries and cranberries. P. ramorum causes leaf spotting and twig 
dieback on these species, and in severe cases in huckleberry, can kill 
the plant. Nursery stock is a probable route of long distance spread of 
the disease since spores that give rise to P. ramorum can be dispersed 
by soil, or infected shoots, and foliage. Federal restrictions on 
nursery stock is necessary as Rhododendron spp. and viburnum are 
important components of the ornamental nursery trade. Additionally, two 
of the host species of oak are sold as nursery stock and are used as 
ornamentals in landscaping. The importance of the Federal quarantine 
and restrictions is further underscored by the fact that there is 
currently no known treatment for infected plants that kills the fungus 
but allows plants to survive. Federal action is necessary to protect 
the U.S. nursery industry whose sales in 1997 was estimated at almost 
$11 billion.

Impact of the Interim Rule

    Under the interim rule, nursery stock moving interstate from the 
quarantined area must be accompanied by a certificate stating that, 
among other things, the stock (1) originates from a nursery that has 
been inspected for P. ramorum on an annual basis and that has been 
found free, and (2) is part of shipment of nursery stock that has been 
inspected for P. ramorum prior to interstate movement and that has been 
found free. The impact of the restriction on interstate movement of 
nursery stock would depend on the amount of host products that are to 
be moved outside the quarantined area. The 1997 Census of Agriculture 
data show that in that year, there were some 1,214 nurseries in the 10 
affected counties in California which accounted for 24 percent of the 
number of nurseries and 27 percent of the value of nursery sales in 
California, or 5.5 percent of total U.S. sales of nursery stock in 
1997. There were 7 nurseries in Curry County, OR, which comprised less 
than 0.2 percent of the number of nurseries, and 0.15 percent of sales. 
Not all of the 1,214 nurseries in the 10 California counties, however, 
are expected to be affected by this rule. Some indication of the impact 
may be surmised from the preliminary results of a survey jointly 
conducted by the California Department of Food and Agriculture and 
USDA/APHIS, between January and March 2001. The respondents to the 
survey were 517 wholesale and retail establishments in 6 counties in 
California (no survey was available for Oregon). These businesses 
include facilities that sold lumber, firewood cutters and dealers, and 
nurseries involved in propagation and sale of oaks, rhododendrons, and 
other host products.
    Approximately 234, or 45 percent, of the businesses surveyed had 
contact with host materials. The total sales value of these businesses 
amounted to some $7 million. A large amount of the aggregate receipts 
(nearly 85 percent) were derived from the sale of azaleas and 
rhododendron. The next largest category of sales is from oak firewood 
(12.7 percent), followed by oak nursery stock (2.5 percent), and mulch 
and chips from oak (0.17 percent).
    This interim rule may impact some of the wholesale nurseries who 
move rhododendrons and oak nursery stock to nurseries outside the 
State. Nurseries that do not meet APHIS's requirements must divert 
their products to markets within the quarantined area, or if a market 
cannot be found, lose sales of that commodity. Although some 
information is available from the survey on the number of businesses 
who have contact with host materials (234 establishments), and the 
relatively large amount of receipts earned from sales of Rhododendron 
spp. (including azaleas) is also known, the amount of these hosts that 
are intended for interstate shipment is unknown. Thus, a conclusive 
statement cannot be made about the extent of the impact due to the 
movement restriction. APHIS invites comments from members of the public 
who may be impacted by the restriction on interstate movement of 
Rhododendron spp.
    Besides rhododendrons and azaleas, wholesale nurseries within the 
affected area that sell oak seedlings and trees to nurseries outside 
the State would also be affected by the rule. The proportion of the 234 
establishments that would be affected by the restrictions on movement 
of oak seedlings is unknown.

[[Page 6833]]

However, trade of seedlings is primarily on one type of host species, 
the coast live oak, which is not believed to be shipped interstate to a 
significant degree. We therefore expect that the restriction on the 
movement of oak nursery stock to be small.
    Under this rule, producers in the quarantined counties who wish to 
sell wreaths, garlands, or greenery outside their counties are required 
to treat these products with hot water. The cost of hot water treatment 
is not known, and we invite public comments on treatment costs.
    The economic effects that could result from the requirement that 
unprocessed wood or wood products (including firewood, logs, lumber, 
and other wood products) be debarked prior to interstate movement are 
unknown. We invite public comments on any costs to affected entities 
that may result from the debarking requirements of this rule.
    The businesses surveyed that are involved in firewood distribution, 
from cutters to wholesalers to retailers, are generally small entities 
who sell primarily intrastate. The economic effects of the rule on 
entities involved in the firewood business is expected to be small as 
their sales are believed to be largely to markets within the 
quarantined area.
    The effects of this rule on persons moving soil interstate from 
quarantined areas, and persons who wish to move forest stock (non-
nursery grown trees, shrubs, etc.) interstate is also unknown at this 
time. We invite public comments on these potential effects.
    In general, the economic effects of this rule could be small 
because many host products are sold primarily within the affected 
States, often within quarantined areas. Consequently, State regulations 
on intrastate movement would likely have a larger impact on business 
within the affected counties than APHIS's quarantine and regulations on 
interstate movement.

Regulatory Flexibility Analysis

    The Regulatory Flexibility Act requires that APHIS specifically 
consider the economic impact of the interim rule on small entities. The 
Small Business Administration (SBA) has established size criteria for 
determining which economic entities meet the definition of a small 
firm. The small entity size standard for nursery and tree production 
(NAICS 111421) is $750,000 or less in annual receipts; for forest 
nurseries and gathering of forest products (NAICS 113210) is $5,000,000 
or less in annual receipts. The SBA classifies logging operations 
(NAICS 113310), as well as sawmills, and wood product manufacturers as 
small entities if fewer than 500 people are employed.
    Based on the above criteria, the majority of nurseries in the 
affected counties of California and Oregon would likely be classified 
as small entities. The impact of the rule on businesses handling host 
materials, whether small or large, would depend on the amount of 
regulated articles moved in interstate commerce that would have to meet 
APHIS's requirements as a condition of movement. Some businesses may 
incur additional costs for hot water treatment or debarking.
    Preliminary results from a survey of businesses in 6 of the 10 
affected counties in California indicate that host materials worth over 
$7 million in annual sales may be potentially affected by the interim 
rule. The actual impact (that is, the number of affected establishments 
and the amount of additional costs or losses incurred) is not known. 
The negative impact of this interim rule could be small as a majority 
of host products is sold primarily within the regulated counties in the 
States. Consequently, State regulations on intrastate movement would 
likely have a larger impact on businesses within the affected counties 
than APHIS's regulations on interstate movement. The public is invited 
to submit information regarding the percentage of sales of regulated 
articles that moves intra-county, inter-county, and interstate.
    The economic effects of this rule are expected to be offset by 
large benefits to the public in terms of preventing disease spread and 
harm to forest and urban resources in unaffected regions across the 
country.

Executive Order 12372

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

Executive Order 12988

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

Paperwork Reduction Act

    In accordance with section 3507(j) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection and 
recordkeeping requirements included in this interim rule have been 
submitted for emergency approval to the Office of Management and Budget 
(OMB). OMB has assigned control number 0579-0191 to the information 
collection and recordkeeping requirements.
    We plan to request continuation of that approval for 3 years. 
Please send written comments on the 3-year approval request to the 
following addresses: (1) Office of Information and Regulatory Affairs, 
OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) 
Docket No. 01-054-1, Regulatory Analysis and Development, PPD, APHIS, 
Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. 
Please state that your comments refer to Docket No. 01-054-1 and send 
your comments within 60 days of publication of this rule.
    This interim rule quarantines portions of the States of California 
and Oregon because of the presence of P. ramorum and restricts the 
interstate movement of regulated articles from quarantined areas. Its 
implementation will require us to engage in certain information 
collection activities, in that regulated articles may not be moved 
interstate from quarantined areas unless they are accompanied by a 
certificate. A certificate may be issued by an inspector (i.e., an 
APHIS employee or other person authorized by the APHIS Administrator to 
enforce the regulations) or by a person who has entered into a written 
compliance agreement with APHIS. We are soliciting comments from the 
public concerning our information collection and recordkeeping 
requirements. These comments will help us:
    (1) Evaluate whether the information collection is necessary for 
the proper performance of our agency's functions, including whether the 
information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
information collection, including the validity of the methodology and 
assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information

[[Page 6834]]

is estimated to average 0.07372 hours per response.
    Respondents: Persons engaged in growing, processing, handling, or 
moving regulated articles.
    Estimated annual number of respondents: 387.
    Estimated annual number of responses per respondent: 43.002.
    Estimated annual number of responses: 16,642.
    Estimated total annual burden on respondents: 1,227 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.


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

PART 301--DOMESTIC QUARANTINE NOTICES

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

    Authority: 7 U.S.C. 166, 7711, 7712, 7714, 7731, 7735, 7751, 
7752, 7753, and 7754; 7 CFR 2.22, 2.80, and 371.3.

    Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also 
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 
U.S.C. 1421 note).

    2. Part 301 is amended by adding a new ``Subpart--Phytophthora 
Ramorum,'' Secs. 301.92 through 301.92-10, to read as follows:
Subpart--Phytophthora Ramorum
Sec.
301.92   Restrictions on the interstate movement of regulated and 
restricted articles.
301.92-1   Definitions.
301.92-2   Regulated and restricted articles.
301.92-3   Quarantined areas.
301.92-4   Conditions governing the interstate movement of regulated 
and restricted articles from quarantined areas.
301.92-5   Issuance and cancellation of certificates.
301.92-6   Compliance agreements and cancellation.
301.92-7   Assembly and inspection of regulated articles.
301.92-8   Attachment and disposition of certificates.
301.92-9   Costs and charges.
301.92-10   Treatments.
301.92-11   Inspection and sampling protocol.

Subpart--Phytophthora Ramorum


Sec. 301.92  Restrictions on the interstate movement of regulated and 
restricted articles.

    No person may move interstate from any quarantined area any 
regulated or restricted article except in accordance with this 
subpart.\1\
---------------------------------------------------------------------------

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


Sec. 301.92-1  Definitions.

    Administrator. The Administrator, Animal and Plant Health 
Inspection Service, or any person authorized to act for the 
Administrator.
    Animal and Plant Health Inspection Service. The Animal and Plant 
Health Inspection Service (APHIS) of the United States Department of 
Agriculture.
    Bark chips. Bark fragments broken or shredded from a log or tree.
    Certificate. A document in which an inspector or person operating 
under a compliance agreement affirms that a specified regulated article 
meets the requirements of Sec. 301.92-5(a) of this subject and may be 
moved interstate to any destination.
    Compliance agreement. A written agreement between APHIS and a 
person engaged in growing, processing, handling, or moving regulated 
articles, wherein the person agrees to comply with this subpart.
    Departmental permit. A document issued by the Administrator in 
which he or she affirms that interstate movement of the regulated 
article identified on the document is for scientific or experimental 
purposes and that the regulated article is eligible for interstate 
movement in accordance with Sec. 301.92-4(a)(2) of this subpart.
    Duff. Decaying plant matter that includes leaf litter, green waste, 
stem material, bark, and any other plant material that, upon visual 
inspection, does not appear to have completely decomposed into soil.
    Firewood. Wood that has been cut, sawn, or chopped into a shape and 
size commonly used for fuel.
    Forest stock. All flowers, trees, shrubs, vines, scions, buds, 
fruit pits, or other seeds of fruit and ornamental trees or shrubs that 
are wild-grown, backyard-grown, or naturally occurring and do not meet 
the definition of nursery stock, and that are not located on a nursery 
premises.
    Inspector. Any employee of APHIS, the U.S. Department of 
Agriculture, or other person authorized by the Administrator to perform 
the duties required under this subpart.
    Interstate. From any State into or through any other State.
    Log. The bole of a tree; trimmed timber that has not been sawn 
further than to form cants.
    Lumber. Logs that have been sawn into boards, planks, or structural 
members such as beams.
    Moved (move, movement). Shipped, offered for shipment, received for 
transportation, transported, carried, or allowed to be moved, shipped, 
transported, or carried.
    Mulch. Bark chips, wood chips, wood shavings, or sawdust, or a 
mixture thereof, that could be used as a protective or decorative 
ground cover.
    Nursery stock. All greenhouse or field-grown florist's stock, 
trees, shrubs, vines, cuttings, grafts, scions, buds, fruit pits, and 
other seeds of fruit and ornamental trees or shrubs, and other plants 
and plant products for propagation, except field, vegetable, and flower 
seeds, bedding plants, and other herbaceous plants, bulbs, and roots.
    Person. Any association, company, corporation, firm, individual, 
joint stock company, partnership, society, or other entity.
    Plant Protection and Quarantine. Plant Protection and Quarantine, 
Animal and Plant Health Inspection Service, United States Department of 
Agriculture.
    Quarantined area. Any State, or any portion of a State, listed in 
Sec. 301.92-3(c) of this subpart or otherwise designated as a 
quarantined area in accordance with Sec. 301.92-3(b) of this subpart.
    Regulated article. Any article listed in Sec. 301.92-2(a) of this 
subpart.
    Restricted article. Any article listed in Sec. 301.92-2(b) of this 
subpart.
    Soil. Any non-liquid combination of organic and/or inorganic 
material in which plants can grow.
    State. The District of Columbia, Puerto Rico, the Northern Mariana 
Islands, or any State, territory, or possession of the United States.


Sec. 301.92-2  Regulated and restricted articles.

    (a) The following are regulated articles, and may be moved 
interstate from a quarantined area only if accompanied by a certificate 
issued in accordance with the regulations in this subpart:
    (1) Nursery stock (except acorns and seeds), unprocessed wood and 
wood products, and plant products, including firewood, logs, lumber, 
wreaths,

[[Page 6835]]

garlands, and greenery of arrowwood (Viburnum x bodnantense), big leaf 
maple (Acer macrophyllum), black oak (Quercus kelloggii), California 
bay laurel (Umbellularia californica), California buckeye (Aesculus 
californica), California coffeeberry (Rhamnus californica), California 
honeysuckle (Lonicera hispidula), coast live oak (Quercus agrifolia), 
huckleberry (Vaccinium ovatum) (except fruit), madrone (Arbutus 
menziesii), manzanita (Arctostaphylos spp.), rhododendron (Rhododendron 
spp., including azalea), Shreve's oak (Quercus parvula var. shrevei), 
tanoak (Lithocarpus densiflorus), and Toyon (Heteromeles arbutifolia).
    (2) Soil.
    (3) Any other product or article that an inspector determines to 
present a risk of spreading Phytophthora ramorum, if an inspector 
notifies the person in possession of the product or article that it is 
subject to the restrictions in the regulations.
    (b) The following are restricted articles, and may only be moved 
interstate from a quarantined area by the U.S. Department of 
Agriculture for experimental or scientific purposes, and only in 
accordance with the regulations in Sec. 301.92-4(a)(2) of this subpart:
    (1) Bark chips, forest stock, or mulch of arrowwood (Viburnum  x  
bodnantense), big leaf maple (Acer macrophyllum), black oak (Quercus 
kelloggii), California bay laurel (Umbellularia californica), 
California buckeye (Aesculus californica), California coffeeberry 
(Rhamnus californica), California honeysuckle (Lonicera hispidula), 
coast live oak (Quercus agrifolia), huckleberry (Vaccinium ovatum), 
madrone (Arbutus menziesii), manzanita (Arctostaphylos spp.), 
rhododendron (Rhododendron spp., including azalea), Shreve's oak 
(Quercus parvula var. shrevei), tanoak (Lithocarpus densiflorus), and 
Toyon (Heteromeles arbutifolia).
    (2) Any other product or article that an inspector determines to 
present a risk of spreading Phytophthora ramorum, if an inspector 
notifies the person in possession of the product or article that it is 
a restricted article.


Sec. 301.92-3  Quarantined areas.

    (a) Except as otherwise provided in paragraph (b) of this section, 
the Administrator will list as a quarantined area in paragraph (c) of 
this section each State, or each portion of a State, in which 
Phytophthora ramorum has been found by an inspector, in which the 
Administrator has reason to believe that Phytophthora ramorum is 
present, or that the Administrator considers necessary to quarantine 
because of its inseparability for quarantine enforcement purposes from 
localities in which Phytophthora ramorum has been found. Less than an 
entire State will be designated as a quarantined area only if the 
Administrator determines that:
    (1) The State has adopted and is enforcing restrictions on the 
intrastate movement of the regulated articles that are substantially 
the same as those imposed by this subpart on the interstate movement of 
regulated articles; and
    (2) The designation of less than the entire State as a quarantined 
area will prevent the interstate spread of Phytophthora ramorum.
    (b) The Administrator or an inspector may temporarily designate any 
nonquarantined area in a State as a quarantined area in accordance with 
paragraph (a) of this section. The Administrator will give a copy of 
this regulation along with a written notice for the temporary 
designation to the owner or person in possession of the nonquarantined 
area. Thereafter, the interstate movement of any regulated article from 
an area temporarily designated as a quarantined area will be subject to 
this subpart. As soon as practicable, this area will be added to the 
list in paragraph (c) of this section or the designation will be 
terminated by the Administrator or an inspector. The owner or person in 
possession of an area for which designation is terminated will be given 
notice of the termination as soon as practicable.
    (c) The following areas are designated as quarantined areas:

California

    Alameda County. The entire county.
    Marin County. The entire county.
    Mendocino County. The entire county.
    Monterey County. The entire county.
    Napa County. The entire county.
    San Mateo County. The entire county.
    Santa Clara County. The entire county.
    Santa Cruz County. The entire county.
    Solano County. The entire county.
    Sonoma County. The entire county.

Oregon

    Curry County. That portion of the county bounded by a line drawn 
as follows: Beginning in the northwest corner of sec. 17, T. 40 S., 
R. 13 W., then east along sec. 17 and 16, T. 40 S., R. 13 W., to 
sec. 16, T. 40 S., R. 13 W., then south along sec. 16, 21, 28, and 
33, T. 40 S., R. 13 W., to sec. 33, T. 40 S., R. 13 W., then west 
along sec. 33 and 32, T. 40 S., R. 13 W., to sec. 32, T. 40 S., R. 
13 W., then north along sec. 32 and 29, T. 40 S., R. 13 W., to the 
midway point of the western boundary of sec. 29, T. 40 S., R. 13 W., 
then west to the center of sec. 30, T. 40 S., R. 13 W., then north 
through sec. 30 and 19, T. 40 S., R. 13 W., to the center of sec. 
19, T. 40 S., R. 13 W., then east to the western boundary of sec. 
20, T. 40 S., R. 13 W., then north along sec. 20 and 17, T. 40 S., 
R. 13 W., to the point of beginning.


Sec. 301.92-4  Conditions governing the interstate movement of 
regulated and restricted articles from quarantined areas.

    Regulated articles and restricted articles may be moved interstate 
from a quarantined area \2\ only if moved in accordance with this 
section.
---------------------------------------------------------------------------

    \2\ Requirements under all other applicable Federal domestic 
plant quarantines and regulations must also be met.
---------------------------------------------------------------------------

    (a) With a certificate or departmental permit.
    (1) Any regulated articles may be moved interstate from a 
quarantined area if accompanied by a certificate issued and attached in 
accordance with Secs. 301.92-5 and 301.92-8 of this subpart, and 
provided that the regulated article is moved through the quarantined 
area without stopping except for refueling, rest stops, emergency 
repairs, and for traffic conditions, such as traffic lights or stop 
signs.
    (2) Any restricted article may be moved interstate from a 
quarantined area only if the article is moved:
    (i) By the United States Department of Agriculture for experimental 
or scientific purposes;
    (ii) Pursuant to a departmental permit issued by the Administrator 
for the article;
    (iii) Under conditions specified on the departmental permit and 
found by the Administrator to be adequate to prevent the spread of 
Phytophthora ramorum; and
    (iv) With a tag or label bearing the number of the departmental 
permit issued for the article attached to the outside of the container 
holding the article, or attached to the article itself if not in a 
container.
    (b) Without a certificate or departmental permit.
    (1) The regulated or restricted article originated outside the 
quarantined area and the point of origin of the article is indicated on 
the waybill of the vehicle transporting the article; and
    (2) The regulated or restricted article is moved from outside the 
quarantined area through the quarantined area without stopping except 
for refueling or for traffic conditions, such as traffic lights or stop 
signs, and the article is not unpacked or unloaded in the quarantined 
area. (Approved by the Office of Management and Budget under control 
number 0579-0191)

[[Page 6836]]

Sec. 301.92-5  Issuance and cancellation of certificates.

    (a) An inspector \3\ may issue a certificate for the interstate 
movement of regulated articles if an inspector determines that:
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    \3\ Services of an inspector may be requested by contacting 
local offices of Plant Protection and Quarantine, which are listed 
in telephone directories. The addresses and telephone numbers of 
local offices may also be obtained from the Animal and Plant Health 
Inspection Service, Plant Protection and Quarantine, Invasive 
Species and Pest Management, 4700 River Road Unit 134, Riverdale MD 
20737-1236, or the APHIS web site at http://www.aphis.usda.gov/travel/aqi.html.
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    (1)(i) The regulated articles have been treated under the direction 
of an inspector in accordance with Sec. 301.92-10 of this subpart; or
    (ii) The regulated articles are wood products such as firewood, 
logs, or lumber that are free of bark; or
    (iii) The regulated article is soil that has not been in direct 
physical contact with any article infected with P. ramorum, and from 
which all duff has been removed.
    (iv) The regulated articles are articles of nursery stock that:
    (A) Are shipped from a nursery or premises in a quarantined area 
that is inspected annually in accordance with the inspection and 
sampling protocol described in Sec. 301.92-11(a) of this subpart, and 
that has been found free of Phytophthora ramorum; and
    (B) Are part of a shipment of nursery stock that has been inspected 
prior to interstate movement in accordance with Sec. 301.92-11(b) of 
this subpart, and that has been found free of Phytophthora ramorum; and
    (C) Have been kept separate from regulated articles not inspected 
between the time of the inspection and the time of interstate movement; 
and
    (D) Have not been grown in, or moved from, other areas within a 
quarantined area except nurseries or premises that are annually 
inspected for Phytophthora ramorum in accordance with this section, and 
that have been found free of Phytophthora ramorum.
    (2) The regulated article is to be moved in compliance with any 
additional emergency conditions the Administrator may impose under 
section 414 of the Plant Protection Act (7 U.S.C. 7714) \4\ to prevent 
the spread of Phytophthora ramorum; and
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    \4\ Sections 414, 421, and 434 of the Plant Protection Act (7 
U.S.C. 7714, 7731, and 7754) provide that the Secretary of 
Agriculture may, under certain conditions, hold, seize, quarantine, 
treat, apply other remedial measures to destroy or otherwise dispose 
of any plant, plant pest, plant product, article, or means of 
conveyance that is moving, or has moved into or through the United 
States or interstate if the Secretary has reason to believe the 
article is a plant pest or is infested with a plant pest at the time 
of movement.
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    (3) The regulated article is eligible for unrestricted movement 
under all other Federal domestic plant quarantines and regulations 
applicable to the regulated article.
    (b) Certificates may be issued by any person engaged in the 
business of growing, processing, handling, or moving regulated articles 
provided such person has entered into and is operating under a 
compliance agreement. Any such person may execute and issue a 
certificate for the interstate movement of regulated articles if an 
inspector has previously made the determination that the article is 
eligible for a certificate in accordance with Sec. 301.92-5(a) of this 
subpart.
    (c) Any certificate that has been issued may be withdrawn, either 
orally or in writing, by an inspector if he or she determines that the 
holder of the certificate has not complied with all conditions in this 
subpart for the use of the certificate. If the withdrawal is oral, the 
withdrawal and the reasons for the withdrawal will be confirmed in 
writing as promptly as circumstances allow. Any person whose 
certificate has been withdrawn may appeal the decision in writing to 
the Administrator within 10 days after receiving the written 
notification of the withdrawal. The appeal must state all of the facts 
and reasons upon which the person relies to show that the certificate 
was wrongfully withdrawn. As promptly as circumstances allow, the 
Administrator will grant or deny the appeal, in writing, stating the 
reasons for the decision. A hearing will be held to resolve any 
conflict as to any material fact. Rules of practice concerning a 
hearing will be adopted by the Administrator.

(Approved by the Office of Management and Budget under control 
number 0579-0191)


Sec. 301.92-6  Compliance agreements and cancellation.

    (a) Any person engaged in growing, processing, handling, or moving 
regulated articles other than nursery stock may enter into a compliance 
agreement when an inspector determines that the person understands this 
subpart, agrees to comply with its provisions, and agrees to comply 
with all the provisions contained in the compliance agreement.\5\
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    \5\ Compliance agreement forms are available without charge from 
the Animal and Plant Health Inspection Service, Plant Protection and 
Quarantine, Invasive Species and Pest Management, 4700 River Road 
Unit 134, Riverdale, MD 20737-1236, and from local offices of the 
Plant Protection and Quarantine, which are listed in telephone 
directories.
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    (b) Any compliance agreement may be canceled, either orally or in 
writing, by an inspector whenever the inspector finds that the person 
who has entered into the compliance agreement has failed to comply with 
this subpart. If the cancellation is oral, the cancellation and the 
reasons for the cancellation will be confirmed in writing as promptly 
as circumstances allow. Any person whose compliance agreement has been 
canceled may appeal the decision, in writing, within 10 days after 
receiving written notification of the cancellation. The appeal must 
state all of the facts and reasons upon which the person relies to show 
that the compliance agreement was wrongfully canceled. As promptly as 
circumstances allow, the Administrator will grant or deny the appeal, 
in writing, stating the reasons for the decision. A hearing will be 
held to resolve any conflict as to any material fact. Rules of practice 
concerning a hearing will be adopted by the Administrator.


Sec. 301.92-7  Assembly and inspection of regulated articles.

    (a) Any person (other than a person authorized to issue 
certificates under Sec. 301.92-5(b) of this subpart) who desires to 
move a regulated article interstate accompanied by a certificate must 
notify an inspector \6\ as far in advance of the desired interstate 
movement as possible, but no less than 14 days before the desired 
interstate movement.
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    \6\ See footnote 3 of this subpart.
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    (b) The regulated article must be assembled at the place and in the 
manner the inspector designates as necessary to comply with this 
subpart.


Sec. 301.92-8  Attachment and disposition of certificates.

    (a) A certificate required for the interstate movement of a 
regulated article must, at all times during the interstate movement, 
be:
    (1) Attached to the outside of the container containing the 
regulated article; or
    (2) Attached to the regulated article itself if not in a container; 
or
    (3) Attached to the consignee's copy of the accompanying waybill. 
If the certificate is attached to the consignee's copy of the waybill, 
the regulated article must be sufficiently described on the certificate 
and on the waybill to identify the regulated article.
    (b) The certificate for the interstate movement of a regulated 
article must be furnished by the carrier to the consignee listed on the 
certificate upon arrival at the location provided on the certificate.
(Approved by the Office of Management and Budget under control 
number 0579-0191)

[[Page 6837]]

Sec. 301.92-9  Costs and charges.

    The services of the inspector during normal business hours (8 a.m. 
to 4:30 p.m., Monday through Friday, except holidays) will be furnished 
without cost. The user will be responsible for all costs and charges 
arising from inspection and other services provided outside normal 
business hours.


Sec. 301.92-10  Treatments.

    The following methods may be used to treat the regulated articles 
listed for Phytophthora ramorum:
    (a) Soil must be heated to a temperature of at least 180  deg.F for 
30 minutes in the presence of an inspector.
    (b) Wreaths, garlands, and greenery of arrowwood (Viburnum  x  
bodnantense), big leaf maple (Acer macrophyllum), black oak (Quercus 
kelloggii), California bay laurel (Umbellularia californica), 
California buckeye (Aesculus californica), California coffeeberry 
(Rhamnus californica), California honeysuckle (Lonicera hispidula), 
coast live oak (Quercus agrifolia), huckleberry (Vaccinium ovatum), 
madrone (Arbutus menziesii), manzanita (Arctostaphylos spp.), 
rhododendron (Rhododendron species, including azalea), Shreve's oak 
(Quercus parvula var. shrevei), tanoak (Lithocarpus densiflorus), and 
Toyon (Heteromeles arbutifolia) must be dipped for 1 hour in water that 
is held at a temperature of at least 160  deg.F.


Sec. 301.92-11  Inspection and sampling protocol.

    (a) Annual nursery inspection and sampling. To meet the 
requirements of Sec. 301.92-5(a)(1)(iv) of this subpart, nurseries that 
ship regulated articles of nursery stock interstate must be inspected 
for symptoms of Phytophthora ramorum annually in accordance with this 
section.
    (1) If the nursery contains 100 or fewer regulated articles, an 
inspector will inspect each regulated article. If the nursery contains 
more than 100 regulated articles, an inspector will inspect 100 
regulated articles and at least 2 percent of the number of regulated 
articles contained in the nursery that exceeds 100. The regulated 
articles to inspected will be randomly selected from throughout the 
nursery.
    (2) If symptomatic plants are found upon inspection, the inspector 
must collect at least one sample per symptomatic plant.
    (3) If fewer than 40 symptomatic plants are found in a nursery 
during an annual inspection, the inspector must collect samples from 
nonsymptomatic regulated articles of nursery stock so that the total 
number of sampled plants is at least 40.
    (4) Samples must be labeled and sent for testing to a laboratory 
approved by APHIS.
    (5) If any regulated articles within a nursery are found to be 
infected with Phytophthora ramorum, the nursery will be prohibited from 
moving regulated articles interstate until such time as an inspector 
can determine that the nursery is free of Phytophthora ramorum.
    (b) Inspection and sampling of individual shipments. To meet the 
requirements of Sec. 301.92-5(a)(1)(iv) of this subpart, each shipment 
of regulated articles of nursery stock intended for interstate movement 
must be inspected for symptoms of Phytophthora ramorum in accordance 
with this section.
    (1) If a shipment contains 100 or fewer regulated articles, an 
inspector will inspect each regulated article. If a shipment contains 
more than 100 regulated articles, an inspector will inspect 100 
regulated articles and at least 2 percent of the number of regulated 
articles contained in the shipment that exceeds 100. The regulated 
articles to be inspected will be randomly selected.
    (2) If symptomatic plants are found upon inspection, the inspector 
will collect at least one sample per symptomatic plant, and one sample 
per regulated article of nursery stock that is in close proximity to, 
or that has had physical contact with a symptomatic plant.
    (3) Samples will be labeled and sent for testing to a laboratory 
approved by APHIS, and must be found free of Phytophthora ramorum prior 
to the interstate movement of any regulated articles contained in the 
shipment.
    (4) If any plants intended for interstate movement are found to be 
infected with Phytophthora ramorum, the nursery from which they 
originate will be prohibited from moving regulated articles interstate 
until such as time as an inspector can determine that the nursery is 
free of Phytophthora ramorum.

    Done in Washington, DC, this 12th day of February 2002.
W. Ron DeHaven,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 02-3721 Filed 2-13-02; 8:45 am]
BILLING CODE 3410-34-P