[Federal Register Volume 70, Number 25 (Tuesday, February 8, 2005)]
[Proposed Rules]
[Pages 6596-6598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2322]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 70, No. 25 / Tuesday, February 8, 2005 / 
Proposed Rules  

[[Page 6596]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 300 and 301

[Docket No. 04-092-1]


Phytophthora Ramorum; Vacuum Heat Treatment for Bay Leaves

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the Plant Protection and Quarantine 
Treatment Manual, which is incorporated by reference in the Code of 
Federal Regulations, to allow leaves of the California bay laurel 
(Umbellularia californica) to be treated with vacuum heat before being 
moved interstate from any area quarantined because of Phytophthora 
ramorum. This action would provide an alternative to the currently 
approved hot water dip used to treat greenery of host plants, 
specifically California bay laurel leaves, which ruins the suitability 
of the leaves for use as a dried spice.

DATES: We will consider all comments that we receive on or before April 
11, 2005.

ADDRESSES: You may submit comments by any of the following methods:
     EDOCKET: Go to http://www.epa.gov/feddocket to submit or 
view public comments, access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Once you have entered 
EDOCKET, click on the ``View Open APHIS Dockets'' link to locate this 
document.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 04-092-1, 
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. 04-092-1.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this 
docket and submitting comments.
    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: You may view APHIS documents published in the 
Federal Register and related information on the Internet at http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. James Writer, Agriculturist, 
Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit 
137, Riverdale, MD 20737-1231; (301) 734-7121.

SUPPLEMENTARY INFORMATION:

Background

    Phytophthora ramorum is a harmful fungus that attacks certain 
plants, particularly trees and shrubs. P. ramorum is also commonly 
referred to as sudden oak death or ramorum leaf blight and ramorum 
dieback. Symptoms of infection may include new growth that droops or 
turns from yellow to brown, the appearance of a bleeding canker; 
burgundy-red to tar-black thick sap oozing on the bark surface, or leaf 
spotting and stem canker infections.
    The regulations in ``Subpart--Phytophthora Ramorum'' (7 CFR 301.92 
through 301.92-11, referred to below as the regulations) list 10 
counties in California and a portion of Curry County in Oregon as 
quarantined areas and restrict the interstate movement of regulated 
articles from those areas.
    In addition, on December 21, 2004, the Animal and Plant Health 
Inspection Service (APHIS) issued a Federal Order, effective January 
10, 2005, which expands the list of quarantined areas to include Contra 
Costa, Humboldt, Lake, and San Francisco Counties, CA, as well as 
another portion of Curry County, OR. This order replaces the order of 
April 22, 2004, and the clarification of that order which was issued on 
April 23, 2004. The December 21, 2004, order is available on the 
Internet at http://www.aphis.usda.gov/ppq/ispm/sod/.
    Regulated articles are identified in Sec.  301.92-2 of the 
regulations. The list of regulated articles includes, among other 
things, unprocessed 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) 
(except fruit), 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).
    In the December 21, 2004, Federal Order, APHIS expanded the list of 
regulated articles to include 16 additional confirmed hosts of P. 
ramorum. These additional regulated articles are: Camellia spp., Canyon 
live oak (Quercus chrysolepis), coast redwood (Sequoia sempervirens), 
doublefile viburnum (Viburnum plicatum var. tomentosum), Douglas fir 
(Pseudotsuga menziesii var. menziesii), False Solomon's Seal 
(Maianthemum racemosum formerly Smilacina racemosa), Fraser's Photinia 
or Red tip (Photinia fraseri), Heather (Calluna vulgaris), Himalaya 
pieris (Pieris formosa), Japanese pieris (Pieris japonica), laurustinus 
(Viburnum tinus), pieris ``Brouwer's Beauty'' (Pieris floribunda x 
japonica), pieris ``Forest Flame'' (Pieris formosa x japonica), western 
starflower (Trientalis latifolia), witch hazel (Hamamelis virginiana), 
and wood rose (Rosa gymnocarpa).
    Regulated articles must meet the conditions specified in the 
regulations before they may be moved interstate from a quarantined 
area. One of the conditions for movement is treatment. The Plant 
Protection and Quarantine Treatment Manual (PPQ Treatment Manual), 
which is maintained by APHIS, contains approved treatment schedules for 
many plant pests and diseases and is incorporated by

[[Page 6597]]

reference into the Code of Federal Regulations at 7 CFR 300.1. Approved 
treatments for some articles can also be found in the regulations. 
Currently, the only approved treatment for unprocessed wreaths, 
garlands, and greenery of host plants moving interstate from the 
quarantined areas is listed in Sec.  301.92-10 of the regulations. This 
treatment consists of a hot water dip for 1 hour at a sustained 
temperature of at least 160[deg] F. However, this treatment is not a 
viable option for treating leaves from the California bay laurel 
(Umbellularia californica), as it ruins the leaves for their intended 
use as a dried spice.
    APHIS has received several requests from a spice company in 
California to approve the use of vacuum heat treatment as an 
alternative method of treatment for California bay laurel leaves that 
are moving interstate from a quarantined area for use as a dried spice. 
Vacuum heat treatment is an already existing industry standard method 
for treating California bay laurel leaves harvested outside the 
quarantined area. Research \1\ conducted by APHIS' Treatment Quality 
Assurance Unit at the Center for Plant Health Science and Technology 
has demonstrated that vacuum heat treatment effectively eliminates P. 
ramorum on leaves of the California bay laurel. Therefore, we are 
proposing to amend the PPQ Treatment Manual to add vacuum heat 
treatment as an acceptable treatment method for bay leaves used as a 
dried spice. This action would provide an alternative to the hot water 
dip that is currently being used to treat greenery of the California 
bay laurel in the quarantined areas. The treatment procedure we would 
add to the PPQ Treatment Manual is described in the following 
paragraph.
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    \1\ Information concerning this research may be obtained from 
the person listed under FOR FURTHER INFORMATION CONTACT.
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Treatment Procedure

    Place greenery in a vacuum chamber. Starting at 0 hour, gradually 
reduce to 0.133 Kpa vacuum at 8 hours. Maintain the vacuum until the 
end of the treatment. Gradually increase the temperature in the vacuum 
chamber from ambient temperature at 0 hour to 60 [deg]C at 5 hours. 
After 5 hours, gradually lower the temperature to 30 [deg]C at 22 
hours. The length of the treatment is 22 hours.
    In addition to adding this vacuum heat treatment schedule, which 
would be designated as T101-m-2-1-2, to the PPQ Treatment Manual, we 
would also amend the PPQ Treatment Manual's incorporation by reference 
in 7 CFR 300.1 to reflect the date of the treatment's inclusion in the 
manual. In addition, we would amend the list of accepted treatments in 
Sec.  301.92-10 to include any treatments authorized for use on P. 
ramorum that are listed in the PPQ Treatment Manual.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review under 
Executive Order 12866.
    We are proposing to amend the PPQ Treatment Manual to allow leaves 
of the California bay laurel to be treated with vacuum heat before 
being moved interstate from any area quarantined because of P. ramorum. 
This action would provide an alternative to the currently approved hot 
water dip used to treat California bay laurel leaves, which ruins the 
suitability of the leaves for use as a dried spice.
    Vacuum heat treatment costs are similar to costs of vapor heat and 
hot-air treatment systems. All three treatments require substantial 
initial capital investments ranging from $55,000 to $200,000 for larger 
commercial facilities. By comparison, hot water immersion treatment 
systems can be assembled for less than $8,000. Clearly, hot-water 
immersion treatment is less expensive, but in this case it is not 
feasible because it renders the treated article-bay leaves-unsuitable 
for its use as a dried spice.
    Table 1 shows that representative unit costs for hot air or vapor 
heat treatments total less than $30 per ton of commodities treated. The 
cost of vacuum heat treatment is comparable. This cost is higher than 
the unit cost of hot water immersion, given the large difference in 
capital costs indicated above, but is relatively minor when compared to 
the value of the commodity being treated.

 Table 1.--Representative Costs of Hot Air or Vapor Heat Treatment of a
                          Perishable Commodity
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Capital costs............................  $4.41/metric ton of commodity
                                            treated.
Operating costs\1\.......................  $25.00/metric ton of
                                            commodity treated.
                                          ------------------------------
    Total cost...........................  $29.41/metric ton of
                                            commodity treated.
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\1\ Labor, energy, maintenance, and insurance.

    One pound of dried bay leaves sells for $3.75, that is, $8,267.33 
per metric ton. Thus, the representative cost shown in table 1 is equal 
to less than 0.4 percent of the sales price of the spice. Compared to 
other costs, such as harvesting, storage, processing, packaging, and 
transport, the cost of the vacuum heat treatment is relatively 
insignificant overall.
    We also note that use of the vacuum heat treatment would be on a 
voluntary basis to qualify dried bay leaves for interstate movement 
from the quarantined counties.
    According to the 2002 Agricultural Census, there were approximately 
600 nurseries in the 14 California counties operating under quarantine 
for P. ramorum. The 600 nurseries reported approximately $882 million 
in annual sales. A small nursery, according to Small Business 
Administration size standards (SBA), is one with $750,000 or less in 
annual receipts. APHIS does not have information on the size 
distribution of the nurseries in the 14 counties, in terms of annual 
receipts. We also do not have information on the number of these 
nurseries that have bay laurel trees and seedlings for sale, or of the 
quantity of bay laurel leaves they produce and the percentage sold to 
customers outside the quarantined area.
    It is expected that, primarily, producers/processors of bay leaves 
will conduct the vacuum heat treatment. According to the 2002 Economic 
Census, there were approximately 44 spice and extract manufacturing 
establishments (NAICS 311942) in California, employing 1,521 people (or 
an average of 34 persons per entity). No data are available for 
California by county. According to the SBA definition, the size 
standard for a small entity in this industry is 500 or fewer employees. 
However, information on the size distribution of these establishments 
was unavailable. Even though the number and size of the entities that 
could be affected by the proposed rule is unknown, we have no evidence 
indicating that there would be a significant economic impact on any 
entity, large or small.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

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

[[Page 6598]]

State and local officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

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

List of Subjects

7 CFR Part 300

    Incorporation by reference, Plant diseases and pests, Quarantine.

7 CFR Part 301

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

    Accordingly, we are proposing to amend 7 CFR parts 300 and 301 as 
follows:

PART 300--INCORPORATION BY REFERENCE

    1. The authority citation for part 300 would continue to read as 
follows:

    Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.

    2. Section 300.1 would be amended as follows:
    a. In paragraph (a)(8), by removing the word `` and''.
    b. In paragraph (a)(9), by removing the period and adding the word 
``; and'' in its place.
    c. By adding a new paragraph (a)(10) to read as set forth below:


Sec.  300.1  Plant Protection and Quarantine Treatment Manual.

    (a) * * *
    (10) Treatment T101-m-2-1-2, dated----.
* * * * *

PART 301--DOMESTIC QUARANTINE NOTICES

    3. The authority citation for part 301 would continue to read as 
follows:

    Authority: 7 U.S.C. 7701-7772; 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).

    4. Section 301.92-10 would be revised to read as follows:


Sec.  301.92-10  Treatments.

    Treatment schedules listed in the Plant Protection and Quarantine 
Treatment Manual to destroy Phytophothora ramorum are authorized for 
use on certain regulated articles. The Plant Protection and Quarantine 
Treatment Manual is incorporated by reference at Sec.  300.1 of this 
chapter. The following treatments also may be used for the regulated 
articles indicated:
    (a) Soil--Heat to a temperature of at least 180 [deg]F 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.

    Done in Washington, DC, this 2nd day of February 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-2322 Filed 2-7-05; 8:45 am]
BILLING CODE 3410-34-U