[Federal Register Volume 70, Number 120 (Thursday, June 23, 2005)]
[Rules and Regulations]
[Pages 36330-36332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12437]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 301 and 305

[Docket No. 04-092-2]


Phytophthora Ramorum; Vacuum Heat Treatment for Bay Leaves

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the phytosanitary treatments 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 will provide 
an alternative to the hot water dip that had been the only approved 
treatment for the greenery of host plants, which include California bay 
laurel leaves, but that ruined the suitability of the leaves for use as 
a dried spice.

DATES: Effective June 23, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. James Writer, Assistant P. ramorum 
Program Manager, Invasive Species and Pest Management, PPQ, APHIS, 4700 
River Road Unit 134, Riverdale, MD 20737-1231; (301) 734-7121.

SUPPLEMENTARY INFORMATION:

Background

    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 due to the presence of Phytophthora ramorum and 
restrict the interstate movement of regulated articles from those 
areas. Regulated articles are identified in Sec.  301.92-2 of the 
regulations.
    In subsequent Federal Orders, the Animal and Plant Health 
Inspection Service (APHIS) expanded 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, and expanded the list 
of regulated articles to include additional confirmed hosts of P. 
ramorum.
    The regulations in Sec.  301.92-10 provide treatments that may be 
used to qualify regulated articles for interstate movement from 
quarantined areas. For unprocessed wreaths, garlands, and greenery of 
host plants, the only approved treatment has consisted 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.
    On February 8, 2005, we published in the Federal Register (70 FR 
6596-6598, Docket No. 04-092-1) a proposal to amend the Plant 
Protection and Quarantine Treatment Manual (PPQ Treatment Manual), 
which was incorporated by reference in the Code of Federal Regulations, 
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. In addition to adding this vacuum heat treatment schedule, 
which we would have designated as T101-m-2-1-2, to the PPQ Treatment 
Manual, we also proposed amending the PPQ Treatment Manual's 
incorporation by reference in 7 CFR part 300.1 to reflect the date of 
the treatment's inclusion in the manual, and 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.
    We solicited comments concerning our proposal for 60 days ending 
April 11, 2005. We received one comment by that date, from a spice 
trade association. The commenter was in favor of amending the 
regulations to allow California bay laurel leaves to be treated with 
vacuum heat before moving interstate from areas quarantined because of 
P. ramorum.
    In the proposed rule, we proposed adding the vacuum heat treatment 
for bay leaves to the PPQ Treatment Manual. However on June 7, 2005, we 
published in the Federal Register a final rule (70 FR 33264-33326, 
Docket No. 02-019-1) that removed the PPQ Treatment Manual's 
incorporation by reference and relocated the portions of the PPQ 
Treatment Manual that prescribe treatment schedules, instructions for 
administering the treatments, and requirements for certification of 
facilities that administer the treatments to 7 CFR part 305, 
``Phytosanitary Treatments.'' Therefore, in this final rule, we are 
adding the vacuum heat treatment for bay leaves to part 305 rather than 
the PPQ Treatment Manual.
    In addition, in the proposed rule, the vacuum heat treatment for 
use on bay leaves was given the designation T101-m-2-1-2, but the T101 
numbering series is used to refer to fumigation treatments. As the 
vacuum heat treatment described in the proposed rule and this final 
rule is not a fumigation treatment, we are designating the treatment as 
T111-a-1 and are adding it to the regulations as a new Sec.  305.29 in 
the ``Heat Treatments'' subpart.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register. Immediate 
implementation of this rule is necessary to provide relief to those 
persons who are adversely affected by restrictions we no longer find 
warranted. The regulations have required that the greenery of P. 
ramorum host plants, which include California bay laurel, grown in a 
quarantined area be treated with a hot water dip before being moved 
interstate from a quarantined area. Making this rule effective 
immediately will provide entities that produce and market spices with 
an alternative treatment for bay laurel leaves produced in areas 
quarantined because of P. ramorum that will not render the leaves 
unsuitable for their intended use as a dried spice. Therefore, the 
Administrator of the Animal and Plant Health Inspection Service has 
determined that this rule should be effective upon publication in the 
Federal Register.

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.
    This final rule amends the phytosanitary treatments regulations 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 will provide an alternative

[[Page 36331]]

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.
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    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 SBA's criteria, 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 final 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 will 
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 State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This final 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

    This final 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 301

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

7 CFR Part 305

    Agricultural commodities, Chemical treatment, Cold treatment, 
Garbage treatment, Heat treatment, Imports, Irradiation, Phytosanitary 
treatment, Plant diseases and pests, Quarantine, Quick freeze, 
Reporting and recordkeeping requirements, Transportation.


0
Accordingly, we are amending 7 CFR parts 301 and 305 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

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

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


0
2. Section 301.92-10 is revised to read as follows:


Sec.  301.92-10  Treatments.

    Treatment schedules listed in part 305 of this chapter to destroy 
Phytophthora ramorum are authorized for use on certain regulated 
articles. 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.

PART 305--PHYTOSANITARY TREATMENTS

0
3. The authority citation for part 305 continues to read as follows:


[[Page 36332]]


    Authority: 7 U.S.C. 7701-7772; 21 U.S.C. 136 and 136a; 7 CFR 
2.22, 2.80, and 371.3.


0
4. In Sec.  305.1, a definition for vacuum heat treatment is added, in 
alphabetical order, to read as follows:


Sec.  305.1  Definitions.

* * * * *
    Vacuum heat treatment. The treated commodity is held in a gas-tight 
enclosure and heated to a specified temperature for a specific time 
period to kill targeted pests.
* * * * *

0
5. Section 305.2 is amended as follows:
0
a. In the introductory text of paragraph (h)(2), by adding the words 
``Sec.  305.29 for vacuum heat (VCH),'' after the word ``(FHA),''.
0
b. In paragraph (h)(2)(ii), the table is amended by adding, under 
``Areas in the United States under Federal Quarantine for the listed 
pest'', an entry for bay leaves to read as follows:


Sec.  305.2  Approved treatments.

* * * * *
    (h) * * *
    (2) * * *
    (ii) * * *

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              Location                      Commodity                 Pest                Treatment schedule
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                                                  * * * * * * *
                                     Bay leaves............  Phytophthora ramorum..  VCH T111-a-1
 
                                                  * * * * * * *
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* * * * *
0
6. A new Sec.  305.29 is added to read as follows:


Sec.  305.29  Vacuum heat treatment schedule.

    T111-a-1. Place bay leaves 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.

    Done in Washington, DC, this 17th day of June, 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-12437 Filed 6-22-05; 8:45 am]
BILLING CODE 3410-34-P