[Federal Register Volume 83, Number 122 (Monday, June 25, 2018)]
[Proposed Rules]
[Pages 29465-29472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13560]
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Proposed Rules
Federal Register
________________________________________________________________________
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. 83, No. 122 / Monday, June 25, 2018 /
Proposed Rules
[[Page 29465]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. APHIS-2015-0101]
RIN 0579-AE30
Phytophthora ramorum; Regulated Areas, Regulated Establishments,
and Testing Protocols
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to amend the Phytophthora ramorum regulations
to remove regulated areas for P. ramorum from the regulations, as well
as all regulatory requirements specific to such areas. We are proposing
to amend the regulations by revising the inspection and sampling
requirements for certain nurseries that are in areas quarantined for P.
ramorum and that ship regulated nursery stock interstate. We are
proposing to change the nature of the inspection and sampling
requirements to have them take into consideration additional potential
sources of P. ramorum inoculum at the nurseries. Finally, we are
proposing to establish conditions under which we would regulate
nurseries located outside of the quarantined areas for P. ramorum, if
sources of P. ramorum inoculum are detected at those nurseries and the
nurseries ship certain articles interstate. These changes would provide
regulatory relief to nurseries in areas that are regulated for P.
ramorum, while also ensuring that nurseries that may pose a risk of
disseminating P. ramorum through the interstate movement of regulated
nursery stock are subject to measures that address this risk.
DATES: We will consider all comments that we receive on or before
August 24, 2018.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0101.
Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2015-0101, Regulatory Analysis and Development, PPD,
APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-
1238.
Supporting documents and any comments we receive on this docket may
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2015-
0101 or in our reading room, which 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) 799-7039 before coming.
FOR FURTHER INFORMATION CONTACT: Dr. Karen Maguylo, National Policy
Manager, Pest Management, PPQ, APHIS, 4700 River Road, Riverdale, MD
20737-1238; (301) 851-3128.
SUPPLEMENTARY INFORMATION:
Background
Under section 412(a) of the Plant Protection Act (7 U.S.C. 7701 et
seq., referred to below as the PPA), the Secretary of Agriculture may
prohibit or restrict the movement in interstate commerce of any plant
or plant product, if the Secretary determines that the prohibition or
restriction is necessary to prevent the dissemination of a plant pest
within the United States.
Phytophthora ramorum, commonly known as sudden oak death, ramorum
leaf blight, and ramorum dieback, is a harmful pathogen that can cause
mortality in several oak tree species and also causes twig and foliar
diseases in numerous native and non-native ornamental plants, shrubs,
and trees within the United States.
P. ramorum was first discovered in the natural environment in 14
counties in California and portions of 1 county in Oregon. When the
disease was subsequently discovered in certain nurseries on the west
coast that shipped nursery stock interstate, the Animal and Plant
Health Inspection Service (APHIS) issued an interim rule published in
the Federal Register on February 14, 2002 (67 FR 6827-6837, Docket No.
01-054-1). The interim rule established a new subpart, ``Subpart--
Phytophthora ramorum'' (7 CFR 301.92 through 301.92-12, referred to
below as the regulations), which contains APHIS' regulations to address
the spread of P. ramorum.
Section 301.92-3 of the regulations designates certain States and
portions of States as quarantined areas for P. ramorum. The regulations
also designate other States or portions of States as regulated areas
for P. ramorum. Quarantined areas are areas in which P. ramorum has
been confirmed by an inspector to exist in the natural environment, in
which there is reason to believe P. ramorum exists in the natural
environment, or which APHIS considers to be inseparable for quarantine
enforcement purposes from localities in which P. ramorum has been found
in the natural environment.
Regulated areas are defined in the regulations as areas in which P.
ramorum has been found on nursery stock in commercial nurseries, but in
which P. ramorum has not been found in the natural environment. The
quarantined areas for P. ramorum are designated in paragraph (a) of
Sec. 301.92-3. Regulated areas for P. ramorum are designated in
paragraph (b) of Sec. 301.92-3. Quarantined areas include 14 counties
in California and a portion of 1 county in Oregon. Regulated areas
include the remainder of California and Oregon, as well as the State of
Washington.
Section 301.92-2 of the regulations designates nursery stock of
proven host taxa for P. ramorum as regulated articles for P. ramorum.
It also designates nursery stock of taxa associated with P. ramorum,
but not proven to be hosts, as associated articles for P. ramorum.
Nursery stock of taxa that are neither designated as proven hosts nor
as associated with P. ramorum are considered to be non-hosts.
Section 301.92-4 of the regulations contains conditions for the
interstate movement of regulated and non-host nursery stock from
quarantined areas for P. ramorum. This section also contains conditions
for the interstate movement of regulated and non-host nursery stock
from regulated areas for P. ramorum. The conditions for movement of
both regulated and non-host nursery stock from a quarantined area for
P. ramorum are found in paragraphs (a) and (c) of Sec. 301.92-4, while
the conditions for
[[Page 29466]]
interstate movement of both regulated and non-host nursery stock from a
regulated area for P. ramorum are found in paragraph (d) of that
section.
Paragraph (d) requires certificates to be issued in order for
regulated nursery stock to be shipped interstate from a regulated area
for P. ramorum, and also requires certificates to be issued for the
interstate movement of non-host nursery stock, if the nursery from
which the nursery stock originates contains regulated or associated
articles for P. ramorum. If the nursery contained only non-host nursery
stock, then certificates are not required, provided that the nursery is
inspected and found free of evidence of P. ramorum. (We discuss the
inspection protocols, which are found in Sec. 301.92-11 of the
regulations, in the following paragraphs.)
Section 301.92-5 of the regulations requires that, in order for
nurseries in quarantined or regulated areas for P. ramorum to ship
regulated or non-host nursery stock interstate under a certificate, the
nurseries have to be inspected annually in accordance with inspection
and sampling protocols. The inspection and sampling protocols are found
in Sec. 301.92-11 of the regulations. The inspection and sampling
protocols for nurseries in quarantined areas for P. ramorum that ship
regulated or non-host nursery stock interstate are found in paragraphs
(a) and (b) of Sec. 301.92-11, respectively, while the inspection and
sampling protocols for nurseries in regulated areas for P. ramorum that
ship regulated or non-host nursery stock interstate are found in
paragraphs (c) and (d) of Sec. 301.92-11, respectively.
Paragraph (c) of Sec. 301.92-11 contains the following inspection
and sampling protocol for nurseries in regulated areas for P. ramorum
that ship regulated nursery stock interstate: Visual inspection of the
nurseries for symptoms of P. ramorum; sampling of plants showing
symptoms of infection with P. ramorum; and testing of those samples
using an approved test (approved tests and testing protocols for P.
ramorum are found in Sec. 301.92-12 of the regulations). While testing
is ongoing, the symptomatic plants, the lot containing the symptomatic
plants, and plants located within 2 meters of that lot cannot be moved
interstate. Nurseries in quarantined areas for P. ramorum are subject
to a similar protocol with more stringent inspection requirements.
Finally, nurseries in quarantined and regulated areas for P. ramorum
that contain and ship only non-host nursery stock are subject to a
similar inspection protocol, but are only subject to sampling and
testing if an inspector found plants showing symptoms of P. ramorum.
Over a 9-year period, from 2004, when we implemented these
protocols, to 2013, APHIS and the State plant protection authorities of
California, Oregon, and Washington inspected approximately 3,050
nurseries annually. During that time period, P. ramorum was never
detected at a nursery located in a regulated area for P. ramorum and
that contains and ships interstate only non-host nursery stock.
Additionally, P. ramorum was discovered in the natural environment of
only one area that had been regulated for P. ramorum, a portion of
Curry County, OR.
Additionally, of the nurseries in regulated areas for P. ramorum
that contain and ship interstate regulated nursery stock, P. ramorum
was detected at a very small percentage--usually no more than 3 percent
annually. The vast majority of the nurseries were found free of P.
ramorum each time they were inspected.
If P. ramorum was detected at a nursery during one of these
inspections, however, it often was not limited to infected plants.
Rather, multiple sources of the inoculum often were detected at the
nursery; these include growing media, pots used for nursery stock,
standing water, drainage water, and water used for irrigation. This is
also true of nurseries that are located in quarantined areas for P.
ramorum and in which the disease was detected.
Finally, between 2004 and 2013, APHIS detected P. ramorum in 120
nurseries in areas that are neither quarantined nor regulated for P.
ramorum, and in which APHIS has no reason to believe P. ramorum exists
in the natural environment. Most of these nurseries were retailers that
sell directly to consumers and do not engage in interstate commerce.
However, some did ship regulated, restricted, and associated articles
interstate. Several of those nurseries tested positive for P. ramorum
in their soil, standing water, water for irrigation, or growing media.
This data led us to reevaluate our regulatory strategy for
addressing the artificial spread of P. ramorum within the United
States. As a result of this reevaluation, we no longer saw a need for
regulating geographical areas for P. ramorum unless we determined that
the area met the criteria for designation as a quarantined area for P.
ramorum. However, we did see a need to regulate nurseries outside of
quarantined areas for P. ramorum if the nurseries shipped regulated,
restricted, or associated articles interstate and sources of P. ramorum
were discovered at the nursery.
Accordingly, in a Federal Order issued on January 10, 2014, and a
Federal Order issued on April 3, 2015, we restructured the domestic
quarantine program for Phytophthora ramorum.\1\ Specifically:
\1\ https://www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/phytophthora-ramorum/ct_phytophthora_ramorum_sudden_oak_death.
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We deregulated all regulated areas for P. ramorum, and
removed all regulatory restrictions specific to those areas.
Instead of regulated areas for P. ramorum, we implemented
regulated establishments for P. ramorum. A regulated establishment is a
nursery that is not located in a quarantined area for P. ramorum, that
ships regulated, restricted, or associated articles interstate, and in
which sources of P. ramorum inoculum are detected on nursery stock, or
in soil, growing media, pots used for nursery stock, standing water,
drainage water, water used for irrigation, or any other regulated,
restricted, or associated articles at the nursery.
We instituted inspection and sampling protocols for
regulated establishments.
We implemented restrictions on the interstate movement of
regulated, restricted, and associated articles from regulated
establishments.
We revised the inspection and sampling protocol for
nurseries in quarantined areas, as well as the conditions for
interstate movement of regulated, restricted, and associated articles
from certain of those nurseries.
We are proposing to update the regulations to reflect the changes
made by the Federal Orders to the Phytophthora ramorum domestic
quarantine program. Additionally, we are proposing to update the lists
of regulated and associated articles for P. ramorum, and establish
conditions for the interstate movement of soil samples from areas
quarantined for P. ramorum.
Below, we discuss these amendments to the regulations at greater
length.
Removal of Regulated Areas and Establishment of Regulated
Establishments
As we mentioned earlier in this document, paragraph (b) of Sec.
301.92-3 lists areas designated as regulated areas for Phytophthora
ramorum. Proposed paragraph (b) would provide conditions for the
designation and deregulation of regulated establishments. Specifically,
it would state that the Administrator would designate a nursery that is
not located in a quarantined area for P.
[[Page 29467]]
ramorum as a regulated establishment for P. ramorum if the nursery
ships regulated, restricted, or associated articles interstate and
sources of P. ramorum are detected on nursery stock, or in soil,
growing media, pots used for nursery stock, standing water, drainage
water, water used for irrigation, or any other regulated, restricted,
or associated articles at the nursery. It would also state that the
Administrator would withdraw regulation of a regulated establishment
if, for 3 consecutive years, each time the nursery is inspected by an
inspector, it is found free of sources of P. ramorum inoculum. We
discuss the inspection and sampling protocols for regulated
establishments later in this document.
Currently, paragraph (d) of Sec. 301.92-4 contains conditions for
interstate movement of both regulated and non-host nursery stock from a
regulated area for Phytophthora ramorum. Proposed paragraph (d) would
contain conditions for the movement of regulated, restricted, and
associated articles from regulated establishments. In order for such
articles to be moved interstate, the regulated establishment would have
to enter into a compliance agreement with APHIS, and the articles would
have to be accompanied by a certificate issued in accordance with Sec.
301.92-5. We are also proposing to amend the heading of the section so
that it is clear that it contains conditions for the interstate
movement of regulated, restricted, and associated articles from
regulated establishments.
Within Sec. 301.92-5, paragraph (b) contains conditions for the
issuance of certificates for regulated articles of nursery stock,
associated articles, and non-host nursery stock from nurseries in
regulated areas. Proposed paragraph (b) would contain conditions for
the issuance of certificates for regulated, restricted, and/or
associated articles from regulated establishments. Under the proposal,
in order for a certificate to be issued for such articles, an inspector
would have to determine that the nursery entered into a compliance
agreement with APHIS and abided by all terms and conditions of that
compliance agreement, the nursery had been inspected in accordance with
the inspection and sampling protocols specified in Sec. 301.92-11, the
articles to be shipped interstate are free from P. ramorum inoculum,
and the movement of the articles would not be subject to additional
restriction under the PPA or other Federal domestic plant quarantines
and regulations.
Within Sec. 301.92-11, paragraph (c) contains inspection and
sampling protocols for nurseries in regulated areas that ships
regulated articles of nursery stock or associated articles interstate.
Proposed paragraph (c) would contain inspection and sampling protocols
for regulated establishments shipping regulated, restricted, or
associated articles interstate.
Specifically, proposed paragraph (c) would require that regulated
establishments be inspected at least twice annually for symptoms of P.
ramorum infestation by an inspector. The inspection would focus on
regulated plants and other potential sources of P. ramorum inoculum.
Additionally, during such inspections, samples would be taken from host
plants, soil, standing water, drainage water, water for irrigation,
growing media, and any other articles determined by the inspector to be
possible sources of P. ramorum inoculum. The number of samples taken
could vary depending on the possible sources of P. ramorum identified
at the nursery, as well as the number of host articles in the nursery.
Finally, samples would be labeled and sent for testing to a laboratory
approved by APHIS in accordance with the regulations.
If all samples tested returned negative results for P. ramorum, an
inspector could certify that the nursery is free of P. ramorum at the
time of the inspection, and all regulated, restricted, and associated
articles at the nursery would be considered free from P. ramorum
inoculum for purposes of Sec. 301.92-5(b) until the time of the next
inspection. Additionally, as we mentioned previously in this document,
if, for 3 consecutive years, the nursery is determined to be free of
sources of P. ramorum inoculum each time it is inspected by an
inspector, it would be deregulated.
If any samples tested return positive results for P. ramorum, the
nursery could ship lots of regulated, restricted, or associated
articles interstate under a certificate only if the lot is determined
to be free from P. ramorum inoculum. (In other words, the articles at
the nursery are not presumed to be free from P. ramorum inoculum
because of the positive samples, and would be evaluated on a lot-by-lot
basis.) The method for this determination would be specified within the
nursery's compliance agreement with APHIS.
Paragraph (d) of Sec. 301.92-11 contains an inspection and
sampling protocol for nurseries in regulated areas for P. ramorum that
ship non-host nursery stock interstate, and do not contain regulated or
associated articles. Because we are proposing to remove regulated areas
from the regulations, and nurseries that only contain and ship
interstate non-host nursery stock would not be designated as regulated
establishments, we are proposing to remove the inspection and sampling
protocol contained in paragraph (d) of Sec. 301.92-11 from the
regulations.
We are also proposing to make several harmonizing changes to other
sections of the regulations to reflect the removal of regulated areas
for P. ramorum and implementation of regulated establishments for P.
ramorum.
Section 301.92 contains general restrictions on the interstate
movement of regulated, restricted, and associated articles, as well as
other nursery stock. Paragraph (b) of Sec. 301.92 states that no
person may move nursery stock interstate from a nursery in a regulated
area for P. ramorum except in accordance with the regulations. Proposed
paragraph (b) would specify that no person may move restricted,
regulated, or associated articles from a regulated establishment except
in accordance with the regulations.
Currently, paragraph (c) of Sec. 301.92 states that no person may
move regulated, restricted, or associated articles interstate from a
quarantined or regulated area for P. ramorum if the articles have been
tested with a test approved by APHIS and found infected with P.
ramorum, or if the articles are part of a plant that was found infected
with P. ramorum, unless the articles are moved in accordance with 7 CFR
part 330 (i.e., our regulations governing the interstate movement of
plant pests). Proposed paragraph (c) would prohibit the interstate
movement from quarantined areas or regulated establishments of articles
that have been found infected with P. ramorum or that are part of a
plant that has been found infected with P. ramorum.
Section 301.92-1 contains definitions of terms used in the
regulations. The section includes a definition of regulated area. Since
that term is no longer used in the P. ramorum domestic quarantine
program, we are proposing to remove the definition from Sec. 301.92-1.
We are also proposing to add a definition of regulated establishment to
Sec. 301.92-1. The definition would state that a regulated
establishment is any nursery regulated by APHIS pursuant to paragraph
(b) of Sec. 301.92-3 of the regulations.
Revisions to Inspection and Sampling Protocols for Quarantined Areas
As we mentioned earlier in this document, paragraph (a) of Sec.
301.92-11 contains an inspection and sampling protocol for nurseries in
quarantined areas for P. ramorum that ship regulated nursery stock
interstate, while
[[Page 29468]]
paragraph (b) of Sec. 301.92-11 contains an inspection and sampling
protocol for nurseries in quarantined areas for P. ramorum that ship
non-host nursery stock interstate.
Proposed paragraph (a) would contain two separate inspection and
sampling protocols. Pursuant to the January 2014 Federal Order, if P.
ramorum has not been discovered at the nursery since March 31, 2011,
the inspection and sampling protocol for the nursery would be
substantially similar to the one currently stated in the regulations.
The only change would be the minimum number of samples that would be
tested at the nursery: Whereas the regulations provide for a minimum of
40 samples, under the Federal Order the minimum number of samples is
set on a nursery-by-nursery basis depending on the amount of regulated,
restricted, and associated articles at the nursery. We are proposing to
revise paragraph (a) to align the regulations with changes made by the
Federal Order.
Proposed paragraph (a) would also provide that if, however, P.
ramorum has been discovered at the nursery since March 31, 2011, the
nursery would be subject to the same inspection and sampling protocol
as that specified for regulated establishments. Unlike regulated
establishments, however, if a nursery in a quarantined area is tested
and found free of P. ramorum inoculum for 3 consecutive years, it would
not be released from regulation, but rather reverted to the previous
inspection and sampling protocol.
We are proposing minor revisions to paragraph (b) of Sec. 301.92-
11 to reflect these changes to paragraph (a).
We are also proposing to make one additional amendment to Sec.
301.92-11. The introductory text to the section contains a table to aid
nurseries in determining what inspection and sampling protocol they are
subject to. One of the primary purposes of the table is to delineate
the different inspection and sampling protocols for regulated areas,
which is no longer necessary. Another primary purpose of the table is
to clarify that inspection and sampling protocols for nurseries in
quarantined areas differed based on whether the nursery ships regulated
nursery stock interstate. This is no longer necessarily the case; a
nursery in a quarantined area for P. ramorum that ships only regulated
nursery stock interstate would be subject to the same inspection and
sampling protocol as a nursery that ships non-host nursery stock
interstate if P. ramorum had not been discovered at the nursery since
March 31, 2011. For these reasons, we are proposing to remove the table
from the regulations.
As we mentioned earlier in this document, Sec. 301.92-12 of the
regulations contains approved tests and testing protocols for P.
ramorum. Paragraph (a) is written in a manner which considers all
samples tested for P. ramorum using an optional ELISA prescreening to
be plants or plant products. As a result of our proposed revisions to
Sec. 301.92-11, samples tested using an optional ELISA prescreening
may not always be from plants or plant products; for example, they may
come from standing water or water used for irrigation. Therefore, we
are proposing to revise paragraph (a) of Sec. 301.92-12 accordingly.
Revisions to the Lists or Regulated and Associated Articles
As we mentioned previously in this document, Sec. 301.92-2 of the
regulations designates nursery stock of proven host taxa for P. ramorum
as regulated articles for P. ramorum. It also designates nursery stock
of taxa associated with P. ramorum, but not proven to be hosts, as
associated articles for P. ramorum. We are proposing to add Cinnamomum
camphora and Gaultheria procumbens to the list of regulated articles,
and Ilex cornuta, Illicium parviflorum, Larix kaempferi, Magnolia
denudata, Mahonia nervosa, Molinadendron sinaloense, Trachelospermum
jasminoides, and Veronica spicata Syn. Pseudolysimachion spicatum to
the list of associated articles.
Conditions for the Interstate Movement of Soil Samples
As we mentioned previously in this document, paragraph (a) of Sec.
301.92-4 provides conditions for the interstate movement of regulated
articles from quarantined areas for P. ramorum. Paragraph (a)(2) of
that section provides conditions for the interstate movement of
regulated articles without a certificate.
On June 1, 2016, we issued a Federal Order \2\ authorizing the
interstate movement of soil samples for chemical or physical
(compositional analysis) from quarantined areas for P. ramorum without
a certificate, provided that they are moved to a laboratory, and that
laboratory:
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\2\ To view the Federal Order, go to https://www.aphis.usda.gov/plant_health/plant_pest_info/pram/downloads/pdf_files/DA-2016-34.pdf.
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Has entered into and is operating under a compliance
agreement with APHIS in accordance with Sec. 301.92-6;
Is abiding by all terms and conditions of that compliance
agreement; and
Is approved by APHIS to test and/or analyze such samples.
We are proposing to amend paragraph (a)(2) of Sec. 301.92-4 based
on the provisions of this Federal Order.
Executive Orders 12866 and 13771 and Regulatory Flexibility Act
This proposed 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. This proposed rule is
not expected to be an Executive Order 13771 regulatory action because
this proposed rule is not significant under Executive Order 12866.
Further, APHIS considers this rule to be a deregulatory action under
Executive Order 13771 as the action would remove regulated areas for P.
ramorum from the regulations, as well as the regulatory requirements
specific to such areas, thus relieving restrictions on affected
entities located in those areas.
In accordance with the Regulatory Flexibility Act, we have analyzed
the potential economic effects of this action on small entities. The
analysis is summarized below. Copies of the full analysis are available
by contacting the person listed under FOR FURTHER INFORMATION CONTACT
or on the Regulations.gov website (see ADDRESSES above for instructions
for accessing Regulations.gov).
This proposed rule would revise the P. ramorum domestic regulations
to accord with Federal Orders issued 2013-2016. The Federal Orders have
allowed APHIS and State regulatory agencies to focus regulatory
controls on the nurseries that present a significant risk of spreading
the pathogen and away from those nurseries that pose a negligible risk
of contributing to its artificial spread, thereby more efficiently
apportioning resources and regulatory burden.
This proposed rule would remove the designation of P. ramorum
regulated areas, as well as all restrictions and protocols specific to
those areas. It would relieve the regulatory burden on approximately
1,500 nurseries where the disease is not present in the environment. As
an alternative to regulated areas, this action would codify the concept
of regulated establishments that would be required to enter into
compliance agreement with APHIS.
The annual cost of complying with the P. ramorum management
requirements in the regulations averages about $15,000 per nursery.
Thus, the cost savings for the 1,500 operations relieved of these
management requirements totals $22.5 million per year. In addition, by
not requiring annual certification by APHIS or State
[[Page 29469]]
officials, there are public cost savings of $252,000.
This rule would not deregulate the current P. ramorum quarantined
areas, nor would it deregulate interstate shipping nurseries located
within these quarantined areas. For regulated establishments and
establishments located within quarantined areas, compliance costs may
increase or decrease depending on amended best management practices,
but any related change in operational costs is not expected to be
significant. The majority of establishments affected by this rule are
small entities.
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 State and local
officials. (See 2 CFR chapter IV.)
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;
(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
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the reporting, recordkeeping, and
third party disclosure requirements included in this proposed rule have
already been approved by the Office of Management and Budget (OMB)
under OMB control numbers 0579-0088 and 0579-0310.
E-Government Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government Act to promote the use of the internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this proposed rule, please contact Ms. Kimberly
Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to revise 7 CFR part 301 as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
0
1. The authority citation for part 301 continues to read as follows:
Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80,
and 371.3.
Section 301.75-15 issued under Sec. 204, Title II, Public Law
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400
(7 U.S.C. 1421 note).
0
2. Section 301.92 is amended as follows:
0
a. By revising paragraph (b); and
0
b. In paragraph (c), by removing the words ``quarantined or regulated
area'' and adding the words ``quarantined area or regulated
establishment'' in their place.
The revision reads as follows:
Sec. 301.92 Restrictions on interstate movement.
* * * * *
(b) No person may move interstate from any regulated establishment
any regulated, restricted, or associated articles except in accordance
with this subpart.
* * * * *
0
3. Section 301.92-1 is amended as follows:
0
a. By removing the definition of Regulated area; and
0
b. By adding a definition of Regulated establishment in alphabetical
order.
The addition reads as follows:
Sec. 301.92-1 Definitions.
* * * * *
Regulated establishment. Any nursery regulated by APHIS pursuant to
Sec. 301.92-3(b).
* * * * *
0
4. Section 301.92-2 is amended as follows:
0
a. In paragraph (d), by adding entries alphabetically for Cinnamomum
camphora and Gaultheria procumbens; and
0
b. In paragraph (e), by adding entries alphabetically for Ilex cornuta,
Illicium parviflorum, Larix kaempferi, Magnolia denudata, Mahonia
nervosa, Molinadendron sinaloense, Trachelospermum jasminoides, and
Veronica spicata Syn. Pseudolysimachion spicatum.
The additions read as follows:
Sec. 301.92-2 Restricted, regulated, and associated articles; lists
of proven hosts and associated plant taxa.
* * * * *
(d) * * *
* Cinnamomum camphora Camphor tree
* * * * *
* Gaultheria procumbens, Eastern teaberry
* * * * *
(e) * * *
* Ilex cornuta Buford holly, Chinese holly
* * * * *
* Illicium parviflorum Yellow anise
* Larix kaempferi Japanese larch
* * * * *
* Magnolia denudata Lily tree
* * * * *
* Mahonia nervosa Creeping Oregon grape
* * * * *
* Molinadendron sinaloense
* * * * *
*Trachelospermum jasminoides Star jasmine, confederate jasmine
* * * * *
* Veronica spicata Syn. Pseudolysimachion spicatum Spiked speedwell
0
5. Section 301.92-3 is revised to read as follows:
Sec. 301.92-3 Quarantined areas and regulated establishments.
(a) Quarantined areas. (1) Except as otherwise provided in
paragraph (a)(2) of this section, the Administrator will designate as a
quarantined area in paragraph (a)(3) of this section each State, or
each portion of a State, in which Phytophthora ramorum has been
confirmed by an inspector to be established in the natural environment,
in which the Administrator has reason to believe that Phytophthora
ramorum is present in the natural environment, or that the
Administrator considers it necessary to quarantine because of its
inseparability for quarantine enforcement purposes from localities in
which Phytophthora ramorum has been found in the natural environment.
Less than an entire area will be designated as a quarantined area only
if the Administrator determines that:
(i) The State has adopted and is enforcing restrictions on the
intrastate movement of regulated, restricted, and associated articles
that are substantially the same as those imposed by this subpart on the
interstate movement of regulated, restricted, and associated articles;
and
[[Page 29470]]
(ii) The designation of less than the entire State as a quarantined
area will prevent the interstate spread of Phytophthora ramorum.
(2) The Administrator or an inspector may temporarily designate any
nonquaratined area as a quarantined area in accordance with paragraph
(a)(1) of this section. The Administrator will give a copy of this
regulation along with a written notice for the temporary designation to
the owner or person in possession of the nonquarantined area.
Thereafter, the interstate movement of any regulated, restricted, or
associated article from an area temporarily designated as a quarantined
area will be subject to this subpart. As soon as practicable, this area
will be added to the list in paragraph (a)(3) of this section or the
designation will be terminated by the Administrator or an inspector.
The owner or person in possession of an area for which designation is
terminated will be given notice of the termination as soon as
practicable.
(3) The following areas are designated as quarantined areas:
California
Alameda County. The entire county.
Contra Costa County. The entire county.
Humboldt County. The entire county.
Lake County. The entire county.
Marin County. The entire county.
Mendocino County. The entire county.
Monterey County. The entire county.
Napa County. The entire county.
San Francisco County. The entire county.
San Mateo County. The entire county.
Santa Clara County. The entire county.
Santa Cruz County. The entire county.
Solano County. The entire county.
Sonoma County. The entire county.
Trinity County. The entire county.
Oregon
Curry County. The following portion of Curry County that lies
inside the area starting at the point where the mouth of the Rogue
River meets the Pacific Ocean and continuing east along the Rogue River
to the northeast corner of T35S R12W section 31; then south to the
northeast corner of T38S R12W section 18; then east to the northeast
corner of T38S R12W section 13; then south to northeast corner of T38S
R12W section 25; then east to the northeast corner of T38S R11W section
29; then south to the northeast corner of T40S R11W section 8; then
east to the northeast corner of T40S R11W section 10; then south to the
State border with California; then west to the intersection of the
State border and U.S. Highway 101; then northwest along U.S. Highway
101 to the intersection with West Benham Lane; then west along West
Benham Lane to the Pacific Coastline; then following the Pacific
Coastline northwest to the point of beginning.
(b) Regulated establishments. (1) Designation. The Administrator
will designate a nursery that is not located in a quarantined area for
Phytophthora ramorum as a regulated establishment for Phytophthora
ramorum if the nursery ships regulated, restricted, or associated
articles interstate and sources of Phytophthora ramorum are detected on
nursery stock, or in soil, growing media, pots used for nursery stock,
standing water, drainage water, water used for irrigation, or any other
regulated, restricted, or associated articles at the nursery.
(2) Deregulation. The Administrator will withdraw regulation of a
regulated establishment if, for 3 consecutive years, each time the
nursery is inspected by an inspector, it is found free of sources of
Phytophthora ramorum inoculum.
(Approved by the Office of Management and Budget under control
number 0579-0310)
0
6. Section 301.92-4 is amended as follows:
0
a. By revising the section heading; and
0
b. By revising paragraphs (a)(2) and (d).
The revisions read as follows:
Sec. 301.92-4 Conditions governing the interstate movement of
regulated, restricted, and associated articles, and non-host nursery
stock from quarantined and regulated establishments.
(a) * * *
(2) Without a certificate. (i)(A) The regulated article or
associated article originated outside the quarantined area and the
point of origin of the article is indicated on the waybill of the
vehicle transporting the article; and
(B) The regulated or associated article is moved from outside of
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.
(ii) Soil samples may be moved from a quarantined area for
Phytophthora ramorum for chemical or physical (compositional) analysis
provided that they are moved to a laboratory; and that laboratory:
(A) Has entered into and is operating under a compliance agreement
with APHIS in accordance with Sec. 301.92-6;
(B) Is abiding by all terms and conditions of that compliance
agreement; and
(C) Is approved by APHIS to test and/or analyze such samples.
* * * * *
(d) Interstate movement of regulated, restricted, and associated
articles from regulated establishments. Regulated, restricted, and
associated articles may be moved interstate from a regulated
establishment if the regulated establishment has entered into a
compliance agreement with APHIS in accordance with Sec. 301.92-6, and
the articles are accompanied by a certificate issued in accordance with
Sec. 301.92-5.
0
7. Section 301.92-5 is amended by revising paragraphs (a)(1)(iv)(A) and
(b) to read as follows:
Sec. 301.92-5 Issuance and cancellation of certificates.
(a) * * *
(1) * * *
(iv) * * *
(A)(1) Are shipped from a nursery that has been inspected in
accordance with the inspection and sampling protocol described in Sec.
301.92-11(a)(1), and the nursery is free of evidence of Phytophthora
ramorum infestation; or
(2) Are shipped from a nursery that has been inspected in
accordance with the inspection and sampling protocol described in Sec.
301.92-11(a)(2), and the nursery is free of evidence of Phytophthora
ramorum infestation; or
(3) Are shipped from a nursery that has been inspected in
accordance with the inspection and sampling protocol described in Sec.
301.92-11(a)(2), is not free of evidence of Phytophthora ramorum
infestation, but has entered into and is operating under a compliance
agreement with APHIS, and is determined by an inspector to be abiding
by all terms and conditions of that agreement; and
* * * * *
(b) Movements from regulated establishments. An inspector may issue
a certificate for the movement of regulated, restricted, and/or
associated articles from a regulated establishment if the inspector
determines that:
(1) The nursery has entered into a compliance agreement APHIS in
accordance with Sec. 301.92-6 and is abiding by all terms and
conditions of that agreement; and
(2) The nursery has been inspected in accordance with Sec. 301.92-
11(c); and
(3) The articles to be shipped interstate are free from
Phytophthora ramorum inoculum; and
(4) The movement of the articles is not subject to additional
restriction under section 414 of the Plant Protection Act (7 U.S.C.
7714) or other
[[Page 29471]]
Federal domestic plant quarantines and regulations.
* * * * *
Sec. 301.92-6 [Amended]
0
8. Section 301.92-6 is amended as follows:
0
a. By redesignating footnote 15 as footnote 12; and
0
b. In the OMB citation at the end of the section, by adding the words
``0579-0088 and'' after the word ``numbers''.
Sec. 301.92-7 [Amended]
0
9. In Sec. 301.92-7, footnote 16 is redesignated as footnote 13.
0
10. Section 301.92-11 is revised to read as follows:
Sec. 301.92-11 Inspection and sampling protocols.
(a) Nurseries in quarantined areas shipping regulated articles of
nursery stock and associated articles interstate. (1) Nurseries in
which Phytophthora ramorum has not been detected since March 31, 2011.
To meet the requirements of Sec. 301.92-5(a)(1)(iv), nurseries that
are located in quarantined areas, that move regulated articles of
nursery stock, decorative trees without roots, wreaths, garlands, or
greenery, associated articles, or non-host nursery stock interstate,
and in which Phytophthora ramorum has not been detected since March 31,
2011, must meet the following requirements. Any such nurseries in
quarantined areas that do not meet the following requirements are
prohibited from moving regulated articles and associated articles
interstate. Any such nurseries in quarantined areas that do not meet
the following requirements or those in paragraph (b) of this section
are prohibited from moving non-host nursery stock interstate.
(i) Annual inspection, sampling, and testing. (A) Inspection. The
nursery must be inspected annually for symptoms of Phytophthora ramorum
by an inspector. Inspectors will visually inspect for symptomatic
plants throughout the nursery, and inspection will focus on, but not be
limited to, regulated articles and associated articles.
(B) Sampling. A minimum number of plant samples must be tested per
nursery location. The minimum number will be determined by APHIS on a
nursery-by-nursery basis, based on the number of regulated, restricted,
and associated articles contained in the nursery. Each sample may
contain more than one leaf, and may come from more than one plant, but
all plants in the sample must be from the same lot. Asymptomatic
samples, if collected, must be taken from regulated and associated
articles and nearby plants. Inspectors must conduct inspections at
times when the best expression of symptoms is anticipated and must take
nursery fungicide programs into consideration. Nursery owners must keep
records of fungicide applications for 2 years and must make them
available to inspectors upon request.
(C) Testing. Samples must be labeled and sent for testing to a
laboratory approved by APHIS and must be tested using a test method
approved by APHIS, in accordance with Sec. 301.92-12.
(D) Annual certification. If all plant samples tested in accordance
with this section and Sec. 301.92-12 return negative results for
Phytophthora ramorum, an inspector may certify that the nursery is free
of evidence of Phytophthora ramorum infestation at the time of the
inspection, and the nursery is eligible to enter into or maintain its
compliance agreement in accordance with Sec. 301.92-6.
(ii) Pre-shipment inspection, sampling, and testing. (A)
Inspection. During the 30 days prior to interstate movement from a
nursery in a quarantined area, regulated articles or associated
articles intended for interstate movement must be inspected for
symptoms of Phytophthora ramorum by an inspector. Inspection will focus
on, but not be limited to, regulated articles and associated articles.
No inspections of shipments will be conducted unless the nursery from
which the shipment originates has a current and valid annual
certification in accordance with this section.
(1) If no symptomatic plants are found upon inspection, the
shipment may be considered free from evidence of Phytophthora ramorum
and is eligible for interstate movement, provided that the nursery is
operating under a compliance agreement with APHIS in accordance with
Sec. 301.92-6.
(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 or associated article that is in close proximity
to, or that has had physical contact with, a symptomatic plant.
(B) Testing and withholding from interstate movement. Samples taken
in accordance with this paragraph (a)(1) must be labeled and sent for
testing to a laboratory approved by APHIS and must be tested using a
test method approved by APHIS, in accordance with Sec. 301.92-12. The
interstate movement of plants in the shipment is prohibited until the
plants in the shipment are determined to be free of evidence of
Phytophthora ramorum infection in accordance with Sec. 301.92-12.
(2) Nurseries in which Phytophthora ramorum has been detected since
March 31, 2011. To meet the requirements of Sec. 301.92-5(a)(1)(iv),
nurseries that are located in quarantined areas, that move regulated
articles of nursery stock, decorative trees without roots, wreaths,
garlands, or greenery, associated articles, or non-host nursery stock
interstate, and in which Phytophthora ramorum has been detected since
March 31, 2011, must meet the following requirements. Any such
nurseries in quarantined areas that do not meet the following
requirements are prohibited from moving regulated articles and
associated articles interstate. Any such nurseries in quarantined areas
that do not meet the following requirements or those in paragraph (b)
of this section are prohibited from moving non-host nursery stock
interstate.
(i) Inspections. The nursery must be inspected at least twice
annually for symptoms of Phytophthora ramorum infestation by an
inspector. The inspection will focus on regulated plants and other
potential sources of Phytophthora ramorum inoculum.
(ii) Sampling. Samples must be taken from host plants, soil,
standing water, drainage water, water for irrigation, and any other
articles determined by the inspector to be possible sources of
Phytophthora ramorum inoculum. The number of samples taken may vary
depending on the possible sources of inoculum identified at the
nursery, as well as the number of host articles in the nursery.
(iii) Testing. Samples must be labeled and sent for testing to a
laboratory approved by APHIS and must be tested using a test method
approved by APHIS in accordance with Sec. 301.92-12.
(iv) Negative results; certification. If all samples tested in
accordance with this section and Sec. 301.92-12 return negative
results for Phytophthora ramorum, an inspector may certify that the
nursery is free of Phytophthora ramorum at the time of the inspection.
If the nursery is inspected and determined by an inspector to be free
of Phytophthora ramorum inoculum each time it is inspected for 3
consecutive years, the nursery will thereafter be inspected in
accordance with paragraph (a)(1) of this section.
(v) Positive results. If any samples tested in accordance with this
section andSec. 301.92-12 return positive results for Phytophthora
ramorum, the nursery may ship lots of regulated, restricted, and
associated articles interstate pursuant to Sec. 301.92-5(b) only if
the lot is determined to be free from
[[Page 29472]]
Phytophthora ramorum inoculum. The method for this determination will
be specified in the nursery's compliance agreement with APHIS.
(b) Nurseries in quarantined areas shipping non-host nursery stock
interstate. Nurseries located in quarantined areas and that move non-
host nursery stock interstate must meet the requirements of this
paragraph or the requirements of paragraph (a) of this section. If such
nurseries contain any regulated or restricted articles, the nursery
must meet the requirements of paragraph (a) of this section. This
paragraph (b) only applies if there are no regulated or associated
articles or nursery stock at the nursery. Nurseries that do not meet
the requirements of paragraph (a) of this section or this paragraph (b)
are prohibited from moving non-host nursery stock interstate.
(1) Annual visual inspection. The nursery must be visually
inspected annually for symptoms of Phytophthora ramorum. Inspections
and determinations of freedom from evidence of Phytophthora ramorum
infestation must occur at the time when the best expression of symptoms
is anticipated.
(2) Sampling. All plants showing symptoms of infection with
Phytophthora ramorum upon inspection will be sampled and tested in
accordance with Sec. 301.92-12. If symptomatic plants are found upon
inspection, the following plants must be withheld from interstate
shipment until testing is completed and the nursery is found free of
evidence of Phytophthora ramorum in accordance with this paragraph and
Sec. 301.92-12: All symptomatic plants, any plants located in the same
lot as the suspect plant, and any plants located within 2 meters of
this lot of plants.
(3) Certification. If all plant samples tested in accordance with
this section and Sec. 301.92-12 return negative results for
Phytophthora ramorum, or if an inspector at the nursery determines that
plants in a nursery exhibit no signs of infection with Phytophthora
ramorum, the inspector may certify that the nursery free of evidence of
Phytophthora ramorum infestation at the time of inspection.
Certification is valid for 1 year and must be renewed each year to
continue shipping plants interstate.
(c) Regulated establishments shipping regulated, restricted, or
associated articles of interstate. (1) Inspections. To meet the
conditions of Sec. 301.92-5(b), the regulated establishment must be
inspected at least twice annually for symptoms of Phytophthora ramorum
infestation by an inspector. The inspection will focus on regulated
plants and other potential sources of Phytophthora ramorum inoculum.
(2) Sampling. Samples must be taken from host plants, soil,
standing water, drainage water, water for irrigation, growing media,
and any other articles determined by the inspector to be possible
sources of Phytophthora ramorum inoculum. The number of samples taken
may vary depending on the possible sources of inoculum identified at
the nursery, as well as the number of host articles in the nursery.
(3) Testing. Samples must be labeled and sent for testing to a
laboratory approved by APHIS and must be tested using a test method
approved by APHIS in accordance with Sec. 301.92-12.
(4) Negative results; certification. If all samples tested in
accordance with this section and Sec. 301.92-12 return negative
results for Phytophthora ramorum, an inspector may certify that the
nursery is free of Phytophthora ramorum at the time of the inspection.
For purposes of Sec. 301.92-5(b), regulated, restricted, and
associated articles at a certified nursery are considered free from
Phytophthora ramorum until the time of the next inspection.
(5) Positive results. If any samples tested in accordance with this
section and Sec. 301.92-12 return positive results for Phytophthora
ramorum, the nursery may ship lots of regulated, restricted, and
associated articles interstate pursuant to Sec. 301.92-5(b) only if
the lot is determined to be free from Phytophthora ramorum inoculum.
The method for this determination will be specified in the nursery's
compliance agreement with APHIS.
(Approved by the Office of Management and Budget under control
number 0579-0310)
Sec. 301.92-12 [Amended]
0
11. In Sec. 301.92-12, paragraph (a) introductory text is amended by
removing the words ``prescreen plant samples'' and adding the words
``prescreen samples'' in their place.
Done in Washington, DC, this 19th day of June 2018.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2018-13560 Filed 6-22-18; 8:45 am]
BILLING CODE 3410-34-P