[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:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0101.
    <bullet> 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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    <bullet> We deregulated all regulated areas for P. ramorum, and 
removed all regulatory restrictions specific to those areas.
    <bullet> 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.
    <bullet> We instituted inspection and sampling protocols for 
regulated establishments.
    <bullet> We implemented restrictions on the interstate movement of 
regulated, restricted, and associated articles from regulated 
establishments.
    <bullet> 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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    <bullet> Has entered into and is operating under a compliance 
agreement with APHIS in accordance with Sec.  301.92-6;
    <bullet> Is abiding by all terms and conditions of that compliance 
agreement; and
    <bullet> 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