This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

8585 

Vol. 72, No. 38 

Tuesday, February 27, 2007 

1The emergency order can be viewed on the 

Internet at: http://www.aphis.usda.gov/ppq/ispm/ 

pramorum/. 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. 01–054–3] 

RIN 0579–AB82 

Phytophthora Ramorum; Quarantine 

and Regulations 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Interim rule and request for 

comments. 

SUMMARY: We are amending the 

Phytophthora ramorum regulations to 

establish restrictions on the interstate 

movement of nursery stock from 

nurseries in nonquarantined areas in 

California, Oregon, and Washington. We 

are also amending the regulations to 

update conditions for the movement of 

regulated articles of nursery stock from 

quarantined areas, to add restrictions on 

the movement of decorative trees 

without roots from quarantined areas, as 

well as to restrict the interstate 

movement of all other nursery stock 

from nurseries in quarantined areas. We 

are also updating the list of plants 

regulated because of P. ramorum and 

the list of areas that are quarantined for 

P. ramorum, and making other 

miscellaneous amendments to the 

regulations. These actions are necessary 

to prevent the spread of P. ramorum to 

noninfested areas of the United States. 

DATES: This interim rule is effective 

February 27, 2007. We will consider all 

comments that we receive on or before 

April 30, 2007. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov, select 

‘‘Animal and Plant Health Inspection 

Service’’ from the agency drop-down 

menu, then click ‘‘Submit.’’ In the 

Docket ID column, select APHIS–2005– 

0102 to submit or view public 

comments and to view supporting and 

related materials available 

electronically. Information on using 

Regulations.gov, including instructions 

for accessing documents, submitting 

comments, and viewing the docket after 

the close of the comment period, is 

available through the site’s ‘‘User Tips’’ 

link. 

• Postal Mail/Commercial Delivery: 

Please send four copies of your 

comment (an original and three copies) 

to Docket No. 01–054–1, Regulatory 

Analysis and Development, PPD, 

APHIS, Station 3C71, 4700 River Road 

Unit 118, Riverdale, MD 20737–1238. 

Please state that your comment refers to 

Docket No. 01–054–3. 

Reading Room: You may read any 

comments that we receive on this 

docket in our reading room. The reading 

room is located in room 1141 of the 

USDA South Building, 14th Street and 

Independence Avenue SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 690–2817 before 

coming. 

Other Information: Additional 

information about APHIS and its 

programs is available on the Internet at 

http://www.aphis.usda.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jonathan Jones, National Phytophthora 

ramorum Program Manager, Pest 

Detection and Management Programs, 

PPQ, APHIS, 4700 River Road Unit 160, 

Riverdale, MD 20737; (301) 734–8247. 

SUPPLEMENTARY INFORMATION: 

Background 

Under the regulations in ‘‘SubpartPhytophthora Ramorum’’ (7 CFR 301.92 

through 301.92–11, referred to below as 

the regulations), the Animal and Plant 

Health Inspection Service (APHIS) of 

the U.S. Department of Agriculture 

(USDA) restricts the interstate 

movement of certain regulated and 

restricted articles from quarantined 

areas in California and Oregon to 

prevent the artificial spread of 

Phytophthora ramorum, the pathogen 

that causes the plant diseases commonly 

known as sudden oak death, ramorum 

leaf blight, and ramorum dieback. 

The regulations, which were 

established in February 2002, 

quarantined 10 counties in California 

and part of 1 county in Oregon, and 

restrict the interstate movement of 

regulated and restricted articles from 

those areas. Regulated articles, which 

may be moved interstate from 

quarantined areas contingent upon the 

application of certain phytosanitary 

measures, include soil and nursery 

stock (except acorns and seeds), 

unprocessed wood and wood products 

(including firewood, logs, and lumber), 

and plant products (including wreaths, 

garlands, and greenery) of 14 species 

and 1 genus of plants. Restricted articles 

from quarantined areas, which are 

prohibited from moving interstate 

except under departmental permit, 

include bark chips, forest stock, and 

mulch of the same 14 species and 1 

genus of plants. The regulations also 

include provisions for the issuance of 

certificates and compliance agreements, 

as well as provisions regarding 

treatments for regulated articles and 

inspection and sampling protocols for 

nurseries shipping host plants 

interstate. 

The regulatory changes codified by 

this rule are consistent with an order 

issued by APHIS on December 21, 2004, 

that restricted the interstate movement 

of nursery stock from California, 

Oregon, and Washington nurseries.1 The 

requirements established by this rule 

supercede the requirements of the order. 

In this interim rule, we are amending 

the regulations to establish restrictions 

on the interstate movement of nursery 

stock from nurseries in nonquarantined 

counties in California, Oregon, and 

Washington. We are also amending the 

regulations to update conditions for the 

movement of regulated articles of 

nursery stock from quarantined areas, to 

add restrictions on the movement of 

decorative trees without roots from 

quarantined areas, as well as to restrict 

the interstate movement of all other 

nursery stock from nurseries in 

quarantined areas. We are also updating 

the list of plants regulated because of P. 

ramorum and the list of areas that are 

quarantined for P. ramorum, and 

making other miscellaneous 

amendments to the regulations. These 

actions are necessary to prevent the 


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8586 Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 

spread of P. ramorum to noninfested 

areas of the United States. 

Changes to the Regulations Made by 

this Rule 

Since 2002, P. ramorum has been 

confirmed to be established in natural 

areas in four additional counties in 

California and a small additional area in 

Curry County, OR, and many additional 

plants have been confirmed as hosts of 

the pathogen. In this document, we are 

updating the regulations to reflect these 

developments. 

Specifically, we are adding Contra 

Costa, Humboldt, Lake, and San 

Francisco Counties in California to the 

list of quarantined areas and revising 

the description of the portion of Curry 

County, OR, that is a quarantined area 

to reflect the fact that the previously 

quarantined area has been expanded, 

and that the area remains under an 

eradication program. The updated list of 

quarantined areas appears in § 301.92–

3(a)(3) in this rule. 

We are also amending the regulations 

in § 301.92–2 that designate regulated 

and restricted articles to include 

additional taxa of P. ramorum hosts. 

The complete list of proven host taxa 

can be found in § 301.92–2(d) in the rule 

portion of this document. The proven 

genera, species, or hybrids added by this 

rule are: 

• Acer pseudoplatanus Planetree maple 

• Adiantum aleuticum Western 

maidenhair fern 

• Adiantum jordanii California 

maidenhair fern 

• Aesculus hippocastanum horse 

chestnut 

• Calluna vulgaris Scotch heather 

• Camellia spp. Camellia—all species, 

hybrids, and cultivars 

• Castanea sativa Sweet chestnut 

• Fagus sylvatica European beech 

• Frangula purshiana (≡Rhamnus 

purshiana) Cascara 

• Fraxinus excelsior European ash 

• Griselinia littoralis Griselinia 

• Hamamelis virginiana Witch hazel 

• Kalmia spp. Kalmia-all species, 

hybrids, and cultivars 

• Laurus nobilis Bay laurel 

• Maianthemum racemosum 

(≡Smilacina racemosa) False 

Solomon’s seal 

• Michelia doltsopa Michelia 

• Parrotia persica Persian ironwood 

• Photinia fraseri Red tip photinia 

• Pieris spp. Pieris-all species, hybrids, 

and cultivars 

• Pseudotsuga menziesii var. menziesii 

Douglas fir and all nursery-grown P. 

menziesii 

• Quercus cerris European turkey oak 

• Quercus chrysolepis Canyon live oak 

• Quercus falcata Southern red oak 

• Quercus ilex Holm oak 

• Rosa gymnocarpa Wood rose 

• Salix caprea Goat willow 

• Sequoia sempervirens Coast redwood 

• Syringa vulgaris Lilac 

• Taxus baccata European yew 

• Trientalis latifolia Western starflower 

• Viburnum spp. Viburnum-all species, 

hybrids, and cultivars 

The plant taxa listed above are proven 

hosts of P. ramorum based upon 

completion, documentation, review, and 

acceptance of traditional Koch’s 

postulates. Note that several updates 

have been made to previously listed 

taxa: 

• Black oak is now listed as California 

black oak; 

• The scientific name for California 

coffeeberry has been corrected; 

• Huckleberry is now listed as 

evergreen huckleberry; 

• Arrowwood is now listed as 

Bodnant viburnum; 

• All nursery-grown Quercus parvula 

are now regulated; 

• All species, hybrids, and cultivars 

of Pieris spp. are now regulated; 

• All species, hybrids, and cultivars 

of Kalmia spp. are now regulated; 

• All species, hybrids, and cultivars 

of Rhododendron spp. are now 

regulated; and 

• The listing for Umbellularia 

californica is clarified to include other 

recognized common names—

pepperwood and Oregon myrtle. 

We are also clarifying that firewood, 

logs, and lumber of specific proven host 

plant taxa are not regulated because 

available research shows that P. 

ramorum infections are limited to other 

parts (i.e., twigs, leaves, and sprouts) of 

those hosts. These hosts are indicated 

with an asterisk in revised § 301.92–

2(d). 

In addition to amending the lists of 

regulated and restricted articles, we are 

adding a new category of article to the 

regulations: Associated articles. Several 

plant species have been associated with 

P. ramorum after symptoms were 

observed on the plants and culture or 

polymerase chain reaction (PCR) tests of 

the plants returned positive results for 

P. ramorum. Traditional Koch’s 

postulates, which will confirm or 

exclude them as hosts, have not yet 

been completed for any of these plant 

species, but the positive results of 

culture or PCR tests indicate that they 

present a risk of transmitting P. 

ramorum. We are, therefore, imposing 

restrictions on their interstate 

movement (discussed in detail later in 

this document) until the results of the 

application of Koch’s postulates are 

known. At that time, we will list proven 

hosts as regulated and restricted articles 

and remove from the list of associated 

articles those plant species that are not 

proven hosts of P. ramorum via 

application of Koch’s postulates. 

Associated plant taxa are listed in 

§ 301.92–2(e); only nursery stock of 

these plant taxa are regulated under this 

rule (i.e., interstate movement of 

unprocessed wood and wood products, 

and plant products, including bark 

chips, mulch, firewood, logs, lumber, 

wreaths, garlands, and greenery of 

associated plant taxa are not regulated). 

• Abies concolor White fir 

• Abies grandis Grand fir 

• Abies magnifica Red fir 

• Acer circinatum Vine maple 

• Acer davidii Striped bark maple 

• Acer laevigatum Evergreen maple 

• Arbutus unedo Strawberry tree 

• Arctostaphylos columbiana 

Manzanita 

• Arctostaphylos uva-ursi Kinnikinnick, 

bearberry 

• Ardisia japonica Ardisia 

• Calycanthus occidentalis Spicebush 

• Castanopsis orthacantha Castanopsis 

• Ceanothus thyrsiflorus Blueblossom 

• Cinnamomum camphora Camphor 

tree 

• Clintonia andrewsiana Andrew’s 

clintonia bead lily 

• Corylus cornuta California hazelnut 

• Cornus kousa x Cornus capitata 

Cornus Norman Haddon 

• Distylium myricoides Myrtle-leafed 

distylium 

• Drimys winteri Winter’s bark 

• Dryopteris arguta California wood 

fern 

• Eucalyptus haemastoma Scribbly 

gum 

• Euonymus kiautschovicus Spreading 

euonymus 

• Fraxinus latifolia Oregon ash 

• Gaultheria shallon Salal, Oregon 

wintergreen 

• Hamamelis mollis Chinese witchhazel 

• Hamamelis x intermedia (H. mollis & 

H. japonica) Hybrid witchhazel 

• Ilex purpurea Oriental holly 

• Leucothoe axillaris Fetter-bush, dog 

hobble 

• Leucothoe fontanesiana Drooping 

leucothoe 

• Loropetalum chinense Loropetalum 

• Magnolia grandiflora Southern 

magnolia 

• Magnolia stellata Star magnolia 

• Magnolia x loebneri Loebner magnolia 

• Magnolia x soulangeana Saucer 

magnolia 

• Manglietia insignis Red lotus tree 

• Michelia maudiae Michelia 

• Michelia wilsonii Michelia 

• Nerium oleander Oleander 


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Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 8587 

2Note the distinction between regulated areas 

and quarantined areas. Quarantined areas include 

the 14 counties in California and a portion of 1 

county in Oregon listed in § 301.92–3(a)(3). 

Regulated areas include all remaining areas of 

California and Oregon, and the entire State of 

Washington. 

3Non-host nursery stock is defined as any taxa of 

nursery stock not listed in § 301.92–2 as a regulated 

or associated article. 

4Persons operating under compliance agreements 

in accordance with § 301.92–6 are eligible to issue 

certificates for the interstate movement of regulated 

and associated articles, but only APHIS, State, and 

county inspectors are authorized to conduct nursery 

inspections required by the regulations. 

5 ‘‘Lot’’ is defined as a contiguous block of plants 

of the same species or cultivar, of the same 

container size and from the same source, if known. 

• Nothofagus obliqua Roble beech 

• Osmanthus decorus (≡Phillyrea 

decora; ≡P. vilmoriniana) Osmanthus 

• Osmanthus delavayi Delavay 

Osmanthus, Delavay tea olive 

• Osmanthus fragrans Sweet olive 

• Osmanthus heterophyllus Holly olive 

• Osmorhiza berteroi Sweet Cicely 

• Parakmeria lotungensis Eastern joy 

lotus tree 

• Pittosporum undulatum Victorian box 

• Prunus laurocerasus English laurel, 

cherry laurel 

• Prunus lusitanica Portuguese laurel 

cherry 

• Pyracantha koidzumii Formosa 

firethorn 

• Quercus acuta Japanese evergreen oak 

• Quercus petraea Sessile oak 

• Quercus rubra Northern red oak 

• Rosa (specific cultivars) hybrid roses 

Royal Bonica (tagged: ‘‘MEImodac’’), 

Pink Meidilland (tagged: 

‘‘MEIpoque’’), Pink Sevillana (tagged: 

‘‘MEIgeroka’’) 

• Rosa rugosa Rugosa rose 

• Rubus spectabilis Salmonberry 

• Schima wallichii Chinese guger tree 

• Taxus brevifolia Pacific yew 

• Taxus x media Yew 

• Torreya californica California nutmeg 

• Toxicodendron diversilobum Poison 

oak 

• Vancouveria planipetala Redwood 

ivy 

Nurseries Located Outside Quarantined 

Areas 

A primary purpose of this rule is to 

address the discovery of P. ramorum in 

nurseries in California, Oregon, and 

Washington that are outside 

quarantined areas. Nurseries outside the 

quarantined area were not previously 

covered by the regulations. While P. 

ramorum is present and in some cases 

widespread in the natural environment 

in the quarantined areas of California 

and Oregon, the detections of P. 

ramorum in the nonquarantined areas of 

California and Oregon and in the State 

of Washington have been limited to 

commercially produced nursery plants. 

These nurseries are a proven source of 

P. ramorum moved in the interstate 

trade of nursery stock, therefore, we are 

regulating the interstate movement of 

nursery stock from nurseries in 

nonquarantined areas in California, 

Oregon, and Washington (referred to 

elsewhere in this document and in the 

amended regulations as regulated 

areas 2) in order to prevent the spread of 

P. ramorum to noninfested areas of the 

United States. As stated in the previous 

section, we are not regulating the 

interstate movement of any other 

restricted or regulated articles from 

regulated areas because positive finds in 

regulated areas have been limited to 

nursery stock. 

Specifically, any nursery located in a 

regulated area that contains regulated 

articles of nursery stock or associated 

articles is prohibited from moving 

nursery stock interstate until certain 

conditions are met. In some cases, 

nurseries may also be prohibited from 

shipping non-host nursery stock 3 until 

the same or similar conditions are met. 

These conditions, which are contained 

in § 301.92–11 of the regulations, are 

described below. 

Requirements for Moving Regulated 

Articles of Nursery Stock and 

Associated Articles Interstate From 

Regulated Areas 

Paragraph (c) of § 301.92–11 pertains 

to nurseries located in regulated areas 

that ship regulated articles of nursery 

stock or associated articles interstate. 

Under paragraph (c), such nurseries 

must be inspected for symptoms of P. 

ramorum by an APHIS, State, or county 

inspector.4 Inspection will focus on, but 

not be limited to, regulated articles of 

nursery stock and associated articles. 

Samples must be taken from all 

symptomatic plants. If fewer than 40 

symptomatic plants are present, each 

symptomatic plant must be sampled and 

additional samples must be taken from 

asymptomatic plants so that the 

minimum number of plants sampled 

totals 40. If no symptomatic plants are 

present, 40 asymptomatic plants must 

be sampled. 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.5

If the samples are collected from 

asymptomatic plants, the samples 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 (typically within 30–90 days 

of bud break) and must take nursery 

fungicide programs into consideration 

to maximize the opportunity to observe 

symptoms. We recommend that 

inspections be performed 2 to 9 weeks 

after any application of fungicides that 

are efficacious for Phytophthora spp. or 

oomycetes, (depending on the type of 

fungicide used and the plant treated), 

and prior to any subsequent 

applications of such fungicides. Nursery 

owners must also keep records of 

fungicide applications for 2 years and 

must make them available to inspectors 

upon request. 

Annual Certification and Recordkeeping 

All plant samples must be tested in 

accordance with § 301.92–12. If samples 

return negative results for P. ramorum, 

an inspector may certify that the nursery 

is free of evidence of Phytophthora 

ramorum infestation at the time the 

plants were inspected. Nurseries in a 

regulated area must have current and 

valid certification to ship regulated 

articles of nursery stock and associated 

articles interstate. If annual certification 

expires prior to reinspection, all plants 

in the nursery are prohibited interstate 

movement until the nursery is 

inspected, tested, and re-certified in 

accordance with the regulations. 

All nurseries that are operating under 

compliance agreements must maintain 

records of all incoming shipments of 

plants for a minimum of 24 months and 

must make them available to inspectors 

upon request. In addition, all nurseries 

that are operating under compliance 

agreements, except retail dealers, must 

maintain records of outgoing shipments 

for a minimum of 24 months. This 

recordkeeping will help to facilitate 

tracebacks and traceforwards in the 

event that articles infected with P. 

ramorum are discovered upon 

inspection. 

Requirements for Moving Non-Host 

Nursery Stock Interstate From Regulated 

Areas 

Paragraph (d) of § 301.92–11 pertains 

to nurseries in regulated areas that 

contain only non-host nursery stock. If 

a nursery located in a regulated area 

moves non-host nursery stock interstate 

but the nursery contains regulated 

articles of nursery stock or associated 

articles, the nursery must meet the 

requirements of § 301.92–11(c), which 

are described above, even if the nursery 

only ships non-host nursery stock 

interstate. Alternately, under paragraph 

(d), if there are no regulated or 

associated articles in the nursery, a 

nursery in a regulated area may ship 

non-host nursery stock interstate if the 

following conditions are met: 

• The nursery must be visually 

inspected annually and found free of 

symptoms of P. ramorum at the time 


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8588 Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 

6As described earlier in this document, 

associated articles include only nursery stock of 

plant taxa listed in § 301.92–2(e). 

when the best expression of symptoms 

is anticipated (typically within 30–90 

days of bud break). 

• If symptomatic plants are found 

upon inspection, all such plants must be 

tested, and the following plants must be 

withheld from interstate shipment until 

testing is completed and the nursery is 

found free of evidence of P. ramorum by 

an inspector: All symptomatic plants, 

any plants located in the same lot as the 

symptomatic plant, and any plants 

located within 2 meters of the affected 

lot(s) of plants. 

• If no symptomatic plants are found, 

an inspector may certify that the nursery 

is free of evidence of P. ramorum, and 

non-host nursery stock will be eligible 

for interstate movement. Note that no 

certificate is required for non-host 

plants moving interstate in accordance 

with § 301.92–11(d). 

The States of California, Oregon, and 

Washington, and local governments 

cooperate with APHIS in enforcing the 

requirements of this rule. The States 

have agreed to maintain on the Internet 

a current list of nurseries that have been 

certified as free of evidence of P. 

ramorum infestation in accordance with 

this rule. Links to the States’ lists can be 

found at http://www.aphis.usda.gov/ 

ppq/ispm/pramorum/resources.html. 

Sunset Clause 

In the December 2004 Federal Order, 

the provisions described above 

pertaining to nurseries located in 

regulated areas and the interstate 

movement of nursery stock from 

regulated areas were scheduled to 

expire three years from the effective 

date, unless APHIS issued another rule 

before that time to extend or revise that 

aspect of the P. ramorum regulatory 

program. That expiration date only 

pertained to regulated areas in 

California, Oregon, and Washington that 

are outside quarantined areas. We have 

decided that the sunset clause included 

in the Federal Order is no longer 

necessary or appropriate, therefore we 

are not including it in this rule and are 

continuing the provisions described 

above pertaining to nurseries located in 

regulated areas and the interstate 

movement of nursery stock from 

regulated areas until further notice. 

Additional Restrictions on the 

Movement of Associated Articles and 

Non-Host Nursery Stock From 

Quarantined Areas 

This rule also restricts the interstate 

movement of associated articles 6 and 

non-host nursery stock from 

quarantined areas. Associated articles 

must meet the same conditions for 

interstate movement from a quarantined 

area that apply to regulated articles of 

nursery stock; those conditions can be 

found in revised § 301.92–11(a). Nonhost nursery stock must typically meet 

the same conditions for interstate 

movement from a quarantined area that 

apply to regulated articles of nursery 

stock, but if a nursery in a quarantined 

area contains no regulated articles of 

nursery stock or associated articles, nonhost nursery stock may be moved 

interstate from that nursery provided 

the nursery is inspected and found free 

of evidence of P. ramorum in 

accordance with revised § 301.92–11(b), 

which contains essentially the same 

inspection and sampling protocol 

described above under the heading 

‘‘Requirements for Moving Non-Host 

Nursery Stock Interstate from Regulated 

Areas.’’ Note that to be eligible for 

interstate movement, non-host nursery 

stock that is rooted in soil or growing 

media requires certification that the soil 

or growing media meets the 

requirements of § 301.92–5(a)(1)(iii). 

Most revisions made to the 

regulations by this rule pertain to 

inspection and sampling protocols for 

nursery stock moving interstate from 

California, Oregon, and Washington. In 

order to eliminate confusion over what 

provisions apply in a given situation, 

we have prepared the following table. 

Type(s) of plants in the nursery Type(s) of plants shipped interstate 

Inspection and certification protocol 

Origin: Quarantined 

areas 

Origin: Regulated 

areas 

Regulated articles only ...................................... None ................................................................. Not regulated ............. Not regulated. 

Regulated articles only ...................................... Regulated articles ............................................ § 301.92–11(a) .......... § 301.92–11(c). 

Associated articles only .................................... None ................................................................. Not Regulated ........... Not Regulated. 

Associated articles only .................................... Associated articles ........................................... § 301.92–11(a) .......... § 301.92–11(c). 

Regulated and associated articles only ............ Regulated or associated articles, or both ........ § 301.92–11(a) .......... § 301.92–11(c). 

Regulated and associated articles and nonhosts.None ................................................................. Not regulated ............. Not regulated. 

Regulated and associated articles and nonhosts.Regulated or associated articles, or both ........ § 301.92–11(a) .......... § 301.92–11(c). 

Regulated and associated articles and nonhosts.Non-hosts only ................................................. § 301.92–11(a) .......... § 301.92–11(c). 

Non-hosts only .................................................. None ................................................................. Not regulated ............. Not regulated. 

Non-hosts only .................................................. Non-hosts ......................................................... § 301.92–11(b) 1 ........ § 301.92–11(d). 

Decorative trees without roots (e.g., Christmas 

trees).

Proven host plant taxa ..................................... § 301.92–11(a) .......... Not regulated. 

Decorative trees without roots (e.g., Christmas 

trees).

Associated plant taxa ....................................... Not regulated ............. Not regulated. 

1 Under § 301.92–4, non-host nursery stock from a nursery in a quarantined area that contains no regulated or associated articles does not require a certificate for interstate movement, provided that the plants are moved bare-root; if soil or growing media is attached to non-host nursery 

stock, to be eligible for interstate movement, the soil or growing media must be certified in accordance with § 301.92–5(a)(1)(iii). 

This rule also amends certain existing 

provisions pertaining to inspection and 

testing of nurseries in quarantined areas. 

Prior to the effective date of this interim 

rule, the inspection and sampling 

protocol contained in § 301.92–11 

required nurseries that ship regulated 

articles of nursery stock interstate to be 

inspected and tested annually for P. 

ramorum, and each shipment intended 

for interstate movement to be inspected 

for symptoms of P. ramorum, and if 


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Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 8589 

7 Detailed descriptions of testing and sample 

analysis procedures can be viewed on the Internet 

at http://www.aphis.usda.gov/ppq/ 

ispm/pramorum/. 

8Nurseries in quarantined areas require both 

current annual certification and certification of 

individual interstate shipments of regulated articles 

of nursery stock and associated articles. 

9See footnote 7. 

necessary, tested. This rule amends the 

text of those provisions in order to 

clarify them and improve their 

effectiveness. Specifically, in this rule: 

• The provisions for inspecting 

nurseries are revised. We are requiring 

the inspections to be focused on the 

detection and identification of 

symptomatic regulated articles of 

nursery stock and associated articles, 

and are requiring that all symptomatic 

plants be sampled and tested. We 

believe inspecting the entire nursery 

and focusing on all proven host nursery 

stock and associated plant taxa will best 

enable us to determine if P. ramorum is 

present in the nursery being inspected. 

• The testing protocol is specified. 

The regulations in effect prior to this 

rule simply required samples to be sent 

to an APHIS-approved laboratory for 

testing. This rule requires samples to be 

tested and evaluated using an APHISapproved method at an APHIS-approved 

laboratory in order to ensure that the 

tests produce accurate and consistent 

results. This rule also describes the only 

currently approved test protocol. The 

protocol is described in detail later in 

this document under the heading 

‘‘Testing.’’

• We are clarifying that nurseries in 

quarantined areas must have a current 

and valid annual certification of 

freedom from evidence of P. ramorum 

in order to submit individual shipments 

of nursery stock for inspection. 

• We are specifying conditions under 

which nurseries in quarantined and 

regulated areas may continue to move 

articles interstate if the nursery receives 

articles from an uncertified nursery in a 

quarantined or regulated area. These 

conditions are located in § 301.92–5, 

paragraphs (a)(1)(iv)(D) and (b)(1)(ii), 

respectively. 

New Proven Hosts or Associated Plants 

and Effects on Regulated Nurseries 

New hosts of P. ramorum are being 

identified on a monthly, sometimes 

weekly, basis. As such, the regulations 

may not always reflect all known 

proven hosts and associated plant taxa. 

Under the regulations in § 301.92–2, an 

inspector may notify a person that a 

given product or article is subject to the 

regulations, even if the product or 

article is not specifically listed in the 

regulations. This might occur if the 

product or article (i.e. non-host nursery 

stock, pots, or potting tools) was 

associated with other products or 

articles that are likely infected with P. 

ramorum. In those instances, the 

product or article would be held until 

determined free from P. ramorum using 

official, APHIS-approved testing. APHIS 

inspectors provide notice to affected 

States and stakeholders when new hosts 

are confirmed and associated plants are 

identified. Such plants and their 

products then become subject to the 

regulations. Hosts are added when 

official samples (samples taken by 

Federal, State, or county inspectors and 

submitted to APHIS) are confirmed to be 

infected with P. ramorum. National 

plant protection organizations (NPPO) 

of foreign countries are also recognized 

as credible sources for the identification 

of new hosts, as well as known P. 

ramorum researchers who publish their 

new host findings in peer reviewed 

journals or report their findings. When 

researchers report new host finds, these 

finds are verified either by the NPPO of 

the country in which the researcher 

resides or by APHIS. 

In this rule, we clarify that the 

following provisions apply when APHIS 

informs a nursery owner that additional 

proven hosts or associated plants have 

been confirmed: 

• Nurseries operating under a 

compliance agreement in accordance 

with § 301.92–6 may continue to ship 

plants interstate in accordance with the 

regulations. 

• Nurseries that had not previously 

contained any regulated or associated 

articles, and that had been inspected in 

accordance with § 301.92–11(b)(3) and 

allowed to ship plants interstate without 

a certificate, but that contain a newly 

identified proven host or associated 

plant must cease interstate shipments of 

regulated and associated articles until 

the nursery is reinspected and found 

free of evidence of P. ramorum in 

accordance with § 301.92–11. Nurseries 

that come under regulation during 

winter dormancy periods and that are 

not able to be inspected in accordance 

with § 301.92–11 prior to desired 

shipments of non-host nursery stock 

may be allowed to ship non-host 

nursery stock interstate at the discretion 

of an inspector. 

These provisions provide clear 

guidance to affected persons as to how 

they will be affected by additions to the 

lists of proven hosts and associated 

plant taxa. 

Testing 

We are also amending the regulations 

to clearly describe the testing protocols 

that must be used to determine whether 

plant samples taken in accordance with 

the regulations are infected with P. 

ramorum. These testing requirements 

are located in a new § 301.92–12. Under 

this section, samples must be analyzed 

using a methodology approved by 

APHIS at a laboratory approved by 

APHIS. The process for testing and 

analyzing samples is described below.7

Any samples collected in accordance 

with the regulations may be prescreened 

using an APHIS-approved enzymelinked immunosorbent assay (ELISA) to 

determine the presence of Phytophthora 

spp. ELISA tests are optional; however, 

if all samples collected from a single 

nursery or a single shipment are found 

to be negative through ELISA 

prescreening, no further testing of the 

plants sampled is required. A nursery or 

shipment of plants may be considered 

free of evidence of P. ramorum based on 

negative results of ELISA tests, and 

provided all other applicable 

requirements are met, the plants are 

eligible for interstate movement.8

If ELISA prescreening is not 

performed, or if results of ELISA 

prescreening are positive for 

Phytophthora spp. in any sample, the 

sample must be analyzed using an 

APHIS-approved 9 test. Samples will be 

considered positive for P. ramorum 

based on positive results of any 

approved test. Positive PCR or other 

molecular tests do not require 

confirmatory culture tests, nor do 

positive culture tests require 

confirmatory PCR or other molecular 

tests; however, if culture tests return 

other than positive results, an APHISapproved PCR or other molecular test 

must be conducted, as described below. 

No culture test is required if an APHISapproved PCR or other molecular test 

returns negative results. Plants in the 

nursery must be withheld from 

interstate movement pending negative 

test results in accordance with 

applicable provisions of § 301.92–11. 

PCR and Other Molecular Tests 

If the results of PCR or other 

molecular tests are negative for all 

samples from a nursery or single 

shipment, no further testing is required. 

The nursery or shipment sampled may 

be considered free of evidence of P. 

ramorum. 

If any samples tested using the PCR 

protocol or another approved protocol 

return positive results for P. ramorum, 

the nursery from which they originate is 

prohibited from moving plants interstate 

until an inspector determines that 

plants intended for interstate movement 

are free of evidence of P. ramorum 


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10Permits are not required for the interstate 

movement of regulated or associated articles, or 

non-host nursery stock. A certificate issued in 

accordance with § 301.92–5 is required for those 

articles. 

infection. When an inspector 

determines that a nursery in a regulated 

area is free of evidence of P. ramorum 

infestation, the nursery will be eligible 

to move plants interstate under 

certificate. Nurseries in quarantined and 

regulated areas that contain only nonhost nursery stock are eligible to move 

plants interstate in accordance with 

§ 301.92–11(b) and (d). 

Similarly, when an inspector 

determines that a shipment of nursery 

stock intended for interstate movement 

from a nursery in a quarantined area is 

free of evidence of P. ramorum 

infection, and provided the nursery has 

current and valid annual certification in 

accordance with the regulations, the 

shipment of nursery stock is eligible for 

interstate movement under certificate. 

Culture Test 

If the results of culture tests are other 

than positive for any samples taken 

from a nursery or a single shipment, 

each plant sample that returns other 

than positive culture results must be 

tested again using an approved PCR or 

other molecular test, and plants from 

the nursery or shipment are only 

eligible for interstate movement if 

results of such tests are negative for all 

samples taken. 

If any culture tests return positive 

results for P. ramorum, the movement of 

nursery stock is restricted under the 

same conditions described above for 

positive PCR and other molecular tests. 

Restrictions on the Interstate Movement 

of Decorative Trees Without Roots From 

Quarantined Areas 

We are restricting the interstate 

movement of decorative trees without 

roots (e.g., Christmas trees) of proven P. 

ramorum host taxa. Under the 

regulations, locations where trees are 

grown for sale as decorative trees 

without roots, and locations where 

decorative trees without roots are stored 

or distributed are considered nurseries. 

As such, any such location that ships 

trees interstate and that grows 

decorative trees without roots of proven 

P. ramorum host taxa is subject to the 

same inspection, testing, and 

certification requirements as any other 

nursery. Thus, decorative trees without 

roots that are shipped interstate from 

quarantined areas must originate from a 

nursery that has current, valid annual 

certification of freedom from evidence 

of infestation by P. ramorum in 

accordance with § 301.92–11(a)(1) and 

individual shipments must also be 

inspected and certified in accordance 

with § 301.92–11(a)(2). 

Note that locations that grow, store, or 

distribute decorative trees without roots 

that are not proven hosts of P. ramorum 

are not regulated under this rule unless 

the location contains proven hosts. If 

the nursery ships interstate and contains 

any proven hosts, the nursery is subject 

to the regulations. 

The interstate movement of decorative 

trees without roots from regulated areas 

is not regulated under this rule. 

Additional Provisions for the Interstate 

Movement of Wreaths, Garlands, and 

Greenery of Proven Host Taxa From 

Quarantined Areas 

Prior to this rule, the regulations only 

allowed the movement of regulated 

articles of wreaths, garlands, and 

greenery from a quarantined area if the 

articles were treated in accordance with 

a treatment listed in 7 CFR part 305 or 

a treatment listed in § 301.92–10. In this 

rule, we are amending the regulations to 

allow wreaths, garlands, and greenery of 

proven P. ramorum host taxa to be 

moved interstate from a quarantined 

area if the articles originate from a 

nursery that has current, valid annual 

certification of freedom from evidence 

of infestation by P. ramorum, in 

accordance with § 301.92–11(a)(1), and 

provided that individual shipments of 

such articles are inspected and certified 

in accordance with § 301.92–11(a)(2). 

Permits 

The regulations in § 301.92–4 have 

provided for the interstate movement of 

restricted articles via departmental 

permit.10 APHIS does issue permits for 

the movement of restricted articles for 

research purposes, but technically not 

via a departmental permit. Therefore, 

we are amending the regulations in 

§ 301.92–4 to provide that we will issue 

permits for such movements in 

accordance with the requirements of 7 

CFR part 330, which provides for the 

movement of plant pests and material 

that may be infected or infested with 

plants pests. 

Miscellaneous 

We are clarifying in revised § 301.92 

that the interstate movement of 

regulated, restricted, or associated 

articles, or nursery stock that has been 

tested with a test approved by APHIS 

and found infected with P. ramorum, or 

that is part of a plant that was found 

infected with P. ramorum, is prohibited, 

unless such movement is in accordance 

with the plant pest regulations in 7 CFR 

part 330. 

In conjunction with the changes 

described in this document, we are 

adding definitions for the terms 

associated article, from, lot, non-host 

nursery stock, nursery, and regulated 

area to § 301.92–1. The definitions for 

associated article, lot, non-host nursery 

stock and regulated area are described 

earlier in this document. The term from 

is defined in order to clarify when a 

particular nursery requires inspection. 

An article is considered to be ‘‘from’’ a 

specific site or location if it was grown 

or propagated in, stored or sold, or 

distributed from the site or location. 

The term nursery is defined in order 

to clarify what types of businesses are 

subject to the regulations pertaining to 

the interstate movement of nursery 

stock. Nursery is defined as any location 

where nursery stock is grown, 

propagated, stored, or sold; or any 

location from which nursery stock is 

distributed. Also, as described earlier in 

this document, locations that grow trees 

for sale without roots (e.g., as Christmas 

trees) are considered to be nurseries for 

the purpose of the regulations. 

In addition, we are revising the 

definitions of certificate, forest stock, 

mulch, nursery stock, and soil in 

§ 301.92–1. The definition of certificate 

is revised to reflect the fact that 

certificates issued in accordance with 

the regulations may be in the form of a 

stamp or imprint that looks like this: 


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Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 8591 

11Available at http://www.ippc.int/. 

The definition for mulch is revised to 

clarify that plant material meeting the 

definition of mulch (bark chips, wood 

chips, wood shavings, or sawdust, or a 

mixture thereof) is regulated as mulch if 

used as part of a growing media 

mixture. 

The definition of nursery stock is 

revised to (1) ensure that it applies to all 

potential P. ramorum host materials, 

bedding plants, and other herbaceous 

plants, bulbs, and roots, (2) clarify that 

it applies to tree seedlings being used 

for reforestation, and (3) remove 

references to seeds and fruit pits, as 

those articles are not subject to 

regulation under the quarantine. In 

conjunction with this change, and with 

the addition of a definition for nursery, 

we are also revising the definition for 

forest stock to reflect that forest stock 

includes all flowers, trees, shrubs, vines, 

scions, buds, or other plants that are 

wild-grown, backyard-grown, or 

naturally occurring. 

The definition for soil is revised to 

reflect the definition used by the 

International Plant Protection 

Convention glossary of phytosanitary 

terms: 11 The loose surface material of 

the earth in which plants grow, in most 

cases consisting of disintegrated rock 

with an admixture of organic material. 

As a result of revising the definition of 

soil, we also need to add provisions to 

the regulations to ensure the regulations 

continue to cover growing media 

mixtures that were clearly regulated 

under the prior regulations as soil. As 

such, we are adding a definition of 

growing media to the regulations, as 

well as updating the regulations so that 

growing media is regulated in the same 

fashion as soil. Growing media is 

defined as any material in which plant 

roots are growing or intended for that 

purpose. 

We are revising the provisions 

pertaining to quarantined areas in 

§ 301.92–3 to make it clear that APHIS 

will quarantine an area based on 

confirmed detections of P. ramorum in 

the natural environment, not based on 

detections in artificial environments 

such as nurseries. 

We are also clarifying provisions 

throughout the regulations regarding 

certifications of freedom from P. 

ramorum. The regulations in effect prior 

to this interim rule restricted the 

interstate movement of regulated 

articles from nurseries until such a time 

as an inspector could determine that the 

nurseries are free of evidence of P. 

ramorum. This rule provides that 

nurseries must be free of evidence of P. 

ramorum infestation; certification of 

‘‘pest freedom’’ can only be made if 

each individual plant is tested for the 

pathogen. 

We are also updating § 301.92–7 

regarding advance notice for the 

services of an inspector to require that 

a person wishing to move plants that 

require a certificate for interstate 

movement must notify the inspector as 

far in advance of the desired interstate 

movement as possible, but no less than 

48 hours before the desired time of 

inspection. This section had previously 

stated that we require 14 days’ advance 

notice, but we are able to respond with 

48 hours’ notice. 

We are updating § 301.92–10 

pertaining to treatments to make it clear 

that soil treated for P. ramorum must be 

heated such that the temperature at the 

center of the load reaches at least 180 °F 

for 30 minutes. We are also clarifying 

that the hot water dip for wreaths, 

garlands, and greenery is applicable to 

all regulated articles, including newly 

listed ones, as well as referencing the 

approved treatment for bay leaves listed 

in 7 CFR part 305. 

Need for Additional Revisions to the 

Regulations 

The study of P. ramorum is constantly 

producing new information that allows 

us to better regulate the interstate 

movement of plant material to prevent 

the spread of the diseases caused by the 

pathogen. APHIS and the Forest Service, 

USDA, have been conducting annual 

national surveys to determine whether 

and where P. ramorum exists in other 

areas of the United States. If additional 

hosts of P. ramorum are identified 

during the course of the national survey 

or by other scientific research, we will 

add those hosts to the list of regulated 

and restricted articles as appropriate. 

Detection of P. ramorum on other 

species through PCR or culture tests 

could result in those species being 

added to the list of associated articles. 

Completion of Koch’s postulates would 

prove them as hosts. 

This rule is being promulgated on an 

emergency basis to address specific 

imminent risks. We recognize that 

several facets of the regulations require 

additional revision to bring them up to 

date with current operational practices 

and the state of scientific knowledge 

regarding P. ramorum. We intend to 

publish another document for public 

comment in the future that will focus on 

treatments. We also intend to update the 

conditions for interstate movement for 

certain articles other than nursery stock, 

including wreaths and garlands, leaves, 

stems and branches, green waste, and 

other articles. 


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12The only species of Christmas tree that is 

affected by the rule is the Douglas fir, which 

reportedly is not a high volume product in the 

quarantined area. As such, we do not believe this 

particular aspect of the interim rule will cause 

significant impact on affected nurseries. 

We will continue to review our P. 

ramorum regulatory program and 

evaluate the new restrictions on 

nurseries in regulated areas upon 

receipt of comments on this rule, and 

upon evaluation of data derived from 

the program so far. We will provide 

public notification of any changes to the 

regulations via a document published in 

the Federal Register. 

Emergency Action 

This rulemaking is necessary on an 

emergency basis to prevent the spread of 

P. ramorum outside quarantined areas 

in California and Oregon and infected 

nursery sites in California, Oregon, and 

Washington. Under these 

circumstances, the Administrator has 

determined that prior notice and 

opportunity for public comment are 

contrary to the public interest and that 

there is good cause under 5 U.S.C. 553 

for making this rule effective less than 

30 days after publication in the Federal 

Register. 

We will consider comments we 

receive during the comment period for 

this interim rule (see DATES above). 

After the comment period closes, we 

will publish another document in the 

Federal Register. The document will 

include a discussion of any comments 

we receive and any amendments we are 

making to the rule. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This rule has been reviewed under 

Executive Order 12866. The rule has 

been determined to be significant for the 

purposes of Executive Order 12866 and, 

therefore, has been reviewed by the 

Office of Management and Budget. 

We have prepared an economic 

analysis for this interim rule. It provides 

a cost-benefit analysis as required by 

Executive Order 12866, as well as an 

initial regulatory flexibility analysis, 

which considers the potential economic 

effects of this interim rule on small 

entities, as required by the Regulatory 

Flexibility Act. The economic analysis 

is summarized below. The full 

economic analysis may be viewed on 

the Regulations.gov Web site (see 

ADDRESSES at the beginning of this 

document for instructions for accessing 

Regulations.gov). You may request 

paper copies of the economic analysis 

by calling or writing to the person listed 

under FOR FURTHER INFORMATION

CONTACT. Please refer to Docket No. 01–

054–3 when requesting copies. The 

economic analysis is also available for 

review in our reading room (information 

on the location and hours of the reading 

room is listed under the heading 

ADDRESSES at the beginning of this 

document). 

We do not currently have all of the 

data necessary for a comprehensive 

analysis of the effects of this interim 

rule on small entities. Therefore, APHIS 

welcomes public comment that would 

enable us to more fully consider impacts 

of the rule, specifically information on 

costs that may be incurred due to 

complying with the interstate movement 

restrictions. 

Expected Costs of the Interim Rule 

This interim rule places restrictions 

on the interstate movement of nursery 

stock from California, Oregon, and 

Washington. This economic analysis 

will focus primarily on the effects of 

restricting nursery stock from the 

regulated and quarantined areas. While 

there are other articles regulated besides 

nursery stock, such as trees without 

roots (i.e., Christmas trees), the 

economic impacts of restricting the 

movement of these other articles are 

expected to be relatively smaller, and 

therefore are not a primary focus of the 

analysis.12

Those nurseries wishing to engage in 

interstate movement of nursery stock of 

proven and associated hosts of P. 

ramorum may only do so if it is 

accompanied by a certificate issued 

under an APHIS Phytophthora ramorum 

compliance agreement. Nurseries 

located in the quarantined area that are 

planning to ship host articles must 

undergo annual inspection, as well as 

inspection of individual shipments, 

prior to being certified to ship interstate. 

In order to ship non-host articles 

interstate, nurseries in the quarantined 

area must follow these same protocols, 

with the exception that nurseries 

containing no proven or associated host 

stock may receive certification to ship 

after undergoing annual inspection and 

will not be required to inspect 

individual shipments. On the other 

hand, nurseries in the regulated area 

that intend to ship nursery stock of 

proven or associated host taxa must 

undergo annual inspection to be 

certified to ship interstate. Only those 

nurseries that contain only non-host 

nursery stock can ship without 

certification, provided that they have 

undergone annual inspection. In order 

to enter into a compliance agreement 

and obtain certification to ship 

regulated articles, the nursery must take 

certain steps, such as undergoing annual 

inspection and sampling of nursery 

stock, and testing plant samples at a 

USDA approved laboratory using 

federally approved laboratory protocols. 

Thus, there are two major components 

to certification: Inspection and testing. It 

is important to note that the costs 

associated with entering into and 

maintaining a compliance agreement 

were covered by regulating agencies, 

specifically USDA and State 

departments of agriculture in 2005 and 

2006. Funding for entering into and 

maintaining a compliance agreement in 

2007 will transition and have to be 

borne by the entity under the 

compliance agreement for any amount 

not covered by available Federal or State 

funding. APHIS will provide affected 

entities with advance notice and 

guidance before we change the way we 

fund—including the possibility of 

requiring additional funding support 

from program participants and other 

cooperators—the specific activities 

associated with entering into and 

maintaining compliance agreements. 

Inspection 

Nurseries will be required to undergo 

annual inspection and be certified free 

of P. ramorum. This inspection and 

sampling will be provided by Federal 

and State inspectors, the cost of which 

was covered by USDA in 2005 and 

2006, when conducted during normal 

business hours. Individual nursery 

operators are responsible for all costs 

and charges arising from inspection and 

other services provided outside normal 

business hours. In addition, for those 

nurseries that must undergo inspection 

and sampling of individual shipments, 

the costs of those services were also 

covered by USDA in 2005 and 2006. 

Likewise, Federal funds are expected to 

cover the costs for these inspection and 

sampling activities in 2007, to the extent 

that funds are available. APHIS will 

provide affected entities with advance 

notice and guidance before we change 

the way we fund those inspection and 

sampling activities. 

Testing 

The interim rule will further amend 

the regulations by specifically 

describing the testing protocols that 

must be used to determine whether 

plant samples are infected with P. 

ramorum. While samples are being 

tested, nurseries must withhold 

shipments from movement until 

negative results are returned. The actual 

cost impact on nurseries will vary, 

depending on the classification of 

article shipped and/or the type of 

testing performed. Nurseries may 

choose to prescreen samples by using 


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13Source: Phillip Berger, National Science 

Program Leader—Molecular Diagnostics & 

Biotechnology, USDA APHIS PPQ (Raleigh, NC). 

NOTE: These estimates would cover the cost of 

materials and supplies, and some but possibly not 

all labor. These estimates do not consider the cost 

of instrumentation, service contracts, maintenance, 

etc. 

14Source: Jonathan Jones, APHIS/PPQ, and Rick 

Lewis, APHIS/PPD. 

15Source: California Department of Food & 

Agriculture, Quarantine and Survey Information 

(http://www.cdfa.ca.gov/phpps/pe/sod_survey/). 

16Source: Jonathan Jones, APHIS/PPQ. 

17Source: John Keller, Research Director for 

Monrovia Growers, as reported by Carolyn Pizzo, 

Operations Support Officer, California Plant Health 

Director’s Office. 

18 ‘‘The Economic Impact of Sudden Oak Death 

on the California Nursery Sector’’ by Alix Peterson 

Zwane and J. Keith Gilless March 2005. 

Unpublished report prepared for the USDA-Forest 

Service, Pacific Southwest Research Station. NOTE: 

All information in this paragraph is adapted from 

this study. 

the optional APHIS-approved ELISA 

test to determine the presence of 

Phytophthora spp. If all samples 

collected from a single nursery or a 

single shipment are found to be negative 

through ELISA prescreening, no further 

testing of the plants sampled is 

required. If ELISA prescreening is not 

performed, or if results of the 

prescreening are positive for 

Phytophthora spp. in any sample, the 

sample must be analyzed using APHISapproved testing such as PCR or other 

molecular tests, or a culture test. 

Samples will be considered positive for 

P. ramorum based on positive results of 

any approved test. If the results of PCR 

assay or other molecular tests are 

negative for all samples in a nursery, no 

further testing is required, and the 

nursery may be considered free of P. 

ramorum. In the case of any of the 

samples tested using PCR or other 

molecular tests, or a culture test, 

returning a positive result for P. 

ramorum, the nursery from which they 

originated is prohibited from moving 

plants interstate until an inspector 

determines that those plants are free of 

evidence of P. ramorum. In the event a 

nursery opts to test samples using a 

culture test, and the results are negative 

for P. ramorum, it is important to note 

that these samples must continue to be 

withheld from shipment until they 

return a negative result to a PCR or other 

molecular test. General estimates 

approximate the cost of ELISA, PCR and 

other molecular tests to be $15 per test, 

whereas the approximate cost of a 

culture test is about $10 per test.13 This 

testing has been provided by Federal 

and State inspectors, the cost of which 

was covered by USDA or States in 2005 

and 2006. Funding for testing activities 

in 2007 and beyond will transition to 

the nursery for costs not covered by any 

available Federal or State funding. 

APHIS will provide affected entities 

with advance notice and guidance 

before we change the way we fund those 

testing activities. 

The P. ramorum program was fully 

funded for the fiscal year (FY) 2006, 

with the total available funds being 

$8.353 million.14 In FY 2006, we 

estimated spending approximately $6.35 

million in P. ramorum activities in 

California, Washington, and Oregon, of 

which approximately $4.15 million was 

allocated to inspection, sampling, 

testing, and certification activities. The 

remainder of the spending was allocated 

to national survey, trace forwards and 

trace backs, eradication, and 

enforcement activities of the regulation. 

In addition to the monetary costs of 

compliance agreements and nursery and 

shipment certifications borne by the 

public sector, there are also indirect 

costs to the nurseries as a result of 

regulation. For example, there could be 

potential costs associated with lost sales 

while withholding plants for shipment 

during inspection and testing. Further, 

the presence of P. ramorum, and the 

accompanying movement restrictions 

where there were none previously could 

result in a potential loss in consumer 

confidence for nursery stock from the 

regulated area. These potential indirect 

losses are not quantifiable; however, we 

examine them to the extent possible in 

the sections that follow. In researching 

the possible impacts of the rule on 

nurseries, we solicited comments from 

State departments of agriculture, as well 

as industry associations. In some cases, 

no information was provided, either 

because it was unavailable and/or 

unidentifiable, or because it was 

considered to be confidential business 

information. We welcome public 

comment on the impacts of the interim 

rule. 

California 

As of July 2005, there were 861 

nurseries in California that have been 

inspected and determined to be free of 

P. ramorum, and were authorized to 

ship non-host nursery stock interstate 

without a certificate. In addition, there 

were 81 locations in the quarantined 

area authorized to ship host material 

under P. ramorum compliance 

agreements, and 323 locations in the 

regulated area operating under P. 

ramorum compliance agreements.15 As 

mentioned earlier, the majority of direct 

enforcement costs of the regulation 

associated with entering into 

compliance agreements, such as 

inspection, sampling, and testing, have 

been paid for by regulatory agencies. In 

2005, $4.2 million in regulatory funds 

were allocated to P. ramorum 

quarantine and survey activities in 

California. In 2006, this amount 

increased to $5.4 million. It is important 

to note that these allocated funds do not 

include costs associated with trace back, 

trace forward, or eradication activities 

in the event of an infestation of 

nurseries as a result of interstate trade.16

In addition, there are other costs of 

the regulation, many of which are 

indirect and more difficult to quantify. 

For example, in the case of a nursery in 

Azusa County found to be infected with 

P. ramorum, there were both direct and 

indirect losses. Direct losses due to 

plants being destroyed at cost, not at the 

wholesale value, as well as customer 

credits and other expenses totaled over 

$4.5 million for the 2004/2005 year. 

Other costs, such as lost sales while 

plants were on hold and possible loss of 

customer base due to loss in confidence, 

could not be quantified.17

Other potential indirect costs were 

examined by a report on the economic 

impact of P. ramorum on the Californian 

nursery sector, prepared by researchers 

at the University of California, 

Berkeley.18 In their study they found 

that many nurseries are investing in 

preventative pest management actions 

to reduce the risk of P. ramorum 

infection, which in turn increased their 

production expenses. These nurseries 

invested in preventative pest 

management by changing their 

inventory and labor practices and by 

applying fungicide to limit potential 

exposure to P. ramorum. The additional 

investments were estimated to account 

for less than 3 percent of all production 

expenses for the average nursery, 

suggesting that the average nursery has 

not been significantly impacted as a 

result of P. ramorum. However, there 

was evidence presented to suggest that 

the implications of the presence of P. 

ramorum are not borne equally among 

large and small entities. Small nurseries 

with a high percentage of host products 

face cost constraints which make it 

difficult to make the optimal investment 

in inventory management, thereby 

placing the smaller nurseries at greater 

risk of P. ramorum infestation. It is 

important to note that this impact is not 

a direct result of the regulation, but 

rather is a voluntary investment in 

preventative management to lessen the 

risk of P. ramorum infestation. Though 

this study was prepared with respect to 

nurseries in California, we can assume 

nurseries in Oregon and Washington are 

operating in much the same way, and 


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8594 Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 

19Source: Gary McAninch, Program Manager of 

Nursery and Christmas Tree Program (Oregon 

Department of Agriculture). 

20Source: Jonathan Jones, APHIS/PPQ. 

21Source: Tom Wessels, Nursery Program 

Manager (Washington State Department of 

Agriculture), as reported by Linda Stark, State 

Operations Support Officer, WA (APHIS), and 

Jeanne McNeil, Executive Director (WSNLA). 

22Source: Jonathan Jones, APHIS/PPQ. 23Source: Jonathan Jones, APHIS/PPQ. 

face similar costs of P. ramorum 

regulation. 

Officials at the California Department 

of Food and Agriculture (CDFA) 

confirmed that while no concrete figures 

are available, they have received reports 

from several nurseries of having lost 

revenue while holding plants during 

inspection, sampling, and testing. In 

addition, some in the industry feel the 

emergency Federal order did not 

adequately protect against further 

sanctions of nursery products from 

California by other nations. 

Oregon 19

The quarantined area of Oregon, an 

11.5 square mile area as described in the 

regulations, contains no nurseries, and 

thus there are no entities subject to the 

movement restrictions on plants within 

the quarantined area. In the regulated 

area, there are 778 nurseries that contain 

host or associated plant material under 

compliance agreement to ship interstate. 

Additionally, there are 1,039 nurseries 

only growing, distributing, and storing 

non-host plant material under 

compliance agreement to ship non-host 

nursery stock interstate. The Oregon 

Department of Agriculture (ODA) 

estimates the total cost of certifying 

nurseries within the regulated area with 

proven and associated host nursery 

stock to be $307,820 per year. For 

nurseries containing only non-host 

nursery stock located within the 

regulated area, the total cost of annual 

inspection is estimated at $122,936. 

Neither of these estimates includes any 

potential indirect costs. In 2005, over 

$200,000 in regulatory funds was 

allocated to P. ramorum survey and 

quarantine activities in Oregon. In 2006, 

this amount increased to over $549,000. 

It is important to note that these 

allocated funds do not include costs 

associated with trace back, trace 

forward, or eradication activities in the 

event of an infestation of nurseries as a 

result of interstate trade.20

Further, there may be indirect costs of 

the regulation incurred by nurseries. For 

example, ODA has received reports that 

some out-of-State customers are 

purchasing nursery stock from other 

States rather than Oregon because of the 

negative publicity related to finding a 

limited number of infested nurseries 

through inspection. While this 

regulation only concerns restricting 

interstate movement of nursery stock, it 

is interesting to note the anecdotal 

evidence of potential impacts of 

quarantining portions of Curry County 

for P. ramorum. For instance, Canada 

has quarantined the entire county, 

effectively prohibiting host plant genera 

and soil. ODA reports that Easter lily 

bulb growers have been particularly 

impacted, as it is impossible to remove 

all the soil from their bulbs. As a result, 

shipments of this high-value commodity 

to Canada have essentially been shut 

down. As a point of interest, 99 percent 

of Easter lily bulbs produced in the 

United States are grown in Curry 

County, OR, and Del Norte County, CA. 

Again, it is important to note that 

Canada’s decision to quarantine all of 

Curry County is not an impact or result 

of this interim rule. 

Washington 21

As of August 11, 2005, there were 131 

nurseries in Washington growing or 

selling P. ramorum proven or associated 

host plants that had been inspected, are 

under a compliance agreement and are 

authorized to ship host material 

interstate. In addition, there are 138 

nurseries under a compliance agreement 

and certified to ship non-host plants 

interstate. Again, it is important to note 

that cost of nursery inspections were 

covered by funds allotted to the 

Washington State Department of 

Agriculture (WSDA) by USDA–APHIS 

in 2006, and will be in 2007, to the 

extent that Federal funding is available. 

APHIS will provide affected entities 

with advance notice and guidance 

before we change the way we fund those 

inspection and testing activities. 

Therefore, the non-Federal direct cost of 

implementing the regulation will be 

minimal. As a point of interest, WSDA 

provided cost information of inspecting 

nurseries and performing laboratory 

tests on plant samples. In 2004, WSDA 

incurred a cost of $500 per host nursery 

for collecting samples and laboratory 

testing, in addition to an inspection fee 

of $31.10 per hour, bringing the average 

cost to approximately $600 per nursery. 

In 2005, over $104,000 in regulatory 

funds was allocated to P. ramorum 

survey and regulatory activities in 

Washington. In 2006, this amount 

increased to over $323,000. It is 

important to note that these allocated 

funds do not include costs associated 

with trace back, trace forward, or 

eradication activities in the event of an 

infestation of nurseries as a result of 

interstate trade.22 Nurseries under the 

compliance agreement are permitted to 

bring in proven and associated host 

stock from non-certified nurseries in 

Oregon or California, provided that 

these shipments are held separately 

until they have been inspected, tested, 

and found free of P. ramorum. WSDA 

estimates that the cost of holding the 

plants for inspection and testing is 

probably negligible, since these 

activities are usually done as soon as 

requested. WSDA officials believe the 

Federal response has assisted in 

alleviating any misconceptions 

regarding P. ramorum infestations of 

West Coast nursery stock. Rather than 

create any negative stigma, the 

regulations and emergency Federal 

order have actually worked to boost 

sales which had been lagging in recent 

years. 

In summary, because USDA has been 

covering the cost of inspection, testing, 

and certification, the direct costs of the 

interim rule for nurseries are expected 

to be minimal. USDA–APHIS currently 

covers some of the inspection and 

testing charges for all nurseries under 

the Federal Order. There are 

approximately 4,000 nurseries subject to 

the inspection requirements under the 

interim rule.23 Approximately $4 

million was expected to be spent in FY 

2006 on inspection and testing activities 

in the regulated area, which translates to 

an average cost of $1,000 per nursery. 

This cost estimate is expected to hold 

for FY 2007 and FY 2008, to the extent 

that Federal funding is available. Of 

course there is a possibility that the 

number of nurseries required to be 

inspected subject to the rule may 

increase in the event that the number of 

host plants increases, thereby making 

more nurseries subject to this part of the 

regulations. In any case, to the extent 

that Federal funding is not available, the 

unfunded portion of the inspection and 

testing activities would have to be borne 

by the affected entity. APHIS plans to 

issue guidance on the implementation 

of transferring the costs of inspection 

and testing to nurseries in the event 

funding becomes unavailable. 

Moreover, in the event that a nursery 

is found infected with P. ramorum, 

there will be additional costs of labor 

and revenue loss associated with plant 

destruction, but this cost would be 

limited by the extent of infestation. For 

example, the additional labor costs to 

destroy one infected plant would be less 

than that of a nursery full of infected 

plants. In addition, this interim rule 

requires nurseries to maintain fungicide 

reports for at least 2 years; however, 

regulated entities are already required to 

maintain fungicide reports, and because 


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Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 8595 

24Source: http://nature.berkeley.edu/comtf/html/ 

history_background.html. 

25NASS–CA, California Agricultural Overview. 

Sacramento, CA: California Agricultural Statistics 

Service, 2003. 

26California: Leading Commodities for Cash 

Receipt, 2003. Washington, DC: Economic Research 

Service, 2005. 

27NASS–OR, 2004 Oregon Nursery and 

Greenhouse Survey. Portland, OR: National 

Agricultural Statistics Service—Oregon Field 

Office, 2004. 

28NASS–WA, Washington 2004 Annual Bulletin. 

Olympia, WA: NASS, Washington Agricultural 

Statistics, 2004. 

29United States: Leading Commodities for Cash 

Receipts, 2003. Washington, DC: Economic 

Research Service, 2005. 

of that fact there are minimal 

recordkeeping costs associated with this 

interim rule. All nurseries that are 

operating under compliance agreements 

must also maintain records of all 

incoming shipments of plants for a 

minimum of 24 months and must make 

them available to inspectors upon 

request. In addition, all nurseries that 

are operating under compliance 

agreements, except retail dealers, must 

maintain records of outgoing shipments 

for a minimum of 24 months and make 

them available to inspectors upon 

request. Again, labor costs and 

recordkeeping costs are difficult to 

quantify as the magnitude varies by 

each nursery and by the level of 

infestation. As such, we welcome public 

comment regarding estimates of these 

costs as a result of the interim rule. 

As is evident in each State’s analysis, 

likely effects of the rule on consumer 

confidence in nursery stock from the 

West Coast are difficult to capture as it 

is largely dependent on buyers’

perceptions. However, in light of the 

public’s growing awareness of P. 

ramorum’s threat to the natural 

environment and nurseries, we believe 

that failure to promulgate this interim 

rule and place Federal restrictions on 

the interstate movement of nursery 

stock would further lessen consumer 

confidence in West Coast nursery stock. 

Hence, we believe the interim rule will 

boost confidence in West Coast nursery 

stock rather than lessen it. We welcome 

public comment on this indirect cost of 

the rule. In our research we have 

discovered other impacts of the 

regulation. For instance, the study 

conducted in California suggests that, in 

response to P. ramorum regulations, 

some nurseries are engaging in 

increased pest management activities so 

as to avoid infestation. These additional 

production expenses are not a result of 

the interim rule. Rather, such 

precautionary or risk-reducing activities 

are a rational response to the potential 

regulatory costs and production value 

loss of infestation. 

Expected Benefits of the Interim Rule 

This interim rule will amend the P. 

ramorum regulations to protect against 

the artificial spread of P. ramorum. This 

rule will provide two chief benefits: (1) 

Protect the environment outside of the 

quarantined area from the pathogen; and 

(2) protect nurseries outside the 

regulated area from becoming infected 

with the pathogen, while facilitating 

interstate sales of regulated articles from 

West Coast nurseries. Benefits of the 

rule will accrue both to entities in the 

immediate regulated area as well as to 

the general public and private 

enterprises across the nation, as this 

rule expands the quarantined boundary 

in order to contain the pathogen’s 

spread in the natural environment and 

addresses the artificial spread via 

interstate movement restrictions. 

The extensive environmental damage 

caused by P. ramorum makes its control 

a matter of public interest, all the more 

so given our incomplete understanding 

of the range of susceptible species. By 

expanding the quarantined area, we 

hope to confine the spread of the 

pathogen in the natural environment, 

with the goal of protecting forests and 

ecological areas in the regulated area 

and beyond. Ecological threats include 

a change in species composition in 

infested forests and therefore, in 

ecosystem functioning; loss of food 

sources for wildlife; a change in fire 

frequency or intensity; and decreased 

water quality due to an increase in 

exposed soil surfaces.24

We do not have an estimate of the 

environmental costs that would be 

incurred if P. ramorum were to become 

widespread regionally or nationally. 

Given the tens of thousands of oak trees 

that have died in California, it is 

reasonable to assume that movement of 

the pathogen outside of the current area 

of quarantine would be potentially 

devastating. 

With respect to benefits of the rule to 

the nursery industry, we queried State 

agricultural departments in the 

regulated area on the benefits of the 

emergency Federal order which went 

into effect January 10, 2005. However, 

that data was not available at the time 

this analysis was completed. We 

welcome public comment from the 

greenhouse/nursery industry and others 

on these benefits. 

In the absence of data needed to 

analyze commercial benefits of this 

interim rule, we relate expected benefits 

to the sales value of the West Coast 

nursery industry. We present a 

description of that industry. 

The nursery stock industry ranks 

second in value of agricultural 

production in California, with cash 

receipts totaling $2.44 billion in 2003.25

Nursery and greenhouse production in 

California accounts for 11.9 percent of 

the State’s total farm receipt value, and 

contributes 21.8 percent of the Nation’s 

nursery and greenhouse products 

inventory.26 The top five counties in 

production are San Diego, Orange, 

Riverside, Monterey, and Los Angeles. 

Of these only one, Monterey, is located 

in the area quarantined for P. ramorum. 

In Oregon, the nursery and greenhouse 

industry is the top agricultural industry, 

with sales of $844 million in 2004.27

This equates to approximately 21 

percent of the total value of agricultural 

production in Oregon. The Oregon 

Nursery and Greenhouse survey 

estimates there were 2,073 operations in 

2004, with over half of those operations 

making less than $20,000 per year in 

sales. As was mentioned previously, 

there are no nursery operations in the 

quarantined portion of Curry County. In 

Washington, the value of production of 

specialty products was approximately 

$508 million in 2003. They include 

forest products, Christmas trees, 

floriculture, nursery and other 

horticultural products, and mushrooms. 

By itself, nursery and greenhouse 

products (including floriculture) had a 

total value of $313 million in 2003.28 As 

a whole, the greenhouse/nursery 

industry represents the sixth most 

valuable category of agricultural 

commodities in the United States, with 

over $15 billion in cash receipts in 

2003, and accounting for 7.2 percent of 

U.S. total agricultural value.29

The interim rule will protect against 

the artificial spread of P. ramorum in 

commercial nurseries both in the 

regulated areas as well as nationwide. 

We do not have estimates of how the 

rule will reduce the probability of such 

spread. However, when the emergency 

Federal order was issued in December 

2004, the total number of confirmed 

positive sites from the trace forward, 

national, and other survey was 176 in 22 

States. Since the Order went into effect, 

the rate of new detections in nurseries 

outside the regulated area has declined 

sharply. Based on this experience, we 

believe that this interim rule will 

continue to protect commercial 

nurseries outside of the regulated area 

from artificial spread of the pathogen, 

and will also support sales of regulated 

articles from entities in the regulated 

area. 

In sum, there are far-reaching benefits 

of the rule that we are unable to assess 

and quantify at this time. In light of the 

wide-ranging environmental resources 


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8596 Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 

30USDA, 2002 Census of Agriculture, Table 51. 

NAICS code: 1114 (Includes farms engaged in 

greenhouse, nursery, and floriculture production). 

Washington, DC: National Agricultural Statistics 

Service. 

that will be protected by this rule as 

well as the importance of the nursery 

industry, nationally and in the regulated 

area, the benefits of preventing the 

artificial spread of P. ramorum via 

interstate movement restrictions far 

outweigh the costs of implementing and 

complying with the interim rule. 

Small Entities Potentially Affected 

The interim rule will affect all 

nurseries located in California, Oregon, 

and Washington. The Oregon Nursery 

and Greenhouse Survey estimates there 

were 2,073 operations in 2004, with 

over half having sales of less than 

$20,000 per year. According to the 2002 

Census of Agriculture, there were 4,388 

operations in California, 4,291 in 

Oregon, and 2,211 operations in 

Washington engaged in greenhouse, 

nursery, and floriculture production.30

Of the 4,388 operations in California, 

there are 1,228 located within the 

quarantined area. Again, according to 

the ODA, there are no nurseries located 

within the quarantined area of Curry 

County, Oregon. We believe that the 

majority of operations would be 

considered small by SBA standards. 

SBA size standards for operations in 

nursery and tree production (North 

American Industry Classification 

System (NAICS) code 111421), or 

floriculture production (NAICS code 

111422) are $750,000 or less in annual 

receipts. The SBA size standard for 

retail nursery and garden center 

operations (NAICS code 444220) is $6 

million or less in annual receipts. 

Alternatives 

As described in section I, subsection 

C, of the full economic analysis, APHIS 

does not believe that there are 

alternatives to the interim rule that 

would satisfactorily accomplish the 

goals of the regulation. Our preferred 

action balances the need to protect 

forests and nurseries outside the 

regulated area while facilitating the 

interstate movement of proven and 

associated host articles and non-host 

articles. 

This proposed rule contains certain 

reporting and recordkeeping 

requirements (see ‘‘Paperwork 

Reduction Act’’ below). 

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 elected officials. (See 7 

CFR part 3015, subpart V.) 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule: (1) Preempts all State 

and local laws and regulations that are 

inconsistent with this rule; (2) has no 

retroactive effect; and (3) does not 

require administrative proceedings 

before parties may file suit in court 

challenging this rule. 

Environmental Considerations 

The regulation of potential host plants 

and plant parts susceptible to P. 

ramorum has developed as the 

knowledge of the plant disease and the 

understanding of the epidemiology of 

the potential for spread of the causal 

agent increase. This interim rule is 

based on the best available science, and 

applies to plants that are both proven 

hosts or shown to be associated with 

this plant pathogen based upon positive 

test results. In addition, diagnostics to 

be used in support of these regulations 

have undergone a formal validation 

process by APHIS to ensure that 

regulatory actions are based upon 

results obtained from the most sensitive 

and accurate diagnostic tools available. 

The purpose of this rule is to prevent 

the spread of the plant diseases to other 

parts of the United States; it is 

specifically designed to avoid or 

minimize adverse environmental 

impacts. The rule’s expanded 

quarantine and movement restrictions 

do not pose any new environmental 

hazards nor any new methods not 

analyzed for potential risks. The 

expanded inspection, sampling, and 

testing are all requirements designed to 

enhance the protection of the 

environment. 

Based upon the increased protection 

of the environment afforded by this 

interim rule and the recognition that 

this rule will be subject to revision as 

our knowledge of the disease and plant 

pathogen increase, there is no need for 

further environmental documentation at 

this time. As additional information 

becomes available, further decisions are 

likely and public input will be 

requested. 

Paperwork Reduction Act 

In accordance with section 3507(j) of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.), the information 

collection and recordkeeping 

requirements included in this interim 

rule have been submitted for emergency 

approval to the Office of Management 

and Budget (OMB). OMB has assigned 

control number 0579–0310 to the 

information collection and 

recordkeeping requirements. 

We plan to request continuation of 

that approval for 3 years. Please send 

written comments on the 3-year 

approval request to the following 

addresses: (1) Office of Information and 

Regulatory Affairs, OMB, Attention: 

Desk Officer for APHIS, Washington, DC 

20503; and (2) Docket No. 01–054–3, 

Regulatory Analysis and Development, 

PPD, APHIS, Station 3C71, 4700 River 

Road Unit 118, Riverdale, MD 20737–

1238. Please state that your comments 

refer to Docket No. 01–054–3 and send 

your comments within 60 days of 

publication of this rule. 

This interim rule restricts the 

interstate movement of nursery stock 

from nurseries in nonquarantined areas 

in California, Oregon, and Washington, 

updates conditions for the movement of 

regulated articles of nursery stock from 

quarantined areas, adds restrictions on 

the movement of decorative trees 

without roots from quarantined areas, 

and restricts the interstate movement of 

all other nursery stock from nurseries in 

quarantined areas. This rule also 

updates the list of plants regulated 

because of P. ramorum and the list of 

areas that are quarantined for P. 

ramorum. 

Its implementation will require us to 

engage in certain information collection 

activities, in that, in certain cases, 

nursery stock may not be moved 

interstate from nurseries in quarantined 

or regulated areas unless they are 

accompanied by a certificate. A 

certificate may be issued by an inspector 

(i.e., an APHIS employee, State, or 

County inspector, or other person 

authorized by the APHIS Administrator 

to enforce the regulations) or by a 

person who has entered into a written 

compliance agreement with APHIS. 

Nursery owners must also keep records 

of fungicide applications for 2 years and 

must make them available to inspectors 

upon request. All nurseries that are 

operating under compliance agreements 

must also maintain records of all 

incoming shipments of plants for a 

minimum of 24 months and must make 

them available to inspectors upon 

request. In addition, all nurseries that 

are operating under compliance 

agreements, except retail dealers, must 

maintain records of outgoing shipments 

for a minimum of 24 months and must 

make them available to inspectors upon 

request. We are soliciting comments 

from the public concerning our 

information collection and 

recordkeeping requirements. These 

comments will help us: 


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Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 8597 

1Any properly identified inspector is authorized 

to stop and inspect persons and means of 

conveyance and to seize, quarantine, treat, apply 

other remedial measures to, destroy, or otherwise 

dispose of regulated or restricted articles as 

provided in sections 414, 421, and 434 of the Plant 

Protection Act (7 U.S.C. 7714, 7731, and 7754). 

(1) Evaluate whether the information 

collection is necessary for the proper 

performance of our agency’s functions, 

including whether the information will 

have practical utility; 

(2) Evaluate the accuracy of our 

estimate of the burden of the 

information collection, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

information collection on those who are 

to respond (such as through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology; e.g., permitting 

electronic submission of responses). 

Estimate of burden: Public reporting 

burden for this collection of information 

is estimated to average 0.31313 hours 

per response. 

Respondents: Nurseries in the States 

of California, Oregon, and Washington. 

Estimated annual number of 

respondents: 1,425. 

Estimated annual number of 

responses per respondent: 5.0715789. 

Estimated annual number of 

responses: 7,227. 

Estimated total annual burden on 

respondents: 2,263 hours. (Due to 

averaging, the total annual burden hours 

may not equal the product of the annual 

number of responses multiplied by the 

reporting burden per response.) 

Copies of this information collection 

can be obtained from Mrs. Celeste 

Sickles, APHIS’ Information Collection 

Coordinator, at (301) 734–7477. 

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 interim rule, please contact Mrs. 

Celeste Sickles, APHIS’ Information 

Collection Coordinator, at (301) 734–

7477. 

List of Subjects in 7 CFR Part 301 

Agricultural commodities, Plant 

diseases and pests, Quarantine, 

Reporting and recordkeeping 

requirements, Transportation. 

■ Accordingly, we are amending 7 CFR 

part 301 as follows: 

PART 301—DOMESTIC QUARANTINE 

NOTICES 

■ 1. The authority citation for part 301 

continues to read as follows: 

Authority: 7 U.S.C. 7701–7772 and 7781–

7786; 7 CFR 2.22, 2.80, and 371.3. 

Section 301.75–15 also issued under Sec. 

204, Title II, Pub. L. 106–113, 113 Stat. 

1501A–293; sections 301.75–15 and 301.75–

16 also issued under Sec. 203, Title II, Pub. 

L. 106–224, 114 Stat. 400 (7 U.S.C. 1421 

note). 

■ 2. Part 301 is amended by revising 

‘‘Subpart-Phytophthora Ramorum,’’

§§ 301.92 through 301.92–11, to read as 

follows: 

Subpart—Phytophthora Ramorum 

Sec. 

301.92 Restrictions on interstate movement. 

301.92–1 Definitions. 

301.92–2 Restricted, regulated, and 

associated articles; lists of proven hosts 

and associated plant taxa. 

301.92–3 Quarantined and regulated areas. 

301.92–4 Conditions governing the 

interstate movement of regulated, 

restricted, and associated articles, and 

non-host nursery stock from quarantined 

and regulated areas. 

301.92–5 Issuance and cancellation of 

certificates. 

301.92–6 Compliance agreements and 

cancellation. 

301.92–7 Availability of inspectors; 

assembly for inspection. 

301.92–8 Attachment and disposition of 

certificates and recordkeeping. 

301.92–9 Costs and charges. 

301.92–10 Treatments. 

301.92–11 Inspection and sampling 

protocols. 

301.92–12 Testing protocols. 

§ 301.92 Restrictions on interstate 

movement. 

(a) No person may move interstate 

from any quarantined area any 

regulated, restricted, or associated 

article or any other nursery stock except 

in accordance with this subpart.1

(b) No person may move interstate 

from any nursery in any regulated area 

any nursery stock except in accordance 

with this subpart. 

(c) No person may move interstate 

from any quarantined or regulated area 

any regulated restricted, or associated 

article or nursery stock that has been 

tested with a test approved by APHIS 

and found infected with Phytophthora 

ramorum, or that is part of a plant that 

was found infected with Phytophthora 

ramorum, unless such movement is in 

accordance with part 330 of this 

chapter. 

§ 301.92–1 Definitions. 

Administrator. The Administrator, 

Animal and Plant Health Inspection 

Service, or any person authorized to act 

for the Administrator. 

Animal and Plant Health Inspection 

Service. The Animal and Plant Health 

Inspection Service (APHIS) of the 

United States Department of 

Agriculture. 

Associated article. Any article listed 

in § 301.92–2(c). 

Bark chips. Bark fragments broken or 

shredded from a log or tree. 

Certificate. A document, stamp, or 

imprint by which an inspector or person 

operating under a compliance 

agreement affirms that a specified 

regulated or associated article meets 

applicable requirements of this subpart 

and may be moved interstate to any 

destination. 

Compliance agreement. A written 

agreement between APHIS and a person 

engaged in growing, processing, 

handling, or moving regulated or 

associated articles, wherein the person 

agrees to comply with this subpart. 

Duff. Decaying plant matter that 

includes leaf litter, green waste, stem 

material, bark, and any other plant 

material that, upon visual inspection, 

does not appear to have completely 

decomposed. 

Firewood. Wood that has been cut, 

sawn, or chopped into a shape and size 

commonly used for fuel, or other wood 

intended for fuel. 

Forest stock. All flowers, trees, 

shrubs, vines, scions, buds, or other 

plants that are wild-grown, backyardgrown, or naturally occurring. 

From. An article is considered to be 

‘‘from’’ a specific site or location for the 

purposes of this subpart if it was grown 

or propagated in, stored or sold, or 

distributed from the site or location. 

Growing media. Any material in 

which plant roots are growing or 

intended for that purpose. 

Inspector. Any employee of APHIS, 

the U.S. Department of Agriculture, or 

other person authorized by the 

Administrator to perform the duties 

required under this subpart. 

Interstate. From any State into or 

through any other State. 

Log. The bole of a tree; trimmed 

timber that has not been sawn further 

than to form cants. 

Lot. A contiguous block of plants of 

the same species or cultivar, of the same 

container size and from the same 

source, if known. 


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2Bulbs, tubers, corms, or rhizomes are only 

considered nursery stock (and therefore, regulated 

under this subpart) if they are of plant taxa listed 

in § 301.92–2 as regulated articles or associated 

articles. 

3Bark chips or mulch of species listed in 

paragraph (d) of this section and that are marked 

with an asterisk (*) are not restricted articles. 

4Firewood, logs, and lumber of species listed in 

paragraph (d) of this section and that are marked 

with an asterisk (*) are not regulated articles. 

Lumber. Logs that have been sawn 

into boards, planks, or structural 

members such as beams. 

Moved (move, movement). Shipped, 

offered for shipment, received for 

transportation, transported, carried, or 

allowed to be moved, shipped, 

transported, or carried. 

Mulch. Bark chips, wood chips, wood 

shavings, or sawdust, or a mixture 

thereof, that could be used as a 

protective or decorative ground cover or 

as part of a growing media mixture. 

Non-host nursery stock. Any taxa of 

nursery stock not listed in § 301.92–2 as 

a regulated or associated article. 

Nursery. Any location where nursery 

stock is grown, propagated, stored, or 

sold, or any location from which 

nursery stock is distributed. Locations 

that grow trees for sale without roots 

(e.g., as Christmas trees) are considered 

to be nurseries for the purposes of this 

subpart. 

Nursery stock. All plants for planting, 

including houseplants, propagative 

material that is grown in a nursery, and 

tree seedlings for reforestation, except 

the following: Seeds; turf or sod; bulbs, 

tubers, corms, or rhizomes; 2 greenhouse 

grown cactus, succulents, and orchids; 

aquarium grown aquatic plants; 

greenhouse, container, or field grown 

palms; greenhouse, container, or field 

grown cycads, and tissue culture plants 

grown in vitro; and plants meeting the 

definition of forest stock. 

Permit. A written authorization issued 

by APHIS to allow the interstate 

movement of restricted articles in 

accordance with part 330 of this 

chapter. 

Person. Any association, company, 

corporation, firm, individual, joint stock 

company, partnership, society, or other 

entity. 

Plant Protection and Quarantine. The 

Plant Protection and Quarantine 

program of the Animal and Plant Health 

Inspection Service, United States 

Department of Agriculture. 

Quarantined area. Any State, or any 

portion of a State, listed in § 301.92–

3(a)(3) of this subpart or otherwise 

designated as a quarantined area in 

accordance with § 301.92–3(a)(2) of this 

subpart. 

Regulated area. Any area listed in 

§ 301.92–3(b) of this subpart. 

Regulated article. Any article listed in 

§ 301.92–2(b) of this subpart. 

Restricted article. Any article listed in 

§ 301.92–2(a) of this subpart. 

Soil. The loose surface material of the 

earth in which plants grow, in most 

cases consisting of disintegrated rock 

with an admixture of organic material. 

State. The District of Columbia, 

Puerto Rico, the Northern Mariana 

Islands, or any State, territory, or 

possession of the United States. 

§ 301.92–2 Restricted, regulated, and 

associated articles; lists of proven hosts 

and associated plant taxa. 

(a) Restricted articles. The following 

are restricted articles: 

(1) Bark chips or mulch 3 located in a 

quarantined area and that are proven 

host plant taxa listed in paragraph (d) of 

this section. 

(2) Forest stock located or grown in a 

quarantined area and that are proven 

host plant taxa or associated plant taxa 

listed in paragraph (d) or (e) of this 

section. 

(3) Any other product or article that 

an inspector determines to present a risk 

of spreading Phytophthora ramorum, if 

an inspector notifies the person in 

possession of the product or article that 

it is a restricted article. 

(b) Regulated articles. The following 

are regulated articles: 

(1) Nursery stock, decorative trees 

without roots, unprocessed wood and 

wood products, and plant products, 

including firewood, logs, lumber,4

wreaths, garlands, and greenery of 

proven host plant taxa listed in 

paragraph (d) of this section. 

(2) Soil and growing media. 

(3) Any other product or article that 

an inspector determines to present a risk 

of spreading Phytophthora ramorum if 

an inspector notifies the person in 

possession of the product or article that 

it is subject to the restrictions in the 

regulations. 

(c) Associated articles. The following 

are associated articles: Nursery stock of 

associated plant taxa listed in paragraph 

(e) of this section. 

(d) Proven host plant taxa. The 

following are proven hosts of 

Phytophthora ramorum: 

*Acer macrophyllum Bigleaf maple 

Acer pseudoplatanus Planetree maple 

*Adiantum aleuticum Western maidenhair 

fern 

*Adiantum jordanii California maidenhair 

fern 

*Aesculus californica California buckeye 

Aesculus hippocastanum horse chestnut 

*Arbutus menziesii Madrone 

*Arctostaphylos manzanita Manzanita 

*Calluna vulgaris Scotch heather 

*Camellia spp. Camellia—all species, 

hybrids and cultivars 

*Castanea sativa Sweet chestnut 

Fagus sylvatica European beech 

*Frangula californica (≡Rhamnus 

californica) California coffeeberry 

*Frangula purshiana (≡Rhamnus purshiana) 

Cascara 

Fraxinus excelsior European ash 

*Griselinia littoralis Griselinia 

*Hamamelis virginiana Witch hazel 

*Heteromeles arbutifolia Toyon 

*Kalmia spp. Kalmia—includes all species, 

hybrids, and cultivars 

*Laurus nobilis Bay laurel 

Lithocarpus densiflorus Tanoak 

*Lonicera hispidula California honeysuckle 

*Maianthemum racemosum (=Smilacina 

racemosa) False Solomon’s seal 

*Michelia doltsopa Michelia 

*Parrotia persica Persian ironwood 

*Photinia fraseri Red tip photinia 

*Pieris spp. Pieris—includes all species, 

hybrids, and cultivars 

*Pseudotsuga menziesii var. menziesii and 

all nursery-grown P. menziesii Douglas fir 

Quercus agrifolia Coast live oak 

Quercus cerris European turkey oak 

Quercus chrysolepis Canyon live oak 

Quercus falcata Southern red oak 

*Quercus ilex Holm oak 

Quercus kelloggii California black oak 

Quercus parvula var. shrevei and all nursery 

grown Q. parvula Shreve’s oak 

*Rhododendron spp. Rhododendron 

(including azalea)—includes all species, 

hybrids, and cultivars 

*Rosa gymnocarpa Wood rose 

*Salix caprea Goat willow 

*Sequoia sempervirens Coast redwood 

*Syringa vulgaris Lilac 

*Taxus baccata European yew 

*Trientalis latifolia Western starflower 

*Umbellularia californica California bay 

laurel, pepperwood, Oregon myrtle 

*Vaccinium ovatum Evergreen huckleberry 

*Viburnum spp. Viburnum-all species, 

hybrids, and cultivars 

(e) Associated plant taxa. The 

following plant taxa are considered to 

be associated with Phytophthora 

ramorum: 

Abies concolor White fir 

Abies grandis Grand fir 

Abies magnifica Red fir 

Acer circinatum Vine maple 

Acer davidii Striped bark maple 

Acer laevigatum Evergreen maple 

Arbutus unedo Strawberry tree 

Arctostaphylos columbiana Manzanita 

Arctostaphylos uva-ursi Kinnikinnick, 

bearberry 

Ardisia japonica Ardisia 

Calycanthus occidentalis Spicebush 

Castanopsis orthacantha Castanopsis 

Ceanothus thyrsiflorus Blueblossom 

Cinnamomum camphora Camphor tree 

Clintonia andrewsiana Andrew’s clintonia 

bead lily 

Cornus kousa x Cornus capitata Cornus 

Norman Haddon 

Corylus cornuta California hazelnut 

Distylium myricoides Myrtle-leafed distylium 

Drimys winteri Winter’s bark 

Dryopteris arguta California wood fern 


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5Requirements under all other applicable Federal 

domestic plant quarantines and regulations must 

also be met. 

6See footnote 4 of this subpart. 

Eucalyptus haemastoma Scribbly gum 

Euonymus kiautschovicus Spreading 

euonymus 

Fraxinus latifolia Oregon ash 

Gaultheria shallon Salal, Oregon wintergreen 

Hamamelis mollis Chinese witch-hazel 

Hamamelis x intermedia (H. mollis & H. 

japonica) Hybrid witchhazel 

Ilex purpurea Oriental holly 

Leucothoe axillaris Fetter-bush, dog hobble 

Leucothoe fontanesiana Drooping leucothoe 

Loropetalum chinense Lorapetalum 

Magnolia grandiflora Southern magnolia 

Magnolia stellata Star magnolia 

Magnolia x loebneri Loebner magnolia 

Magnolia x soulangeana Saucer magnolia 

Manglietia insignis Red lotus tree 

Michelia maudiae Michelia 

Michelia wilsonii Michelia 

Nerium oleander Oleander 

Nothofagus obliqua Roble beech 

Osmanthus decorus (≡Phillyrea decora; ≡P. 

vilmoriniana) Osmanthus 

Osmanthus delavayi Delavay Osmanthus, 

Delavay tea olive 

Osmanthus fragrans Sweet olive 

Osmanthus heterophyllus Holly olive 

Osmorhiza berteroi Sweet Cicely 

Parakmeria lotungensis Eastern joy lotus tree 

Pittosporum undulatum Victorian box 

Prunus laurocerasus English laurel, cherry 

laurel 

Prunus lusitanica Portuguese laurel cherry 

Pyracantha koidzumii Formosa firethorn 

Quercus acuta Japanese evergreen oak 

Quercus petraea Sessile oak 

Quercus rubra Northern red oak 

Rosa (specific cultivars) 

Royal Bonica (tagged: ‘‘MEImodac’’) 

Pink Meidiland (tagged: ‘‘MEIpoque’’) 

Pink Sevillana (tagged: ‘‘MEIgeroka’’) 

Rosa rugosa Rugosa rose 

Rubus spectabilis Salmonberry 

Schima wallichii Chinese guger tree 

Taxus brevifolia Pacific yew 

Taxus x media Yew 

Torreya californica California nutmeg 

Toxicodendron diversilobum Poison oak 

Vancouveria planipetala Redwood ivy 

§ 301.92–3 Quarantined and regulated 

areas. 

(a) Quarantined areas. (1) Except as 

otherwise provided in paragraph (a)(2) 

of this section, the Administrator will 

list 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 

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 State 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 the 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 

(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 

nonquarantined area in a State 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. 

Oregon 

Curry County. That portion of the county 

as follows: In T. 39 S., R. 13 W., secs. 32, 33, 

and 34; T. 40 S., R. 13 W., secs. 3, 4, 5, 8, 

9, 10, southeast quarter of sec. 11, southwest 

quarter of sec. 12, northwest quarter of sec. 

13, northeast quarter of secs. 14, 15, 16, and 

17, east half of sec. 18, east half of secs. 19, 

20, 21, 22, 28, and 29, northeast quarter of 

secs. 30, 32, 33, and 34; T. 40 S., R. 14 W., 

southeast quarter of sec. 23, southwest 

quarter of sec. 24, northwest quarter of sec. 

25, and the northeast quarter of sec. 26. 

(b) Regulated areas. The following 

areas are designated as regulated areas: 

California 

All counties in the State not listed in 

paragraph (a) of this section as quarantined 

areas. 

Oregon 

All areas in the State not listed in 

paragraph (a) of this section as quarantined 

areas. 

Washington 

The entire State. 

§ 301.92–4 Conditions governing the 

interstate movement of regulated, 

restricted, and associated articles, and nonhost nursery stock from quarantined and 

regulated areas. 

(a) Interstate movement of regulated 

and associated articles from 

quarantined areas. Regulated and 

associated articles may be moved 

interstate from a quarantined area 5 only 

in accordance with this subpart. 

(1) With a certificate. Any regulated or 

associated article may be moved 

interstate from a quarantined area if 

accompanied by a certificate issued and 

attached in accordance with §§ 301.92–

5 and 301.92–8, and provided that the 

regulated or associated article is moved 

through the quarantined area without 

stopping except for refueling, rest stops, 

emergency repairs, and for traffic 

conditions, such as traffic lights or stop 

signs. 

(2) Without a certificate. 

(i) The regulated 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 

(ii) The regulated or associated article 

is moved from outside the quarantined 

area through the quarantined area 

without stopping except for refueling or 

for traffic conditions, such as traffic 

lights or stop signs, and the article is not 

unpacked or unloaded in the 

quarantined area. 

(b) Interstate movement of restricted 

articles from quarantined areas. 

Restricted articles may be moved 

interstate from a quarantined area 6 only 

in accordance with this section. 

(1) With a permit. Any restricted 

article may be moved interstate from a 

quarantined area only if the article is 

moved pursuant to a permit issued by 

the Administrator in accordance with 

part 330 of this chapter. 

(2) Without a permit. 

(i) The restricted article originated 

outside the quarantined area and the 

point of origin of the article is indicated 


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8600 Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 

7To be eligible for interstate movement, non-host 

nursery stock that is rooted in soil or growing media 

requires certification that the soil or growing media 

meets the requirements of § 301.92–5(a)(1)(iii). 

8Services of an inspector may be requested by 

contacting local offices of Plant Protection and 

Quarantine, which are listed in telephone 

directories. The addresses and telephone numbers 

of local offices may also be obtained from the 

Animal and Plant Health Inspection Service, Plant 

Protection and Quarantine, Invasive Species and 

Pest Management, 4700 River Road Unit 160, 

Riverdale, MD 20737, or the APHIS Web site at 

http://www.aphis.usda.gov/ppq/sphd/. 

9Paragraph (d)(2)(ii) of § 301.92–4 allows the 

interstate movement of non-host nursery stock 

without a certificate under certain conditions. 

10Firewood, logs, lumber of species listed in 

301.92–2(d) and marked with an asterisk are not 

regulated articles, as noted in § 301.92–2(b)(1). 

11Sections 414, 421, and 434 of the Plant 

Protection Act (7 U.S.C. 7714, 7731, and 7754) 

provide that the Secretary of Agriculture may, 

under certain conditions, hold, seize, quarantine, 

treat, apply other remedial measures to destroy or 

otherwise dispose of any plant, plant pest, plant 

product, article, or means of conveyance that is 

moving, or has moved into or through the United 

States or interstate if the Secretary has reason to 

believe the article is a plant pest or is infested with 

a plant pest at the time of movement. 

on the waybill of the vehicle 

transporting the article; and 

(ii) The restricted article is moved 

from outside the quarantined area 

through the quarantined area without 

stopping except for refueling or for 

traffic conditions, such as traffic lights 

or stop signs, and the article is not 

unpacked or unloaded in the 

quarantined area. 

(c) Interstate movement of nursery 

stock from nurseries in quarantined 

areas—(1) Regulated articles of nursery 

stock and associated articles. Regulated 

articles of nursery stock and associated 

articles may only be moved interstate 

from nurseries in quarantined areas in 

accordance with paragraph (a) of this 

section. 

(2) Non-host nursery stock. Any 

nursery stock of a taxon not listed in 

§ 301.92–2 as a regulated or associated 

article may only be moved interstate 

from nurseries in quarantined areas as 

follows: 

(i) With a certificate. If the non-host 

nursery stock originates from a nursery 

in a quarantined area that contains 

regulated or associated articles, the 

nursery stock must be accompanied by 

a certificate issued and attached in 

accordance with §§ 301.92–5 and 

301.92–8, and be moved through the 

quarantined area without stopping 

except for refueling, rest stops, 

emergency repairs, and for traffic 

conditions, such as traffic lights or stop 

signs. 

(ii) Without a certificate. If the nonhost nursery stock originates from a 

nursery in a quarantined area that does 

not contain regulated or associated 

articles, the nursery stock may be 

moved interstate without a certificate, 

provided that: 

(A) The nursery from which plants 

originate has been inspected and found 

free of evidence of Phytophthora 

ramorum in accordance with § 301.92–

11(b)(3), and 

(B) The nursery stock is not rooted in 

soil or growing media.7

(d) Interstate movement of nursery 

stock from nurseries in regulated 

areas—(1) Regulated and associated 

articles of nursery stock. Regulated 

articles of nursery stock and associated 

articles may only be moved interstate 

from nurseries in regulated areas if 

accompanied by a certificate issued and 

attached in accordance with §§ 301.92–

5 and 301.92–8, and provided that, if 

moved through a quarantined area en 

route to another State, the regulated 

articles of nursery stock or associated 

articles are moved through the 

quarantined area without stopping 

except for refueling, rest stops, 

emergency repairs, and for traffic 

conditions, such as traffic lights or stop 

signs. 

(2) Non-host nursery stock. Any 

nursery stock of a taxon not listed in 

§ 301.92–2 as a regulated or associated 

article may only be moved interstate 

from nurseries in regulated areas as 

follows: 

(i) With a certificate. If non-host 

nursery stock originates from a nursery 

in a regulated area that contains 

regulated or associated articles, the 

nursery stock must be accompanied by 

a certificate issued and attached in 

accordance with §§ 301.92–5 and 

301.92–8, and provided that, if moved 

through a quarantined area en route to 

another State, the nursery stock is 

moved through the quarantined area 

without stopping except for refueling, 

rest stops, emergency repairs, and for 

traffic conditions, such as traffic lights 

or stop signs. 

(ii) Without a certificate. If non-host 

nursery stock originates from a nursery 

in a regulated area that does not contain 

regulated or associated articles, the 

nursery stock may be moved interstate 

without a certificate, provided that the 

nursery from which plants originate has 

been inspected and found free of 

evidence of Phytophthora ramorum in 

accordance with § 301.92–11(d)(3). 

§ 301.92–5 Issuance and cancellation of 

certificates. 

(a) Movements from quarantined 

areas. (1) An inspector 8 may issue a 

certificate for the interstate movement of 

regulated articles, associated articles, or 

non-host nursery stock 9 from a 

quarantined area if the inspector 

determines that: 

(i) The regulated articles have been 

treated under the direction of an 

inspector in accordance with § 301.92–

10 or part 305 of this chapter; or 

(ii) The regulated articles are wood 

products such as firewood, logs, or 

lumber that are free of bark; 10 or 

(iii) The regulated article is soil or 

growing media that has not been in 

direct physical contact with any article 

infected with Phytophthora ramorum, 

and from which all duff has been 

removed; or 

(iv) The articles are nursery stock or 

regulated articles of decorative trees 

without roots, wreaths, garlands, or 

greenery that: 

(A) Are shipped from a nursery in a 

quarantined area that has been 

inspected in accordance with the 

inspection and sampling protocol 

described in § 301.92–11(a)(1), and the 

nursery is free of evidence of 

Phytophthora ramorum infestation; and 

(B) Are part of a shipment of nursery 

stock, decorative trees without roots, 

wreaths, garlands, or greenery that has 

been inspected prior to interstate 

movement in accordance with § 301.92–

11(a)(2), and the regulated articles in the 

shipment are free of evidence of 

Phytophthora ramorum infection; and 

(C) Have been kept separate from 

regulated and associated articles and 

non-host nursery stock not inspected 

between the time of the inspection and 

the time of interstate movement; and 

(D) Have not been grown in, or moved 

from, other areas within a quarantined 

area except nurseries that are annually 

inspected for Phytophthora ramorum in 

accordance with § 301.92–11 and that 

have been found free of evidence of 

Phytophthora ramorum infestation, 

except that certified nurseries which 

receive articles from a non-certified 

nursery in a quarantined or regulated 

area may continue to ship other plants 

interstate, provided that the uncertified 

plants are safeguarded, segregated, and 

withheld from interstate movement 

until the plants are inspected and tested 

and found free of evidence of 

Phytophthora ramorum. 

(v) The regulated or associated article 

or non-host nursery stock is to be moved 

in compliance with any additional 

emergency conditions the Administrator 

may impose under section 414 of the 

Plant Protection Act (7 U.S.C. 7714) 11 to 

prevent the spread of Phytophthora 

ramorum; and 

(vi) The regulated or associated article 

or non-host nursery stock is eligible for 

unrestricted movement under all other 

Federal domestic plant quarantines and 


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Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 8601 

12See footnote 7 of this subpart. 

13Paragraph (d)(2)(ii) of § 301.92–4 allows the 

interstate movement of non-host nursery stock 

without a certificate under certain conditions. 

14See footnote 7 of this subpart. 

15Compliance agreement forms are available 

without charge from the Animal and Plant Health 

Inspection Service, Plant Protection and 

Quarantine, Invasive Species and Pest Management, 

4700 River Road Unit 160, Riverdale, MD 20737–

1236, and from local offices of the Plant Protection 

and Quarantine, which are listed in telephone 

directories. Forms are also available on the Internet 

at http://www.aphis.usda.gov/ppq/ispm/pramorum/ 

resources.html. 16See footnote 7 of this subpart. 

regulations applicable to the regulated 

or associated article. 

(2) Reserved. 

(b) Movements from regulated areas. 

(1) An inspector 12 may issue a 

certificate for the interstate movement of 

regulated articles of nursery stock, 

associated articles, or non-host nursery 

stock 13 from a nursery in a regulated 

area if an inspector determines that: 

(i) The nursery from which the 

nursery stock originates has been 

inspected in accordance with § 301.92–

11(c) and found free of evidence of 

Phytophthora ramorum infestation; and 

(ii) All nursery stock in the nursery 

have not been grown in, or moved from, 

nurseries except those that have been 

inspected for Phytophthora ramorum in 

accordance with § 301.92–11(c) and that 

have been found free of evidence of 

Phytophthora ramorum infestation, 

except that certified nurseries which 

receive articles from a non-certified 

nursery in a quarantined or regulated 

area may continue to ship other plants 

interstate, provided that the uncertified 

plants are safeguarded, segregated, and 

withheld from interstate movement 

until the plants are inspected and tested 

and found free of evidence of 

Phytophthora ramorum; and 

(iii) The nursery stock is to be moved 

in compliance with any additional 

emergency conditions the Administrator 

may impose under section 414 of the 

Plant Protection Act (7 U.S.C. 7714) 14 to 

prevent the spread of Phytophthora 

ramorum; and 

(iv) The nursery stock is eligible for 

unrestricted movement under all other 

Federal domestic plant quarantines and 

regulations applicable to the nursery 

stock. 

(2) Reserved. 

(c) Certificates issued under 

paragraphs (a) and (b) of this section 

may be issued by any person engaged in 

the business of growing, processing, 

handling, or moving regulated or 

associated articles or nursery stock 

provided such person has entered into 

and is operating under a compliance 

agreement in accordance with § 301.92–

6. Any such person may execute and 

issue a certificate for the interstate 

movement of regulated or associated 

articles or nursery stock if an inspector 

has previously made the determination 

that the article is eligible for a certificate 

in accordance with any applicable 

section of this subpart. 

(d) Any certificate that has been 

issued may be withdrawn, either orally 

or in writing, by an inspector if he or 

she determines that the holder of the 

certificate has not complied with all 

conditions in this subpart for the use of 

the certificate. If the withdrawal is oral, 

the withdrawal and the reasons for the 

withdrawal will be confirmed in writing 

as promptly as circumstances allow. 

Any person whose certificate has been 

withdrawn may appeal the decision in 

writing to the Administrator within 10 

days after receiving the written 

notification of the withdrawal. The 

appeal must state all of the facts and 

reasons upon which the person relies to 

show that the certificate was wrongfully 

withdrawn. As promptly as 

circumstances allow, the Administrator 

will grant or deny the appeal, in writing, 

stating the reasons for the decision. A 

hearing will be held to resolve any 

conflict as to any material fact. Rules of 

practice concerning a hearing will be 

adopted by the Administrator. 

(Approved by the Office of Management and 

Budget under control numbers 0579–0310 

and 0579–0088) 

§ 301.92–6 Compliance agreements and 

cancellation. 

(a) Any person engaged in growing, 

processing, handling, or moving 

regulated articles, associated articles, or 

non-host nursery stock may enter into a 

compliance agreement when an 

inspector determines that the person 

understands this subpart, agrees to 

comply with its provisions, and agrees 

to comply with all the provisions 

contained in the compliance 

agreement.15

(b) Any compliance agreement may be 

canceled, either orally or in writing, by 

an inspector whenever the inspector 

finds that the person who has entered 

into the compliance agreement has 

failed to comply with this subpart. If the 

cancellation is oral, the cancellation and 

the reasons for the cancellation will be 

confirmed in writing as promptly as 

circumstances allow. Any person whose 

compliance agreement has been 

canceled may appeal the decision, in 

writing, within 10 days after receiving 

written notification of the cancellation. 

The appeal must state all of the facts 

and reasons upon which the person 

relies to show that the compliance 

agreement was wrongfully canceled. As 

promptly as circumstances allow, the 

Administrator will grant or deny the 

appeal, in writing, stating the reasons 

for the decision. A hearing will be held 

to resolve any conflict as to any material 

fact. Rules of practice concerning a 

hearing will be adopted by the 

Administrator. 

(Approved by the Office of Management and 

Budget under control numbers 0579–0310) 

§ 301.92–7 Availability of inspectors; 

assembly for inspection. 

(a) Any person (other than a person 

authorized to issue certificates under 

§ 301.92–5(c)) who desires to move a 

regulated or associated article or nonhost nursery stock interstate 

accompanied by a certificate must notify 

an inspector 16 as far in advance of the 

desired interstate movement as possible, 

but no less than 48 hours before the 

desired time of inspection. 

(b) The regulated or associated article 

or non-host nursery stock must be 

assembled at the place and in the 

manner the inspector designates as 

necessary to comply with this subpart. 

§ 301.92–8 Attachment and disposition of 

certificates and recordkeeping. 

(a) A certificate required for the 

interstate movement of a regulated 

article, associated article, or non-host 

nursery stock must, at all times during 

the interstate movement, be: 

(1) Attached to the outside of the 

container containing the regulated 

article, associated article, or non-host 

nursery stock; or 

(2) Attached to the regulated article, 

associated article, or non-host nursery 

stock itself if not in a container; or 

(3) Attached to the consignee’s copy 

of the accompanying waybill. If the 

certificate is attached to the consignee’s 

copy of the waybill, the regulated 

article, associated article, or non-host 

nursery stock must be sufficiently 

described on the certificate and on the 

waybill to identify the regulated article, 

associated article, or non-host nursery 

stock. 

(b) The certificate for the interstate 

movement of a regulated article, 

associated article, or non-host nursery 

stock must be furnished by the carrier 

to the consignee listed on the certificate 

upon arrival at the location provided on 

the certificate. 

(c) All nurseries that are operating 

under compliance agreements must 

maintain records of all incoming 

shipments of plants for a minimum of 

24 months and must make them 

available to inspectors upon request. In 

addition, all nurseries that are operating 

under compliance agreements, except 


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8602 Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 

17Persons operating under compliance 

agreements are eligible to issue certificates for the 

interstate movement of regulated and associated 

articles, but only inspectors are authorized to 

conduct nursery inspections required under the 

regulations. 

18See footnote 14 of this subpart. 

19See footnote 7 of this subpart. 

retail dealers, must maintain records of 

outgoing shipments for a minimum of 

24 months and must make them 

available to inspectors upon request. 

(Approved by the Office of Management and 

Budget under control numbers 0579–0088 

and 0579–0310) 

§ 301.92–9 Costs and charges. 

The services of the inspector during 

normal business hours (8 a.m. to 4:30 

p.m., Monday through Friday, except 

holidays) will be furnished without 

cost. The user will be responsible for all 

costs and charges arising from 

inspection and other services provided 

outside normal business hours. 

§ 301.92–10 Treatments. 

Treatment schedules listed in part 305 

of this chapter are authorized for use on 

certain regulated articles to prevent the 

spread of Phytophthora ramorum. The 

following treatments also may be used 

for the regulated articles indicated: 

(a) Soil—Heat to a temperature of at 

least 180 °F at the center of the load for 

30 minutes in the presence of an 

inspector. 

(b) Wreaths, garlands, and greenery of 

host material—Dip for 1 hour in water 

that is held at a temperature of at least 

160 °F. 

(c) Bay leaves—Treat with vacuum 

heat in accordance with part 305 of this 

chapter. 

§ 301.92–11 Inspection and sampling 

protocols. 

Type(s) of plants in the nursery Type(s) of plants shipped interstate 

Inspection and certification protocol 

Origin: Quarantined 

areas 

Origin: Regulated 

areas 

Regulated articles only ...................................... None ................................................................. Not regulated ............. Not regulated. 

Regulated articles only ...................................... Regulated articles ............................................ § 301.92–11(a) .......... § 301.92–11(c). 

Associated articles only .................................... None ................................................................. Not regulated ............. Not regulated. 

Associated articles only .................................... Associated articles ........................................... § 301.92–11(a) .......... § 301.92–11(c). 

Regulated and associated articles only ............ Regulated or associated articles, or both ........ § 301.92–11(a) .......... § 301.92–11(c). 

Regulated and associated articles and nonhosts.None ................................................................. Not regulated ............. Not regulated. 

Regulated and associated articles and nonhosts.Regulated or associated articles, or both ........ § 301.92–11(a) .......... § 301.92–11(c). 

Regulated and associated articles and nonhosts.Non-hosts only ................................................. § 301.92–11(a) .......... § 301.92–11(c). 

Non-hosts only .................................................. None ................................................................. Not regulated ............. Not regulated. 

Non-hosts only .................................................. Non-hosts ......................................................... § 301.92–11(b) .......... § 301.92–11(d). 

Decorative trees without roots (e.g., Christmas 

trees).

Proven host plant taxa ..................................... §301.92–11(a) ........... Not regulated. 

Decorative trees without roots (e.g., Christmas 

trees).

Associated plant taxa ....................................... Not regulated ............. Not regulated. 

(a) Nurseries in quarantined areas 

shipping regulated articles of nursery 

stock and associated articles interstate. 

To meet the requirements of § 301.92–

5(a)(1)(iv), nurseries located in 

quarantined areas and that move 

regulated articles of nursery stock, 

decorative trees without roots, wreaths, 

garlands, or greenery, associated 

articles, or non-host nursery stock 

interstate must meet the requirements in 

this section. Nurseries in quarantined 

areas that do not meet the requirements 

of this section are prohibited from 

moving regulated articles and associated 

articles interstate. Nurseries in 

quarantined areas that do not meet the 

requirements of this section or 

paragraph (b) of this section are 

prohibited from moving non-host 

nursery stock interstate. 

(1) Annual inspection, sampling, and 

testing. 

(i) Inspection. The nursery must be 

inspected annually for symptoms of 

Phytophthora ramorum by an 

inspector.17 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. 

(ii) Sampling. A minimum of 40 plant 

samples must be tested per nursery 

location. Samples must be taken from 

all symptomatic plants if symptomatic 

plants are present. If fewer than 40 

symptomatic plants are present, each 

symptomatic plant must be sampled and 

the remainder of the 40 sample 

minimum must be taken from 

asymptomatic plants. If no symptomatic 

plants are present, 40 asymptomatic 

plants must be sampled; biased toward 

proven hosts. 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. 

(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 § 301.92–12. 

(iv) Annual certification. If all plant 

samples tested in accordance with this 

section and § 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 

inspection, and the nursery will be 

eligible to enter into a compliance 

agreement in accordance with § 301.92–

6.18

(2) Pre-shipment inspection, 

sampling, and testing. 

(i) 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.19 Inspection will focus on, 


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Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 8603 

20 In addition, to be eligible for interstate 

movement, non-host nursery stock that is rooted in 

soil or growing media requires certification that the 

soil or growing media meets the requirements of 

§ 301.92–5(a)(1)(iii). 21See footnote 7 of this subpart. 

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 

paragraph (a)(1)(iv) of this section. 

(A) If no symptomatic plants are 

found upon inspection, the shipment 

may be considered free of evidence of 

Phytophthora ramorum infection and is 

eligible for interstate movement, 

provided that the nursery is operating 

under a compliance agreement with 

APHIS in accordance with § 301.92–6. 

(B) 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. 

(ii) Testing and withholding from 

interstate movement. Samples taken in 

accordance with paragraph (a)(2)(i)(B) of 

this section 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 § 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 

§ 301.92–12. 

(b) Nurseries in quarantined areas 

shipping non-host nursery stock 

interstate. Nurseries located in 

quarantined areas and that move nonhost nursery stock interstate must meet 

the requirements of this paragraph or 

the requirements of paragraph (a) of this 

section.20 If such nurseries contain any 

regulated or associated articles, the 

nursery must meet the requirements of 

paragraph (a). This paragraph (b) only 

applies if there are no regulated or 

associated articles of nursery stock in 

the nursery. Nurseries that do not meet 

the requirements of paragraphs (a) or (b) 

of this section 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 § 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 (b)(3) of this section and 

§ 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 § 301.92–12 return negative results 

for Phytophthora ramorum, or if an 

inspector determines that plants in a 

nursery exhibit no signs of infection 

with Phytophthora ramorum, the 

inspector may certify that the nursery is 

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) Nurseries in regulated areas 

shipping regulated articles of nursery 

stock or associated articles interstate. 

To meet the conditions of § 301.92–5(b), 

any nursery that is located in a 

regulated area and contains regulated 

articles of nursery stock or associated 

articles, and ships any nursery stock 

interstate must meet the following 

requirements: 

(1) Annual inspection. The nursery 

must be inspected annually for 

symptoms of Phytophthora ramorum by 

an inspector.21 Inspection will focus on, 

but not be limited to, regulated articles 

of nursery stock and associated articles. 

(2) Sampling. Samples must be taken 

from all symptomatic plants. If fewer 

than 40 symptomatic plants are present, 

each symptomatic plant must be 

sampled and additional samples must 

be taken from asymptomatic plants so 

that the minimum number of plants 

sampled is 40. If no symptomatic plants 

are present, 40 asymptomatic plants 

must be sampled. 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. If samples are collected from 

asymptomatic plants, the samples 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. 

(3) Annual certification. If all plant 

samples tested in accordance with this 

section and § 301.92–12 return negative 

results for Phytophthora ramorum, the 

inspector may certify that the nursery is 

free of evidence of Phytophthora 

ramorum infestation at the time of 

inspection. Nurseries in a regulated area 

must have current and valid 

certification to ship regulated articles of 

nursery stock and associated articles 

interstate. If annual certification expires 

prior to reinspection, all plants in the 

nursery are prohibited interstate 

movement until the nursery is 

inspected, tested, and re-certified in 

accordance with this section and 

§ 301.92–12. 

(d) Nurseries in regulated areas 

shipping non-host nursery stock 

interstate. Nurseries located in regulated 

areas and that move non-host nursery 

stock interstate must meet the 

requirements in this paragraph or the 

requirements of paragraph (c) of this 

section. If such nurseries contain any 

regulated or associated articles, the 

nursery must meet the requirements of 

paragraph (c). This paragraph (d) only 

applies if there are no regulated or 

associated articles in the nursery. 

Nurseries that do not meet the 

requirements of paragraphs (c) or (d) of 

this section 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 apparent pest freedom 

for such nurseries must occur at the 

time when the best expression of 

symptoms is anticipated. 

(2) Sampling. All plants showing 

symptoms infection with Phytophthora 

ramorum upon inspection will be 

sampled and tested in accordance with 

§ 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 § 301.92–12: All symptomatic 

plants, any plants located in the same 

lot as the symptomatic plant, and any 

plants located within 2 meters of that lot 

of plants. 

(3) Certification. If all plant samples 

tested in accordance with this section 

and § 301.92–12 return negative results 

for Phytophthora ramorum, or if an 

inspector determines that plants in the 

nursery exhibit no signs of infection 

with Phytophthora ramorum, the 

inspector may certify that the nursery is 


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8604 Federal Register / Vol. 72, No. 38 / Tuesday, February 27, 2007 / Rules and Regulations 

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. 

(e) Additions to the lists of proven 

hosts and associated plants. In the event 

that APHIS informs a nursery owner 

that additional proven hosts or 

associated plants exist, but those taxa 

are not yet listed in this subpart, the 

following provisions apply: 

(1) Nurseries operating under a 

compliance agreement in accordance 

with § 301.92–6 may continue to ship 

plants interstate in accordance with this 

subpart. 

(2) Nurseries that had not previously 

contained any regulated or associated 

articles, and that had been inspected in 

accordance with § 301.92–11(b)(3) and 

allowed to ship plants interstate without 

certificate, but that contain a newly 

identified proven host or associated 

plant must cease interstate shipments of 

regulated articles and associated hosts 

until the nursery is reinspected and 

found free of evidence of Phytophthora 

ramorum in accordance with § 301.92–

11. Nurseries that come under 

regulation during winter dormancy 

periods and that are not able to be 

inspected in accordance with § 301.92–

11 prior to desired shipments of nonhost nursery stock may be allowed to 

ship non-host nursery stock interstate at 

the discretion of an inspector. 

(Approved by the Office of Management and 

Budget under control number 0579–0310) 

§ 301.92–12 Testing protocols. 

Samples must be analyzed using a 

methodology approved by APHIS at a 

laboratory approved by APHIS. The 

following methodology is approved by 

APHIS. 

(a) Optional ELISA Prescreening. An 

APHIS-approved ELISA may be used to 

prescreen plant samples to determine 

the presence of Phytophthora spp. 

(1) Negative prescreening results. If all 

samples from a single nursery are found 

to be negative through APHIS-approved 

ELISA prescreening, no further testing is 

required. The nursery may be 

considered free of evidence of 

Phytophthora ramorum, and plants in 

the nursery are eligible for interstate 

movement under certificate in 

accordance with § 301.92–5. 

(2) Positive prescreening results. If 

ELISA prescreening reveals the presence 

of Phytophthora spp. in any plants, each 

sample that returns positive ELISA 

results must be tested as provided in 

paragraph (b) of this section. 

(b) Mandatory testing procedures. If 

ELISA prescreening is not performed, or 

if results of ELISA prescreening are 

positive for Phytophthora spp. in any 

sample, the sample must be analyzed 

using an APHIS-approved test. Samples 

will be considered positive for 

Phytophthora ramorum based on 

positive results of any approved test. 

Positive PCR or other molecular tests do 

not require confirmatory culture tests, 

nor do positive culture tests require 

confirmatory PCR or other molecular 

tests; however, if culture tests return 

other than positive results, an APHISapproved PCR or other molecular test 

must be conducted, as provided in 

paragraph (b)(1) of this section. 

(1) PCR or other molecular tests. 

(i) Negative results. If the results of 

PCR or other molecular tests are 

negative for all samples in a nursery, no 

further testing is required. The nursery 

may be considered free of evidence of 

Phytophthora ramorum and plants in 

the nursery are eligible for interstate 

movement under certificate in 

accordance with § 301.92–5. 

(ii) Positive results. If any samples 

tested using PCR or other molecular 

tests return positive results for 

Phytophthora ramorum, the nursery 

from which they originate is prohibited 

from moving plants interstate. The 

nursery will be eligible to ship certain 

plants interstate when an inspector 

determines that those plants are free of 

evidence of Phytophthora ramorum. 

(2) Culture Test. 

(i) Negative results. If the results of 

culture tests are other than positive for 

any samples taken from a single 

nursery, plants in the nursery must 

continue to be withheld from shipment 

in accordance with § 301.92–11 and 

each plant sample must be tested again 

using a PCR or other molecular test, as 

described in this section. 

(ii) Positive results. If any culture tests 

return positive results for Phytophthora 

ramorum, the nursery from which they 

originate is prohibited from moving 

plants interstate as directed by an 

inspector. The nursery will be eligible to 

ship certain plants interstate when an 

inspector determines that those plants 

are free of evidence of Phytophthora 

ramorum. 

(c) Other test methods. Other test 

methods may be acceptable if approved 

by APHIS. 

Done in Washington, DC, this 16th day of 

February 2007. 

Bruce Knight, 

Under Secretary for Marketing and Regulatory 

Programs. 

[FR Doc. 07–892 Filed 2–26–07; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2006–25890; Directorate 

Identifier 2006–NM–115–AD; Amendment 

39–14943; AD 2007–04–11] 

RIN 2120–AA64 

Airworthiness Directives; Airbus Model 

A300 B2 and B4 Series Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: The FAA is superseding an 

existing airworthiness directive (AD), 

which applies to all Airbus Model A300 

B2, B4–100, and B4–200 series 

airplanes. That AD currently requires 

supplemental structural inspections to 

detect fatigue cracking, and repair of 

cracked structure. This new AD requires 

revising the maintenance program by 

incorporating new and revised 

supplemental structural inspections, 

inspection intervals, and repairs; and 

repair of any damaged, cracked, or 

corroded structure; which would end 

the existing supplement structural 

inspections. This AD results from a 

review of service history and reports 

received from the current supplemental 

structural inspection document 

program. We are issuing this AD to 

prevent reduced structural integrity of 

these airplanes due to fatigue cracking. 

DATES: This AD becomes effective April 

3, 2007. 

The Director of the Federal Register 

approved the incorporation by reference 

of certain publications listed in the AD 

as of April 3, 2007. 

On August 9, 1996 (61 FR 35122, July 

5, 1996), the Director of the Federal 

Register approved the incorporation by 

reference of Airbus Industrie 

Supplemental Structural Inspection 

Document, dated September 1989; and 

Airbus Industrie A300 Supplemental 

Structural Inspection Document, 

Revision 2, dated June 1994. 

ADDRESSES: You may examine the AD 

docket on the Internet at http:// 

dms.dot.gov or in person at the Docket 

Management Facility, U.S. Department 

of Transportation, 400 Seventh Street, 

SW., Nassif Building, Room PL–401, 

Washington, DC. 

Contact Airbus, 1 Rond Point Maurice 

Bellonte, 31707 Blagnac Cedex, France, 

for service information identified in this 

AD. 

FOR FURTHER INFORMATION CONTACT: Tom 

Stafford, Aerospace Engineer, 


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