Comment from Nancy Osterbauer, Gary McAninch, & Jan Hedberg, Oregon Department of Agriculture

27 April 2007 Docket No. 01-054-3 Regulatory Analysis and Development PPD, APHIS, Station 3C71 4700 River Road Unit 118 Riverdale, MD 20737-1238 To Whom It May Concern: Thank you for the opportunity to comment on Docket No. 01-054-3, Phytophthora ramorum; quarantine and regulations. We are pleased that USDA, APHIS has revised the interim rule to include new information about the pathogen and to consolidate all of the regulations for P. ramorum into one rule. We have identified several issues within the revision that are somewhat confusing and need to be addressed. We hope our comments prove useful. On page 8591, APHIS has published an image of the official Federal Shield issued to nurseries under compliance with the interim rule. This is at least the third version of the shield that we have seen for nurseries under compliance. Because of our large number of nurseries, each time a new shield gets published it takes approximately 4-mo to replace the nurseries? old shields with the newest version. Also, we are concerned that receiving states may not accept the old shield in the interim time period. We hope that APHIS takes these concerns into consideration before issuing new editions of the shield in the future. It would be very helpful if the terms ?proven host plant taxa? and ?associated plant taxa? were defined in section 301.92-1 or in section 301.92-2. It would also be helpful if APHIS defined in the rule when a plant taxon is regulated at the genus level. For example, several species and cultivars of Rhododendron have been identified as hosts or associated hosts of P. ramorum. Thus, there is scientific data to support regulating the entire genus. In contrast, only two species of Kalmia have been found infected with P. ramorum. Yet, it too is regulated at the genus level. There is an inconsistency in the rule here that needs to be addressed. Under regulated articles in section 301.92-2(b)(2), soil and growing media are listed. In section 301.92-1, soil and growing media are basically defined as anything in which plants grow or might be planted. This leads to quite a bit of confusion particularly in section 301.92-11(b), under Inspection and sampling protocols. As defined, soil and growing media are regulated articles all by themselves. Thus, there can be no such thing as a non-host nursery. We suggest adding a line to 301.92-2(b)(2) that explains the soil or growing media must be in physical contact with proven host plant taxa or must be composed of proven host plant taxa to address this issue. In section 301.92-3, the rule defines how and when the USDA determines that an area must be under quarantine. However, no such definition is provided for when an area must be under regulation for nursery stock. This pathogen continues to be detected in soil and water at nurseries in Florida and in other Eastern states; in two Florida nurseries it has been detected for a couple of years in a row. Yet, the state?s nursery stock remains unregulated. What criteria is USDA using to declare a state or area to be regulated? This needs to be defined within the rule. Otherwise, the argument could be made that the interim rule creates an unfair trade advantage for non-West Coast states. Also in section 301.92-3(a)(3), the quarantined area listed for Oregon is different from the one listed within our State regulation. At present, the Oregon Department of Agriculture regulates 24.25-mi2 for this pathogen in Curry County. The precise physical description is: T39S, R13W, Sections 32, 33, and 34; T40S R13W Sections 3, 4, 5, 8, 9, 10, the southeastern quarter-section of 11, the southwestern quarter-section of 12, the northwestern quarter-section of 13, and the northeastern quarter-section of 14, 15, 16, 17, the eastern half of section 18, the eastern half of section 19, 20, 21, 22, 27, 28, 29, the northeastern quarter of section 30, 32, 33, and 34; T40S R14W the southeastern quarter-section of 23, the southwestern quarter-section of 24, the northwestern quarter-section of 25, and the northeastern quarter-section of 26. There is also some confusion as to the status of associated plant taxa grown within and exported from the quarantined area (section 301.92-5). As written, the rule states that associated plant taxa grown as nursery stock within the quarantined area must meet the federal requirements for interstate shipment. No requirements are listed for associated articles grown in the forest, which suggests this material is unregulated. We would appreciate some clarification of this issue. Finally, we were very pleased with the table that APHIS included on page 8602 to direct nursery stock growers to the correct sections of the rule for their particular situation. We suspect the table could be simplified a bit to make it more readable and user friendly. For example, a statement could be made under section 301.92-11 that there are no requirements for nurseries and Christmas tree plantations that do not export stock from a quarantined or regulated area. Regardless, the table helps simplify the sometimes confusing text within that section. We hope our comments prove useful. If you have any questions, please feel free to contact any one of us. Thank you for the opportunity to comment. Sincerely, Nancy Osterbauer, Ph.D. Plant Health Program Supervisor Gary McAninch Nursery & Christmas Tree Program Supervisor Jan Hedberg Nursery & Christmas Tree Program Lead Horticulturist