[Federal Register Volume 70, Number 196 (Wednesday, October 12, 2005)]
[Proposed Rules]
[Pages 59280-59283]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-20387]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 /
Proposed Rules
[[Page 59280]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 04-003-1]
Black Stem Rust; Movement Restrictions and Addition of Rust-
Resistant Varieties
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to amend the black stem rust quarantine and
regulations by changing the movement restrictions in order to allow
clonally propagated offspring of rust-resistant Berberis cultivars to
move into or through a protected area without completing the currently
required 2-year growth period. This change would lessen an
unnecessarily strict movement requirement. We also propose to add 13
varieties to the list of rust-resistant Berberis species. This change
would allow for the interstate movement of these newly developed
varieties without unnecessary restrictions.
DATES: We will consider all comments that we receive on or before
December 12, 2005.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations. gov and, in the ``Search for Open Regulations'' box, select ``Animal
and Plant Health Inspection Service'' from the agency drop-down menu,
then click on ``Submit.'' In the Docket ID column, select APHIS-2005-
0086 to submit or view public comments and to view supporting and
related materials available electronically. After the close of the
comment period, the docket can be viewed using the ``Advanced Search''
function in Regulations.gov.
Postal Mail/Commercial Delivery: Please send four copies
of your comment (an original and three copies) to Docket No. 04-003-1,
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. 04-003-1.
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: Dr. Vedpal Malik, Agriculturalist,
Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit
134, Riverdale, MD 20737-1236; (301) 734-6774.
SUPPLEMENTARY INFORMATION:
Background
Black stem rust is one of the most destructive plant diseases of
small grains that is known to exist in the United States. The disease
is caused by a fungus that reduces the quality and yield of infected
wheat, oat, barley, and rye crops by robbing host plants of food and
water. In addition to infecting small grains, the fungus lives on a
variety of alternate host plants that are species of the genera
Berberis, Mahoberberis, and Mahonia. The fungus is spread from host to
host by windborne spores.
The black stem rust quarantine and regulations, contained in 7 CFR
301.38 through 301.38-8 (referred to below as the regulations),
quarantine the conterminous 48 States and the District of Columbia, and
govern the interstate movement of certain plants of the genera
Berberis, Mahoberberis, and Mahonia, known as barberry plants. The
species of these plants are categorized as either rust-resistant or
rust-susceptible. Rust-resistant plants do not pose a risk of spreading
black stem rust or of contributing to the development of new races of
the rust; rust-susceptible plants do pose such risks.
Clonally Propagated Material
Clonal propagation is a technique whereby the number of plants may
be increased without using seeds (i.e, without sexual reproduction).
The cloning process is often accomplished via cuttings of roots, stems,
or leaves that have the ability to regenerate a complete plant.
Cultivars produced clonally are considered genetically identical to the
parental source. Clonal propagation is advantageous since exact
replicas can be produced in large numbers and those plants produced via
clonal propagation are typically disease-free. Conversely, since they
are not clones, seeds, fruit, seedlings, and other seed-propagated
materials can yield black stem rust sensitive segregants which, if
infected, could spread black stem rust to protected areas if proper
precautions are not observed.
The regulations in Sec. 301.38-4(b) currently prohibit, among
other things, all Berberis seedlings and plants of less than 2 years'
growth from moving interstate into or through any protected area. This
prohibition applies even to rust-resistant Berberis varieties because,
as noted in the previous paragraph, seed-propagated plants could yield
rust-sensitive segregants; the 2-year growth period is necessary to
ensure that the plants are ``true to type,'' i.e., they are, in fact,
rust-resistant plants.
Because clonally propagated plants are genetically identical to
their parental source, it is not necessary to require a 2-year growth
period to ensure that the plants are true to type. However, there is no
distinction made in the current regulations between clonally propagated
offspring and seedlings or seed-propagated material. Therefore, we are
proposing to amend the regulations in Sec. 301.38-4 to specify that
clonally propagated offspring obtained from black stem rust resistant
Berberis cultivars of more than 2 years' growth may move into or
through protected areas without undergoing the 2-year growth period.
All seed-propagated plants and seedlings of the genus Berberis, as well
as any seeds, fruits, and other plant parts capable of propagation
produced by those plants, would continue to be subject to the
provisions regarding the 2-year growth period and subject to the
current movement restrictions of Sec. 301.38-4(b). We believe that
allowing clonally propagated offspring of known rust-
[[Page 59281]]
resistant Berberis plants to be moved without first undergoing a 2-year
growth period would provide producers and distributors relief from
restrictions that are not necessary to prevent the spread of black stem
rust.
In conjunction with this proposed change, we would also amend Sec.
301.38-1 by adding a definition of clonally propagated. We would define
the term as ``reproduced asexually through cuttings, tissue culture,
suckers, or crown division. For the purposes of this subpart, a
Berberis plant will be considered clonally propagated only if its
parent stock is, or was derived from, a seed-propagated black stem
rust-resistant plant of more than 2 years' growth.'' This definition
would make it clear which Berberis plants would not be subject to the
2-year growth requirement.
Rust-Resistant Species
Section 301.38-2 of the regulations includes a listing of regulated
articles and indicates species of the genera Berberis, Mahoberberis,
and Mahonia known to be rust-resistant. Although rust-resistant species
are included as regulated articles, they may be moved into or through
protected areas if accompanied by a certificate. In this document, we
are proposing to add 13 additional varieties of Berberis thunbergii
(the varieties Admiration, Crimson Ruby, Golden Carpet, Golden Devine,
Golden Rocket, Golden Ruby, Maria, Pow Wow, Red Carpet, Red Rocket,
Rosy Rocket, Talago, and Tiny Gold) to the list of rust-resistant
Berberis species in Sec. 301.38-2(a).
In accordance with Sec. 301.38-2(b), the nurseries that developed
these rust-resistant species of Berberis have provided identification
guides to the Animal and Plant Health Inspection Service (APHIS) and to
the receiving States. The proposed addition of these species is based
on recent testing to determine rust resistance conducted by the
Agricultural Research Service of the United States Department of
Agriculture (USDA) at its Cereal Disease Laboratory in St. Paul, MN.
The testing is performed in the following manner: In a greenhouse,
the suspect plant or test subject is placed under a screen with a
control plant--a known rust-susceptible species of Berberis,
Mahoberberis, or Mahonia. Black stem rust infected stems are placed on
top of the screen. The stems are moistened and maintained in 100
percent humidity. This causes the spores to swell and fall on the
plants lying under the screen. The plants are then observed for 7 days
at 20 to 80 percent relative humidity. If the rust-susceptible plant
shows signs of infection after 7 days and the test plants do not, the
test results indicate that the test plants are rust-resistant. This
test must be performed 12 times, and all 12 tests must yield the same
result before USDA can make a determination as to whether the test
plants are rust-resistant. The test may be conducted on 12 individual
plants, or it may be performed multiple times on fewer plants (e.g., 6
plants tested twice or 3 plants tested 4 times). The tests must be
performed on new growth, just as the leaves are unfolding. Therefore,
the tests are usually conducted in the spring or fall, during the
growing season. All 12 tests generally cannot be conducted on the same
day because of the plants' different growth stages. Based on over 30
years of experience with this test, we believe that 12 is the reliable
test sample size on which USDA can make its determination. We do not
know of any plant that was subsequently discovered to be rust-
susceptible after undergoing this procedure 12 times and being
determined by the USDA to be rust-resistant.
Miscellaneous
We also propose to make several editorial and organizational
changes to the regulations to improve their accuracy or clarity. First,
in Sec. 301.38-2, we would remove paragraph (a)(1), which designates
all seedlings and plants of less than 2 years' growth of the genus
Berberis as regulated articles. All rust-resistant Berberis plants,
regardless of age, are designated as regulated articles under current
paragraph (a)(2) of that section, and all rust-susceptible Berberis
plants, regardless of age, are designated as regulated articles under
current paragraph (a)(4) of that same section. Further, the age of the
plants is an issue only with respect to the interstate movement
restrictions of Sec. 301.38-4(b), and we believe that paragraph
adequately addresses the subject. Therefore, we do not believe it is
necessary to specifically designate seedlings and plants of less than 2
years' growth of the genus Berberis as regulated articles.
Second, also in Sec. 301.38-2, where reference is made to ``the
following rust-resistant... species,'' we would refer to ``rust-
resistant species and varieties,'' as not all the articles listed are
distinct species.
Third, in the definitions of rust-resistant plants and rust-
susceptible plants, the text refers to ``all plants of the genera
Berberis, Mahoberberis, and Mahonia species.'' We would remove the word
``species,'' as it is not necessary when preceded by the word
``genera.''
Finally, in several places throughout the subpart, we would update
references in the text to specific paragraphs to reflect either the
changes proposed in this document or changes that were made in previous
rules.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
For this action, the Office of Management and Budget has waived its
review under Executive Order 12866.
Rust-Resistant Cultivars
This proposed rule would add 13 new varieties of Berberis to the
list of species that have been determined to be resistant to black stem
rust and thus eligible to be moved interstate into and through States
or parts of States designated as protected areas in accordance with the
requirements in the regulations. Based on the information provided to
us, we have determined that this proposed rule, if adopted, would
affect fewer than five nurseries that might propagate the new species
and numerous retail sales nurseries that might purchase and resell the
varieties. This proposed rule would enable those nurseries to move the
species into and through protected areas and to propagate and sell the
species in States or parts of States designated as protected areas.
Currently, 126 varieties of Berberis are listed as rust-resistant.
Of those 126 varieties, many are no longer propagated for commercial
sale. Many consumers are choosing newer varieties that are
horticulturally more attractive. This rule would add 13 new varieties
of Berberis to the current list of 126 varieties. The addition of these
13 new varieties would simply create a greater selection of barberry
plant varieties from which consumers can choose. This proposed rule
could encourage innovation by allowing nurseries that develop new rust-
resistant barberry varieties the opportunity to market those varieties
in protected areas; however, there is no indication that the periodic
introduction of new varieties to the market has any effect on overall
sales volumes. Therefore, we do not anticipate that there will be any
significant economic impact on those nurseries that might handle the
new varieties.
Clonally Propagated Cultivars
Additionally, this proposed rule would allow nurseries that produce
clonally propagated offspring from rust-resistant Berberis cultivars to
sell them
[[Page 59282]]
without first undergoing the currently required 2-year growth period.
The Regulatory Flexibility Act requires that agencies consider the
economic impact of their rules on small entities and to use flexibility
to provide regulatory relief when regulations create economic
disparities between different-sized entities. According to the Small
Business Administration's (SBA's) Office of Advocacy, regulations
create economic disparities based on size when they have a significant
economic impact on a substantial number of small entities.
Plant nursery farms and greenhouses are classified as small
businesses if they receive less than $750,000 in annual sale receipts.
According to the 1997 Census of Agriculture, an average U.S. nursery
had annual sales of approximately $160,000. Therefore, it appears that
the majority of U.S. nurseries qualify as small businesses by SBA
standards.
Those nurseries that produce rust-resistant Berberis varieties
would benefit from the proposed change in that they will not have to
undergo a 2-year waiting period before they are able to sell the
clonally propagated offspring of rust-resistant Berberis cultivars in
protected areas or move those plants through protected areas. While we
are unable to qualify those benefits without knowing the number of
entities that may avail themselves of this proposed relaxation of
movement restrictions for clonally propagated rust-resistant Berberis
plants, we do not expect that the savings in production costs will be
significant.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action would
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. If this proposed rule is adopted: (1) All State
and local laws and regulations that are inconsistent with this rule
will be preempted; (2) no retroactive effect will be given to this
rule; and (3) administrative proceedings will not be required before
parties may file suit in court challenging this rule.
Paperwork Reduction Act
This proposed rule contains no information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend 7 CFR part 301 as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 would continue to read as
follows:
Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L.
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7
U.S.C. 1421 note).
2. Section 301.38-1 would be amended as follows:
a. By adding, in alphabetical order, a definition of clonally
propagated to read as set forth below.
b. In the definition of protected area, by removing the citation
``Sec. 301.38-3(c)'' and adding the citation ``Sec. 301.38-3(d)'' in
its place.
c. In the definition of rust-resistant plants, by removing the word
``species'' and by removing the citation ``Sec. 301.38-2(a)(2) and
(a)(3)'' and adding the citation ``Sec. 301.38-2(a)(1) and (a)(2)'' in
its place.
d. In the definition of rust-susceptible plants, by removing the
word ``species'' and by removing the citation ``Sec. 301.38-2(a)(2)
and (a)(3)'' and adding the citation ``Sec. 301.38-2(a)(1) and
(a)(2)'' in its place.
e. In the definition of regulated article, by removing the words
``through (a)(4)'' and adding the words ``through (a)(3)'' in their
place and by removing the citation ``Sec. 301.38-2(a)(5)'' and adding
the citation ``Sec. 301.38-2(a)(4)'' in its place.
Sec. 301.38-1 Definitions.
* * * * *
Clonally propagated. Reproduced asexually through cuttings, tissue
culture, suckers, or crown division. For the purposes of this subpart,
a Berberis plant will be considered clonally propagated only if its
parent stock is, or was derived from, a seed-propagated black stem
rust-resistant plant of more than 2 years' growth.
* * * * *
3. Section 301.38-2 would be amended as follows:
a. By removing paragraph (a)(1) and redesignating paragraphs (a)(2)
through (a)(5) as paragraphs (a)(1) through (a)(4), respectively.
b. In newly redesignated paragraph (a)(1), by adding the words
``and varieties'' after the word ``species'' and by adding, in
alphabetical order, 13 new entries to the list of rust-resistant
species to read as set forth below.
c. In newly redesignated paragraph (a)(2), by adding the words
``and varieties'' after the word ``species''.
d. By revising newly redesignated paragraph (a)(3) to read as set
forth below.
e. In newly redesignated paragraph (a)(4), by removing the words
``through (a)(4)'' and adding the words ``through (a)(3)'' in their
place.
f. In paragraph (b), in both the first and second sentences, by
removing the words ``(a)(2) or (a)(3)'' and adding the words ``(a)(1)
or (a)(2)'' in their place.
Sec. 310.38-2 Regulated articles.
(a) * * *
(1) * * *
B. thunbergii `Admiration'
* * * * *
B. thunbergii `Crimson Ruby'
* * * * *
B. thunbergii `Golden Carpet'
B. thunbergii `Golden Devine'
* * * * *
B. thunbergii `Golden Rocket'
B. thunbergii `Golden Ruby'
* * * * *
B. thunbergii `Maria'
* * * * *
B. thunbergii `Pow Wow'
B. thunbergii `Red Carpet'
B. thunbergii `Red Rocket'
B. thunbergii `Rosy Rocket'
* * * * *
B. thunbergii `Talago'
* * * * *
B. thunbergii `Tiny Gold'
* * * * *
(3) All plants, seeds, fruits, and other plant parts capable of
propagation from rust-susceptible species and varieties of the genera
Berberis, Mahoberberis, and Mahonia, except Mahonia cuttings for
decorative purposes.
* * * * *
Sec. 301.38-3 [Amended]
4. In Sec. 301.38-3, paragraphs (a) and (f) would be amended by
removing the words ``paragraph (c)'' and adding the words ``paragraph
(d)'' in their place.
5. In Sec. 301.38-4, paragraphs (a) and (b) would be revised to
read as follows:
[[Page 59283]]
Sec. 301.38-4 Interstate movement of regulated articles.
(a) Non-protected areas. Interstate movement of regulated articles
into or through any State or area that is not designated a protected
area under Sec. 301.38-3(d) is allowed without restriction under this
subpart.
(b) Protected areas. (1) Prohibited movement. The following
regulated articles are prohibited from moving interstate into or
through any protected area:
(i) All rust-susceptible Berberis, Mahoberberis, and Mahonia
plants, seeds, fruits, and other plant parts capable of propagation,
except Mahonia cuttings for decorative purposes.
(ii) All seed-propagated plants of the Berberis species and
varieties designated as rust-resistant in Sec. 301.38-2(a)(1) of this
subpart that are of less than 2 years' growth, and any seeds, fruits,
and other plant parts capable of propagation from such plants.
(2) Restricted movement. The following regulated articles may be
moved interstate into or through a protected area with a certificate
issued and attached in accordance with Sec. Sec. 301.38-5 and 301.38-7
of this subpart:
(i) Seed-propagated plants of at least 2 years' growth, clonally
propagated plants of any age, seeds, fruits, and other plant parts
capable of propagation of the Berberis species and varieties designated
as rust-resistant in Sec. 301.38-2(a)(1) of this subpart;
(ii) Plants, seeds, fruits, and other plant parts capable of
propagation of the Mahoberberis and Mahonia species and varieties
designated as rust-resistant in Sec. 301.38-2(a)(2) of this subpart.
* * * * *
Done in Washington, DC, this 5th day of October 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-20387 Filed 10-11-05; 8:45 am]
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