[Federal Register Volume 72, Number 112 (Tuesday, June 12, 2007)]
[Rules and Regulations]
[Pages 32165-32167]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-11275]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2007-0072]


Black Stem Rust; Addition of Rust-Resistant Varieties

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Direct final rule.

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SUMMARY: We are amending the black stem rust quarantine and regulations 
by adding four varieties to the list of rust-resistant Berberis species 
or cultivars in the regulations. This action will allow for the 
interstate movement of these newly developed varieties without 
unnecessary restrictions.

DATES: This rule will be effective on August 13, 2007, unless we 
receive written adverse comments or written notice of intent to submit 
adverse comments on or before July 12, 2007. If we receive written 
adverse comments or written notice of intent to submit adverse 
comments, we will publish a document in the Federal Register 
withdrawing this rule before the effective date.

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-2007-0072 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. APHIS-
2007-0072, Regulatory Analysis and Development, PPD, APHIS, Station 3A-
03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. APHIS-2007-0072.

[[Page 32166]]

    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, which are 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. Section 301.38-2 
of the regulations includes a listing of regulated articles and 
indicates those species and varieties of the genera Berberis, 
Mahoberberis, and Mahonia that are 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 accordance with the procedures described below under ``Effective 
Date,'' this direct final rule will add Berberis thunbergii 
atropurpurea `Moretti Select', B. thunbergii `Fireball', B. thunbergii 
`Orange Rocket', and B. thunbergii `Sparkler' to the list of rust-
resistant Berberis species in Sec.  301.38-2(a)(1).
    The addition of the species listed above to the list of rust-
resistant Berberis species is based on recent testing to determine rust 
resistance conducted by the Agricultural Research Service (ARS) of the 
United States Department of Agriculture (USDA) at its Cereal Rust 
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. Infected wheat stems, a primary 
host of black stem rust, are placed on top of the screen. The plants 
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 20-80 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., six plants tested twice or three plants 
tested four 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 the test procedure 
12 times and being determined by USDA to be rust-resistant.

Dates

    We are publishing this rule without a prior proposal because we 
view this action as noncontroversial and anticipate no adverse public 
comment. This rule will be effective, as published in this document, on 
August 13, 2007, unless we receive written adverse comments or written 
notice of intent to submit adverse comments on or before July 12, 2007.
    Adverse comments are comments that suggest the rule should not be 
adopted or that suggest the rule should be changed.
    If we receive written adverse comments or written notice of intent 
to submit adverse comments, we will publish a document in the Federal 
Register withdrawing this rule before the effective date. We will then 
publish a proposed rule for public comment.
    As discussed above, if we receive no written adverse comments or 
written notice of intent to submit adverse comments within 30 days of 
publication of this direct final rule, this direct final rule will 
become effective 60 days following its publication. We will publish a 
document in the Federal Register, before the effective date of this 
direct final rule, confirming that it is effective on the date 
indicated in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This 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.
    We are amending the black stem rust quarantine and regulations by 
adding B. thunbergii atropurpurea `Moretti Select', B. thunbergii 
`Fireball', B. thunbergii `Orange Rocket', and B. thunbergii `Sparkler' 
to the list of rust-resistant species or cultivars in the regulations. 
This action will provide for the interstate movement of these newly 
developed rust-resistant Berberis varieties without unnecessary 
restrictions.
    Following the Small Business Administration (SBA) guidelines, the 
potentially affected entities are classified within the following 
industries: Nursery and Tree Production (North American Industry 
Classification System [NAICS] 111421), and Floriculture Production 
(NAICS 111422). For these two categories, entities are considered small 
by SBA standards if their annual sales are $750,000 or less. According 
to the 2002 Census of Agriculture, there were 64,366 farms in both 
NAICS categories and this total represents 3 percent of the total farms 
in the United States. Over 92 percent of the farms have annual sales of 
less than $500,000 and by SBA standards are considered small.
    Barberry plants are not one of the crops tracked by the Census and 
therefore data on production and number of producers are not available. 
However, because we are removing restrictions on the movement of 
additional rust-resistant varieties of barberry, it is not anticipated 
that any of the nurseries producing barberry plant

[[Page 32167]]

species and cultivars will experience a negative economic impact as a 
result of this rulemaking. Consumers will benefit from having a greater 
selection of barberry plants, and nurseries will benefit from being to 
able to market their product more quickly.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
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 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.

Paperwork Reduction Act

    This 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.


0
Accordingly, 7 CFR part 301 is amended as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.
    Section 301.75-15 issued under Sec. 204, Title II, Public Law 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 
(7 U.S.C. 1421 note).


0
2. In Sec.  301.38-2, paragraph (b) is amended by adding, in 
alphabetical order, the following rust-resistant Berberis species:


Sec.  310.38-2  Regulated articles.

    (a) * * *
    (1) * * *
* * * * *
B. thunbergii atropurpurea `Moretti Select'
* * * * *
B. thunbergii `Fireball'
* * * * *
B. thunbergii `Orange Rocket'
* * * * *
B. thunbergii `Sparkler'
* * * * *

    Done in Washington, DC, this 6th day of June 2007.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E7-11275 Filed 6-11-07; 8:45 am]
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