[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4324]


  Federal Register / Vol. 59, No. 38 / Friday, February 25, 1994 /
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[[Page Unknown]]

[Federal Register: February 25, 1994]


                                                    VOL. 59, NO. 38

                                          Friday, February 25, 1994
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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 93-142-1]

 

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 
to add six varieties to the list of rust-resistant Berberis species. 
This change will allow for the interstate movement of these newly 
developed varieties without unnecessary restrictions.

DATES: This rule will be effective on April 26, 1994, unless we receive 
written adverse comments or written notice of intent to submit adverse 
comments on or before March 25, 1994. If we receive written adverse 
comments or written notice of intent to submit adverse comments, we 
will publish a notice in the Federal Register withdrawing this rule 
before the effective date.

ADDRESSES: Please send an original and three copies of any adverse 
comments or notice of intent to submit adverse comments to Chief, 
Regulatory Analysis and Development, PPD, APHIS, USDA, room 804, 
Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782. Please 
state that your submission refers to Docket No. 93-142-1. Submissions 
received may be inspected at USDA, room 1141, South Building, 14th 
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 
4:30 p.m., Monday through Friday, except holidays. Persons wishing to 
inspect comments and notices are encouraged to call ahead on (202) 690-
2817 to facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Poe, Operations Officer, 
Domestic and Emergency Operations, Plant Protection and Quarantine, 
APHIS, USDA, room 645, Federal Building, 6505 Belcrest Road, 
Hyattsville, MD 20782, (301) 436-6365.

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 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 
wind-borne spores.
    The black stem rust quarantine and regulations 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, also 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; rust-susceptible plants do pose such a risk.
    Section 301.38-2 of the regulations includes a listing of regulated 
articles and indicates species of the genera Berberis, Mahoberberis, 
and Mahonia 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 media `Red Jewel,' Berberis 
thunbergii `Bailone,' Berberis thunbergii `Bailtwo,' Berberis 
thunbergii `Cherry bomb,' Berberis thunbergii `Harlequin,' and Berberis 
thunbergii `Pink Queen' to the list of rust-resistant Berberis species 
in Sec. 301.38-2(b).
    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 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 this procedure 12 
times and being determined by USDA to be rust-resistant.

Effective Date

    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, 60 
days after the date of publication in the Federal Register unless we 
receive written adverse comments or written notice of intent to submit 
adverse comments within 30 days of the date of publication of this rule 
in the Federal Register.
    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 notice in the Federal 
Register withdrawing this rule before the effective date. We will then 
publish a proposed rule for public comment. Following the close of that 
comment period, the comments will be considered, and a final rule 
addressing the comments will be published.
    As discussed above, if we receive no written adverse comments nor 
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 
notice to this effect 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.
    This rule will allow the interstate movement of Berberis media `Red 
Jewel,' Berberis thunbergii `Bailone,' Berberis thunbergii `Bailtwo,' 
Berberis thunbergii `Cherry bomb,' Berberis thunbergii `Harlequin,' and 
Berberis thunbergii `Pink Queen' into and through States or parts of 
States designated as protected areas. Based on the information provided 
to us, we have determined that this rule will affect three commercial 
nurseries that might propagate the new species and numerous retail 
sales nurseries that might purchase or resell the varieties. This rule 
will 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. It is unlikely that the 
addition of these varieties to the list of rust-resistant Berberis 
species will have any effect on prices, investment, productivity, or 
our international competitive position. It is possible that this rule 
will positively affect innovation by allowing nurseries that develop 
new rust-resistant Berberis varieties the opportunity to market those 
varieties in protected areas. It is also possible that this rule will 
have some positive effect on nurseries that are small businesses by 
providing an opportunity for increased sales of rust-resistant Berberis 
species in protected areas. We cannot predict the exact number of 
nurseries that might be affected by this rule change, nor can we 
predict the level of demand for these new species or the impact on 
nurseries producing or selling them. It is likely, however, that any 
economic effects will not be significant as a result of additional 
plant sales.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this rule 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 3015, subpart V.)

Executive Order 12778

    This rule has been reviewed under Executive Order 12778, 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 final rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1980 
(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.

PART 301--DOMESTIC QUARANTINE NOTICES

    Accordingly, 7 CFR part 301 is amended as follows:
    1. The authority citation for part 301 continues to read as 
follows:

    Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and 
164-167; 7 CFR 2.17, 2.51, and 371.2(c).

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


Sec. 301.38-2  Regulated articles.

* * * * *
    (b) * * *
    B. media `Red Jewel'
* * * * *
    B. thunbergii `Bailone'
    B. thunbergii `Bailtwo'
* * * * *
    B. thunbergii `Cherry Bomb'
* * * * *
    B. thunbergii `Harlequin'
* * * * *
    B. thunbergii `Pink Queen'
* * * * *
    Done in Washington, DC, this 18th day of February 1994.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Inspection Services.
[FR Doc. 94-4324 Filed 2-24-94; 8:45 am]
BILLING CODE 3410-34-P