[Federal Register Volume 63, Number 66 (Tuesday, April 7, 1998)]
[Proposed Rules]
[Pages 16908-16909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9050]


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 Proposed Rules
                                                 Federal Register
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 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. 63, No. 66 / Tuesday, April 7, 1998 / 
Proposed Rules  

[[Page 16908]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 97-053-1]


Black Stem Rust; 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 adding 15 varieties to the list of rust-resistant 
Berberis, Mahoberberis, and Mahonia species. This change would allow 
for the interstate movement of these newly developed varieties without 
unnecessary restrictions.

DATES: Consideration will be given only to comments received on or 
before May 22, 1998.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 97-053-1, Regulatory Analysis and Development, PPD, APHIS, 
suite 3C03, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please 
state that your comments refer to Docket No. 97-053-1. Comments 
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 are requested to call ahead on (202) 690-2817 to 
facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Poe, Operations Officer, 
Program Support Staff, PPQ, APHIS, suite 4C03, 4700 River Road, Unit 
134, Riverdale, MD 20737-1236; (301) 734-8247; or e-mail: 
[email protected].

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 wind-borne 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 
rest-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 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. We are proposing to 
add Berberis aggregata X Berberis wilsoniae ``Pirate King'', Berberis 
candidula X Berberis verruculosa ``Amstelveen'', Berberis gangepainii 
``Chenault'', Berberis integerrima ``Wallichs Purple'', Berberis 
soulieana ``Claret Cascade'', Berberis thunbergii ``Aurea Nana'', 
Berberis thunbergii ``Bail Green'', Berberis thunbergii ``Concorde'', 
Berberis thunbergii ``Criruzam'' Crimson Ruby, Berberis thunbergii 
``Green Carpet'', Berberis thunbergii ``Midruzam'' Midnight Ruby, 
Berberis thunbergii ``Royal Burgundy'', and Berberis thunbergii ``Royal 
Cloak'' to the list of rust-resistant Berberis species in Sec. 301.38-
2(b); add Mahoberberis aquifolium ``Smaragd'', to the list of rust-
resistant Mahoberberis species in Sec. 301.38-2(c)(1); and add Mahonia 
japonica X Mahonia lomariifolia ``Charity'', to the list of rust-
resistant Mahonia species in Sec. 301.38-2(c)(2).
    The nurseries that developed these rust-resistant species of 
Berberis, Mahoberberis, and Mahonia have provided identification guides 
to the Animal and Plant Health Inspection Service (APHIS) and to the 
receiving States. The proposed addition of these species to the list of 
rust-resistant 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 this procedure 12 
times and being determined by USDA to be rust-resistant.

[[Page 16909]]

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 process required by Executive Order 12866.
    This proposed rule would allow the interstate movement of 15 new 
varieties of Berberis, Mahoberberis, and Mahonia, which are resistant 
to black stem rust, 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 four 
nurseries that might propagate the new species and numerous retail 
sales nurseries that might purchase or 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, 123 varieties of barberry plants are listed as rust-
resistant. Of the 123 varieties currently listed as rust-resistant, 
many of those varieties are not used any more. Many consumers are 
choosing newer varieties that are horticulturally more attractive. This 
rule would add 15 new varieties to the current list of 123 varieties. 
The addition of these 15 new varieties would only create a greater 
selection of barberry plant varieties from which consumers can choose. 
This rule could encourage innovation by allowing nurseries that develop 
new rust-resistant Berberis, Mahoberberis, and Mahonia 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 handle the new varieties.
    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, Incorporation by reference, Plant disease 
and pests, Quarantine, Reporting and recordkeeping requirements, 
Transportation.
    Accordingly, 7 CFR part 301 would be amended 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. 147a, 150bb, 150dd, 150ee, 150ff, 161, 162, 
and 164-167; 7 CFR 2.22, 2.80, and 371.2(c).

    2. Section 301.38-2 would be amended as follows:
    a. Paragraph (b) would be amended by adding, in alphabetical order, 
13 rust-resistant Berberis species to read as set forth below.
    c. Paragraph (c)(1) would be amended by adding, in alphabetical 
order, one rust-resistant Genera Mahoberberis species to read as set 
forth below.
    d. Paragraph (c)(2) would be amended by adding, in alphabetical 
order, one rust-resistant Genera Mahonia species to read as set forth 
below.


Sec. 301.38-2  Regulated articles.

* * * * *
    (b) * * *
* * * * *
    B. aggregata X B. wilsoniae `Pirate King'
* * * * *
    B. candidula X B. verruculosa `Amstelveen'
* * * * *
    B. gagnepainii `Chenault'
* * * * *
    B. integerrima `Wallichs Purple'
* * * * *
    B. soulieana `Claret Cascade'
* * * * *
    B. thunbergii `Aurea Nana'
* * * * *
    B. thunbergii `Bail Green'
* * * * *
    B. thunbergii `Concorde'
* * * * *
    B. thunbergii `Criruzam' Crimson Ruby
* * * * *
    B. thunbergii `Green Carpet'
* * * * *
    B. thunbergii `Midruzam' Midnight Ruby
* * * * *
    B. thunbergii ``Royal Burgundy''
    B. thunbergii ``Royal Cloak''
* * * * *
    (c) * * *
    (1) * * *
* * * * *
    M. aquifolium `Smaragd'
* * * * *
    (2) * * *
* * * * *
    M. japonica X M. lomariifolia ``Charity''
* * * * *
    Done in Washington, DC, this 1st day of April 1998.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-9050 Filed 4-6-98; 8:45 am]
BILLING CODE 3410-34-P