[Federal Register Volume 67, Number 36 (Friday, February 22, 2002)]
[Rules and Regulations]
[Pages 8177-8180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4262]



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 Rules and Regulations
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  Federal Register / Vol. 67, No. 36 / Friday, February 22, 2002 / 
Rules and Regulations  

[[Page 8177]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 97-053-3]


Black Stem Rust; Identification Requirements and Addition of 
Rust-Resistant Varieties

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We are amending the black stem rust quarantine and regulations 
to require that persons who request the addition of Berberis, 
Mahoberberis, or Mahonia spp. plants to the list of rust-resistant 
varieties in the regulations must provide the Agency with a description 
of the variety that can be used by inspectors to clearly identify the 
variety and distinguish it from others. We are also amending the 
regulations to require that inspectors verify, prior to interstate 
movement, that varieties match their description. Finally, we are 
amending the regulations to add 32 new varieties to the list of rust-
resistant Berberis, Mahoberberis, and Mahonia species. This rule will 
help prevent the spread of black stem rust by providing for and 
requiring the accurate identification of rust-resistant varieties by 
inspectors and will provide for the interstate movement of newly 
developed varieties without unnecessary restrictions.

EFFECTIVE DATE: March 25, 2002.

FOR FURTHER INFORMATION CONTACT: Dr. Vedpal S. Malik, Agriculturist, 
Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit 
134, Riverdale, MD 20737-1231; (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 wind-borne 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.
    On April 7, 1998, we published in the Federal Register (63 FR 
16908-16909, Docket No. 97-053-1) a proposed rule to amend the 
regulations by adding 15 varieties to the list of rust-resistant 
Berberis, Mahoberberis, and Mahonia species. Comments on the proposed 
rule were required to be received on or before May 22, 1998. We 
received two comments by that date, which were from the nursery 
industry and a State government official. One of the commenters opposed 
the addition of more rust-resistant barberry varieties to the list in 
Sec. 301.38-2 without the distribution of proper field identification 
aids to inspectors. After considering that comment, we agreed with the 
commenter's suggestion that identification aids could be useful for 
ensuring the accurate identification of the rust-resistant varieties, 
which would help to prevent the spread of black stem rust. Because this 
comment raised an issue we believed warranted further consideration, we 
withdrew the April 7, 1998, proposed rule, and replaced it with an 
alternative proposal.
    In the alternative proposal, which was published in the Federal 
Register on June 14, 2001 (66 FR 32268-32272, Docket No. 97-053-2), we 
proposed to amend the list of rust-resistant Berberis, Mahoberberis, 
and Mahonia species by adding the 15 varieties listed in our original 
proposed rule as well as an additional 17 varieties that had been 
submitted for listing since the publication of the original proposed 
rule. We also proposed to amend the regulations to require that persons 
who request the Animal and Plant Health Inspection Service (APHIS) to 
add a variety to the list of rust-resistant barberry varieties in the 
regulations must provide APHIS with a description of the variety, 
including a written description and color pictures that can be used by 
State nursery inspectors to clearly identify the variety and 
distinguish it from other varieties. As noted in the proposed rule, the 
nurseries that developed the 32 new rust-resistant varieties listed in 
the proposed rule had provided such identification guides to APHIS. 
Finally, we proposed to require that inspectors who issue certificates 
for the movement of rust-resistant barberry varieties under the 
regulations in Sec. 301.38-4(b)(2) must, prior to issuing certificates, 
verify that the barberry varieties to be shipped match the description 
of the varieties.
    We solicited comments concerning our June 2001 proposal for 60 days 
ending August 13, 2001. We received two comments by that date. They 
were from a national nursery and landscape association and a State 
department of agriculture. These letters fully supported the proposed 
rule. Therefore, we are not making any changes to the rule based on the 
comments we received. However, we are making three changes to the rule 
in order to clarify certain aspects of the regulations.
    First, while a footnote in the definition of rust-resistant plants 
in Sec. 301.38-1 provides a description of the testing performed to 
determine whether a new variety is rust-resistant, the regulations have 
not specifically provided that a person may request that an additional 
rust-resistant variety be added to the lists of rust-resistant

[[Page 8178]]

varieties in Sec. 301.38-2. Similarly, while our June 2001 proposed 
rule contained provisions to require that a person requesting a rust-
resistant variety be added to the list in Sec. 301.38-2 provide APHIS 
with certain information regarding the variety, we did not specifically 
state that a person may request that an additional rust-resistant 
variety be added to that list. We do, in fact, accept requests for 
additions to the lists in Sec. 301.38-2, so we have amended 
Sec. 301.38-2(b) in this final rule to make that clear.
    Second, in our June 2001 proposed rule, we proposed to amend 
Sec. 301.38-5 by adding a new paragraph (b)(3). Under that proposed 
paragraph, an inspector would have to verify, prior to issuing a 
certificate for the interstate movement of a rust-resistant variety, 
that the variety matches the description provided to APHIS by the 
person who requested the addition of that variety to the list in 
Sec. 301.38-2. Given that the existing regulations in Sec. 301.38-
5(b)(1) already provide that an inspector must determine, upon 
examination, that the regulated article may be moved in accordance with 
Sec. 301.38-4, which would include verifying that a particular variety 
is eligible for movement, we have determined that our proposed 
amendment to Sec. 301.38-5 is unnecessary and have removed that 
provision in this final rule. However, we are amending Sec. 301.38-
5(b)(1) in this final rule so that it states that an inspector must 
determine, upon examination, that the regulated article may be moved 
interstate in accordance with the regulations in the entire subpart, 
not just Sec. 301.38-4. This amendment is necessary because there are 
requirements elsewhere in the subpart that apply to the interstate 
movement of regulated articles.
    Third, while our June 2001 proposed rule contained provisions to 
require that descriptions be provided to APHIS in accordance with 
Sec. 301.38-2(b) for use by State nursery inspectors as identification 
aids, those individuals who inspect varieties of black stem rust 
barberry are simply referred to as inspectors elsewhere in the 
regulations. The definition of an inspector, which is contained in 
Sec. 301.38-1, provides that such individuals may be any APHIS employee 
or other person authorized by the Administrator to enforce this 
subpart. Because State nursery inspectors are included in this 
definition, we have amended Sec. 301.38-2(b) in this final rule by 
removing the reference to ``State nursery inspectors'' and replacing it 
with ``an inspector'' in order to make the regulations more consistent.
    Finally, in this final rule we have made several nonsubstantial 
editorial changes in the regulations for clarity.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    This final rule allows the interstate movement of 32 new varieties 
of Berberis, Mahoberberis, and Mahonia that have been determined to be 
resistant to black stem rust 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 or four nurseries 
that might propagate the new species and numerous retail sales 
nurseries that might purchase and resell the varieties. This action 
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.
    Prior to this final rule, 123 varieties of barberry plants were 
listed in the regulations as rust-resistant. Of those 123 varieties, 
many are no longer propagated for commercial sale, as many consumers 
are choosing newer varieties that are horticulturally more attractive. 
This rule adds 32 new varieties to the list. The addition of these 32 
new varieties will simply 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 effect on those nurseries that 
might handle the new varieties.
    This rule requires that persons requesting the addition of a 
barberry variety to the list of rust-resistant varieties in the 
regulations must first provide APHIS with a description of the variety, 
including a written description and color pictures that can be used by 
inspectors to clearly identify the variety and distinguish it from 
other varieties. This rule also requires that, prior to interstate 
movement, an inspector must verify that a rust-resistant variety 
matches the description of the variety provided to APHIS. However, 
these requirements are not expected to result in any measurable cost to 
persons involved in the production or movement of the plants.
    Under these circumstances, the Administrator of the Animal and 
Plant Health InspectionService 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 underNo. 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 final 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

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0186.

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

    Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

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

    Authority: 7 U.S.C. 166, 7711, 7712, 7714, 7731, 7735, 7751, 
7752, 7753, and 7754;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, 114Stat. 400 (7 
U.S.C. 1421 note).
    2. Section 301.38-1 is amended as follows:
    a. In the definition for rust-resistant plants, by removing the 
citation ``Sec. 301.38-2(b) and (c)'' and adding the

[[Page 8179]]

citation ``Sec. 301.38-2 (a)(2) and (a)(3)'' in its place.
    b. In the definition for rust-susceptible plants, by removing the 
citation ``Sec. 301.38-2(b) and (c)'' and adding the citation 
``Sec. 301.38-2(a)(2) and (a)(3)'' in its place.
    c. In the definition for regulated article, by removing the 
citation ``Sec. 301.38-2(a) through (d)'' and adding the citation 
``Sec. 301.38-2(a)(1) through (a)(4)'' in its place, and by removing 
the citation ``Sec. 301.38-2(e)'' and adding the citation 
``Sec. 301.38-2(a)(5)'' in its place.
    3. Section 301.38-2 is revised to read as follows:


Sec. 301.38-2  Regulated articles.

    (a) The following are regulated articles: \3\
---------------------------------------------------------------------------

    \3\ Permit and other requirements for the insterstate movement 
of black stem rust organisms are contained in part 330 of this 
chapter.
---------------------------------------------------------------------------

    (1) All seedlings and plants of less than 2 years' growth of the 
genus Berberis.
    (2) All plants, seeds, fruits, and other plant parts capable of 
propagation from the following rust-resistant Berberis species.
    B. aggregata x B. wilsoniae `Pirate King'
    B. `Amstelveen'
    B. aridocalida
    B. beaniana
    B. buxifolia
    B. buxifolia nana
    B. calliantha
    B. candidula
    B. candidula `Amstelveen'
    B. candidula x B. verruculosa `Amstelveen'
    B. cavallieri
    B. chenaulti
    B. chanaulti `Apricot Queen'
    B. circumserrata
    B. concinna
    B. coxii
    B. darwini
    B. dasystachya
    B. dubia
    B. feddeana
    B. formosana
    B. franchetiana
    B. gagnepainii
    B. gagnepaini `Chenault'
    B. gilgiana
    B. gladwynensis
    B. gladwynensis `William Penn'
    B. gyalaica
    B. heterophylla
    B. horvathi
    B. hybrido-gagnepaini
    B. insignis
    B. integerrima `Wallichs Purple'
    B. julianae
    B. julianae `Nana'
    B. julianae `Spring Glory'
    B. koreana
    B. koreana x B. thunbergii hybrid Bailsel
    B. koreana x B. thunbergii hybrid Tara
    B. lempergiana
    B. lepidifolia
    B. linearifolia
    B. linearifolia var. `Orange King'
    B. lologensis
    B. lologensis `Mystery Fire'
    B. manipurana
    B. media `Park Jewel'
    B. media `Red Jewel'
    B. mentorensis
    B. pallens
    B. poirettii `BJG 073', `MTA'
    B. potanini
    B. Renton
    B. replicata
    B. sanguinea
    B. sargentiana
    B. sikkimensis
    B. soulieana `Claret Cascade'
    B. stenophylla
    B. stenophylla diversifolia
    B. stenophylla gracilis
    B. stenophylla irwini
    B. stenophylla nana compacta
    B. taliensis
    B. telomaica artisepala
    B. thunbergii
    B. thunbergii `Antares'
    B. thunbergii argenteo marginata
    B. thunbergii atropurpurea
    B. thunbergii atropurpurea erecta
    B. thunbergii atropurpurea erecta Marshalli
    B. thunbergii atropurpurea `Golden Ring'
    B. thunbergii atropurpurea `Intermedia'
    B. thunbergii atropurpurea `Knight Burgundy'
    B. thunbergii atropurpurea nana
    B. thunbergii atropurpurea `Redbird'
    B. thunbergii atropurpurea `Rose Glow'
    B. thunbergii aurea
    B. thunbergii `Aurea Nana'
    B. thunbergii `Bagatelle'
    B. thunbergii `Bailgreen' (Jade CarouselTM)
    B. thunbergii `Bailone'
    B. thunbergii `Bailone' (Ruby Carousel)
    B. thunbergii `Bailtwo'
    B. thunbergii `Bailtwo' (Burgundy Carousel)
    B. thunbergii `Bonanza Gold'
    B. thunbergii `Concorde'
    B. thunbergii `Crimson Pygmy'
    B. thunbergii `Criruzam' Crimson RubyTM
    B. thunbergii `Dwarf Jewell'
    B. thunbergii erecta
    B. thunbergii `globe'
    B. thunbergii `golden'
    B. thunbergii `Golden Pygmy'
    B. thunbergii `Green Carpet'
    B. thunbergii `Harlequin'
    B. thunbergii `Helmond Pillar'
    B. thunbergii `Kobold'
    B. thunbergii `Lime Glow'
    B. thunbergii `Lustre Green'
    B. thunbergii maximowiczi
    B. thunbergii `Midruzam' Midnight RubyTM
    B. thunbergii minor
    B. thunbergii `Monlers'
    B. thunbergii `Monomb'
    B. thunbergii `Monry'
    B. thunbergii `Painter's Palette'
    B. thunbergii `Pink Queen'
    B. thunbergii pluriflora
    B. thunbergii `Royal Burgundy'
    B. thunbergii `Royal Cloak'
    B. thunbergii `Sparkle'
    B. thunbergii `Thornless'
    B. thunbergii `Upright Jewell'
    B. thunbergii variegata
    B. thunbergii xanthocarpa
    B. thunbergii x `Bailsel' (Golden Carousel)
    B. thunbergii x `Tara' (Emerald Carousel)
    B. triacanthophora
    B. triculosa
    B. verruculosa
    B. virgatorum
    B. workingensis
    B. xanthoxylon
    B. x carminea `Pirate King'
    B. x frikartii `Amstelveen'
    (3) All plants, seedlings, seeds, fruits, and other plant parts 
capable of propagation from the following rust-resistant Mahoberberis 
and Mahonia species, except Mahonia cuttings for decorative purposes:
    (i) Genus Mahoberberis:
    M. aqui-candidula
    M. aquifolium `Smaragd'
    M. aqui-sargentiae
    M. miethkeana
    M. x `Magic'
    (ii) Genus Mahonia:
    M. amplectens
    M. aquifolium
    M. aquifolium atropurpurea
    M. aquifolium compacta
    M. aquifolium compacta `John Muir'
    M. aquifolium `Donewell'
    M. aquifolium `Kings Ransom'
    M. aquifolium `Orangee Flame'
    M. aquifolium `Undulata'
    M. aquifolium `Winter Sun'
    M. `Arthur Menzies'
    M. bealei
    M. dictyota
    M. fortunei
    M. `Golden Abundance'
    M. japonica
    M. japonica x M. lomariifolia `Charity'
    M. lomarifolia
    M. nervosa
    M. pinnata
    M. pinnata `Ken Hartman'

[[Page 8180]]

    M. piperiana
    M. pumila
    M. repens
    M. x media  `Charity'
    M. x media `Winter Sun'
    (4) All plants, seeds, fruits, and other plant parts capable of 
propagation from rust-susceptible species and varieties of the genera 
Berberis, Mahoberberis, and Mahonia, and seedlings from rust-
susceptible species and varieties of the genera Mahoberberis and 
Mahonia, except Mahonia cuttings for decorative purposes.
    (5) Any other product or article not listed in paragraphs (a)(1) 
through (a)(4) of thissection that an inspector determines presents a 
risk of spread of black stem rust. The inspectormust notify the person 
in possession of the product or article that it is subject to the 
provisions ofthis subpart.
    (b) A person may request that an additional rust-resistant variety 
be added to paragraph (a)(2) or (a)(3) of this section. The person 
requesting that a rust-resistant variety be added to paragraph (a)(2) 
or (a)(3) of this section must provide APHIS with a description of the 
variety, including a written description and color pictures that can be 
used by an inspector to clearly identify the variety and distinguish it 
from other varities. (Approved by the Office of Management and Budget 
under control number 0579-0186.)


Sec. 301.38-4  [Amended]

    4. Section 301.38-4 is amended as follows:
    a. In paragraph (b)(2)(i), by removing the citation ``Sec. 301.38-
2(b)'' and adding the citation ``Sec. 301.38-2(a)(2)'' in its place.
    b. In paragraph (b)(2)(ii), by removing the citation ``Sec. 301.38-
2(c)'' and adding the citation ``Sec. 301.38-2(a)(3)'' in its place.


Sec. 301.38-5  [Amended]

    5. In Sec. 301.38-5, paragraph (b)(1), the citation ``Sec. 301.38-
4'' is removed and the words ``this subpart'' are added in its place.

    Done in Washington, DC, this 19th day of February 2002.
W. Ron DeHaven,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 02-4262 Filed 2-21-02; 8:45 am]
BILLING CODE 3410-34-U