[Federal Register Volume 70, Number 196 (Wednesday, October 12, 2005)]
[Proposed Rules]
[Pages 59280-59283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20387]


 ========================================================================
 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. 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.

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

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 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]
BILLING CODE 3410-34-P