[Federal Register Volume 71, Number 23 (Friday, February 3, 2006)]
[Rules and Regulations]
[Pages 5777-5779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1008]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 71, No. 23 / Friday, February 3, 2006 / Rules 
and Regulations  

[[Page 5777]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 04-003-2]


Black Stem Rust; Movement Restrictions 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 
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 a 2-year growth period. 
This change will lessen an unnecessarily strict movement requirement. 
We are also adding 13 varieties to the list of rust-resistant Berberis 
species. This change allows for the interstate movement of these newly 
developed varieties without unnecessary restrictions.

DATES: Effective February 3, 2006.

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 that 
is known to exist in the United States. The disease is caused by a 
fungus that reduces the quality of 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.
    On October 12, 2005, we published in the Federal Register (60 FR 
59280-59283, Docket No. 04-003-1) a proposal to amend the regulations 
to allow clonally propagated offspring obtained from black stem rust 
resistant Berberis cultivars of more than 2 years' growth to be moved 
into or through protected areas without undergoing a 2-year growth 
period. We also proposed to add 13 new varieties to the list of rust-
resistant Berberis species and to make several editorial and 
organizational changes to the regulations to improve their accuracy or 
clarity.
    We solicited comments concerning our proposal for 60 days ending 
December 12, 2005. We did not receive any comments. Therefore, for the 
reasons given in the proposed rule, we are adopting the proposed rule 
as a final rule, without change.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register.
    Immediate implementation of this rule is necessary to provide 
relief to those persons who are adversely affected by restrictions we 
no longer find warranted. Making this rule effective immediately will 
allow interested nurseries and others in the marketing chain to benefit 
during this year's nursery stock shipping and marketing season. 
Therefore, the Administrator of the Animal and Plant Health Inspection 
Service has determined that this rule should be effective upon 
publication in the Federal Register.

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.
    This rule adds 13 new varieties of Berberis to the list of species 
that have been determined to be resistant to black stem rust and that 
are 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 rule will affect fewer than five 
nurseries that might propagate the new species and numerous retail 
nurseries that might purchase and resell the varieties. This rule will 
enable those nurseries to move the new varieties into and through 
protected areas and to propagate and sell those varieties in States of 
parts of States designated as protected areas.
    The addition of these 13 new varieties will provide 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 barberry varieties the opportunity to market those 
varieties in protected areas; however, there is no indication that the 
periodic introduction of new varieties 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.
    Additionally, this rule allows nurseries that produce clonally 
propagated offspring from rust-resistant Berberis cultivars to sell 
them without first undergoing a 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.

[[Page 5778]]

    Plant nursery farms and greenhouses are classified as small 
businesses if they receive less than $750,000 in annual sales 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 under SBA's 
standards.
    Those nurseries that produce rust-resistant Berberis varieties will 
benefit from this rule 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 relaxation of movement related 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 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 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

    This final 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, we are amending 7 CFR part 301 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 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).


0
2. Section 301.38-1 is amended as follows:
0
a. By adding, in alphabetical order, a definition of clonally 
propagated to read as set forth below.
0
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.
0
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.
0
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.
0
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.
* * * * *

0
3. Section 301.38-2 is amended as follows:
0
a. By removing paragraph (a)(1) and redesignating paragraphs (a)(2) 
through (a)(5) as paragraphs (a)(1) through (a)(4), respectively.
0
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.
0
c. In newly redesignated paragraph (a)(2), by adding the words ``and 
varieties'' after the word ``species''.
0
d. By revising newly redesignated paragraph (a)(3) to read as set forth 
below.
0
e. In newly redesignated paragraph (a)(4), by removing the words 
``through (a)(4)'' and adding the words ``through (a)(3)'' in their 
place.
0
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.  301.82-2  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]

0
4. In Sec.  301.38-3, paragraphs (a) and (f) are amended by removing 
the words ``paragraph (c)'' and adding the words ``paragraph (d)'' in 
their place.
0
5. In Sec.  301.38-4, paragraphs (a) and (b) are revised to read as 
follows:


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 as 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,

[[Page 5779]]

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 30th day of January 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 06-1008 Filed 2-2-06; 8:45 am]
BILLING CODE 3410-34-P