#### § 301.38-1 Definitions.

In this subpart the following definitions apply:

*Administrator.* The Administrator, Animal and Plant Health Inspection Service (APHIS), or any person authorized to act for the Administrator.

*Animal and Plant Health Inspection Service (APHIS).* The Animal and Plant Health Inspection Service of the United States Department of Agriculure.

*Black stem rust.* The disease commonly known as the black stem rust of grains (*Puccinia graminis*).

*Certificate.* A document in which an inspector, or a person operating under a compliance agreement, affirms that a specified regulated article has met the criteria in § 301.38-5(b) and may be moved interstate to any destination.

*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.

*Compliance agreement.* A written agreement between a State that is a protected area or that encompasses a protected area and a person who moves regulated articles interstate, or in a non-protected area between APHIS and such person, in which that person agrees to comply with this subpart.

*Departmental permit.* A document issued by the Administrator in which he or she affirms that interstate movement of the regulated article identified on the document is for scientific or experimental purposes, and that the regulated article is eligible for interstate movement under the conditions specified on the Departmental permit and found by the Administrator to be adequate to prevent the introduction of rust-susceptible varieties of the genera *Berberis, Mahoberberis,* and *Mahonia* into protected areas.

*Inspector.* Any APHIS employee or other person authorized by the Administrator in accordance with law to enforce this subpart.

*Interstate.* From any State into or through any other State.

*Limited permit.* A document issued by an inspector to allow the interstate movement into or through a protected area of regulated articles not eligible for certification under this subpart to a specified destination outside the protected area.

*Moved (movement, move).* Shipped, offered to a common carrier for shipment, received for transportation or transported by a common carrier, or carried, transported, moved, or allowed to be moved. “Movement” and “move” shall be construed in accordance with this definition.

*Person.* Any association, company, corporation, firm, individual, joint stock company, partnership, society, or any other legal entity.

*Regulated article.* Any article identified as a regulated article under § 301.38-2 as follows: listed as of January 30, 2023, added in accordance with § 301.38-2(c), or otherwise designated in accordance with § 301.38-2(d).

*Rust-resistant plants.* All plants of the genera *Berberis, Mahoberberis,* and *Mahonia*, and their progeny, that have proven resistant to black stem rust during testing by the United States Department of Agriculture,[1] and that are listed as rust-resistant in accordance with § 301.38-2.

*Rust-susceptible plants.* All plants of the genera *Berberis, Mahoberberis,* and *Mahonia* not listed as rust-resistant in accordance with § 301.38-2.

*Seedling.* Any plant of the genera *Berberis, Mahoberberis,* and *Mahonia* grown from seed and having less than 2 years' growth.

*State.* The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory or possession of the United States.

*Two years' growth.* The growth of a plant during all growing seasons of 2 successive calendar years.

[54 FR 32791, Aug. 10, 1989; 54 FR 38494, Sept. 18, 1989; 67 FR 8178, Feb. 22, 2002; 71 FR 5778, Feb. 3, 2006; 87 FR 80004, Dec. 29, 2022]

###### Footnotes -
  301.38-1

[1] Testing is performed by the Agricultural Research Service of USDA as follows: In a greenhouse, the suspect plant, or test subject, is placed under a screen with a control plant, *i.e.,* a known rust-susceptible variety 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% humidity, causing the spores to swell and fall on the plants lying under the screen. The plants are then observed for 7 days at 20-80% relative humidity. This test procedure is repeated 12 times. If in all 12 tests, the rust-susceptible plant shows signs of infection after 7 days and the test plants do not, USDA will declare the test plant variety rust-resistant. The tests must be performed on new growth, just as the leaves are unfolding.