Federal Register / Vol. 78, No. 92 / Monday, May 13, 2013 / Rules and Regulations 27855 

Done in Washington, DC, this May 8, 2013. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2013–11312 Filed 5–10–13; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2012–0108] 

Black Stem Rust; Additions of RustResistant Species and Varieties 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Direct final rule. 

SUMMARY: We are amending the black 

stem rust quarantine and regulations by 

adding two varieties to the list of rustresistant Berberis species and varieties 

and one variety to the list of rustresistant Mahonia species and varieties. 

This action will allow for the interstate 

movement of these newly developed 

varieties without unnecessary 

restrictions. 

DATES: This rule will be effective on July 

12, 2013, unless we receive written 

adverse comments or written notice of 

intent to submit adverse comments on 

or before June 12, 2013. If we receive 

written adverse comments or written 

notice of intent to submit adverse 

comments, we will publish a document 

in the Federal Register withdrawing 

this rule before the effective date. 

ADDRESSES: You may submit comments 

or written notice of intent to submit 

adverse comments by either of the 

following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/ 

#!documentDetail;D=APHIS-2012-0108- 

0001. 

• Postal Mail/Commercial Delivery: 

Send your comment to Docket No. 

APHIS–2012–0108, Regulatory Analysis 

and Development, PPD, APHIS, Station 

3A–03.8, 4700 River Road Unit 118, 

Riverdale, MD 20737–1238. 

Supporting documents and any 

comments we receive on this docket 

may be viewed at http:// 

www.regulations.gov/ 

#!docketDetail;D=APHIS-2012-0108 or 

in our reading room, which 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) 799–7039 

before coming. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Prakash K. Hebbar, National Program 

Manager, Black Stem/Barberry Rust 

Program, PPQ, APHIS, 4700 River Road 

Unit 26, Riverdale, MD 20737–1231; 

(301) 851–2228. 

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 (Puccinia graminis) that 

reduces the quality and yield of infected 

wheat, oat, barley, and rye crops. 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, 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. In 

accordance with the procedures 

described below under ‘‘Dates,’’ this 

direct final rule will add B. thunbergii 

varieties ‘Della’ and ‘O’ Byrne’ to the list 

of rust-resistant Berberis species in 

§ 301.38–2(a)(1). Similarly, this rule will 

add the Mahonia x media variety 

‘Lionel Fortescue’ to the list of rustresistant Mahonia species in § 301.38– 

2(a)(2)(ii). 

The 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. 

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 rustresistant. 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 rustsusceptible after undergoing the test 

procedure 12 times and being 

determined by USDA to be rustresistant. 

Dates 

We are publishing this rule without a 

prior proposal because we view this 

action as noncontroversial and 

anticipate no adverse public comment. 

This rule will be effective, as published 

in this document, on July 12, 2013, 

unless we receive written adverse 

comments or written notice of intent to 

submit adverse comments on or before 

June 12, 2013. 

Adverse comments are comments that 

suggest the rule should not be adopted 

or that suggest the rule should be 

changed. 

If we receive written adverse 

comments or written notice of intent to 

submit adverse comments, we will 

publish a document in the Federal 

Register withdrawing this rule before 

the effective date. We will then publish 

a proposed rule for public comment. 

As discussed above, if we receive no 

written adverse comments or written 

notice of intent to submit adverse 

comments within 30 days of publication 


emcdonald on DSK67QTVN1PROD with RULES
27856 Federal Register / Vol. 78, No. 92 / Monday, May 13, 2013 / Rules and Regulations 

of this direct final rule, this direct final 

rule will become effective 60 days 

following its publication. We will 

publish a document in the Federal 

Register before the effective date of this 

direct final rule confirming that it is 

effective on the date indicated in this 

document. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This rule is subject to Executive Order 

12866. However, for this action, the 

Office of Management and Budget has 

waived its review under Executive 

Order 12866. 

This analysis provides the basis, as 

required by the Regulatory Flexibility 

Act, for certification by the APHIS 

Administrator that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

This direct final rule will amend 7 

CFR 301.38–2 by adding two varieties to 

the list of rust-resistant Berberis species 

and varieties and by adding one variety 

to the list of rust-resistant Mahonia 

species and varieties. The nursery and 

floriculture industries that may be 

affected by this rule are largely 

composed of small entities. We expect 

these entities to benefit from the rule, by 

being able to market interstate barberry 

species and varieties that have been 

determined to be rust-resistant. 

The introduction and spread of plant 

pests can result in damage to crops and 

losses to the U.S. agricultural sector. For 

the purpose of this analysis and 

following the Small Business 

Administration (SBA) guidelines, we 

note that a major segment of entities 

potentially affected by this rule are 

classified within the following 

industries: Nursery and Tree Production 

(NAICS 111421), and Floriculture 

Production (NAICS 111422). According 

to the Census of Agriculture, these two 

categories included 52,845 farms in 

2007, and represented 3 percent of all 

farms in the United States. These 

entities are considered small by SBA 

standards if their annual sales are 

$750,000 or less. Over 93 percent of the 

farms in these industries had annual 

sales of less than $500,000. Barberry 

plants are not one of the crops tracked 

by the Census and therefore data on 

production and number of producers are 

not available. Nurseries producing 

barberry plant species and varieties will 

not be negatively affected. In fact, they 

will benefit from being able to market 

the three varieties interstate. In 

addition, the rule does not require any 

additional reporting, recordkeeping, or 

other compliance measures beyond 

what is already in place. 

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 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 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, 7 CFR part 301 is 

amended as follows: 

PART 301—DOMESTIC QUARANTINE 

NOTICES 

■ 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 issued under Sec. 204, 

Title II, Public Law 106–113, 113 Stat. 

1501A–293; sections 301.75–15 and 301.75– 

16 issued under Sec. 203, Title II, Public Law 

106–224, 114 Stat. 400 (7 U.S.C. 1421 note). 

■ 2. Section 301.38–2 is amended as 

follows: 

■ a. In paragraph (a)(1), by adding, in 

alphabetical order, two rust-resistant 

Berberis species; and 

■ b. In paragraph (a)(2)(ii), by adding, in 

alphabetical order, one rust-resistant 

Mahonia species. 

The additions read as follows: 

§ 301–38–2 Regulated articles. 

(a) * * * 

(1) * * * 

* * * * * 

B. thunbergii ‘Della’ 

* * * * * 

B. thunbergii ‘O’Byrne’ 

* * * * * 

(2) * * * 

(ii) * * * 

* * * * * 

M. x media ‘Lionel Fortescue’ 

* * * * * 

Done in Washington, DC, May 8, 2013. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2013–11318 Filed 5–10–13; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2012–0079] 

Golden Nematode; Removal of 

Regulated Areas in Livingston and 

Steuben Counties, NY 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Affirmation of interim rule as 

final rule. 

SUMMARY: We are adopting as a final 

rule, without change, an interim rule 

that amended the golden nematode 

regulations by removing areas in 

Livingston and Steuben Counties in 

New York from the list of generally 

infested areas. Surveys have shown that 

certain areas in these two counties are 

free of golden nematode, and we 

determined that regulation of these 

areas was no longer necessary. As a 

result of that action, areas in Livingston 

and Steuben Counties in New York that 

had been listed as generally infested 

were removed from the list of areas 

regulated for golden nematode. 

DATES: Effective on May 13, 2013, we 

are adopting as a final rule, without 

change, the interim rule published at 78 

FR 1713–1715 on January 9, 2013, and 

corrected at 78 FR 3827–3828 on 

January 17, 2013. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jonathan M. Jones, National Program 

Manager, Emergency and Domestic 

Programs, Plant Protection and 

Quarantine, APHIS, 4700 River Road, 

Unit 160, Riverdale, MD 20737; (301) 

851–2128. 

SUPPLEMENTARY INFORMATION: 


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