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.

Proposed Rules Federal Register

32268

Vol. 66, No. 115

Thursday, June 14, 2001

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Part 301

[Docket No. 97–053–2]

Black Stem Rust; Addition of RustResistant Varieties

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Proposed rule; withdrawal and

reproposal.

SUMMARY: We are proposing to amend

the black stem rust quarantine and

regulations by requiring 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 State nursery inspectors to

clearly identify the variety and

distinguish it from others. We are

proposing to require that inspectors

verify, prior to interstate movement, that

varieties match their description. In

addition, we are also proposing to add

32 new varieties to the list of rustresistant Berberis, Mahoberberis, and

Mahonia species. These proposed

changes replace a previously published

proposed rule, which we are

withdrawing as part of this document,

that would have added 15 new varieties

to the list of rust-resistant Berberis,

Mahoberberis, and Mahonia species

without requiring the submission of

descriptions of those varieties to the

Agency. This proposed rule would help

prevent the spread of black stem rust by

providing for and requiring the accurate

identification of rust-resistant varieties

by inspectors and would provide for the

interstate movement of newly

developed varieties without

unnecessary restrictions.

DATES: We invite you to comment on

this docket. We will consider all

comments that we receive by August 13,

2001.

ADDRESSES: Please send four copies of

your comment (an original and three

copies) to: Docket No. 97–053–2,

Regulatory Analysis and Development,

PPD, APHIS, Suite 3C03, 4700 River

Road, Unit 118, Riverdale, MD 20737–

1238. Please state that your comment

refers to Docket No. 97–053–2.

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.

APHIS documents published in the

Federal Register, and related

information, including the names of

organizations and individuals who have

commented on APHIS dockets, are

available on the Internet at http://

www.aphis.usda.gov/ppd/rad/

webrepor.html.

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, 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 rustresistant. 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.

We solicited comments concerning

our proposal for 45 days ending on May

22, 1998. We received a total of two

comments by that date. They were from

a representative of the nursery industry

and a State government official.

One commenter supported the

proposed rule, but asked that we correct

the nomenclature of one proposed rustresistant barberry variety. The

commenter also requested that we

consider other changes to the black stem

rust quarantine that were outside the

scope of the proposed rulemaking.

The other commenter opposed the

addition of more rust-resistant barberry

varieties to the list in § 301.38–2

without the distribution of proper field

identification aids to State inspectors.

The commenter recommended that

before additional plants are added to the

list of rust-resistant barberry varieties in

the regulations, the Animal and Plant

Health Inspection Service (APHIS)

should require persons who develop

new varieties to provide APHIS with

written descriptions and color

photographs of the plants that can be

used by inspectors to properly identify

and distinguish between barberry

varieties. The commenter stated that

such a requirement would help to

ensure that State inspectors can verify

that plants moving into their States are

indeed APHIS-approved rust-resistant

barberry varieties.

Since this comment raises a new

issue, we are reproposing the April 7,

1998, proposed rule and including

regulatory text to address this comment.

Also, several additional varieties of rustresistant varieties have been submitted

to APHIS for inclusion in the

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32269

regulations since the publication of the

proposed rule. Therefore, we are

proposing to amend the regulations to

include these recently developed

varieties.

In this document, we are proposing to

require that persons who request APHIS

to add a variety to the list of rustresistant 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.

This requirement would be contained in

§ 301.38–2(b) of the regulations. We are

proposing this requirement in order to

ensure that State plant inspectors can

clearly determine whether plants

moving into or through their States are

rust-resistant varieties listed in

§ 301.38–2 of the regulations.

In conjunction with this requirement,

we are also proposing to require that

inspectors who issue certificates for the

movement of rust-resistant barberry

varieties under the regulations in

§ 301.38–4(b)(2) must, prior to issuing

certificates, verify that the barberry

varieties to be shipped match the

description of the varieties that were

provided to APHIS in accordance with

the proposed regulations in § 301.38–

2(b).

We are also proposing to add the

following varieties to the lists of rustresistant Berberis, Mahoberberis, and

Mahonia species:

Berberis

B. aggregata x B. wilsoniae ‘Pirate King’

B. x carminea ‘Pirate King’

B. ‘Amstelveen’

B. candidula x B. verruculosa

‘Amstelveen’

B. x frikartii ‘Amstelveen’

B. gagnepainii ‘Chenault’

B. integerrima ‘Wallichs Purple’

B. lologensis ‘Mystery Fire’

B. poirettii ‘BJG 073’, ‘MTA’

B. soulieana ‘Claret Cascade’

B. thunbergii ‘Antares’

B. thunbergii ‘Aurea Nana’

B. thunbergii ‘Bailone’ (Ruby Carousel)

B. thunbergii ‘Bailtwo’ (Burgundy

Carousel)

B. thunbergii ‘Bailgreen’ (Jade

CarouselTM)

B. thunbergii ‘Concorde’

B. thunbergii ‘Criruzam’ Crimson

RubyTM

B. thunbergii ‘Golden Pygmy’

B. thunbergii ‘Green Carpet’

B. thunbergii ‘Lime Glow’

B. thunbergii ‘Midruzam’ Midnight

RubyTM

B. thunbergii ‘Painter’s Palette’

B. thunbergii ‘Royal Burgundy’

B. thunbergii ‘Royal Cloak’

B. thunbergii x ‘Bailsel’ (Golden

Carousel)

B. thunbergii x ‘Tara’ (Emerald

Carousel)

Mahoberberis

M. aquifolium ‘Smaragd’

M. x ‘Magic’

Mahonia

M. aquifolium ‘Undulata’

M. japonica x M. lomariifolia ‘Charity’

M. x media ‘Charity’

M. x media ‘Winter Sun’

The nurseries that developed these

rust-resistant species of Berberis,

Mahoberberis, and Mahonia have

provided identification guides to APHIS

and to the receiving States. The

proposed addition of these species to

the list of rust-resistant species is based

on recent testing to determine rustresistance conducted by the Agricultural

Research Service of the United States

Department of Agriculture (USDA) at its

Cereal Rust 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 to 80 percent relative humidity. If

the rust-susceptible plant shows signs of

infection after 7 days and the test plant

does not, the test results indicate that

the test plant is 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., 6 plants tested twice or 3

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 rust-susceptible after undergoing

this procedure 12 times and being

determined by USDA to be rustresistant.

Executive Order 12866 and Regulatory

Flexibility Act

This proposed 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 proposed rule would allow 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 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 three or four 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, 123 varieties of barberry

plants are listed as rust-resistant. Of

those 123 varieties, many are no longer

propagated for commercial sale. Many

consumers are choosing newer varieties

that are horticulturally more attractive.

This rule would add 32 new varieties to

the current list of 123 varieties. The

addition of these 32 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 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 impact on those

nurseries that might handle the new

varieties.

This proposed rule would require that

persons requesting the addition of a

barberry variety to the list of rustresistant 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 State nursery

inspectors to clearly identify the variety

and distinguish it from other varieties.

This rule would also require that, prior

32270 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

3Permit and other requirements for the interstate

movement of black stem rust organisms are

contained in part 330 of this chapter.

to interstate movement, an inspector

must verify that a rust-resistant variety

matches the description of the variety

provided to APHIS. However, these

proposed 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 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

In accordance with section 3507(d) of

the Paperwork Reduction Act of 1995

(44 U.S.C. 3501 et seq.), the information

collection or recordkeeping

requirements included in this proposed

rule have been submitted for approval to

the Office of Management and Budget

(OMB). Please send written comments

to the Office of Information and

Regulatory Affairs, OMB, Attention:

Desk Officer for APHIS, Washington, DC

20503. Please state that your comments

refer to Docket No. 97–053–2. Please

send a copy of your comments to: (1)

Docket No. 97–053–2, Regulatory

Analysis and Development, PPD,

APHIS, suite 3C03, 4700 River Road

Unit 118, Riverdale, MD 20737–1238,

and (2) Clearance Officer, OCIO, USDA,

room 404–W, 14th Street and

Independence Avenue SW.,

Washington, DC 20250. A comment to

OMB is best assured of having its full

effect if OMB receives it within 30 days

of publication of this proposed rule.

In this document, we are proposing to

require that persons who request APHIS

to add a variety to the list of rustresistant 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.

This requirement would be contained in

§ 301.38–2(b) of the regulations. We are

proposing this requirement in order to

ensure that State plant inspectors can

clearly determine whether plants

moving into or through their States are

rust-resistant varieties listed in

§ 301.38–2 of the regulations. We are

asking OMB to approve the collection of

this information for 3 years.

In conjunction with this requirement,

we are also proposing to require that

inspectors who issue certificates for the

movement of rust-resistant barberry

varieties under the regulations in

§ 301.38–4(b)(2) must, prior to issuing

certificates, verify that the barberry

varieties shipped match the description

of the varieties that were provided to

APHIS in accordance with the proposed

regulations in § 301.38–2(b).

We are soliciting comments from the

public (as well as affected agencies)

concerning our proposed information

collection and recordkeeping

requirements. These comments will

help us:

(1) Evaluate whether the proposed

information collection is necessary for

the proper performance of our agency’s

functions, including whether the

information will have practical utility;

(2) Evaluate the accuracy of our

estimate of the burden of the proposed

information collection, including the

validity of the methodology and

assumptions used;

(3) Enhance the quality, utility, and

clarity of the information to be

collected; and

(4) Minimize the burden of the

information collection on those who are

to respond (such as through the use of

appropriate automated, electronic,

mechanical, or other technological

collection techniques or other forms of

information technology; e.g., permitting

electronic submission of responses).

Estimate of burden: Public reporting

burden for this collection of information

is estimated to average 4 hours per

response.

Respondents: Nurseries that propagate

new rust-resistant species and varieties

of Berberis spp., Mahoberberis spp., and

Mahonia spp.

Estimated annual number of

respondents: 4.

Estimated annual number of

responses per respondent: 2.

Estimated annual number of

responses: 8.

Estimated total annual burden on

respondents: 32 hours.

Copies of this information collection

can be obtained from Mrs. Celeste

Sickles, APHIS’ Information Collection

Coordinator, at (301) 734–7477.

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. 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 and Sec. 203, Title II,

Pub. L. 106–224, 114 Stat. 400.

§ 301.38–1 [Amended]

2. Section 301.38–1 would be

amended as follows:

a. In the definition for Rust-resistant

plants, by removing the words

‘‘§ 301.38–2 (b) and (c)’’ and adding the

words ‘‘§ 301.38–2 (a)(2) and (a)(3)’’ in

their place.

b. In the definition for Rustsusceptible plants, by removing the

words ‘‘§ 301.38–2 (b) and (c)’’ and

adding the words ‘‘§ 301.38–2(a)(2) and

(a)(3)’’ in their place.

c. In the definition for Regulated

article, by removing the words

‘‘§ 301.38–2 (a) through (d)’’ and adding

the words ‘‘§ 301.38–2(a)(1) through

(a)(4)’’ in their place, and by removing

the words ‘‘§ 301.38–2(e)’’ and adding

the words ‘‘§ 301.38–2(a)(5)’’ in their

place.

3. Section 301.38–2 would be revised

to read as follows:

§ 301.38–2 Regulated articles.

(a) The following are regulated

articles: 3

(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

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32271

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 irwini

B. stenophylla gracilis

B. stenophylla nana compacta

B. taliensis

B. telomaica artisepala

B. thunbergii

B. thunbergii ‘Antares’

B. thunbergii aurea

B. thunbergii ‘Aurea Nana’

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 ‘Bagatelle’

B. thunbergii ‘Bailone’

B. thunbergii ‘Bailtwo’

B. thunbergii ‘Bailone’ (Ruby Carousel)

B. thunbergii ‘Bailtwo’ (Burgundy

Carousel)

B. thunbergii ‘Bailgreen’ (Jade

CarouselTM)

B. thunbergii ‘Bonanza Gold’

B. thunbergii ‘Concorde’

B. thunbergii ‘Crimson Pygmy’

B. thunbergii ‘Criruzam’ Crimson Ruby

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

Ruby

B. thunbergii minor

B. thunbergii ‘Monry’

B. thunbergii ‘Monlers’

B. thunbergii ‘Monomb’

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 rustresistant 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’

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 rustsusceptible 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)(i) through (a)(4)

of this section that an inspector

determines presents a risk of spread of

black stem rust. The inspector must

notify the person in possession of the

product or article that it is subject to the

provisions of this subpart.

(b) The person requesting that a rustresistant variety be added to paragraphs

(a)(2) and (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

State nursery inspectors to clearly

identify the variety and distinguish it

from other varieties.

§ 301.38–4 [Amended]

4. Section 301.38–4 would be

amended as follows:

a. In paragraph (b)(2)(i), by removing

the words ‘‘§ 301.38–2 (b)’’ and adding

the words ‘‘§ 301.38–2 (a)(2)’’ in their

place.

b. In paragraph (b)(2)(ii), by removing

the words ‘‘§ 301.38–2 (c)’’ and adding

the words ‘‘§ 301.38–2 (a)(3)’’ in their

place.

5. Section 301.38–5(b) would be

revised to read as follows:

32272 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

§ 301.38–5 Assembly and inspection of

regulated articles: issuance and

cancellation of certificates.

* * * * *

(b) An inspector may issue a

certificate for the interstate movement of

a regulated article if he or she:

(1) Determines, upon examination,

that the regulated article may be moved

interstate in accordance with § 301.38–

4;

(2) Determines that the regulated

article may be moved interstate in

accordance with all other Federal

domestic plant quarantines and

regulations applicable to the regulated

article; and

(3) Verifies that the regulated article,

if being moved interstate in accordance

with § 301.38–4(b)(2), matches the

description provided to APHIS in

accordance with § 301.38–2(b).

* * * * *

Done in Washington, DC, this 8th day of

June 2001.

Bobby R. Acord,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 01–14943 Filed 6–13–01; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF ENERGY

10 CFR Part 1008

RIN: 1901–AA69

Privacy Act; Implementation

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department of Energy

(DOE) proposes to amend its Privacy

Act regulation by adding three systems

of records to the list of systems

exempted from certain subsections of

the Act. Exemptions for two systems of

records are needed to enable the Office

of Employee Concerns and the Office of

Hearings and Appeals to perform their

duties and responsibilities with regard

to investigation and/or adjudication of

employee and contractor employee

concerns or complaints, pursuant to the

whistleblower protection provisions in

Part 708 of title 10 of the Code of

Federal Regulations (CFR) and

applicable laws. An exemption for a

third system of records is needed to

enable the Office of Intelligence to

perform its duties and responsibilities.

DATES: Written comments should be

made on or before July 16, 2001.

ADDRESSES: Written comments should

be directed to: Abel Lopez, Director,

Freedom of Information Act and Privacy

Act Division, U.S. Department of

Energy, MA–73, 1000 Independence

Avenue, SW, Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Abel

Lopez (Privacy Act Officer), (202) 586–

5955; William Lewis (program contact

for Office of Employee Concerns), (202)

586–6530; William Schwartz (program

contact for Office of Hearings and

Appeals), (202) 287–1522; or Caryl

Butler Gross (program contact for Office

of Intelligence), (202) 586–5172.

SUPPLEMENTARY INFORMATION:

I. Background

II. Analysis

III. Regulatory and Procedural Requirements

A. Review Under Executive Order 12866

B. Review Under Executive Order 12988

C. Review Under the Regulatory Flexibility

Act

D. Review Under the Paperwork Reduction

Act

E. Review Under the National

Environmental Policy Act

F. Review Under Executive Order 13132

G. Review Under the Unfunded Mandates

Reform Act of 1995

H. Review Under the Treasury and General

Government Appropriations Act, 1999

I. Review Under Executive Order 13084

IV. Public Comment

I. Background

Pursuant to the Privacy Act of 1974

(the Act), as amended (5 U.S.C. 552a(j)

and (k)), the Secretary of Energy is

authorized to promulgate rules, in

accordance with the notice and

comment requirements in 5 U.S.C. 553,

to exempt any system of records within

the agency from certain subsections of

the Act. Accordingly, DOE is proposing

three new systems of records to be

added to the list of systems of records

exempted from certain subsections of

the Act.

One of the proposed exemptions

would amend the DOE’s Privacy Act

regulation to enable the Office of

Employee Concerns to carry out its

investigative duties and responsibilities.

DOE recognizes that free and open

expression of DOE Federal and

contractor and subcontractor employee

concerns is essential to safe and

efficient accomplishment of DOE’s

mission. DOE and contractor employees

have the right and responsibility to

report concerns relating to the

environment, safety, health, or

management of Department operations.

The Employee Concerns Program is

designed to encourage open

communication; inform employees of

the proper forum for consideration of

their concerns; ensure employees can

raise issues without fearing reprisal;

address employee concerns in a timely

and objective manner; and provide

employees an avenue for consideration

of concerns that fall outside existing

systems. Employee Concerns Program

records include concerns or complaints

brought to the attention of DOE

Employee Concerns Program offices.

These records include the receipt of

complaints filed under 10 CFR part 708,

the DOE Contractor Employee

Protection Program. The records in this

system will be used by employee

concerns program offices to document

concerns brought to their attention and

to assist in the resolution of concerns

about various work-related issues

including the environment, safety,

health, employer-supervisor

relationships, or work processes and

practices.

A second proposed exemption would

amend the DOE’s Privacy Act regulation

to enable the Office of Hearings and

Appeals to carry out its investigative

and adjudicatory duties and

responsibilities under 10 CFR part 708

and other whistleblower protection

laws. These include investigating

allegations of acts of reprisal taken

against a DOE employee or DOE

contractor employee who claims to have

made a protected disclosure, as defined

in 10 CFR part 708, and subsequently

processing such ‘‘whistleblower’’

claims, including hearings and appeals

on such matters. These duties and

responsibilities are carried out pursuant

to those regulations and section 3164 of

the National Defense Authorization Act

for FY 2000 (Pub. L. 106–65), codified

in 42 U.S.C. 7239.

The third proposed exemption would

amend the DOE’s Privacy Act regulation

to enable the Office of Intelligence to

carry out its duties and responsibilities

involving national security. More

specifically, these include controlling

access to and use of Sensitive

Compartmented Information (SCI) and

other classified intelligence information

bearing the Director, Central Intelligence

(DCI) authorized control markings;

approving access to SCI in compliance

with DCI directives; and conducting

eligibility determinations,

adjudications, revocations and appeals

from denials and revocations.

II. Analysis

DOE proposes to amend § 1008.12 (b)

of its Privacy Act regulation to exempt

the following three new systems of

records from certain subsections of the

Privacy Act (5 U.S.C. 552a).

The system of records, ‘‘Employee

Concerns Program Records’’ (DOE–3),

will be exempt from subsections (c)(3),

(d)(2), and (e)(1) of 5 U.S.C. 552a

pursuant to subsections (k)(1), (2), and

(5), to the extent that information in this

system meets the requirements of those

subsections of the Act.