[Federal Register Volume 75, Number 100 (Tuesday, May 25, 2010)]
[Rules and Regulations]
[Pages 29191-29193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12529]


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

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2010-0035]


Black Stem Rust; Additions of Rust-Resistant 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 21 varieties to the list of rust-resistant Berberis species 
or cultivars and 2 varieties to the list of rust-resistant Mahonia 
species or cultivars in the regulations. This action will allow for the 
interstate movement of these newly developed varieties without 
unnecessary restrictions.

DATES: This rule will be effective on July 26, 2010, unless we receive 
written adverse comments or written notice of intent to submit adverse 
comments on or before June 24, 2010. 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:
    <bullet> Federal eRulemaking Portal: Go to (http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2010-0035) to submit or view comments 
and to view supporting and related materials available electronically.
    <bullet> Postal Mail/Commercial Delivery: Please send one copy of 
your comment to Docket No. APHIS-2010-0035, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2010-0035.
    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: Mr. Prakash K. Hebbar, National 
Program Manager, Black Stem/Barberry Rust Program, PPQ, APHIS, 4700 
River Road Unit 26, Riverdale, MD 20737-1231; (301) 734-5717.

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. In addition to infecting small 
grains, the fungus lives on a variety of alternate host plants that are 
species of

[[Page 29192]]

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. media `Dual Jewel' and the B. thunbergii 
cultivars `Ada', `Amera', `Arlene', `Benita', `Breval 8', `Celeste', 
`Chloe', `Edda', `Fay', `Gail', `Golden Torch', `Helen', `Joyce', 
`Kasia', `Koren', `Lotty', `Martha', `Mimi', `Phoebe', and `Ruth' to 
the list of rust-resistant Berberis species in Sec.  301.38-2(a)(1). 
Similarly, this rule will add the Mahonia cultivars `Bokasio' Sioux and 
`Bokrafoot' Blackfoot to the list of rust-resistant Mahonia species in 
Sec.  301.38-2(a)(2)(ii).
    The addition of those 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 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 20-80 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., 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 rust-susceptible after 
undergoing the test procedure 12 times and being determined by USDA to 
be rust-resistant.

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 26, 2010, unless we receive written adverse comments or written 
notice of intent to submit adverse comments on or before June 24, 2010.
    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 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 21 
varieties to the list of rust-resistant Berberis species or cultivars 
and by adding 2 varieties to the list of rust-resistant Mahonia species 
or cultivars. 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 cultivars 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 cultivars 
will not be negatively affected. In fact, they will benefit from being 
able to market the 23 varieties interstate. In addition, the rule does 
not require any additional reporting, recordingkeeping, 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

[[Page 29193]]

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.

0
Accordingly, 7 CFR part 301 is amended 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 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).

0
2. Section 301.38-2 is amended as follows:
0
a. In paragraph (a)(1), by adding, in alphabetical order, 21 rust-
resistant Berberis species to read as set forth below.
0
b. In paragraph (a)(2)(ii), by adding, in alphabetical order, 2 rust-
resistant Mahonia species to read as set forth below.


Sec.  301-38-2  Regulated articles.

    (a) * * *
    (1) * * *
* * * * *
    B. media `Dual Jewel'
* * * * *
    B. thunbergii `Ada'
* * * * *
    B. thunbergii `Amera'
* * * * *
    B. thunbergii `Arlene'
* * * * *
    B. thunbergii `Benita'
* * * * *
    B. thunbergii `Breval 8'
    B. thunbergii `Celeste'
    B. thunbergii `Chloe'
* * * * *
    B. thunbergii `Edda'
* * * * *
    B. thunbergii `Fay'
* * * * *
    B. thunbergii `Gail'
* * * * *
    B. thunbergii `Golden Torch'
* * * * *
    B. thunbergii `Helen'
* * * * *
    B. thunbergii `Joyce'
    B. thunbergii `Kasia'
* * * * *
    B. thunbergii `Koren'
* * * * *
    B. thunbergii `Lotty'
* * * * *
    B. thunbergii `Martha'
* * * * *
    B. thunbergii `Mimi'
* * * * *
    B. thunbergii `Phoebe'
* * * * *
    B. thunbergii `Ruth'
* * * * *
    (2) * * *
    (ii) * * *
* * * * *
    M. `Bokasio' Sioux
    M. `Bokrafoot' Blackfoot
* * * * *
    Done in Washington, DC, this 19\th\ day of May 2010.

Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2010-12529 Filed 5-24-10; 8:45 am]
BILLING CODE 3410-34-S