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[Federal Register Volume 82, Number 170 (Tuesday, September 5, 2017)]
[Rules and Regulations]
[Pages 41825-41827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18712]

========================================================================
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. 

========================================================================


Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / 
Rules and Regulations

[[Page 41825]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2017-0049]

Black Stem Rust; Additions of Rust-Resistant 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 15 varieties to the list of rust-resistant Berberis species 
and varieties and 2 varieties to the list of rust-resistant 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 November 6, 2017, unless we 
receive written adverse comments or written notice of intent to submit 
adverse comments on or before October 5, 2017. 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/#!docketDetail;D=APHIS-2017-0049.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2017-0049, 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-2017-
0049 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: Dr. Richard N. Johnson, National 
Policy Manager, Black Stem Rust, Pest Management, PHP, PPQ, APHIS, 4700 
River Road Unit 26, Riverdale, MD 20737-1231; (301) 851-2109.

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 the following varieties to the lists of 
rust-resistant Berberis and Mahonia species in Sec.  301.38-2(a)(1) and 
(a)(2):
     B. thunbergii atropurpurea x B. xmedia H2011-085-006;
     B. thunbergii `Diabolicum';
     B. thunbergii ``8-8-13'';
     B. thunbergii H2007-001-031;
     B. thunbergii Orange Torch;
     B. thunbergii Red Torch;
     B. thunbergii Striking Gold;
     B. thunbergii UCONNBT039;
     B. thunbergii UCONNBT048;
     B. thunbergii UCONNBT113;
     B. thunbergii UCONNBTCP4N;
     B. thunbergii UCONNtrispecific;
     B. thunbergii x B. sieboldii H2010-079-012;
     B. verruculosa x gagnepainii x vulgaris Trispecific#2;
     B. xmedia x thunbergii atropurpurea H2011-165-002;
     M. eurybracteata Soft Caress (PPAF); and
     M. media Marvel (PPAF).
    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 rust-
resistant. 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 4 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

[[Page 41826]]

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 
November 6, 2017, unless we receive written adverse comments or written 
notice of intent to submit adverse comments on or before October 5, 
2017.
    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 Orders 12866 and 13771 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. Further, because this rule is waived, it does 
not trigger the requirements of Executive Order 13771.
    This direct final rule will amend 7 CFR 301.38-2 by adding 15 
varieties to the list of rust resistant Berberis species or cultivars, 
and 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, along with Greenhouse production, which makes up the rest 
of NAICS 1114, included 52,777 farms in 2012, and represented 2.5 
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 87 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 17 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 2 CFR chapter IV.)

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

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, 15 rust-
resistant Berberis species; and
0
b. In paragraph (a)(2)(ii), by adding, in alphabetical order, two rust 
resistant Mahonia species.
    The additions read as follows:

Sec.  301.38-2  Regulated articles.

    (a) * * *
    (1) * * *
    B. thunbergii atropurpurea x B. x media H2011-085-006
* * * * *
    B. thunbergii `Diabolicum'
* * * * *
    B. thunbergii ``8-8-13''
* * * * *
    B. thunbergii H2007-001-031
* * * * *
    B. thunbergii Orange Torch
* * * * *
    B. thunbergii Red Torch
* * * * *
    B. thunbergii Striking Gold
* * * * *
    B. thunbergii UCONNBT039
    B. thunbergii UCONNBT048
    B. thunbergii UCONNBT113
    B. thunbergii UCONNBTCP4N
    B. thunbergii UCONNtrispecific
* * * * *
    B. thunbergii x B. sieboldii H2010-079-012
* * * * *
    B. verruculosa x gagnepainii x vulgaris Trispecific#2
* * * * *
    B. x media x thunbergii atropurpurea H2011-165-002
    (2) * * *
    (ii) * * *
    M. eurybracteata Soft Caress (PPAF)
* * * * *

[[Page 41827]]

    M. media Marvel (PPAF)
* * * * *

    Done in Washington, DC, this 30th day of August 2017.
Michael C. Gregoire,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2017-18712 Filed 9-1-17; 8:45 am]
 BILLING CODE 3410-34-P
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