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.

Rules and Regulations Federal Register

41825 

Vol. 82, No. 170 

Tuesday, September 5, 2017 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2017–0049] 

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 15 varieties to the list of rustresistant Berberis species and varieties 

and 2 varieties 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 

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/#!docket

Detail;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 

§ 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 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 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 

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41826 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations 

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 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 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 

■ 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, 15 rust-resistant 

Berberis species; and 

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

alphabetical order, two rust resistant 

Mahonia species. 

The additions read as follows: 

§ 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) 

* * * * * 

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

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Doc. No. AMS–SC–16–0104; SC16–930–4 

FR] 

Tart Cherries Grown in the States of 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington and 

Wisconsin; Modification of Allocation 

of Assessments 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule implements a 

recommendation from the Tart Cherry 

Industry Administrative Board (Board) 

to increase the portion of assessments 

allocated to research and promotion 

activities from $0.005 to $0.0065 per 

pound of tart cherries and decrease the 

portion allocated to administrative 

expenses from $0.0025 to $0.001 per 

pound of tart cherries handled under 

the marketing order (order). This rule 

also corrects the allocation numbers 

from $0.006 per pound for research and 

promotion activities and $0.0015 per 

pound for administrative expenses as 

stated in the proposed rule based on a 

comment received. The overall 

assessment rate remains unchanged at 

$0.0075 per pound of tart cherries. The 

Board locally administers the order and 

is comprised of producers and handlers 

of tart cherries operating within the area 

of production, and one public member. 

Assessments upon tart cherry handlers 

are used by the Board to fund 

reasonable and necessary expenses of 

the program. The fiscal period begins 

October 1 and ends September 30. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective September 6, 2017. 

FOR FURTHER INFORMATION CONTACT: 

Jennie M. Varela, Marketing Specialist, 

or Christian D. Nissen, Regional 

Director, Southeast Marketing Field 

Office, Marketing Order and Agreement 

Division, Specialty Crops Program, 

AMS, USDA; Telephone: (863) 324– 

3375, Fax: (863) 291–8614, or Email: 

Jennie.Varela@ams.usda.gov or 

Christian.Nissen@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Richard Lower, 

Marketing Order and Agreement 

Division, Specialty Crops Program, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or Email: 

Richard.Lower@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

and Order No. 930, both as amended (7 

CFR part 930), regulating the handling 

of tart cherries produced in the States of 

Michigan, New York, Pennsylvania, 

Oregon, Utah, Washington and 

Wisconsin, hereinafter referred to as the 

‘‘order.’’ The order is effective under the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674), 

hereinafter referred to as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this final rule in 

conformance with Executive Orders 

13563 and 13175. This rule does not 

meet the definition of a significant 

regulatory action contained in section 

3(f) of Executive Order 12866 and is not 

subject to review by the Office of 

Management and Budget (OMB). 

Additionally, because this rule does not 

meet the definition of a significant 

regulatory action, it does not trigger the 

requirements contained in Executive 

Order 13771. See OMB’s Memorandum 

titled, ‘‘Interim Guidance Implementing 

Section 2 of the Executive Order of 

January 30, 2017, titled ‘Reducing 

Regulation and Controlling Regulatory 

Costs’ ’’ (February 2, 2017). 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, tart cherry handlers are subject 

to assessments. Funds to administer the 

order are derived from such 

assessments. It is intended that the 

assessment rate as issued herein will be 

applicable to all assessable tart cherries 

beginning on October 1, 2016, and 

continue until amended, suspended, or 

terminated. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. Such 

handler is afforded the opportunity for 

a hearing on the petition. After the 

hearing, USDA would rule on the 

petition. The Act provides that the 

district court of the United States in any 

district in which the handler is an 

inhabitant, or has his or her principal 

place of business, has jurisdiction to 

review USDA’s ruling on the petition, 

provided an action is filed not later than 

20 days after the date of the entry of the 

ruling. 

This rule increases the portion of the 

assessment rate allocated to research 

and promotion activities from $0.005 to 

$0.0065 per pound of tart cherries 

handled and decreases the portion 

allocated to administrative expenses 

from $0.0025 to $0.001 per pound of tart 

cherries handled under the order. This 

rule also corrects the allocation numbers 

from $0.006 per pound for research and 

promotion activities and $0.0015 per 

pound for administrative expenses as 

stated in the proposed rule based on a 

comment received. The overall 

assessment rate for the 2016–17 and 

subsequent fiscal periods remains 

unchanged at $0.0075 per pound of tart 

cherries. 

The tart cherry marketing order 

provides authority for the Tart Cherry 

Industry Administrative Board (Board), 

with the approval of USDA, to formulate 

an annual budget of expenses and 

collect assessments from handlers to 

administer the program. The members 

of the Board are producers and handlers 

of tart cherries, and one public member. 

They are familiar with the Board’s needs 

and with the costs of goods and services 

in their local areas and are thus in a 

position to formulate an appropriate 

budget and assessment rate. The 

assessment rate is formulated and 

discussed in a public meeting. Thus, all 

directly affected persons have an 

opportunity to participate and provide 

input. 

For the 2010–11 and subsequent fiscal 

periods, the Board recommended, and 

USDA approved, an assessment rate of 

$0.0075 per pound of tart cherries that 

would continue in effect from fiscal 

period to fiscal period unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Board or other 

information available to USDA. 

The Board met on September 8, 2016, 

and unanimously recommended 2016– 

17 expenditures of $2,523,550 and an 

assessment rate of $0.0075 per pound of 

tart cherries. In comparison, last year’s 

budgeted expenditures were $1,725,000. 

The total assessment rate remains 

unchanged by this action. However, this 

rule increases the portion of the 

assessment rate allocated to research 

and promotion activities from $0.005 to 

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