Black Stem Rust; Addition of Rust-Resistant Varieties

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 93-142-1]

Black Stem Rust; Addition of Rust-Resistant Varieties

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Direct final rule.

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SUMMARY: We are amending the black stem rust quarantine and regulations

to add six varieties to the list of rust-resistant Berberis species.

This change will allow for the interstate movement of these newly

developed varieties without unnecessary restrictions.

DATES: This rule will be effective on April 26, 1994, unless we receive

written adverse comments or written notice of intent to submit adverse

comments on or before March 25, 1994. If we receive written adverse

comments or written notice of intent to submit adverse comments, we

will publish a notice in the Federal Register withdrawing this rule

before the effective date.

ADDRESSES: Please send an original and three copies of any adverse

comments or notice of intent to submit adverse comments to Chief,

Regulatory Analysis and Development, PPD, APHIS, USDA, room 804,

Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782. Please

state that your submission refers to Docket No. 93-142-1. Submissions

received may be inspected at USDA, room 1141, South Building, 14th

Street and Independence Avenue SW., Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday, except holidays. Persons wishing to

inspect comments and notices are encouraged to call ahead on (202) 690-

2817 to facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Poe, Operations Officer,

Domestic and Emergency Operations, Plant Protection and Quarantine,

APHIS, USDA, room 645, Federal Building, 6505 Belcrest Road,

Hyattsville, MD 20782, (301) 436-6365.

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 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 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, also 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; rust-susceptible plants do pose such a risk.

Section 301.38-2 of the regulations includes a listing of regulated

articles and indicates species of the genera Berberis, Mahoberberis,

and Mahonia 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 ``Effective Date,'' this

direct final rule will add Berberis media `Red Jewel,' Berberis

thunbergii `Bailone,' Berberis thunbergii `Bailtwo,' Berberis

thunbergii `Cherry bomb,' Berberis thunbergii `Harlequin,' and Berberis

thunbergii `Pink Queen' to the list of rust-resistant Berberis species

in Sec. 301.38-2(b).

The addition of the species listed above to the list of rust-

resistant Berberis 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 this procedure 12

times and being determined by USDA to be rust-resistant.

Effective Date

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, 60

days after the date of publication in the Federal Register unless we

receive written adverse comments or written notice of intent to submit

adverse comments within 30 days of the date of publication of this rule

in the Federal Register.

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 notice in the Federal

Register withdrawing this rule before the effective date. We will then

publish a proposed rule for public comment. Following the close of that

comment period, the comments will be considered, and a final rule

addressing the comments will be published.

As discussed above, if we receive no written adverse comments nor

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

notice to this effect 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 has been reviewed under Executive Order 12866.

This rule will allow the interstate movement of Berberis media `Red

Jewel,' Berberis thunbergii `Bailone,' Berberis thunbergii `Bailtwo,'

Berberis thunbergii `Cherry bomb,' Berberis thunbergii `Harlequin,' and

Berberis thunbergii `Pink Queen' into and through States or parts of

States designated as protected areas. Based on the information provided

to us, we have determined that this rule will affect three commercial

nurseries that might propagate the new species and numerous retail

sales nurseries that might purchase or resell the varieties. This rule

will 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. It is unlikely that the

addition of these varieties to the list of rust-resistant Berberis

species will have any effect on prices, investment, productivity, or

our international competitive position. It is possible that this rule

will positively affect innovation by allowing nurseries that develop

new rust-resistant Berberis varieties the opportunity to market those

varieties in protected areas. It is also possible that this rule will

have some positive effect on nurseries that are small businesses by

providing an opportunity for increased sales of rust-resistant Berberis

species in protected areas. We cannot predict the exact number of

nurseries that might be affected by this rule change, nor can we

predict the level of demand for these new species or the impact on

nurseries producing or selling them. It is likely, however, that any

economic effects will not be significant as a result of additional

plant sales.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this rule 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 3015, subpart V.)

Executive Order 12778

This rule has been reviewed under Executive Order 12778, 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 final rule contains no new information collection or

recordkeeping requirements under the Paperwork Reduction Act of 1980

(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.

PART 301--DOMESTIC QUARANTINE NOTICES

Accordingly, 7 CFR part 301 is amended as follows:

1. The authority citation for part 301 continues to read as

follows:

Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and

164-167; 7 CFR 2.17, 2.51, and 371.2(c).

2. In Sec. 301.38-2, paragraph (b) is amended by adding, in

alphabetical order, the following rust-resistant Berberis species:

Sec. 301.38-2 Regulated articles.

* * * * *

(b) * * *

B. media `Red Jewel'

* * * * *

B. thunbergii `Bailone'

B. thunbergii `Bailtwo'

* * * * *

B. thunbergii `Cherry Bomb'

* * * * *

B. thunbergii `Harlequin'

* * * * *

B. thunbergii `Pink Queen'

* * * * *

Done in Washington, DC, this 18th day of February 1994.

Patricia Jensen,

Acting Assistant Secretary, Marketing and Inspection Services.

[FR Doc. 94-4324 Filed 2-24-94; 8:45 am]

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