Black Stem Rust; Addition of Rust-Resistant Varieties

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 95-035-1]

Black Stem Rust; Addition 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

to add three 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 September 26, 1995, unless we

receive written adverse comments or written notice of intent to submit

adverse comments on or before August 28, 1995.

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

comments or notice of intent to submit adverse comments to Docket No.

95-035-1, Regulatory Analysis and Development, PPD, APHIS, Suite 3C03,

4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that

your submission refers to Docket No. 95-035-1. 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 requested 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, PPQ, APHIS, Suite 4C03, 4700 River

Road Unit 134, Riverdale, MD 20737-1236; (301) 734-6365.

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 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 Mohonia. 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 species of the genera Berberis, Mahoberberis,

and Mahonia, 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 candidula `Amstelveen', Berberis

thunbergii `Lustre green', and Berberis thunbergii `Monry', 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.

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, 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

[[Page 38667]]

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 received 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. For this

action, the Office of Management and Budget has waived its review

process required by Executive Order 12866.

This rule will allow the interstate movement of Berberis candidula

`Amstelveen,' Berberis thunbergii `Lustre Green,' and Berberis

thunbergii `Monry,' 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 rule will affect three 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 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 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 in conflict 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 1980 (44 U.S.C. 3501

et seq.).

List of Subjects in 7 CFR Part 301

Agricultural commodities, Plant disease 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. candidula `Amstelveen'

* * * * *

B. thunbergii `Lustre Green'

* * * * *

B. thunbergii `Monry'

* * * * *

Done in Washington, DC, this 18th day of July 1995.

Terry L. Medley,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 95-18573 Filed 7-27-95; 8:45 am]

BILLING CODE 3410-34-P