Black Stem Rust; Addition of Rust-Resistant Varieties

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 97-053-1]

Black Stem Rust; Addition of Rust-Resistant Varieties

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: We are proposing to amend the black stem rust quarantine and

regulations by adding 15 varieties to the list of rust-resistant

Berberis, Mahoberberis, and Mahonia species. This change would allow

for the interstate movement of these newly developed varieties without

unnecessary restrictions.

DATES: Consideration will be given only to comments received on or

before May 22, 1998.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 97-053-1, Regulatory Analysis and Development, PPD, APHIS,

suite 3C03, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please

state that your comments refer to Docket No. 97-053-1. Comments

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 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,

Program Support Staff, PPQ, APHIS, suite 4C03, 4700 River Road, Unit

134, Riverdale, MD 20737-1236; (301) 734-8247; or e-mail:

[email protected].

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 Mahonia. 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

rest-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. We are proposing to

add Berberis aggregata X Berberis wilsoniae ``Pirate King'', Berberis

candidula X Berberis verruculosa ``Amstelveen'', Berberis gangepainii

``Chenault'', Berberis integerrima ``Wallichs Purple'', Berberis

soulieana ``Claret Cascade'', Berberis thunbergii ``Aurea Nana'',

Berberis thunbergii ``Bail Green'', Berberis thunbergii ``Concorde'',

Berberis thunbergii ``Criruzam'' Crimson Ruby, Berberis thunbergii

``Green Carpet'', Berberis thunbergii ``Midruzam'' Midnight Ruby,

Berberis thunbergii ``Royal Burgundy'', and Berberis thunbergii ``Royal

Cloak'' to the list of rust-resistant Berberis species in Sec. 301.38-

2(b); add Mahoberberis aquifolium ``Smaragd'', to the list of rust-

resistant Mahoberberis species in Sec. 301.38-2(c)(1); and add Mahonia

japonica X Mahonia lomariifolia ``Charity'', to the list of rust-

resistant Mahonia species in Sec. 301.38-2(c)(2).

The nurseries that developed these rust-resistant species of

Berberis, Mahoberberis, and Mahonia have provided identification guides

to the Animal and Plant Health Inspection Service (APHIS) and to the

receiving States. The proposed addition of these species to the list of

rust-resistant species is based on recent testing to determine rust-

resistance conducted by the Agricultural Research Service (ARS) 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.

[[Page 16909]]

Executive Order 12866 and Regulatory Flexibility Act

This proposed 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 proposed rule would allow the interstate movement of 15 new

varieties of Berberis, Mahoberberis, and Mahonia, which are resistant

to black stem rust, 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 proposed rule, if adopted, would affect four

nurseries that might propagate the new species and numerous retail

sales nurseries that might purchase or resell the varieties. This

proposed rule would 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.

Currently, 123 varieties of barberry plants are listed as rust-

resistant. Of the 123 varieties currently listed as rust-resistant,

many of those varieties are not used any more. Many consumers are

choosing newer varieties that are horticulturally more attractive. This

rule would add 15 new varieties to the current list of 123 varieties.

The addition of these 15 new varieties would only create a greater

selection of barberry plant varieties from which consumers can choose.

This rule could encourage innovation by allowing nurseries that develop

new rust-resistant Berberis, Mahoberberis, and Mahonia varieties the

opportunity to market those varieties in protected areas; however,

there is no indication that the periodic introduction of new varieties

to the market has any effect on overall sales volumes. Therefore, we do

not anticipate that there will be any significant economic impact on

those nurseries that handle the new varieties.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action would

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 proposed rule has been reviewed under Executive Order 12988,

Civil Justice Reform. If this proposed rule is adopted: (1) All State

and local laws and regulations that are inconsistent with this rule

will be preempted; (2) no retroactive effect will be given to this

rule; and (3) administrative proceedings will not be required before

parties may file suit in court challenging this rule.

Paperwork Reduction Act

This proposed 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, Incorporation by reference, Plant disease

and pests, Quarantine, Reporting and recordkeeping requirements,

Transportation.

Accordingly, 7 CFR part 301 would be amended as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

1. The authority citation for part 301 would continue to read as

follows:

Authority: 7 U.S.C. 147a, 150bb, 150dd, 150ee, 150ff, 161, 162,

and 164-167; 7 CFR 2.22, 2.80, and 371.2(c).

2. Section 301.38-2 would be amended as follows:

a. Paragraph (b) would be amended by adding, in alphabetical order,

13 rust-resistant Berberis species to read as set forth below.

c. Paragraph (c)(1) would be amended by adding, in alphabetical

order, one rust-resistant Genera Mahoberberis species to read as set

forth below.

d. Paragraph (c)(2) would be amended by adding, in alphabetical

order, one rust-resistant Genera Mahonia species to read as set forth

below.

Sec. 301.38-2 Regulated articles.

* * * * *

(b) * * *

* * * * *

B. aggregata X B. wilsoniae `Pirate King'

* * * * *

B. candidula X B. verruculosa `Amstelveen'

* * * * *

B. gagnepainii `Chenault'

* * * * *

B. integerrima `Wallichs Purple'

* * * * *

B. soulieana `Claret Cascade'

* * * * *

B. thunbergii `Aurea Nana'

* * * * *

B. thunbergii `Bail Green'

* * * * *

B. thunbergii `Concorde'

* * * * *

B. thunbergii `Criruzam' Crimson Ruby

* * * * *

B. thunbergii `Green Carpet'

* * * * *

B. thunbergii `Midruzam' Midnight Ruby

* * * * *

B. thunbergii ``Royal Burgundy''

B. thunbergii ``Royal Cloak''

* * * * *

(c) * * *

(1) * * *

* * * * *

M. aquifolium `Smaragd'

* * * * *

(2) * * *

* * * * *

M. japonica X M. lomariifolia ``Charity''

* * * * *

Done in Washington, DC, this 1st day of April 1998.

Terry L. Medley,

Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 98-9050 Filed 4-6-98; 8:45 am]

BILLING CODE 3410-34-P