82_FR_41995 82 FR 41825 - Black Stem Rust; Additions of Rust-Resistant Species and Varieties

82 FR 41825 - Black Stem Rust; Additions of Rust-Resistant Species and Varieties

DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service

Federal Register Volume 82, Issue 170 (September 5, 2017)

Page Range41825-41827
FR Document2017-18712

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.

Federal Register, Volume 82 Issue 170 (Tuesday, September 5, 2017)
[Federal Register Volume 82, Number 170 (Tuesday, September 5, 2017)]
[Rules and Regulations]
[Pages 41825-41827]
From the Federal Register Online  [www.thefederalregister.org]
[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



                                                                                                                                                                                                41825

                                                Rules and Regulations                                                                                         Federal Register
                                                                                                                                                              Vol. 82, No. 170

                                                                                                                                                              Tuesday, September 5, 2017



                                                This section of the FEDERAL REGISTER                    www.regulations.gov/#!docketDetail;D=                 Berberis and Mahonia species in
                                                contains regulatory documents having general            APHIS-2017-0049 or in our reading                     § 301.38–2(a)(1) and (a)(2):
                                                applicability and legal effect, most of which           room, which is located in Room 1141 of                   • B. thunbergii atropurpurea x B.
                                                are keyed to and codified in the Code of                the USDA South Building, 14th Street                  xmedia H2011–085–006;
                                                Federal Regulations, which is published under           and Independence Avenue SW.,                             • B. thunbergii ‘Diabolicum’;
                                                50 titles pursuant to 44 U.S.C. 1510.
                                                                                                        Washington, DC. Normal reading room                      • B. thunbergii ‘‘8–8–13’’;
                                                The Code of Federal Regulations is sold by              hours are 8 a.m. to 4:30 p.m., Monday                    • B. thunbergii H2007–001–031;
                                                the Superintendent of Documents.                        through Friday, except holidays. To be                   • B. thunbergii Orange Torch;
                                                                                                        sure someone is there to help you,                       • B. thunbergii Red Torch;
                                                                                                        please call (202) 799–7039 before                        • B. thunbergii Striking Gold;
                                                DEPARTMENT OF AGRICULTURE                               coming.                                                  • B. thunbergii UCONNBT039;
                                                                                                        FOR FURTHER INFORMATION CONTACT: Dr.                     • B. thunbergii UCONNBT048;
                                                Animal and Plant Health Inspection                                                                               • B. thunbergii UCONNBT113;
                                                Service                                                 Richard N. Johnson, National Policy
                                                                                                        Manager, Black Stem Rust, Pest                           • B. thunbergii UCONNBTCP4N;
                                                                                                        Management, PHP, PPQ, APHIS, 4700                        • B. thunbergii UCONNtrispecific;
                                                7 CFR Part 301                                                                                                   • B. thunbergii x B. sieboldii H2010–
                                                                                                        River Road Unit 26, Riverdale, MD
                                                [Docket No. APHIS–2017–0049]                            20737–1231; (301) 851–2109.                           079–012;
                                                                                                        SUPPLEMENTARY INFORMATION:                               • B. verruculosa x gagnepainii x
                                                Black Stem Rust; Additions of Rust-                                                                           vulgaris Trispecific#2;
                                                Resistant Species and Varieties                         Background                                               • B. xmedia x thunbergii
                                                                                                           Black stem rust is one of the most                 atropurpurea H2011–165–002;
                                                AGENCY:  Animal and Plant Health
                                                                                                        destructive plant diseases of small                      • M. eurybracteata Soft Caress
                                                Inspection Service, USDA.
                                                                                                        grains that is known to exist in the                  (PPAF); and
                                                ACTION: Direct final rule.                                                                                       • M. media Marvel (PPAF).
                                                                                                        United States. The disease is caused by
                                                SUMMARY:   We are amending the black                    a fungus (Puccinia graminis) that                        The addition of these species is based
                                                stem rust quarantine and regulations by                 reduces the quality and yield of infected             on recent testing to determine rust
                                                adding 15 varieties to the list of rust-                wheat, oat, barley, and rye crops. In                 resistance conducted by the Agricultural
                                                resistant Berberis species and varieties                addition to infecting small grains, the               Research Service of the United States
                                                and 2 varieties to the list of rust-                    fungus lives on a variety of alternate                Department of Agriculture (USDA) at its
                                                resistant Mahonia species and varieties.                host plants that are species of the genera            Cereal Disease Laboratory in St. Paul,
                                                This action will allow for the interstate               Berberis, Mahoberberis, and Mahonia.                  MN. The testing is performed in the
                                                movement of these newly developed                       The fungus is spread from host to host                following manner: In a greenhouse, the
                                                varieties without unnecessary                           by windborne spores.                                  suspect plant or test subject is placed
                                                restrictions.                                              The black stem rust quarantine and                 under a screen with a control plant—a
                                                                                                        regulations, which are contained in 7                 known rust-susceptible species of
                                                DATES:  This rule will be effective on                  CFR 301.38 through 301.38–8 (referred                 Berberis, Mahoberberis, or Mahonia.
                                                November 6, 2017, unless we receive                     to below as the regulations), quarantine              Infected wheat stems, a primary host of
                                                written adverse comments or written                     the conterminous 48 States and the                    black stem rust, are placed on top of the
                                                notice of intent to submit adverse                      District of Columbia and govern the                   screen. The plants are moistened and
                                                comments on or before October 5, 2017.                  interstate movement of certain plants of              maintained in 100 percent humidity.
                                                If we receive written adverse comments                  the genera Berberis, Mahoberberis, and                This causes the spores to swell and fall
                                                or written notice of intent to submit                   Mahonia, known as barberry plants. The                on the plants lying under the screen.
                                                adverse comments, we will publish a                     species of these plants are categorized as            The plants are then observed for 7 days
                                                document in the Federal Register                        either rust-resistant or rust-susceptible.            at 20–80 percent relative humidity. If
                                                withdrawing this rule before the                        Rust-resistant plants do not pose a risk              the rust-susceptible plant shows signs of
                                                effective date.                                         of spreading black stem rust or of                    infection after 7 days and the test plants
                                                ADDRESSES: You may submit comments                      contributing to the development of new                do not, the test results indicate that the
                                                or written notice of intent to submit                   races of the rust; rust-susceptible plants            test plants are rust-resistant. This test
                                                adverse comments by either of the                       do pose such risks. Section 301.38–2 of               must be performed 12 times, and all 12
                                                following methods:                                      the regulations includes a listing of                 tests must yield the same result before
                                                   • Federal eRulemaking Portal: Go to                  regulated articles and indicates those                USDA can make a determination as to
                                                http://www.regulations.gov/#!docket                     species and varieties of the genera                   whether the test plants are rust-
                                                Detail;D=APHIS-2017-0049.                               Berberis, Mahoberberis, and Mahonia                   resistant. The test may be conducted on
                                                   • Postal Mail/Commercial Delivery:                   that are known to be rust-resistant.                  12 individual plants, or it may be
                                                Send your comment to Docket No.                         Although rust-resistant species are                   performed multiple times on fewer
mstockstill on DSK30JT082PROD with RULES




                                                APHIS–2017–0049, Regulatory Analysis                    included as regulated articles, they may              plants (e.g., 6 plants tested twice or 3
                                                and Development, PPD, APHIS, Station                    be moved into or through protected                    plants tested 4 times). The tests must be
                                                3A–03.8, 4700 River Road Unit 118,                      areas if accompanied by a certificate. In             performed on new growth, just as the
                                                Riverdale, MD 20737–1238.                               accordance with the procedures                        leaves are unfolding. Therefore, the tests
                                                   Supporting documents and any                         described below under DATES, this                     are usually conducted in the spring or
                                                comments we receive on this docket                      direct final rule will add the following              fall, during the growing season. All 12
                                                may be viewed at http://                                varieties to the lists of rust-resistant              tests generally cannot be conducted on


                                           VerDate Sep<11>2014   16:52 Sep 01, 2017   Jkt 241001   PO 00000   Frm 00001   Fmt 4700   Sfmt 4700   E:\FR\FM\05SER1.SGM   05SER1


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

                                                the same day because of the plants’                        The introduction and spread of plant               List of Subjects in 7 CFR Part 301
                                                different growth stages. Based on over                  pests can result in damage to crops and                 Agricultural commodities, Plant
                                                30 years of experience with this test, we               losses to the U.S. agricultural sector. For           diseases and pests, Quarantine,
                                                believe that 12 is the reliable test sample             the purpose of this analysis and                      Reporting and recordkeeping
                                                size on which USDA can make its                         following the Small Business                          requirements, Transportation.
                                                determination. We do not know of any                    Administration (SBA) guidelines, we
                                                plant that was subsequently discovered                  note that a major segment of entities                   Accordingly, 7 CFR part 301 is
                                                to be rust-susceptible after undergoing                 potentially affected by this rule are                 amended as follows:
                                                the test procedure 12 times and being                   classified within the following                       PART 301—DOMESTIC QUARANTINE
                                                determined by USDA to be rust-                          industries: Nursery and Tree Production               NOTICES
                                                resistant.                                              (NAICS 111421), and Floriculture
                                                Dates                                                   Production (NAICS 111422). According                  ■ 1. The authority citation for part 301
                                                                                                        to the Census of Agriculture, these two               continues to read as follows:
                                                   We are publishing this rule without a                categories, along with Greenhouse
                                                prior proposal because we view this                                                                             Authority: 7 U.S.C. 7701–7772 and 7781–
                                                                                                        production, which makes up the rest of                7786; 7 CFR 2.22, 2.80, and 371.3.
                                                action as noncontroversial and                          NAICS 1114, included 52,777 farms in
                                                anticipate no adverse public comment.                   2012, and represented 2.5 percent of all                Section 301.75–15 issued under Sec. 204,
                                                This rule will be effective, as published                                                                     Title II, Public Law 106–113, 113 Stat.
                                                                                                        farms in the United States. These
                                                in this document, on November 6, 2017,                                                                        1501A–293; sections 301.75–15 and 301.75–
                                                                                                        entities are considered small by SBA                  16 issued under Sec. 203, Title II, Public Law
                                                unless we receive written adverse                       standards if their annual sales are                   106–224, 114 Stat. 400 (7 U.S.C. 1421 note).
                                                comments or written notice of intent to                 $750,000 or less. Over 87 percent of the
                                                submit adverse comments on or before                    farms in these industries had annual                  ■ 2. Section 301.38–2 is amended as
                                                October 5, 2017.                                        sales of less than $500,000.                          follows:
                                                   Adverse comments are comments that                      Barberry plants are not one of the                 ■ a. In paragraph (a)(1), by adding, in
                                                suggest the rule should not be adopted                  crops tracked by the Census and                       alphabetical order, 15 rust-resistant
                                                or that suggest the rule should be                      therefore data on production and                      Berberis species; and
                                                changed.                                                number of producers are not available.                ■ b. In paragraph (a)(2)(ii), by adding, in
                                                   If we receive written adverse                        Nurseries producing barberry plant                    alphabetical order, two rust resistant
                                                comments or written notice of intent to                 species and varieties will not be                     Mahonia species.
                                                submit adverse comments, we will                        negatively affected. In fact, they will                 The additions read as follows:
                                                publish a document in the Federal                       benefit from being able to market the 17
                                                Register withdrawing this rule before                                                                         § 301.38–2   Regulated articles.
                                                                                                        varieties interstate. In addition, the rule
                                                the effective date. We will then publish                does not require any additional                         (a) * * *
                                                a proposed rule for public comment.                     reporting, recordkeeping, or other                      (1) * * *
                                                   As discussed above, if we receive no                                                                         B. thunbergii atropurpurea x B. x
                                                                                                        compliance measures beyond what is
                                                written adverse comments or written                                                                           media H2011–085–006
                                                                                                        already in place.
                                                notice of intent to submit adverse                         Under these circumstances, the                     *      *   *     *     *
                                                comments within 30 days of publication                  Administrator of the Animal and Plant                   B. thunbergii ‘Diabolicum’
                                                of this direct final rule, this direct final            Health Inspection Service has                         *      *   *     *     *
                                                rule will become effective 60 days                      determined that this action will not                    B. thunbergii ‘‘8–8–13’’
                                                following its publication. We will                      have a significant economic impact on                 *      *   *     *     *
                                                publish a document in the Federal                       a substantial number of small entities.                 B. thunbergii H2007–001–031
                                                Register before the effective date of this
                                                direct final rule confirming that it is                 Executive Order 12372                                 *      *   *     *     *
                                                effective on the date indicated in this                                                                         B. thunbergii Orange Torch
                                                                                                          This program/activity is listed in the
                                                document.                                               Catalog of Federal Domestic Assistance                *      *   *     *     *
                                                                                                        under No. 10.025 and is subject to                      B. thunbergii Red Torch
                                                Executive Orders 12866 and 13771 and
                                                                                                        Executive Order 12372, which requires                 *      *   *     *     *
                                                Regulatory Flexibility Act
                                                                                                        intergovernmental consultation with                     B. thunbergii Striking Gold
                                                   This rule is subject to Executive Order              State and local officials. (See 2 CFR                 *      *   *     *     *
                                                12866. However, for this action, the                    chapter IV.)                                            B. thunbergii UCONNBT039
                                                Office of Management and Budget has                                                                             B. thunbergii UCONNBT048
                                                waived its review under Executive                       Executive Order 12988
                                                                                                                                                                B. thunbergii UCONNBT113
                                                Order 12866. Further, because this rule                   This rule has been reviewed under                     B. thunbergii UCONNBTCP4N
                                                is waived, it does not trigger the                      Executive Order 12988, Civil Justice                    B. thunbergii UCONNtrispecific
                                                requirements of Executive Order 13771.                  Reform. This rule: (1) Preempts all State             *      *   *     *     *
                                                   This direct final rule will amend 7                  and local laws and regulations that are                 B. thunbergii x B. sieboldii H2010–
                                                CFR 301.38–2 by adding 15 varieties to                  inconsistent with this rule; (2) has no               079–012
                                                the list of rust resistant Berberis species             retroactive effect; and (3) does not
                                                or cultivars, and 2 varieties to the list of                                                                  *      *   *     *     *
                                                                                                        require administrative proceedings
                                                rust resistant Mahonia species or                                                                               B. verruculosa x gagnepainii x
                                                                                                        before parties may file suit in court
                                                cultivars. The nursery and floriculture                                                                       vulgaris Trispecific#2
                                                                                                        challenging this rule.
mstockstill on DSK30JT082PROD with RULES




                                                industries that may be affected by this                                                                       *      *   *     *     *
                                                rule are largely composed of small                      Paperwork Reduction Act                                 B. x media x thunbergii atropurpurea
                                                entities. We expect these entities to                      This rule contains no information                  H2011–165–002
                                                benefit from the rule, by being able to                 collection or recordkeeping                             (2) * * *
                                                market interstate barberry species and                  requirements under the Paperwork                        (ii) * * *
                                                cultivars that have been determined to                  Reduction Act of 1995 (44 U.S.C. 3501                   M. eurybracteata Soft Caress (PPAF)
                                                be rust-resistant.                                      et seq.).                                             *      *   *     *     *


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                                                                 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations                                       41827

                                                    M. media Marvel (PPAF)                              3375, Fax: (863) 291–8614, or Email:                  a hearing on the petition. After the
                                                *      *    *   *     *                                 Jennie.Varela@ams.usda.gov or                         hearing, USDA would rule on the
                                                                                                        Christian.Nissen@ams.usda.gov.                        petition. The Act provides that the
                                                 Done in Washington, DC, this 30th day of
                                                August 2017.
                                                                                                           Small businesses may request                       district court of the United States in any
                                                                                                        information on complying with this                    district in which the handler is an
                                                Michael C. Gregoire,
                                                                                                        regulation by contacting Richard Lower,               inhabitant, or has his or her principal
                                                Acting Administrator, Animal and Plant                  Marketing Order and Agreement                         place of business, has jurisdiction to
                                                Health Inspection Service.
                                                                                                        Division, Specialty Crops Program,                    review USDA’s ruling on the petition,
                                                [FR Doc. 2017–18712 Filed 9–1–17; 8:45 am]                                                                    provided an action is filed not later than
                                                                                                        AMS, USDA, 1400 Independence
                                                BILLING CODE 3410–34–P                                  Avenue SW., STOP 0237, Washington,                    20 days after the date of the entry of the
                                                                                                        DC 20250–0237; Telephone: (202) 720–                  ruling.
                                                                                                        2491, Fax: (202) 720–8938, or Email:                     This rule increases the portion of the
                                                DEPARTMENT OF AGRICULTURE                                                                                     assessment rate allocated to research
                                                                                                        Richard.Lower@ams.usda.gov.
                                                                                                        SUPPLEMENTARY INFORMATION: This rule
                                                                                                                                                              and promotion activities from $0.005 to
                                                Agricultural Marketing Service
                                                                                                        is issued under Marketing Agreement                   $0.0065 per pound of tart cherries
                                                                                                        and Order No. 930, both as amended (7                 handled and decreases the portion
                                                7 CFR Part 930                                                                                                allocated to administrative expenses
                                                                                                        CFR part 930), regulating the handling
                                                [Doc. No. AMS–SC–16–0104; SC16–930–4
                                                                                                        of tart cherries produced in the States of            from $0.0025 to $0.001 per pound of tart
                                                FR]                                                                                                           cherries handled under the order. This
                                                                                                        Michigan, New York, Pennsylvania,
                                                                                                                                                              rule also corrects the allocation numbers
                                                Tart Cherries Grown in the States of                    Oregon, Utah, Washington and
                                                                                                                                                              from $0.006 per pound for research and
                                                Michigan, New York, Pennsylvania,                       Wisconsin, hereinafter referred to as the
                                                                                                                                                              promotion activities and $0.0015 per
                                                Oregon, Utah, Washington and                            ‘‘order.’’ The order is effective under the
                                                                                                                                                              pound for administrative expenses as
                                                Wisconsin; Modification of Allocation                   Agricultural Marketing Agreement Act
                                                                                                                                                              stated in the proposed rule based on a
                                                of Assessments                                          of 1937, as amended (7 U.S.C. 601–674),
                                                                                                                                                              comment received. The overall
                                                                                                        hereinafter referred to as the ‘‘Act.’’
                                                AGENCY:  Agricultural Marketing Service,                                                                      assessment rate for the 2016–17 and
                                                                                                           The Department of Agriculture
                                                USDA.                                                                                                         subsequent fiscal periods remains
                                                                                                        (USDA) is issuing this final rule in
                                                                                                                                                              unchanged at $0.0075 per pound of tart
                                                ACTION: Final rule.                                     conformance with Executive Orders                     cherries.
                                                                                                        13563 and 13175. This rule does not                      The tart cherry marketing order
                                                SUMMARY:    This rule implements a                      meet the definition of a significant
                                                recommendation from the Tart Cherry                                                                           provides authority for the Tart Cherry
                                                                                                        regulatory action contained in section                Industry Administrative Board (Board),
                                                Industry Administrative Board (Board)                   3(f) of Executive Order 12866 and is not
                                                to increase the portion of assessments                                                                        with the approval of USDA, to formulate
                                                                                                        subject to review by the Office of                    an annual budget of expenses and
                                                allocated to research and promotion                     Management and Budget (OMB).
                                                activities from $0.005 to $0.0065 per                                                                         collect assessments from handlers to
                                                                                                        Additionally, because this rule does not              administer the program. The members
                                                pound of tart cherries and decrease the                 meet the definition of a significant
                                                portion allocated to administrative                                                                           of the Board are producers and handlers
                                                                                                        regulatory action, it does not trigger the            of tart cherries, and one public member.
                                                expenses from $0.0025 to $0.001 per                     requirements contained in Executive
                                                pound of tart cherries handled under                                                                          They are familiar with the Board’s needs
                                                                                                        Order 13771. See OMB’s Memorandum                     and with the costs of goods and services
                                                the marketing order (order). This rule                  titled, ‘‘Interim Guidance Implementing
                                                also corrects the allocation numbers                                                                          in their local areas and are thus in a
                                                                                                        Section 2 of the Executive Order of                   position to formulate an appropriate
                                                from $0.006 per pound for research and                  January 30, 2017, titled ‘Reducing
                                                promotion activities and $0.0015 per                                                                          budget and assessment rate. The
                                                                                                        Regulation and Controlling Regulatory                 assessment rate is formulated and
                                                pound for administrative expenses as                    Costs’ ’’ (February 2, 2017).                         discussed in a public meeting. Thus, all
                                                stated in the proposed rule based on a                     This rule has been reviewed under                  directly affected persons have an
                                                comment received. The overall                           Executive Order 12988, Civil Justice                  opportunity to participate and provide
                                                assessment rate remains unchanged at                    Reform. Under the marketing order now                 input.
                                                $0.0075 per pound of tart cherries. The                 in effect, tart cherry handlers are subject              For the 2010–11 and subsequent fiscal
                                                Board locally administers the order and                 to assessments. Funds to administer the               periods, the Board recommended, and
                                                is comprised of producers and handlers                  order are derived from such                           USDA approved, an assessment rate of
                                                of tart cherries operating within the area              assessments. It is intended that the                  $0.0075 per pound of tart cherries that
                                                of production, and one public member.                   assessment rate as issued herein will be              would continue in effect from fiscal
                                                Assessments upon tart cherry handlers                   applicable to all assessable tart cherries            period to fiscal period unless modified,
                                                are used by the Board to fund                           beginning on October 1, 2016, and                     suspended, or terminated by USDA
                                                reasonable and necessary expenses of                    continue until amended, suspended, or                 upon recommendation and information
                                                the program. The fiscal period begins                   terminated.                                           submitted by the Board or other
                                                October 1 and ends September 30. The                       The Act provides that administrative               information available to USDA.
                                                assessment rate will remain in effect                   proceedings must be exhausted before                     The Board met on September 8, 2016,
                                                indefinitely unless modified,                           parties may file suit in court. Under                 and unanimously recommended 2016–
                                                suspended, or terminated.                               section 608c(15)(A) of the Act, any                   17 expenditures of $2,523,550 and an
                                                DATES: Effective September 6, 2017.                     handler subject to an order may file                  assessment rate of $0.0075 per pound of
mstockstill on DSK30JT082PROD with RULES




                                                FOR FURTHER INFORMATION CONTACT:                        with USDA a petition stating that the                 tart cherries. In comparison, last year’s
                                                Jennie M. Varela, Marketing Specialist,                 order, any provision of the order, or any             budgeted expenditures were $1,725,000.
                                                or Christian D. Nissen, Regional                        obligation imposed in connection with                 The total assessment rate remains
                                                Director, Southeast Marketing Field                     the order is not in accordance with law               unchanged by this action. However, this
                                                Office, Marketing Order and Agreement                   and request a modification of the order               rule increases the portion of the
                                                Division, Specialty Crops Program,                      or to be exempted therefrom. Such                     assessment rate allocated to research
                                                AMS, USDA; Telephone: (863) 324–                        handler is afforded the opportunity for               and promotion activities from $0.005 to


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Document Created: 2017-09-02 03:24:58
Document Modified: 2017-09-02 03:24:58
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionDirect final rule.
DatesThis 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.
ContactDr. 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.
FR Citation82 FR 41825 
CFR AssociatedAgricultural Commodities; Plant Diseases and Pests; Quarantine; Reporting and Recordkeeping Requirements and Transportation

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