In this subpart the following definitions apply:

Administrator. The Administrator, Animal and Plant Health Inspection Service (APHIS), or any person authorized to act for the Administrator.

Animal and Plant Health Inspection Service (APHIS). The Animal and Plant Health Inspection Service of the United States Department of Agriculure.

Black stem rust. The disease commonly known as the black stem rust of grains (Puccinia graminis).

Certificate. A document in which an inspector, or a person operating under a compliance agreement, affirms that a specified regulated article has met the

1 Any properly identified employee of the Animal and Plant Health Inspection Service is authorized to stop and inspect persons and means of conveyance, and to seize, quarantine, treat, apply other remedial measures to destroy, or otherwise dispose of regulated articles as provided in sections 414 and 421 of the Plant Protection Act (7 U.S.C. 7714 and 7731).

criteria in §301.38-5(b) of this subpart and may be moved interstate to any destination.

Compliance agreement. A written agreement between a State that is a protected area or that encompasses a protected area and a person who moves regulated articles interstate, or in a non-protected area between APHIS and such person, in which that person agrees to comply with this subpart.

Departmental permit. A document issued by the Administrator in which he or she affirms that interstate movement of the regulated article identified on the document is for scientific or experimental purposes, and that the regulated article is eligible for interstate movement under the conditions specified on the Departmental permit and found by the Administrator to be adequate to prevent the introduction of rust-susceptible varieties of the genera Berberis, Mahoberberis, and Mahonia into protected areas.

Inspector. Any APHIS employee or other person authorized by the Administrator in accordance with law to enforce this subpart.

Interstate. From any State into or through any other State.

Limited permit. A document issued by an inspector to allow the interstate movement into or through a protected area of regulated articles not eligible for certification under this subpart to a specified destination outside the protected area.

Moved (movement, move). Shipped, offered to a common carrier for shipment, received for transportation or transported by a common carrier, or carried, transported, moved, or allowed to be moved. "Movement" and "move" shall be construed in accordance with this definition.

Person. Any association, company, corporation, firm, individual, joint stock company, partnership, society, or any other legal entity.

Protected area. Those States or counties designated in §301.38-3(c) of this subpart.

Rust-resistant plants. All plants of the genera Berberis, Mahoberberis, and Mahonia species, and their progeny, that have proven resistant to black stem rust during testing by the United

States Department of Agriculture,2 and that are listed as rust-resistant under § 301.38-2 (a)(2) and (a)(3).

Rust-susceptible plants. All plants of the genera Berberis, Mahoberberis, and Mahonia species not listed as rust-resistant under §301.38-2 (a)(2) and (a)(3).

Regulated article. Any article listed in § 301.38-2 (a)(1) through (a)(4) of this subpart or otherwise designated as a regulated article in accordance with §301.38-2(a)(5) of this subpart.

Seedling. Any plant of the genera Berberis, Mahoberberis, and Mahonia grown from seed and having less than 2 years' growth.

State. The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory or possession of the United States.

Two years' growth. The growth of a plant during all growing seasons of 2 successive calendar years.

[54 FR 32791, Aug. 10, 1989; 54 FR 38494, Sept. 18, 1989; 67 FR 8178, Feb. 22, 2002]

§ 301.38-2 Regulated articles.

(a) The following are regulated articles: 3

(1) All seedlings and plants of less than 2 years' growth of the genus Berberis.

(2) All plants, seeds, fruits, and other plant parts capable of propagation from the following rust-resistant Berberis species.

2 Testing is performed by the Agricultural Research Service of USDA as follows: In a greenhouse, the suspect plant, or test subject, is placed under a screen with a control plant, i.e., a known rust-susceptible variety 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% humidity, causing the spores to swell and fall on the plants lying under the screen. The plants are then observed for days at 2080% relative humidity. This test procedure is repeated 12 times. If in all 12 tests, the rustsusceptible plant shows signs of infection after 7 days and the test plants do not, USDA will declare the test plant variety rust-resistant. The tests must be performed on new growth, just as the leaves are unfolding.

3 Permit and other requirements for the insterstate movement of black stem rust organisms are contained in part 330 of this chapter.

B. thunbergii 'Monry'

B. thunbergii 'Painter's Palette'
B. thunbergii 'Pink Queen'

B. thunbergii pluriflora

B. thunbergii 'Royal Burgundy'

B. thunbergii 'Royal Cloak'

B. thunbergii 'Sparkle'

B. thunbergii "Thornless'

B. thunbergii 'Upright Jewell'

B. thunbergii variegata

B. thunbergii xanthocarpa

B. thunbergiix'Bailsel' (Golden Car

ouselR)

B. thunbergii-'Tara' (Emerald Car

ousel®)

B. triacanthophora
B. triculosa

B. verruculosa

B. virgatorum
B. workingensis
B. xanthoxylon

B.xcarminea 'Pirate King'
B.xfrikartii 'Amstelveen'

(3) All plants, seedlings, seeds, fruits, and other plant parts capable of propagation from the following rust-resistant Mahoberberis and Mahonia species, except Mahonia cuttings for decorative purposes:

(i) Genus Mahoberberis:
M. aqui-candidula

M. aquifolium 'Smaragd'
M. aqui-sargentiae

M. miethkeana

M.x'Magic'

(ii) Genus Mahonia:

M. amplectens

M. aquifolium

M. aquifolium atropurpurea

M. aquifolium compacta

M. aquifolium compacta 'John Muir'

M. aquifolium 'Donewell'

M. aquifolium 'Kings Ransom'

M. aquifolium 'Orangee Flame'

M. aquifolium 'Undulata'

M. aquifolium 'Winter Sun'

M. 'Arthur Menzies'

M. bealei

M. dictyota

M. fortunei

M. 'Golden Abundance'

M. japonica

M. japonica-M. lomariifolia 'Charity'

M. lomarifolia

M. nervosa

M. pinnata

M. pinnata 'Ken Hartman'

M. piperiana

M. pumila

M. repens

M.xmedia 'Charity'

M.xmedia 'Winter Sun'

(4) All plants, seeds, fruits, and other plant parts capable of propagation from rust-susceptible species and varieties of the genera Berberis,

Mahoberberis, and Mahonia, and seedlings from rust-susceptible species and varieties of the genera Mahoberberis and Mahonia, except Mahonia cuttings for decorative purposes.

(5) Any other product or article not listed in paragraphs (a)(1) through (a)(4) of thissection that an inspector determines presents a risk of spread of black stem rust. The inspectormust notify the person in possession of the product or article that it is subject to the provisions ofthis subpart.

(b) A person may request that an additional rust-resistant variety be added to paragraph (a)(2) or (a)(3) of this section. The person requesting that a rust-resistant variety be added to paragraph (a)(2) or (a)(3) of this section must provide APHIS with a description of the variety, including a written description and color pictures that can be used by an inspector to clearly identify the variety and distinguish it from other varities.

(Approved by the Office of Management and Budget under control number 0579-0186) [67 FR 8179, Feb. 22, 2002]

§301.38-3 Protected areas.

(a) The Administrator may designate as a protected area in paragraph (c) of this section any State that has eradicated rust-susceptible plants of the genera Berberis, Mahoberberis, and Mahonia under the cooperative Federal-State eradication program. In addition, the State must employ personnel with responsibility for the issuance and withdrawal of certificates in accordance with §301.38–5, and maintain and enforce an inspection program under which every plant nursery within the State is inspected at least once each year to ensure that they are free of rust-susceptible plants. During the requisite nursery inspections, all nursery stock shall be examined to determine that it consists only of rust-resistant varieties of the genera Berberis, Mahoberberis, and Mahonia, and that

the plants are true to type. Plants that do not meet this criteria must be destroyed.

(b) The Administrator may designate as a protected area any county within a State, rather than the entire State, if areas within the State have eradicated rust-susceptible plants of the genera Berberis, Mahoberberis, and Mahonia under the cooperative Federal-State program, and;

(1) The State employs personnel with responsibility for the issuance and withdrawal of certificates in accordance with § 301.38-5;

(2) The State is enforcing restrictions on the intrastate movement of the regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles, as determined by the Administrator; and

(3) The State maintains and enforces an inspection program under which every plant nursery within the county is inspected at least once each year to ensure that plant nurseries within that area are free of rust-susceptible plants of the genera Berberis, Mahoberberis, and Mahonia. During the requisite nursery inspections, all nursery stock shall be examined to determine that it consists only of rust-resistant varieties of the genera Berberis, Mahoberberis, and Mahonia, and that the plants are true to type. Plants that do not meet this criteria must be destroyed.

(c) All seed used to propagate plants of the genera Berberis, Mahoberberis, and Mahonia in protected areas, and all seed used to propagate plants of the genera Berberis, Mahoberberis, and Mahonia that are certified as rust-resistant for interstate movement into protected areas, must be produced at properties where a State inspector has verified that no wild or domesticated rust-susceptible plants are growing at or within one-half mile of the property.4

4 Persons performing the inspections must be able to recognize rust-susceptible varieties of Berberis, Mahoberberis, and Mahonia. Inspectors must work side by side, 10 to 20 feet apart, and walk outward away from the property a distance of one-half mile measured from the edge of the property, and observe all plants growing in the half-mile band. The distance between the inspectors

(d) The following are designated as protected areas:

(1) The States of Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, Pennsylvania, South Dakota, West Virginia, Wisconsin, and Wyoming.

(2) The following counties in the State of Washington: Adams, Asotin, Benton, Chelan, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, Kittitas, Klickitat, Lincoln, Okanogan, Pend Oreille, Spokane, Stevens, Walla Walla, Whitman, Yakima.

(e) Each State that is a protected area or that encompasses a protected area must submit annually to the Administrator a written statement, signed by an inspector, assuring APHIS that all nursery inspections have been performed in accordance with this section. The statement must be submitted by January 1st of each year, and must include a list of the nurseries inspected and found free of rust-susceptible plants.

(f) The Administrator may remove a protected area from the list of designated protected areas in paragraph (c) of this section if he or she determines that it no longer meets the criteria of paragraph (a) or (b)(1) through (3) of this section. A hearing will be held to resolve any conflict as to any material fact. Rules of practice for the hearing shall be adopted by the Administrator.

[54 FR 32791, Aug. 10, 1989, as amended at 55 FR 29558, July 20, 1990; 57 FR 3118, Jan. 28, 1992]

may vary within this range, depending upon the visibility of the plant growth. In areas with low brush and flat terrain, the inspectors may be the maximum distance of 20 feet apart if they can observe all plants growing within 10 feet of them. In areas of high plant growth or hilly terrain, the inspectors must be closer together due to limited or obstructed visibility. Inspectors must observe all plants growing between themselves and the mid-point of the distance between themselves and the next inspector. This process must be repeated so that the entire band, measured from the border of the property to the circumference of an imaginary circle having the property as its mid-point, is visually inspected in this manner.

§301.38-4 Interstate movement of regulated articles.

(a) Non-protected areas. (1) Interstate movement of regulated articles into or through any State or area that is not designated a protected area under §301.38-3(c) is allowed without restriction under this subpart.

(b) Protected areas-(1) Prohibited movement. The following regulated articles are prohibited from moving interstate into or through any protected

area:

(i) All Berberis seedlings and plants of less than 2 years' growth, and rust-susceptible Berberis plants, seeds, fruits, and other plant parts capable of propagation.

(ii) Rust-susceptible Mahoberberis and Mahonia plants, seedlings, seeds, fruits, and other plant parts capable of propagation.

(2) Restricted movement: The following regulated articles may be moved interstate into or through a protected area with a certificate issued and attached in accordance with §§ 301.38-5 and 301.38-7 of this subpart:

(i) Plants of at least two years' growth, seeds, fruits, and other plant parts capable of propagation of the genus Berberis that are designated as rust-resistant in §301.38-2(a)(2) of this subpart;

(ii) Plants, seedlings, seeds, fruits, and other plant parts capable of propagation of the genera Mahoberberis and Mahonia that are designated as rust-resistant in §301.38-2(a)(3) of this subpart.

(c) An inspector may issue a limited permit to allow a regulated article not eligible for certification under §301.384(b)(2) to move interstate into or through a protected area to a specified destination that is stated in the permit and is outside the protected area, if the requirements of all other applicable Federal domestic plant quarantines are met. A regulated article moved interstate under a limited permit must be placed in a closed sealed container that prevents unauthorized removal of the regulated article, and that remains sealed until the regulated article reaches the final destination stated in the permit. At the final destination, the sealed container must be opened only in the presence of an inspector or