[Federal Register Volume 63, Number 233 (Friday, December 4, 1998)]
[Proposed Rules]
[Pages 67011-67014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32229]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 360 and 361

[Docket No. 98-063-1]


Noxious Weeds; Update of Weed Lists

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule and notice of public hearing.

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SUMMARY: We are proposing to amend the noxious weeds regulations by

[[Page 67012]]

adding Solanum tampicense Dunal (wetland nightshade) and Caulerpa 
taxifolia (Mediterranean clone) to the list of aquatic weeds and 
removing Ipomoea triloba Linnaeus from the list of terrestrial weeds. 
We are also proposing to update the taxonomic names of two other weeds 
currently listed and make one editorial change to the regulations. 
These actions appear to be necessary to prevent the artificial spread 
of noxious weeds into noninfested areas of the United States, to remove 
unnecessary restrictions, and to make the regulations easier to 
understand.

DATES: Consideration will be given only to comments received on or 
before February 2, 1999. We will also consider comments made at a 
public hearing to be held on January 6, 1999.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 98-063-1, 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. 98-063-1. 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. The public hearing will 
be held at the USDA Center at Riverside, room 3B01, 4700 River Road, 
Riverdale, MD. Picture identification is required. Parking is available 
next to the building for a $2.00 fee (have quarters or $1 bills). The 
nearest Metro Station is the College Park station on the Green Line, 
and is within walking distance.

FOR FURTHER INFORMATION CONTACT: Ms. Polly Lehtonen, Botanist, 
Biological Assessment and Taxonomic Support, PPQ, APHIS, 4700 River 
Road Unit 133, Riverdale, MD 20737-1236, (301) 734-8896.

SUPPLEMENTARY INFORMATION:

Background

    The noxious weed regulations were promulgated under authority of 
the Federal Noxious Weed Act (FNWA) of 1974, as amended (7 U.S.C. 2801 
et seq.), and are set forth in 7 CFR part 360. They contain 
restrictions on the movement of listed noxious weeds into or through 
the United States, but do not affect the movement of listed noxious 
weeds that are moved solely intrastate.
    Under the authority of the Federal Seed Act (FSA) of 1939, as 
amended (7 U.S.C. 1551 et seq.), the U.S. Department of Agriculture 
(USDA) regulates the importation and interstate movement of certain 
agricultural and vegetable seeds and screenings. Title III of the FSA, 
``Foreign Commerce,'' requires shipments of imported agricultural and 
vegetable seeds to be labeled correctly and to be tested for the 
presence of the seeds of certain noxious weeds as a condition of entry 
into the United States. The Animal and Plant Health Inspection 
Service's (APHIS's) regulations implementing the provisions of Title 
III of FSA are found in 7 CFR part 361. A list of noxious weed seeds is 
contained in Sec. 361.6. Paragraph (a)(1) of Sec. 361.6 lists species 
of noxious weeds whose seeds have no tolerances applicable to their 
introduction into the United States.
    In this document we are proposing to amend the noxious weed 
regulations by adding two weeds to the list of aquatic weeds in 
Sec. 360.200(a), removing another weed from the list of terrestrial 
weeds in Sec. 360.200(c), and updating the taxonomy of two other 
currently listed weeds. Also, since the FSA regulations in 
Sec. 361.6(a) support the noxious weed regulations by prohibiting or 
restricting the importation of the seeds of noxious weeds listed in 
Sec. 360.200, we are proposing to amend the noxious weed seed list in 
Sec. 361.6(a) accordingly.

Addition of Solanum tampicense

    The FNWA defines a noxious weed as ``any living stage (including 
but not limited to, seeds and reproductive parts) of any parasitic or 
other plant of a kind, or subdivision of a kind, which is of foreign 
origin, is new to or not widely prevalent in the United States, and can 
directly or indirectly injure crops, other useful plants, livestock, or 
poultry or other interests of agriculture, including irrigation, or 
navigation or the fish or wildlife resources of the United States or 
the public health.''
    Solanum tampicense Dunal (wetland nightshade) is currently found in 
five counties in southwestern Florida. Representatives of the Florida 
Division of Plant Industry and the Florida Department of Environmental 
Protection participated with APHIS in the New Pest Advisory Group 
meeting for this species, and concluded that the species meets the 
FNWA's definition of a noxious weed.
    S. tampicense will grow as a perennial only in areas free of frost. 
Therefore, Florida, and other areas that are generally free from frost, 
are at risk for the establishment of the S. tampicense. The 
establishment of S. tampicense in Florida could have both economic and 
ecological consequences. Its prickly growth could inhibit access by 
livestock to wetlands areas, a potentially serious dry-season problem. 
It also has the potential to invade natural ecosystems and alter 
current plant and animal habitats.
    Listing this weed would help avert further introductions and help 
prevent the artificial spread of the weed into noninfested areas of the 
United States. Therefore, we are proposing to add S. tampicense to the 
list of aquatic weeds in Sec. 360.200(a) and to the list of seeds with 
no tolerances applicable to their introduction in Sec. 361.6(a)(1).

Addition of Caulerpa taxifolia (Mediterranean clone)

    The Mediterranean clone of the green seaweed Caulerpa taxifolia has 
invaded the Mediterranean coasts of France and Italy and now covers 
thousands of acres of the coastal zone. This invasive, aquarium-bred 
clone appears to have been introduced into the Mediterranean Sea from 
the Monaco Aquarium in 1984. It covered approximately 1 square yard in 
1984, spread to over 2 acres by 1989, and now covers over 10,000 acres, 
extending from the shore to depths of over 250 feet. C. taxifolia 
(Mediterranean clone) grows on both rocky and sandy bottoms, from 
protected bays to exposed capes, and attains great densities, forming 
monocultural stands whose impact has been compared to unrolling a 
carpet across the bottom of the sea. In the regions where it is 
established, C. taxifolia (Mediterranean clone) has caused ecological 
devastation by overgrowing and eliminating native seaweeds, sea 
grasses, and invertebrates (such as corals, sea fans, and sponges) and 
has caused economic damage by harming tourism and recreational diving 
and creating a costly impediment to commercial fishing. No effective 
eradication strategies have been identified for C. taxifolia 
(Mediterranean clone).
    France, Spain, and Australia have already banned the possession, 
transport, and sale of C. taxifolia (Mediterranean clone), but it 
continues to be available for importation and sale in the United States 
for use in public and private aquariums. We believe that C. taxifolia 
(Mediterranean clone), if released into the environment, presents a 
risk of becoming established in the United States, thus threatening 
coastal waters and coral reefs from North Carolina to Florida, the Gulf 
of Mexico, southern California, Hawaii, Puerto Rico, the U.S. Virgin 
Islands, Guam, and American Samoa.
    Listing C. taxifolia (Mediterranean clone) as a Federal noxious 
weed would

[[Page 67013]]

help prevent its introduction and spread into the natural environment 
of the United States. Therefore, we are proposing to add C. taxifolia 
(Mediterranean clone) to the list of aquatic weeds in Sec. 360.200(a) 
and to the list in Sec. 361.6(a)(1).

Removal of Ipomoea triloba

    The regulations also list Ipomoea triloba Linnaeus (little bell, 
aiea morning glory) as a terrestrial noxious weed. The FNWA's 
definition of ``noxious weed'' requires, in part, that such weeds be 
``of foreign origin.'' I. triloba, however, according to an authority 
on the family Convolvulaceae, is a species native to Florida, and 
therefore is not within the scope of the FNWA. We concur with that 
expert's determination and are, therefore, proposing to remove I. 
triloba from the list of terrestrial weeds in Sec. 360.200(c) and from 
the list of seeds with no tolerances applicable to their introduction 
in Sec. 361.6(a)(1).

Miscellaneous

    We are also proposing to update the taxonomy of Rottboellia 
exaltata Linnaeus S. and Borreria alata (Aublet) de Candolle in the 
terrestrial noxious weed list in Sec. 360.200(c) and the noxious weed 
seeds list in Sec. 361.6(a)(1). The revised taxonomical names are 
Rottboellia cochinchinensis (Lour.) W. Clayton and Spermacoce alata 
(Aublet) de Candolle, respectively. We are proposing this action 
because the revised taxonomic names are the names currently recognized 
by the scientific community and the USDA Germplasm Resources 
Information Network.
    The noxious weeds listed in Sec. 360.200(a) fall under the heading 
``Aquatic weeds.'' It has come to our attention that some weeds on that 
list could be more appropriately described as ``wetland weeds.'' We 
agree with that suggestion and are, therefore, proposing to rename the 
heading of that list ``Aquatic and wetland weeds'' so that it more 
accurately represents the list's contents.

Public Hearing

    APHIS will host a public hearing to provide interested persons a 
full opportunity to present their views regarding this proposal. The 
hearing will be held on January 6, 1999, at the USDA Center at 
Riverside, room 3BO1, 4700 River Road, Riverdale, MD.
    A representative of APHIS will preside at the public hearing. Any 
interested person may appear and be heard in person, by attorney, or by 
other representative. Persons who wish to speak at the public hearing 
will be asked to sign in, listing their names and organizations.
    The public hearing will begin at 10:00 a.m. local time and is 
scheduled to end at 12:00 p.m. local time. However, the hearing may be 
terminated at any time after it begins if all persons desiring to speak 
have been heard. We ask that anyone who reads a statement provide two 
copies to the presiding officer at the hearing. If the number of 
speakers at a hearing warrants it, the presiding officer may limit the 
time for each presentation so that everyone wishing to speak has the 
opportunity.
    The purpose of the hearings is to give interested persons an 
opportunity for oral presentations of data, views, and arguments. 
Questions about the content of the proposed rules may be part of the 
commenters' oral presentations. However, neither the presiding officer 
nor any other representative of APHIS will respond to comments at a 
hearing, except to clarify or explain provisions of the proposed rules.

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.
    In accordance with 5 U.S.C. 603, we have performed an Initial 
Regulatory Flexibility Analysis, set forth below, regarding the impact 
of this proposed rule on small entities. We do not currently have all 
the data necessary for a comprehensive analysis of the economic effects 
of this rule on small entities. Therefore, we are inviting comments 
concerning potential economic impacts. In particular, we are interested 
in determining the number and kinds of small entities that may incur 
benefits or costs from implementation of this proposed rule.
    In accordance with 7 U.S.C. 2803 and 2809, the Secretary of 
Agriculture is authorized to promulgate regulations to prevent the 
movement of any noxious weed into the United States, or interstate, 
except under conditions prescribed by the Secretary.

Addition of S. tampicense and C. taxifolia (Mediterranean clone)

    This proposed rule would add Solanum tampicense (wetland 
nightshade) to the list of Federal noxious weeds. S. tampicense will 
grow as a perennial only in areas free of frost, and is therefore a 
threat to southern Florida and areas of the country with a climate 
similar to that of southern Florida. S. tampicense is currently 
established in five counties in southwestern Florida and could 
potentially have economic consequences for livestock producers in those 
areas. Its prickly growth may inhibit access by livestock to wetland 
areas, a potentially serious dry-season problem.
    The majority of cattle operations in the counties harboring 
existing populations of S. tampicense are small entities. The extent to 
which they would be adversely affected by the continued spread of S. 
tampicense is not known. Preventing further introductions and 
curtailing spread would have a positive economic impact on livestock 
producers not yet affected.
    The unchecked spread of S. tampicense may also have a negative 
impact on natural ecosystems. Although the extent to which S. 
tampicense could displace other natural species is not known, due to 
the proximity of Everglades National Park to the currently affected 
areas, the weed could potentially have harmful effects on natural 
vegetation and wildlife. In responding to the potential harm caused by 
S. tampicense to natural ecosystems, one or more small organizations or 
governmental jurisdictions in affected areas could incur control costs 
if the weed were to spread. Although the size and magnitude of such 
potential costs are not known, it is clear that the proposed rule, if 
adopted, would help to ensure that the costs would be minimal or 
nonexistent.
    This proposed rule would also add Caulerpa taxifolia (Mediterranean 
clone) to the list of aquatic noxious weeds. We believe that some 
importers may currently be importing C. taxifolia (Mediterranean clone) 
into the United States for use in public and private aquariums, but 
data on the amount of C. taxifolia (Mediterranean clone) if any, 
currently being imported into the United States is unavailable.
    The unchecked spread of C. taxifolia (Mediterranean clone) into the 
United States can, however, be expected to have a negative impact on 
natural ecosystems, given its significant negative effects on the 
regions in the Mediterranean where it is already established. In 
responding to the potential harm caused by C. taxifolia (Mediterranean 
clone) to natural ecosystems, one or more organizations or governmental 
jurisdictions in affected areas could incur control costs if the weed 
were to be introduced into the environment. Although the size and 
magnitude of such potential costs are not known, it is clear that the 
proposed rule, if adopted, would help to prevent the need for such 
expenditures.

[[Page 67014]]

    We therefore believe that adding S. tampicense and C. taxifolia 
(Mediterranean clone) to the list of Federal noxious weeds would help 
preclude potential economic and ecological consequences that could 
result from their spread.

Removal of Ipomoea triloba

    We are proposing to remove Ipomoea triloba (little bell, aiea 
morning glory) from the list of Federal noxious weeds because it has 
been determined that I. triloba is a species native to Florida. Native 
species are not within the scope of the FNWA, and we therefore have no 
authority to continue to regulate I. triloba as such. The delisting of 
I. triloba could have a slightly positive economic impact on importers 
of agricultural and vegetable seed, whose shipments would no longer be 
delayed or refused at the port of entry due to contamination with I. 
triloba.

Alternatives Considered

    The only significant alternative to this proposed rule would be to 
make no changes in the regulations, i.e., to not add S. tampicense and 
C. taxifolia (Mediterranean clone) to the list of Federal noxious weeds 
and to retain I. triloba on that list. We have rejected the alternative 
of not listing S. tampicense and C. taxifolia (Mediterranean clone) as 
Federal noxious weeds because of the potential economic and ecological 
consequences that we believe would result from their spread. We have 
also rejected the alternative of retaining I. triloba on the list of 
Federal noxious weeds because it has been determined that I. triloba is 
a species native to Florida. Native species are not within the scope of 
the FNWA, and we therefore have no authority to continue to regulate I. 
triloba as such.

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 new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects

7 CFR Part 360

    Imports, Plants (Agriculture), Quarantine, Reporting and 
recordkeeping requirements, Transportation, Weeds.

7 CFR Part 361

    Agricultural commodities, Imports, Labeling, Quarantine, Reporting 
and recordkeeping requirements, Seeds, Vegetables, Weeds.

    Accordingly, we are proposing to amend 7 CFR parts 360 and 361 as 
follows:

PART 360--NOXIOUS WEED REGULATIONS

    1. The authority citation for part 360 would continue to read as 
follows:

    Authority: 7 U.S.C. 2803 and 2809; 7 CFR 2.22, 2.80, and 
371.2(c).


Sec. 360.200  [Amended]

    2. Section Sec. 360.200 would be amended as follows:
    a. In paragraph (a), the paragraph heading would be revised to read 
``Aquatic and wetland weeds.''
    b. In paragraph (a), the list of noxious weeds would be amended by 
adding, in alphabetical order, entries for ``Caulerpa taxifolia 
(Mediterranean clone)'' and ``Solanum tampicense Dunal (wetland 
nightshade)''.
    c. In paragraph (c), the list of noxious weeds would be amended by 
removing the entries for ``Borreria alata (Aublet) de Candolle'', 
``Ipomoea triloba Linnaeus (little bell, aiea morning glory)'', and 
``Rottboellia exaltata Linnaeus f. (itchgrass, raoulgrass)'', and by 
adding, in alphabetical order, entries for ``Rottboellia 
cochinchinensis (Lour.) W. Clayton'' and ``Spermacoce alata (Aublet) de 
Candolle''.

PART 361--IMPORTATION OF SEED AND SCREENINGS UNDER THE FEDERAL SEED 
ACT

    3. The authority citation for part 361 would continue to read as 
follows:

    Authority: 7 U.S.C. 1581-1610; 7 CFR 2.22, 2.80, and 371.2(c).

Sec. 361.6  [Amended]

    4. In Sec. 361.6, paragraph (a)(1), the list of noxious weeds would 
be amended as follows:
    a. The entries for ``Borreria alata (Aublet) de Candolle'' and 
``Ipomoea triloba L.'' would be removed.
    b. The entry for ``Rottboellia cochinchinensis Clayon (=R. exaltata 
(L.)L. f.)'' would be amended by removing the words ``Clayon (=R. 
exaltata (L.)L. f.)'' and adding the words ``W. Clayton'' in their 
place.
    c. New entries for ``Caulerpa taxifolia (Mediterranean clone)'', 
``Solanum tampicense Dunal (wetland nightshade)'', and ``Spermacoce 
alata (Aublet) de Candolle'' would be added in alphabetical order.

    Done in Washington, DC, this 25th day of November 1998.
Craig A. Reed,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-32229 Filed 12-3-98; 8:45 am]
BILLING CODE 3410-34-P