[Federal Register Volume 64, Number 50 (Tuesday, March 16, 1999)]
[Rules and Regulations]
[Pages 12881-12884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6344]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 360 and 361

[Docket No. 98-063-2]


Noxious Weeds; Update of Weed Lists

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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

SUMMARY: We are amending the noxious weeds regulations by 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 
updating the taxonomic names of two other weeds currently listed and 
making one editorial change to the regulations. These actions are 
necessary to prevent the artificial spread of noxious weeds into 
noninfested areas of

[[Page 12882]]

the United States, to remove unnecessary restrictions, and to make the 
regulations easier to understand.

EFFECTIVE DATE: April 15, 1999.

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') 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.
    On December 4, 1998, we published in the Federal Register (63 FR 
67011-67014, Docket No. 98-063-1) a proposal 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 proposed to amend the noxious weed seed list in 
Sec. 361.6(a) accordingly.
    We held a public hearing on the proposed rule on January 6, 1999. 
No one came to speak about the proposed rule. We also solicited 
comments concerning our proposal for 60 days ending February 2, 1999. 
We received six comments by that date. They were from representatives 
of State governments and members of the scientific community. We 
carefully considered all of the comments we received. They are 
discussed below.

Caulerpa taxifolia

    All six of the comments that we received were strongly in favor of 
adding Caulerpa taxifolia (Mediterranean clone) to the list of aquatic 
weeds.
    One commenter stated that it may be difficult to distinguish the 
Mediterranean clone of C. taxifolia from other strains of C. taxifolia, 
and thus, in order to effectively implement our proposal to prohibit 
the importation of C. taxifolia (Mediterranean clone), all strains of 
C. taxifolia, and possibly other species of Caulerpa, or even the whole 
genus, should be listed as Federal noxious weeds.
    We agree that there may be some difficulty distinguishing between 
the Mediterranean clone and noninvasive strains of C. taxifolia; 
however, we believe that listing other, noninvasive strains of C. 
taxifolia would create unnecessarily rigid trade restrictions. We 
believe that listing only the Mediterranean clone of C. taxifolia, as 
proposed, is sufficient to protect against the introduction of the weed 
into United States. APHIS personnel will be instructed to refuse 
shipments that contain what appears to be C. taxifolia of any variety 
if it originates or passes through areas where the Mediterranean clone 
is established or thought to be established. We believe these measures 
to be sufficient to protect against the introduction of C. taxifolia 
(Mediterranean clone). Therefore, we are not making any changes in 
response to this comment.

Revision of the Weed List

    Three commenters suggested that instead of listing weeds that are 
prohibited from being imported into the United States, APHIS should 
develop a list of plant species that are allowed to be imported into 
the United States. Under the commenters' suggestion, all plants of 
foreign origin would be prohibited from entering into the United States 
unless scientific evidence showed that the importation of such plants 
presented little or no risk of endangering U.S. agriculture, fish and 
wildlife, or the public health.
    The Federal noxious weed list was created under the authority of 
the Federal Noxious Weed Act (FNWA) of 1974, as amended (7 U.S.C. 2801 
et seq.). We are unable to propose or make changes to the weed list as 
suggested by the commenters because we have no authority to do so under 
the FNWA. The FNWA provides APHIS with the authority to identify 
noxious weeds and regulate their importation into the United States. 
The FNWA does not give APHIS the authority to prohibit the importation 
of all non-native plant species pending judgment that individual 
species pose no risk to U.S. agriculture, fish and wildlife, or the 
public health.

Ipomoea triloba

    One commenter stated that Ipomoea triloba should not be removed 
from the list of terrestrial weeds because, according to an expert on 
I. triloba, the species has greatly expanded its range within the past 
5 years within Florida. The commenter further stated that it is 
possible that new genetic strains of the species have been introduced 
into Florida, and that these new strains, which may be of foreign 
origin, have out-competed the native species, and have spread beyond 
the range of the native species.
    We are not making any changes in response to this comment because 
we have no scientific data available to distinguish between native and 
foreign strains of I. triloba. Under current law, we have no authority 
to regulate native weed species. When taxonomists can distinguish non-
native genetic strains of I. triloba from native strains of I. triloba, 
we will consider listing the non-native strains as Federal noxious 
weeds.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review 
process required by Executive Order 12866.
    In accordance with 5 U.S.C. 603, we have performed a Final 
Regulatory Flexibility Analysis, set forth below, regarding the impact 
of this rule on small entities.
    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 rule will add Solanum tampicense (wetland nightshade) to the 
list of Federal noxious weeds. S.

[[Page 12883]]

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 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 could also have a negative 
effect on natural ecosystems. Although the extent to which S. 
tampicense could displace other natural species is not known, the weed 
could have harmful effects on natural vegetation and wildlife due to 
the proximity of Everglades National Park to the currently affected 
areas. 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 this rule will help to ensure that the 
costs would be minimized.
    This rule will 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 could, 
however, have a negative effect 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 this rule will help to prevent the need 
for such expenditures.
    We therefore believe that adding S. tampicense and C. taxifolia 
(Mediterranean clone) to the list of Federal noxious weeds will help 
preclude potential economic and ecological consequences that could 
result from their spread.

Removal of Ipomoea triloba

    We are removing 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. The delisting of I. triloba could have 
a slightly positive economic effect 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 rule was 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 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 will result from their spread. We 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 regulate I. triloba as 
a Federal noxious weed.
    This final rule contains no new information collection or 
recordkeeping requirements.

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 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 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 amending 7 CFR parts 360 and 361 as follows:

PART 360--NOXIOUS WEED REGULATIONS

    1. The authority citation for part 360 continues 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 is amended as follows:
    a. In paragraph (a), the paragraph heading is revised to read 
``Aquatic and wetland weeds.''
    b. In paragraph (a), the list of noxious weeds is 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 is 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 continues 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 is 
amended as follows:

[[Page 12884]]

    a. The entries for ``Borreria alata (Aublet) de Candolle'' and 
``Ipomoea triloba L.'' are removed.
    b. The entry for ``Rottboellia cochinchinensis Clayon (``=R. 
exaltata (L.)L. f.)'' is 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'' are added in alphabetical order.

    Done in Washington, DC, this 11th day of March 1999.
Joan M. Arnoldi,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-6344 Filed 3-15-99; 8:45 am]
BILLING CODE 3410-34-P