[Federal Register Volume 64, Number 145 (Thursday, July 29, 1999)]
[Rules and Regulations]
[Pages 41007-41010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19420]



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  Federal Register / Vol. 64, No. 145 / Thursday, July 29, 1999 / Rules 
and Regulations  

[[Page 41007]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 360

[Docket No. 98-091-1]


Noxious Weeds; Permits and Interstate Movement

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the noxious weed regulations to clearly state 
that a permit is required for the movement of noxious weeds interstate, 
as well as into or through the United States. The regulations currently 
provide for the issuance of permits for movements into or through the 
United States, but do not explicitly address interstate movements. This 
action is necessary to help prevent the artificial interstate spread of 
noxious weeds into noninfested areas of the United States.

DATES: This interim rule is effective July 29, 1999. We invite you to 
comment on this docket. We will consider all comments that we receive 
by September 27, 1999.

ADDRESSES: Please send your comment and three copies to: Docket No. 98-
091-1, Regulatory Analysis and Development, PPD, APHIS, Suite 3C03, 
4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state that 
your comment refers to Docket No. 98-091-1.
    You may read any comments that we receive on this docket in our 
reading room. The reading room 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) 690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS rules, are available on the Internet at http://
www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Randy Westbrooks, Invasive Plant 
Liaison, Interagency Field Office for Invasive Species, 233 Border Belt 
Drive, PO Box 279, Whiteville, NC 28472; (910) 648-6762.

SUPPLEMENTARY INFORMATION:

Background

    The regulations at 7 CFR part 360 (referred to below as the 
regulations) list Federal noxious weeds and require persons wishing to 
move a Federal noxious weed into or through the United States to obtain 
a permit. The regulations were established in 1976 under the authority 
of the Federal Noxious Weed Act (FNWA) of 1974 (7 U.S.C. 2801 et seq.).
    Until 1994, the FNWA prohibited the movement of any noxious weed 
listed in the regulations into or through the United States, or 
interstate, unless the movement was authorized by a permit and was made 
in accordance with any conditions in the permit and the regulations. In 
1994, Congress amended the FNWA (Pub. L. 103-465, section 431(f)). As 
amended, the FNWA provides that no person may import or enter any 
noxious weed listed in the regulations into or through the United 
States, or move any noxious weed interstate, unless the movement is in 
accordance with regulations promulgated under the FNWA.
    As noted above, the regulations specifically require a permit for 
the movement of any Federal noxious weed into or through the United 
States, but do not specifically address interstate movements. In the 
past, the Animal and Plant Health Inspection Service has not required a 
permit for interstate movements originating within the United States 
unless a quarantine, in conjunction with a control and eradication 
program, was first established in the area of the United States where 
the noxious weed existed.
    Upon review of this policy, especially in circumstances where 
adequate funds are not available for control and eradication programs, 
or where such programs do not appear necessary or appropriate (for 
example, where a Federal noxious weed previously imported under permit 
is being grown in a controlled area for a specific approved use), we no 
longer believe that this policy provides adequate protection against 
the spread of Federal noxious weeds within the United States.
    Therefore, we are amending the regulations to specifically require 
a permit for the interstate movement of Federal noxious weeds. We 
believe that this action is necessary to prevent the spread of Federal 
noxious weeds within the United States.

Immediate Action

    The Administrator of the Animal and Plant Health Inspection Service 
has determined that there is good cause for publishing this interim 
rule without prior opportunity for public comment. Immediate action is 
necessary to prevent the artificial interstate movement of noxious 
weeds to noninfested areas of the United States.
    Because prior notice and other public procedures with respect to 
this action are impracticable and contrary to the public interest under 
these conditions, we find good cause under 5 U.S.C. 553 to make this 
action effective upon publication in the Federal Register. We will 
consider comments that are received within 60 days of publication of 
this rule in the Federal Register. After the comment period closes, we 
will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule as a result of the comments.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be significant for the purposes of Executive 
Order 12866 and, therefore, has been reviewed by the Office of 
Management and Budget.
    In accordance with 5 U.S.C. 603, we have performed an Initial 
Regulatory Flexibility Analysis, set forth below, regarding the impact 
of this interim 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.

[[Page 41008]]

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 interim rule. The discussion below also serves 
as the cost-benefit analysis required by Executive Order 12866.
    In accordance with 7 U.S.C. 2803 and 2809, the Secretary of 
Agriculture is authorized to promulgate regulations to prevent the 
dissemination of any noxious weed into the United States, or 
interstate. Further, under 7 U.S.C. 2803, no person shall import or 
enter any noxious weed listed in the regulations into or through the 
United States, or interstate, unless the movement is in accordance with 
regulations.
    This interim rule amends the regulations by specifically requiring 
a permit for the interstate movement of Federal noxious weeds. In the 
past, the Animal and Plant Health Inspection Service has not required a 
permit for interstate movements originating within the United States 
unless a quarantine, in conjunction with a control and eradication 
program, was first established in the area of the United States where 
the noxious weed existed.
    Upon review of this policy, especially in circumstances where 
adequate funds are not available for control and eradication programs, 
or where such programs do not appear necessary or appropriate (for 
example, where a Federal noxious weed previously imported under permit 
is being grown in a controlled area for a specific approved use), we no 
longer believe that this policy provides adequate protection against 
the spread of Federal noxious weeds within the United States.
    As part of our analysis of the economic effects of this action, we 
compared the expected benefits of restricting the interstate movement 
of Federal noxious weeds with the expected costs to the private sector 
associated with the new restrictions.

Effects of Noxious Weeds

    Noxious weeds affect both crops and native plant species in the 
same way--by out-competing for light, water, and soil nutrients. 
Noxious weeds cause estimated crop losses of $2 to $3 billion annually. 
These losses are attributed to: (1) Decreased quality of agricultural 
products due to high levels of competition from noxious weeds; and (2) 
decreased quantity of agricultural products due to noxious weed 
infestations.
    Further, noxious weeds can negatively affect livestock and dairy 
producers by making forage unpalatable to livestock, thus decreasing 
livestock productivity and potentially increasing producers' feed 
costs. Increased costs to producers are eventually borne by consumers.
    Noxious weeds also grow in aquatic habitats and may clog waterways 
and block irrigation and drainage canals, thus negatively affecting 
fish and wildlife resources and recreational use of these areas.
    Infestations of noxious weeds can have a potentially disastrous 
impact on biodiversity and natural ecosystems, as evidenced by the case 
of the Mediterranean clone of Caulerpa taxifolia, a listed aquatic 
Federal noxious weed. The clone was introduced into the Mediterranean 
in 1984 and has since spread along the French and Italian coasts, 
covering 10,000 acres of the coastal sea floor, and crowding out many 
native seaweeds, sea grasses, and invertebrates such as coral, sea 
fans, and sponges.
    In order to combat the negative effects of noxious weeds on crop 
lands, grazing lands, and waterways, herbicidal and other weed control 
strategies can be implemented at further costs to producers and 
government agencies. Such costs would then likely be passed down to 
consumers, who would pay more for products due to increased producer 
costs.
    This rule could potentially benefit any entities referred to above 
by curbing the spread of Federal noxious weeds and thereby eliminating 
potential new costs resulting from infestations.

Entities Potentially Affected by the Interim Rule

    Any person involved in moving Federal noxious weeds interstate will 
be affected by this rule because they will now have to obtain a permit 
prior to the interstate movement. Those likely to be affected are 
nursery stock catalog firms and individual backyard producers who 
distribute Federal noxious weeds.
    We have found that at least 61 nursery stock catalog companies list 
some Federal noxious weeds, either in the form of seeds or plants, in 
their inventory of available products. Available data suggests, 
however, that sales of Federal noxious weeds (and seeds) make up a 
small fraction of the total receipts for these businesses. We invite 
any persons engaged in the sale of Federal noxious weeds, including 
seeds, to provide us with additional economic data regarding revenue 
generated by those sales. (The list of Federal noxious weeds is 
contained in 7 CFR 360.200, and can be found on the APHIS web site at 
http://www.aphis.usda.gov/ppq/bats/fnwsbycat-e.html. Copies of the list 
may also be obtained by contacting the person listed under FOR FURTHER 
INFORMATION CONTACT.)
    Also, there are entities in some States that import noxious weed 
seeds under permit and grow them under conditions specified in permits 
granted by APHIS. We are aware that, in isolated cases, entities that 
import Federal noxious weeds and seeds under permit may also wish to 
move them interstate. Under this rule, those entities will be required 
to obtain another permit from APHIS for any movement of noxious weeds 
that is not authorized in the original permit. Further, APHIS has the 
authority to deny such a permit if it determines that the movement of 
such Federal noxious weeds may cause dissemination of the weed into 
noninfested areas of the United States. This means that, based on the 
risk of dissemination, APHIS may grant a permit for the movement of a 
Federal noxious weed into one State, but not into another, or may grant 
a permit for the movement of one species of Federal noxious weed, but 
not another.
    Also among the entities potentially affected by this rule are 
individual backyard producers. Some listed Federal noxious weeds are 
known to be valued among certain groups as vegetable crops and are 
grown in small garden plots for personal use and sale at informal 
markets. Since these producers are not registered with APHIS, the total 
number of such entities is not available. However, since most of these 
entities probably do not depend upon the production of noxious weeds 
for their livelihood, this rule should have a very limited economic 
effect on them. We invite the public to submit any available data on 
such entities that are affected by this rule.
    We are also aware that there are producers of Ipomoea aquatica 
(Chinese water spinach--a listed Federal noxious weed and a food valued 
by some groups) in some counties in Florida, California, and Hawaii who 
raise the weed as a cash crop for interstate sale to metropolitan and 
other markets. The exact number of such farms and their size is not 
available, but most holdings are said to be as small as an acre or 
less. Under this rule, persons wishing to move I. aquatica interstate 
will be required to obtain a permit from APHIS. We realize that this 
may result in a new burden on sellers and purchasers of I. aquatica, 
and we intend to address the situation in an upcoming rulemaking. In 
the near future, we plan to publish an advance notice of proposed 
rulemaking (ANPR) in the Federal Register, in which we will request the 
public to

[[Page 41009]]

comment on potential changes to our weed classification system. The 
weed classification system to be considered in the ANPR could eliminate 
the need for sellers of I. aquatica to obtain permits prior to shipping 
the weed interstate.

Alternatives Considered

    The only significant alternative to this interim rule that we 
considered was to make no changes in the regulations, i.e., to not 
restrict the interstate movement of noxious weeds. We have rejected 
this alternative because of the potential economic and ecological 
consequences that we believe could result if listed Federal noxious 
weeds are disseminated into noninfested areas of the United States.
    This interim rule contains new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.), which are described below under the heading 
``Paperwork Reduction Act.''

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

    In accordance with section 3507(j) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this interim rule have been 
submitted for emergency approval to the Office of Management and Budget 
(OMB). OMB has assigned control number 0579-0054 to the information 
collection and recordkeeping requirements.
    Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 98-091-1. 
Please send a copy of your comments to: (1) Docket No. 98-091-1, 
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River 
Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, 
OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., 
Washington, DC 20250. A comment to OMB is best assured of having its 
full effect if OMB receives it within 30 days of publication of this 
interim rule.
    This interim rule amends the noxious weed regulations to clearly 
state that a permit is required for the movement of noxious weeds 
interstate, as well as into or through the United States. Prior to the 
effective date of this rule, the regulations provided for the issuance 
of permits for movements into or through the United States, but did not 
explicitly address interstate movements. This action is necessary to 
help prevent the artificial interstate spread of noxious weeds into 
noninfested areas of the United States.
    Under this interim rule, persons wishing to move listed Federal 
noxious weeds interstate must first apply for a permit. We are asking 
OMB to approve this information collection in connection with our 
efforts to ensure that listed Federal noxious weeds are not 
disseminated into noninfested areas of the United States.
    We are soliciting comments from the public (as well as affected 
agencies) concerning this information collection activity. We will use 
these comments to help us:
    (1) Evaluate whether the information collection is necessary for 
the proper performance of our agency's functions, including whether the 
information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
information collection, including the validity of the methodology and 
assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average .166 hours per response.
    Respondents: Researchers, owner/operators of nursery stock firms, 
and backyard producers who engage in the interstate distribution of 
plants (for consumption, ornamental use, or other purposes) that are 
listed Federal noxious weeds.
    Estimated annual number of respondents: 50.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 50.
    Estimated total annual burden on respondents: 8 hours.
    Copies of this information collection can be obtained from: 
Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence 
Avenue, SW., Washington, DC 20250.

List of Subjects in 7 CFR Part 360

    Imports, Plants (Agriculture), Quarantine, Transportation, Weeds. 
Accordingly, 7 CFR part 360 would be amended 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).

    2. Section 360.300 is amended as follows:
    a. By revising the section heading to read as set forth below.
    b. By redesignating paragraphs (a), (b), (c), and (d) as paragraphs 
(b), (c), (d), and (e), respectively.
    c. By adding a new paragraph (a) to read as set forth below.
    d. By revising the newly redesignated paragraphs (b) and (e) to 
read as set forth below.


Sec. 360.300  General prohibitions and restrictions on the movement of 
noxious weeds; permits.

    (a) No person may move a Federal noxious weed into or through the 
United States, or interstate, unless:
    (1) He or she obtains a permit for such movement in accordance with 
paragraphs (b) through (e) of this section; and
    (2) The movement is consistent with the specific conditions 
contained in the permit.
    (b) The Deputy Administrator will issue a written permit for the 
movement of a noxious weed into or through the United States, or 
interstate, if application is made for such movement and if the Deputy 
Administrator determines that such movement, under conditions specified 
in the permit, would not involve a danger of dissemination of the 
noxious weed in the United States, or interstate; otherwise such a 
permit will not be issued.
* * * * *
    (e) The Deputy Administrator may revoke any outstanding permit 
issued

[[Page 41010]]

under this section, and may deny future permit applications, if the 
Deputy Administrator determines that the issuee has failed to comply 
with any provision of the Act or this section, including conditions of 
any permit issued. Upon request, any permit holder will be afforded an 
opportunity for a hearing with respect to the merits or validity of any 
such revocation involving his or her permit.

(Approved by the Office of Management and Budget under control 
number 0579-0054)
    Done in Washington, DC, this 23rd day of July 1999.
Alfonso Torres,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-19420 Filed 7-28-99; 8:45 am]
BILLING CODE 3410-34-P