[Federal Register Volume 64, Number 247 (Monday, December 27, 1999)]
[Proposed Rules]
[Pages 72293-72296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33423]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 360 and 361

[Docket No. 99-064-1]


Noxious Weeds; Update of Weed and Seed 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 
adding Homeria spp. (Cape tulips) to the list of terrestrial weeds. 
Listed noxious weeds may be moved into or through the United States or 
interstate only under a written permit and under conditions that would 
not involve a danger of dissemination of the weeds. This action appears 
to be necessary to prevent the artificial spread of noxious weeds into 
noninfested areas of the United States.

DATES: Consideration will be given only to comments received on or 
before February 25, 2000. We will also consider comments made at a 
public hearing to be held on February 1, 2000.

ADDRESSES: Please send your comment and three copies to: Docket No. 99-
064-1, 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. 99-064-1.
    The public hearing will be held at the USDA Center at Riverside, 
room 3B01, 4700 River Road, Riverdale, MD. Picture identification is 
required to gain access to the building. Parking is available next to 
the building for a $3 fee (please have quarters or $1 bills available). 
The nearest Metro station is the College Park station on the Green 
Line, which is within walking distance.
    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.

[[Page 72294]]

    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: Ms. Polly Lehtonen, Botanist, Permits 
and Risk Assessment, 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 and interstate.
    Under the authority of the Federal Seed Act (FSA) of 1939, as 
amended (7 U.S.C. 1551 et seq.), the US 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 weed seeds with no tolerances applicable to their 
introduction into the United States.
    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.''
    In this document we are proposing to amend the regulations by 
adding Homeria spp. (Cape tulips) to the list of terrestrial noxious 
weeds in Sec. 360.200(c) and to the list of seeds with no tolerances 
applicable to their introduction in Sec. 361.6(a)(1).
    Homeria spp. (Cape tulips) are not known to exist in the United 
States in the wild. However, Homeria spp. have been imported into the 
United States under the Bulb Preclearance Program since 1994, with 
increasing numbers of imports each year. We estimate that over 1.8 
million Homeria spp. corms were received in the United States between 
July 1994 and March 1999. However, data on the distribution of Homeria 
spp. are not available. We are requesting that the public help us 
determine which species of Homeria spp. are being planted and where. If 
we determine, based on public comments, that some species of Homeria 
spp. have become widespread in the United States, those species will 
not be included in final listing of noxious weeds.
    Because APHIS conducts no weediness screening for nursery stock, we 
placed no restrictions on the importation of Homeria spp. because no 
evidence was available to suggest it was an invasive genus. However, as 
explained in detail below, APHIS has recently conducted a pest risk 
assessment that identifies Homeria spp. as a genus that presents a high 
pest risk to American agriculture.
Homeria spp. as a Contaminant in Australian Oats
    Until recently, the importation of Australian oats was prohibited 
because such shipments often contain wheat seeds, which were prohibited 
entry into the United States under the wheat diseases regulations, 
contained in 7 CFR part 319, Sec. Sec. 319.59 through 319.59-2. In 
December 1998, APHIS decided to stop prohibiting the entry of 
nonpropagative materials contaminated with disease-free wheat seeds. 
This change renewed interest in the United States in importing 
Australian oats for consumption.
    As a result, prospective importers submitted seed analysis reports 
from Australian oats to APHIS to see if any other contaminants, 
particularly noxious weeds, might present a risk to plant resources in 
the United States. One of the analysis reports listed Homeria spp. as a 
potentially threatening invasive noxious weed that could be present in 
shipments of Australian oats. Introduced into Australia as ornamental 
plants between 1840 and 1850, Homeria spp. are now listed by five 
Australian States as noxious weeds.
    Given Australia's identification of Homeria spp. as noxious weeds, 
APHIS conducted a pest risk assessment on the potential effects of 
Homeria spp. on U.S. agriculture and the natural environment. By the 
time the first shipment of Australian oats reached the United States, 
APHIS had gathered sufficient information to conclude that Homeria spp. 
present a high pest risk to U.S. agriculture.
    APHIS inspectors found seeds of Homeria spp. in the initial 
shipments of Australian oats to the United States. This was 
problematic. Although Homeria spp. nursery stock has been imported into 
the United States for several years without restriction, the risk to 
agriculture associated with importations of nursery stock, while high, 
is not as serious as the risk associated with Homeria spp. imported as 
a contaminant of Australian oats. Since the imported oats are likely to 
be used as a feed for horses, it is likely that the Homeria spp. seeds 
could be introduced into grazing lands and paddocks, where they could 
do the following:
     Poison livestock and/or humans. Livestock may die within 
12 hours or less after ingesting the leaves.
     Reproduce and persist in prolific fashion, thus crowding 
out desirable plants and competing with them for soil nutrients, 
reducing the carrying capacity of pastures and reducing crop yields.
    Historical data show that, in the 1980's in South Africa, poisoning 
from Homeria spp. and a related genus resulted in losses of $2.5 to $3 
million per year in livestock. All classes of livestock are 
susceptible, but cattle, sheep, goats, and donkeys are most likely to 
suffer poisoning under natural conditions. Further, since Homeria spp. 
could grow on cultivated land, they may be cut with forage and cause 
poisoning in stall-fed animals.
    Contaminated oats are likely to introduce Homeria spp. into the 
areas where they pose the greatest threat to U.S. agriculture. Listing 
this weed would help avert the introduction and help prevent the 
artificial spread of the weed into noninfested areas of the United 
States. Therefore, we are proposing to add Homeria spp. (Cape tulips) 
to the list of terrestrial weeds in Sec. 360.200(c) and to the list of 
seeds with no tolerances applicable to their introduction in 
Sec. 361.6(a)(1). If listed as a noxious weed, all forms of Homeria 
spp., including nursery stock, could be prohibited entry into the 
United States. However, as stated earlier in this document, if we find 
evidence that certain species are already widespread due to several 
years of availability in the nursery trade, we will make exceptions to 
the Homeria spp. noxious weed listing for those species.

Public Hearing

    APHIS will host a public hearing to provide interested persons a 
full opportunity to present their views

[[Page 72295]]

regarding this proposal. The hearing will be held on February 1, 2000, 
at the USDA Center at Riverside, room 3B01, 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 a.m. local time and is 
scheduled to end at 12 noon 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 hearing is to give interested persons an 
opportunity for oral presentations of data, views, and arguments. 
Questions about the content of the proposed rule 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, which is set forth below, regarding 
the economic effects 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 effects. 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 the FNWA, 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.
    This proposed rule would add Homeria spp. (cape tulips) to the list 
of Federal noxious weeds and to the list of seeds with no tolerances 
applicable to their introduction.
    Homeria spp. (Cape tulips) are not known to exist in the United 
States in the wild. However, Homeria spp. have been imported into the 
United States under the Bulb Preclearance Program since 1994, with 
increasing numbers of imports each year. We estimate that over 1.8 
million Homeria spp. corms were received in the United States between 
July 1994 and March 1999. However, data on the distribution of Homeria 
spp. are not available. If all species of Homeria spp. are listed as 
noxious weeds, persons who import or purchase Homeria spp., including 
those in the nursery trade, could be affected. However, data on the 
number and location of persons who import or purchase Homeria spp. are 
not available.
    As stated above, Homeria spp. nursery stock has been imported into 
the United States for several years without restriction. Recently, 
APHIS inspectors found seeds of Homeria spp. in shipments of Australian 
oats to the United States. As a result of this finding, APHIS conducted 
a risk assessment to determine the potential effects of Homeria spp. on 
U.S. agriculture. The risk assessment revealed that Homeria spp. may 
present a high risk to U.S. agriculture and that Homeria spp. meet the 
criteria for listing as a Federal noxious weed.
    Since imported Australian oats are likely to be used as a feed for 
horses and other livestock, it is likely that the Homeria spp. seeds 
could be introduced into grazing lands and paddocks, where they could 
do the following:
     Poison livestock and/or humans. Livestock may die within 
12 hours or less after ingesting the leaves.
     Reproduce and persist in prolific fashion, thus crowding 
out desirable plants and competing with them for soil nutrients, 
reducing the carrying capacity of pastures and reducing crop yields.
    Historical data show that, in the 1980's in South Africa, poisoning 
from Homeria spp. and a related genus resulted in losses of $2.5 to $3 
million per year in livestock. All classes of livestock are 
susceptible, but cattle, sheep, goats, and donkeys are most likely to 
suffer poisoning under natural conditions. Further, since Homeria spp. 
could grow on cultivated land, they may be cut with forage and cause 
poisoning in stall-fed animals. If Homeria spp. is introduced into the 
United States via Australian oats, U.S. livestock producers could be 
expected to experience livestock losses similar to those experienced by 
South Africa in the 1980's.

Effects on Small Entities

    If listed as a noxious weed, all forms of Homeria spp., including 
nursery stock, could be prohibited entry into the United States. 
However, as stated earlier in this document, if we find evidence that 
certain species are already widespread due to several years of 
availability in the nursery trade, we will make exceptions to the 
Homeria spp. noxious weed listing for those species.
    The unchecked spread of Homeria spp. into the United States can be 
expected to have a negative economic effect on livestock operations in 
the United States, whether small or large, given significant negative 
effects on the regions in Australia and South Africa where Homeria spp. 
are already established. In responding to the potential harm caused by 
Homeria spp. to livestock and grazing lands, 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.
    We are aware that there are persons in the nursery trade who import 
and distribute Homeria spp. nursery stock, especially bulbs. We have no 
data available on the location, number, or size of those businesses; 
however, it is likely that the majority of those businesses could be 
classified as small entities. We are requesting that the public provide 
any available data relevant to volumes and distribution of imported 
Homeria spp. nursery stock.
    We believe that adding Homeria spp. to the list of Federal noxious 
weeds would help preclude potential economic and ecological 
consequences that could result from its spread.

Alternatives Considered

    The only significant alternative to this proposed rule would be to 
make no changes in the regulations; i.e., to not add Homeria spp. to 
the list of Federal noxious weeds. We have rejected the alternative of 
not adding Homeria spp. to the list of Federal noxious weeds because of 
the potential economic and ecological consequences that we believe 
would result from their spread.

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.)

[[Page 72296]]

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. In Sec. 360.200, paragraph (c) would be amended by adding, in 
alphabetical order, an entry for ``Homeria spp.''.

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) would be amended by adding, in 
alphabetical order, an entry for ``Homeria spp.''.

    Done in Washington, DC, this 16th day of December 1999.
Bobby R. Acord,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-33423 Filed 12-23-99; 8:45 am]
BILLING CODE 3410-34-U