[Federal Register Volume 66, Number 115 (Thursday, June 14, 2001)]
[Rules and Regulations]
[Pages 32213-32217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14867]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 360

[Docket No. 98-091-2]


Noxious Weeds; Permits and Interstate Movement

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Affirmation of interim rule as final rule.

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SUMMARY: We are adopting as a final rule, without change, an interim 
rule that amended the 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 interim rule, the 
regulations provided for the issuance of permits for movements of 
noxious weeds 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.

EFFECTIVE DATE: The interim rule became effective on July 29, 1999.

FOR FURTHER INFORMATION CONTACT: Dr. Alan V. Tasker, National Weed 
Program Coordinator, Invasive Species and Pest Management, PPQ, APHIS, 
4700 River Road Unit 134, Riverdale, MD 20737-1236; (301) 734-5708.

SUPPLEMENTARY INFORMATION:

Background

    In an interim rule effective and published in the Federal Register 
on July 29, 1999 (64 FR 41007-41010, Docket No. 98-091-1), we amended 
the regulations in 7 CFR part 360 (referred to below as the 
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 interim rule, the regulations provided for 
the issuance of permits for movements of noxious weeds into or through 
the United States, but did not explicitly address interstate movements.
    The interim rule was necessary to help prevent the artificial 
interstate spread of noxious weeds into noninfested areas of the United 
States. The interim rule aligned our interstate movement regulations 
with our import requirements and is consistent with our obligations 
under international trade agreements.
    Comments on the interim rule were required to be received on or 
before September 27, 1999. We received six comments by that date. The 
comments were from State Governments, plant and seed producers, a trade 
association, and an environmental advocacy organization. Four of those 
commenters generally supported the interim rule. One commenter opposed 
the rule. One commenter submitted data on two Federal noxious weeds. We 
have carefully considered these comments, which are discussed below by 
topic.

[[Page 32214]]

Enforcement of the Interim Rule

    Two commenters asked APHIS to describe how it intends to enforce 
the requirements in the interim rule.
    APHIS faces a difficult task in monitoring the interstate movement 
of noxious weeds, and we depend on State plant officials to identify 
weeds moved into their States. In the event that APHIS can determine 
that a person has moved a noxious weed interstate without a permit, or 
in contradiction to the terms specified in a permit, APHIS has 
authority to destroy or dispose of such noxious weeds in order to 
prevent their dissemination in the United States. APHIS also has the 
authority to impose criminal and civil penalties on those persons who 
move noxious weeds interstate without a permit or who violate the terms 
of their permit, as discussed in detail later in this document. 
Further, if APHIS finds that persons or companies are advertising 
Federal noxious weeds for sale, we contact the sellers and inform them 
that they are prohibited from moving noxious weeds interstate except 
under permit.

Weed Classification System

    One commenter requested that APHIS consider codifying a weed 
classification system, which would make the noxious weed permitting 
system more transparent. The commenter stated that such a system would 
involve the identification of ``risk zones'' based on geographic and 
other climate-based criteria, and would provide for the sale of noxious 
weeds in areas where there is no invasion potential while prohibiting 
the sale and movement of weeds in areas where there is invasion 
potential.
    We believe that, due to the number of variables that would be 
involved, such a system would prove problematic to develop and 
implement because the risk presented by the movement of any weed is 
fairly unique to that weed and is further dependent on the climate and 
environment to which the weed is being moved. Nonetheless, we are 
considering various types of weed classification systems, and if we 
determine that it is possible to develop and maintain an accurate 
system, we may make it the subject of an upcoming rulemaking.

State Weed Lists

    One commenter requested that APHIS work to ensure that States are 
basing their individual weed lists on sound scientific research. The 
commenter stated that concerns over the effects of invasive plant 
species on agricultural areas and the environment have led to a 
proliferation of State and local initiatives to control species that 
often do not appear to have been science-based.
    APHIS does not challenge weed lists maintained by individual 
States. Persons with concerns regarding States' weed lists may have an 
opportunity to comment on the scientific merit of weed listings through 
the separate rulemaking mechanisms employed by States to create their 
regulations, including regulations that contain weed lists. In short, 
persons with concerns about the scientific justification for State weed 
listings should pursue the matter directly with the appropriate State 
Department of Agriculture.

Sale of Noxious Weeds in Commercial Trade

    One commenter asked what actions APHIS is taking to keep noxious 
weeds from being sold in commercial trade.
    As stated earlier in this document, if APHIS finds that persons or 
companies are advertising Federal noxious weeds for sale, we contact 
the sellers and inform them that they are prohibited from moving 
noxious weeds interstate except under permit.
    Federal noxious weeds that are moved in violation of the 
regulations may be seized and destroyed, and violators may be subject 
to civil and criminal penalties as discussed later in this document.
    If Federal noxious weeds are found during inspection of a retail 
establishment or under other circumstances, APHIS attempts to determine 
the origin of the weeds and whether the weeds have been imported or 
moved interstate. If the weeds are found to have been imported or moved 
interstate, APHIS will determine whether there is a permit on file 
authorizing the importation or interstate movement. If there is no 
permit on file, the presence of the weeds will be investigated as a 
violation of the regulations.

APHIS's Legal Authority

    One commenter stated that APHIS does not have the authority to 
impose restrictions on the interstate movement of noxious weeds.
    APHIS believes it has clear authority under section 412 of the 
Plant Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 438, 7 
U.S.C. 7712) to regulate the movement of noxious weeds in interstate 
commerce. Specifically, the Plant Protection Act states, in section 
412, paragraph (a), that the Secretary of Agriculture ``may prohibit or 
restrict the importation, entry, exportation, or movement in interstate 
commerce of any plant, plant product, biological control organism, 
noxious weed, article, or means of conveyance, if the Secretary 
determines that the prohibition or restriction is necessary to prevent 
the introduction or the dissemination of a plant pest or noxious weed 
within the United States.''
    One commenter stated that the interim rule effectively usurps a 
State's right to decide for itself whether to allow movement of a 
product (such as a noxious weed) into the State.
    When processing an application for a permit to move a noxious weed 
interstate, APHIS evaluates the effects of the movement of the noxious 
weed and shares its findings with the affected State. If APHIS 
determines that movement of a weed will not present a significant risk 
of disseminating the weed into noninfested areas of the United States, 
the State has an opportunity to comment on or suggest revisions to the 
conditions of the permit. Any decision to approve or deny a permit 
application is made by APHIS after consultation with the affected 
State.
    To elaborate, if a State does not want to allow movement of a 
noxious weed and has a sound, scientific basis for its position, APHIS 
is unlikely to issue a permit for the movement of the weeds. Further, 
if a State wishes to allow entry of a weed, and APHIS has determined 
that the movement of the weed would not present a significant risk of 
disseminating the weed into uninfested areas of the United States, 
APHIS would grant the permit to move weeds interstate. In the event 
that there is disagreement between APHIS and a State over whether to 
grant a permit, the final decision rests with APHIS, since permits to 
move weeds interstate are Federal permits.
    One commenter objected to the interim rule on Constitutional 
grounds that it unfairly interferes with free trade among States.
    We believe that this action is well within the scope of our 
authorizing legislation; as explained elsewhere in this document.

Issuance of Permits

    One commenter expressed concern over the possibility that APHIS 
would issue a permit to move certain weeds to one State, but could 
refuse to issue a permit to move weeds to another State.
    APHIS believes it has authority to allow weeds to be moved to one 
State but not another, based on risk assessment. When considering each 
request for a permit to move a noxious weed interstate, APHIS considers 
the intended use of the weed and the

[[Page 32215]]

proposed methods to be used to prevent escape of the weed into the 
environment. Since a given noxious weed can present a different risk of 
spread or infestation depending on the climate or environment where it 
is introduced, APHIS believes that it is essential to consider whether 
to allow the interstate movement of noxious weeds on a case-by-case 
basis. This could mean that APHIS could grant a permit to move a given 
weed to one State, but not another, and also that APHIS could grant a 
permit to move a given weed into one area of a State, but not another.
    Further, most permits for the interstate movement of noxious weeds 
are granted to containment facilities that use the weeds for research 
purposes. These facilities use or grow the weeds under controlled 
conditions that provide assurance that the weeds will not be 
disseminated into natural or agricultural areas. Some persons seeking 
permits to move noxious weeds interstate do not intend to grow the 
weeds in containment facilities. For these permit requests, APHIS 
considers whether or not the weed is already present in the State. If 
the weed is present in the State and the State concurs with permit 
issuance, APHIS will issue a permit. If the weed does not occur in the 
State, APHIS evaluates the potential effects of the weed on the 
particular environment to which it would be moved, and confirms its 
findings with the State. APHIS may deny a permit request based on the 
possibility that the weeds could be disseminated into agricultural and 
natural areas where they could affect crop production or crowd out 
native species, or otherwise pose a high risk of becoming established.

Clarification of the Effects of the Interim Rule

    One commenter asked that we answer six specific questions about the 
interim rule. Those questions and our responses follow.
    Question: Does the interim rule apply to seeds shipped from a State 
where the seed is ``legal and certified'' under U.S. Department of 
Agriculture (USDA) standards to another State where the seed is ``legal 
and certified'' under the same USDA standards?
    Response: A person moving noxious weeds or noxious weed seeds 
interstate must have a valid Federal permit, regardless of the State 
where weeds or seeds originate or their intended destination State. 
Only one person (i.e., either the person moving the weed or seed or the 
person receiving the weed or seed) needs to obtain a permit for a 
single movement of noxious weeds. In most cases, the recipient of the 
noxious weeds would be granted a permit to receive noxious weeds from 
another State. When many recipients in a particular State or a defined 
area within the State are authorized to receive the noxious weed, the 
original shipper may be granted a permit to move seeds to the defined 
area. In both cases, the movement is authorized only under the 
conditions specified in the permit.
    Question: Does the rule apply to adjoining States that both allow 
production and plantings?
    Response: Again, either the person receiving noxious weeds from 
another State or the person sending noxious weeds interstate must have 
a permit that allows the weeds or seeds to be moved from one State to 
another, regardless of whether the States allow production or planting 
of noxious weeds.
    Question: Does the rule apply to States exporting to foreign 
countries when the shipment has to cross State lines to the port of 
export?
    Response: A person who wishes to move noxious weeds from one State 
to another State so that they can be exported must have a permit 
stating that the weeds or seeds may be moved into the area of export in 
the exporting State. The person who obtains the permit should be the 
recipient in the weeds' destination State (in this case, the exporter 
of seeds). Further, if a person has a permit to move weeds from one 
State to another, but the movement requires that the weeds transit 
other States en route to their destination, the permit would specify 
relevant safeguarding measures that need to be applied to ensure that 
the weeds do not pose a risk of being disseminated into the States that 
they are transiting.
    Question: Does this rule give USDA jurisdiction over noxious weeds 
growing in States where the crop is legal, certifiable, and widespread?
    Response: This rule only affects persons moving noxious weeds or 
seeds interstate.
    Question: How does USDA plan to administer thousands of small lot 
orders of 100 to 500 pounds of certified Federal noxious weed seed on a 
daily basis going to and from States where it is legal and accepted?
    Response: APHIS' permitting policy requires that a person wishing 
to move certain weeds interstate to a single State would need only one 
permit, typically valid for 4 years, to move an unlimited number of 
lots of weeds to that State. However, a person wishing to move a single 
weed to several States would need a permit for each destination State. 
Further, some APHIS permits may specify that weeds can only be moved 
within a defined area in the destination State in order to prevent 
dissemination of the weed into noninfested areas.
    Question: Does this new rule carry any different penalties than the 
rule it updates?
    Response: Since the publication of the interim rule, Congress 
passed the Plant Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 
438, 7 U.S.C. 7701-7772). Under the Plant Protection Act, the Secretary 
of Agriculture has the authority to hold, treat, or destroy, at the 
owner's expense, noxious weeds that are moving or have moved interstate 
without a valid permit or in contradiction to the terms specified in a 
permit. The Secretary also has the authority to assess civil penalties 
against persons who violate the terms of permits issued for the 
interstate movement of noxious weeds. Cases in which persons are 
believed to knowingly violate the terms of their permit can be referred 
to the Department of Justice for criminal prosecution.
    With regard to criminal penalties, the Act provides that violators 
may be fined in accordance with Title 18, U.S. Code, imprisoned for a 
period not exceeding 1 year, or both. With regard to civil penalties, 
the Act provides that violators may, after notice and opportunity for a 
hearing on the record, be assessed a civil penalty by the Secretary 
that does not exceed the greater of: (1) $50,000 in the case of any 
individual (except that the penalty may not exceed $1,000 in the case 
of an initial violation by a person moving noxious weeds or seeds not 
for monetary gain), $250,000 in the case of any partnership, 
corporation, association, joint venture, or other legal entity, 
$500,000 for all violations adjudicated in a single proceeding; or (2) 
twice the gross gain or gross loss for any violation that results in 
the person deriving pecuniary gain or causing pecuniary loss to 
another.
    Therefore, for the reasons given in the interim rule and in this 
document, we are adopting the interim rule as a final rule without 
change.
    This action also affirms the information contained in the interim 
rule concerning Executive Orders 12372 and 12988.

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.

[[Page 32216]]

    In accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis, which is set forth below, regarding 
the economic effects of this rule on small entities. The discussion 
also serves as a cost-benefit analysis. Based on the information we 
have, there is no basis to conclude that this rule will result in any 
significant economic effects on a substantial number of small entities.
    In accordance with section 412 of the Plant Protection Act (Title 
IV, Pub. L. 106-224, 114 Stat. 438, 7 U.S.C. 7712), the Secretary of 
Agriculture is authorized to prohibit or restrict the importation, 
entry, exportation, or movement in interstate commerce of any plant, 
plant product, biological control organism, noxious weed, article, or 
means of conveyance, if the Secretary determines that the prohibition 
or restriction is necessary to prevent the introduction or 
dissemination of a plant pest or noxious weed within the United States.
    This rule specifically requires that a permit is necessary for the 
interstate movement of Federal noxious weeds. Prior to the interim 
rule, the regulations provided for the issuance of permits for 
movements of noxious weeds into or through the United States, but did 
not explicitly address interstate movements.
    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 agricultural producers are eventually borne 
by consumers of their products.
    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. Such costs 
would then likely be passed on to consumers, who would pay more for 
products due to increased producer costs.
    The interim rule is expected to 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 the interim rule because they will 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, in the form of either 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. In our 
initial regulatory flexibility analysis, we invited 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. We received no data in response to our request.
    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 are 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. It is possible that this rule could negatively affect 
sales of noxious weeds because APHIS may refuse to allow movement of 
weeds to areas where they present a risk of becoming established and 
infesting agricultural and natural areas. However, the benefits of 
reducing the probability of a large new infestation of noxious weeds 
that became established after being moved interstate would far exceed 
the losses that affected individuals may bear from the rule.
    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. 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. In our initial regulatory flexibility 
analysis, we invited the public to submit any available data on such 
entities that are affected by this rule. No data was received.
    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 believed 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.

Alternatives Considered

    The only significant alternative to this 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 adverse economic and ecological

[[Page 32217]]

consequences that we believe could result if listed Federal noxious 
weeds are disseminated into noninfested areas of the United States.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
3501 et seq.), the information collection and recordkeeping 
requirements in the interim rule have been approved by the Office of 
Management and Budget (OMB). The assigned OMB control number is 0579-
0054.

List of Subjects in 7 CFR Part 360

    Imports, Plants (Agriculture), Quarantine, Transportation, Weeds.

PART 360--NOXIOUS WEED REGULATIONS

    Accordingly, we are adopting as a final rule, without change, the 
interim rule that amended 7 CFR part 360 and that was published at 64 
FR 41007-41009 on July 29, 1999.

    Authority: Title IV of Pub. L. 106-224, 114 Stat. 438, 7 U.S.C. 
7701-7772; 7 CFR 2.22, 2.80, and 371.3.

    Done in Washington, DC, this 8th day of June 2001.
Bill Hawks,
Under Secretary, Marketing and Regulatory Programs.
[FR Doc. 01-14867 Filed 6-13-01; 8:45 am]
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