[Federal Register Volume 74, Number 200 (Monday, October 19, 2009)]
[Rules and Regulations]
[Pages 53397-53400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25119]



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  Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / 
Rules and Regulations  

[[Page 53397]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 360 and 361

[Docket No. APHIS-2008-0097]


Noxious Weeds; Old World Climbing Fern and Maidenhair Creeper

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 by adding Old 
World climbing fern (Lygodium microphyllum (Cavanilles) R. Brown) and 
maidenhair creeper (Lygodium flexuosum (Linnaeus) Swartz) to the list 
of terrestrial noxious weeds. This action is necessary to prevent the 
artificial spread of these noxious weeds into the United States.

DATES: This interim rule is effective October 19, 2009. We will 
consider all comments that we receive on or before December 18, 2009.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to (http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0097) to submit or view comments and to view 
supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send two copies of 
your comment to Docket No. APHIS-2008-0097, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2008-0097.
    Reading Room: 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.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at (http://www.aphis.usda.gov).

FOR FURTHER INFORMATION CONTACT: Dr. Alan V. Tasker, Noxious Weeds 
Program Coordinator, Emergency and Domestic Programs, PPQ, APHIS, 4700 
River Road Unit 26, Riverdale, MD 20737-1236, (301) 734-5225; or Ms. 
Dorothy Wayson, Regulatory Coordination Specialist, Regulatory 
Coordination and Compliance, Permits, Registrations, Imports, and 
Manuals, PPQ, APHIS, 4700 River Road Unit 52, Riverdale, MD 20737-1236, 
(301) 734-0772.

SUPPLEMENTARY INFORMATION:

Background

    The Plant Protection Act (PPA, 7 U.S.C. 7701 et seq.) authorizes 
the Secretary of Agriculture 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 of a plant pest or 
noxious weed into the United States or dissemination of a plant pest or 
noxious weed within the United States.
    The PPA defines ``noxious weed'' as ``any plant or plant product 
that can directly or indirectly injure or cause damage to crops 
(including nursery stock or plant products), livestock, poultry, or 
other interests of agriculture, irrigation, navigation, and the natural 
resources of the United States, the public health, or the 
environment.'' The PPA also provides that the Secretary may publish, by 
regulation, a list of noxious weeds that are prohibited or restricted 
from entering the United States or that are subject to restrictions on 
interstate movement within the United States. Under this authority, the 
Animal and Plant Health Inspection Service (APHIS) administers the 
noxious weeds regulations in 7 CFR part 360, which prohibit or restrict 
the importation and interstate movement of those plants that are 
designated as noxious weeds in Sec.  360.200.
    Under the authority of the Federal Seed Act of 1939, as amended (7 
U.S.C. 1551 et seq.), the U.S. Department of Agriculture regulates the 
importation and interstate movement of certain agricultural and 
vegetable seeds and screenings. Title III of that Act, ``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. APHIS' regulations implementing the provisions of title III of 
the Federal Seed Act 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.
    In this document, we are amending the regulations by adding Old 
World climbing fern (Lygodium microphyllum (Cavanilles) R. Brown) and 
maidenhair creeper (Lygodium flexuosum (Linnaeus) Swartz) to the list 
of terrestrial noxious weeds in Sec.  360.200(c) and the list of 
noxious weed seeds with no tolerances applicable to their introduction 
in Sec.  361.6(a)(1). We are taking this action based on information, 
discussed below, that indicates that L. microphyllum and L. flexuosum 
are harmful noxious weeds that pose a serious threat to U.S. 
agriculture and the natural resources of the United States.
    This information is also available in the weed risk assessment 
(WRA) document titled ``Lygodium microphyllum (Old World climbing 
fern), Lygodium japonicum (Japanese climbing fern), and Lygodium 
flexuosum,'' which may be obtained from the person listed under FOR 
FURTHER INFORMATION CONTACT or viewed on the Regulations.gov Web site 
(see ADDRESSES above for instructions for accessing Regulations.gov).
    APHIS received an inquiry regarding market access for leaves of L. 
microphyllum from China to be used in basket weaving. Shortly 
afterward, the State of Florida requested that APHIS assess all 25 
Lygodium species to determine whether they could be added to the list 
of Federal noxious weeds. A preliminary review of the genus indicated 
that only five species of the

[[Page 53398]]

Lygodium genus are considered weeds: L. circinnatum, L. flexuosum, L. 
japonicum, L. microphyllum, and L. polymorphum. Because importation of 
L. microphyllum and L. japonicum, which are already present in the 
United States, may lead to the establishment of additional populations 
in the United States, PPQ's Plant Epidemiology and Risk Analysis 
Laboratory (PERAL) prepared a WRA to determine whether these species 
qualify as Federal noxious weeds.
    We also assessed L. flexuosum, which is not known to be present in 
the United States, because it is similar to L. microphyllum and L. 
japonicum and may have similar impacts if introduced. Due to the 
limited information available on L. polymorphum and L. circinnatum, 
PERAL was not able to gather sufficient evidence to assess the 
invasiveness of these species; however, they may be assessed separately 
if more information becomes available. We invite the public to submit 
any additional information on these species that could help us assess 
their invasiveness.
    L. microphyllum is a vine-like fern with fronds that can grow up to 
30 feet long, which can overtake and blanket environments and provide 
access for wildfires to reach into tree canopies. The species is native 
in parts of Africa, Asia, and Australia. Fertile Lygodium leaves 
contain reproductive structures filled with spores that can become 
windborne and spread the fern into uninfested areas. L. microphyllum 
possesses a number of traits that contribute to its destructive 
establishment, naturalization, and spread. These traits include its 
tolerance to a wide variety of light conditions, massive spore 
production, tolerance to fire, and rapid growth and photosynthetic 
rates.
    In the United States, L. microphyllum is currently established in 
southern Florida, where it has rapidly invaded a variety of habitats 
including pine forests, wetlands, hammocks, ditches, and disturbed 
areas. The fern's prolific growth shades underlying vegetation and 
damages the habitats of federally listed threatened and endangered 
species in Florida in the Everglades National Park, national wildlife 
refuges, and other Federal and State conservation areas.
    L. microphyllum has not reached the limit of its potential 
geographic distribution in the United States. Florida, the only state 
with L. microphyllum populations, regulates it as a State noxious weed. 
Florida currently has a Lygodium management plan, which was released in 
2006, and an active control program in place. The States of Alabama, 
North Carolina, South Carolina, and Vermont, incorporate the Federal 
noxious weed list by reference into their State noxious weed lists and 
thus will regulate both L. microphyllum and L. flexuosum as State 
noxious weeds.
    L. flexuosum is a vine-like fern that spreads by rhizomes and by 
climbing over other lowland vegetation. The species is native to 
temperate and tropical Southeast Asia and Australia. In its native 
range, it reduces rice yields, obstructs harvesting operations in 
rubber tree and oil palm plantations, and may compete with tea plants 
for resources. L. flexuosum is not known to be present in the United 
States, other than for scientific study in containment at a biological 
control research facility.
    L. japonicum is a vine-like fern with fronds that can grow up to 30 
feet long, capable of reaching into forest canopies. The species is 
native to tropical and temperate Asia. In the United States, it has 
been established since 1937 and is relatively widespread in some 
States, but regionalized or isolated in others. Besides being spread 
through horticulture, L. japonicum is readily wind-dispersed and can 
spread in contaminated pine straw and on field equipment.
    There are 11 States (Alabama, Arkansas, Florida, Georgia, Hawaii, 
Louisiana, Mississippi, North Carolina, Puerto Rico, South Carolina, 
and Texas) with known populations of L. japonicum. Out of those States, 
only Florida and Alabama list L. japonicum as a State noxious weed. 
Florida is planning on releasing a detailed management plan for L. 
japonicum similar to the plan released for L. microphyllum in 2006. 
Outside Florida, L. japonicum may be controlled locally by various 
Federal, State, or local agencies; however, the extent of local control 
is unknown.
    Based on APHIS' evaluation of the preliminary information generated 
during the weed risk assessment as well as our review of Florida's 
request, APHIS concluded that L. microphyllum and L. flexuosum are 
noxious weeds that posed a serious threat to U.S. agriculture and the 
environment.
    Accordingly, APHIS issued a Federal Import Quarantine Order on May 
30, 2008, that immediately restricted the importation from all 
countries of any part of L. microphyllum or L. flexuosum capable of 
propagation, including nursery stock, spores, and leaves (fronds), 
unless authorized by a PPQ permit for specified research in 
containment. This interim rule is intended to codify provisions of the 
existing Federal Order that prevent the introduction into or spread of 
L. microphyllum and L. flexuosum within the United States. Accordingly, 
we are adding L. microphyllum and L. flexuosum to the list of 
terrestrial weeds in Sec.  360.200(c), thus allowing them to be 
imported or moved interstate only with a permit in which conditions are 
specified to prevent their artificial spread. Additionally, we are 
adding L. microphyllum and L. flexuosum to the list of noxious weed 
seeds in Sec.  361.6(a)(1) with no tolerances applicable to their 
introduction into the United States.
    The WRA recommended that we consider listing L. japonicum to the 
list of terrestrial weeds in Sec.  360.200(c). We prepared a Federal 
noxious weed decision document to help evaluate whether to list L. 
japonicum as a noxious weed. This document may be obtained from the 
person listed under FOR FURTHER INFORMATION CONTACT or viewed on the 
Regulations.gov Web site (see ADDRESSES above for instructions for 
accessing Regulations.gov). Based on the information provided in that 
document, we are not regulating L. japonicum at this time, because L. 
japonicum is not regulated by 9 of the 11 States where it occurs, and 
the extent of control programs throughout these States is unclear.

Federal Preemption

    On May 20, 2009, the President issued a memorandum to the heads of 
executive departments and agencies on the subject of preemption. The 
memorandum states that it is the general policy of the Administration 
that preemption of State law by executive departments and agencies 
should be undertaken only with full consideration of the legitimate 
prerogatives of the States and with a sufficient legal basis for 
preemption. The memorandum further states:
    To ensure that executive departments and agencies include 
statements of preemption in regulations only when such statements have 
a sufficient legal basis:
     Heads of departments and agencies should not include in 
regulatory preambles statements that the department or agency intends 
to preempt State law through the regulation except where preemption 
provisions are also included in the codified regulation.
     Heads of departments and agencies should not include 
preemption provisions in codified regulations except where such 
provisions would be justified under legal principles governing 
preemption, including the

[[Page 53399]]

principles outlined in Executive Order 13132.
    Since 1996, Executive Order 12988, ``Civil Justice Reform,'' has 
required agencies to include in each regulation a statement regarding 
its preemptive effects. APHIS has included a statement of preemptive 
effects in regulatory preambles under the heading, ``Executive Order 
12988.''
    In compliance with the May 2009 memorandum from the White House, we 
are adding preemption provisions to parts 360 and 361 that would apply 
to this rule, as well as to the existing regulations in parts 360 and 
361.
    Part 360 contains restrictions on the movement into or through the 
United States of plants and plant products that fall within the 
definition of ``noxious weed'' as defined in section 403 of the Plant 
Protection Act (7 U.S.C. 7702 (10)).
    Under section 436 of the Plant Protection Act (7 U.S.C. 7756), no 
State or political subdivision of a State may regulate in foreign 
commerce any noxious weed in order to control it, eradicate it, or 
prevent its dissemination. A State or political subdivision of a State 
also may not regulate the movement in interstate commerce of noxious 
weeds if the Secretary has issued a regulation or order to prevent the 
dissemination of the noxious weed within the United States. The only 
exceptions to this are:
     If the prohibitions or restrictions issued by the State or 
political subdivision of a State are consistent with and do not exceed 
the regulations or orders issued by the Secretary; or
     If the State or political subdivision of a State 
demonstrates to the Secretary and the Secretary finds that there is a 
special need for additional prohibitions or restrictions based on sound 
scientific data or a thorough risk assessment.
    Therefore, in accordance with section 436 of the Plant Protection 
Act, the regulations in part 360 preempt all State and local laws and 
regulations that are inconsistent with or exceed the regulations in 
part 360 unless a special need request has been granted in accordance 
with our regulations governing the consideration of such a request (see 
7 CFR 301.1 through 301.1-3).
    Accordingly, in this interim rule, we are adding a new Sec.  
360.400 to codify the preemptive effects of the regulations in part 
360.
    As noted previously, the regulations in part 361 were issued under 
the authority of the Federal Seed Act of 1939, as amended. The Federal 
Seed Act does not include in its text explicit provisions regarding 
preemption such as these found in the Plant Protection Act. However, 
APHIS' regulations in part 361 and the provisions of the Federal Seed 
Act on which they are based deal entirely with foreign commerce, and 
the regulation of foreign commerce is a power granted to the Federal 
Government under the U.S. Constitution. Therefore, those regulations 
preempt State and local laws regarding seed and screenings imported 
into the United States while the seed and screenings are in foreign 
commerce.
    Accordingly, we are amending the regulations in part 361 to codify 
their preemptive effects. The new provisions regarding preemption will 
be added to Sec.  361.2, which we have renamed ``Preemption of State 
and local laws; general restrictions on the importation of seed and 
screenings.''

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
introduction of L. microphyllum and L. flexuosum into uninfested areas 
of the United States and prevent the artificial spread of L. 
microphyllum within the United States. Under these circumstances, the 
Administrator has determined that prior notice and opportunity for 
public comment are contrary to the public interest and that there is 
good cause under 5 U.S.C. 553 for making this rule effective less than 
30 days after publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). 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.

Executive Order 12866 and Regulatory Flexibility Act

    This interim rule is subject to Executive Order 12866. However, for 
this action, the Office of Management and Budget has waived its review 
under Executive Order 12866.
    We are amending the regulations by adding L. microphyllum and L. 
flexuosum to the list of terrestrial noxious weeds in Sec.  360.200(c) 
and the list of noxious weed seeds with no tolerances applicable to 
their introduction in Sec.  361.6(a)(1). In accordance with the 
Regulatory Flexibility Act, we have analyzed the potential economic 
effects of this action on small entities. This action, which is 
necessary to prevent the artificial spread of these noxious weeds into 
the United States, is expected to have only minor, if any, economic 
effects on U.S. entities.
    In the last 5 years, there have been only two recorded shipments of 
Lygodium species imported into the United States, one in 2006 and a 
second in 2008. The species that were imported are not known and may or 
may not have been L. microphyllum or L. flexuosum. The 2006 shipment 
consisted of 122 stems imported from Colombia as cut flowers. Two years 
later, a second shipment arrived into the United States from the United 
Kingdom in the form of Lygodium spores, ready for propagation. The 
value of these two Lygodium shipments is also not known, but clearly it 
was negligible when compared to the approximately $1.5 billion in 
floriculture products imported annually. Moreover, whatever small 
benefit U.S. importers would derive from selling Lygodium spores or cut 
flowers is insignificant when compared to the costs of controlling the 
invasive ferns if inadvertently released into the environment. Florida 
is already bearing such costs in combating L. microphyllum.
    Additionally, the May 2008 Federal Importation Quarantine Order 
restricts the importation from all countries of any part of L. 
microphyllum or L. flexuosum capable of propagation, including nursery 
stock, spores, and leaves (fronds), unless authorized by a PPQ permit 
for specified research in containment. We have received no feedback 
from the nursery industry on the Federal Order that would lead us to 
believe that the restriction of Lygodium imports would have any impact 
on a substantial number of small entities.
    We do not have any additional information on the importation of 
Lygodium spp. and its impacts on small entities. The intrastate 
movement of L. microphyllum is currently restricted by Florida; we do 
not have any information on interstate trade in L. microphyllum. We 
invite the public to submit additional information on the possible 
impacts listing L. microphyllum and L. flexuosum as Federal noxious 
weeds could have on small entities.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

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

[[Page 53400]]

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 (2) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This interim rule contains no 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.

0
Accordingly, we are amending 7 CFR parts 360 and 361 as follows:

PART 360-NOXIOUS WEED REGULATIONS

0
1. The authority citation for part 360 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.


Sec.  360.200  [Amended]

0
2. In Sec.  360.200, the list in paragraph (c) is amended by adding, in 
alphabetical order, entries for ``Lygodium flexuosum (Linnaeus) Swartz 
(maidenhair creeper)'' and ``Lygodium microphyllum (Cavanilles) R. 
Brown (Old World climbing fern)''.

0
3. A new Sec.  360.400 is added to read as follows:


Sec.  360.400  Preemption of State and local laws.

    (a) Under section 436 of the Plant Protection Act (7 U.S.C. 7756), 
a State or political subdivision of a State may not regulate in foreign 
commerce any noxious weed in order to control it, eradicate it, or 
prevent its dissemination. A State or political subdivision of a State 
also may not impose prohibitions or restrictions upon the movement in 
interstate commerce of noxious weeds if the Secretary has issued a 
regulation or order to prevent the dissemination of the noxious weed 
within the United States. The only exceptions to this are:
    (1) If the prohibitions or restrictions issued by the State or 
political subdivision of a State are consistent with and do not exceed 
the regulations or orders issued by the Secretary; or
    (2) If the State or political subdivision of a State demonstrates 
to the Secretary and the Secretary finds that there is a special need 
for additional prohibitions or restrictions based on sound scientific 
data or a thorough risk assessment.
    (b) Therefore, in accordance with section 436 of the Plant 
Protection Act, the regulations in this part preempt all State and 
local laws and regulations that are inconsistent with or exceed the 
regulations in this part unless a special need request has been granted 
in accordance with the regulations in Sec. Sec.  301.1 through 301.13 
of this chapter.

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

0
4. 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 371.3.

0
5. In Sec.  361.2, the section heading is revised and paragraphs (a) 
through (d) are redesignated as paragraphs (b) through (e), 
respectively, and a new paragraph (a) is added to read as follows:


Sec.  361.2  Preemption of State and local laws; general restrictions 
on the importation of seed and screenings.

    (a) The regulations in this part preempt State and local laws 
regarding seed and screenings imported into the United States while the 
seed and screenings are in foreign commerce. Seed and screenings 
imported for immediate distribution and sale to the consuming public 
remain in foreign commerce until sold to the ultimate consumer. The 
question of when foreign commerce ceases in other cases must be 
considered on a case-by-case basis.
* * * * *


Sec.  361.6  [Amended]

0
6. In Sec.  361.6, paragraph (a)(1) is amended by adding, in 
alphabetical order, entries for ``Lygodium flexuosum (Linnaeus) Swartz 
(maidenhair creeper)'' and ``Lygodium microphyllum (Cavanilles) R. 
Brown (Old World climbing fern)''.
    Done in Washington, DC, this 6th day of October, 2009.

Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-25119 Filed 10-16-09: 8:45 am]
BILLING CODE: 3410-34-S