Noxious weed lists: Update,

[Federal Register: March 16, 1999 (Volume 64, Number 50)]

[Rules and Regulations]

[Page 12881-12884]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr16mr99-2]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 360 and 361

[Docket No. 98-063-2]

Noxious Weeds; Update of Weed Lists

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the noxious weeds regulations by adding Solanum tampicense Dunal (wetland nightshade) and Caulerpa taxifolia (Mediterranean clone) to the list of aquatic weeds and removing Ipomoea triloba Linnaeus from the list of terrestrial weeds. We are also updating the taxonomic names of two other weeds currently listed and making one editorial change to the regulations. These actions are necessary to prevent the artificial spread of noxious weeds into noninfested areas of

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

EFFECTIVE DATE: April 15, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Polly Lehtonen, Botanist, Biological Assessment and Taxonomic Support, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236, (301) 734-8896.

SUPPLEMENTARY INFORMATION:

Background

The noxious weed regulations were promulgated under authority of the Federal Noxious Weed Act (FNWA) of 1974, as amended (7 U.S.C. 2801 et seq.), and are set forth in 7 CFR part 360. They contain restrictions on the movement of listed noxious weeds into or through the United States, but do not affect the movement of listed noxious weeds that are moved solely intrastate.

Under the authority of the Federal Seed Act (FSA) of 1939, as amended (7 U.S.C. 1551 et seq.), the U.S. Department of Agriculture (USDA) regulates the importation and interstate movement of certain agricultural and vegetable seeds and screenings. Title III of the FSA, ``Foreign Commerce,'' requires shipments of imported agricultural and vegetable seeds to be labeled correctly and to be tested for the presence of the seeds of certain noxious weeds as a condition of entry into the United States. The Animal and Plant Health Inspection Service's (APHIS') regulations implementing the provisions of Title III of FSA are found in 7 CFR part 361. A list of noxious weed seeds is contained in Sec. 361.6. Paragraph (a)(1) of Sec. 361.6 lists species of noxious weeds whose seeds have no tolerances applicable to their introduction into the United States.

On December 4, 1998, we published in the Federal Register (63 FR 67011-67014, Docket No. 98-063-1) a proposal to amend the noxious weed regulations by adding two weeds to the list of aquatic weeds in Sec. 360.200(a), removing another weed from the list of terrestrial weeds in Sec. 360.200(c), and updating the taxonomy of two other currently listed weeds. Also, since the FSA regulations in Sec. 361.6(a) support the noxious weed regulations by prohibiting or restricting the importation of the seeds of noxious weeds listed in Sec. 360.200, we proposed to amend the noxious weed seed list in Sec. 361.6(a) accordingly.

We held a public hearing on the proposed rule on January 6, 1999. No one came to speak about the proposed rule. We also solicited comments concerning our proposal for 60 days ending February 2, 1999. We received six comments by that date. They were from representatives of State governments and members of the scientific community. We carefully considered all of the comments we received. They are discussed below.

Caulerpa taxifolia

All six of the comments that we received were strongly in favor of adding Caulerpa taxifolia (Mediterranean clone) to the list of aquatic weeds.

One commenter stated that it may be difficult to distinguish the Mediterranean clone of C. taxifolia from other strains of C. taxifolia, and thus, in order to effectively implement our proposal to prohibit the importation of C. taxifolia (Mediterranean clone), all strains of C. taxifolia, and possibly other species of Caulerpa, or even the whole genus, should be listed as Federal noxious weeds.

We agree that there may be some difficulty distinguishing between the Mediterranean clone and noninvasive strains of C. taxifolia; however, we believe that listing other, noninvasive strains of C. taxifolia would create unnecessarily rigid trade restrictions. We believe that listing only the Mediterranean clone of C. taxifolia, as proposed, is sufficient to protect against the introduction of the weed into United States. APHIS personnel will be instructed to refuse shipments that contain what appears to be C. taxifolia of any variety if it originates or passes through areas where the Mediterranean clone is established or thought to be established. We believe these measures to be sufficient to protect against the introduction of C. taxifolia (Mediterranean clone). Therefore, we are not making any changes in response to this comment.

Revision of the Weed List

Three commenters suggested that instead of listing weeds that are prohibited from being imported into the United States, APHIS should develop a list of plant species that are allowed to be imported into the United States. Under the commenters' suggestion, all plants of foreign origin would be prohibited from entering into the United States unless scientific evidence showed that the importation of such plants presented little or no risk of endangering U.S. agriculture, fish and wildlife, or the public health.

The Federal noxious weed list was created under the authority of the Federal Noxious Weed Act (FNWA) of 1974, as amended (7 U.S.C. 2801 et seq.). We are unable to propose or make changes to the weed list as suggested by the commenters because we have no authority to do so under the FNWA. The FNWA provides APHIS with the authority to identify noxious weeds and regulate their importation into the United States. The FNWA does not give APHIS the authority to prohibit the importation of all non-native plant species pending judgment that individual species pose no risk to U.S. agriculture, fish and wildlife, or the public health.

Ipomoea triloba

One commenter stated that Ipomoea triloba should not be removed from the list of terrestrial weeds because, according to an expert on I. triloba, the species has greatly expanded its range within the past 5 years within Florida. The commenter further stated that it is possible that new genetic strains of the species have been introduced into Florida, and that these new strains, which may be of foreign origin, have out-competed the native species, and have spread beyond the range of the native species.

We are not making any changes in response to this comment because we have no scientific data available to distinguish between native and foreign strains of I. triloba. Under current law, we have no authority to regulate native weed species. When taxonomists can distinguish non- native genetic strains of I. triloba from native strains of I. triloba, we will consider listing the non-native strains as Federal noxious weeds.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required by Executive Order 12866.

In accordance with 5 U.S.C. 603, we have performed a Final Regulatory Flexibility Analysis, set forth below, regarding the impact of this rule on small entities.

In accordance with 7 U.S.C. 2803 and 2809, the Secretary of Agriculture is authorized to promulgate regulations to prevent the movement of any noxious weed into the United States, or interstate, except under conditions prescribed by the Secretary.

Addition of S. tampicense and C. taxifolia (Mediterranean clone)

This rule will add Solanum tampicense (wetland nightshade) to the list of Federal noxious weeds. S.

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tampicense will grow as a perennial only in areas free of frost, and is therefore a threat to southern Florida and areas of the country with a climate similar to that of southern Florida. S. tampicense is currently established in five counties in southwestern Florida and could have economic consequences for livestock producers in those areas. Its prickly growth may inhibit access by livestock to wetland areas, a potentially serious dry-season problem.

The majority of cattle operations in the counties harboring existing populations of S. tampicense are small entities. The extent to which they would be adversely affected by the continued spread of S. tampicense is not known. Preventing further introductions and curtailing spread would have a positive economic impact on livestock producers not yet affected.

The unchecked spread of S. tampicense could also have a negative effect on natural ecosystems. Although the extent to which S. tampicense could displace other natural species is not known, the weed could have harmful effects on natural vegetation and wildlife due to the proximity of Everglades National Park to the currently affected areas. In responding to the potential harm caused by S. tampicense to natural ecosystems, one or more small organizations or governmental jurisdictions in affected areas could incur control costs if the weed were to spread. Although the size and magnitude of such potential costs are not known, it is clear that this rule will help to ensure that the costs would be minimized.

This rule will also add Caulerpa taxifolia (Mediterranean clone) to the list of aquatic noxious weeds. We believe that some importers may currently be importing C. taxifolia (Mediterranean clone) into the United States for use in public and private aquariums, but data on the amount of C. taxifolia (Mediterranean clone), if any, currently being imported into the United States is unavailable. The unchecked spread of C. taxifolia (Mediterranean clone) into the United States could, however, have a negative effect on natural ecosystems, given its significant negative effects on the regions in the Mediterranean where it is already established. In responding to the potential harm caused by C. taxifolia (Mediterranean clone) to natural ecosystems, one or more organizations or governmental jurisdictions in affected areas could incur control costs if the weed were to be introduced into the environment. Although the size and magnitude of such potential costs are not known, it is clear that this rule will help to prevent the need for such expenditures.

We therefore believe that adding S. tampicense and C. taxifolia (Mediterranean clone) to the list of Federal noxious weeds will help preclude potential economic and ecological consequences that could result from their spread.

Removal of Ipomoea triloba

We are removing Ipomoea triloba (little bell, aiea morning glory) from the list of Federal noxious weeds because it has been determined that I. triloba is a species native to Florida. Native species are not within the scope of the FNWA, and we therefore have no authority to continue to regulate I. triloba. The delisting of I. triloba could have a slightly positive economic effect on importers of agricultural and vegetable seed, whose shipments would no longer be delayed or refused at the port of entry due to contamination with I. triloba.

Alternatives Considered

The only significant alternative to this rule was to make no changes in the regulations, i.e., to not add S. tampicense and C. taxifolia (Mediterranean clone) to the list of Federal noxious weeds and to retain I. triloba on that list. We rejected the alternative of not listing S. tampicense and C. taxifolia (Mediterranean clone) as Federal noxious weeds because of the potential economic and ecological consequences that we believe will result from their spread. We also rejected the alternative of retaining I. triloba on the list of Federal noxious weeds because it has been determined that I. triloba is a species native to Florida. Native species are not within the scope of the FNWA, and we therefore have no authority to regulate I. triloba as a Federal noxious weed.

This final rule contains no new information collection or recordkeeping requirements.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

7 CFR Part 360

Imports, Plants (Agriculture), Quarantine, Reporting and recordkeeping requirements, Transportation, Weeds.

7 CFR Part 361

Agricultural commodities, Imports, Labeling, Quarantine, Reporting and recordkeeping requirements, Seeds, Vegetables, Weeds.

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

PART 360--NOXIOUS WEED REGULATIONS

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

   Authority: 7 U.S.C. 2803 and 2809; 7 CFR 2.22, 2.80, and 371.2(c).

   Sec. 360.200 [Amended]

2. Section Sec. 360.200 is amended as follows:

   1. In paragraph (a), the paragraph heading is revised to read ``Aquatic and wetland weeds.''

   2. In paragraph (a), the list of noxious weeds is amended by adding, in alphabetical order, entries for ``Caulerpa taxifolia (Mediterranean clone)'' and ``Solanum tampicense Dunal (wetland nightshade)''.

   3. In paragraph (c), the list of noxious weeds is amended by removing the entries for ``Borreria alata (Aublet) de Candolle'', ``Ipomoea triloba Linnaeus (little bell, aiea morning glory)'', and ``Rottboellia exaltata Linnaeus f.(itchgrass, raoulgrass)'', and by adding, in alphabetical order, entries for ``Rottboellia cochinchinensis (Lour.) W. Clayton'' and ``Spermacoce alata (Aublet) de Candolle''.

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

3. The authority citation for part 361 continues to read as follows:

   Authority: 7 U.S.C. 1581-1610; 7 CFR 2.22, 2.80, and 371.2(c).

   Sec. 361.6 [Amended]

4. In Sec. 361.6, paragraph (a)(1), the list of noxious weeds is amended as follows:

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   1. The entries for ``Borreria alata (Aublet) de Candolle'' and ``Ipomoea triloba L.'' are removed.

   2. The entry for ``Rottboellia cochinchinensis Clayon (``=R. exaltata (L.)L. f.)'' is amended by removing the words ``Clayon (=R. exaltata (L.)L. f.)'' and adding the words ``W. Clayton'' in their place.

   3. New entries for ``Caulerpa taxifolia (Mediterranean clone)'', ``Solanum tampicense Dunal (wetland nightshade)'', and ``Spermacoce alata (Aublet) de Candolle'' are added in alphabetical order.

   Done in Washington, DC, this 11th day of March 1999. Joan M. Arnoldi, Acting Administrator, Animal and Plant Health Inspection Service.

   [FR Doc. 99-6344Filed3-15-99; 8:45 am]

   BILLING CODE 3410-34-P