Imported Seed

SUMMARY: We are proposing to expand the list of noxious weed seeds

contained in Federal Seed Act regulations to include seeds of all of

the weeds listed in the Federal Noxious Weed Act regulations. This rule

would allow APHIS to prohibit the entry into the United States of any

imported agricultural or vegetable seed shipments containing seeds of

noxious weeds listed in the Federal Noxious Weed Act regulations. We

believe this action is necessary to prevent the introduction of noxious

weeds into the United States.

DATES: Consideration will be given only to comments received on or

before April 24, 1995. We also will consider comments made at a public

hearing to be held on April 4, 1995, from 9 a.m. until 12 noon.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 93-126-2, Animal and Plant Health Inspection Service, Policy

and Program Development, Regulatory Analysis and Development, 4700

River Road Unit 118, Riverdale, MD 20737-1228. Please state that your

comments refer to Docket No. 93-126-2. Comments received may be

inspected at USDA, room 1141, South Building, 14th Street and

Independence Avenue SW, Washington, DC, between 8 a.m. and 4:30 p.m.,

Monday through Friday, except holidays. Persons wishing to inspect

comments are requested to call ahead on (202) 690-2817 to facilitate

entry into the comment reading room. The public hearing will be held on

April 4, 1995, in room 3A01, 4700 River Road, Riverdale, MD 20737-1228.

FOR FURTHER INFORMATION CONTACT: Ms. Polly Lehtonen, Botanist, Animal

and Plant Health Inspection Service, Plant Protection and Quarantine,

Biological Assessments And Taxonomic Support, 4700 River Road Unit 133,

Riverdale, MD 20737-1228, (301) 734-8896.

SUPPLEMENTARY INFORMATION:

Background

In 1939, Congress enacted the Federal Seed Act (FSA), directing the

U.S. Department of Agriculture (USDA), among other things, to regulate

foreign commerce in seeds in cooperation with the U.S. Department of

Treasury. 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 certain noxious weeds as

a condition of entry into the United States. On October 1, 1982, the

Agricultural Marketing Service (AMS) of the USDA transferred authority

for issuing and enforcing regulations under Title III of the FSA (7 CFR

201.39 through 201.47b, 201.66, and 201.101 through 201.230) to the

Animal and Plant Health Inspection Service (APHIS).

On September 15, 1994, we published an advance notice of proposed

rulemaking in the Federal Register (59 FR 47286-47287, Docket No. 93-

126-1) announcing our plans to revise the FSA regulations to reflect

amendments to the FSA, developments in the seed industry, and the

transfer of regulatory authority for Title III of the FSA from AMS to

APHIS. We also noted our intention to revise the list of noxious weed

seeds contained in the regulations promulgated under the FSA to include

seeds of all the noxious weeds listed in the regulations promulgated

under the Federal Noxious Weed Act.

We have decided to proceed separately with this proposal to revise

the list of noxious weeds contained in the regulations, for reasons

explained below. We are still reviewing comments concerning the other

issues raised in the advance notice, and plan to publish another

proposed rule at a later date. We also will hold a public hearing in

connection with that proposed rule.

We solicited comments on the advance notice of proposed rulemaking

for 45 days ending October 31, 1994. By that date we received 13

comments from seed companies and importers, State governments, and

universities. Four of those comments remarked on our plan to revise the

list of noxious weed seeds contained in the FSA regulations to include

seeds of all the noxious weeds listed in the Federal Noxious Weed Act

regulations. Two of these comments supported our actions and two raised

relevant questions. These questions are addressed below.

Under Sec. 201.108 of the FSA regulations, seeds of 11 types of

weeds are considered to be noxious when found in shipments of imported

agricultural or vegetable seeds. If seeds of these weeds are found in a

shipment of imported agricultural or vegetable seeds in amounts greater

than the tolerances listed in Sec. 201.66, APHIS prohibits the entry of

that shipment into the United States (except possibly for supervised

cleaning or repackaging for re-export). However, if seeds of noxious

weeds listed in the Federal Noxious Weed Act regulations are found in a

shipment of imported agricultural or vegetable seeds subject to the FSA

regulations, APHIS currently may not prohibit the entry of that

shipment into the United States based on such contamination. The

Federal Noxious Weed Act (7 U.S.C. 2801-2813) specifically provides

that it does not apply to shipments of seed subject to the FSA.

Shipments of agricultural and vegetable seeds are subject to the FSA.

This prohibition increases the chances that noxious weeds listed in

the Federal Noxious Weed Act regulations, but not in the FSA

regulations, may be introduced into the United States from contaminated

shipments of agricultural or vegetable seeds. In fact, since 1988,

APHIS has found noxious weeds listed in the Federal Noxious Weed Act

regulations in two shipments of imported agricultural and vegetable

seed. In 1988, APHIS discovered seed of the noxious weed serrated

tussock (Nassella trichotoma (Nees) Hackel ex Arechavaleta) in a

shipment of lawn grass seed imported from Argentina. More recently, in

September of 1994, APHIS discovered seed of the noxious weed goatsrue

(Galega officinalis L.) in a shipment of carrot seed imported from

Chile.

We are proposing, therefore, to expand the list of noxious weed

seeds contained in the FSA regulations to [[Page 15258]] include seeds

of all of the noxious weeds listed in the Federal Noxious Weed Act

regulations. As a result of this action, APHIS would have the authority

to prohibit the entry of shipments of imported agricultural and

vegetable seed containing seed of the noxious weeds currently listed in

the Federal Noxious Weed Act regulations. We have decided to proceed

with this proposal separately from other issues identified in the

advance notice of proposed rulemaking mentioned above due to the urgent

need to expand APHIS authority in this matter, as underscored by the

recent detection of seed of the noxious weed goatsrue in imported

carrot seed.

Tolerances

Under Sec. 201.66 of the FSA regulations, agricultural or vegetable

seed imports may enter the United States if they contain only small

amounts, or ``tolerances,'' of the noxious weed seeds specified in

Sec. 201.108. We propose to preserve these tolerances for the weed

seeds currently listed in Sec. 201.108, except for species of Cuscuta.

Currently, all species of Cuscuta are listed in Sec. 201.108 (with

tolerances) and several are also listed in the Federal Noxious Weed Act

regulations (without tolerances). Since many seeds of Cuscuta species

plants are indistinguishable from each other, we are proposing to

retain tolerances for none. Thus, we would reduce the risk that Cuscuta

species classified as noxious weeds under the Federal Noxious Weed Act

regulations would enter the United States in agricultural or vegetable

seeds. Also, we are proposing to establish no tolerances for the other

noxious weed seeds that are to be added to the FSA regulations from the

Federal Noxious Weed Act regulations. There are no tolerances for these

weeds under the Federal Noxious Weed Act regulations.

Also, we are proposing to add a new Sec. 201.108(b). This paragraph

would state that the allowable tolerance for certain noxious weed seeds

in import shipments of agricultural and vegetable seeds would be two

weed seeds in the minimum amount of seed required to be examined.

Shipments containing three or more noxious weed seeds may not be

imported into the United States. If two noxious weed seeds are found

during the initial examination, a second sample will be taken and

examined. If two or fewer noxious weed seeds are found in the second

examination, the shipment from which the seeds were drawn may be

imported into the United States. If three or more noxious weed seeds

are found in the second examination, the shipment may not be imported

into the United States.

Miscellaneous

We are proposing to revise the list of noxious weed seeds in the

FSA regulations by updating the taxonomical names of several of the

weeds listed. Specifically, concerning the three species of whitetop or

hoary cress currently listed in the regulations, Lepidium draba (L.)

and Lepidium repens (Schrenk) Boiss. would be redesignated as Cardaria

draba (L.) Desv., and Hymenophysa pubescens C. A. Mey. would be

redesignated as Cardaria pubescens (C. A. Mey.) Jarmol. These changes

will bring the list of noxious weed seeds under the FSA regulations

into accord with current botanical nomenclature. These changes would

not affect the Federal Noxious Weed Act regulations, as these seeds are

not listed under those regulations.

Comments on the Advance Notice of Proposed Rulemaking

As stated above, of the 13 comments we received on the advance

notice of proposed rulemaking, four remarked on our plan to revise the

list of noxious weeds in the FSA regulations. Two of the comments

supported our plan. The other two raised the following questions.

One comment, from a State government, inquired as to whether APHIS

would consider adding seeds of weeds appearing on State noxious weed

lists to the list of noxious weeds in the FSA regulations. We would

consider adding a weed to the noxious weed list in the FSA regulations

(as well as the noxious weed list in the Federal Noxious Weed Act

regulations) upon receipt and review of information regarding that

weed.

The other comment, from a trade association, encouraged APHIS to

undertake a thorough scientific review of the list of noxious weeds in

the FSA regulations to confirm its scientific basis and applicability

to today's trade. We welcome for review any information indicating a

need to revise the list of noxious weeds in the FSA regulations (or the

Federal Noxious Weed Act regulations).

Public Hearing

As required by 7 U.S.C. 1592(c), APHIS will host a public hearing

to provide interested persons a full opportunity to present their views

regarding this proposal. At this public hearing, we will also consider

comments on a proposed rule to amend the Federal Noxious Weed Act

regulations. (See APHIS Docket No. 94-050-1, published in the Proposed

Rules Section of this issue of the Federal Register). The hearing will

be held on April 4, 1995, in room 3A01, 4700 River Road, Riverdale, MD

20737-1228.

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 9 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 the

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 rules may be part of the

commenters' oral presentations. However, neither the presiding officer

nor any other representative of APHIS will respond to comments at the

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.

The rule has been determined to be not significant for purposes of

Executive Order 12866 and, therefore, has not been reviewed by the

Office of Management and Budget.

We are proposing to expand the list of noxious weed seeds contained

in FSA regulations by including the seeds of all weeds listed in

Federal Noxious Weed Act regulations. Currently APHIS can prohibit the

entry of shipments of imported agricultural or vegetable seeds

contaminated with noxious weed seeds listed in the FSA regulations, but

not shipments which contain weed seeds listed only in the Federal

Noxious Weed Act regulations. The change would authorize APHIS to

prohibit the entry of any agricultural or vegetable seed shipments

containing noxious weed seeds listed in the Federal Noxious Weed Act

regulations.

The weeds already established in the United States pose serious

threats to the U.S. supplies of food and fiber, causing losses in both

yield and quality of crops. As a result of increased weed

[[Page 15259]] competition, yields decline, production decreases,

exports decrease, and prices of commodities increase. Weed management

has a major influence on the production decisions made by agricultural

producers. The use of additional land, livestock, labor, equipment and

fuel, herbicides, insecticides and fungicides, fertilizers, and

irrigation water may all be required in order to maintain economical

commodity production when weeds are present.

Between 1989 and 1991, weeds in crops and forage cost producers

using herbicides about $4.1 billion annually and cost producers unable

to use herbicides about $19.6 billion annually. (These estimates

represent the upper limits of costs related to weeds.) Although such

losses varied between crops and regions, we estimate yield reduction to

have been between 10 and 20 percent. Furthermore, certain weeds in

pasture lands not only reduce production and availability but also

poison livestock. Livestock losses related to weeds are estimated at

about 3 to 5 percent annually.

Many of the nonindigenous weed species listed in the Federal

Noxious Weed Act regulations attack important farm crops in their

native lands. Among farm products attacked by such weeds are corn,

wheat, sorghum, tobacco, tomatoes, sugarcane, potatoes, grapes,

sunflowers, rice, carrots, and pasture grasses. These crops generate an

annual income of approximately $50 billion in the United States.

Additionally, these agricultural commodities account for about an

estimated $19 billion in U.S. exports. Therefore, even if yield losses

related to new weeds were much less than the average loss related to

established weeds (10 to 20 percent), the economic impact related to

their introduction would be substantial.

Very few agricultural and vegetable seed shipments have been found

to be contaminated with seeds of weeds listed in the Federal Noxious

Weed Act regulations. The recent interception of goatsrue seeds in a

carrot seed shipment from Chile was the first case of a noxious weed

listed in the Federal Noxious Weed Act regulations, but not under the

FSA regulations, being found in an agricultural or vegetable seed

shipment since serrated tussock seed was found in a lawn grass seed

shipment 6 years ago.

Goatsrue is a perennial weed that competes with and reduces yields

of forage plants in moist or irrigated pastures, grassland, marshy

areas, river banks, and along roadsides. The cost of eradicating

goatsrue already introduced has been substantial to the agency. Since

the eradication program began in 1981, the agency has appropriated

about $1.7 million to the ongoing effort.

Although we could not prohibit the entry of the imported carrot

seed based on its contamination with goatsrue seed, the importer agreed

not to distribute the seed in the United States. However, had we had

the authority to prohibit the entry of the shipment based on its

contamination with goatsrue, and had the importer subsequently

destroyed the contaminated seed, we estimate he would have incurred a

loss of about $24,000. This sort of loss is insubstantial compared with

the potential agricultural costs and production losses that could

result from the introduction of a noxious weed.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action would

not have a significant economic impact on a substantial number of small

entities.

Executive Order 12778

This proposed rule has been reviewed under Executive Order 12778,

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 rule contains no information collection or recordkeeping

requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501

et seq.).

List of Subjects in 7 CFR Part 201

Advertising, Agricultural commodities, Imports, Labeling, Reporting

and recordkeeping requirements, Seeds, Vegetables.

Accordingly, 7 CFR part 201 would be amended as follows:

PART 201--FEDERAL SEED ACT REGULATIONS

1. The authority citation for part 201 would continue to read as

follows:

Authority: 7 U.S.C. 1592.

Sec. 201.66 [Removed and reserved]

2. Section 201.66 would be removed and reserved.

3. Section 201.108 would be revised to read as follows:

Sec. 201.108 Noxious weed seeds.

(a) Seeds of the following plants shall be considered noxious weed

seeds.

\1\Acroptilon repens (L.) DC. (=Centaurea repens L.) (=Centaurea

picris)

Aeginetia spp.

Ageratina adenophora (Sprengel) King & Robinson

Alectra spp.

Alternanthera sessilis (L.) R. Brown ex de Candolle

Asphodelus fistulosus L.

Avena sterilis L. (including Avena ludoviciana Durieu)

Azolla pinnata R. Brown

Borreria alata (Aublet) de Candolle

1Cardaria draba (L.) Desv.

1Cardaria pubescens (C. A. Mey.) Jarmol.

Carthamus oxycantha M. Bieberstein

1Convolvulus arvensis L.

Chrysopogon aciculatus (Retzius) Trinius

1Cirsium arvense (L.) Scop.

Commelina benghalensis L.

Crupina vulgaris Cassini

Cuscuta spp.

Digitaria abyssinica (=D. scalarum)

Digitaria velutina (Forsskal) Palisot de Beauvois

Drymaria arenarioides Humboldt & Bonpland ex Roemer & Schultes

Eichhornia azurea (Swartz) Kunth

1Elytrigia repens (L.) Desv. (=Agropyron repens (L.) Beauv.)

Emex australis Steinheil

Emex spinosa (L.) Campdera

1Euphorbia esula L.

Galega officinalis L.

Heracleum mantegazzianum Sommier & Levier

Hydrilla verticillata (Linnaeus f.) Royle

Hygrophila polysperma T. Anderson

Imperata brasiliensis Trinius

Imperata cylindrica (L.) Raeuschel

Ipomoea aquatica Forsskal

Ipomoea triloba L.

Ischaemum rugosum Salisbury

Lagarosiphon major (Ridley) Moss

Leptochloa chinensis (L.) Nees

Limnophila sessiliflora (Vahl) Blume

Lycium ferocissimum Miers

Melaleuca quinquenervia (Cav.) Blake

Melastoma malabathricum L.

Mikania cordata (Burman f.) B. L. Robinson

Mikania micrantha Humboldt, Bonpland, & Kunth

Mimosa invisa Martius

Mimosa pigra L. var. pigra

Monochoria hastata (L.) Solms-Laubach

Monochoria vaginalis (Burman f.) C. Presl

Nassella trichotoma (Nees) Hackel ex Arechavaleta

Opuntia aurantiaca Lindley

Orobanche spp.

Oryza longistaminata A. Chevalier & Roehrich

Oryza punctata Kotschy ex Steudel

Oryza rufipogon Griffith

Ottelia alismoides (L.) Pers.

Paspalum scrobiculatum L.

Pennisetum clandestinum Hochstetter ex Chiovenda

Pennisetum macrourum Trinius

Pennisetum pedicellatum Trinius

Pennisetum polystachion (L.) Schultes

Prosopis alapataco R. A. Philippi

Prosopis argentina Burkart

Prosopis articulata S. Watson

Prosopis burkartii Munoz

Prosopis caldenia Burkart [[Page 15260]]

Prosopis calingastana Burkart

Prosopis campestris Grisebach

Prospis castellanosii Burkart

Prosopis denudans Bentham

Prosopis elata (Burkart) Burkart

Prosopis farcta (Solander ex Russell) Macbride

Prosopis ferox Grisebach

Prosopis fiebrigii Harms

Prosopis hassleri Harms

Prosopis humilis Gillies ex Hooker & Arnott

Prosopis kuntzei Harms

Prosopis pallida (Humboldt & Bonpland ex Willdenow) Humboldt,

Bonpland, & Kunth

Prosopis palmeri S. Watson

Prosopis reptans Bentham var. reptans

Prosopis rojasiana Burkart

Prosopis ruizlealii Burkart

Prosopis ruscifolia Grisebach

Prosopis sericantha Gillies ex Hooker & Arnott

Prosopis strombulifera (Lamarck) Bentham

Prosopis torquata (Cavanilles ex Lagasca y Segura) de Candolle

Rottboellia cochinchinensis (Lour.) Clayon (=R. exaltata (L.) L. f.)

Rubus fruticosus L. (complex)

Rubus moluccanus L.

Saccharum spontaneum L.

Sagittaria sagittifolia L.

Salsola vermiculata L.

Salvinia auriculata Aublet

Salvinia biloba Raddi

Salvinia herzogii de la Sota

Salvinia molesta D.S. Mitchell

Setaria pallide-fusca (Schumacher) Stapf & Hubbard

Solanum torvum Swartz

Solanum viarum Dunal

\1\Sonchus arvensis L.

\1\Sorghum halepense (L.) Pers.

Sparganium erectum L.

Striga spp.

Tridax procumbens L.

Urochloa panicoides Beauvois

1Seeds with tolerances applicable to their prohibition.

(b) The tolerance applicable to the prohibition of the noxious weed

seeds marked above with (1) shall be two seeds in the minimum

amount required to be examined as shown in Table 1, Sec. 201.46. If

fewer than two seeds are found in an initial examination, the

shipment from which the sample was drawn may be imported. If two

seeds are found in an initial examination, a second sample must be

examined. If two or fewer seeds are found in the second examination,

the shipment from which the samples were drawn may be imported. If

three or more seeds are found in the second examination, the

shipment from which the samples were drawn may not be imported. If

three or more seeds are found in an initial examination, the

shipment from which the sample was drawn may not be imported.

Done in Washington, DC, this 15th day of March 1995.

Terry Medley,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 95-7133 Filed 3-22-95; 8:45 am]

BILLING CODE 3410-34-P