Noxious Weeds; Permits and Interstate Movement

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 360

[Docket No. 98-091-1]

Noxious Weeds; Permits and Interstate Movement

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 to clearly state

that a permit is required for the movement of noxious weeds interstate,

as well as into or through the United States. The regulations currently

provide for the issuance of permits for movements into or through the

United States, but do 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.

DATES: This interim rule is effective July 29, 1999. We invite you to

comment on this docket. We will consider all comments that we receive

by September 27, 1999.

ADDRESSES: Please send your comment and three copies to: Docket No. 98-

091-1, 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. 98-091-1.

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.

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: Dr. Randy Westbrooks, Invasive Plant

Liaison, Interagency Field Office for Invasive Species, 233 Border Belt

Drive, PO Box 279, Whiteville, NC 28472; (910) 648-6762.

SUPPLEMENTARY INFORMATION:

Background

The regulations at 7 CFR part 360 (referred to below as the

regulations) list Federal noxious weeds and require persons wishing to

move a Federal noxious weed into or through the United States to obtain

a permit. The regulations were established in 1976 under the authority

of the Federal Noxious Weed Act (FNWA) of 1974 (7 U.S.C. 2801 et seq.).

Until 1994, the FNWA prohibited the movement of any noxious weed

listed in the regulations into or through the United States, or

interstate, unless the movement was authorized by a permit and was made

in accordance with any conditions in the permit and the regulations. In

1994, Congress amended the FNWA (Pub. L. 103-465, section 431(f)). As

amended, the FNWA provides that no person may import or enter any

noxious weed listed in the regulations into or through the United

States, or move any noxious weed interstate, unless the movement is in

accordance with regulations promulgated under the FNWA.

As noted above, the regulations specifically require a permit for

the movement of any Federal noxious weed into or through the United

States, but do not specifically address interstate movements. In the

past, the Animal and Plant Health Inspection Service has not required a

permit for interstate movements originating within the United States

unless a quarantine, in conjunction with a control and eradication

program, was first established in the area of the United States where

the noxious weed existed.

Upon review of this policy, especially in circumstances where

adequate funds are not available for control and eradication programs,

or where such programs do not appear necessary or appropriate (for

example, where a Federal noxious weed previously imported under permit

is being grown in a controlled area for a specific approved use), we no

longer believe that this policy provides adequate protection against

the spread of Federal noxious weeds within the United States.

Therefore, we are amending the regulations to specifically require

a permit for the interstate movement of Federal noxious weeds. We

believe that this action is necessary to prevent the spread of Federal

noxious weeds within the United States.

Immediate Action

The Administrator of the Animal and Plant Health Inspection Service

has determined that there is good cause for publishing this interim

rule without prior opportunity for public comment. Immediate action is

necessary to prevent the artificial interstate movement of noxious

weeds to noninfested areas of the United States.

Because prior notice and other public procedures with respect to

this action are impracticable and contrary to the public interest under

these conditions, we find good cause under 5 U.S.C. 553 to make this

action effective upon publication in the Federal Register. We will

consider comments that are received within 60 days of publication of

this rule in the Federal Register. 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 as a result of the comments.

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.

In accordance with 5 U.S.C. 603, we have performed an Initial

Regulatory Flexibility Analysis, set forth below, regarding the impact

of this interim 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.

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Therefore, we are inviting comments concerning potential economic

impacts. In particular, we are interested in determining the number and

kinds of small entities that may incur benefits or costs from

implementation of this interim rule. The discussion below also serves

as the cost-benefit analysis required by Executive Order 12866.

In accordance with 7 U.S.C. 2803 and 2809, the Secretary of

Agriculture is authorized to promulgate regulations to prevent the

dissemination of any noxious weed into the United States, or

interstate. Further, under 7 U.S.C. 2803, no person shall import or

enter any noxious weed listed in the regulations into or through the

United States, or interstate, unless the movement is in accordance with

regulations.

This interim rule amends the regulations by specifically requiring

a permit for the interstate movement of Federal noxious weeds. In the

past, the Animal and Plant Health Inspection Service has not required a

permit for interstate movements originating within the United States

unless a quarantine, in conjunction with a control and eradication

program, was first established in the area of the United States where

the noxious weed existed.

Upon review of this policy, especially in circumstances where

adequate funds are not available for control and eradication programs,

or where such programs do not appear necessary or appropriate (for

example, where a Federal noxious weed previously imported under permit

is being grown in a controlled area for a specific approved use), we no

longer believe that this policy provides adequate protection against

the spread of Federal noxious weeds within the United States.

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 producers are eventually borne by consumers.

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 and

government agencies. Such costs would then likely be passed down to

consumers, who would pay more for products due to increased producer

costs.

This rule could potentially 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 this rule because they will now 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, either in the form of 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. We invite

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. (The list of Federal noxious weeds is

contained in 7 CFR 360.200, and can be found on the APHIS web site at

http://www.aphis.usda.gov/ppq/bats/fnwsbycat-e.html. Copies of the list

may also be obtained by contacting the person listed under FOR FURTHER

INFORMATION CONTACT.)

Also, 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 will be 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.

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. Since these producers are not registered with APHIS, 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. We invite the public to submit any available data on

such entities that are affected by this rule.

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 said 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. In

the near future, we plan to publish an advance notice of proposed

rulemaking (ANPR) in the Federal Register, in which we will request the

public to

[[Page 41009]]

comment on potential changes to our weed classification system. The

weed classification system to be considered in the ANPR could eliminate

the need for sellers of I. aquatica to obtain permits prior to shipping

the weed interstate.

Alternatives Considered

The only significant alternative to this interim 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 economic and ecological

consequences that we believe could result if listed Federal noxious

weeds are disseminated into noninfested areas of the United States.

This interim rule contains new information collection or

recordkeeping requirements under the Paperwork Reduction Act of 1995

(44 U.S.C. 3501 et seq.), which are described below under the heading

``Paperwork Reduction Act.''

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 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

In accordance with section 3507(j) of the Paperwork Reduction Act

of 1995 (44 U.S.C. 3501 et seq.), the information collection or

recordkeeping requirements included in this interim rule have been

submitted for emergency approval to the Office of Management and Budget

(OMB). OMB has assigned control number 0579-0054 to the information

collection and recordkeeping requirements.

Please send written comments to the Office of Information and

Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,

DC 20503. Please state that your comments refer to Docket No. 98-091-1.

Please send a copy of your comments to: (1) Docket No. 98-091-1,

Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River

Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer,

OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW.,

Washington, DC 20250. A comment to OMB is best assured of having its

full effect if OMB receives it within 30 days of publication of this

interim rule.

This interim rule amends the noxious weed 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

effective date of this rule, the regulations provided for the issuance

of permits for movements 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.

Under this interim rule, persons wishing to move listed Federal

noxious weeds interstate must first apply for a permit. We are asking

OMB to approve this information collection in connection with our

efforts to ensure that listed Federal noxious weeds are not

disseminated into noninfested areas of the United States.

We are soliciting comments from the public (as well as affected

agencies) concerning this information collection activity. We will use

these comments to help us:

(1) Evaluate whether the information collection is necessary for

the proper performance of our agency's functions, including whether the

information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the

information collection, including the validity of the methodology and

assumptions used;

(3) Enhance the quality, utility, and clarity of the information to

be collected; and

(4) Minimize the burden of the information collection on those who

are to respond (such as through the use of appropriate automated,

electronic, mechanical, or other technological collection techniques or

other forms of information technology, e.g., permitting electronic

submission of responses).

Estimate of burden: Public reporting burden for this collection of

information is estimated to average .166 hours per response.

Respondents: Researchers, owner/operators of nursery stock firms,

and backyard producers who engage in the interstate distribution of

plants (for consumption, ornamental use, or other purposes) that are

listed Federal noxious weeds.

Estimated annual number of respondents: 50.

Estimated annual number of responses per respondent: 1.

Estimated annual number of responses: 50.

Estimated total annual burden on respondents: 8 hours.

Copies of this information collection can be obtained from:

Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence

Avenue, SW., Washington, DC 20250.

List of Subjects in 7 CFR Part 360

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

Accordingly, 7 CFR part 360 would be amended 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).

2. Section 360.300 is amended as follows:

a. By revising the section heading to read as set forth below.

b. By redesignating paragraphs (a), (b), (c), and (d) as paragraphs

(b), (c), (d), and (e), respectively.

c. By adding a new paragraph (a) to read as set forth below.

d. By revising the newly redesignated paragraphs (b) and (e) to

read as set forth below.

Sec. 360.300 General prohibitions and restrictions on the movement of

noxious weeds; permits.

(a) No person may move a Federal noxious weed into or through the

United States, or interstate, unless:

(1) He or she obtains a permit for such movement in accordance with

paragraphs (b) through (e) of this section; and

(2) The movement is consistent with the specific conditions

contained in the permit.

(b) The Deputy Administrator will issue a written permit for the

movement of a noxious weed into or through the United States, or

interstate, if application is made for such movement and if the Deputy

Administrator determines that such movement, under conditions specified

in the permit, would not involve a danger of dissemination of the

noxious weed in the United States, or interstate; otherwise such a

permit will not be issued.

* * * * *

(e) The Deputy Administrator may revoke any outstanding permit

issued

[[Page 41010]]

under this section, and may deny future permit applications, if the

Deputy Administrator determines that the issuee has failed to comply

with any provision of the Act or this section, including conditions of

any permit issued. Upon request, any permit holder will be afforded an

opportunity for a hearing with respect to the merits or validity of any

such revocation involving his or her permit.

(Approved by the Office of Management and Budget under control

number 0579-0054)

Done in Washington, DC, this 23rd day of July 1999.

Alfonso Torres,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 99-19420 Filed 7-28-99; 8:45 am]

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