01-14867. Noxious Weeds; Permits and Interstate Movement

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Affirmation of interim rule as final rule.

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; [phone].

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.

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 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.

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 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.