This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

62419

Vol. 69, No. 206

Tuesday, October 26, 2004

1See APHIS’ Guide to the Listing Process for 

Federal Noxious Weeds at http://

www.aphis.usda.gov/ppq/weeds/listingguide.pdf.

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 360

[Docket No. 04–037–1] 

Noxious Weeds; Notice of Availability 

of Petitions To Regulate Caulerpa

AGENCY: Animal and Plant Health 

Inspection Service, USDA.

ACTION: Petitions and request for 

comments. 

SUMMARY: We are advising the public 

that the Animal and Plant Health 

Inspection Service has received two 

petitions requesting that additional 

aquatic plants of the genus Caulerpa be 

added to the list of noxious weeds. We 

are soliciting public comments on the 

petitions and the implications of 

adopting them.

DATES: We will consider all comments 

that we receive on or before December 

27, 2004.

ADDRESSES: You may submit comments 

by any of the following methods: 

• Postal Mail/Commercial Delivery:

Please send four copies of your 

comment (an original and three copies) 

to Docket No. 04–037–1, Regulatory 

Analysis and Development, PPD, 

APHIS, Station 3C71, 4700 River Road 

Unit 118, Riverdale, MD 20737–1238. 

Please state that your comment refers to 

Docket No. 04–037–1. 

• E-mail: Address your comment to 

regulations@aphis.usda.gov. Your 

comment must be contained in the body 

of your message; do not send attached 

files. Please include your name and 

address in your message and ‘‘Docket 

No. 04–037–1’’ on the subject line. 

• Agency Web Site: Go to http://

www.aphis.usda.gov/ppd/rad/

cominst.html for a form you can use to 

submit an e-mail comment through the 

APHIS Web site. 

Petitions: The petitions discussed in 

this document are available on the 

APHIS Web site at http://

www.aphis.usda.gov/ppq/weeds/ or 

from the individual listed as the contact 

for further information. 

Reading Room: You may also review 

all documents associated with this 

notice in our reading room, which 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: You may view 

APHIS documents published in the 

Federal Register and related 

information, including the names of 

groups and individuals who have 

commented on APHIS dockets, on the 

Internet at http://www.aphis.usda.gov/

ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. 

Alan V. Tasker, Noxious Weeds Program 

Coordinator, Invasive Species and Pest 

Management, PPQ, APHIS, 4700 River 

Road Unit 134, Riverdale, MD 20737–

1237; (301) 734–5225.

SUPPLEMENTARY INFORMATION: 

Background 

The Plant Protection Act (7 U.S.C. 

7701 et seq.) (PPA) 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 the 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, 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 the 

restrictions on interstate movement 

within the United States, and that any 

person may petition the Secretary to add 

a plant species to, or remove a plant 

species from, the regulations issued by 

the Secretary. 

The Animal and Plant Health 

Inspection Service (APHIS) of the U.S. 

Department of Agriculture (USDA), 

regulates the importation and interstate 

movement of noxious weeds under 7 

CFR part 360, ‘‘Noxious Weed 

Regulations’’ (referred to below as the 

regulations), which were established in 

1976 under the authority of the Federal 

Noxious Weed Act (FNWA). 

Section 360.200 of the regulations 

lists noxious weeds. In this section, 

noxious weeds are divided into three 

categories: Aquatic weeds, parasitic 

weeds, and terrestrial weeds. Listed 

noxious weeds are only eligible to be 

moved into or through the United 

States, or interstate, under a permit 

granted by APHIS. Persons who move 

noxious weeds under permit must 

follow all the conditions contained in 

the permit with regard to storage, 

shipment, cultivation, and propagation. 

There are typically five steps in 

adding a weed to the list of noxious 

weeds in § 360.200 1:

(1) Identify a weed that may meet the 

definition of a ‘‘quarantine pest’’ (a pest 

of potential economic importance to the 

area endangered thereby and not yet 

present there, or present but not widely 

distributed and being officially 

controlled); 

(2) Prepare a risk assessment that 

establishes the identity of the weed 

(scientific name, common name, 

description, etc.); verifies quarantine 

pest status; assesses habitat suitability 

in the United States, including the 

likelihood of introduction, dispersal and 

survival; provides information on 

potential environmental and economic 

impacts; characterizes pest risk (low, 

medium, high, etc.); and cites 

references; 

(3) Publish a proposed rule in the 

Federal Register; 

(4) Analyze and respond to public 

comments; and 

(5) Publish a final rule in the Federal 

Register if appropriate. 

On March 16, 1999, APHIS published 

a final rule in the Federal Register (64 

FR 12881–12884, Docket No. 98–063–2) 

adding Caulerpa taxifolia

62420 Federal Register / Vol. 69, No. 206 / Tuesday, October 26, 2004 / Proposed Rules 

2 Vascular plants have vessels in their tissues that 

carry fluids, such as water or sap. Nonvascular 

plants do not and are commonly referred to as 

‘‘lower plants’’ because they do not achieve the 

structural complexity and size of vascular plants.

(Mediterranean clone) to the list of 

aquatic weeds in § 360.200(a). This 

listing was prompted by a petition for 

action addressed to the Secretary of the 

Interior dated October 19, 1998, asking 

him to work with the USDA to list the 

Mediterranean strain as a noxious weed, 

and followed a report prepared for the 

Aquatic Nuisance Species Task Force by 

the Fish and Wildlife Service. Based on 

the report, APHIS determined that the 

Mediterranean clone met the definition 

of a quarantine pest and provided a high 

level of risk.

C. taxifolia (Mediterranean clone) has 

invaded the Mediterranean coasts of 

France and Italy and now covers 

thousands of acres of the coastal zone. 

This invasive, aquarium-bred strain 

appears to have been introduced into 

the Mediterranean Sea from the Monaco 

Aquarium in 1984. It covered 

approximately 1 square yard in 1984, 

spread to over 2 acres by 1989, and now 

covers over 10,000 acres, extending 

from the shore to depths of over 250 

feet. C. taxifolia (Mediterranean clone) 

grows on both rocky and sandy bottoms, 

from protected bays to exposed capes, 

and attains great densities, forming 

monocultural stands whose impact has 

been compared to unrolling a carpet 

across the bottom of the sea. In the 

regions where it is established, C. 

taxifolia (Mediterranean clone) has 

caused ecological devastation by 

overgrowing and eliminating native 

seaweeds, sea grasses, and invertebrates 

(such as corals, sea fans, and sponges) 

and has caused economic damage by 

harming tourism and recreational diving 

and creating a costly impediment to 

commercial fishing. No effective 

eradication strategies have been 

identified for C. taxifolia

(Mediterranean clone), partly because it 

has the ability to regenerate from small 

fragments. 

On April 29, 2003, the International 

Center for Technology Assessment sent 

APHIS a petition requesting that APHIS 

add the entire Caulerpa genus to the list 

of noxious weeds. A second petition, 

submitted by the same organization on 

April 30, 2003, requested, in the event 

the first petition was denied, that APHIS 

add all varieties of the species C. 

taxifolia to the list of noxious weeds. 

In their first petition, the petitioners 

cite several sources that provide 

information to support the listing of four 

additional species of Caulerpa to the 

noxious weed list: C. scalpelliformis, C. 

racemosa, C. verticillata, and C. 

brachypus. According to the petitioners, 

it is too difficult to tell the difference 

between species of Caulerpa due to 

their morphological variability, 

especially when tiny fragments of the 

species could be imported into the 

United States in the crevices of what are 

sold as ‘‘live rocks,’’ and because of this, 

all species of Caulerpa must be 

designated as noxious weeds. 

The second petition states that at least 

two new strains of C. taxifolia have been 

discovered in Australia. These strains, 

which lack scientific or recognized 

common names, are described by the 

petitioners as genetically distinct from 

the Mediterranean strain. The 

petitioners maintain that it would be 

impossible to list all genetically distinct 

strains of the algae as separate noxious 

weeds and, therefore, they request the 

amendment of the regulations by 

removing the parenthetical 

(Mediterranean clone) so that the 

noxious weed listing includes all 

varieties of C. taxifolia.

The scope of the regulations 

continues to expand as new invasive 

plants and new pathways for the 

introduction of invasive plants are 

brought to our attention. With few 

exceptions, APHIS has regulated only 

vascular plants that present a risk of 

introducing plant pests or posing weed 

threats to agriculture or forest resources, 

and that move via pathways that are 

traditional targets for agricultural 

inspection.2 APHIS first regulated a 

species of nonvascular plant in 1983 by 

listing invasive aquatic ferns as noxious 

weeds. The 1998 listing of C. taxifolia

(Mediterranean clone) marked the first 

time APHIS regulated a form of marine 

algae. The expanding scope of the 

noxious weed list poses new challenges 

for APHIS as unique pathways for 

marine algae, such as ‘‘live rocks,’’ live 

fish, and other mediums of transport, 

are nontraditional targets for 

agricultural inspection.

Listing all species of Caulerpa as 

noxious weeds, or even all strains of C. 

taxifolia, as requested by the petitioner, 

would also extend our regulations to 

native species, as there are one or more 

strains of C. taxifolia native to Florida 

and Hawaii. As noted above, APHIS 

lists in the regulations only those weeds 

that meet the international definition of 

a quarantine pest; i.e., ‘‘a pest of 

potential economic importance to the 

area endangered thereby and not yet 

present there, or present but not widely 

distributed and being officially 

controlled.’’ This practice is consistent 

with the International Plant Protection 

Convention (IPPC), to which the United 

States is a signatory. Under the IPPC, a 

country may prohibit or restrict 

importation of quarantine pests or, in 

the case of contaminants in plants for 

planting, regulated nonquarantine pests. 

This practice is also consistent with 

sections 414 and 415 of the PPA, which 

authorize the Secretary to take general 

remedial measures or to declare an 

extraordinary emergency if necessary to 

prevent the introduction or spread of 

plant pests or noxious weeds that are 

new to or not known to be prevalent or 

distributed widely within and 

throughout the United States.

There are other legal authorities such 

as the Nonindigenous Aquatic Nuisance 

Prevention and Control Act of 1990 (16 

U.S.C. 4701, et seq.) that apply to 

marine algae. This Act established the 

Aquatic Nuisance Species Task Force, 

co-chaired by the Departments of the 

Interior and Commerce and consisting 

of several Federal agencies, including 

the Department of Agriculture and nonFederal entities. A Task Force Working 

Group, on which APHIS participates, is 

currently developing a national 

management plan for the genus 

Caulerpa that will include a range of 

approaches to Caulerpa prevention and 

management. 

Before receiving the petitions, we 

recognized that the present listing for C. 

taxifolia (Mediterranean clone) could be 

confusing, and we planned to amend it 

in a future rulemaking. We recognized 

it might be confusing because the 

noxious weed list includes common 

names in parentheses following the 

scientific names for other noxious 

weeds. In the case of C. taxifolia,

(Mediterranean clone), we used 

parentheses to designate the regulated 

strain, not to provide a common name. 

While the term ‘‘clone’’ was in use at 

the time of the listing, ‘‘strain’’ is used 

most commonly in recent scientific 

literature. The term ‘‘killer algae’’ is in 

use as a common name. Therefore, we 

have considered changing the listing to 

Caulerpa taxifolia, Mediterranean strain 

(killer algae). We also planned to change 

the wording of the footnote in § 360.200 

to clarify that a scientific name includes 

all subordinate taxa except in the case 

of C. taxifolia, where we only regulate 

the Mediterranean strain. The footnote 

would read ‘‘Except for C. taxifolia,

scientific names include all subordinate 

taxa. For example, taxa listed at the 

genus level include all species, 

subspecies, varieties and forms within 

the genus; taxa listed at the species level 

include all subspecies, varieties and 

forms within the species. In the case of 

C. taxifolia, the listing includes only the 

Mediterranean strain.’’ We will be 

making these changes in a future 

separate rulemaking. 

Federal Register / Vol. 69, No. 206 / Tuesday, October 26, 2004 / Proposed Rules 62421

Request for Comments 

We are publishing this notice to 

inform the public that APHIS will 

accept written comments from the 

public regarding these petitions for 60 

days. This is the first time APHIS has 

published a notice of availability of 

petitions to list noxious weeds and 

sought comments. We are publishing 

these petitions and seeking comments 

because the petitions raise unusually 

complex and controversial issues. 

Issues for Discussion 

We are particularly interested in 

comments pertaining to the following 

issues. We request responses to the 

bulleted questions at the end of each 

section: 

In accordance with international 

agreements, APHIS supports all noxious 

weed listings with risk assessments 

based on data and other published 

information. Depending on the source of 

the information, the number of Caulerpa

species ranges from 70 to about 1,000. 

However, there has been little scientific 

research on Caulerpa, and many species 

have not been fully characterized. The 

petitioners requested that all species of 

Caulerpa be listed as noxious weeds 

and submitted information concerning 

four species, in addition to C. taxifolia,

that have caused harmful invasions: C. 

scalpelliformis, C. racemosa, C. 

verticillata, and C. bracypus.

• What data is there to help us 

evaluate the risks associated with nonnative species of Caulerpa other than C. 

taxifolia? 

• How many and what species of 

Caulerpa and other nonvascular plants 

are currently being imported? 

• In addition to aquatic plant 

shipments, ballast water, fishing gear, 

‘‘live rocks,’’ and live fish, what other 

pathways exist that could potentially 

facilitate the spread of C. taxifolia

(Mediterranean clone) and other 

demonstrably invasive, non-native 

Caulerpa species? 

We recognize that regulating the 

importation and interstate movement of 

marine algae is difficult. Most noxious 

weeds are introduced with common 

agricultural commodities and not in the 

marine aquarium trade. The pathways 

by which the algae may travel into the 

United States are not traditional targets 

for agricultural inspection. Among these 

potential pathways are ‘‘live rocks,’’

fishing gear, and live fish, where 

specimens may be merely fragments that 

are not clearly visible. In these cases, 

identifying the presence of C. taxifolia

(Mediterranean clone) has been 

particularly difficult. 

Currently, APHIS’s policy is to 

prohibit the entry of any plant 

intercepted at the port of entry if there 

is reason to believe that it is C. taxifolia

(Mediterranean clone). The importer or 

exporter is given an opportunity to 

establish the identity of specimens that 

resemble C. taxifolia (Mediterranean 

clone). We consider any foreign origin 

Caulerpa to be suspect. 

Expanding our noxious weed program 

to cover additional species of Caulerpa

would require additional funding, 

personnel, training, and possibly 

additional facilities and equipment as 

there is a lack of Agency expertise in the 

area of marine algae and no new funds 

automatically become available when a 

new weed is listed. It seems that, at this 

time, other Federal agencies are not able 

to provide financial or other resources 

in support. Without increased 

appropriations, the program expansion 

could divert attention and resources 

from APHIS’s current weed programs. 

• Given the difficulty of identifying 

C. taxifolia (Mediterranean clone), and 

the existence of native species of 

Caulerpa in United States waters, how 

could APHIS effectively regulate 

additional species and strains of marine 

algae? 

• If we list additional species and 

strains of non-native marine algae, how 

should our current weed program 

resources be shifted in order to regulate 

these other strains or species as well as 

currently listed noxious weeds? 

• If we list additional non-native 

species or strains of non-native marine 

algae, where should most of our existing 

resources and efforts be placed in order 

to be most effective? For example: 

Increased port of entry Inspection, 

surveying, eradication, public 

education, etc.

Authority: 7 U.S.C. 7711–7714, 7718, 7731, 

7751, and 7754; 7 CFR 2.22, 2.80, and 371.3.

Done in Washington, DC, this 21st day of 

October 2004. 

Elizabeth E. Gaston, 

Acting Administrator, Animal and Plant 

Health Inspection Service.

[FR Doc. 04–23921 Filed 10–25–04; 8:45 am] 

BILLING CODE 3410–34–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2004–19446; Directorate 

Identifier 2004–NM–130–AD] 

RIN 2120–AA64 

Airworthiness Directives; Boeing 

Model 767–200 and –300 Series 

Airplanes

AGENCY: Federal Aviation 

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to 

supersede an existing airworthiness 

directive (AD) that applies to certain 

Boeing Model 767 series airplanes. The 

existing AD currently requires repetitive 

detailed and eddy current inspections of 

the aft pressure bulkhead for damage 

and cracking, and repair if necessary. 

This proposed AD would add one-time 

detailed and high frequency eddy 

current inspections of any ‘‘oil-can’’

located on the aft pressure bulkhead, 

and related corrective actions if 

necessary. An ‘‘oil-can’’ is an area on a 

pressure dome web that moves when 

pushed from the forward side. This 

proposed AD is prompted by reports of 

cracking at ‘‘oil-can’’ boundaries on the 

aft pressure bulkhead. We are proposing 

this AD to detect and correct fatigue 

cracking of the aft pressure bulkhead, 

which could result in rapid 

depressurization of the airplane and 

possible damage or interference with the 

airplane control systems that penetrate 

the bulkhead, and consequent loss of 

controllability of the airplane.

DATES: We must receive comments on 

this proposed AD by December 10, 

2004.

ADDRESSES: Use one of the following 

addresses to submit comments on this 

proposed AD. 

• DOT Docket Web site: Go to

http://dms.dot.gov and follow the 

instructions for sending your comments 

electronically. 

• Government-wide rulemaking Web 

site: Go to http://www.regulations.gov

and follow the instructions for sending 

your comments electronically. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

room PL–401, Washington, DC 20590. 

• Fax: (202) 493–2251. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington,