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###### Department of Agriculture

###### Animal and Plant Health Inspection Service 

          - 7 CFR Parts 360 and 361 
          - [Docket No. 99-064-2] 

# AGENCY:

Animal and Plant Health Inspection Service, USDA. 

# ACTION:

Final rule. 

# SUMMARY:

                        We are amending the noxious weeds regulations by adding                         *Homeria*                         spp. (cape tulips) to the list of terrestrial weeds. Listed noxious weeds may be moved into or through the United States or interstate only under a written permit and under conditions that would not involve a danger of dissemination of the weeds. This action is necessary to prevent the artificial spread of noxious weeds into noninfested areas of the United States.                     

# EFFECTIVE DATE:

June 26, 2000. 

# FOR FURTHER INFORMATION CONTACT:

Ms. Polly Lehtonen, Botanist, Permits and Risk Assessment, 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 and interstate.                 

                    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 the FSA are found in 7 CFR part 361. A list of noxious weed seeds is contained in § 361.6. Paragraph (a)(1) of § 361.6 lists species of noxious weed seeds with no tolerances applicable to their introduction into the United States.                 

                    On December 27, 1999, we published in the                     **Federal Register**                     (64 FR 72293-72296, Docket No. 99-064-1) a proposal to amend the noxious weed regulations by adding Homeria spp. (cape tulips) to the list of terrestrial noxious weeds in § 360.200(c) and to the list of seeds with no tolerances applicable to their introduction in § 361.6(a)(1).                 

We held a public hearing on the proposed rule on February 1, 2000. No one came to speak about the proposed rule. We also solicited comments concerning our proposal for 60 days ending February 25, 2000. We received one comment by that date. The comment was from a representative of a foreign government. We carefully considered the comment, and have discussed its concerns below. 

*Comment:*                     APHIS should conduct its own comprehensive review to assess the number of                     *Homeria*                     spp. already present in the United States and their distribution, by species.                 

*Response:*                     As stated in our proposed rule, APHIS has been unable to determine the number and distribution of                     *Homeria*                     spp. in the United States. Based on information available from literature and known herbarium collections, there are no known established, feral populations of                     *Homeria*                     spp. in the United States. In our proposed rule, we asked the public to provide us with information on what species of                     *Homeria*                     are being planted and where. Due to the limited resources available to fund monitoring and survey programs in regard to noxious weeds, we are unable to conduct additional reviews specific to                     *Homeria*                     spp. We will continue to monitor and conduct surveys at current levels, and as resources permit. If, in the future, we are able to determine that certain species of the genus                     *Homeria*                     have become widespread, then we will consider removing those particular species from the list of noxious weeds at that time.                 

*Comment:*                     APHIS should assess the potential for                     *Homeria*                     spp. to set seeds under the U.S. cultural practices and the potential for                     *Homeria*                     spp. to become established as weeds in agricultural areas of the United States.                 

*Response:*                     APHIS has no reason to doubt that most species of                     *Homeria*                     will set seed in the United States. Using a simulation model for predicting the effects of climate on the distribution of plants, we matched locations of infestations of                     *Homeria*                     spp. in Australia to locations with similar climate in the United States. Based on the results of the simulation, we have reason to believe that                     *Homeria*                     spp. presents a significant risk of becoming established as a weed in certain areas of the United States, especially along the west coast and in Texas.                 

                    Prolific seed production is only one indicator of high dispersal or spread potential. At least one species of the genus                     *Homeria, H. miniata*, does not produce viable seeds, but produces cormils in each leaf axil and around the developing corm at the base of the plant. The cormils may remain dormant and build up in established patches, serving as effective dispersal agents. If APHIS determines in the future that certain species of the genus                     *Homeria*                     do not produce seed or cormils, we will consider relieving restrictions on the importation of those species.                           ( print page 33742)    

*Comment:**Homeria*                     spp. may not present the same degree of risk in the United States as they have in South Africa and Australia, due probably to unique pasture and animal husbandry situations in these countries. APHIS could investigate whether                     *Homeria*                     spp. would cause any economic losses in U.S. pastures, particularly taking into account the pasture management and animal husbandry systems being used in the country.                 

*Response:*                     Again, APHIS has determined that several areas of the United States provide ideal climate conditions for the establishment of                     *Homeria*                     spp. As stated in our proposed rule, we believe there is a significant risk associated with the importation of seeds of                     *Homeria*                     spp. as contaminants of shipments of Australian oats or other varieties of seeds. We believe that such shipments provide a direct path for establishment of                     *Homeria*                     spp. in U.S. pastures, which could result in the poisoning of livestock, reduction of carrying capacity, and substantial losses for U.S. farmers.                 

                    Further, our review of the scientific literature has revealed that species of the genus                     *Homeria*                     have escaped from garden plantings in Australia and New Zealand into surrounding areas. According to the literature, dispersal occurs by the movement of corms and seeds, aided by humans, animals, wind, and water. When plants dry out at the end of the growing season, they may break off at the soil level, with seed heads attached. The dry plants then may blow around the ground surface, scattering seeds.                 

                    In the absence of any data regarding imported species of the genus                     *Homeria*                     that have become widely distributed in the United States or imported species that do not produce cormils or seeds, and 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. 604, we have performed a final regulatory flexibility analysis, which is set forth below, regarding the economic effects of this rule on small entities. 

In accordance with the FNWA, 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. 

                    This rule will add                     *Homeria*                     spp. (cape tulips) to the list of Federal noxious weeds and to the list of seeds with no tolerances applicable to their introduction.                 

*Homeria*                     spp. (cape tulips) are not known to exist in the United States in the wild. However,                     *Homeria*                     spp. have been imported into the United States under the Bulb Preclearance Program since 1994, with increasing numbers of imports each year. We estimate that over 1.8 million corms of                     *Homeria*                     spp. were received in the United States between July 1994 and March 1999. However, data on the distribution of                     *Homeria*                     spp. are not available. Persons who import or purchase                     *Homeria*                     spp., including those in the nursery trade, could be affected by this rule. However, data on the number and location of persons who import or purchase                     *Homeria*                     spp. are not available.                 

                    As stated above,                     *Homeria*                     spp. nursery stock has been imported into the United States for several years without restriction. Recently, APHIS inspectors found seeds of                     *Homeria*                     spp. in shipments of Australian oats to the United States. As a result of this finding, APHIS conducted a risk assessment to determine the potential effects of                     *Homeria*                     spp. on U.S. agriculture. The risk assessment revealed that                     *Homeria*                     spp. may present a high risk to U.S. agriculture and that                     *Homeria*                     spp. meet the criteria for listing as a Federal noxious weed.                 

                    Since imported Australian oats are likely to be used as a feed for horses and other livestock, it is likely that the                     *Homeria*                     spp. seeds could be introduced into grazing lands and paddocks, where they could do the following:                 
    - Poison livestock and/or humans. Livestock may die within 12 hours or less after ingesting the leaves.
    - Reproduce and persist in prolific fashion, thus crowding out desirable plants and competing with them for soil nutrients, reducing the carrying capacity of pastures and reducing crop yields.

                    Historical data show that, in the 1980's in South Africa, poisoning from                     *Homeria*                     spp. and a related genus resulted in losses of $2.5 to $3 million per year in livestock. All classes of livestock are susceptible, but cattle, sheep, goats, and donkeys are most likely to suffer poisoning under natural conditions. Further, since                     *Homeria*                     spp. could grow on cultivated land, they may be cut with forage and cause poisoning in stall-fed animals. If                     *Homeria*                     spp. are introduced into the United States via Australian oats, U.S. livestock producers could be expected to experience livestock losses similar to those experienced by South Africa in the 1980's.                 

## Effects on Small Entities 

                    The unchecked spread of                     *Homeria*                     spp. into the United States can be expected to have a negative economic effect on livestock operations in the United States, whether small or large, given significant negative effects on the regions in Australia and South Africa where                     *Homeria*                     spp. are already established. In responding to the potential harm caused by                     *Homeria*                     spp. to livestock and grazing lands, 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 are aware that there are persons in the nursery trade who import and distribute                     *Homeria*                     spp. nursery stock, especially corms. We have no data available on the location, number, or size of those businesses; however, it is likely that the majority of those businesses could be classified as small entities. In our proposed rule, we requested that the public provide any available data relevant to volumes and distribution of imported                     *Homeria*                     spp. nursery stock. We received no relevant data in response to our request. Further, we asked the public to provide information on the current distribution and taxonomy of                     *Homeria*                     spp. in the United States in order to determine if certain species of                     *Homeria*                     spp. are widespread, and, therefore, should be excluded from the noxious weed regulations. We received no information in response to this request, and, therefore, are adopting our proposed rule as a final rule, without change.                 

                    We believe that adding                     *Homeria*                     spp. to the list of Federal noxious weeds will help preclude potential economic and ecological consequences that could result from its spread.                 

## Alternatives Considered 

                    We considered two alternatives to this rule. One alternative was to make no changes in the regulations;                     *i.e.,*                     to not add                     *Homeria*                     spp. to the list of Federal noxious weeds. We have rejected that alternative because of the potential economic and ecological consequences that we believe would result from the spread                     *Homeria*                     spp. We also considered exempting certain species of the genus                     *Homeria*                     from being listed as noxious weeds if we received information documenting that certain                           ( print page 33743)                        species had become widely distributed in the United States. We did not receive any information on the distribution of any species of the genus                     *Homeria*, and, therefore, could not select that alternative.                 

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 final 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 final 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). 

§ 360.200 

2. In § 360.200, paragraph (c) is amended by adding, in alphabetical order, an entry for “ *Homeria*                         spp.”.                     

# 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). 

§ 361.6 

4. In § 361.6, paragraph (a)(1) is amended by adding, in alphabetical order, an entry for “ *Homeria*                         spp.”.                     

Done in Washington, DC, this 19th day of May 2000. 

Craig A. Reed, 

Administrator, Animal and Plant Health Inspection Service. 

[FR Doc. 00-13158 Filed 5-24-00; 8:45 am] 

BILLING CODE 3410-34-U