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[Federal Register Volume 75, Number 217 (Wednesday, November 10, 2010)]
[Rules and Regulations]
[Pages 68945-68956]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28346]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 319, 352, 360, and 361

[Docket No. APHIS-2007-0146]
RIN 0579-AC97

Update of Noxious Weed Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations governing the importation and 
interstate movement of noxious

[[Page 68946]]

weeds by adding definitions of terms used in the regulations, adding 
details regarding the process of applying for the permits used to 
import or move noxious weeds, adding a requirement for the treatment of 
niger seed, and adding provisions for petitioning to add a taxon to or 
remove a taxon from the noxious weed lists. These changes will update 
the regulations to reflect current statutory authority and program 
operations and improve the effectiveness of the regulations. We are 
also adding seven taxa to the list of terrestrial noxious weeds and to 
the list of seeds with no tolerances applicable to their introduction. 
This action will prevent the introduction or dissemination of these 
noxious weeds into or within the United States.

DATES: Effective Date: December 10, 2010.

FOR FURTHER INFORMATION CONTACT: Dr. Alan V. Tasker, Noxious Weeds 
Program Coordinator, Emergency and Domestic Programs, PPQ, APHIS, 4700 
River Road Unit 26, Riverdale, MD 20737-1236; (301) 734-5225; or Dr. 
Arnold Tschanz, Senior Plant Pathologist, Risk Management and Plants 
for Planting Policy, RPM, PPQ, APHIS, 4700 River Road Unit 133, 
Riverdale, MD 20737-1231; (301) 734-0627.

SUPPLEMENTARY INFORMATION:

Background

    The Plant Protection Act (PPA), as amended (7 U.S.C. 7701 et seq.) 
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 restrictions on 
interstate movement within the United States. Under this authority, the 
Animal and Plant Health Inspection Service (APHIS) administers the 
noxious weeds regulations in 7 CFR part 360 (referred to below as the 
regulations), which prohibit or restrict the importation and interstate 
movement of those plants that are designated as noxious weeds in Sec.  
360.200.
    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. 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 Sec.  361.6. Paragraph (a)(1) of Sec.  361.6 
lists species of noxious weed seeds with no tolerances applicable to 
their introduction into the United States.
    On June 10, 2009, we published in the Federal Register (74 FR 
27456-27467, Docket No. APHIS-2007-0146) a proposal \1\ to make several 
changes to the regulations. Briefly, we proposed to:
---------------------------------------------------------------------------

    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0146.
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     Add definitions for terms used in the regulations and 
replace references to the Federal Noxious Weed Act with references to 
the PPA;
     Add explanatory text to clarify the listing of noxious 
weeds in Sec.  360.200;
     Provide additional detail about the requirements for 
permits to move noxious weeds in Sec.  360.300;
     Amend the regulations to require heat treatment for 
Guizotia abyssinica (niger) seed, as currently required in Sec.  
319.37-6;
     Add a section to provide information about the process for 
petitioning to add or remove a taxon from the noxious weed list;
     Add seven new noxious weeds to the list of noxious weeds 
in Sec.  360.200 and the list of noxious weed seeds in Sec.  361.6; and
     Update or correct the taxonomic designations for several 
currently listed noxious weeds.
    We solicited comments concerning our proposal for 60 days ending 
August 10, 2009. We received six comments by that date. They were from 
a private citizen, a seed organization, a biotechnology industry 
organization, researchers, and a representative of a State government. 
The issues they raised that are germane to the proposed rule are 
discussed below by topic.

Concurrence From States in Approving Noxious Weed Permits

    We proposed to add to the regulations new Sec. Sec.  360.301 
through 360.305 to provide additional information about the 
requirements for permits to import or move noxious weeds. Proposed 
Sec.  360.304 contained information about denial and cancellation of 
permits.
    In paragraph (a) of proposed Sec.  360.304, we proposed to provide 
that the Administrator could deny an application for a permit to move a 
noxious weed when the Administrator has determined that, among other 
things, a State plant regulatory official objects to the issuance of 
the permit on the grounds that granting the permit will pose a risk of 
dissemination of the noxious weed into the State. However, we went on 
to note that, under the proposed regulations, the Administrator would 
have the option to approve a permit for movement of a noxious weed even 
if a State plant regulatory official objected to the issuance of a 
permit--for example, if the Administrator determined that the 
safeguards specified in the permit were adequate to address the risk of 
dissemination.
    One commenter stated that the approval of a permit when a State 
plant regulatory official objected to the approval could potentially 
put an importer in an unfortunate position between APHIS and a State 
authority. The commenter stated that APHIS needs to reach positive 
resolution with the States when deciding to approve permits to avoid 
putting the importer in a bind.
    APHIS' decisions on whether to grant a permit take into account the 
views of the State, but ultimately APHIS has the final authority to 
grant or deny an application for a permit. However, in all cases, APHIS 
attempts to come to a positive resolution of any difference of opinion 
with a State plant health official, as the commenter recommends. Our 
State plant health cooperators are key to the successful enforcement 
and functioning of the Federal noxious weed regulations. In practice, 
we would rarely act contrary to States' concerns regarding issuing a 
permit for the importation or interstate movement of taxa listed as 
Federal noxious weeds, and we would provide information to specifically 
support issuing the permit if we were to do so.

[[Page 68947]]

New Section With Treatment for Niger Seed

    We proposed to add a new Sec.  360.400 indicating that Guizota 
abysinnica (niger) seed is required to be treated. This requirement is 
found in our regulations governing the importation of nursery stock in 
Sec.  319.37-6; we proposed to duplicate the conditions that are 
specified in that section in proposed Sec.  360.400, as most niger seed 
is not imported for use as nursery stock but as birdseed.
    (NOTE: In an interim rule published and effective on October 19, 
2009 (74 FR 53397-53400, Docket No. APHIS-2008-0097), we added a new 
Sec.  360.400 to codify the preemptive effects of the regulations in 
part 360. This final rule redesignates Sec.  360.400 as Sec.  360.600 
to accommodate the new provisions we proposed to add in June 2009.)
    One commenter stated that it is not entirely clear why proposed 
Sec.  360.400 was included with the noxious weed regulations, given 
that G. abysinnica is not listed as a noxious weed.
    Although G. abysinnica itself is not a noxious weed, imported lots 
of G. abysinnica are commonly contaminated with various noxious weed 
seeds, including Cuscuta spp. We have determined that heat treatment 
effectively mitigates the risk associated with noxious weed seeds in 
lots of G. abysinnica. Because G. abysinnica is not typically imported 
for use as nursery stock, importers may not know to look in the nursery 
stock regulations in Sec.  319.37-6 to find the requirements for its 
importation. Importers of seed more commonly look at the requirements 
in parts 360 and 361. Indicating that G. abysinnica must be heat 
treated for noxious weed seeds in part 360 will make this requirement 
more prominent to its intended audience and thus improve the clarity 
and effectiveness of the regulations.

Petitions To Add a Taxon to or Remove a Taxon From the Noxious Weed 
Lists

    APHIS accepts petitions to add a taxon to or remove a taxon from 
the noxious weed lists in Sec.  360.200. Although we provide some 
information about the petition process on APHIS' noxious weeds Web 
site,\2\ the regulations have not contained any information about this 
process. We proposed to add new Sec. Sec.  360.500 and 360.501 to 
provide such information.
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    \2\ At http://www.aphis.usda.gov/plant_health/plant_pest_info/weeds/index.shtml.
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    In both sections, we proposed to encourage petitioners to provide 
several pieces of information along with their petitions. Providing 
such information can help speed up the review process and help APHIS 
determine whether the specified plant taxon should be listed as a 
noxious weed. However, we did not propose to require that such 
information be provided.
    One commenter characterized our proposal to request information as 
a list of criteria for adding or removing a taxon from the list of 
noxious weeds, and stated that it is not clear whether or not all 
criteria need to be met in order to add or remove taxa. The commenter 
expressed concern that justifying additions solely on the basis of one 
criterion (such as potential economic impacts) could result in a 
noxious weed list populated with plant species that are not noxious 
from a biological or ecological perspective. The commenter asked us to 
add language to these sections stating that all criteria must be 
addressed and considered in any petition to add (or remove) taxa to the 
noxious weed list.
    This commenter also stated that the proposed regulations do not 
include any discussion regarding how APHIS will evaluate petitions to 
add a taxon to or remove a taxon from the noxious weed lists, or 
communicate their decisions to the public. The commenter recommended 
that APHIS establish a transparent process or procedures by which APHIS 
will conduct these evaluations and communicate decisions to the public. 
The commenter also recommended that these procedures include a 
sufficient comment period (up to 180 days) to give stakeholders who may 
be impacted an opportunity to respond to petitions and provide input.
    The various types of information we proposed to request are not a 
comprehensive set of criteria for listing a taxon as a noxious weed or 
removing a taxon from the list of noxious weeds; rather, we proposed to 
request information we would find useful in investigating whether or 
not a plant should be listed as a noxious weed. We did not propose to 
require petitioners to include all the different types of information 
we requested because that information may not be available to the 
petitioner. Accordingly, we are not taking the commenter's suggestion 
to require petitioners to provide all this information.
    If we receive a petition to list a taxon as a noxious weed or to 
remove a taxon from the list of noxious weeds, we will communicate with 
the petitioner regarding whether we are proceeding with a weed risk 
assessment (WRA), and, if not, why not.
    We conduct our WRAs in accordance with our Weed-Initiated Pest Risk 
Assessment Guidelines for Qualitative Assessments, regardless of 
whether the assessment is triggered by a petition, through research and 
identification of a potential noxious weed, or discovery of an outbreak 
or introduction of a potential noxious weed. These guidelines are 
available on the Web at http://www.aphis.usda.gov/plant_health/plant_pest_info/weeds/downloads/wra.pdf. These guidelines are consistent 
with the International Plant Protection Convention's (IPPC) 
International Standard for Phytosanitary Measures (ISPM) No. 2, 
``Framework for pest risk analysis.'' \3\ If we perform a WRA in 
response to a petition, we will review all the information supplied by 
the petitioner as part of this process; we will also review other data 
sources to ensure that our conclusions regarding the taxon in question 
are based on the broadest possible base of information.
---------------------------------------------------------------------------

    \3\ To view this ISPM on the Internet, go to http://www.ippc.int/IPP/En/default.jsp and click on the ``Adopted ISPMs'' 
link under the ``Standards (ISPMs)'' heading.
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    If our WRA and any other analysis we may conduct indicate that a 
taxon should be listed as a noxious weed, we will publish an interim 
rule or proposed rule in the Federal Register to amend the list of 
noxious weeds in Sec.  360.200 and, if appropriate, the list of noxious 
weed seeds in part 361. Such publication provides both public notice 
and a period during which stakeholders who may be impacted can provide 
input. We will make the WRA and any other analysis we may conduct 
available along with the interim rule or proposed rule. We typically 
provide for a comment period of 60 days on interim rules and proposed 
rules; however, we have the option to allow for a longer comment period 
should circumstances warrant it.
    We proposed to add a new Sec.  360.500 to provide information about 
the process of adding a taxon to the noxious weed list. Among other 
things, we proposed to encourage petitioners to provide the following 
information about the potential consequences of the taxon's 
introduction or spread:
     The taxon's habitat suitability in the United States 
(predicted ecological range);
     Dispersal potential (biological characteristics associated 
with invasiveness);
     Potential economic impacts (e.g., potential to reduce crop 
yields, lower commodity values, or cause loss of markets for U.S. 
goods); and
     Potential environmental impacts (e.g., impacts on 
ecosystem processes, natural community composition or structure, human 
health, recreation

[[Page 68948]]

patterns, property values, or use of chemicals to control the taxon).
    Referring to the request for information about potential economic 
impacts of a taxon petitioned to be listed as a noxious weed, one 
commenter stated that the use of such information could result in 
petitions for classifying certain genetically engineered (GE) crop 
species as noxious weeds. APHIS' Biotechnology Regulatory Services 
(BRS) program regulates GE organisms, and the commenter assumed that 
BRS will use the noxious weed authority of the PPA when such issues 
arise with GE crops. To ensure consistency, the commenter recommended 
that PPQ and BRS coordinate to ensure that these regulations will be 
uniformly interpreted when such issues arise. If there is not 
consistency, the commenter stated, it is conceivable that a petitioner 
could apply to both PPQ and BRS to list (or delist) the same taxon and 
end up with different results.
    We agree with the commenter's recommendation that PPQ and BRS 
coordinate when we receive petitions to list GE crops as noxious weeds. 
PPQ and BRS regularly discuss such issues and will continue to do so. 
It should be noted that, currently, BRS regulates GE organisms only 
under the plant pest authority of the PPA.
    One commenter stated that, while the information requested will be 
necessary to determining whether to list a taxon as a noxious weed, 
certain baseline information will also be required and should also be 
specifically referenced in the regulations. As an initial matter, the 
commenter stated, information must be provided to show that the plant 
in question causes injury recognized under the PPA and the IPPC. The 
commenter quoted the Background section of a proposed rule regarding 
the importation and interstate movement of GE organisms published in 
the Federal Register on October 9, 2008 (73 FR 60008-60048, Docket No. 
APHIS-2008-0023), which stated that the first consideration in 
determining whether a plant is a noxious weed is identifying what 
direct injury or damage (physical harm) the plant causes.
    While we proposed in Sec.  360.500 to request that petitioners 
provide information regarding the potential economic and environmental 
impacts of spread of the plant in question, we did not propose to 
request or require information regarding the injury the offending plant 
may inflict. The commenter stated that, while in many instances this 
information will be obvious, it is nevertheless essential to a noxious 
weed determination and must not be overlooked. In all cases, the 
commenter stated, APHIS must first make an initial finding of physical 
harm caused by the plant at issue; only then may APHIS continue the 
risk assessment and risk mitigation process to determine whether 
further regulation is appropriate.
    We have determined that it is not necessary to require that 
petitioners provide information about the direct harm caused by a taxon 
in a petition to list a taxon as a noxious weed. Such information may 
not be available to the petitioner; for example, a petitioner might 
notice unchecked growth of a weed in an area without knowing the 
precise means by which the weed was displacing native vegetation.
    As discussed earlier, after receiving a petition, we consider all 
available information relating to that taxon, not just the information 
provided in the petition, and we conduct our weed risk assessments in 
accordance with our Weed-Initiated Pest Risk Assessment Guidelines for 
Qualitative Assessments. These guidelines provide specific examples of 
what we mean by potential economic impacts and potential environmental 
impacts. Potential economic impacts include, but are not limited to:
     Reduced crop yield (e.g., by parasitism, competition, or 
by harboring other pests).
     Lower commodity value (e.g., by increasing costs of 
production, lowering market price, or a combination); or if not an 
agricultural weed, by increasing costs of weed control.
     Loss of markets (foreign or domestic) due to presence of a 
new quarantine pest.
    Potential environmental impacts include, but are not limited to, 
considerations of whether the weed, if introduced, could:
     Cause impacts on ecosystem processes (alteration of 
hydrology, sedimentation rates, a fire regime, nutrient regimes, 
changes in productivity, growth, yield, vigor, etc.).
     Cause impacts on natural community composition (e.g., 
reduce biodiversity, affect native populations, affect endangered or 
threatened species, impact keystone species, impact native fauna, 
pollinators, or microorganisms, etc.).
     Cause impacts on community structure (e.g., change density 
of a layer, cover the canopy, eliminate or create a layer, impact 
wildlife habitats, etc.).
     Have impacts on human health such as allergies or changes 
in air or water quality.
     Have sociological impacts on recreation patterns and 
aesthetic or property values.
     Stimulate control programs including toxic chemical 
pesticides or introduction of a nonindigenous biological control agent.
    Risk ratings are then determined based on how many of the impacts 
are posed by the taxon (except for taxa that affect endangered or 
threatened species, which are always rated high risk for environmental 
impacts). The WRA process thus considers in detail the direct injury or 
damage the plant may cause. We believe this satisfies the commenter's 
overall concern that the direct injury or damage caused by a plant 
should be considered in determining whether to list it as a noxious 
weed.

Additions to the Lists of Terrestrial Noxious Weeds and Noxious Weed 
Seeds

    We proposed add seven new taxa to the list of terrestrial noxious 
weeds in Sec.  360.200(c) and to the list of noxious weed seeds with no 
tolerances applicable to their introduction in Sec.  361.6(a)(1). 
Commenters who addressed these additions supported them.
    One commenter stated that the addition of the seven new taxa could 
have indirect adverse consequences on seed production. The commenter 
stated that many companies have overseas operations in which seed is 
produced in a foreign country and shipped back to the United States for 
sale in the United States or for value-adding and repackaging for re-
export. Some producers' offshore production sites likely could be in 
areas where these taxa are endemic, the commenter stated, and several 
of the new taxa, such as Arctotheca calendula, Ageratina riperia, 
Euphorbia terracina, Onopordum acaulon, and O. illyricum, could impact 
grass seed production as well as row crop and vegetable crop seed 
production. If these new taxa, or whenever any new taxa, are added to 
the noxious weed list, the commenter requested that we provide detailed 
information on the occurrence and distribution of these taxa, as well 
as specific information on their seed morphology and biology, so that 
seed production companies can implement measures to minimize 
contamination of seed in those production areas where these taxa pose a 
threat.
    We list taxa as noxious weeds based on the risk they pose, not on 
their geographical distribution. We provided the information we have on 
the international distribution, seed

[[Page 68949]]

morphology, and biology of these weeds in the WRAs that were provided 
along with the proposed rule on Regulations.gov (see footnote 1 for 
instructions on accessing Regulations.gov). Because these weeds have 
significant effects on agricultural production and the environment, as 
discussed in the WRAs, seed producers will likely know whether these 
noxious weeds are present in or near their production facilities; for 
economic reasons, we presume that they would take appropriate steps to 
prevent contamination of their seed with seeds of these weeds.
    We proposed to list A. calendula (capeweed) as a noxious weed. In 
the proposed rule, we stated that A. calendula is currently present in 
California and that a purple-flowered, seed-producing type of A. 
calendula is regulated by the State. A sterile, vegetatively 
reproducing yellow-flowered type is not currently regulated by the 
State of California, but is noted by some to spread from cultivation 
into wild or managed environments. In addition, absent inflorescence, 
identifying a plant as a member of one type or another of A. calendula 
can be difficult. We invited public comment on whether it is 
appropriate to regulate the entire species A. calendula, as we proposed 
to do, or whether we should only regulate the purple-flowered, seed-
producing type.
    Two commenters addressed this issue. One stated that the less 
noxious form (we described it as yellow-flowered, while the commenter 
described it as orange-flowered) is indistinguishable from the purple-
flowered form when not in flower. The commenter pointed out that 
enforcement would be difficult if only one form is regulated, and 
recommended that we add the entire species to the list.
    Another commenter agreed with this comment and added other points 
to consider when determining whether to regulate the entire species:
     The commenter stated that the infertile type is also 
invasive. According to one report from the California Invasive Plant 
Inventory (http://www.cal-ipc.org), it is more competitive than the 
fertile form. It can escape cultivation by creeping stolons and spread 
aggressively.
     The commenter asked whether purple flower color is always 
linked to fertile seed production and whether this is always a reliable 
characteristic for determining the type of capeweed.
     The commenter asked whether the genetic basis of seed 
infertility in the sterile type is understood. If yes, the commenter 
asked, is the sterility stable? Or is it capable of reverting to 
fertility under certain circumstances or can it cross with the fertile 
type?
     The commenter stated that the sterile type is just as 
potentially toxic to sheep, cattle, pigs and horses as the fertile 
type, due to presence of nitrates.
    Since the publication of the proposed rule, we have found more 
information about the botanical classification of what we characterized 
as the fertile and sterile types of A. calendula. These are actually 
two different species; A. calendula is the fertile type, while the 
sterile type has been designated A. prostrata (creeping capeweed).\4\ 
There are morphological differences between the two species that make 
it practical to distinguish them for enforcement purposes, as well.
---------------------------------------------------------------------------

    \4\ See the Draft of the Second Edition of the Jepson Manual: 
Vascular Plants of California; and Tropicos, the database of the 
Missouri Botanical Garden. http://mobot.mobot.org/cgi-bin/search_vast (accessed August 24, 2010).
---------------------------------------------------------------------------

    As we had proposed to regulate A. calendula as a noxious weed on 
the basis of the damage caused by what we had characterized as the 
fertile type, we are adding A. calendula to the list of terrestrial 
noxious weeds and to the list of noxious weed seeds with no tolerances 
applicable to their introduction, as we proposed. We will evaluate A. 
prostrata separately to determine whether it, too, needs to be added to 
those lists, with the information and questions provided by the second 
commenter in mind.
    One commenter, citing the ``no tolerances applicable to their 
introduction'' language, stated that this terminology strongly 
indicates that there is a zero tolerance for noxious weed seed 
contaminants in seed consignments. The commenter understood the basis 
for zero tolerance, but also recognizes that achieving this level of 
risk reduction will at times be very difficult. The commenter asked 
that APHIS seek input from the seed industry on the development of a 
rational tolerance for noxious weed seed contaminants that is 
achievable by the industry. The commenter also asked that APHIS add 
language to this section stating that whenever noxious weed seed 
contaminants are detected in seed consignments, companies will be given 
the option of recleaning and re-inspection according to established 
APHIS procedures and protocols, and that destruction or re-export will 
be considered a last option.
    The commenter refers to existing text from Sec.  361.6(a)(1) 
regarding seeds with no tolerances applicable to their introduction 
that we were discussing in the Background section of the proposal. 
Within Sec.  361.6, paragraph (c) discusses how certain seed may not be 
counted toward the tolerance (for example, damaged seed). However, it 
is important to prevent even one individual, viable seed of taxa listed 
in Sec.  361.6(a)(1) from entering the United States, as these taxa 
have been determined to be capable of causing agricultural and 
environmental damage should they be introduced into the United States. 
Thus, the zero-tolerance standard is appropriate for these taxa. We are 
making no changes in response to this comment.

Common Names

    One commenter addressed the common names of noxious weeds. With 
regard to the seven taxa we proposed to add to the list of terrestrial 
noxious weeds and to the list of noxious weed seeds with no tolerances 
applicable to their introduction, the commenter noted that the common 
names we included with the scientific names in the proposed regulatory 
text often differed from those in the USDA's PLANTS Web site (http://plants.usda.gov). The commenter stated that it would be less confusing 
if the proposed regulatory text and the PLANTS Web site agreed on 
common names, and that using the most common usage would better serve 
the general public and others.
    Common names, including those on the PLANTS Web site, are 
unofficial. It is often difficult to determine the most common usage, 
which varies worldwide. For these reasons, we rely on the scientific 
name of a taxon, which is the internationally recognized scientific 
standard, as the official name for regulatory purposes. We list a 
common name for the convenience of nonspecialists.
    APHIS normally lists the most recent common name found in one or 
more of three sources. The Weed Science Society of America (WSSA) 
publishes a Composite List of Weeds with their officially recognized 
common names, which APHIS would normally use. WSSA lists few of the 
weeds we proposed to add because of their lack of distribution in the 
United States. Since the preparation of the WRAs, WSSA has added 
several of the species we proposed to add to the list of noxious weeds 
to its Composite List of Weeds. Other sources of common names are the 
Germplasm Resources Information Network (GRIN) and the Integrated 
Taxonomic Information System (ITIS) database. PLANTS tends to favor 
names in ITIS.
    In this final rule, we are changing common names to match WSSA 
where names have been recognized since the

[[Page 68950]]

original draft. In cases where WSSA does not list a common name, we 
have compared GRIN and ITIS and changed to names listed in both 
databases, where available. The following table summarizes the proposed 
common names, the common names provided in the references listed above, 
and the changes in the final rule.

                                                  Table 1--Common Names of Seven New Noxious Weed Taxa
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Scientific name             Proposed rule           WSSA                 GRIN                ITIS               PLANTS            Final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acacia nilotica................  prickly acacia....  (no common name     acacia [agrave]      gum arabic tree...  gum arabic tree...  gum arabic tree,
                                                      listed).            gomme, acacia                                                thorny acacia.
                                                                          gomifera,
                                                                          arabische
                                                                          Gummiakazie, babul
                                                                          acacia, Egyptian
                                                                          acacia, gommier
                                                                          rouge, Indian gum-
                                                                          arabic-tree,
                                                                          lekkeruikpeul,
                                                                          scented-thorn,
                                                                          thorn-mimosa,
                                                                          thorny acacia.
Ageratina riparia..............  mistflower........  creeping            creeping             creeping            spreading           creeping
                                                      croftonweed.        croftonweed,         croftonweed, mist   snakeroot.          croftonweed,
                                                                          hamakua pamakani,    flower, spreading                       mistflower.
                                                                          mistblom,            snakeroot.
                                                                          mistflower, river
                                                                          eupatorium.
Arctotheca calendula...........  capeweed..........  capeweed..........  Capeweed, venidium.  Cape weed,          Capeweed..........  capeweed (no
                                                                                               capeweed.                               changes).
Euphorbia terracina............  false caper.......  Geraldton           false caper,         Geraldton           Geraldton           false caper,
                                                      carnationweed.      Geraldton            carnation weed.     carnation weed.     Geraldton
                                                                          carnation-spurge,                                            carnation weed.
                                                                          Geraldton
                                                                          carnation-weed,
                                                                          leiteira.
Inula britannica...............  British elecampane  British elecampane  British elecampane,  British yellowhead  British yellowhead  British
                                                                          ou ya xuan fu hua,                                           elecampane,
                                                                          xuan fu hua,                                                 British
                                                                          British yellowhead.                                          yellowhead.
Onopordum acaulon..............  stemless thistle..  (no common name     cardo, horse         (no common name     (no common name     stemless thistle
                                                      listed).            thistle, stemless    listed).            listed).            (no changes).
                                                                          onopordon,
                                                                          stemless thistle.
Onopordum illyricum............  Illyrian thistle..  Illyrian thistle..  cardo-               Illyrian            Illyrian             Illyrian thistle
                                                                          il[iacute]rico,      cottonthistle.      cottonthistle.      (no changes).
                                                                          Illyrian thistle.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    We also proposed to make several nomenclature changes for taxa 
currently listed as terrestrial noxious weeds and as noxious weed seeds 
with no tolerances applicable to their introduction. Among these 
changes, we proposed to update the regulations by removing the entry 
for Homeria spp. from both Sec. Sec.  360.200(c) and 361.6(a)(1) and 
adding entries for Moraea collina, M. flaccida, M. miniata, M. 
ochroleuca, and M. pallida in its place.
    The commenter stated that the common names we proposed to use for 
the Moraea species are contrived and confusing. In the proposed rule, 
M. flaccida is called the one-leaf Cape tulip, but most of the others 
also have one leaf. M. collina is called the apricot tulp, but other 
species are similarly colored, and likewise M. ochroleuca is called the 
red tulp even though it has yellow flowers. The commenter stated that 
it appears that ``tulp'' is a typographical error, and will appear to 
be an error to many others. To reduce confusion, the commenter 
recommended that all of the species be called ``Cape tulip,'' similar 
to how Salvinia spp. are all called ``giant salvinia'' on the present 
list, or that they be listed without common name as with Cuscuta and 
Prosopis species on the current list.
    As noted earlier, we rely on the scientific name of a taxon as the 
official name for regulatory purposes. We list a common name for the 
convenience of non-specialists. ``Tulp'' is the Dutch and Afrikaans 
word for ``tulip'' and is thus in common use internationally.
    We conducted a review of the common names of the new Moraea spp. 
similar to the one conducted for the common names of the seven new 
taxa. The results of this review are shown in table 2.

                                                      Table 2--Common Names of Five Moraea Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Wiersema &
       Scientific name           Proposed rule        Leon\1\            WSSA              GRIN             ITIS            PLANTS         Final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Moraea collina (=Homeria       apricot tulp....  (no common name   (no common name   (no common name  (no common name  Cape tulip.....  apricot Cape-
 collina).                                        listed).          listed).          listed).         listed).                          tulip.
Moraea flaccida (=Homeria      one-leaf Cape-    one-leaf Cape-    (no common name   one-leaf Cape-   (no common name  (no common name  one-leaf Cape-
 flaccida).                     tulip.            tulip.            listed).          tulip.           listed).         listed).         tulip (no
                                                                                                                                         changes).
Moraea miniata (=Homeria       two-leaf Cape-    two-leaf Cape-    (no common name   two-leaf Cape-   (no common name  (no common name  two-leaf Cape-
 miniata).                      tulip.            tulip.            listed).          tulip.           listed).         listed).         tulip (no
                                                                                                                                         changes).

[[Page 68951]]

 
Moraea ochroleuca (=Homeria    red tulp........  red tulp........  (no common name   red tulp.......  (no common name  (no common name  red Cape-tulip.
 ochroleuca).                                                       listed).                           listed).         listed).
Moraea pallida (=Homeria       yellow tulp.....  yellow tulp.....  (no common name   yellow tulp....  (no common name  (no common name  yellow Cape-
 pallida).                                                          listed).                           listed).         listed).         tulip.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wiersema, J.H. and Leon, Blanca. 1999. World economic plants: A standard reference. p. 261.

    Based on this review, we are changing the common name for M. 
collina to ``apricot Capetulip,'' to be more consistent with the PLANTS 
database while ensuring that M. collina can be differentiated from the 
other regulated Cape-tulip. We also recognize that U.S. regulated 
entities may not be familiar with the term ``tulp,'' and that listing 
all the new Moraea spp. as some variety of ``Cape-tulip'' would help to 
ensure consistency in naming the genus. For that reason, we have 
changed the proposed common name of M. ochroleuca, ``red tulp,'' to 
read ``red Cape-tulip,'' in this final rule and we have changed the 
proposed common name of M. pallida, ``yellow tulp,'' to read ``yellow 
Cape-tulip'' in this final rule.

Miscellaneous Change

    We proposed to revise current Sec.  360.300. Proposed paragraph (a) 
in Sec.  360.300 stated that no person may move a Federal noxious weed 
into or through the United States, or interstate, unless he or she 
applies for a permit to move a noxious weed in accordance with Sec.  
360.301, the permit application is approved, and the movement is 
consistent with the specific conditions contained in the permit. 
Proposed paragraph (b) of Sec.  360.300 stated that persons who move 
noxious weeds into or through the United States, or interstate, without 
complying with those conditions will be subject to such criminal and 
civil penalties as are provided by the Plant Protection Act (7 U.S.C. 
7701 et seq.).
    We are not including proposed paragraph (b) in this final rule, as 
it is not necessary to state explicitly in the regulations that 
violations of the regulations are subject to the penalties prescribed 
in the act under whose authority they are promulgated. The requirements 
in proposed paragraph (a) and its subparagraphs (a)(1) through (a)(3) 
appear in this final rule as undesignated introductory text for Sec.  
360.300 and as paragraphs (a) through (c), respectively.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Federal Preemption

    On May 20, 2009, the President issued a memorandum to the heads of 
executive departments and agencies on the subject of preemption. The 
memorandum states that it is the general policy of the Administration 
that preemption of State law by executive departments and agencies 
should be undertaken only with full consideration of the legitimate 
prerogatives of the States and with a sufficient legal basis for 
preemption. The memorandum further states:
    To ensure that executive departments and agencies include 
statements of preemption in regulations only when such statements have 
a sufficient legal basis:
     Heads of departments and agencies should not include in 
regulatory preambles statements that the department or agency intends 
to preempt State law through the regulation except where preemption 
provisions are also included in the codified regulation.
     Heads of departments and agencies should not include 
preemption provisions in codified regulations except where such 
provisions would be justified under legal principles governing 
preemption, including the principles outlined in Executive Order 13132.
    Since 1996, Executive Order 12988, ``Civil Justice Reform,'' has 
required agencies to include in each regulation a statement regarding 
its preemptive effects. APHIS has included a statement of preemptive 
effects in regulatory preambles under the heading ``Executive Order 
12988.''
    In compliance with the May 2009 memorandum from the White House, we 
are adding preemption provisions to part 352 that apply to this rule, 
as well as to the existing regulations in part 352. Preemption 
provisions have already been added to parts 319, 360, and 361.
    Part 352 contains safeguarding regulations for the movement through 
the United States of plants, plant products, plant pests, soil, and 
other products and articles that may be infested or infected by or 
contain plant pests or noxious weeds.
    Under section 436 of the Plant Protection Act (7 U.S.C. 7756), no 
State or political subdivision of a State may regulate in foreign 
commerce any article, means of conveyance, plant, biological control 
organism, plant pest, noxious weed, or plant product in order to 
control a plant pest or noxious weed, to eradicate a plant pest or 
noxious weed, or to prevent the introduction or dissemination of a 
biological control organism, plant pest, or noxious weed. Therefore, in 
accordance with section 436 of the Plant Protection Act, the 
regulations in part 352 preempt all State and local laws and 
regulations that are inconsistent with or exceed the regulations in 
part 352.
    Accordingly, in this final rule, we are adding a new paragraph (d) 
in Sec.  352.2 to codify the preemptive effects of the regulations in 
part 352. To reflect this change, we have renamed Sec.  352.2 
``Purpose; relation to other regulations; applicability; preemption of 
State and local laws.''

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. As 
described in the economic analysis, the majority of producers, 
importers, and merchants that may be affected by the final rule are 
small entities. However, there is no evidence of any significant trade 
in the seven taxa that are being added to the list of noxious weeds, 
and the other changes in the final rule serve to clarify

[[Page 68952]]

the regulations and improve their effectiveness. Under these 
circumstances, the Administrator of the Animal and Plant Health 
Inspection Service has determined that this action will not have a 
significant economic impact on a substantial number of small entities.
    The full economic analysis may be viewed on the Regulations.gov Web 
site. (See footnote 1 in this document for a link to the analysis on 
Regulations.gov.) In addition, copies may be obtained by calling or 
writing to the individual listed under FOR FURTHER INFORMATION CONTACT.

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 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

7 CFR Part 352

    Customs duties and inspection, Imports, Plant diseases and pests, 
Quarantine, Reporting and recordkeeping requirements, Transportation.

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.

0
Accordingly, we are amending 7 CFR parts 319, 352, 360, and 361 as 
follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

    Authority:  7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 
136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

Sec.  319.37-6  [Amended]

0
2. In Sec.  319.37-6, paragraph (c) is amended by adding the words 
``must be treated'' after the word ``States''.

PART 352--PLANT QUARANTINE SAFEGUARD REGULATIONS

0
3. The authority citation for part 352 continues to read as follows:

    Authority:  7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 
136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.

0
4. Section 352.2 is amended as follows:
0
a. By revising the section heading to read as set forth below.
0
b. In paragraph (a) introductory text, in the first sentence, by adding 
the words ``noxious weeds,'' after the words ``plant pests,''; and by 
removing the words ``319 and 330'' and adding the words ``319, 330, and 
360'' in their place.
0
c. In paragraph (b), by removing the words ``319 or 330'' and adding 
the words ``319, 330, or 360'' in their place.
0
d. By adding a new paragraph (d) to read as set forth below.

Sec.  352.2  Purpose; relation to other regulations; applicability; 
preemption of State and local laws.

* * * * *
    (d) Under section 436 of the Plant Protection Act (7 U.S.C. 7756), 
a State or political subdivision of a State may not regulate in foreign 
commerce any article, means of conveyance, plant, biological control 
organism, plant pest, noxious weed, or plant product in order to 
control a plant pest or noxious weed, to eradicate a plant pest or 
noxious weed, or to prevent the introduction or dissemination of a 
biological control organism, plant pest, or noxious weed.

Sec.  352.3  [Amended]

0
5. Section 352.3 is amended as follows:
0
a. In paragraphs (a) and (b), by adding the words ``noxious weeds,'' 
after the words ``plant pests,'' each time they occur.
0
b. In paragraph (d), by adding the words ``or noxious weed'' before the 
word ``dissemination.''

Sec.  352.5  [Amended]

0
6. Section 352.5 is amended as follows:
0
a. By adding the words ``noxious weeds,'' after the words ``plant 
pests,'' each time they occur.
0
b. In paragraph (d), by adding the words ``, 330, and 360'' after the 
words ``parts 319'' each time they occur.

Sec.  352.6  [Amended]

0
7. Section 352.6 is amended as follows:
0
a. In paragraph (a), by adding the words ``(including noxious weeds)'' 
before the period at the end of the paragraph heading.
0
b. In paragraph (e), by adding the words ``or noxious weed'' before the 
word ``dissemination'' each time it occurs.

Sec.  352.7  [Amended]

0
8. Section 352.7 is amended by adding the words ``(including noxious 
weeds)'' after the word ``products'' the first time it occurs.

Sec.  352.9  [Amended]

0
9. Section 352.9 is amended by adding the words ``noxious weeds,'' 
after the words ``plant pests,''.

Sec.  352.10  [Amended]

0
10. Section 352.10 is amended as follows:
0
a. In paragraphs (a) and (b)(1), by removing the words ``part 319 or 
330'' each time they occur and adding the words ``parts 319, 330, or 
360'' in their place.
0
b. In paragraphs (b)(1), (b)(2), and (c), by adding the words ``or 
noxious weed'' before the word ``dissemination'' each time it occurs.
0
c. In paragraph (b)(2), by removing the words ``319 or 330'' and adding 
the words ``319, 330, or 360'' in their place.

Sec.  352.11  [Amended]

0
11. In Sec.  352.11, paragraph (a)(1) is amended by adding the words 
``noxious weeds,'' after the words ``plant pests,''.

Sec.  352.13  [Amended]

0
12. Section 352.13 is amended as follows:
0
a. By adding the words ``noxious weeds,'' after the words ``plant 
pests,''.
0
b. By removing the words ``part 319 or 330'' and adding the words 
``parts 319, 330, or 360'' in their place.

Sec.  352.15  [Amended]

0
13. Section 352.15 is amended by adding the words ``or noxious weed'' 
before the word ``dissemination''.

[[Page 68953]]

PART 360--NOXIOUS WEED REGULATIONS

0
14. The authority citation for part 360 continues to read as follows:

    Authority:  7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.

0
15. Section 360.100 is amended as follows:
0
a. By removing the paragraph (b) designation and the introductory text 
of paragraph (b).
0
b. By redesignating paragraph (a) as undesignated introductory text.
0
c. By adding, in alphabetical order, new definitions of Administrator, 
APHIS, interstate, move, noxious weed, permit, person, responsible 
person, State, taxon (taxa), through the United States, and United 
States to read as set forth below.
0
d. By removing the definition of Deputy Administrator.

Sec.  360.100  Definitions.

* * * * *
    Administrator. The Administrator, Animal and Plant Health 
Inspection Service, or any individual authorized to act for the 
Administrator.
    APHIS. The Animal and Plant Health Inspection Service, United 
States Department of Agriculture.
* * * * *
    Interstate. From one State into or through any other State; or 
within the District of Columbia, Guam, the Virgin Islands of the United 
States, or any other territory or possession of the United States.
    Move. To carry, enter, import, mail, ship, or transport; to aid, 
abet, cause, or induce the carrying, entering, importing, mailing, 
shipping, or transporting; to offer to carry, enter, import, mail, 
ship, or transport; to receive to carry, enter, import, mail, ship, or 
transport; to release into the environment; or to allow any of the 
activities described in this definition.
    Noxious weed. 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.
    Permit. A written authorization, including by electronic methods, 
by the Administrator to move plants, plant products, biological control 
organisms, plant pests, noxious weeds, or articles under conditions 
prescribed by the Administrator.
    Person. Any individual, partnership, corporation, association, 
joint venture, or other legal entity.
* * * * *
    Responsible person. The person who has control over and will 
maintain control over the movement of the noxious weed and assure that 
all conditions contained in the permit and requirements in this part 
are complied with. A responsible person must be at least 18 years of 
age and must be a legal resident of the United States or designate an 
agent who is at least 18 years of age and a legal resident of the 
United States.
    State. Any of the several States of the United States, the 
Commonwealth of the Northern Mariana Islands, the Commonwealth of 
Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the 
United States, or any other territory or possession of the United 
States.
    Taxon (taxa). Any grouping within botanical nomenclature, such as 
family, genus, species, or cultivar.
    Through the United States. From and to places outside the United 
States.
    United States. All of the States.

0
16. Section 360.200 is amended as follows:
0
a. By revising the introductory text, including footnote 1, to read as 
set forth below.
0
b. In paragraph (a), by revising the entries for ``Caulerpa taxifolia 
(Mediterranean clone)'', ``Eichornia azurea (Swarth) Kunth'', and 
``Melaleuca quenquinervia (Cav.) Blake'' to read as set forth below.
0
c. In paragraph (b), by removing the entries for ``Cuscuta jepsonii 
Yuncker'', ``Cuscuta nevadensis I.M. Johnston'', and ``Cuscuta 
occidentalis Millspaugh ex Mill & Nuttall''.
0
d. In paragraph (b), by revising the entries for ``Cuscuta ceanothii 
Behr,'' ``Cuscuta cephalanthii Engelmann'', ``Cuscuta corylii 
Engelmann'', ``Cuscuta exalta Engelmann'', ``Cuscuta obtusiflora 
Humboldt, Bonpland, & Kunth'', ``Cuscuta rostrata Shuttleworth ex 
Engelmann'', ``Cuscuta umbrellata Humboldt, Bonpland, & Kunth'', and 
``Cuscuta vetchii Brandegee'' to read as set forth below.
0
e. In paragraph (c), by removing the entries for ``Digitaria scalarum 
(Schweinfurth) Chlovenda (African couchgrass, fingergrass)'', ``Homeria 
spp.'', and ``Mimosa invisa Martius (giant sensitive plant)''.
0
f. In paragraph (c), by revising the entries for ``Digitaria velutina 
(Forsskal) Palisot de Beauvois (velvet fingergrass, annual 
conchgrass)'', ``Drymaria arenariodes Humboldt & Bonpland ex Roemer & 
Schultes (lightning weed)'', ``Imperata cylindrica (Linnaeus) Raeuschel 
(cogongrass)'', ``Mikania micrantha Humboldt, Bonpland, & Kunth'', 
``Prosopis farcta (Solander ex Russell) Macbride'', ``Prosopis pallida 
(Humboldt & Bonpland ex Willdenow) Humboldt, Bonpland, & Kunth'', 
``Setaria pallide-fusca (Schumacher) Stapf & Hubbard (cattail grass)'', 
and ``Spermacoce alata (Aublet) de Candolle'' to read as set forth 
below.
0
g. In paragraph (c), by adding, in alphabetical order, entries for 
``Acacia nilotica (Linnaeus) Wildenow ex Delile (gum arabic tree, 
thorny acacia)'', ``Ageratina riparia (Regel) R.M. King and H. Robinson 
(creeping croftonweed, mistflower)'', ``Arctotheca calendula (Linnaeus) 
Levyns (capeweed)'', ``Digitaria abyssinica (Hochstetter ex A. Richard) 
Stapf (African couchgrass, fingergrass),'' ``Euphorbia terracina 
Linnaeus (false caper, Geraldton carnation weed)'', ``Inula britannica 
Linnaeus (British elecampane, British yellowhead)'', ``Mimosa 
diplotricha C. Wright (giant sensitive-plant)'', ``Moraea collina 
Thunberg (apricot Cape-tulip)'', ``Moraea flaccida (Sweet) Steudel 
(one-leaf Cape-tulip)'', ``Moraea miniata Andrews (two-leaf Cape-
tulip)'', ``Moraea ochroleuca (Salisbury) Drapiez (red Cape-tulip)'', 
``Moraea pallida (Baker) Goldblatt (yellow Cape-tulip)'', ``Onopordum 
acaulon Linnaeus (stemless thistle)'', and ``Onopordum illyricum 
Linnaeus (Illyrian thistle)''.

Sec.  360.200  Designation of noxious weeds.

    The Administrator has determined that it is necessary to designate 
the following plants \1\ as noxious weeds to prevent their introduction 
into the United States or their dissemination within the United States:
---------------------------------------------------------------------------

    \1\ One or more of the common names of weeds are given in 
parentheses after most scientific names to help identify the weeds 
represented by such scientific names; however, a scientific name is 
intended to include all subordinate taxa within the taxon. 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.
---------------------------------------------------------------------------

    (a) * * *
    Caulerpa taxifolia (Vahl) C. Agardh, Mediterranean strain (killer 
algae)
* * * * *
    Eichhornia azurea (Swartz) Kunth
* * * * *
    Melaleuca quinquenervia (Cavanilles) S.T. Blake
* * * * *
    (b) * * *
    Cuscuta ceanothi Behr
    Cuscuta cephalanthi Engelmann
* * * * *

[[Page 68954]]

    Cuscuta coryli Engelmann
* * * * *
    Cuscuta exaltata Engelmann
* * * * *
    Cuscuta obtusiflora Kunth
* * * * *
    Cuscuta rostrata Shuttleworth ex Engelmann & Gray
* * * * *
    Cuscuta umbellata Kunth
* * * * *
    Cuscuta veatchii Brandegee
* * * * *
    (c) * * *
    Digitaria velutina (Forsskal) Palisot de Beauvois (velvet 
fingergrass, annual couchgrass)
    Drymaria arenariodes Humboldt & Bonpland ex J.A. Schultes 
(lightning weed)
* * * * *
    Imperata cylindrica (Linnaeus) Palisot de Beauvois (cogongrass)
* * * * *
    Mikania micrantha Kunth
* * * * *
    Prosopis farcta (Banks & Solander) J.F. Macbride
* * * * *
    Prosopis pallida (Humboldt & Bonpland ex Willdenow) Kunth
* * * * *
    Setaria pumila (Poir.) Roem. & Schult. subsp. pallidefusca 
(Schumach.) B.K. Simon (cattail grass)
* * * * *
    Spermacoce alata Aublet
* * * * *

0
17. Section 360.300 is revised to read as follows:

Sec.  360.300  Notice of restrictions on movement of noxious weeds.

    No person may move a Federal noxious weed into or through the 
United States, or interstate, unless:
    (a) He or she applies for a permit to move a noxious weed in 
accordance with Sec.  360.301;
    (b) The permit application is approved; and
    (c) The movement is consistent with the specific conditions 
contained in the permit.

    (Approved by the Office of Management and Budget under control 
number 0579-0054)

0
18. New Sec. Sec.  360.301 through 360.305 are added to read as 
follows.

Sec.  360.301  Information required for applications for permits to 
move noxious weeds.

    (a) Permit to import a noxious weed into the United States. A 
responsible person must apply for a permit to import a noxious weed 
into the United States.\2\ The application must include the following 
information:
---------------------------------------------------------------------------

    \2\ Information on applying for a permit to import a noxious 
weed into the United States is available at http://www.aphis.usda.gov/plant_health/permits/plantproducts.shtml.
---------------------------------------------------------------------------

    (1) The responsible person's name, address, telephone number, and 
(if available) e-mail address;
    (2) The taxon of the noxious weed;
    (3) Plant parts to be moved;
    (4) Quantity of noxious weeds to be moved per shipment;
    (5) Proposed number of shipments per year;
    (6) Origin of the noxious weeds;
    (7) Destination of the noxious weeds;
    (8) Whether the noxious weed is established in the State of 
destination;
    (9) Proposed method of shipment;
    (10) Proposed port of first arrival in the United States;
    (11) Approximate date of arrival;
    (12) Intended use of the noxious weeds;
    (13) Measures to be employed to prevent danger of noxious weed 
dissemination; and
    (14) Proposed method of final disposition of the noxious weeds.
    (b) Permit to move noxious weeds interstate. A responsible person 
must apply for a permit to move a noxious weed interstate.\3\ The 
application must include the following information:
---------------------------------------------------------------------------

    \3\ Information on applying for a permit to move a noxious weed 
interstate is available at http://www.aphis.usda.gov/plant_health/permits/plantproducts.shtml.
---------------------------------------------------------------------------

    (1) The responsible person's name, address, telephone number, and 
(if available) e-mail address;
    (2) The taxon of the noxious weed;
    (3) Plant parts to be moved;
    (4) Quantity of noxious weeds to be moved per shipment;
    (5) Proposed number of shipments per year,
    (6) Origin of the noxious weeds;
    (7) Destination of the noxious weeds;
    (8) Whether the noxious weed is established in the State of 
destination;
    (9) Proposed method of shipment,
    (10) Approximate date of movement;
    (11) Intended use of the noxious weeds;
    (12) Measures to be employed to prevent danger of noxious weed 
dissemination; and
    (13) Proposed method of final disposition of the noxious weeds.
    (c) Permits to move noxious weeds through the United States. 
Permits to move noxious weeds through the United States must be 
obtained in accordance with part 352 of this chapter.

Sec.  360.302  Consideration of applications for permits to move 
noxious weeds.

    Upon the receipt of an application made in accordance with Sec.  
360.301 for a permit for movement of a noxious weed into the United 
States or interstate, the Administrator will consider the application 
on its merits.
    (a) Consultation. The Administrator may consult with other Federal 
agencies or entities, States or political subdivisions of States, 
national governments, local governments in other nations, domestic or 
international organizations, domestic or international associations, 
and other persons for views on the danger of noxious weed dissemination 
into the United States, or interstate, in connection with the proposed 
movement.
    (b) Inspection of premises. The Administrator may inspect the site 
where noxious weeds are proposed to be handled in connection with or 
after their movement under permit to determine whether existing or 
proposed facilities will be adequate to prevent noxious weed 
dissemination if a permit is issued.

Sec.  360.303  Approval of an application for a permit to move a 
noxious weed; conditions specified in permit.

    The Administrator will approve or deny an application for a permit 
to move a noxious weed. If the application is approved, the 
Administrator will issue the permit including any conditions that the 
Administrator has determined are necessary to prevent dissemination of 
noxious weeds into the United States or interstate. Such conditions may 
include requirements for inspection of the premises where the noxious 
weed is to be handled after its movement under the permit, to determine 
whether the facilities there are adequate to prevent noxious weed 
dissemination and whether the conditions of the permit are otherwise 
being observed. Before the permit is issued, the Administrator will 
require the responsible person to agree in writing to the conditions 
under which the noxious weed will be safeguarded.

Sec.  360.304  Denial of an application for a permit to move a noxious 
weed; cancelation of a permit to move a noxious weed.

    (a) The Administrator may deny an application for a permit to move 
a noxious weed when the Administrator determines that:
    (1) No safeguards adequate or appropriate to prevent dissemination 
of the noxious weed can be implemented; or
    (2) The destructive potential of the noxious weed, should it escape 
despite

[[Page 68955]]

proposed safeguards, outweighs the probable benefits to be derived from 
the proposed movement and use of the noxious weed; or
    (3) The responsible person, or the responsible person's agent, as a 
previous permittee, failed to maintain the safeguards or otherwise 
observe the conditions prescribed in a previous permit and failed to 
demonstrate the ability or intent to observe them in the future; or
    (4) The movement could impede an APHIS eradication, suppression, 
control, or regulatory program; or
    (5) A State plant regulatory official objects to the issuance of 
the permit on the grounds that granting the permit will pose a risk of 
dissemination of the noxious weed into the State.
    (b) The Administrator may cancel any outstanding permit when:
    (1) After the issuance of the permit, information is received that 
constitutes cause for the denial of an application for permit under 
paragraph (a) of this section; or
    (2) The responsible person has not maintained the safeguards or 
otherwise observed the conditions specified in the permit.
    (c) If a permit is orally canceled, APHIS will provide the reasons 
for the withdrawal of the permit in writing within 10 days. Any person 
whose permit has been canceled or any person who has been denied a 
permit may appeal the decision in writing to the Administrator within 
10 days after receiving the written notification of the cancellation or 
denial. The appeal must state all of the facts and reasons upon which 
the person relies to show that the permit was wrongfully canceled or 
denied. The Administrator will grant or deny the appeal, in writing, 
stating the reasons for the decision as promptly as circumstances 
allow. If there is a conflict as to any material fact, a hearing will 
be held to resolve the conflict. Rules of practice concerning such a 
hearing will be adopted by the Administrator.

Sec.  360.305  Disposal of noxious weeds when permits are canceled.

    When a permit for the movement of a noxious weed is canceled by the 
Administrator and not reinstated under Sec.  360.304(c), further 
movement of the noxious weed covered by the permit into or through the 
United States, or interstate, is prohibited unless authorized by 
another permit. The responsible person must arrange for disposal of the 
noxious weed in question in a manner that the Administrator determines 
is adequate to prevent noxious weed dissemination. The Administrator 
may seize, quarantine, treat, apply other remedial measures to, 
destroy, or otherwise dispose of, in such manner as the Administrator 
deems appropriate, any noxious weed that is moved without compliance 
with any conditions in the permit or after the permit has been canceled 
whenever the Administrator deems it necessary in order to prevent the 
dissemination of any noxious weed into or within the United States.

Sec.  360.400  [Redesignated as Sec.  360.600]

0
19. Section 360.400 is redesignated as Sec.  360.600.
0
20. New Sec. Sec.  360.400, 360.500, and 360.501 are added to read as 
follows:

Sec.  360.400  Treatments.

    (a) Seeds of Guizotia abyssinica (niger seed) are commonly 
contaminated with noxious weed seeds listed in Sec.  360.200, including 
(but not limited to) Cuscuta spp. Therefore, Guizotia abyssinica seeds 
may be imported into the United States only if:
    (1) They are treated in accordance with part 305 of this chapter at 
the time of arrival at the port of first arrival in the United States; 
or
    (2) They are treated prior to shipment to the United States at a 
facility that is approved by APHIS \4\ and that operates in compliance 
with a written agreement between the treatment facility owner and the 
plant protection service of the exporting country, in which the 
treatment facility owner agrees to comply with the provisions of Sec.  
319.37-6 and allow inspectors and representatives of the plant 
protection service of the exporting country access to the treatment 
facility as necessary to monitor compliance with the regulations. 
Treatments must be certified in accordance with the conditions 
described in Sec.  319.37-13(c) of this chapter.
---------------------------------------------------------------------------

    \4\ Criteria for the approval of heat treatment facilities are 
contained in part 305 of this chapter.
---------------------------------------------------------------------------

    (b) [Reserved]

Sec.  360.500  Petitions to add a taxon to the noxious weed list.

    A person may petition the Administrator to have a taxon added to 
the noxious weeds lists in Sec.  360.200. Details of the petitioning 
process for adding a taxon to the lists are available on the Internet 
at http://www.aphis.usda.gov/plant_health/plant_pest_info/weeds/downloads/listingguide.[hairsp]pdf. Persons who submit a petition to 
add a taxon to the noxious weed lists must provide their name, address, 
telephone number, and (if available) e-mail address. Persons who submit 
a petition to add a taxon to the noxious weed lists are encouraged to 
provide the following information, which can help speed up the review 
process and help APHIS determine whether the specified plant taxon 
should be listed as a noxious weed:
    (a) Identification of the taxon. (1) The taxon's scientific name 
and author;
    (2) Common synonyms;
    (3) Botanical classification;
    (4) Common names;
    (5) Summary of life history;
    (6) Native and world distribution;
    (7) Distribution in the United States, if any (specific States, 
localities, or Global Positioning System coordinates);
    (8) Description of control efforts, if established in the United 
States; and
    (9) Whether the taxon is regulated at the State or local level.
    (b) Potential consequences of the taxon's introduction or spread. 
(1) The taxon's habitat suitability in the United States (predicted 
ecological range);
    (2) Dispersal potential (biological characteristics associated with 
invasiveness);
    (3) Potential economic impacts (e.g., potential to reduce crop 
yields, lower commodity values, or cause loss of markets for U.S. 
goods); and
    (4) Potential environmental impacts (e.g., impacts on ecosystem 
processes, natural community composition or structure, human health, 
recreation patterns, property values, or use of chemicals to control 
the taxon).
    (c) Likelihood of the taxon's introduction or spread. (1) Potential 
pathways for the taxon's movement into and within the United States; 
and
    (2) The likelihood of survival and spread of the taxon within each 
pathway.
    (d) List of references.

Sec.  360.501  Petitions to remove a taxon from the noxious weed lists.

    A person may petition the Administrator to remove a taxon from the 
noxious weeds lists in Sec.  360.200. Details of the petitioning 
process for removing a taxon from the lists are available at http://www.aphis.usda.gov/plant_health/plant_pest_info/weeds/downloads/delistingguide.pdf. Persons who submit a petition to remove a taxon 
from the noxious weed lists would be required to provide their name, 
address, telephone number, and (if available) e-mail address. Persons 
who submit a petition to remove a taxon from the noxious weed lists are 
encouraged to provide the following information, which can help speed 
up the review process and help APHIS determine whether the specified 
plant taxon should not be listed as a noxious weed:

[[Page 68956]]

    (a) Evidence that the species is distributed throughout its 
potential range or has spread too far to implement effective control.
    (b) Evidence that control efforts have been unsuccessful and 
further efforts are unlikely to succeed.
    (c) For cultivars of a listed noxious weed, scientific evidence 
that the cultivar has a combination of risk elements that result in a 
low pest risk. For example, the cultivar may have a narrow habitat 
suitability, low dispersal potential, evidence of sterility, inability 
to cross-pollinate with introduced wild types, or few if any potential 
negative impacts on the economy or environment of the United States.
    (d) List of references.

PART 361--IMPORTATION OF SEED AND SCREENINGS UNDER THE FEDERAL SEED 
ACT

0
21. 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 371.3.

0
22. In Sec.  361.6, paragraph (a)(1) is amended as follows:
0
a. By removing the entries for ``Caulerpa taxifolia (Mediterranean 
clone)'', ``Homeria spp.'', and ``Mimosa invisa Martius''.
0
b. By revising the entries for ``Digitaria abyssinica (=D. scalarum)'', 
``Drymaria arenariodes Humboldt & Bonpland ex Roemer & Schultes'', 
``Imperata cylindrica (L.) Raeuschel'', ``Mikania micrantha Humboldt, 
Bonpland, & Kunth'', ``Prosopis farcta (Solander ex Russell) 
Macbride'', ``Prosopis pallida (Humboldt & Bonpland ex Willdenow) 
Humboldt, Bonpland, & Kunth'', ``Setaria pallide-fusca (Schumacher) 
Stapf & Hubbard'', and ``Spermacoce alata (Aublet) de Candolle'' to 
read as set forth below.
0
c. By adding, in alphabetical order, entries for ``Acacia nilotica 
(Linnaeus) Wildenow ex Delile'', ``Ageratina riparia (Regel) R.M. King 
and H. Robinson'', ``Arctotheca calendula (Linnaeus) Levyns'', 
``Euphorbia terracina Linnaeus'', ``Inula britannica Linnaeus'', 
``Mimosa diplotricha C. Wright'', ``Moraea collina Thunberg'', ``Moraea 
flaccida (Sweet) Steudel'', ``Moraea miniata Andrews ``, ``Moraea 
ochroleuca (Salisbury) Drapiez'', ``Moraea pallida (Baker) Goldblatt'', 
``Onopordum acaulon Linnaeus'', and ``Onopordum illyricum Linnaeus''.

Sec.  361.6  Noxious weed seeds.

    (a) * * *
    (1) * * *
    Digitaria abyssinica (Hochstetter ex A. Richard) Stapf
* * * * *
    Drymaria arenariodes Humboldt & Bonpland ex J.A. Schultes
* * * * *
    Imperata cylindrica (Linnaeus) Palisot de Beauvois
* * * * *
    Mikania micrantha Kunth
* * * * *
    Prosopis farcta (Banks & Solander) J.F. Macbride
* * * * *
    Prosopis pallida (Humboldt & Bonpland ex Willdenow) Kunth
* * * * *
    Setaria pumila (Poir.) Roem. & Schult. subsp. pallidefusca 
(Schumach.) B.K. Simon
* * * * *
    Spermacoce alata Aublet
* * * * *

    Done in Washington, DC, this 4th day of November 2010.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2010-28346 Filed 11-9-10; 8:45 am]
BILLING CODE 3410-34-P
```