[Federal Register Volume 60, Number 56 (Thursday, March 23, 1995)]
[Proposed Rules]
[Pages 15257-15260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7133]



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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 60, No. 56 / Thursday, March 23, 1995 / 
Proposed Rules
[[Page 15257]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 201

[Docket No. 93-126-2]


Imported Seed

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule and notice of public hearing.

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SUMMARY: We are proposing to expand the list of noxious weed seeds 
contained in Federal Seed Act regulations to include seeds of all of 
the weeds listed in the Federal Noxious Weed Act regulations. This rule 
would allow APHIS to prohibit the entry into the United States of any 
imported agricultural or vegetable seed shipments containing seeds of 
noxious weeds listed in the Federal Noxious Weed Act regulations. We 
believe this action is necessary to prevent the introduction of noxious 
weeds into the United States.

DATES: Consideration will be given only to comments received on or 
before April 24, 1995. We also will consider comments made at a public 
hearing to be held on April 4, 1995, from 9 a.m. until 12 noon.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 93-126-2, Animal and Plant Health Inspection Service, Policy 
and Program Development, Regulatory Analysis and Development, 4700 
River Road Unit 118, Riverdale, MD 20737-1228. Please state that your 
comments refer to Docket No. 93-126-2. Comments received may be 
inspected at USDA, room 1141, South Building, 14th Street and 
Independence Avenue SW, Washington, DC, between 8 a.m. and 4:30 p.m., 
Monday through Friday, except holidays. Persons wishing to inspect 
comments are requested to call ahead on (202) 690-2817 to facilitate 
entry into the comment reading room. The public hearing will be held on 
April 4, 1995, in room 3A01, 4700 River Road, Riverdale, MD 20737-1228.

FOR FURTHER INFORMATION CONTACT: Ms. Polly Lehtonen, Botanist, Animal 
and Plant Health Inspection Service, Plant Protection and Quarantine, 
Biological Assessments And Taxonomic Support, 4700 River Road Unit 133, 
Riverdale, MD 20737-1228, (301) 734-8896.

SUPPLEMENTARY INFORMATION:

Background

    In 1939, Congress enacted the Federal Seed Act (FSA), directing the 
U.S. Department of Agriculture (USDA), among other things, to regulate 
foreign commerce in seeds in cooperation with the U.S. Department of 
Treasury. 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 certain noxious weeds as 
a condition of entry into the United States. On October 1, 1982, the 
Agricultural Marketing Service (AMS) of the USDA transferred authority 
for issuing and enforcing regulations under Title III of the FSA (7 CFR 
201.39 through 201.47b, 201.66, and 201.101 through 201.230) to the 
Animal and Plant Health Inspection Service (APHIS).
    On September 15, 1994, we published an advance notice of proposed 
rulemaking in the Federal Register (59 FR 47286-47287, Docket No. 93-
126-1) announcing our plans to revise the FSA regulations to reflect 
amendments to the FSA, developments in the seed industry, and the 
transfer of regulatory authority for Title III of the FSA from AMS to 
APHIS. We also noted our intention to revise the list of noxious weed 
seeds contained in the regulations promulgated under the FSA to include 
seeds of all the noxious weeds listed in the regulations promulgated 
under the Federal Noxious Weed Act.
    We have decided to proceed separately with this proposal to revise 
the list of noxious weeds contained in the regulations, for reasons 
explained below. We are still reviewing comments concerning the other 
issues raised in the advance notice, and plan to publish another 
proposed rule at a later date. We also will hold a public hearing in 
connection with that proposed rule.
    We solicited comments on the advance notice of proposed rulemaking 
for 45 days ending October 31, 1994. By that date we received 13 
comments from seed companies and importers, State governments, and 
universities. Four of those comments remarked on our plan to revise the 
list of noxious weed seeds contained in the FSA regulations to include 
seeds of all the noxious weeds listed in the Federal Noxious Weed Act 
regulations. Two of these comments supported our actions and two raised 
relevant questions. These questions are addressed below.
    Under Sec. 201.108 of the FSA regulations, seeds of 11 types of 
weeds are considered to be noxious when found in shipments of imported 
agricultural or vegetable seeds. If seeds of these weeds are found in a 
shipment of imported agricultural or vegetable seeds in amounts greater 
than the tolerances listed in Sec. 201.66, APHIS prohibits the entry of 
that shipment into the United States (except possibly for supervised 
cleaning or repackaging for re-export). However, if seeds of noxious 
weeds listed in the Federal Noxious Weed Act regulations are found in a 
shipment of imported agricultural or vegetable seeds subject to the FSA 
regulations, APHIS currently may not prohibit the entry of that 
shipment into the United States based on such contamination. The 
Federal Noxious Weed Act (7 U.S.C. 2801-2813) specifically provides 
that it does not apply to shipments of seed subject to the FSA. 
Shipments of agricultural and vegetable seeds are subject to the FSA.
    This prohibition increases the chances that noxious weeds listed in 
the Federal Noxious Weed Act regulations, but not in the FSA 
regulations, may be introduced into the United States from contaminated 
shipments of agricultural or vegetable seeds. In fact, since 1988, 
APHIS has found noxious weeds listed in the Federal Noxious Weed Act 
regulations in two shipments of imported agricultural and vegetable 
seed. In 1988, APHIS discovered seed of the noxious weed serrated 
tussock (Nassella trichotoma (Nees) Hackel ex Arechavaleta) in a 
shipment of lawn grass seed imported from Argentina. More recently, in 
September of 1994, APHIS discovered seed of the noxious weed goatsrue 
(Galega officinalis L.) in a shipment of carrot seed imported from 
Chile.
    We are proposing, therefore, to expand the list of noxious weed 
seeds contained in the FSA regulations to [[Page 15258]] include seeds 
of all of the noxious weeds listed in the Federal Noxious Weed Act 
regulations. As a result of this action, APHIS would have the authority 
to prohibit the entry of shipments of imported agricultural and 
vegetable seed containing seed of the noxious weeds currently listed in 
the Federal Noxious Weed Act regulations. We have decided to proceed 
with this proposal separately from other issues identified in the 
advance notice of proposed rulemaking mentioned above due to the urgent 
need to expand APHIS authority in this matter, as underscored by the 
recent detection of seed of the noxious weed goatsrue in imported 
carrot seed.

Tolerances

    Under Sec. 201.66 of the FSA regulations, agricultural or vegetable 
seed imports may enter the United States if they contain only small 
amounts, or ``tolerances,'' of the noxious weed seeds specified in 
Sec. 201.108. We propose to preserve these tolerances for the weed 
seeds currently listed in Sec. 201.108, except for species of Cuscuta. 
Currently, all species of Cuscuta are listed in Sec. 201.108 (with 
tolerances) and several are also listed in the Federal Noxious Weed Act 
regulations (without tolerances). Since many seeds of Cuscuta species 
plants are indistinguishable from each other, we are proposing to 
retain tolerances for none. Thus, we would reduce the risk that Cuscuta 
species classified as noxious weeds under the Federal Noxious Weed Act 
regulations would enter the United States in agricultural or vegetable 
seeds. Also, we are proposing to establish no tolerances for the other 
noxious weed seeds that are to be added to the FSA regulations from the 
Federal Noxious Weed Act regulations. There are no tolerances for these 
weeds under the Federal Noxious Weed Act regulations.
    Also, we are proposing to add a new Sec. 201.108(b). This paragraph 
would state that the allowable tolerance for certain noxious weed seeds 
in import shipments of agricultural and vegetable seeds would be two 
weed seeds in the minimum amount of seed required to be examined. 
Shipments containing three or more noxious weed seeds may not be 
imported into the United States. If two noxious weed seeds are found 
during the initial examination, a second sample will be taken and 
examined. If two or fewer noxious weed seeds are found in the second 
examination, the shipment from which the seeds were drawn may be 
imported into the United States. If three or more noxious weed seeds 
are found in the second examination, the shipment may not be imported 
into the United States.

Miscellaneous

    We are proposing to revise the list of noxious weed seeds in the 
FSA regulations by updating the taxonomical names of several of the 
weeds listed. Specifically, concerning the three species of whitetop or 
hoary cress currently listed in the regulations, Lepidium draba (L.) 
and Lepidium repens (Schrenk) Boiss. would be redesignated as Cardaria 
draba (L.) Desv., and Hymenophysa pubescens C. A. Mey. would be 
redesignated as Cardaria pubescens (C. A. Mey.) Jarmol. These changes 
will bring the list of noxious weed seeds under the FSA regulations 
into accord with current botanical nomenclature. These changes would 
not affect the Federal Noxious Weed Act regulations, as these seeds are 
not listed under those regulations.

Comments on the Advance Notice of Proposed Rulemaking

    As stated above, of the 13 comments we received on the advance 
notice of proposed rulemaking, four remarked on our plan to revise the 
list of noxious weeds in the FSA regulations. Two of the comments 
supported our plan. The other two raised the following questions.
    One comment, from a State government, inquired as to whether APHIS 
would consider adding seeds of weeds appearing on State noxious weed 
lists to the list of noxious weeds in the FSA regulations. We would 
consider adding a weed to the noxious weed list in the FSA regulations 
(as well as the noxious weed list in the Federal Noxious Weed Act 
regulations) upon receipt and review of information regarding that 
weed.
    The other comment, from a trade association, encouraged APHIS to 
undertake a thorough scientific review of the list of noxious weeds in 
the FSA regulations to confirm its scientific basis and applicability 
to today's trade. We welcome for review any information indicating a 
need to revise the list of noxious weeds in the FSA regulations (or the 
Federal Noxious Weed Act regulations).

Public Hearing

    As required by 7 U.S.C. 1592(c), APHIS will host a public hearing 
to provide interested persons a full opportunity to present their views 
regarding this proposal. At this public hearing, we will also consider 
comments on a proposed rule to amend the Federal Noxious Weed Act 
regulations. (See APHIS Docket No. 94-050-1, published in the Proposed 
Rules Section of this issue of the Federal Register). The hearing will 
be held on April 4, 1995, in room 3A01, 4700 River Road, Riverdale, MD 
20737-1228.
    A representative of APHIS will preside at the public hearing. Any 
interested person may appear and be heard in person, by attorney, or by 
other representative. Persons who wish to speak at the public hearing 
will be asked to sign in, listing their names and organizations.
    The public hearing will begin at 9 a.m. local time and is scheduled 
to end at 12 noon local time. However, the hearing may be terminated at 
any time after it begins if all persons desiring to speak have been 
heard. We ask that anyone who reads a statement provide two copies to 
the presiding officer at the hearing. If the number of speakers at the 
hearing warrants it, the presiding officer may limit the time for each 
presentation so that everyone wishing to speak has the opportunity.
    The purpose of the hearing is to give interested persons an 
opportunity for oral presentations of data, views, and arguments. 
Questions about the content of the proposed rules may be part of the 
commenters' oral presentations. However, neither the presiding officer 
nor any other representative of APHIS will respond to comments at the 
hearing, except to clarify or explain provisions of the proposed rules.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    We are proposing to expand the list of noxious weed seeds contained 
in FSA regulations by including the seeds of all weeds listed in 
Federal Noxious Weed Act regulations. Currently APHIS can prohibit the 
entry of shipments of imported agricultural or vegetable seeds 
contaminated with noxious weed seeds listed in the FSA regulations, but 
not shipments which contain weed seeds listed only in the Federal 
Noxious Weed Act regulations. The change would authorize APHIS to 
prohibit the entry of any agricultural or vegetable seed shipments 
containing noxious weed seeds listed in the Federal Noxious Weed Act 
regulations.
    The weeds already established in the United States pose serious 
threats to the U.S. supplies of food and fiber, causing losses in both 
yield and quality of crops. As a result of increased weed 
[[Page 15259]] competition, yields decline, production decreases, 
exports decrease, and prices of commodities increase. Weed management 
has a major influence on the production decisions made by agricultural 
producers. The use of additional land, livestock, labor, equipment and 
fuel, herbicides, insecticides and fungicides, fertilizers, and 
irrigation water may all be required in order to maintain economical 
commodity production when weeds are present.
    Between 1989 and 1991, weeds in crops and forage cost producers 
using herbicides about $4.1 billion annually and cost producers unable 
to use herbicides about $19.6 billion annually. (These estimates 
represent the upper limits of costs related to weeds.) Although such 
losses varied between crops and regions, we estimate yield reduction to 
have been between 10 and 20 percent. Furthermore, certain weeds in 
pasture lands not only reduce production and availability but also 
poison livestock. Livestock losses related to weeds are estimated at 
about 3 to 5 percent annually.
    Many of the nonindigenous weed species listed in the Federal 
Noxious Weed Act regulations attack important farm crops in their 
native lands. Among farm products attacked by such weeds are corn, 
wheat, sorghum, tobacco, tomatoes, sugarcane, potatoes, grapes, 
sunflowers, rice, carrots, and pasture grasses. These crops generate an 
annual income of approximately $50 billion in the United States. 
Additionally, these agricultural commodities account for about an 
estimated $19 billion in U.S. exports. Therefore, even if yield losses 
related to new weeds were much less than the average loss related to 
established weeds (10 to 20 percent), the economic impact related to 
their introduction would be substantial.
    Very few agricultural and vegetable seed shipments have been found 
to be contaminated with seeds of weeds listed in the Federal Noxious 
Weed Act regulations. The recent interception of goatsrue seeds in a 
carrot seed shipment from Chile was the first case of a noxious weed 
listed in the Federal Noxious Weed Act regulations, but not under the 
FSA regulations, being found in an agricultural or vegetable seed 
shipment since serrated tussock seed was found in a lawn grass seed 
shipment 6 years ago.
    Goatsrue is a perennial weed that competes with and reduces yields 
of forage plants in moist or irrigated pastures, grassland, marshy 
areas, river banks, and along roadsides. The cost of eradicating 
goatsrue already introduced has been substantial to the agency. Since 
the eradication program began in 1981, the agency has appropriated 
about $1.7 million to the ongoing effort.
    Although we could not prohibit the entry of the imported carrot 
seed based on its contamination with goatsrue seed, the importer agreed 
not to distribute the seed in the United States. However, had we had 
the authority to prohibit the entry of the shipment based on its 
contamination with goatsrue, and had the importer subsequently 
destroyed the contaminated seed, we estimate he would have incurred a 
loss of about $24,000. This sort of loss is insubstantial compared with 
the potential agricultural costs and production losses that could 
result from the introduction of a noxious weed.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12778

    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This rule contains no information collection or recordkeeping 
requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 
et seq.).

List of Subjects in 7 CFR Part 201

    Advertising, Agricultural commodities, Imports, Labeling, Reporting 
and recordkeeping requirements, Seeds, Vegetables.

    Accordingly, 7 CFR part 201 would be amended as follows:

PART 201--FEDERAL SEED ACT REGULATIONS

    1. The authority citation for part 201 would continue to read as 
follows:

    Authority: 7 U.S.C. 1592.


Sec. 201.66  [Removed and reserved]

    2. Section 201.66 would be removed and reserved.
    3. Section 201.108 would be revised to read as follows:


Sec. 201.108  Noxious weed seeds.

    (a) Seeds of the following plants shall be considered noxious weed 
seeds.

\1\Acroptilon repens (L.) DC. (=Centaurea repens L.) (=Centaurea 
picris)
Aeginetia spp.
Ageratina adenophora (Sprengel) King & Robinson
Alectra spp.
Alternanthera sessilis (L.) R. Brown ex de Candolle
Asphodelus fistulosus L.
Avena sterilis L. (including Avena ludoviciana Durieu)
Azolla pinnata R. Brown
Borreria alata (Aublet) de Candolle
<SUP>1Cardaria draba (L.) Desv.
<SUP>1Cardaria pubescens (C. A. Mey.) Jarmol.
Carthamus oxycantha M. Bieberstein
<SUP>1Convolvulus arvensis L.
Chrysopogon aciculatus (Retzius) Trinius
<SUP>1Cirsium arvense (L.) Scop.
Commelina benghalensis L.
Crupina vulgaris Cassini
Cuscuta spp.
Digitaria abyssinica (=D. scalarum)
Digitaria velutina (Forsskal) Palisot de Beauvois
Drymaria arenarioides Humboldt & Bonpland ex Roemer & Schultes
Eichhornia azurea (Swartz) Kunth
<SUP>1Elytrigia repens (L.) Desv. (=Agropyron repens (L.) Beauv.)
Emex australis Steinheil
Emex spinosa (L.) Campdera
<SUP>1Euphorbia esula L.
Galega officinalis L.
Heracleum mantegazzianum Sommier & Levier
Hydrilla verticillata (Linnaeus f.) Royle
Hygrophila polysperma T. Anderson
Imperata brasiliensis Trinius
Imperata cylindrica (L.) Raeuschel
Ipomoea aquatica Forsskal
Ipomoea triloba L.
Ischaemum rugosum Salisbury
Lagarosiphon major (Ridley) Moss
Leptochloa chinensis (L.) Nees
Limnophila sessiliflora (Vahl) Blume
Lycium ferocissimum Miers
Melaleuca quinquenervia (Cav.) Blake
Melastoma malabathricum L.
Mikania cordata (Burman f.) B. L. Robinson
Mikania micrantha Humboldt, Bonpland, & Kunth
Mimosa invisa Martius
Mimosa pigra L. var. pigra
Monochoria hastata (L.) Solms-Laubach
Monochoria vaginalis (Burman f.) C. Presl
Nassella trichotoma (Nees) Hackel ex Arechavaleta
Opuntia aurantiaca Lindley
Orobanche spp.
Oryza longistaminata A. Chevalier & Roehrich
Oryza punctata Kotschy ex Steudel
Oryza rufipogon Griffith
Ottelia alismoides (L.) Pers.
Paspalum scrobiculatum L.
Pennisetum clandestinum Hochstetter ex Chiovenda
Pennisetum macrourum Trinius
Pennisetum pedicellatum Trinius
Pennisetum polystachion (L.) Schultes
Prosopis alapataco R. A. Philippi
Prosopis argentina Burkart
Prosopis articulata S. Watson
Prosopis burkartii Munoz
Prosopis caldenia Burkart [[Page 15260]] 
Prosopis calingastana Burkart
Prosopis campestris Grisebach
Prospis castellanosii Burkart
Prosopis denudans Bentham
Prosopis elata (Burkart) Burkart
Prosopis farcta (Solander ex Russell) Macbride
Prosopis ferox Grisebach
Prosopis fiebrigii Harms
Prosopis hassleri Harms
Prosopis humilis Gillies ex Hooker & Arnott
Prosopis kuntzei Harms
Prosopis pallida (Humboldt & Bonpland ex Willdenow) Humboldt, 
Bonpland, & Kunth
Prosopis palmeri S. Watson
Prosopis reptans Bentham var. reptans
Prosopis rojasiana Burkart
Prosopis ruizlealii Burkart
Prosopis ruscifolia Grisebach
Prosopis sericantha Gillies ex Hooker & Arnott
Prosopis strombulifera (Lamarck) Bentham
Prosopis torquata (Cavanilles ex Lagasca y Segura) de Candolle
Rottboellia cochinchinensis (Lour.) Clayon (=R. exaltata (L.) L. f.)
Rubus fruticosus L. (complex)
Rubus moluccanus L.
Saccharum spontaneum L.
Sagittaria sagittifolia L.
Salsola vermiculata L.
Salvinia auriculata Aublet
Salvinia biloba Raddi
Salvinia herzogii de la Sota
Salvinia molesta D.S. Mitchell
Setaria pallide-fusca (Schumacher) Stapf & Hubbard
Solanum torvum Swartz
Solanum viarum Dunal
\1\Sonchus arvensis L.
\1\Sorghum halepense (L.) Pers.
Sparganium erectum L.
Striga spp.
Tridax procumbens L.
Urochloa panicoides Beauvois
    <SUP>1Seeds with tolerances applicable to their prohibition.

(b) The tolerance applicable to the prohibition of the noxious weed 
seeds marked above with (<SUP>1) shall be two seeds in the minimum 
amount required to be examined as shown in Table 1, Sec. 201.46. If 
fewer than two seeds are found in an initial examination, the 
shipment from which the sample was drawn may be imported. If two 
seeds are found in an initial examination, a second sample must be 
examined. If two or fewer seeds are found in the second examination, 
the shipment from which the samples were drawn may be imported. If 
three or more seeds are found in the second examination, the 
shipment from which the samples were drawn may not be imported. If 
three or more seeds are found in an initial examination, the 
shipment from which the sample was drawn may not be imported.

    Done in Washington, DC, this 15th day of March 1995.
Terry Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 95-7133 Filed 3-22-95; 8:45 am]
BILLING CODE 3410-34-P