[Federal Register Volume 74, Number 110 (Wednesday, June 10, 2009)]
[Proposed Rules]
[Pages 27456-27467]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-13507]


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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. 74, No. 110 / Wednesday, June 10, 2009 / 
Proposed Rules

[[Page 27456]]



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: Proposed rule.

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

DATES: We will consider all comments that we receive on or before 
August 10, 2009.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0146 to submit or view comments and 
to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send two copies of 
your comment to Docket No. APHIS-2007-0146, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2007-0146.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

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 
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.
    We are proposing to make several changes to the regulations. 
Briefly, we would:
     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. These proposed changes

[[Page 27457]]

are discussed in further detail directly below.

Definitions

    Section 360.100 defines terms used in the noxious weed regulations. 
We are proposing to add definitions for several terms in Sec.  360.100.
    Some of the terms and definitions we are proposing to add to the 
regulations are derived from the definitions of these terms in the PPA. 
We are proposing to add these definitions in order to ensure that the 
regulations are consistent with the PPA. Those definitions are listed 
below:
     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.
     Person. Any individual, partnership, corporation, 
association, joint venture, or other legal entity.
     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.
     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.
     United States. All of the States.
    The definition of permit in the PPA includes oral authorization as 
well as written authorization; we are proposing to omit oral 
authorization because the current regulations in Sec.  360.300 refer 
specifically to written permits and because the practice of issuing 
oral authorizations in other contexts has created both verification and 
enforcement problems in the past.
    Other definitions we are proposing to add to the noxious weed 
regulations are based on definitions in other parts of our regulations 
in 7 CFR chapter III. These definitions are listed below:
     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.
     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 7 CFR 
part 360 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. (This definition is based on a similar definition 
of the same term in 7 CFR part 340.)
     Through the United States. From and to places outside the 
United States.
    We would remove the definition of Deputy Administrator and replace 
all references to the Deputy Administrator in 7 CFR part 360 with 
references to the Administrator.
    We are proposing to add one definition based on the International 
Plant Protection Convention's (IPPC) Glossary of Phytosanitary 
Terms.\1\ We would define the term taxon (taxa) as: ``Any grouping 
within botanical nomenclature, such as family, genus, species, or 
cultivar.''
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    \1\ International Standard for Phytosanitary Measures (ISPM) 
Number 5. To view this and other ISPMs 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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    Finally, paragraph (b) of Sec.  360.100 includes a reference to the 
Federal Noxious Weed Act (7 U.S.C. 2802), indicating that the terms 
included in that act apply with equal force and effect in the 
regulations in part 360. Because the Federal Noxious Weed Act has been 
superseded by the PPA, it is not necessary to include this language in 
the definitions in Sec.  360.100. Accordingly, we would remove 
paragraph (b) and redesignate paragraph (a) as the introductory text of 
the section.
    Adding these definitions to the regulations would improve their 
clarity and make them consistent with the PPA.

Explanatory Text in Sec.  360.200

    Section 360.200 designates certain plants and plant products as 
noxious weeds. The introductory text of this section currently reads as 
follows:

    As authorized under section 412 of the Plant Protection Act (7 
U.S.C. 7712), the Secretary of Agriculture has determined that the 
following plants or plant products fall within the definition of 
``noxious weed'' as defined in section 403 of the Act (7 U.S.C. 
7702(10)). Accordingly, the dissemination in the United States of 
the following plants or plant products may reasonably be expected to 
have the effects specified in section 403 of the Act:

    We are proposing to amend this text for several reasons. As 
discussed earlier, we are proposing to add a definition of noxious weed 
to the regulations, which would mean it would not be necessary to cite 
the definition of that term in the PPA at the beginning of Sec.  
360.200. Also, because the Secretary has delegated to APHIS the 
authority to carry out title IV of the PPA, the Administrator is the 
person who makes the determination that a plant or plant product is a 
noxious weed. Finally, the PPA grants the Administrator the authority 
to take action to prevent the introduction of a noxious weed into the 
United States as well as to prevent the dissemination of a noxious weed 
within the United States.
    The revised introductory text would thus read as follows:

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

    In addition, a footnote to the current introductory text currently 
reads as follows:

    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 weeds within the genus or species 
represented by the scientific name, regardless of whether the common 
name or names are as comprehensive in scope as the scientific name.

    However, noxious weeds may be designated below the species level. 
In addition, the proposed definition of the term taxon (taxa) would 
allow us to convey this information more succinctly. We propose to 
revise this footnote to read as follows:

    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

[[Page 27458]]

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.

    These changes would help to clarify the listing of noxious weeds in 
Sec.  360.200.

Additional Information in Permit Regulations

    The regulations in Sec.  360.300 set out general prohibitions and 
restrictions on the movement of noxious weeds and requirements for 
permits for such movement. Under paragraph (a) of Sec.  360.300, no 
person may move a Federal noxious weed into or through the United 
States, or interstate, unless he or she obtains a permit for such 
movement in accordance with paragraphs (b) through (e) of Sec.  360.300 
and the movement is consistent with the specific conditions contained 
in the permit.
    We are proposing to add to the regulations new Sec. Sec.  360.301 
through 360.305. These sections would contain the following: Specific 
requirements for applying for permits; information about consultations 
that the Administrator may perform in deciding whether to grant a 
permit; the actions the Administrator may take on a permit and the 
conditions in the permit; denial or cancellation of permits; and 
disposal of noxious weeds when permits are canceled. The proposed 
provisions are modeled on similar provisions in 7 CFR part 330, the 
regulations governing the importation and interstate movement of plant 
pests.
    Paragraphs (b) through (e) of current Sec.  360.300 provide fewer 
details about the same topics that our proposed new sections would 
cover; accordingly, we are proposing to remove those paragraphs. We 
would add a new paragraph (b) stating that persons who move noxious 
weeds into or through the United States, or interstate, without 
complying with paragraph (a) of Sec.  360.300 would be subject to such 
criminal and civil penalties as are provided by the PPA.
    The current regulations do not contain detailed requirements 
regarding the process of applying for permits. We would add such 
detailed requirements in a new Sec.  360.301. We would also amend 
paragraph (a) of Sec.  360.300 to refer to applying for a permit in 
accordance with proposed Sec.  360.301.
    Proposed paragraph (a) in Sec.  360.301 would set out details 
regarding the process of applying for permits to import a noxious weed 
into the United States. Under this paragraph, a responsible person 
would be required to apply for a permit to import a noxious weed into 
the United States. We would include a footnote directing the reader to 
a Web site with application information. The application would have to 
include the following information:
     The responsible person's name, address, telephone number, 
and (if available) e-mail address;
     The taxon of the noxious weed;
     Plant parts to be moved;
     Quantity of noxious weeds to be moved per shipment;
     Proposed number of shipments per year;
     Origin of the noxious weeds;
     Destination of the noxious weeds;
     Whether the noxious weed is established in the State of 
destination;
     Proposed method of shipment;
     Proposed port of first arrival in the United States;
     Approximate date of arrival;
     Intended use of the noxious weeds;
     Measures to be employed to prevent danger of noxious weed 
dissemination; and
     Proposed method of final disposition of the noxious weeds.
    Proposed paragraph (b) in Sec.  360.301 would set out details 
regarding the process of applying for permits to move a noxious weed 
interstate. Under this paragraph, a responsible person would be 
required to apply for a permit to move a noxious weed interstate. We 
would also provide a footnote with application information in this 
paragraph. The application would have to include the following 
information:
     The responsible person's name, address, telephone number, 
and (if available) e-mail address;
     The taxon of the noxious weed;
     Plant parts to be moved;
     Quantity of noxious weeds to be moved per shipment;
     Proposed number of shipments per year,
     Origin of the noxious weeds;
     Destination of the noxious weeds;
     Whether the noxious weed is established in the State of 
destination;
     Proposed method of shipment;
     Approximate date of movement;
     Intended use of the noxious weeds;
     Measures to be employed to prevent danger of noxious weed 
dissemination; and
     Proposed method of final disposition of the noxious weeds.
    The regulations do not currently indicate what information must be 
provided when applying for a permit, meaning that the information we 
receive sometimes does not allow us to fully evaluate the application. 
Requiring that responsible persons applying for a permit to import 
noxious weeds or move them interstate provide this information will 
allow APHIS to evaluate the permit applications more quickly and 
thoroughly and to followup in case any part of a permit application is 
unclear.
    Proposed paragraph (c) would provide that permits to move noxious 
weeds through the United States would be obtained in accordance with 
the plant quarantine safeguard regulations in 7 CFR part 352. The 
regulations in 7 CFR part 352 provide a general framework for 
regulating the movement of plants, plant products, and other articles 
through the United States to prevent the dissemination of plant pests. 
We have determined that 7 CFR part 352 provides an appropriate 
framework for regulating the movement of noxious weeds through the 
United States as well.
    To accommodate this change, we would make the following changes to 
the regulations in 7 CFR part 352: Refer to noxious weeds in addition 
to other plant products; refer to the noxious weeds regulations in 7 
CFR part 360 as well as the foreign quarantine notices in 7 CFR part 
319 and the plant pest movement regulations in 7 CFR part 330; and 
refer to preventing the dissemination of noxious weeds as well as plant 
pests. These changes can be found in the regulatory text at the end of 
this document.\2\
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    \2\ Paragraph (d) of Sec.  352.5 contains two references to 
``parts 319.'' These references are intended to include both 7 CFR 
part 319 and 7 CFR part 330. We would correct the error and add a 
reference to 7 CFR part 360 as well.
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    We are proposing to add a new section on approving permit 
applications. Currently, paragraph (b) of Sec.  360.300 provides that 
the Deputy Administrator will issue a written permit for the movement 
of a noxious weed into or through the United States, or interstate, if 
application is made for such movement and if the Deputy Administrator 
determines that such movement, under conditions specified in the 
permit, would not involve a danger of dissemination of the noxious weed 
in the United States, or interstate.
    We would discuss in more detail the factors that we will consider 
in determining whether to approve an application for a permit to move 
noxious weeds in proposed Sec.  360.302. Proposed Sec.  360.302, 
``Consideration of applications for permits to move noxious weeds,'' 
would state that, 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.

[[Page 27459]]

    Paragraph (a) of proposed Sec.  360.302 would provide that 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. The list of 
entities with which the Administrator may consult is taken from section 
431(a) of the PPA.
    Paragraph (b) of proposed Sec.  360.302 would provide that 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.
    Currently, paragraph (c) of Sec.  360.300 states that any permits 
issued under that section will contain in written form any conditions 
(other than the conditions in 7 CFR part 360) under which the permit is 
to be granted, e.g., conditions with respect to shipment, storage, and 
destruction. Proposed Sec.  360.303, ``Approval of an application for a 
permit to move a noxious weed; conditions specified in permit,'' would 
provide more detail on this process. It would state that the 
Administrator will approve or deny an application for a permit to move 
a noxious weed. If the application is approved, the Administrator would 
issue the permit including any conditions that the Administrator had 
determined would be necessary to prevent dissemination of noxious weeds 
into the United States or interstate. Such conditions could 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 would require the 
responsible person to agree in writing to the conditions under which 
the noxious weed will be safeguarded.
    Currently, paragraph (d) of Sec.  360.300 states that, if a permit 
application is denied, the applicant shall be furnished the reasons for 
the denial. Paragraph (e) of Sec.  360.300 states that the Deputy 
Administrator may revoke any outstanding permit issued under Sec.  
360.300, and may deny future permit applications, if the Deputy 
Administrator determines that the issuee has failed to comply with any 
provision of the Act or this section, including conditions of any 
permit issued. Paragraph (e) also provides that, upon request, any 
permit holder will be afforded an opportunity for a hearing with 
respect to the merits or validity of any such revocation involving his 
or her permit.
    Proposed Sec.  360.304, ``Denial of an application for a permit to 
move a noxious weed; cancellation of a permit to move a noxious weed,'' 
would provide more specific information on potential reasons for 
denying a permit and reasons for canceling a permit. It would also 
provide more details about the hearing process that is available to 
permittees when a permit is canceled.
    Under paragraph (a) of proposed Sec.  360.304, the Administrator 
could deny an application for a permit to move a noxious weed when the 
Administrator has determined that:
     No safeguards adequate or appropriate to prevent 
dissemination of the noxious weed can be implemented; or
     The destructive potential of the noxious weed, should it 
escape despite proposed safeguards, outweighs the probable benefits to 
be derived from the proposed movement and use of the noxious weed; or
     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
     The movement could impede an APHIS eradication, 
suppression, control, or regulatory program; or
     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.
    It is important 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 one of these conditions was true. For example, 
if a State plant regulatory official objected to the issuance of a 
permit, the Administrator could still approve the permit if the 
Administrator determined that the safeguards specified in the permit 
were adequate to address the risk of dissemination.
    Under paragraph (b) of proposed Sec.  360.304, the Administrator 
could cancel any outstanding permit when:
     After the issuance of the permit, information is received 
that constitutes cause for the denial of an application for permit 
under proposed paragraph Sec.  360.304(a); or
     The responsible person has not maintained the safeguards 
or otherwise observed the conditions specified in the permit.
    Paragraph (c) of proposed Sec.  360.304 would provide that, if a 
permit is orally canceled, APHIS would 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 
would be allowed to appeal the decision in writing to the Administrator 
within 10 days after receiving the written notification of the 
cancellation or denial. The appeal would have to state all of the facts 
and reasons upon which the person relies to show that the permit was 
wrongfully canceled or denied. The Administrator would 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 would be held to resolve the conflict. Rules 
of practice concerning such a hearing would be adopted by the 
Administrator.
    Currently, the regulations in Sec.  360.300 do not address the 
disposal of noxious weeds when a permit is canceled. Proposed Sec.  
360.305 would provide that, when a permit for the movement of a noxious 
weed is canceled by the Administrator and not reinstated under proposed 
Sec.  360.304(c), further movement of the noxious weed covered by the 
permit into or through the United States, or interstate, would be 
prohibited unless authorized by another permit. The responsible person 
would have to 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 would be able to 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. 
This is consistent with APHIS' authority under the PPA.
    These new sections would provide applicants for permits to move 
noxious weeds and current permit holders with more detailed information 
on the processes for applying for, approving or denying, and canceling 
a permit.

[[Page 27460]]

New Section With Treatment for Niger Seed

    The nursery stock regulations in Sec.  319.37-6 require Guizotia 
abyssinica (niger) seeds to be heat treated in accordance with 7 CFR 
part 305, either before importation or at the time of arrival at the 
port of first arrival in the United States, for the presence of various 
noxious weed seeds including Cuscuta spp. If the seeds are treated 
before importation, paragraph (c) of Sec.  319.37-6 requires the seeds 
to be treated at a facility that is approved by APHIS in accordance 
with 7 CFR part 305 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. The treatments must be 
certified in accordance with the conditions described in Sec.  319.37-
13(c).
    Most niger seed is imported not for use as nursery stock, however, 
but for use as birdseed. To ensure that the regulations in 7 CFR 
chapter III clearly require niger seed to be treated regardless of its 
intended use, we are proposing to add a new section Sec.  360.400 to 
the noxious weed regulations that would require imported niger seed to 
be treated under the same conditions that are currently specified in 
Sec.  319.37-6.
    We are also proposing to correct an editorial error in Sec.  
319.37-6(c), to clarify the conditions under which niger seed may be 
treated prior to importation into the United States.

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, the regulations do not contain any information about this 
process. We are proposing to add new Sec. Sec.  360.500 and 360.501 to 
provide such information.
    Proposed Sec.  360.500 would describe the process for petitioning 
to add a taxon to the noxious weed list. This section would state that 
a person may petition the Administrator to have a taxon added to the 
noxious weeds lists in Sec.  360.200. The section would also state that 
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.pdf. Persons who submit 
a petition to add a taxon to the noxious weed lists would be required 
to provide their name and contact information, in case we need to 
followup with them to clarify details of a petition. Persons who submit 
a petition would also be encouraged to provide several pieces of 
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. However, providing such information would not be 
required.
    Petitioners would be encouraged to provide the following 
information for identification of the noxious weed:
     The taxon's scientific name and author;
     Common synonyms;
     Botanical classification;
     Common names;
     Summary of life history;
     Native and world distribution;
     Distribution in the United States, if any (specific 
States, localities, or Global Positioning System coordinates);
     Description of control efforts, if established in the 
United States; and
     Whether the taxon is regulated at the State or local 
level.
    Petitioners would be encouraged 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 patterns, property values, or use of chemicals to 
control the taxon).
    Petitioners would also be encouraged to provide the following 
information about the likelihood of the taxon's introduction or spread:
     Potential pathways for the taxon's movement into and 
within the United States; and
     The likelihood of survival and spread of the taxon within 
each pathway.
    Finally, petitioners would be encouraged to provide a list of 
references for the information discussed above.
    Similarly, proposed Sec.  360.501 would describe the process for 
petitioning to remove a taxon from the noxious weed list. This section 
would state that a person may petition the Administrator to remove a 
taxon from the noxious weeds lists in Sec.  360.200. The section would 
also state that 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 and contact information, in 
case we need to followup with them to clarify details of a petition. 
Persons who submit a petition would also be 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. However, providing such information would not 
be required.
     Evidence that the species is distributed throughout its 
potential range or has spread too far to implement effective control;
     Evidence that control efforts have been unsuccessful and 
further efforts are unlikely to succeed; and
     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.
    Petitioners would also be encouraged to provide a list of 
references for this information.

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

    Paragraph (c) of Sec.  360.200 lists terrestrial noxious weeds. 
Such weeds may not be imported into and through the United States, or 
moved interstate except with a permit obtained in accordance with Sec.  
360.300. In addition, as mentioned earlier in this document, paragraph 
(a)(1) of Sec.  361.6 lists species of noxious weed seeds with no 
tolerances applicable to their introduction into the United States.
    We are proposing to 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). These taxa are:
     Acacia nilotica (Linnaeus) Wildenow ex Delile (prickly 
acacia), a

[[Page 27461]]

perennial non-climbing shrub or tree. A. nilotica is a serious weed in 
South Africa and Australia, where it aggressively replaces grasslands 
with thorny thickets. Seedlings and young trees of A. nilotica are 
protected from grazing by thorns, and the plants have long-distance 
dispersal mechanisms allowing uncontrolled spread, large seed 
production, and long-lived seeds. Young A. nilotica plants grow 
rapidly, and the plants are tolerant of drought, fire, and salinity. 
Potential pathways for the introduction of A. nilotica into the United 
States include ornamental seed shipments, sale of seeds for medicinal 
purposes, and intentional importation in passenger baggage. A. nilotica 
occurs in Puerto Rico and the Virgin Islands, and may also be in 
Hawaii. It is possibly cultivated in other States, as it is offered for 
sale by at least three U.S. nurseries. We invite public comment on the 
distribution of A. nilotica in the United States.
     Ageratina riparia (Regel) R.M. King and H. Robinson 
(mistflower), a perennial erect or sprawling herb to subshrub. Colonies 
of A. riparia increase in density and size by spreading horizontally 
and rooting at the nodes. The plant thrives in misty, upland pastures 
and mountainous areas with high rainfall, and its leaf litter is 
allelopathic, inhibiting the growth of other species. A. riparia is a 
serious weed in Africa, India, Indonesia, Papua New Guinea, Southeast 
Asia, Australia, New Zealand, Jamaica, Hawaii, and Madagascar. In 
Hawaii Volcanoes National Park, the weed competes with native plants 
and occupies disturbed areas. A. riparia has been introduced as a 
contaminant in ornamental and agricultural material and is both an 
agricultural and environmental weed.
     Arctotheca calendula (Linnaeus) Levyns (capeweed), a flat, 
stemless or short-stemmed, spreading, rosette-forming annual (or 
perennial in areas with frost-free climate). A. calendula produces 
stolons, which root at the nodes and are often vigorous. It is capable 
of infesting turf and pasture, competing with many kinds of crops, 
causing allergies and dermatitis in sensitive people, and negatively 
affecting stock production, with likely impacts to both agriculture and 
the environment. A. calendula is currently present in California. 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 escape from cultivation. In addition, identifying a plant as a 
member of one type or another of A. calendula can be difficult. We 
invite public comment on whether it is appropriate to regulate the 
entire species A. calendula or whether we should only regulate the 
purple-flowered, seed-producing type.
     Euphorbia terracina Linnaeus (false caper), a glabrous 
erect leafy perennial. An aggressive plant, it forms dense stands that 
inhibit the growth of native plants, competing with crops and pasture 
plants. In Western Australia, E. terracina is a serious weed of grazing 
land. E. terracina is avoided by livestock and can be toxic to animals.
     Inula britannica Linnaeus (British elecampane), an erect 
biennial. I. britannica has been found in Michigan and Minnesota, where 
it is regulated by those States, and in the Netherlands. It was 
initially detected in Michigan in nurseries with hosta imported from 
the Netherlands. I. britannica has negative impacts on surrounding 
hosta, which must be sacrificed if chemical control efforts are 
undertaken.
     Onopordum acaulon Linnaeus (stemless thistle), a prostrate 
annual or biennial herb. The plant is found in roadsides, wastelands, 
cultivated land, and pastures. O. acaulon reduces carrying capacity of 
pasture, and livestock eating the plant suffer impaction and liver 
damage. The seeds of O. acaulon are long-lived in soil.
     Onopordum illyricum Linnaeus (Illyrian thistle), a tall, 
erect annual or biennial herb. In California, where O. illyricum is 
currently found and regulated, the plant is found in natural areas, 
disturbed sites, roadsides, fields, and especially in sites with 
fertile soils. O. illyricum is difficult to control and has the 
potential to infest pastures, reduce carrying capacity, and create 
physical barriers to stock and wildlife.
    To evaluate the possibility that these taxa could be noxious weeds, 
we have prepared a weed risk assessment (WRA) for each taxon. Copies of 
the WRAs may be obtained from the person listed under FOR FURTHER 
INFORMATION CONTACT or viewed on the Regulations.gov Web site (see 
ADDRESSES above for a link to Regulations.gov).
    The WRAs conclude that the taxa listed above qualify as Federal 
noxious weeds. They also conclude that the introduction or further 
spread of those taxa could 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. Therefore, pursuant to APHIS' authority under the PPA, we 
have determined that it is necessary to place restrictions on their 
importation and interstate movement, and we are proposing to list those 
seven taxa as terrestrial noxious weeds in Sec.  360.200(c) and as 
noxious weed seeds with no tolerances applicable to their introduction 
in Sec.  361.6(a)(1).

Updates and Corrections in Current Entries for Noxious Weeds in 
Sec. Sec.  360.200 and 361.6(a)(1)

    We are proposing to make several updates, corrections, and 
clarifications in the lists of noxious weeds in Sec.  360.200 and the 
list of noxious weed seeds with no tolerances applicable to their 
introduction in Sec.  361.6(a)(1). For some of the taxa listed in these 
paragraphs, the accepted names have changed. In addition, these lists 
contain a few spelling errors and incorrect or incomplete author 
designations. We are proposing to update and correct the entries for 
these taxa. These proposed changes are set forth in the regulatory text 
at the end of this document.
    In Sec.  360.200, we are proposing to change the designation of 
Caulerpa taxifolia to add the author's name and a common name and to 
clarify that only the Mediterranean strain is regulated as a noxious 
weed. The new entry would thus read: ``Caulerpa taxifolia (Vahl) C. 
Agardh, Mediterranean strain (killer algae).'' We would remove the 
entry for C. taxifolia from the list of noxious weed seeds with no 
tolerances applicable to their introduction in Sec.  361.6(a)(1), since 
a marine alga would not be found in seed shipments.
    The list of parasitic noxious weeds in Sec.  360.200(b) contains an 
entry for Cuscuta spp. but lists exceptions for species within that 
genus that are native to or widespread in the United States. Three of 
the species listed as exceptions under Cuscuta spp., C. jepsonii, C. 
occidentalis, and C. nevadensis, have been determined to be synonyms of 
three other species listed as exceptions--respectively, C. indecora, C. 
californica, and C. veatchii. (C. veatchii is currently listed in the 
regulations as C. vetchii; we would correct that error.) Accordingly, 
we would remove C. jepsonii, C. occidentalis, and C. nevadensis from 
the list of exceptions under Cuscuta spp. in Sec.  360.200(b).
    The names listed in the regulations for two species listed in Sec.  
360.200(c), the list of terrestrial noxious weeds, and Sec.  
361.6(a)(1) are not the currently accepted botanical names. 
Accordingly, we would replace the entry for Digitaria scalarum with an 
entry for D. abyssinica in Sec.  360.200(c) and replace the entry for 
Digitaria abyssinica (=D. scalarum) in

[[Page 27462]]

Sec.  361.6(a)(1) with an entry that simply refers to D. abyssinica. In 
both Sec. Sec.  360.200(c) and 361.6(a)(1), we would replace the entry 
for Mimosa invisa with an entry for M. diplotricha.
    Both Sec. Sec.  360.200(c) and 361.6(a)(1) contain entries for 
Homeria spp. However, this genus, and several other genera from the 
family Iridaceae, have been reclassified and transferred to the large 
genus Moraea. The PRA that we prepared to help evaluate whether we 
should add Homeria spp. to the noxious weed list considered specific 
species within the genus Homeria. These species are now classified as 
Moraea collina, M. flaccida, M. miniata, M. ochroleuca, and M. pallida. 
Accordingly, we would 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 M. collina, M. flaccida, M. miniata, M. ochroleuca, and M. 
pallida in its place.

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 the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    This proposal would make several changes to the regulations 
governing the importation and interstate movement of noxious weeds. It 
would add definitions of terms used in the regulations, add details 
regarding the process of applying for the permits used to import or 
move noxious weeds, add a requirement for the treatment of niger seed, 
and add provisions for petitioning to add a taxon to or remove a taxon 
from the noxious weed lists. These changes would update the regulations 
to reflect current statutory authority and program operations and 
improve the effectiveness of the regulations. The proposal would also 
add seven taxa to the list of terrestrial noxious weeds and to the list 
of seeds with no tolerances applicable to their introduction. This 
action would prevent the introduction or dissemination of these noxious 
weeds into or within the United States.
    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), this analysis considers the impact on small businesses, small 
organizations, and small governmental jurisdictions. Section 603 of the 
Act requires agencies to prepare and make available for public comment 
an initial regulatory flexibility analysis (IRFA) describing the 
expected impact of proposed rules on small entities. Sections 603(b) 
and 603(c) of the Act specify the content of an IRFA. The IRFA 
requirements are addressed in the following sections.

Reasons Action Is Being Considered

    To add clarity and provide transparency, it has become necessary to 
update and expand the regulations in 7 CFR parts 360 and 361. Seven 
additional weeds that have been identified as noxious weeds need to be 
added to the noxious weeds list. The addition of these seven additional 
taxa to the noxious weeds list would help prevent their introduction 
into the United States or their spread into noninfested areas of the 
United States. In addition, the list of noxious weeds in the 
regulations needs to be updated. Updating the regulations would help 
ensure that the regulated community can easily determine what taxa may 
only be imported or moved interstate under a permit.

Objectives and Legal Basis for the Proposed Rule

    The main objective of the proposed rule is to update the 
regulations that govern the movement of noxious weeds (7 CFR parts 360 
and 361). This action is authorized by the PPA, which authorizes the 
Secretary of Agriculture to implement programs and policies designed to 
prevent the introduction and spread of plant pests and noxious weeds. 
Specifically, the Act authorizes the Secretary to regulate the 
importation and interstate movement of noxious weeds, which can damage 
crops, livestock, and other agricultural interests, as well as impede 
navigation and cause harm to irrigation systems, public health, and the 
environment.

Description and the Number of Small Entities Regulated

    For the purpose of this analysis and following the Small Business 
Administration (SBA) guidelines, we note that a major segment of 
entities potentially affected by the proposed rule are classified 
within the following industries: Nursery and Tree Production (North 
American Industry Classification System [NAICS] code 111421), and 
Floriculture Production (NAICS 111422).\3\ For these two industry 
categories, entities are considered small by SBA standards if annual 
sales are $750,000 or less. According to the Census of Agriculture, 
these two categories included 64,366 farms in 2002, and represented 3 
percent of all farms in the United States. Over 92 percent of the farms 
had annual sales of less than $500,000 and by SBA standards are thus 
considered small.
---------------------------------------------------------------------------

    \3\ As observed in the preceding paragraph, other agricultural 
and nonagricultural industries and resources can be negatively 
affected by the introduction of noxious weeds. The nursery and 
floriculture industries are representative of these other industries 
in terms of being comprised largely of small entities.
---------------------------------------------------------------------------

    As there have been no previous restrictions on their importation 
other than the general restrictions on the importation of nursery stock 
in Sec. Sec.  319.37 through 319.37-14, the seven new species that 
would be added to the noxious weed list may currently be imported into 
the United States as ornamental crops under certain conditions. 
However, based on the WRAs, these species are not known to be 
economically significant in the United States. Adding these noxious 
weeds to the regulations is not expected to have an economic effect on 
small entities in terms of restricting existing markets. However, APHIS 
welcomes public comment on the likely effects of the rule.

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 proposed rule has been reviewed under Executive Order 12988, 
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

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. APHIS-
2007-0146. Please send a copy of your comments to: (1) Docket No. 
APHIS-2007-0146, Regulatory Analysis and Development, PPD, APHIS, 
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, 
and (2) Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and 
Independence Avenue, SW., Washington, DC 20250. A comment to

[[Page 27463]]

OMB is best assured of having its full effect if OMB receives it within 
30 days of publication of this proposed rule.
    We are proposing to make several changes to update the regulations 
governing the importation and interstate movement of noxious weeds. We 
would add definitions of terms used in the regulations, add 
requirements for the permits used to import or move noxious weeds, add 
a requirement for the treatment of niger seed, and add provisions for 
petitioning to add a taxon to or remove a taxon from the noxious weed 
lists. These actions will necessitate information collection for 
permits and for petitions to add a taxon to or remove a taxon from the 
noxious weed lists.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 16 hours per response.
    Respondents: Researchers.
    Estimated annual number of respondents: 2.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 2.
    Estimated total annual burden on respondents: 32 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
851-2908.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

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.

    Accordingly, we are proposing to amend 7 CFR parts 319, 352, 360, 
and 361 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    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]

    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

    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.


Sec.  352.2  [Amended]

    4. Section 352.2 is amended as follows:
    a. In paragraph (a), 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.
    b. In paragraph (b), by removing the words ``319 or 330'' and 
adding the words ``319, 330, or 360'' in their place.


Sec.  352.3  [Amended]

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


Sec.  352.5  [Amended]

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


Sec.  352.6  [Amended]

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


Sec.  352.7  [Amended]

    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]

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


Sec.  352.10  [Amended]

    10. Section 352.10 is amended as follows:
    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.
    b. In paragraphs (b)(1), (b)(2), and (c), by adding the words ``or 
noxious weed'' before the word ``dissemination'' each time it occurs.

[[Page 27464]]

    c. In paragraph (b)(2), by removing the words ``319 and 330'' and 
adding the words ``319, 330, or 360'' in their place.


Sec.  352.11  [Amended]

    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]

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


Sec.  352.15  [Amended]

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

PART 360--NOXIOUS WEED REGULATIONS

    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.

    15. Section 360.100 is amended as follows:
    a. By removing the introductory text of paragraph (b).
    b. By redesignating paragraph (a) as undesignated introductory 
text.
    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.
    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.
    16. Section 360.200 is amended as follows:
    a. By revising the introductory text, including footnote 1, to read 
as set forth below.
    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.
    c. In paragraph (b), by removing the entries for ``Cuscuta jepsonii 
Yuncker,'' ``Cuscuta nevadensis I.M. Johnston,'' and ``Cuscuta 
occidentalis Millspaugh ex Mill & Nuttall;'' and 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 umbellata 
Humboldt, Bonpland, & Kunth,'' and ``Cuscuta vetchii Brandegee'' to 
read as set forth below.
    d. In paragraph (c), by removing the entries for ``Digitaria 
scalarum (Schweinfurth) Chiovenda (African couchgrass, fingergrass),'' 
``Homeria spp.,'' and ``Mimosa invisa Martius (giant sensitive 
plant)''.
    e. 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.
    f. In paragraph (c), by adding, in alphabetical order, entries for 
``Acacia nilotica (Linnaeus) Wildenow ex Delile (prickly acacia),'' 
``Ageratina riparia (Regel) R.M. King and H. Robinson (mistflower),'' 
``Arctotheca calendula (Linnaeus) Levyns (capeweed),'' ``Digitaria 
abyssinica (Hochstetter ex A. Richard) Stapf (African couchgrass, 
fingergrass),'' ``Euphorbia terracina Linnaeus (false caper),'' ``Inula 
britannica Linnaeus (British elecampane),'' ``Mimosa diplotricha C. 
Wright (giant sensitive-plant),'' ``Moraea collina Thunberg (apricot 
tulp),'' ``Moraea flaccida (Sweet) Steudel (one-leaf Cape-tulip),'' 
``Moraea miniata Andrews (two-leaf Cape-tulip),'' ``Moraea ochroleuca 
(Salisbury) Drapiez (red tulp),'' ``Moraea pallida (Baker) Goldblatt 
(yellow tulp),'' ``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

[[Page 27465]]

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


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

    (a) No person may move a Federal noxious weed into or through the 
United States, or interstate, unless:
    (1) He or she applies for a permit to move a noxious weed in 
accordance with Sec.  360.301;
    (2) The permit application is approved; and
    (3) The movement is consistent with the specific conditions 
contained in the permit.
    (b) Persons who move noxious weeds into or through the United 
States, or interstate, without complying with paragraph (a) of this 
section will be subject to such criminal and civil penalties as are 
provided by the Plant Protection Act (7 U.S.C. 7701 et seq.). (Approved 
by the Office of Management and Budget under control number 0579-0054)
    18. New Sec. Sec.  360.301 through 360.305, 360.400, 360.500, and 
360.501 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

[[Page 27466]]

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; cancellation 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 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  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.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

[[Page 27467]]

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:
    (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

    19. 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.

    20. In Sec.  361.6, paragraph (a)(1) is amended as follows:
    a. By removing the entries for ``Caulerpa taxifolia (Mediterranean 
clone)'', ``Homeria spp.'', and ``Mimosa invisa Martius''.
    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.
    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'', 
``Digitaria abyssinica (Hochstetter ex A. Richard) Stapf'', ``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 3rd day of June 2009.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-13507 Filed 6-9-09; 8:45 am]
BILLING CODE 3410-34-P