[Federal Register Volume 69, Number 206 (Tuesday, October 26, 2004)]
[Proposed Rules]
[Pages 62419-62421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23921]

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.


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

[[Page 62419]]


Animal and Plant Health Inspection Service

7 CFR Part 360

[Docket No. 04-037-1]

Noxious Weeds; Notice of Availability of Petitions To Regulate 

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Petitions and request for comments.


SUMMARY: We are advising the public that the Animal and Plant Health 
Inspection Service has received two petitions requesting that 
additional aquatic plants of the genus Caulerpa be added to the list of 
noxious weeds. We are soliciting public comments on the petitions and 
the implications of adopting them.

DATES: We will consider all comments that we receive on or before 
December 27, 2004.

ADDRESSES: You may submit comments by any of the following methods:
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 04-037-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 04-037-1.
     E-mail: Address your comment to 
regulations@aphis.usda.gov. Your comment must be contained in the body 
of your message; do not send attached files. Please include your name 
and address in your message and ``Docket No. 04-037-1'' on the subject 
     Agency Web Site: Go to http://www.aphis.usda.gov/ppd/rad/cominst.html for a form you can use to submit an e-mail comment through 
the APHIS Web site.
    Petitions: The petitions discussed in this document are available 
on the APHIS Web site at http://www.aphis.usda.gov/ppq/weeds/ or from 
the individual listed as the contact for further information.
    Reading Room: You may also review all documents associated with 
this notice in our reading room, which is located in room 1141 of the 
USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: You may view APHIS documents published in the 
Federal Register and related information, including the names of groups 
and individuals who have commented on APHIS dockets, on the Internet at 

Program Coordinator, Invasive Species and Pest Management, PPQ, APHIS, 
4700 River Road Unit 134, Riverdale, MD 20737-1237; (301) 734-5225.



    The Plant Protection Act (7 U.S.C. 7701 et seq.) (PPA) authorizes 
the Secretary of Agriculture to prohibit or restrict the importation, 
entry, exportation, or movement in interstate commerce of any plant, 
plant product, biological control organism, noxious weed, article, or 
means of conveyance if the Secretary determines that the prohibition or 
restriction is necessary to prevent the introduction of a plant pest or 
noxious weed into the United States or the dissemination of a plant 
pest or noxious weed within the United States. The PPA defines 
``noxious weed'' as ``* * * any plant or plant product that can 
directly or indirectly injure or cause damage to crops (including 
nursery stock or plant products), livestock, poultry or other interests 
of agriculture, irrigation, navigation, the natural resources of the 
United States, the public health, or the environment.'' The PPA also 
provides that the Secretary may publish, by regulation, a list of 
noxious weeds that are prohibited or restricted from entering the 
United States or that are subject to the restrictions on interstate 
movement within the United States, and that any person may petition the 
Secretary to add a plant species to, or remove a plant species from, 
the regulations issued by the Secretary.
    The Animal and Plant Health Inspection Service (APHIS) of the U.S. 
Department of Agriculture (USDA), regulates the importation and 
interstate movement of noxious weeds under 7 CFR part 360, ``Noxious 
Weed Regulations'' (referred to below as the regulations), which were 
established in 1976 under the authority of the Federal Noxious Weed Act 
    Section 360.200 of the regulations lists noxious weeds. In this 
section, noxious weeds are divided into three categories: Aquatic 
weeds, parasitic weeds, and terrestrial weeds. Listed noxious weeds are 
only eligible to be moved into or through the United States, or 
interstate, under a permit granted by APHIS. Persons who move noxious 
weeds under permit must follow all the conditions contained in the 
permit with regard to storage, shipment, cultivation, and propagation.
    There are typically five steps in adding a weed to the list of 
noxious weeds in Sec.  360.200 \1\:

    \1\ See APHIS' Guide to the Listing Process for Federal Noxious 
Weeds at http://www.aphis.usda.gov/ppq/weeds/listingguide.pdf.

    (1) Identify a weed that may meet the definition of a ``quarantine 
pest'' (a pest of potential economic importance to the area endangered 
thereby and not yet present there, or present but not widely 
distributed and being officially controlled);
    (2) Prepare a risk assessment that establishes the identity of the 
weed (scientific name, common name, description, etc.); verifies 
quarantine pest status; assesses habitat suitability in the United 
States, including the likelihood of introduction, dispersal and 
survival; provides information on potential environmental and economic 
impacts; characterizes pest risk (low, medium, high, etc.); and cites 
    (3) Publish a proposed rule in the Federal Register;
    (4) Analyze and respond to public comments; and
    (5) Publish a final rule in the Federal Register if appropriate.
    On March 16, 1999, APHIS published a final rule in the Federal 
Register (64 FR 12881-12884, Docket No. 98-063-2) adding Caulerpa 

[[Page 62420]]

(Mediterranean clone) to the list of aquatic weeds in Sec.  360.200(a). 
This listing was prompted by a petition for action addressed to the 
Secretary of the Interior dated October 19, 1998, asking him to work 
with the USDA to list the Mediterranean strain as a noxious weed, and 
followed a report prepared for the Aquatic Nuisance Species Task Force 
by the Fish and Wildlife Service. Based on the report, APHIS determined 
that the Mediterranean clone met the definition of a quarantine pest 
and provided a high level of risk.
    C. taxifolia (Mediterranean clone) has invaded the Mediterranean 
coasts of France and Italy and now covers thousands of acres of the 
coastal zone. This invasive, aquarium-bred strain appears to have been 
introduced into the Mediterranean Sea from the Monaco Aquarium in 1984. 
It covered approximately 1 square yard in 1984, spread to over 2 acres 
by 1989, and now covers over 10,000 acres, extending from the shore to 
depths of over 250 feet. C. taxifolia (Mediterranean clone) grows on 
both rocky and sandy bottoms, from protected bays to exposed capes, and 
attains great densities, forming monocultural stands whose impact has 
been compared to unrolling a carpet across the bottom of the sea. In 
the regions where it is established, C. taxifolia (Mediterranean clone) 
has caused ecological devastation by overgrowing and eliminating native 
seaweeds, sea grasses, and invertebrates (such as corals, sea fans, and 
sponges) and has caused economic damage by harming tourism and 
recreational diving and creating a costly impediment to commercial 
fishing. No effective eradication strategies have been identified for 
C. taxifolia (Mediterranean clone), partly because it has the ability 
to regenerate from small fragments.
    On April 29, 2003, the International Center for Technology 
Assessment sent APHIS a petition requesting that APHIS add the entire 
Caulerpa genus to the list of noxious weeds. A second petition, 
submitted by the same organization on April 30, 2003, requested, in the 
event the first petition was denied, that APHIS add all varieties of 
the species C. taxifolia to the list of noxious weeds.
    In their first petition, the petitioners cite several sources that 
provide information to support the listing of four additional species 
of Caulerpa to the noxious weed list: C. scalpelliformis, C. racemosa, 
C. verticillata, and C. brachypus. According to the petitioners, it is 
too difficult to tell the difference between species of Caulerpa due to 
their morphological variability, especially when tiny fragments of the 
species could be imported into the United States in the crevices of 
what are sold as ``live rocks,'' and because of this, all species of 
Caulerpa must be designated as noxious weeds.
    The second petition states that at least two new strains of C. 
taxifolia have been discovered in Australia. These strains, which lack 
scientific or recognized common names, are described by the petitioners 
as genetically distinct from the Mediterranean strain. The petitioners 
maintain that it would be impossible to list all genetically distinct 
strains of the algae as separate noxious weeds and, therefore, they 
request the amendment of the regulations by removing the parenthetical 
(Mediterranean clone) so that the noxious weed listing includes all 
varieties of C. taxifolia.
    The scope of the regulations continues to expand as new invasive 
plants and new pathways for the introduction of invasive plants are 
brought to our attention. With few exceptions, APHIS has regulated only 
vascular plants that present a risk of introducing plant pests or 
posing weed threats to agriculture or forest resources, and that move 
via pathways that are traditional targets for agricultural 
inspection.\2\ APHIS first regulated a species of nonvascular plant in 
1983 by listing invasive aquatic ferns as noxious weeds. The 1998 
listing of C. taxifolia (Mediterranean clone) marked the first time 
APHIS regulated a form of marine algae. The expanding scope of the 
noxious weed list poses new challenges for APHIS as unique pathways for 
marine algae, such as ``live rocks,'' live fish, and other mediums of 
transport, are nontraditional targets for agricultural inspection.

    \2\ Vascular plants have vessels in their tissues that carry 
fluids, such as water or sap. Nonvascular plants do not and are 
commonly referred to as ``lower plants'' because they do not achieve 
the structural complexity and size of vascular plants.

    Listing all species of Caulerpa as noxious weeds, or even all 
strains of C. taxifolia, as requested by the petitioner, would also 
extend our regulations to native species, as there are one or more 
strains of C. taxifolia native to Florida and Hawaii. As noted above, 
APHIS lists in the regulations only those weeds that meet the 
international definition of a quarantine pest; i.e., ``a pest of 
potential economic importance to the area endangered thereby and not 
yet present there, or present but not widely distributed and being 
officially controlled.'' This practice is consistent with the 
International Plant Protection Convention (IPPC), to which the United 
States is a signatory. Under the IPPC, a country may prohibit or 
restrict importation of quarantine pests or, in the case of 
contaminants in plants for planting, regulated nonquarantine pests. 
This practice is also consistent with sections 414 and 415 of the PPA, 
which authorize the Secretary to take general remedial measures or to 
declare an extraordinary emergency if necessary to prevent the 
introduction or spread of plant pests or noxious weeds that are new to 
or not known to be prevalent or distributed widely within and 
throughout the United States.
    There are other legal authorities such as the Nonindigenous Aquatic 
Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701, et seq.) 
that apply to marine algae. This Act established the Aquatic Nuisance 
Species Task Force, co-chaired by the Departments of the Interior and 
Commerce and consisting of several Federal agencies, including the 
Department of Agriculture and non-Federal entities. A Task Force 
Working Group, on which APHIS participates, is currently developing a 
national management plan for the genus Caulerpa that will include a 
range of approaches to Caulerpa prevention and management.
    Before receiving the petitions, we recognized that the present 
listing for C. taxifolia (Mediterranean clone) could be confusing, and 
we planned to amend it in a future rulemaking. We recognized it might 
be confusing because the noxious weed list includes common names in 
parentheses following the scientific names for other noxious weeds. In 
the case of C. taxifolia, (Mediterranean clone), we used parentheses to 
designate the regulated strain, not to provide a common name. While the 
term ``clone'' was in use at the time of the listing, ``strain'' is 
used most commonly in recent scientific literature. The term ``killer 
algae'' is in use as a common name. Therefore, we have considered 
changing the listing to Caulerpa taxifolia, Mediterranean strain 
(killer algae). We also planned to change the wording of the footnote 
in Sec.  360.200 to clarify that a scientific name includes all 
subordinate taxa except in the case of C. taxifolia, where we only 
regulate the Mediterranean strain. The footnote would read ``Except for 
C. taxifolia, scientific names include all subordinate taxa. For 
example, taxa listed at the genus level include all species, 
subspecies, varieties and forms within the genus; taxa listed at the 
species level include all subspecies, varieties and forms within the 
species. In the case of C. taxifolia, the listing includes only the 
Mediterranean strain.'' We will be making these changes in a future 
separate rulemaking.

[[Page 62421]]

Request for Comments

    We are publishing this notice to inform the public that APHIS will 
accept written comments from the public regarding these petitions for 
60 days. This is the first time APHIS has published a notice of 
availability of petitions to list noxious weeds and sought comments. We 
are publishing these petitions and seeking comments because the 
petitions raise unusually complex and controversial issues.

Issues for Discussion

    We are particularly interested in comments pertaining to the 
following issues. We request responses to the bulleted questions at the 
end of each section:
    In accordance with international agreements, APHIS supports all 
noxious weed listings with risk assessments based on data and other 
published information. Depending on the source of the information, the 
number of Caulerpa species ranges from 70 to about 1,000. However, 
there has been little scientific research on Caulerpa, and many species 
have not been fully characterized. The petitioners requested that all 
species of Caulerpa be listed as noxious weeds and submitted 
information concerning four species, in addition to C. taxifolia, that 
have caused harmful invasions: C. scalpelliformis, C. racemosa, C. 
verticillata, and C. bracypus.
     What data is there to help us evaluate the risks 
associated with non-native species of Caulerpa other than C. taxifolia?
     How many and what species of Caulerpa and other 
nonvascular plants are currently being imported?
     In addition to aquatic plant shipments, ballast water, 
fishing gear, ``live rocks,'' and live fish, what other pathways exist 
that could potentially facilitate the spread of C. taxifolia 
(Mediterranean clone) and other demonstrably invasive, non-native 
Caulerpa species?
    We recognize that regulating the importation and interstate 
movement of marine algae is difficult. Most noxious weeds are 
introduced with common agricultural commodities and not in the marine 
aquarium trade. The pathways by which the algae may travel into the 
United States are not traditional targets for agricultural inspection. 
Among these potential pathways are ``live rocks,'' fishing gear, and 
live fish, where specimens may be merely fragments that are not clearly 
visible. In these cases, identifying the presence of C. taxifolia 
(Mediterranean clone) has been particularly difficult.
    Currently, APHIS's policy is to prohibit the entry of any plant 
intercepted at the port of entry if there is reason to believe that it 
is C. taxifolia (Mediterranean clone). The importer or exporter is 
given an opportunity to establish the identity of specimens that 
resemble C. taxifolia (Mediterranean clone). We consider any foreign 
origin Caulerpa to be suspect.
    Expanding our noxious weed program to cover additional species of 
Caulerpa would require additional funding, personnel, training, and 
possibly additional facilities and equipment as there is a lack of 
Agency expertise in the area of marine algae and no new funds 
automatically become available when a new weed is listed. It seems 
that, at this time, other Federal agencies are not able to provide 
financial or other resources in support. Without increased 
appropriations, the program expansion could divert attention and 
resources from APHIS's current weed programs.
     Given the difficulty of identifying C. taxifolia 
(Mediterranean clone), and the existence of native species of Caulerpa 
in United States waters, how could APHIS effectively regulate 
additional species and strains of marine algae?
     If we list additional species and strains of non-native 
marine algae, how should our current weed program resources be shifted 
in order to regulate these other strains or species as well as 
currently listed noxious weeds?
     If we list additional non-native species or strains of 
non-native marine algae, where should most of our existing resources 
and efforts be placed in order to be most effective? For example: 
Increased port of entry Inspection, surveying, eradication, public 
education, etc.

    Authority: 7 U.S.C. 7711-7714, 7718, 7731, 7751, and 7754; 7 CFR 
2.22, 2.80, and 371.3.

    Done in Washington, DC, this 21st day of October 2004.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 04-23921 Filed 10-25-04; 8:45 am]