UCS Urges APHIS to Enable States to Respond Rapibly to Urgent Invasive Species Problems

UCS Urges APHIS to Enable States to Respond Rapibly to Urgent Invasive Species Problems
UCS comments on APHIS’s proposal to amend domestic quarantine regulations for states.

June 5, 2006

Regulatory Analysis & Development
USDA PPD, APHIS Station 3A-03.8
4700 River Road, Unit 118
Riverdale, MD 20737-1238

Docket No. APHIS 2005—103

Dear Mr. Writer:

Thank you for the opportunity to comment on your proposal to amend domestic quarantine regulations for states to make “special needs requests.” We are pleased that you are detailing this authority, provided by the Plant Protection Act of 2000.

We support a process that is transparent, straightforward, and enables states and other jurisdictions to respond rapidly to urgent invasive species problems. Each of these features is essential. Because a number of states have already asked the Animal and Plant Health Inspection Service (APHIS) to recognize their special needs—and had their requests denied—it is important that USDA provide this guidance as soon as possible.

We submit the following recommendations on behalf of the Union of Concerned Scientists. UCS is a science-based membership group, with more than 200,000 members, supporters, and activists. We are the leading science-based nonprofit working for a healthy environment and a safer world.

Our comments, on pages 2-4, are listed in the order in which related topics appear in your proposal. Each topic is important, and we ask that you address them all. However, we rank them in priority order here, with the most significant first:

complying with Executive Order 13112;
setting criteria for a science-based, pathway approach;
the information required to support—and approve—applications;
the need for speedier action on requests, including interim steps;
the role of states and their political subdivisions;
determining presence of a pest within a state; and
defining “special needs.”
Also, we support, and incorporate by reference, public comments submitted by The Nature Conservancy, the International Center for Technology Assessment, and Defenders of Wildlife.

Supplementary information. Complying with Executive Order 13112

We find that this Executive Order applies and think it should be addressed in the supplementary information. As you know, this Executive Order requires federal agencies to take steps to ensure that their own actions do not contribute to the spread of invasive species:

“Sec. 2.(a)(3) [Each federal agency…shall…] not authorize, fund, or carry out actions that it believes are likely to cause or promote the introduction or spread of invasive species in the United States or elsewhere unless, pursuant to guidelines that it has prescribed, the agency has determined and made public its determination that the benefits of such actions clearly outweigh the potential harm caused by invasive species; and that all feasible and prudent measures to minimize risk of harm will be taken in conjunction with the actions.”

To our knowledge, APHIS has denied 100 percent of the special need requests submitted by states since passage of the Plant Protection Act. At least in the understanding of the states involved, APHIS’ actions left them more vulnerable to the spread of a serious pest and also made them subject to lawsuits, because they had enacted their own measures simultaneously with their requests to APHIS. These states’ increased vulnerability to Sudden Oak Death would seem to violate the requirements of federal agencies under Executive Order 13112. We are not aware, for example, that APHIS made an explicit determination that the benefits of its actions outweighed their “potential harm” for these states, nor that APHIS took steps to minimize the risks associated with its denials.

Sec.301.1-2(a). The role of states and their political subdivisions

We appreciate that APHIS stipulates that political subdivisions of states can generate requests. However, there is no requirement in the Plant Protection Act that such requests be submitted through the state nor have official sign-off of state officials. Since many special needs will be based on highly local conditions, we fear that this proposed rule could leave important resources and areas unprotected due to political, not scientific, differences between jurisdictions. The Nature Conservancy, in its comments, has provided you with suggestions for correcting this.

Sec.301.1-2(a)(1) through (4). Setting criteria for a science-based, pathway approach

In Sec.401.1, APHIS states that the regulations regard:

“…prohibitions or restrictions on the movement in interstate commerce of articles, means of conveyance, plants, plant products, biological control organisms…or noxious weeds.”

However, the proposed rules neglect each of the underlined areas, addressing only biological control organisms, noxious weeds, and plant pests. Many scientists and other experts now advocate a pathway-based, not a species-based, approach. See, for example, the highly regarded position paper, written by leading scientists for the Ecological Society of America, “Biological Invasions: Recommendations for U.S. Policy and Management,” released in 2006.

We recommend strongly that APHIS provide specific criteria by which special need requests can be made and approved regarding this broader list. Without doing so, APHIS risks violating its own requirement to use a science-based approach. Also, the Agency risks perpetuating an out-of-date approach, known to have limited effectiveness.

Sec.301.1-2(a)(1). Determining presence of a pest within a state

Please see comments by the International Center for Technology Assessment, with which we agree.

Sec. 301.1-2(a)(3). The information required to support—and approve—applications

The information that those making special need requests must supply should be limited to what is necessary, sufficient—and available. For example, our detailed research in several states shows that there is virtually no economic information of the kind APHIS proposes to require for a special needs request. We suggest that APHIS ask for such economic information, when available, but not make it an absolute requirement.

Nor should the information required exceed what can be known, scientifically; be stronger than the requirements of international standards; or be outside the capacity of “small entities” to produce. Note that “small entities,” as defined by the Small Business Administration, includes both small organizations and also small government agencies, as well as small businesses. All should be able to comply with the information required of a special needs request.

In many instances, it will be difficult to show that a certain species “would harm or injure the environment and/or cause economic harm to industries…” Thus, APHIS should take this opportunity to grapple with something that the Government Accountability Office, the former Office of Technology Assessment, and others have been urging for years: that APHIS stipulate a specific level of protection that it aims to meet, especially when dealing with a considerable amount of uncertainty. We recommend that the final rules specify: 1) at least a rough standard of protection, and also 2) that applications can show “harm or likelihood of harm”; and 3) that harm to public, plant, animal, or wildlife health be included in definitions of potential harms, as they are routinely elsewhere.

States and other jurisdictions are not likely to submit special needs requests unless their situation is serious enough to warrant the significant amount of time and resources such an application requires. Thus, we expect that, in most cases, APHIS will be justified in approving requests. APHIS should be bolstering state efforts as much as possible, especially in light of the Government Accountability Office’s recent report about federal failures (Homeland Security: Management and Coordination Problems Increase the Vulnerability of U.S. Agriculture to Foreign Pests and Disease, GAO May 2006). We recommend that APHIS review its proposal in light of this expectation, rather than assuming all requests will deserve to be denied.

When the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 was passed, it offered federal cost sharing to states for implementing newly authorized “aquatic nuisance species management plans,” provided they requested and received federal approval for these plans. In order to help states gain approval, a model plan was drafted and made widely available, ensuring that approval would be straightforward. Thus, state officials knew what content was required and could prepare plans with some assurance that their efforts would be successful. We recommend that APHIS use a similar process, especially because states and political subdivisions cannot afford to expend significant resources without a similar assurance of approval. That is, APHIS should provide states with a concrete example of a special needs request that meets the minimum requirements for approval.

Sec.301.1-2(a)(4). Defining “special need”

The term “special need” is not defined by the Plant Protection Act. Thus we find APHIS’ attempt to list several acceptable types of needs helpful and we would not want these narrowed. We recommend that your final rules include a specific definition, along with an even broader array of examples. We suggest that you specify explicitly that economic and institutional factors can be included along with geographic, ecological, biological, and historical ones. For example, you might list: “a state’s lack of capacity for rapid response and control; the ability/inability to eradicate or control a particular pest; recent state budget deficits; status of recovery from natural disasters; a location’s status as a major port”; etc.

Sec.301.1-3. The need for speedier action on requests, including interim steps.

This is a crucial part of the APHIS rules. Unfortunately, the current approach is inadequate—the proposal allows far too long for what is, essentially, a response to a state or local emergency. Please review comments submitted by The Nature Conservancy and the International Center for Technology Assessment for detailed suggestion on implementing interim rules. We support this approach.

Thank you for this opportunity to comment on your proposal. We look forward to your final rules and hope they incorporate our recommendations and those of our colleagues. If you have questions, please feel free to contact me.

Sincerely,

Phyllis N. Windle, Ph.D.
Senior Scientist

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