Redistributed as a Service of the National Library for the Environment*
Alejandro E. Segarra
Agricultural Policy Analyst
Jean M. Rawson
Agricultural Policy Specialist Resources,
November 16, 1999
The Animal & Plant Health Inspection Service (APHIS) is the agency of the U.S. Department of Agriculture (USDA) responsible for protecting the domestic food and fiber industry from foreign pests and diseases. In the area of crop protection, APHIS carries out its inspection and quarantine activities under the authority of several statutes, beginning with the Plant Protection Act of 1912. APHIS policymakers, some Members of Congress, and other observers, have argued for several years that these statutes are outmoded and conflicting and that they complicate APHIS' ability to safeguard agriculture in the context of new international trade obligations and rapidly commercializing technologies, such as biocontrol. Four bills to modernize APHIS statutes are being considered in the 106th Congress (H.R. 1504, S. 321, S. 910 and S. 83). The principal differences among these bills concern the issue of federal versus state preemption, and the degree to which APHIS should expand its plant protection authority, currently focused on agriculture, to include the protection of natural ecosystems. This report will be updated as events warrant.
The Animal & Plant Health Inspection Service (APHIS) is the lead federal agency for protecting U.S. agriculture from harmful foreign pests, noxious weeds and plant diseases. 1 Its principal charge is to preserve the marketability of U.S. agricultural products by stopping and controlling the movement of these organisms in this country. APHIS' key duties include: inspecting agricultural materials in ports of entry, monitoring agricultural pests, and taking emergency quarantine actions when foreign pests or diseases get past U.S. borders. In FY99, APHIS had appropriations of $425 million, down from $443 million in FY95. Additional funding is available annually to APHIS from user fees charged for inspections of international passengers, aircraft, ships, railcars, and trucks. In FY2000, Agricultural Quarantine Inspection (AQI) user fees are authorized at $87 million. Appropriations for FY2000 are $441 million.
Statutes authorizing the Secretary of Agriculture to exclude pests and diseases date back to the Plant Protection Act of 1912. Over the following decades as new problems arose, Congress passed and periodically amended several laws to deal with foreign pest threats. In the 1980's, policymakers and others began to perceive problems with gaps, conflicts, and duplication among the statutes. Furthermore, changes in pest status or control measures had rendered some laws (e.g., the Halogeton Glomeratus Control Act of 1952) ineffectual.
In 1983, Representative George Brown formally asked the APHIS administrator to draft "... a modernized plant quarantine statute that dealt more effectively with new threats brought about by increased international trade." Thus began an almost 20-year process that led to the Department's 1999 submission of a draft proposal to Congress, which is largely a consensus document, formally approved by eight stakeholder organizations. Representative Canady introduced a bill in the 106th Congress as H.R. 1504, the Plant Protection Act of 1999; S.321 and S. 910 are companion measures and were introduced by Senator Craig.
Calls for APHIS statute reform did not abate during the lengthy drafting and approval process of the consensus document. A 1993 OTA report found that the current federal legal framework for plant protection is "a largely uncoordinated patchwork of laws, regulations, policies, and programs." 2 Also in 1993, a federal judge ruled that APHIS had illegally stopped the transportation of noxious weed seeds in shipments of agricultural seeds by claiming authority under the Federal Noxious Weed Act instead of under the Federal Seed Act. 3 Many observers use this case to argue that APHIS statutes need revision in order to avoid this type of confusion.
In 1997, the General Accounting Office (GAO) reported that APHIS' mission would become more difficult as the volume of trade increases and the pressure to facilitate trade through expedited inspections became greater. 4 Trade analysts concurred, staling that APHIS statutes should be streamlined for clarity and uniformity, which would facilitate domestic and international trade and yet be consistent with U.S. crop protection goals as well as with trade agreement obligations.
APHIS officials also pointed out that Congress could not have foreseen important future technologies such as biological controls and genetically engineered crops when it passed the original plant quarantine laws. They argue with regard to the biocontrol industry in particular that statutes that treat biocontrol organisms as "potential pests" are hindering the full development of a pest-control approach which today is generally considered environmentally friendly, sustainable, and cost-effective. 5
Observers and policymakers also argued for improving the legal instruments that the Secretary can use to investigate and enforce Plant Protection & Quarantine (PPQ) laws. Currently, APHIS must rely on authorities from other agencies to carry out its investigations (e.g., APHIS has no authority to subpoena witnesses or evidence). Also at issue is the current limit on the level of fines that can be imposed for violations. Current laws authorize civil penalties of up to $1,000 for violations that could result in several hundred million dollars in damages if a pest or a disease is introduced (e.g., the Mediterranean fruit fly or citrus canker). Many have argued that stiffer penalties may be needed to serve as strong deterrent against careless or even willful pest introductions. Finally, in July 1999, APHIS' state partners in plant protection effortsthe National Plant Board (NPB) issued a report (referred to as the "Safeguarding Report") strongly recommending the enactment of a "clear, streamlined, and modem statutory framework, that eliminates authority gaps, and facilitates the achievement of pest safeguarding goals." 6
H.R. 1504 and S. 910 address the issues that emerged during the drafting process. These bills would: (1) consolidate 10 existing statutes into one comprehensive law and eliminate provisions that the Department states are outdated and ambiguous; (2) increase the monetary penalties for smuggling; (3) give USDA stronger investigatory powers; (4) allow states to petition the Secretary of Agriculture for the inclusion or exclusion of plant species in noxious weeds listings (i.e., "Special Local Needs"); and (5) facilitate the importation of potentially beneficial biological control organisms.
Although the bills have the support of most interested parties, some stakeholders, particularly within the environmental community, maintain that these: (1) do not give states enough authority to move quickly to control pest and weed threats; (2) do not sufficiently strengthen APHIS' authority for controlling threats to natural resources; and (3) are too lenient regarding the importation and interstate movement of biological control agents. Their position is reflected in an alternative proposal introduced by Senator Akaka, S. 83, which would greatly increase the states' powers to legislate and regulate against pests and noxious weeds and would prohibit or restrict importation, entry, export or interstate commerce of biological control organisms unless they are proven unlikely to injure agriculture, public health, natural resources or the environment.
Federal Preemption vs. State Primacy of Authorities 7
A number of important issues in reforming APHIS statutes revolve around whether a new federal law should continue to preempt a state's plant protection and quarantine laws. Historically, the primary federal interest in this area has been the preservation of uniformity of laws in the exercise of its international and interstate commerce prerogatives. Conversely, primary state interests have centered around the need to preserve and to protect their natural resources. Federal preemption for regulating foreign and interstate plant movements was codified initially by the Plant Quarantine Act of 1912 and courts have upheld this provision since it was first challenged in 1926.8 While most PPQ plant pest and disease statutes have federal preemption provisions, the Federal Noxious Weed Act (FNWA) applies a state primacy clause, and directs that provisions in the FNWA can not invalidate the laws of any state (7 U.S.C. 2812).
Some conservation groups have proposed that states undertake concurrent (with APHIS) or unilateral action to control or eradicate plant pests or noxious weeds in their territory. They argue that since the passage of the FNWA, only a handful of the hundreds of noxious weeds affecting natural or grazing lands have been regulated by APHIS. Thus, proponents of state preemption would support a statute that makes it a federal crime to transport into a state a species that has been declared to be a noxious weed by that state, thereby forcing federal action on the state's behalf. This approach, they argue, would be similar to wildlife statutes under the Lacey Act (16 U.S.C. 3378; 18 U.S.C. 43e) which allow federal penalties to be levied against persons who violate a state wildlife law. Another conservation group, The Nature Conservancy (TNC), has urged that states should be allowed to take actions when such actions would restrict the spread of weeds within a state more effectively than under existing federal laws. However, TNC has recognized the legitimate interstate trade concerns supporting the application of a uniform rule. The organization would like Congress to strike a better balance between trade and resource protection in the new statute. It suggests that one approach would be to place limitations on how long the Secretary can take to rule on a state's "Special Local Needs" petition to declare a plant a noxious weed. According to TNC, this would allow states to address their own concerns in a timely fashion, given what it argues has been an unsatisfactory federal response to the problem of invasive species.
In contrast, producer groups and USDA policymakers favor keeping federal preemption in PPQ laws. The American Farm Bureau Federation supports federal preemption to maintain consistency in foreign and interstate trade. Similarly, a senior official of the American Nursery and Landscape Association recently stated that the industry does not want a "balkanized marketplace" where 50 separate laws could virtually stop commerce. 9 According to APHIS, past experience with commercially significant pest outbreaks (e.g., Medfly and Kamal bunt) has shown that federal preemption is a critical tool for protecting the flow of commerce especially when the agency is working to contain and suppress an outbreak. Relatedly, however, APHIS officials support a "Special Local Needs" petition process for cases where states or local jurisdictions may have science- based concerns about the presence (or absence) of a federal regulation.
Conservation groups have long argued that although the language in APHIS' laws would appear to give the agency authority to address pest and weed threats to natural resources, APHIS in practice has focused primarily on threats to agriculture. The nation's natural resource base, say these groups, lacks the needed economic constituency that would promote federal action, and thus requires explicit protection in the law. Some groups argue that it should be possible to designate a plant species as a noxious weed if it is causing harm in a particular region or ecosystem even though it may be much less of a threat (or not one at all) elsewhere. One proposal would allow the application of remedial measures against noxious weeds regardless of their "new to or not known to be widely prevalent" status. 10 Thus, for example, the decision to add a noxious weed to the listing could be done by USDA regardless of how widely dispersed the weed may be in order to allow eradication, suppression or control. A step in this direction was taken by Congress in 1998 by adding the widespread kudzu vine directly into the definition of noxious weeds (see 7 U.S.C. 2802, as amended, P.L. 105-86, I II Stat. 2108). Recently, the National Plant Board's "Safeguarding Report" concluded that the goals and operational aspects of safeguarding both agriculture and natural ecosystems are too intertwined to be parsed out and delegated to different agencies. The report recommended that APHIS "must step up to the plate" with regard to environmental resource protection.11 For its part, APHIS has declared its commitment to leading the way in anticipating and responding to threats involving plant health and environmental stewardship. The service has stated that "reevaluating and refining PPQ 's current approach to weed management into one that encompasses areas not traditionally covered by existing policies is an important step in PPQ's efforts to reach its new vision of the future". 12
1 APHIS has several other areas of statutory responsibility such as: animal health protection, predator control (i.e.. Wildlife Services), animal welfare, and the regulation and approval of agricultural biotechnology products.
2 U.S. Congress, Office of Technology Assessment. Harmful non-indigenous species in the United States. OTA-F-565. Washington, D.C. U.S. Government Printing Office, Sept., 1993.
3 Pennington Seed. Inc. v. U.S. C.A.D.C. 1993, 10 F.3d 6, 304 U.S.App.D.C. 28.
4 U.S.General Accounting Office. Agricultural inspection: improvements needed to minimize threat of foreign pests and diseases. Report to Congress. RCED-97-102. May, 1997.
5 A biological control agent is an organism used to control a plant pest or a noxious weed.
6 National Plant Board. Safeguarding American plant resources: A stakeholder review of the APHIS-PPQ safeguarding system. NPB Report. Washington, D.C.July, 1999.
7 Federal preemption occurs when a federal law explicitly or implicitly provides for such preemption, or regulates an area so comprehensively as to leave no practical state role. Conversely, explicitly giving the state primacy in jurisdiction constitutes state "preemption". Thus, determining whether a valid federal law should preempt state law is a matter of statutory construction.
8 Oregon Washington Railroad & Navigation v. State of Washington. 1926. 270 U.S. 87; American Railroad Express Co. v. Morris. 1928. 129 Okl.. 278.
9 Raver, Anne. What's Eating America? Weeds. The New York Times. Sept 16, 1999.
10 New to or not known to be widely prevalent - Is a concept introduced by the Plant Quarantine Act of 1912 for establishing regulations, quarantines and restricting importation of diseases and pests based on the recency and breadth of the pest's invasion.
11 Op.cit. "Safeguarding Report." p. 8
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