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Harmful Non-Native Species: Issues for Congress IV
April 8, 1999
Federal law concerning non-native species is scattered. No laws focus on the broad problems of non-native species, their interception, prevention, and control across a variety of industries and habitats. The body of law addressing non-native species and agriculture appears better-developed than laws relating to other sectors of the economy. Some laws, though they do not directly address non-native species control or prevention, have effects that may limit such introductions. Below is a brief digest of existing laws, presented in chronological order of enactment, which affect non-native species introduction, prevention, and control. In some cases included below, however, control of non-native species is not the major purpose of the law.
Originally enacted in 1900, the Lacey Act, as amended in 1998 (P.L. 97-79, 16 U.S.C. 3371-3378), makes it illegal to import, export, sell, receive, acquire, or purchase fish, wildlife, or plants taken, possessed, transported, or sold in violation of U.S. or tribal law. In addition, this Act makes it unlawful to engage in interstate or foreign commerce involving any fish, wildlife, or plant material taken, possessed, transported or sold in violation of state or foreign law. Specific provisions authorize the federal government to prescribe requirements and issue permits for importing of wild animals and birds under humane and healthful conditions. This law may be useful in regulating some instances of non-native species introduction, if only indirectly. For example, if a plant whose sale is illegal in one state is purchased in that state and then taken to another state, the purchaser/transporter may have violated the Act, since the federal Lacey Act can be triggered by violations of certain state laws combined with interstate transport. However, if the non-native plant is purchased in a state where its sale is allowed, and then simply brought into another state (e.g. as household effects), it is unclear whether the Lacey Act would apply, unless other federal law prohibited that act.
The Plant Quarantine Act, originally enacted in 1912 (7 U.S.C. 15 1-164a, 167), gives the Animal and Plant Health Inspection Service (APHIS) the authority to regulate the importation and interstate movement of nursery stock and other plants that may carry harmful pests and diseases. Nursery stock is defined in part to include all field-grown florists' stock (trees, shrubs, vines, etc). The authority to regulate interstate movement is particularly important to the agency's ability to prevent or limit the spread of a harmful non-native species within or to a state or region of the United States. All states have some type of domestic quarantine laws as well, but under the Plant Quarantine Act, federal quarantines preempt state quarantines in interstate commerce. History indicates that the success of domestic quarantines is highly variable. Under this Act and the Plant Pest Act, APHIS for 30 years has imposed quarantines intended to prevent the spread of imported fire ants, which can be harbored in the root balls of nursery plants or in sod and soil; however, this pest continues to expand its territory. On the other hand, the successful effort to prevent witchweed from spreading into Midwestern states is largely due to a quarantine on certain agricultural shipments out of North and South Carolina. 27
The Animal Damage Control Act, originally enacted in 1931(7 U.S.C 426), is the primary statute under which APHIS operates its Wildlife Services (WS) program, known until 1997 as the Animal Damage Control program. The Act gives APHIS the authority to control wildlife damage on federal, state, or private land. Wildlife Services is involved in protecting from wildlife damage: (1) field crops, vegetables, fruits, nuts, horticultural crops, and commercial forests; (2) freshwater aquaculture ponds and marine species cultivation areas; (3) livestock on public and private range and and in feedlots; (4) public and private buildings and facilities, such as houses, commercial properties, swimming pools, golf courses, reservoirs, levies, and landfills; (5) civilian and military aircraft (against collisions with birds); and (6) public health (against wildlife-borne diseases such as rabies and plague). WS control methods include providing advice to individuals and municipal, state or federal agencies on a wide variety of preventive, nonlethal damage control methods. Control of predatory animals, native or non-native, is largely carried out by lethal means, including hunting, trapping, and poisoning.
WS also has cooperative agreements with the Fish and Wildlife Service, the National Park Service, and state natural resource agencies to help protect natural resources, including wildlife and threatened or endangered species, from loss of life, habitat, or food supply due to the activities of other species. Under the authority of the Act, APHIS addresses damage problems caused by such non-native species as nutria, blackbirds, European starlings, and monk parakeets. In 1991, Congress passed P.L. 102-237, which, among other things, amended the Animal Damage Control Act specifically to add the brown tree snake to the list of animals that the WS program is to monitor and control.
The Federal Seed Act, originally enacted in 1939 (7 U.S.C. 1551 et seq.), requires accurate labeling and purity standards for seeds in commerce. Among other things, the Act prohibits the importation and movement of adulterated or misbranded seeds and imposes labeling requirements for seeds that fall within the purview of the Act. The Act also authorizes enforcement activities and rulemaking functions.
The law works in conjunction with the Federal Noxious Weed Act to authorize APUIS to regulate the importation of field crop, pasture and forage, or vegetable seed that may contain noxious weed seeds. Critics of the government's policies concerning noxious weeds maintain that inconsistencies between seeds listed for regulation under the two laws have allowed undesirable weeds to enter the country. Furthermore, they assert that the Federal Seed Act's exclusion of horticultural seeds has permitted weed seeds to be imported along with ornamental crops seeds for urban and suburban use.
The legislation that Representative Canady introduced in the 105th Congress (and is likely to reintroduce in the 106th) could address some of the above-mentioned concerns. Although the Federal Seed Act would remain separate from the new consolidated APHIS statute (if enacted), agency officials state that the proposed changes in the Federal Noxious Weed Act (which actually would be repealed and replaced by the new law) are intended to solve the problems that the critics have raised.
The Organic Act of 1944 (7 U.S.C. 147a, 148, 148a-148e) is the basis of APHIS's domestic detection, eradication, control, and prevention efforts with regard to plant pests. The Act operates in conjunction with other APHIS statutes which regulate imports and control interstate movement. The Act authorizes the Secretary to act independently or in cooperation with states in order to detect, eradicate, suppress, control, prevent, or retard the spread of plant pests.
The Federal Plant Pest Act of 1957 (7 U.S.C. l50aa-150jj) prohibits the movement of plant pests from a foreign country into or through the United States unless authorized by the Secretary of Agriculture. The law gives APHIS broad authority to inspect, seize, quarantine, treat, destroy or dispose of imported plant and animal materials that are potentially harmful to U.S. agriculture, horticulture, forestry and, to a certain degree, natural resources. (FWS has some limited authority to prevent the introduction of fish and wildlife that could be potentially harmful to nonagricultural interests.) APHIS inspectors at U.S. international airports, seaports, and border stations conduct surveillance of travelers, baggage, and cargo entering the country. APHIS inspectors also inspect incoming international rail and truck freight and mail. In FY1997, APHIS reported that it intercepted 1.6 million plant materials and 295,000 meat and poultry products suspected of harboring potentially harmful pest and disease organisms; 63,000 insect pests and other types of pests also were intercepted.
In 1993, the Office of Technology Assessment reported that "While APHIS has kept thousands of potential agricultural pests from becoming established, it has done little explicit analysis of risks to natural areas." 28 OTA also criticized APHIS for too readily accepting imports of unregulated items for example, raw logs, wood packing and shipping materials, and containers and ships from known high-risk areas on the presumption of harmlessness. The first of these criticisms stems from APHIS's role as the protector primarily of U.S. agriculture: broader responsibility for protecting U.S. natural resources historically has not been part of the agency's charter. While some authority over pests that are threats to other sectors of the economy might be inferred from APHIS's authorizing legislation, and used to expand its role in those areas, agency officials assert that rapidly expanding globalization of agricultural trade over the past decade has made it difficult for the agency to fulfill even its current responsibilities concerning agriculture within its budget ($514 million in FY1999).
The second criticism relates to USDA's role as both a promoter and regulator of agriculture. When responding to new non-native pest and disease problems, APHIS and USDA officials weigh trade and economic considerations along with biological ones. This may result in less or slower action than those who suffer economic damage from those pests may desire.
NEPA (P.L. 91-190, as amended; 42 U.S.C. 4321 et seq.) requires, among other things, that federal government agencies consider the environmental effects of their actions. The primary mechanism to achieve this end is the preparation of environmental impact statements (EISs) for major federal actions affecting the environment. Agencies are expected not only to prepare EISs, but also to comment on the EISs prepared by other agencies. 29
This law could apply to some introductions of non-native species. If a federal action might affect the risk of introducing of non-native species, and thereby have a significant impact on the human environment, the associated EIS would have to address this possibility. The limitations of NEPA vis-a-vis its application to non-native species include:
If NEPA is triggered, the opportunity for significant analysis of the proposed action via an EIS is great. The analysis may result in modification or abandonment of some actions or alternatives. However, because NEPA has been held to be essentially procedural, it does not, by itself, prevent the activity from going forward even if the risk of unfavorable environmental outcomes is high. Nonetheless, failure to consider the issue of non-native introduction could be grounds for requiring an agency to amend its EIS, thereby delaying the introduction and risk while the revision is prepared.
The ESA (P.L. 93-205 as amended, 16 U.S.C. 1531-1543) focuses its attention on species that are rare, not those that are common to the point of being weeds or pests.30 However, the strong protections offered under the ESA for rare species may create some vehicle for regulation of non-native species. For example, in the Pacific Northwest, the threat to resident salmon species protected under ESA is a major argument being used against the introduction or expansion of aquaculture of Atlantic salmon. Similarly, introduction of mountain goats in an area where they are not native would be more likely to be questioned if local endangered or threatened plants are likely to be harmed by the goats.
ESA could provide protection in two ways. First, if the introduction were to be carried out by a federal agency or require licensing, financial support, permits, etc., from a federal agency, the agency involved would have to consult with FWS or NMFS to determine whether the introduction (or action leading to introduction) would tend to jeopardize the continued existence of the listed species. if so, the introduction would usually be prevented or modified to reduce the risk. Second, if the action had no federal nexus, but its effects could result in a taking (as defined in the Act) of a listed species, the party carrying out the action would have to seek an incidental take permit from FWS or NMFS.
Questions of knowledge, intent, and causality affect whether penalties under the ESA are available. Therefore, as a practical matter, ESA is unlikely as an appropriate alternative for penalizing the introduction of non-natives because the persons responsible for introducing many non-native species may never be known and introduction is often inadvertent. For example, it is not known who introduced zebra mussels, and it is likely that their probable introduction via ballast water was unintentional. In addition, introductions may go unnoticed for a long time, compounding the difficulty in determining responsibility. For example, the introductions of the brown tree snake and Formosan termites went unnoticed for years after their arrival, though the brown tree snake is strongly suspected of being directly responsible for the extinction of several species. Consequently, enforcement actions in the usual sense are unlikely.
However, the policies of the ESA and the duty of federal agencies to ensure that federal actions will not jeopardize listed species may result in changes in certain practices and the tightening of regulation of potential pathways, e.g., greater regulation of ballast water practices or redesign requirements for aircraft cargo holds to reduce the chance of biological stowaways. Although there may be some circumstances in which the ESA will play a role, new laws more directly and better suited to the prevention of introductions may also be desirable.
The Federal Noxious Weed Act of 1974 (P.L. 93-629, 7 U.S.C. 2801-2814) authorizes port-of-entry and follow-up activities (quarantine, treatment, disposal, control or eradication programs, etc.) by APHIS to restrict the introduction and spread of non-native noxious weeds. Under the Act, no person shall import or enter any noxious weed identified in regulation, into or through the United States, or move any noxious weed interstate, unless done in accordance with regulations issued by the Secretary. The Act also authorizes permanent restrictions, after a hearing on the issue, and emergency regulations for temporary quarantines, among other things.
The law currently defines noxious weeds as "any living stage (including, but not limited to, seeds and reproductive parts) of any parasitic or other plant of a kind, or subdivision of a kind, which is of foreign origin, is new to or not widely prevalent in the United States, and can directly or indirectly injure crops, other useful plants, livestock, or poultry or other interests of agriculture, including irrigation, or navigation or the fish and wildlife resources of the United States or the public health" (emphasis added). On an annual basis, APHIS works actively with other federal, state, and private organizations to detect and control a dozen or more invasive plants with several infestation sites in several states. Some recent examples of successes are the control of spotted and diffuse knapweeds (Centaurea maculosa Lam. and C. diffusa Lam.) and realy spurge (Euphorbia esula L.) on rangelands. These plants are highly unpalatable to livestock and deleterious to wildlife habitat. Successful eradication of incipient infestations of the tropical soda apple (Solanum viarum) in eight primarily southeastern states are so far keeping this pest of pasture, crop, and range lands from spreading.
Some critics of APHIS's administration of the Act assert that the agency does not focus adequately on weeds that affect natural resources, although the Act's definition (see emphasis above) appears to allow such efforts. Also, the legislative history indicates that APHIS does not quarantine a noxious weed unless it is conducting a control or eradication program for that species.
The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA; Title I of P. No.101-646, 16 U.S.C. 4701 et seq.) established a federal program to prevent the introduction of, and to control the spread of, introduced aquatic nuisance species and the brown tree snake. The Fish and Wildlife Service, the Coast Guard, the Environmental Protection Agency, the Army Corps of Engineers, and the National Oceanic and Atmospheric Administration share responsibilities for the implementation of this effort, acting cooperatively as members of an Aquatic Nuisance Species Task Force to develop a program for protection, monitoring, control, and research. The Task Force conducts studies and reports to Congress: (1) to identify areas where ballast water exchange does not pose an environmental threat; (2) to assess whether aquatic nuisance species threaten the ecological characteristics and economic uses of U.S. waters other than the Great Lakes; (3) to determine the need for controls on vessels entering U.S. waters other than the Great Lakes; and (4) to identify and evaluate approaches for reducing the risk of adverse consequences associated with intentional introduction of aquatic organisms. This law has been criticized as inadequate due to the voluntary nature of some of its provisions. 31 (For accomplishments of the Task Force, see: http://www.ANSTaskForce.gov/accomp.htm.)
Under NANPCA, state governors are authorized to submit: (1) comprehensive management plans to the Task Force for approval which identify areas or activities for which technical and financial assistance is needed; and (2) public facility management plans to the Assistant Secretary of the Army (Civil Works) for approval identifying public facilities for which technical and financial assistance is needed. Grants are authorized to states for implementing approved management plans, with a maximum federal share of 75% of the cost of each comprehensive management plan and 50% of each public facility management plan.
This Act directs the Coast Guard to issue regulations (33 CFR Part 151) to prevent the introduction and spread of aquatic nuisance species into the Great Lakes through the ballast water of vessels, setting civil and criminal penalties for violation of these regulations. The Act also encouraged the Secretary of Transportation, through the International Maritime Organization, to negotiate with foreign countries on the prevention and control of the unintentional introduction of aquatic nuisance species. In addition, the Act directed the Corps of Engineers to: (1) develop a program of research and technology for the environmentally sound control of zebra mussels in and around public facilities; and (2) make available information on the control methods. The Corps responded by establishing a zebra mussel facility research program, including annual technical conferences and a publication series.
In 1996, the National Invasive Species Act (NISA; P. No.104-332) amended NANPCA to mandate regulations to prevent the introduction and spread of aquatic nuisance species into the Great Lakes through ballast water and other vessel operations. It encouraged negotiations with foreign governments to develop and implement an international program for preventing the introduction and spread of invasive species in ballast water. This Act required a Coast Guard study and report to the Congress on the effectiveness of existing shoreside ballast water facilities used by crude oil tankers in the coastwise trade off Maska as well as studies of Lake Champlain, the Chesapeake Bay, San Francisco Bay, Honolulu Harbor, the Columbia River system, other estuaries of national significance, and other waters. It authorized funding for research on aquatic nuisance species prevention and control in the Chesapeake Bay, the Gulf of Mexico, the Pacific Coast, the Atlantic Coast, and the San Francisco Bay-Delta Estuary.
In addition, MSA required a ballast water management program to demonstrate technologies and practices to prevent aquatic nonindigenous species from being introduced into and spread through ballast water in U.S. waters. It modified: (1) the composition and research priorities of the Aquatic Nuisance Species Task Force; and (2) zebra mussel demonstration program requirements. Research grants were required on environmentally sound methods for controlling the dispersal of aquatic nuisance species as well as specifically for preventing and reducing dispersal between the Great Lakes-Saint Lawrence drainage and the Mississippi River drainage through the Chicago River Ship and Sanitary Canal. In addition, research was authorized on the prevention, monitoring, and control of aquatic nuisance species in Narragansett Bay, Rhode Island.
Finally, the Task Force was required to develop and implement a comprehensive program to control the brown tree snake in Guam and other areas where the species has spread outside of its historic range.
This law (ASPEA; P.L. 102-393, 39 U.S.C. 3015; 106 Stat. 1774) makes it illegal to ship certain categories of plants and animals through the mail. The prohibited species are
ASPEA does not make any new categories of plants or animals illegal to ship, but rather makes it clear that the use of the U.S. mail is to be included among those forms of transport whose use is illegal for their shipment. ASPEA appears to do very little to prevent the introduction of non-native species especially if the sender is unaware of the inclusion of the items to be shipped under the prohibitions of the above laws, short title is given for this law. It refers to importation or shipment of but ASPEA does appear to add one more law to the arsenal under which prosecutors might bring certain cases involving shipment of various species, including non-native species, to court.
The Wild Bird Conservation Act (WBCA; P.L. 102-440, 16 U.S.C. 4901 et seq.) does not focus on the prevention of invasions by non-native species, but rather on the conservation of birds caught in the wild in foreign countries and imported into this country. By regulating the importation of certain wild birds, the WBCA may reduce imports of non-native parasites and diseases which could affect wild populations of native birds. Prevention of invasions would therefore be a potential effect of the law, rather than its purpose. It also could reduce the chance that a wild bird species introduced into the United States could escape, breed, and increase to pest levels. Ten families of birds are specifically exempted from the provisions of the law, and could be imported subject only to other U.S. laws.
The Hawaii Tropical Forest Recovery Act (P.L. 102-574, 106 Stat. 4593, 16 U.S.C. 4502-4503) amended the International Forestry Cooperation Act to create a variety of measures to address the problems of the native forests of Hawaii. Since the introduction of such non-native species as pigs, goats, and mosquitoes has been a major threat to the integrity of native Hawaiian forest ecosystems, the Act has several features which address these issues. The Secretary of Agriculture is authorized to develop a program to assist Hawaii and U.S. territories, through the Forest Service, to protect native species from non-native species, and to establish biological control agents for the non-natives. The Secretary must also develop plans for the Institute of Pacific Islands Forestry and the Hawaiian tropical forests which must, among other things, provide for the study of biological control of non-native species.
In addition, the Act created a short-term task force of specified federal, state, and other individuals. Among their other responsibilities, the task force was to develop an action plan to "promote public awareness of the harm caused by introduced species" and develop recommendations on "the benefits of fencing or other management activities for the protection of Hawaii's native plants and animals from non-native species, including the identification and priorities for the areas where these activities are appropriate." The report has since served as the framework for Forest Service management and research budget requests in this area. There has been a modest increase in funds to support invasive species research and eradication efforts, as well as a specialist to oversee management activities on invasive species.
President Clinton signed Executive Order 13112 on Invasive Species (64 Fed. Reg. 6183, Feb. 8, 1999), on February 3, 1999, revoking President Carter's 1977 Executive Order 11987 on exotic species. 33 The new Executive Order seeks to prevent the introduction of invasive species and provide for their control and minimize their impacts through better coordination of federal agency efforts under a National Invasive Species Management Plan to be developed by an interagency Invasive Species Council. The Order directs all federal agencies to address invasive species concerns as well as refrain from actions likely to increase invasive species problems. The Invasive Species Council, supported by an advisory committee, is also to develop recommendations for international cooperation, promote a network to document and monitor invasive species impacts, and encourage development of an information-sharing system on invasive species.
The Council is to complete the first edition of its National Plan by August, 2000, and recommend goals and objectives for invasive species management, research need, and measures to minimize the risk of species introductions. This plan is to be updated biennially to report on progress toward achievement of recommended goals and objectives. The effectiveness of this Order is to be assessed at least once every 5 years, with a report to the Office of Management and Budget on whether the Order should be revised.
Some constituencies have expressed concern about how this Executive Order might affect their interests. Although rural agricultural groups have long been involved in the control of invasive species, some elements of this constituency have criticized the Executive Order as an attempt to rule by decree and a threat to rural life and property. Environmental groups have given less attention to the Order than might be expected, given its potential impacts on biodiversity. 34
27 OTA Report, p 147.
28 OTA Report, p.114-115.
29 or an overview of NEPA, see CRS Report 97-49 ENR, Summaries of Environmental Laws Administered by the Environmental Protection Agency, p. 109-113. While the focus is on the responsibilities of one agency, the fundamentals of the Act are also explained.
30 For more information about the ESA generally, see CRS Issue Brief 10009, Endangered Species: Continuing Controversy by M. Lynne Corn.
31 Letter of February 11, 1999, to Hon. Carol Browner, Administrator of Environmental Protection Agency from Representatives George Miller, Jim Saxton, and 16 other Members of the U.S. House of Representatives.
32 No short title is given for this law. It refers to importation or shipment of injurious animals, to require permits, and to related matters.
33 For more information on the legal status of Executive Orders, see CRS Rept. 95-772 A, Executive Orders and Proclamations.
34 For an example of reaction from the property rights perspective on the perceived threat posed by the Order, see: http://www.freerepublic.com/forum/a36c98bd20881.htm. No web sites on non-native species (with or without coverage of the Executive Order) by major environmental organizations were found.
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