National
Management Plan: Appendix 3 - Legal Authorities Related to Invasive
Species
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3 - Legal Authorities Related to Invasive Species
[Executive
Summary] | [Introduction] | [Survey of Federal Roles & Responsibilities]
| [An Action Plan for the Nation]
| [Conclusion] | [Appendices]
This appendix contains a brief,
general description of a number of the major legal authorities
of the Council member Departments that deal with invasive species.
It does not represent a complete or definitive list of all legal
authorities on invasive species, but includes those most important
to understanding the National Invasive Species Management Plan
and its recommended actions.
1. Legal
Authorities Available to the Department of Agriculture
2. Legal
Authorities Available to the Department of Commerce
Authorities Other Than NANPCA
3. Legal
authorities available to the Department of the Interior
4. Legal
authorities available to the Environmental Protection Agency
5. Statutes
Affecting all Federal Agencies' Response to Invasive Species
6. International
Agreements and Authorities
1. Legal Authorities
Available to the Department of Agriculture:
Plant Protection Act
The Plant Protection Act (PPA,
7 U.S.C. 7701 et seq.), which consolidated the authorities
in the Plant Quarantine Act, Federal Plant Pest Act, Federal
Noxious Weed Act, and other plant-related statutes, authorizes
USDA to prohibit or restrict the importation or interstate movement
of any plant, plant product, biological control organism, noxious
weed, article, or means of conveyance if the Secretary of Agriculture
determines that the prohibition or restriction is necessary to
prevent the introduction into the United States, or the dissemination
within the United States, of a plant pest or noxious weed. A
"plant pest" is defined as any living stage of any
of the following that can directly or indirectly cause damage
to, or cause disease in any plant or plant product: A protozoan,
nonhuman animal, parasitic plant, bacterium, fungus, virus or
viroid, infectious agent or other pathogen, or any article similar
to or allied with any of those articles. A "noxious weed"
is defined as a 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 specifically authorizes
USDA to hold, seize, quarantine, treat, apply other remedial
measures to destroy or otherwise dispose of any plant, plant
pest, noxious weed, biological control organism, plant product,
article or means of conveyance that is moving (or has moved)
into or through the United States or interstate, if USDA considers
it necessary in order to prevent the dissemination of a plant
pest or noxious weed that is new to or not known to be widely
prevalent or distributed within or throughout the United States.
This authority extends to progeny of prohibited items moved in
violation of the PPA. The PPA also authorizes USDA to order an
owner, or an agent of the owner, of a plant, biological control
organism, plant product, plant pest, noxious weed, article, or
means of conveyance to treat, destroy, or otherwise dispose of
those items. In addition, when a State is unable or unwilling
to take the necessary action to prevent the dissemination of
a plant pest or noxious weed, the Secretary has the authority
to declare an extraordinary emergency and take the actions described
in this paragraph within a State (i.e., when interstate movement
is not involved).
The PPA grants specific authority
to USDA to control grasshoppers and Mormon crickets on all Federal
lands to protect rangeland, and directs the Secretary to work
in conjunction with other Federal, State, and private prevention,
control, and suppression efforts to protect rangeland. This authority
allows treatment of State and private lands if necessary to protect
rangeland, and provides for Federal cost sharing of treatment
(100 percent of the costs of treatment on Federal land, 50 percent
on State land, and 33.3 percent on private land).
The PPA specifically authorizes USDA to develop integrated management
plans for noxious weeds for the geographic region or ecological
range where the noxious weed is found in the United States.
In addition, the PPA authorizes
USDA to cooperate with other Federal agencies or entities, States
or political subdivisions of States, national governments, local
governments of other nations, domestic or international organizations,
domestic or international associations, and other persons to
carry out the provisions of the PPA.
Federal Seed Act
The Federal Seed Act (FSA, 7
U.S.C. 1581 et seq.) requires accurate labeling and purity
standards for seeds in commerce, and prohibits the importation
and movement of adulterated or misbranded seeds. The FSA works
in conjunction with the Federal Noxious Weed Act to authorize
USDA to regulate the importation and movement of field crop,
pasture and forage, or vegetable seed that may contain noxious
weed seeds.
The FSA allows interstate movement
of agricultural seed containing noxious weed seeds if the shipment
is accurately labeled as to the kinds of noxious weed seeds present
and their rate of occurrence. The rate of noxious weed seeds
in an interstate shipment of agricultural seeds is not allowed
to exceed the rate for shipment, movement, or sale in the State
in which the seed is offered for transportation or transported,
or in accordance with regulations issued by USDA. USDA has promulgated
regulations setting tolerances for the nine noxious weeds specifically
listed in the FSA in shipments of agricultural or vegetable seeds
in interstate commerce.
The FSA also requires shipments
of imported agricultural and vegetable seeds to be labeled correctly
and to be tested for the presence of certain noxious weeds as
a condition of entry into the United States. As is the case with
the interstate movement of seeds, tolerances have been established
for the seeds of nine specifically listed noxious weeds in imported
seed.
There is no authority under the
FSA to declare an extraordinary emergency and take action on
intrastate matters when a State is unable or unwilling to take
action to prevent the dissemination of a noxious weed in a shipment
of seed subject to the FSA. Also, there is no authority under
the FSA for USDA to seek to recover the cost of actions taken
by USDA to prevent the dissemination of a noxious weed from the
owner or the owner's agent.
Animal Quarantine Laws
USDA's authority to regulate
the importation and interstate movement of invasive animal species
derives from several statutes collectively referred to as the
animal quarantine laws (21 U.S.C. 101 through 135b and 19 U.S.C.
1306). The animal quarantine laws authorize USDA to promulgate
regulations and take measures to prevent the introduction and
dissemination of communicable diseases and pests of livestock
and poultry. The animal quarantine laws authorize USDA to regulate
the importation and interstate movement of all members of the
animal kingdom, domestic and wild, except man, for the purpose
of regulating communicable diseases and pests of livestock and
poultry. The fact that a disease or pest primarily affects animals
other than livestock and poultry, including man, does not limit
USDA's authority to regulate a species, as long it carries a
communicable disease or pest of livestock or poultry.
Under these laws, USDA is authorized
to seize, quarantine, and dispose of animals, animal products,
or other material that can harbor disease or pests of livestock
or poultry that are moving or are being handled, or have moved
or have been handled, in interstate or foreign commerce if they
are infected with or exposed to a communicable disease of livestock
or poultry, or if the animals are moved contrary to any of the
animal quarantine laws. In addition, when a State is unable or
unwilling to take the necessary action to prevent the dissemination
of a communicable disease of livestock or poultry, the Secretary
has the authority to declare an extraordinary emergency and take
the actions described in this paragraph within a State (i.e.,
when interstate movement is not involved).
The animal quarantine laws authorize
USDA to cooperate with States in the control and eradication
of diseases and pests of livestock and poultry. There is some
specific research authority in the animal quarantine laws, but
that authority is focused on certain animal diseases and pests
such as foot-and-mouth disease and cattle grubs.
The animal quarantine laws do
not cover situations involving diseases and pests that are not
communicable diseases and pests of livestock or poultry. For
example, they do not cover genetic disorders, exposure to radiation
in nuclear accidents, or chemical residues. Further, they do
not cover situations in which the method of transmission is not
clearly communicable. Also, they do not cover progeny of illegally
imported animals unless they have or have been exposed to a communicable
disease of livestock or poultry. Further, under current law,
USDA has authority to take action with regard to an individual
premises only if a finding is made that the animals are infected
or exposed to a communicable disease of livestock or poultry
or they have been moved in violation of regulations. In the early
stages of an outbreak, it may be difficult to make such a finding.
Thus, there is no authority for
USDA to enter any premises to ascertain whether or not a communicable
disease is present without probable cause to believe that it
is present. At the present time, USDA must rely on the voluntary
permission of the owner or custodian of the animals to conduct
tests or State authority to require that such tests be conducted
to determine the presence or absence of infection or exposure.
Virus-Serum-Toxin Act
The Virus-Serum-Toxin Act (VSTA,
21 U.S.C. 151 et seq.) authorizes USDA to regulate veterinary
biological products that are intended for use in the treatment
(i.e., prevention, diagnosis, management, or cure) of diseases
of animals. These include, but are not limited to, vaccines,
bacterins, sera, antisera, antitoxins, toxoids, allergens, diagnostic
antigens prepared from, derived from, or prepared with microorganisms,
animal tissues, animal fluids, or other substances of natural
or synthetic origin. The VSTA prohibits the shipment or delivery
for shipment in intrastate commerce, as well as in interstate
commerce, and the importation or exportation of any veterinary
biological product that is worthless, contaminated, dangerous,
or harmful. It also prohibits the importation or exportation
of any biological product not prepared in compliance with regulations
prescribed by USDA at an establishment licensed by USDA.
Animal Damage Control Act
of 1931 as amended in the Agriculture Appropriations Act of 2001
This provides USDA the general
authority under which APHIS' Wildlife Services program functions.
This is the lead USDA program responsible for research and control
work on the brown tree snake, a particularly aggressive invasive
species that has devastated bird populations on Guam.
Organic Administration
Act
The USDA's authority to make
rules and regulations protecting National Forests is set forth
in section 1 of the Organic Administration Act (16 U.S.C. 551).
This provision provides broad authority to protect National Forests
from "destruction by fire and depredations" and to
issue regulations "as will insure the objects of such reservation,
namely to regulate their occupancy and use and to preserve the
forest thereon from destruction." To the extent that the
use of lands adjacent to federally owned land is posing a threat
to the Federal resources, the Supreme Court has construed the
powers of the Federal Government to prohibit such private activities.
United States v. Alford, 274 U.S. 264 (1927). To the extent
that invasive species on adjacent private lands threaten public
land, the common law concept may be interpreted to allow the
Federal Government to abate such infestations.
Multiple-Use Sustained-Yield
Act of 1960
USDA manages National Forests
for multiple uses under the Multiple-Use Sustained-Yield Act
of 1960 (MUSY, 16 U.S.C. 528-531). MUSY provides in part A that
"the national forests are established and shall be administered
for outdoor recreations, range, timber, watershed, and wildlife
and fish purposes" (16 U.S.C. 528).
Statutes Related to Forest
Planning
The USDA is required to develop
and maintain a forest plan for each administrative unit of the
National Forest System by section 6 of the Forest and Rangeland
Renewable Resources Planning Act of 1974, as amended by National
Forest Management Act (16 U.S.C. 1604). Forest plans establish
forest-wide and area-specific management direction and may include
management direction relating to the control of invasive species.
Site-specific project decisions must be consistent with applicable
forest plan direction (or the plan must be amended to permit
the activity). Project decisions are subject to compliance with
National Environmental Policy Act (42 U.S.C. 4231 et seq.),
and other Federal environmental laws such as the Endangered Species
Act, the Clean Water Act, and the Clean Air Act. Most project
decisions also are subject to a notice and comment and administrative
appeal process under section 322 of the Department of the Interior
and Related Agencies Appropriation Act, 1993 (16 U.S.C. 1612
note) and 36 CFR part 215, and are subject to judicial review.
Authority Implemented by
Other Federal Agencies on National Forest System Lands
Invasive species on National
Forest System lands are regulated under a variety of statutes
administered by other Federal agencies, including the Lacey Act,
the Plant Protection Act, the Animal Damage Control Act, the
Federal Seed Act, the Nonindigenous Aquatic Nuisance Prevention
and Control Act, and the Alien Species Prevention and Enforcement
Act. The USDA's Forest Service works cooperatively with other
Federal agencies to implement these authorities on National Forest
System lands.
Federal Noxious Weed Act
of 1974 (7 U.S.C. 2814)
Although the Plant Protection
Act superseded and repealed most of the Federal Noxious Weed
Act of 1974 (FNWA), it left intact section 15 of the act, "Management
of undesirable plants on Federal lands" (7 U.S.C. 2814).
Section 15 of the FNWA requires Federal land management agencies
to develop and establish a management program for control of
undesirable plants that are classified under State or Federal
law as undesirable, noxious, harmful, injurious, or poisonous,
on Federal lands under the agency's jurisdiction (7 U.S.C. 2814(a)).
The Act also requires the Federal land management agencies to
enter into cooperative agreements to coordinate the management
of undesirable plant species on Federal lands where similar programs
are being implemented on State and private lands in the same
area (7 U.S.C. 2814(c)). The Secretaries of Agriculture and the
Interior must coordinate their respective control, research,
and educational efforts relating to noxious weeds (7 U.S.C. 2814(f)).
USDA's Departmental Regulation 9500-10 sets forth Departmental
policy relating to the management and coordination of noxious
weeds activities among the agencies within USDA and other entities.
Public Rangelands Improvement
Act of 1978;
Federal Land Policy and Management Act of 1976
Several statutes provide funding
for rangeland rehabilitation and range improvements on public
rangelands, including activities designed to control or manage
invasive plants. Section 5 of the Public Rangelands Improvement
Act of 1978 (43 U.S.C. 1904(c)) authorizes funding for on-the-ground
rangeland rehabilitation and range improvements on some of the
rangelands managed by the Forest Service. Additionally, range
betterment funds, provided under section 401 of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1751), can be used
for variety of range rehabilitation and improvement activities,
specifically including weed control, on certain National Forest
System rangelands. The Act of April 24, 1950, pertaining to range
improvements, states that of the moneys received from grazing
fees, a portion can be used for the "eradication of poisonous
plants and noxious weeds in order to protect or improve the future
productivity of the range" (16 U.S.C. 580(h)).
Cooperative Forestry Assistance
Act of 1978
Under cooperative authorities,
the Secretary of Agriculture may assist other Federal, State,
and private entities in controlling and managing invasive species
on other Federal lands and non-federal lands. The Secretary's
primary cooperative authority for invasive species is section
8 of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C.
2104). Section 8(b) authorizes the Secretary of Agriculture to
conduct activities and provide technical assistance relating
to insect infestations and disease conditions affecting trees
on National Forest System lands, on other Federal lands (in cooperation
with other Federal Departments) and on non-Federal lands (in
cooperation with State officials, other entities, or individuals).
These activities include in part: conducting surveys to detect
and appraise insect infestation and disease conditions; determining
biological, chemical, and mechanical measures necessary to prevent,
retard, control or suppress incipient, potential, threatening,
or emergency insect infestations and disease conditions affecting
trees; planning, organizing, directing, and performance measures
the Secretary determines necessary to prevent, retard, control,
or suppress incipient, potential, threatening, or emergency insect
infestations and disease epidemics affecting trees; and providing
technical assistance to maintain healthy forests and manage the
use of pesticides (16 U.S.C. 2104(b)). Section 8(g) of the Act
(16 U.S.C. 2104(g)) also authorizes the Secretary to provide
financial assistance through the Forest Service to State entities
and private forestry or other organizations to monitor forest
health and protect forest lands. The Cooperative Forestry Assistance
Act of 1978 as amended by the Federal Agriculture Improvement
and Reform Act of 1996 Subtitle G Sect. 373, gives authority
to provide support for good forest management practices, including
financial assistance to maintain healthy timber ecosystem to
prevent incursion of invasive species, on privately owned non-industrial
forestlands.
Section 8 of the Act applies
only to insect infestations and disease conditions affecting
trees. The Act does not contain similar authority for insect
infestations and disease conditions not affecting trees or for
invasive plants.
Section 4 of the Act as amended
by the Federal Agriculture Improvement and Reform Act of 1996
Subtitle G Sect. 373 provides support for good forest management
practices on privately owned non-industrial forestlands.
Hawaii Tropical Forest
Recovery Act
Section 3 of the Hawaii Tropical
Forest Recovery Act (16 U.S.C. 4502(a)) authorizes the USDA's
Forest Service to provide assistance relating to invasive plants
species to State officials, Federal agencies, and various other
private entities in States with tropical forests.
Statutes Related to Restoration
Restoration efforts following
control of invasive species are authorized, and limited, by the
same legal authorities that address the control and management
of invasive species on National Forest System lands. The Forest
Service lacks specific authority to provide technical and financial
assistance to State and private entities relating to these types
of restoration efforts.
In limited circumstances where
the introduction of invasive species into National Forest lands
was the result of negligence that could be established in a civil
judgment, there is authority for the Secretary to use the proceeds
from any damage award or settlement for "rehabilitation
work" (See 16 U.S.C. 579(c)).
Forest and Rangeland Renewable
Resources Research Act of 1978
The Forest and Rangeland Renewable
Resources Research Act of 1978 is the Department of Agriculture's
primary authority to conduct research activities, including research
relating to invasive species. The Act contains expansive authority
to conduct research and technology development on, and with applications
for, all U.S. lands related to the protection, conservation,
and sustainable use of natural resources. The Act also authorizes
competitive grants to conduct research, and authorizes cooperative
agreements with university, industry, and other partners as needed
to complement national program needs.
International Forestry
Cooperation Act of 1990
Under section 602(b) of the International
Forestry Cooperation Act of 1990 (16 U.S.C. 4501(b)), the Secretary
may, in support of forestry and related natural resource activities
outside the United States and its territories and possessions,
provide assistance for the prevention and control of insects,
diseases, and other damaging agents.
Under these authorities, the
USDA's Forest Service delivers research and development products
for vegetation management and protection; wildlife, fish, water
and air sciences; resource valuation and use; and inventory and
monitoring. The Forest Service Research & Development program
addresses all aspects of that agency's invasive species program
activities. The Forest Service's research authorities provide
for the Service to conduct prevention, rapid response, control,
and management activities related to invasive species and to
restore areas affected by invasive species.
Soil Conservation and Domestic
Allotment Act
Under the authority provided
by the Soil Conservation and Domestic Allotment Act (16 U.S.C.
590(a)-590(f)), USDA's National Resources Conservation Service
(NRCS) operates Plant Materials Centers for the development,
testing, and distribution of plants and vegetation management
technologies for use by land owners and users of private or other
non-Federal lands for soil erosion control, water conservation,
and wildlife habitat. Participation is voluntary. With regard
to specific aspects of this Plan, Plant Materials Centers provide
for the following: (1) Prevention -- provide technology and plants
to maintain healthy ecosystems to prevent incursion of invasive
species; (2) Control and management -- technical assistance for
eradication/control of invasive species and for management of
lands with invasive species to prevent their spread; (3) Restoration
-- technology transfer, technical assistance, and distribution
of plants for use in planning and installation of vegetative
cover to protect landscape after eradication and to prevent recurrence
of invasive species.
Under the same authority, NRCS
administers the Conservation Technical Assistance Program, which
provides technical assistance to land owners and users of private
or other non-federal lands to plan and install measures (structures
and land management practices) for soil erosion control and water
conservation. Participation is voluntary. With regard to specific
aspects of this Plan, the program provides for the following:
(1) Prevention -- technical assistance to maintain healthy ecosystem
to prevent incursion of invasive species and to use cropping
systems that discourage introduction/spread of IS; (2) Rapid
response -- technical assistance on eradication of invasive species;
(3) Control and management -- technical assistance for eradication/control
of invasive species and for management of lands with invasive
species to prevent their spread; and (4) Restoration -- technical
assistance for use of planning and installation of measures to
protect landscape after eradication and to prevent recurrence
of invasive species.
Food Security Act of 1985
Under the authority provided
by sections 1240-1240H of the Food Security Act of 1985 (16 U.S.C.
3839aa-3839aa-8), USDA's National Resources Conservation Service
(NRCS) administers the Environmental Quality Incentives Program
(EQIP). This program provides technical, educational, and financial
assistance to livestock and agricultural producers to, among
other objectives, protect against threats to soil, water, and
related natural resources. Participation is voluntary. With regard
to specific aspects of this Plan, EQIP provides for the following:
(1) Prevention -- technical, educational, and financial assistance
to maintain healthy ecosystems to prevent incursion of invasive
species; (2) Control and management -- technical, educational,
and financial assistance for eradication/control of invasive
species and for management of lands with invasive species to
prevent their spread; and (3) Restoration -- technical, educational,
and financial assistance for planning and installation of measures
(structural and land management practices) to protect landscape
after eradication and to prevent recurrence of invasive species.
NRCS administers the Wetland Reserve Program (WRP) under 7 CFR
Parts 620 and 1467. The WRP provide technical and financial support
to help landowners with wetland restoration efforts. It provides
technical education and financial assistance to maintain health
ecosystems and planning and installation of wetland features
to restore habitat after disturbance by invasive species.
Federal Agriculture Improvement
and Reform Act of 1996
Under the authority provided
by section 387 of the Federal Agriculture Improvement and Reform
Act of 1996 (16 U.S.C. 3836a), USDA's National Resources Conservation
Service administers the Wildlife Habitat Incentives Program (WHIP).
This program provides technical and financial assistance to landowners
to develop wildlife habitat. Participation is voluntary. With
regard to specific aspects of this Plan, WHIP provides for the
following: (1) Prevention -- technical, educational, and financial
assistance to maintain healthy ecosystems to prevent incursion
of invasive species, and (2) Restoration -- technical, educational,
and financial assistance for the planning and installation of
habitat features to protect landscape after eradication and to
prevent recurrence of invasive species.
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2. Legal Authorities
Available to the Department of Commerce:
Nonindigenous Aquatic Nuisance
Prevention and Control Act
Although there is some minimal
activity under other authorities, e.g., control of phragmites
under essential fish habitat provisions of the Fisheries Conservation
and Management Act and some activity under the Coastal Zone Management
Act, the major legal authority for NOAA activities is the Nonindigenous
Aquatic Nuisance Prevention and Control Act (NANPCA, P.L. 101-636,
as amended (16 U.S.C. 4701-4741)). Specific aspects of NANPCA,
as they relate to this Plan, are as follows:
Prevention. Section 1202(j)(1) gives both NOAA
and FWS regulatory authority to implement provisions of the Nonindigenous
Act that include prevention. The construction is awkward, however,
and it is uncertain as to what regulatory authority actually
exists. When the ANSTF was petitioned to prohibit the importation
of Caulerpa taxifolia, there were significant questions
as to whether the regulatory authority would cover such an action.
Instead, the Task Force worked with the Department of Agriculture
to get the species added to the Noxious Weed List.
Rapid response. Legal authority is lacking under NANPCA
for rapid response measures.
Control and management. The authority for control and management
is adequate under § 1202, but authorization levels are not
adequate. To put the problem in perspective, control activities
for one aquatic species funded separately (the sea lamprey) total
$14 million per year. The total authorization for NOAA to implement
the Act is $1 million annually. That authorization is to cover
not only control activity but also areas such as prevention and
monitoring.
Restoration. There is no explicit authority under
NANPCA for restoration related to invasive species, but other
acts (see below) do give NOAA restoration authority.
Research. There are a number of research authorizations
in the NANPCA: Section 1102(e) contains authority for competitive
regional research grants, but funds have not been appropriated.
Section 1104(b) authorizes competitive research on ballast water
management technology. Section 1202(f) contains an authorization
for competitive research under the Sea Grant program for all
aspects of aquatic nuisance species. Section 1202(i) together
with section 1301(b)(3) contains an authorization of $1,625,000
annually for the Great Lakes Environmental Research Laboratory
(GLERL) to conduct aquatic nuisance species prevention and control
research, with $500,000 of the total being made available for
competitive research on Lake Champlain. Funds have never been
appropriated for this provision, but NOAA has consistently used
$500,000-$750,000 of GLERL's base funding for such research.
Although it is probably insignificant in the scheme of things,
the fact that so much of the research funding is tied up in competitive
grants can affect the ability to focus research on specific problems
and to involve NOAA offices and laboratories (other than GLERL)
in research projects.
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Authorities Other Than NANPCA
Magnuson-Stevens Fishery
Conservation and Management Act
Essential fish habitat provisions
of the Magnuson-Stevens Fishery Conservation and Management Act
(16 U.S.C. 1855) provide for review of Federal and/or other actions
which could affect essential fish habitat with authority to make
recommendations necessary to conserve essential fish habitat.
In addition, a limited amount of funds has been used for control
and restoration activities.
Coastal Zone Management
Act of 1972
Invasive species issues could
be incorporated into State Coastal Zone Management Plans and
projects could be eligible for funding through cooperative agreements.
In addition, the Act establishes the National Estuarine Research
Reserve System. Under this program, monitoring and other invasive
species research could be sponsored.
Interjurisdictional Fisheries
Act
Provides grants for fisheries
related activities. Since 1991, $182,368 has been provided for
support of the Great Lakes Panel of the Aquatic Nuisance Species
Task Force from the State of Indiana's apportionment.
Fish and Wildlife Coordination
Act
Authorizes the National Marine
Fisheries Service to review development projects proposed or
licensed by Federal agencies and to make recommendations. It
also makes funds available through grants and cooperative agreements
that could encompass invasive species projects.
National Marine Sanctuary
Act
Permits may be required for activities
in areas designated as marine sanctuaries. Federal agency actions
(including private activities authorized by licenses, leases,
or permits are subject to consultation with the Department of
Commerce). The Act requires the Department to take actions to
promote and coordinate the use of sanctuaries for research, monitoring,
and education. In addition, grant and contract funds are available
for conservation and management activities. The management plan
for the Florida Keys National Marine Sanctuary prohibits introduction
of exotic species into the Sanctuary.
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3. Legal authorities
available to the Department of the Interior:
The Lacey Act
The Lacey Act (18 U.S.C. 42),
administered by the U.S. Fish and Wildlife Service, prohibits
importation into the United States or any U.S. territory or possession
and shipment between the continental United States, the District
of Columbia, Hawaii, the Commonwealth of Puerto Rico, and any
possession of the United States of certain categories of animal
species determined to be "injurious to human beings, to
the interests of agriculture, horticulture, forestry, or to wildlife
or the wildlife resources of the United States." Wildlife
and wildlife resources are defined broadly to include all wild
animals and "all types of aquatic and land vegetation upon
which such wildlife resources are dependent." Id.
§ 42(a)(1). The statute gives the FWS the authority to export
or destroy any injurious species at the expense of the importer,
id., although permits may be issued to allow importation
of otherwise injurious species for specific purposes, id.
§ 42(a)(3). Regulations listing species found to be injurious
under the Lacey Act are in 50 CFR part 16.
Several restrictions within the
Lacey Act, however, limit its ability to comprehensively address
invasive species introductions. First, the Act is limited to
animals. In fact, the statute does not apply to all animals,
but only those specifically listed along with mammals, birds,
fish, amphibians, reptiles, mollusks, and crustaceans generally.
In addition, the statute only applies to "wild" birds
and mammals; presumably any species that has been domesticated
could not be regulated. The statute also excludes restrictions
on any species that is regulated under the Plant Pest Act, explicitly
stating that section 42 does not authorize "any action with
respect to the importation of any plant pest as defined in the
Federal Plant Pest Act, insofar as such importation is subject
to regulation under that Act." Thus any animal species whose
importation is regulated under the Plant Pest Act cannot be regulated
under the Lacey Act.
The "other" Lacey
Act
A separate provision also known
as the Lacey Act (16 U.S.C. 3371 et seq.) also has implications
for regulating introductions of invasive species. This law, administered
by the Secretaries of the Interior, Commerce, and Agriculture,
generally makes it unlawful for any person to import, export,
transport, sell, receive, acquire, or purchase (or attempt to
commit any such act) in interstate or foreign commerce any fish,
wildlife, or plant taken, possessed, transported, or sold in
violation of any Federal, tribal, State, or foreign law. Id.
§ 3372 (a)(1), (2), (4). Thus, while the statute does not
substantively grant authority to regulate the importation, transportation,
exportation, or possession of any species, violation of another
Federal, State, tribal, or foreign law governing these activities
would become a violation of Federal law and subject to particular
civil and criminal penalties. See id. §§ 3373,
3374. The Secretaries of the Interior and Commerce have the authority
to enforce laws involving fish and wildlife, while the Secretary
of Agriculture has the authority to enforce laws involving plants.
This statute also has restrictions,
however, that limit its effectiveness to address invasive species
introductions. As with 18 U.S.C. 42, the definition of fish or
wildlife limits application to "wild" animals. In addition,
while the definition of fish or wildlife is broad ("any
wild animal, whether alive or dead, including without limitation
any wild mammal, bird, reptile, amphibian, fish, mollusk, . .
. or other invertebrate"), the definition of plant is limited
to "any wild member of the plant kingdom . . . which is
indigenous to any State and which is either (A) listed on an
appendix to the Convention on International Trade in Endangered
Species of Wild Fauna and Flora, or (B) listed pursuant to any
State law . . . ." Thus plants covered by the act are limited
to those indigenous to the United States and listed under CITES
or a State endangered species law; all other plants are not covered.
Nonindigenous Aquatic Nuisance
Prevention and Control Act
The Nonindigenous Aquatic Nuisance
Prevention and Control Act (NANPCA, 16 U.S.C. 4701 et seq.)
also has potential to affect the introduction and dispersal of
invasive species. Focused primarily on the spread of nonindigenous
species through ballast water releases, it create a task force
co-chaired by the Director of the U.S. Fish and Wildlife Service
and the Undersecretary of Commerce for Oceans and Atmosphere
to develop and implement a program to prevent the introduction
and dispersal of aquatic nuisance species. The task force is
to "establish and implement measures . . . to minimize the
risk of introduction of aquatic nuisance species to waters of
the United States." Id. § 4722(c). An aquatic
nuisance species is defined broadly to mean "a nonindigenous
species that threatens the diversity or abundance of native species
or the ecological stability of infested waters, or commercial,
agricultural, aquacultural, or recreational activities dependent
of such waters," with nonindigenous species defined to include
"any species or other viable biological material that enters
an ecosystem beyond its historic range." Id. §
4702. Thus, aquatic nuisance species include any species that
are not native to a particular region of the United States and
are not limited to foreign species.
The task force is charged with
developing and implementing a program to, among other things,
monitor and control species that qualify as "aquatic nuisance
species." The task force or any other affected agency or
entity may recommend that the task force initiate a control effort.
The statute lays out criteria for determining when a control
effort is warranted and requires development of a control program.
Public notice and comment on the proposed program is required
through the Federal Register.
NANPCA contains a number of provisions
to promote research on invasive species that qualify under that
act's definition of "aquatic nuisance species," including
studies on the introduction of such species by vessels, and ecological
and ballast water discharge surveys in particular water bodies.
The statute also authorizes funding for research grants to universities
and research institutions. The Aquatic Nuisance Species Task
Force is likewise charged with developing a research program
and authorized to allocate funds in the form of research grants.
Land management authority
of Federal land-management agencies
All land-management agencies
within the Department of the Interior have the authority to manage
the resources on their lands, including taking action to protect
those resources from the impacts of invasive species. Authorizing
statutes that provide the primary land management authority for
Interior agencies include the National Park Service's Organic
Act (16 U.S.C. 1 et seq.) which provides the national
park system shall be consistent with the purpose of conserving
the natural and historic objects and the wildlife therein; the
National Wildlife Refuge System Administration Act (16 U.S.C.
668dd) requires the agency to administer lands to provide for
the conservation of fish, wildlife, plants and their habitats
and to ensure that biological integrity and diversity is maintained;
and the Federal Land Policy and Management Act (43 U.S.C. 1701
et seq.) requires that the public lands administered by
the Bureau of Land Management be managed to prevent unnecessary
or undue degradation.
Endangered Species Act
The Endangered Species Act (ESA,
16 U.S.C. 1531 et seq.) is jointly administered by the
Secretaries of Interior and Commerce. It contains provisions
regulating import and export of listed species. Other provisions
of the ESA, however, relating to how invasive species may negatively
affect a listed species are probably more significant and can
provide powerful management tools. Section 7 of the ESA requires
any Federal agency to insure that any action authorized, funded,
or carried out by the agency not jeopardize the continued existence
of any endangered or threatened species or adversely modify any
critical habitat of such species (16 U.S.C. 1536(a)(2)). Thus,
each Federal agency must consult with the U.S. Fish and Wildlife
Service or the National Marine Fisheries Service, depending on
the species, for any action that may affect a listed species.
If the action is not likely to adversely affect a listed species,
the appropriate Service issues a Biological Opinion, which may
authorize take that is incidental to the action or, if the Federal
action would otherwise jeopardize the continued existence of
the species, offer alternatives to the Federal action that will
avoid such jeopardy. Id. § 1536(b).
Any take of an endangered or
threatened fish species unless otherwise authorized is unlawful
under the statute. Id. § 1538. Thus, a Federal agency
will be held responsible for any take -- unless authorized through
an Incidental Take Statement -- directly or indirectly caused
by the authorization, funding, or other Federal action associated
with invasive species. The ESA treats threatened or endangered
plants somewhat differently from fish and wildlife species. Section
9 prohibitions on take do not apply to plants, see id.
§ 1538(a)(2), but cautions can be provided in a Biological
Opinion on prohibitions against removal or disturbance of plants.
Thus, a Federal agency will be held responsible for prohibited
acts affecting both wildlife and plants that result from authorization,
funding, or other Federal action associated with invasive species.
Section 7 consultation requirements apply, however, only to Federal
actions.
4. Legal authorities
available to the Environmental Protection Agency:
Federal Insecticide, Fungicide,
and Rodenticide Act
The primary focus of the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) is to provide
Federal control of pesticide distribution, sale, and use. The
Environmental Protection Agency (EPA) has authority under FIFRA
not only to study the consequences of pesticide usage but also
to require users (farmers, utility companies, and others) to
register when purchasing pesticides. Through later amendments
to the law, users also must take exams for certification as applicators
of pesticides. All pesticides used in the United States must
be registered (licensed) by EPA. Registration assures that pesticides
will be properly labeled and that if used in accordance with
specifications, will not cause unreasonable harm to the environment.
FIFRA is a critical statute for invasive species whenever pesticides
are used to control or reduce the impact of invasive species.
Examples include the use of a pesticide to control lamprey populations
in the Great Lakes and the use of herbicides to control noxious
weeds. FIFRA also gives EPA review authority for biological control
agents when they are used to control invasive pests.
Clean Water Act
The Clean Water Act is the primary
Federal law that protects the Nation's waters, including lakes,
rivers, aquifers, and coastal areas. It provides a comprehensive
framework of standards, technical tools and financial assistance
to address the many causes of pollution and poor water quality,
including municipal and industrial wastewater discharges, polluted
runoff from urban and rural areas, and habitat destruction. Among
other things, the Clean Water Act protects wetlands and other
aquatic habitats through a permitting process that ensures development
and other activities are conducted in an environmentally sound
manner. The Clean Water Act provides EPA and Defense authority
to jointly establish Uniform National Discharge Standards (UNDS)
to manage incidental liquid discharges (including clean ballast
water) from vessels off the Armed Forces. The Clean Water Act
may provide authority for EPA to control and manage invasive
species through permits or other requirements and programs. The
Agency is currently reviewing its authorities under the Act relative
to invasive species.
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5. Statutes
Affecting all Federal Agencies' Response to Invasive Species:
National Environmental Policy Act
Compliance with the National
Environmental Policy Act (NEPA) can serve to identify actions
that are likely to affect invasive species or be affected by
them. The rationale behind the NEPA process - that agencies should
be fully informed of the consequences of their actions before
making a decision - is especially important when dealing with
an issue like invasive species, where problems are often unanticipated
side effects of otherwise desirable actions. Analysis and interagency,
intergovernmental, and public review and comment that identify
potential problems with invasive species for a particular proposed
action may also yield ideas for alternative methods of approaching
an issue or other forms of mitigation.
Agencies also need to comply
with NEPA for actions that are proposed to respond quickly to
invasive species management. In some cases, agencies may chose
to prepare programmatic analyses on particular methodologies
for addressing either the prevention or control of invasive species.
In emergency situations that call for an immediate response by
an agency that would normally require preparation of an environmental
impact statement, the agency can work out alternative arrangements
to their normal NEPA procedures with the Council of Environmental
Quality. See 40 C.F.R. 1506.11.
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6. International
Agreements and Authorities
In addition to the global and
regional agreements and authorities listed below, the United
States also has bilateral arrangements that can be used to minimize
the spread of invasive species. For example, the United States
and Canada have obligations under the Boundary Waters Treaty
to prevent the harmful effects of aquatic invasive species on
the quality of the inland boundary waters they share. Currently,
the U.S. and Canada are cooperating along their 5,500 mile long
border to protect and restore a number of binational aquatic
ecosystems. This effort includes a focus on aquatic invasive
species prevention and control.
Convention on Biological
Diversity (CBD), 1993
Article 8 of the CBD on In-situ Conservation provides that each
contracting Party shall, as far as possible and as appropriate,
prevent the introduction of, control, or eradicate those alien
species that threaten ecosystems, habitats, or species. The CBD
is in the process of developing Guiding Principles for the prevention,
introduction, and mitigation of impacts of alien species and
will consider options for full implementation of Article 8(h)
at its sixth Conference of Parties (April 2002). The Global Invasive
Species Programme (GISP) works closely with the CBD, to provide
expert assistance through the CBD's Subsidiary Body on Science,
Technology, and Technical Advice (SBSTTA). The United States
has not ratified the agreement.
The World Trade Organization (WTO) Agreement on the Application
of Sanitary and Phytosanitary (SPS) Measures, 1995.
The SPS Agreement is a supplement to the World Trade Organization
Agreement. It provides a uniform framework for measures to protect
the health and lives of humans, plants, and animals. Sanitary
and phytosanitary measures are defined as actions whose goal
is to: 1) protect human, animal, or plant health from the entry
or spread of pests, disease, or disease carrying organisms; or
2) prevent or limit other damage from the entry or spread of
pests. The SPS Agreement has chosen the international standards,
guidelines, and recommendations of three organizations - International
Plant Protection Convention (IPPC), Codex, and Office International
des Epizooties (OIE) -- as the preferred measures for adoption
by WTO members. The relevant scope and work of those three organizations
is discussed below.
International Plant Protection Convention (IPPC), 1951
with revision in 1987
The IPPC applies primarily to quarantine pests in international
trade. It creates an international regime, based on standards
and policies, to prevent the spread and introduction of pests
to plants and plant products. The IPPC's provisions and standards
for quarantine pests are applicable to invasive species that
harm plants or their products.
In 2000, a working group of the
IPPC recommended that the Convention develop a set of standards
on the trade of relevant invasive species. Parties to the IPPC
have established national and regional plant protection organizations
with authority in relation to quarantine control, risk analysis,
and other relevant measures. The United States is a member of
the North American Plant Protection Organization (NAPPO).
Codex Alimentarius Commission (Codex)
The Codex aims to protect the health of consumers, especially
in the area of food safety, while ensuring fair practices in
food trade and facilitating international trade in food. Through
international negotiation, the Codex has formulated standards
for specific food commodities, as well as broader areas of concern
such as pesticide and drug residues, food contaminants and additives,
labeling, and food safety. Invasive species, especially microbes
and their hosts, are relevant to the work of the Codex if they
threaten food safety or trade in food.
International Office of Epizootics (OIE)
The mission of OIE (in French, the Office International des Epizooties)
is to prevent the spread of animal diseases. OIE's major functions
are to collect and disseminate information on the distribution
and control of animal diseases, to coordinate research on contagious
animal diseases, and to develop international standards for the
safe movement of animals and animal products in international
trade. While the OIE has traditionally focused on diseases of
livestock and on setting diagnostic standards (e.g., for vaccines),
it has recently begun to address disease risks associated with
wildlife, including aquatic species.
International Maritime Organization (IMO), Resolutions,
1991 and 1997
The IMO requests that all Member State Governments, ship operators,
other appropriate authorities and interested parties apply two
sets of guidelines [Resolution A.868 (20), 1997; Resolution A.74
(18), 1991] on ballast water exchange. Together, these resolutions
provide guidance and strategies to minimize the risk of invasive
species, and other unwanted organisms, from ballast water and
sediment discharge. In 1999, the Marine Environment Protection
Committee Working Group proposed an "International Convention
for the Control & Management of Ships' Ballast Water and
Sediments." In 2000, a Global Task Force convened by the
IMO, in cooperation with the United Nations Development Programme
(UNDP) and the Global Environment Facility (GEF), launched the
Global Ballast Water Management Programme ("GloBallast")
to address harmful marine organisms.
International Civil Aviation Organization (ICAO), Assembly
Resolution, 1998
The Assembly of ICAO, a specialized agency of the United Nations,
passed a resolution (a) directing its Secretariat to work with
other United Nations agencies and (b) encouraging the aviation
authorities of its 185 member nations to assist in the prevention
and control of invasive species.
Convention on International Trade in Endangered Species
of Wild Fauna and Flora (CITES), 1973
CITES regulates the intentional trade in certain species of wildlife
and plants worldwide. Species listed under one of the three CITES
appendices may not be exported or imported without appropriate
documentation. This ensures, among other things, that the specimen
was taken from the originating country in compliance with that
country's laws and that the export will not be detrimental to
the survival of the species. CITES procedures could be involved
when a species listed under one of the appendices has the potential
to become invasive in the importing country.
North American Free Trade Agreement (NAFTA), 1994
In Chapter 7 (Sec. B, Art.712) NAFTA states that each Party may,
in accordance with this Section, adopt, maintain or apply any
sanitary or phytosanitary measure necessary for the protection
of human, animal or plant life or health in its territory. These
measures may be more stringent than an international standard,
guideline, or recommendation. Article 715 in the same chapter
requires Parties to consider relevant diseases and pests, as
well as specific economic factors, when conducting risk assessments.
North American Agreement for Environmental Cooperation
(NAAEC), 1994
Article 10 states that the Council of the North American Commission
for Environmental Co-Operation (NACEC) may consider and develop
recommendations regarding exotic (non-native) species that may
be harmful.
South Pacific Regional Environment Program (SPREP) Convention,
1990
Article 14 states that the Parties shall take measures to protect
rare or threatened ecosystems and species within the region.
In 1999, SPREP produced an Invasive Species Strategy for the
Pacific Islands Region. The Strategy promotes efforts of Pacific
Island countries to protect their natural heritage from the impacts
of invasive species through cooperative efforts and capacity
building.
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