National Management Plan: Appendix 3 - Legal Authorities Related to Invasive Species

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[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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