INTERNATIONAL CENTER FOR TECHNOLOGY ASSESSMENT
DEFENDERS OF WILDLIFE
NATIONAL WILDLIFE FEDERATION
UNION OF CONCERNED SCIENTISTS

December 23,  2004

Docket No. 04-037-1
Regulatory Analysis and Development
PPD, APHIS, Station 3C71
4700 River Rd., Unit 118
Riverdale, MD 20737-1238

Re: docket No. 04-037-1, request for comments on two noxious weed listing petitions submitted by International Center for Technology Assessment and Susan Williams, Ph.D., for Caulerpa taxifolia (whole species) and Caulerpa (entire genus)

Dear Sir/Madam:

The undersigned non-profit groups, the INTERNATIONAL CENTER FOR TECHNOLOGY ASSESSMENT, DEFENDERS OF WILDLIFE, NATIONAL WILDLIFE FEDERATION, and the UNION OF CONCERNED SCIENTISTS, are pleased to submit the following comments in support of granting both of the above-referenced Petitions. The first of our groups listed is one of the original Petitioners and the other three of our groups each has endorsed the Petitions.

You deserve credit for putting these Petitions out for public comment, but we are concerned that you may have prejudged many of the issues. We make the following points:

1. The significance of these Petitions goes well beyond just the threat of future Caulerpa introductions because, as the Notice indicates, important new policy issues are raised about how you will proceed with future weed listings in the face of scientific uncertainty, lack of inspection and monitoring resources, weed risks coming through non-traditional pathways that the agency is not accustomed to, and the fact that some highly invasive species or genera may have varieties or species within them that are native in some portion of the United States.  Nevertheless, the almost two-year delay in making progress toward a more protective listing against all Caulerpa species is unfortunate considering the documented ongoing invasions by C. racemosa, C. verticillata, and C. brachypus, and others, especially in Florida. (endnote 1)

2. The statement on the bottom of 69 Fed. Reg. p. 62420 that you already intend to modify—but not expand—your listing for C. taxifolia and to alter the current footnote 1 to the Federal Noxious Weed List at 7 CFR 360.200 indicates that you already have made an unannounced decision to reject the petition to list the whole species of C. taxifolia. Your stated intent is to carve out a new exception just for the case of C. taxifolia (Mediterranean clone) to your sensible current policy that listing of a weed taxon includes all subordinate species, strains, or varieties within that taxon, regardless of common names provided. It appears inconsistent to ask for public comment on the C. taxifolia listing petition at the same time you in effect deny the petition by stating that "We will be making these changes in a future separate rulemaking." This sort of ad hoc exception that you are announcing is poor policy and makes no sense in this case biologically, because other non-"Mediterranean clone" strains, i.e., the Australian strains that the Petitions discussed, are likely as invasive as the Mediterranean clone strain. In short, it signals your intent to make an unfortunate decision: a denial of the whole species listing petition in favor of tinkering with your narrow focus on the "Mediterranean clone." We urge you not to bury your head in the sand in view of the risk from other potentially invasive strains of C. taxifolia.

3. An exaggerated statement is found on the top of p. 62421 that "APHIS's policy is to prohibit the entry of any plant intercepted at the port of entry if there is reason to believe that it is C. taxifolia (Mediterranean clone) [etc.].....We consider any foreign origin Caulerpa to be suspect."  As the Notice admits just before then, APHIS does not regularly inspect these non-agricultural "means of conveyance". (See evidence of commercial sales, below.) You should not assert that particular protective policies are being implemented when the evidence is that your overall policy is one of avoidance and disregard of regulating imports of marine algae.

4. The crucial suggestion in your notice at p. 62420 that International Plant Protection Convention (IPPC) requirements could prevent APHIS from granting the two ICTA petitions because the genus Caulerpa has a few species native in parts of Florida and Hawaii and, further, the globally-distributed species C. taxifolia is native in parts of those States, is a fundamental policy mistake that must be understood and rejected.  Our U.S. Plant Protection Act does not limit noxious weed listings to species and strains that are entirely non-native to the United States, nor do the IPPC listing requirements explicitly require such a narrow view.  But, that is the statement on your Noxious Weed Program's Weed Risk Assessment Guidelines,
< www.aphis.usda.gov/ppq/weeds/wra.pdf >, p. 4):

"Geographic: The weed-initiated risk assessment should first establish that the weed satisfies the geographic criteria. Describe the history of introduction and the weed's current distribution in the United States. If the weed is native, or has reached the limits of its ecological range (i.e., is widely distributed), then the weed does not satisfy the definition of a quarantine pest and the pest risk assessment stops here."
 
Your apparent flat-out prohibition on any listing of a weed that is native in any part of the United States conflicts with the broader Plant Protection Act definition of a weed at 7 USC § 7702(10), reproduced below, which does not limit itself to entirely non-native species. You must bring your policies in line with the Act.

The purposes of listing a native species or native strain would be in order to keep it from being further imported from other countries into parts of the United States where it would be harmful and to keep it from being moved through interstate commerce into regions where it is not native and would be harmful. The purpose and effect would not be to mandate the control of that species or strain in locations where it is native.  Your asserted policy basis of complying with international trade agreement requirements makes little sense in relation to regulating movement of a native weed internally in the United States. (This could be made explicit in the proposed C. taxifolia listing if necessary, i.e., that only interstate commerce in any native strains of the species is regulated, not international import of such strains.) 

We believe, however, that the IPPC argument as far as native species is a red herring with respect to C. taxifolia because the species as a whole is not widespread in this country and it is now subject to official control, thus the species meets the IPPC definition of a "quarantine pest".  As indicated in the Petitions themselves, the IPPC definition does not restrict you to only regulating this highly risky and hard-to-identify species on a strain-by-strain basis. Your statements suggesting the contrary indicate that you may be unwilling to take any regulatory measure that might be perceived as burdening trade. On this point we recall Dr. Dunkle's direct statement in the Aug. 12 meeting held with several of us that the new trade rules have "clogged the system" with respect to weed listings. 

In short, your stated policy position of only listing species that are non-native to the entire country weakens your ability to prevent future importation and interstate movement of harmful species through needed Federal regulation. (State weed regulations are notoriously ineffective.) United States  participation in trade liberalization treaties was never intended to block needed national weed protection measures. You need to take the initiative to "unclog" the system by clearly asserting that scientifically-justified weed risks outweigh hypothetical trade concerns. The pending Petitions offer you the opportunity to do so.

5.  Your announcement suggests that lack of resources/personnel/expertise would provide a sufficient basis to deny a weed listing petition, but nothing in the Plant Protection Act allows those types of considerations to enter into whether you grant or deny a petition. The basis for the decision is to be "sound science" under the Plant Protection Act language quoted below. We strongly object to letting non-scientific factors enter into listing decisions, just as non-scientific factors should not affect Endangered Species Act (ESA) listing decisions or Lacey Act injurious species listing.  In the ESA case, the U.S. Fish and Wildlife Service has tried that "no-resources" excuse for not listing species or designating critical habitat and has been successfully sued as a result. 

It would be a self-fulfilling negativism to let resource availability determine a regulatory decision. Listing of new weeds does not "compel" you to divert resources if you do not choose to; at the same time listing of new weeds does provide a basis for seeking more resources to better address the nation's overwhelming weed problems, particularly in the area of natural area and aquatic weeds. In any case, you must obtain, whether in-house or via contracts, adequate expertise to at least identify and list all types of weed threats, not just the agricultural weeds on which you traditionally have focused.  And even if your enforcement resources may be inadequate, a positive listing decision that is publicly announced will undoubtedly persuade the large majority of  aquarium product dealers to voluntarily comply with the law.

Below, we address your bulleted questions on p. 62421:

1st BULLET: You ask for data about species in the genus besides taxifolia that should be listed. As Susan Williams, Ph.D., stated in her Affidavit submitted with the Petitions, at par. 7: "All Caulerpa species have the capacity to be invasive because of their phenomenal growth rates (up to 3"/day) and their ability to regenerate from very small fragments, even when buried." Dr. Williams' Affidavit also provides additional detailed evidence of the invasiveness of C. brachypus, C. racemosa, C. scalpelliformis, and C. verticillata. For the first two of those listed, evidence in support of invasion risk also is provided in the Oct. 2004 Draft National Management Plan for the Genus Caulerpa ("the Plan") submitted to the Aquatic Nuisance Species Task Force by the Caulerpa Working Group. The Plan (at p. 15) also provides support for listing C. scalpelliformis in its citation of Davis et al. (1997), who documented its invasiveness risks. (endnote 2) The Plan's observations also support the potential for C. verticillata to be invasive when considered with the findings of Jacoby et al. (endnote 3)

Dr. Williams' opinion is that in addition to the above-mentioned species, you also should list C. prolifera, C. cupressoides, C. mexicana, C. sertularioides, C. floridana, and C. ashmeadii as noxious weeds, as they already are in California. All but C. prolifera can easily be confused by all but experts with C. taxifolia and C. scalpelliformis. That is, these species are visually similar to known invaders in the genus, therefore allowing their unregulated sale would have the effect of enabling the sale of the "look alike" invasive species also. Dr. Williams also has stated strong concern regarding C. prolifera because it tolerates cooler waters especially well, as can several other species in the genus. 

All the species mentioned above should be separately listed in the event that you to forego the more common-sense approach of listing this high-risk genus as a whole, while perhaps excepting any individual species therein that have been shown clearly to be safe in U.S. waters.

2nd BULLET: As the Petitions and supplemental evidence submitted in support of them demonstrated, "Caulerpa spp." is being openly sold in the United States without any specific identification, in a genus that is highly variable morphologically, indeed without any intervention by APHIS whatsoever. The separately posted Masters Thesis study by Susan Frisch of California State Univ. at Fullerton, further documents this. (endnote 4)  At p. 14, Table 3, she reveals that 14 different Caulerpa species, including taxifolia and other known invaders, were sold in dozens of Southern California retail aquarium outlets. She also documents widespread sale of live rock, including many instances of the rock having visible Caulerpa attached.

3rd BULLET: The weight of evidence (DNA and other molecular data and observations of scientists) points to the aquarium trade as the primary pathway for introduction of species of Caulerpa to non-native habitats. Species of Caulerpa are widely available for sale in aquarium shops, either on live rock or available by common names, as well as over the internet. (endnote 5)

Also, Padilla and Williams (2004) reviewed the broad topic of marine invasions resulting from aquarium plants and animals. (endnote 6)  Some of their key findings are:
 A) there are more than 11 million aquarium-owning hobbyists in the United States,
 B) approximately one third of the most damaging aquatic invasive species world-wide are aquarium or ornamental species,
 C) because of their extraordinarily widespread dispersal to homes and businesses, the release of aquarium species can affect virtually all of the aquatic habitats in the country if released,
 D) such releases have been an under-recognized environmental and economic threat to U.S. interests, and
 E) It is commonly accepted among aquatic biologists that almost every species maintained in home aquaria will at some time or other be dumped and released into U.S. waters by some hobbyist, or through releases from culture facilities.
         
Once established, species of Caulerpa disperse primarily through vegetative growth, which can be more than 3 inches per day in any direction, and the establishment of fragments. Fragments are created naturally through the activities of animals or through human activities, including any that disrupt the sediments, such as boat anchoring, dredging, jet skiing, and fishing. (endnote 7) Anchoring and jet skiing were "identified as the primary controllable risk of spreading Caulerpa" in Aqua Hedionda, California, by the Southern California Caulerpa Action Team. (endnote 8)

4th BULLET: A proactive approach to listing the whole genus Caulerpa is scientifically justifiable and is needed to prevent harmful introductions. This is a large, poorly-studied, difficult-to-distinguish, genus that contains several known harmful invaders in this country already.  Modern invasion science fully justifies your closing this loophole now, again while perhaps making exceptions for species within the genus that are clearly shown to be non-invasive and readily distinguishable from invasive species in the genus. (Again, whether they may be native in one small part of the country or not is not a determinative factor in their potential listing under the Plant Protection Act.) As several of us have commented in other forums, this sort of "clean" or "white list" approach should be implemented generally in your weed listing system. It could be implemented step-wise by focusing on particularly risky categories of potentially threatening species, just as your current Quarantine 56 is based on a "clean list" of approved fruits and vegetables. In short, we urge you to adopt a clean list approach to all future imports of marine algae.

Despite your apparent resistance to listing the whole genus Caulerpa, in the past you have listed whole genera that contain many agricultural weed species on your Noxious Weed List, such as Orobanche spp., and Striga spp. In some cases the listing provides exceptions for a few non-harmful or native species within the genus. As you did this for agricultural weeds, you should do the same for natural area and aquatic weeds like Caulerpa, making appropriate exceptions if necessary. The proactive approach we advocate is consistent with Executive Order 13112 on invasive species and with the National Invasive Species Council Management Plan, which USDA has agreed to implement.

5th BULLET: We urge you in moving to the clean list approach to leave the burden clearly on the importers of proposed new species of marine algae to demonstrate their safety. You should not need to shift significant resources to review the occasional application for clean list status from a prospective marine algae importer. Outside contracting is appropriate where more expertise is needed. Further, a review fee should be charged adequate to cover some significant portion of the costs of your review.

6th BULLET: As with agricultural weeds, an effective marine weed prevention and control program requires an appropriate mix of compliance inspection, monitoring, enforcement, and education, the latter particularly aimed at the relatively small number of aquarium plant industry stakeholders. As you take a more aggressive role in the areas of natural area and aquatic weeds, we anticipate that more appropriations will be needed for these program areas and we urge you to budget for them and to advocate within the Administration and Congress for them.  We can assure you that NECIS members will advocate on your behalf if we see that you are willing to take the needed regulatory measures.

-----------------

In closing, the 30 year history of your Federal Noxious Weed listing authority is disappointing because you have listed a minuscule number of new weeds. It is well past time that you begin a more sweeping, proactive approach, one that is based on good science rather than cramped readings of trade rules.  You should promptly approve the Caulerpa Petitions and should implement a clean list approach for all marine algae imports.  Failure to do so will burden the country with continuing environmental and economic damage from invasive marine species, including unregulated strains of  the notorious "killer algae," C. taxifolia. Feel free to contact us if we may provide more information.

Very truly yours,

/s/
Peter T. Jenkins
Attorney/Policy Analyst
International Center for Technology Assessment (Petitioner)
660 Pennsylvania Ave. SE, Suite 302
Washington, DC 20003 USA
Tel: 202.547.9359
Email: peterjenkins@icta.org

And signing on behalf of:

Aimee Delach for DEFENDERS OF WILDLIFE
Corry Westbrook for NATIONAL WILDLIFE FEDERATION
Phyllis Windle, Ph.D., for UNION OF CONCERNED SCIENTISTS

CC: Richard Dunkle, APHIS PPQ
Alan Green, APHIS PPQ

Enclosure to Docket only by separate Federal Express delivery: Frisch Masters Thesis

--------------------------------

Attachment:

The Federal Plant Protection Act, codified at 7 USC Â§ 7701 et seq., regulates noxious weeds.

- § 7702(10), defines a noxious weed as:

- any 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.
       
- § 7712(f) provides (emphasis added):

(2) Petition to add or remove plants from regulation—Any person may petition the Secretary to add a plant species to, or remove a plant species from, the regulations issued by the Secretary under this subsection.

(3) Duties of the Secretary—In the case of a petition submitted under paragraph (2), the Secretary shall act on the petition within a reasonable time and notify the petitioner of the final action the Secretary takes on the petition. The Secretary's determination on the petition shall be based on sound science.

Endnotes:

1. We note that the listing petitions were endorsed by the South Florida Water Management District. 

2. Davis, A.R., D.E. Roberts, and S.P. Cummins. 1997.  Rapid invasion of a sponge-dominated deep-reef by Caulerpa scalpelliformis (Chlorophyta) in Botany Bay, New South Wales. Australian Journal of Ecology 22:146-150.

3. Jacoby, C., B. Lapointe, and L. Grewell.  (undated).  Are native and non-indigenous seaweeds overgrowing Florida's East Coast reefs? SGEF 156 web.pdf, FL Sea Grant Program publications, online at: < www.flseagrant.org/program_areas/coastal_habitats
/publications/SGEF_156_web.pdf 

4. Frisch, S.M. 2003. Taxonomic diversity, geographic distribution, and commercial availability of aquarium-traded species of Caulerpa in Southern California, USA.  Unpublished Masters Thesis, Cal. State U. at Fullerton.  This study also provides extensive additional support for the Petitions, it is being filed with you separately.

5. See the evidence submitted with the Petitions, and: San Diego Regional Water Quality Control Board unpublished study; Frisch (2003, cited  above); W. Paznokis and S. Ellis of CA Fish & Game, pers. com.; and S.L. Williams and  L.W.J. Anderson. 2003.  Final report: Research in support of management of Caulerpa invasions. CDFG Award #P0085511. Submitted to Susan Ellis, CA Department of Fish & Game. A preliminary survey was conducted of San Fransisco Bay area pet and aquarium stores. Of 25 stores, 3 sold marine plants, of which two sold Caulerpa, including the California-listed species C. racemosa. One sold C. brachypus.

6. Padilla, D.K., and S.L. Williams. 2004. Beyond ballast water: aquarium and ornamental trades as sources of invasive species in aquatic ecosystems. Frontiers in Ecology and the Environment 2 (3):131-138.

7. Sant, N., O. Delgado, C. Rodriguez-Prieto, E. Ballesteros. 1996. The spreading of the introduced seaweed Caulerpa taxifolia (Vahl) C. Agardh in the Mediterranean sea: testing the boat transportation hypothesis. Botanica Marina 39:427-430;  T. Thibaut and A. Meinesz. 2000. Are the Mediterranean ascoglossan molluscs Oxynoe olivacea and Lobiger serradifalci suitable agents for a biological control against the invading tropical alga Caulerpa taxifolia? Life Sciences 323: 477-488;  S.L. Williams., V.A. Breda, T.W. Anderson, and B.B. Nyden. 1985. Growth and sediment disturbances of Caulerpa spp. (Chlorophyta) in a submarine canyon.  Marine Ecology Progress Series 21:275-281.

8. Merkel & Assoc. 2001. One Year Status Report: Eradication and surveillance of Caulerpa taxifolia within Aqua Hedionda Lagoon, Carlsbad, California. p. 5.