June 3, 2005

Dr. Arnold T. Tschanz
Senior Staff Officer
Permits, Registration, and Imports, PPQ
USDA Animal and Plant Health Inspection Service
4700 River Road, Unit 133
Riverdale MD 20737-1236

Regarding: Docket No. 03-069-1

Dear Dr. Tschanz:

The Union of Concerned Scientists appreciates the opportunity to comment further on your proposals to revise regulations on the import of plants for planting. We are grateful for your efforts so far and look forward to participating more. We believe this process has the potential to be among the most important improvements in invasive species policy since the early 20th Century and we support it enthusiastically.

I do not speak for our entire National Environmental Coalition on Invasive Species (NECIS) with its more than six million individual members and activists. However, our member groups with the most interest in Quarantine 37 (Q37) have coordinated our comments. Thus, I refer you to comments submitted by Peter Jenkins, International Center for Technology Assessment, focusing on invasive plants; ones by Drs. John Randall and Faith Campbell, The Nature Conservancy, focusing on plant pests; as well as the comments submitted earlier by our three groups plus those by Aimee Delach, Defenders of Wildlife. Here, we supplement UCS' earlier comments and specifically address concerns that arose from APHIS' May 25th public workshop.

1.  The Need for A Common, Clear, and Strong Vision

We suggest that APHIS prepare a clear statement of general intent, with specific, measurable objectives. For example, APHIS could state that its regulations are designed to reduce risks of harm to the economy, pubic health, and the environment. Then, it could address the specific level of protection it is seeking and lay out clear standards to reach it. This approach would clarify that APHIS seeks to prevent both economic and environmental harm, removing current inconsistencies in the draft criteria. Also, we suggest that APHIS stipulate that its regulatory criteria be effective and protective, as well as "practical, timely, transparent, and logical."

If APHIS cannot specify its current standard of protection—the starting point for improvements—then the agency needs to develop the information to do so. An associated question concerns the level of threat that must exist for a taxon to be excluded, pending further evaluation. What will it be, specifically, and how will it ensure that all states, as well as unique regions like the Everglades, Hawaii, and U.S. territories, are also protected?

2.  One Next Step:  Show How Your Plans Relates to Others' Efforts

The presentations by APHIS staff at the May 25th workshop were consistently informative. The speakers' knowledge of the regulatory process was impressive. However, APHIS staff need to be equally conversant with the work of peers—both inside and outside of government and also inside and outside of the United States—to garner the backing of your more expert stakeholders.

This was not the case at the public meeting, creating a gap that we suggest the agency address quickly. That is, we saw no sign in the Federal Register notice or at the workshop that efforts by NAPPO, the National Invasive Species Council (NISC), the Aquatic Nuisance Species Task Force, or others have been fully incorporated. Your proposed criteria, for example, would be far more credible if staff documented how they meet or vary from the recommendations of these groups. At least, the following should be integrated:  the National Plant Board's Safeguarding American Plant Resources;  NISC's "National Management Plan on Invasive Species"; the National Research Council's Predicting Invasions of Nonindigenous Plants and Plant Pests; and APHIS' own work on potential federal noxious weeds.

We appreciate the speed with which APHIS intends to move forward. It would be helpful, though, for APHIS to make its analysis of public comments on the December 10, 2004, Federal Register notice available within a few weeks and well before its choices about options are finalized. In our estimation, many comments were thoughtful analyses that could reshape your earliest decisions; there were striking areas of agreement among state agriculture agencies, Farm Bureau groups, and environmental organizations; and 47 percent of the 231 commenters solidly favored more protective regulations (versus 38 percent opposed and 15 percent ambiguous).

3.  Another Next Step:  Lay Out a Five-Year Plan—So We Can Help

Given that APHIS staff have been meeting for at least a year on potential revisions to Q37, we urge you to sketch out the overall process in more detail. This would include resources you expect to need, a full timeline, and other specifics. Admittedly, these details will be rough. But five-year plans are routine for organizations and we believe that the discipline required for such a step would help clarify your plans. It would also help your allies plan the duration and scope of their own engagement. In particular, it is difficult to provide you with helpful advice on various options without a better sense of the whole process since each piece will affect the effectiveness of the whole.

As you plan, we encourage you to think well ahead. As you know, international trade, the economic costs of invasive species, and estimates of their number have all swollen in the past decade. What steps can APHIS take now to put the agency in front of these trends? Even the steps outlined for Option #2 pose a major challenge. What can APHIS do to decrease the time and effort needed to implement its changes, i.e., what steps could be dropped, which treated as rebuttable (e.g., by using the US drug safety model for gathering information from importers)? How could the agency focus on particularly significant threats and thus cut down on its screening efforts? If inadvertent perverse incentives arise after regulations are revised, what steps could APHIS take to counter them now?

Bringing Q37 up to date is not sufficient. Revisions must be designed to protect our Nation for many decades. We expect that invasive species problems will increase during this time. Likewise, trends at both the state and federal level are toward more stringent US policies. We urge APHIS to begin with the world's state-of-the-art methods, and then aim to improve them.   

4.  The May 25th Workshop:  the Limits of the Process

The May 25th public meeting was an excellent opportunity to begin building stakeholder consensus. Unfortunately, the narrowly focused agenda and tight format seriously limited information exchange among participants. But the progress participants made in getting to know each other and in finding areas of consensus is a good sign that this issue can be resolved if the stakeholders are given the opportunity to have an extended dialog.  

My particular small group (#4) saw little of its discussions reflected in the theme team's summaries. (Finally, we checked to ensure the computer was connected.) Our concerns were exacerbated by the lack of transparency in the process. On reflection, the process was efficient but perhaps not the best choice for participants who do not know each other and who represent opposing interests. Also, many participants became less engaged as discussions increasingly departed from their chief concerns.

I urge you to immediately distribute a participants' list to all attendees, to encourage us to hold our own informal discussions, and to consider starting a monthly Q37 newsletter to update interested parties. Each of these steps could counter weaknesses in the workshop process.  
 
5.  The May 25th Workshop:  Specific Questions

Data sources - We suggest that APHIS consider a new question: What sources of information currently provide the agency with the earliest, fastest, yet sufficiently reliable information on plants for planting? Agency staff indicated that they have not analysed "first reports." Gathering such information could help the agency limit the inclusiveness of the data it must examine later.

While peer reviewed scientific material is very reliable, it is notoriously slow to reach print. For some purposes, APHIS will need more readily available information. The Centers for Disease Control and Prevention gather reports from physicians to track human diseases. A similar system of standardized expert reports for new plant detections would be useful, verifiable, and scientific.

Non-vascular plants - We encourage you to include these in the Q37 revisions. Caulerpa taxifolia is a prime example of this need - one likely to increase as research accumulates.  

6.  The Assumptions Behind the Draft Criteria for a New Category of Plants

We support APHIS providing greater detail on its thinking re Option #2 early in the revision process. However we are concerned about several related issues.

First, the workshop process masked considerable confusion about the what each option meant, how much weight APHIS was already giving to Option #2, and what assumptions were critical to implementing either option. For example, equally expert readers came to different conclusions as to whether #1 or #2 was more stringent. These discrepancies probably arose from APHIS' lack of transparency regarding its assumptions. For example, only close questioning at the workshop revealed that APHIS expected that plants already in trade would be excluded from Option #2. Such a choice would affect option #2's effectiveness. Also, it would affect stakeholders' support.

We urge you to more carefully articulate such key assumptions in the future. Especially since APHIS has so much more experience with plant pests, we suggest that the agency be especially clear on issues regarding plants that are themselves pests. You cannot assume that weed experts, pathologists, and entomologists will understand issues the same way, use the same definitions, or come to the same conclusions.

Finally, we note that the public comments on the Federal Register notice suggested that APHIS consider more than just its own two options. Focusing on #2, at the workshop and as we do below, should not preclude your careful evaluation of alternative or complementary approaches.

7.  Option #2:  The Problem of Unknown Risks

We are pleased that APHIS is planning to screen organisms before import, a task identified in NISC's National Management Plan as an important step. However, evaluating plants only for weediness elsewhere will not provide protection from the plants that have no history of invasiveness or economic impact. So weediness alone is not a sufficient criterion. (This issue came up repeatedly in my small group at the workshop and I was surprised it was not stressed by the theme team.)

A good example is beach vitex (Vitex rotundifolia). Until it was observed growing rampantly from plantings at Pawley's Island, S.C., by the U.S. Army Corps of Engineers in the mid-1990s, beach vitex had never been considered a weed. In fact, it was originally imported by the North Carolina State University Arboretum, in the mid-1980s, as an ornamental and to control beach erosion. The very characteristics that make it a hardy ornamental are the same ones that permit it to spread on Carolina ocean dunes. The need now for ongoing federal research and management is a good example of why plant imports should be much more deliberate. 

Many constituencies find it crucial that APHIS deal more effectively with risks from species whose invasiveness is currently unknown. Predictive models are one way to do this, whether such models are relatively straightforward flowsheets like those used by inspectors in Australia or more complex mathematical models like those which predict organisms' potential US range.

8.  Option #2:  The Problem of Plants Already in Trade

Of the terms not defined in APHIS' materials, "established" is the most troublesome. We do not agree that plants already sold in the United States and widely planted in gardens makes them "established." 

Also, we suggest that option #2 apply to all plants for planting, including those currently in trade. "Species in trade" are exempted from the screening provisions in the proposed National Invasive Species Act. While we helped negotiate that language in 2002, we now consider it out-of-date and no longer justifiable. Nor is it widely supported any longer by other environmental groups. This is one of a number of reasons we suggest you depart from this approach. 

In general, we urge APHIS to be more specific, in the future, about how regulations for option #2 would be implemented. For example, who, or what step, would trigger action on a proposed import? Then, how would an APHIS inspector determine if a proposed plant is covered under the new category? For option #2 to be maximally effective, the same questions should be posed for every plant shipment. That is, "Does this plant meet the definition of a quarantine significant pest? Does this plant occur in the United States? Is it widespread in the wild? Does it have a history of invasiveness elsewhere? Regardless of its history of invasiveness, does it have the potential to become invasive here?"

The fact that there are potentially many different species to import does not mean the system will be inundated with thousands of new permit applications. It simply means that APHIS officials will have to ask a few additional questions when they receive a permit for import.

In conclusion, we are pleased that APHIS has begun the complex process of revising Q37. We end, though, on an urgent note. At the workshop, an APHIS official stated his regret that the agency's regulations on solid wood packing material came 20 years too late. It was not for lack of information. Scientists and environmental groups started that clock ticking in the 1980's, with warnings about the risks that packing materials posed to American forests. We cannot afford to ignore similar warnings about the dangers of imported plants for planting now.   

Sincerely,

Phyllis N. Windle, Ph.D.
Senior Scientist
Global Environment Program
Washington DC 20006
202-223-6133