Special Need Requests Under the Plant Protection Act

June 5, 2006 Regulatory Analysis & Development USDA PPD, APHIS Station 3A-03.8 4700 River Road, Unit 118 Riverdale, MD 20737-1238 Delivered via www.regulations.gov Docket No. APHIS 2005?0103 Dear Mr. Writer: On behalf of our nearly 500,000 members and supporters nationwide, Defenders of Wildlife submits these comments on APHIS?s proposed rule to amend domestic quarantine regulations to establish a process by which states and political subdivisions of states can make special needs requests under the Plant Protection Act to prohibit interstate commerce in articles that pose a threat of disseminating a plant pest or noxious weed within the State [71 FR 16711-16716]. Defenders of Wildlife is a national nonprofit organization dedicated to the protection of wildlife, endangered species, and biodiversity. Invasive species are widely regarded to be one of the nation?s leading threats to biological diversity (Wilcove et al. 2000), as well as a source of tremendous economic costs (Pimentel et al. 2005). Since preventing the entry and spread of invasive species is more effective and less costly than attempting to control established invasives, Defenders concurs with the position of the Ecological Society of America that: ?The difficulties and expense of reversing such invasions mean investment in prevention is likely to be the most successful and cost effective response to biological invasion? (Lodge et al. 2006). Therefore, Defenders of Wildlife supports measures to exclude potentially invasive species and to minimize their spread. Thus, we concur with the intent of the proposed rule, which is to establish a process for states to implement restrictions or prohibitions that exceed federal regulations regarding interstate commerce in species that are potentially invasive. In our view, the special needs exemption can and should serve as a means for states to respond to new or incipient invasions and to respond rapidly to emergencies. We have several concerns as to whether the proposed rule as currently drafted will facilitate states? timely and effective adoption of prevention measures. Our concerns chiefly focus on: 1) the scope of the proposed rule; 2) states? and subdivisions? ability to meet the criteria for special need requests; and 3) the likelihood of a timely and adequately protective response. 1) The scope of the proposed rule. A careful reading of the proposed rule reveals a stark disconnect between the Purpose and Scope laid out in ? 301.1(b) and the Criteria for Special Need Requests in ? 301.1-2. Section 301.1(b) clearly states that the regulations are meant to address ?special need requests when a State or a political subdivision of a State seeks to impose prohibitions or restrictions on the movement in interstate commerce of articles, means of conveyance, plants, plant products, biological control organisms, plant pests, or noxious weeds. . .? However, the criteria outlined in ? 301.1-2(a) refer exclusively to ?biological control organisms, noxious weeds or plant pest. . .? The more comprehensive list in ? 301.1(b) allows states to adopt a pathway approach, which is considered the most effective means of preventing invasions (Ruiz and Carlton 2004), but the criteria provide no means for states or political subdivisions thereof to seek exemptions on a pathways basis. Defenders of Wildlife recommends that the Criteria section be amended to allow for consideration of the pathways described in the Purpose and Scope section. 2) States? and subdivisions? ability to meet the criteria for special need requests. Section 301.1-2(a) outlines the criteria that each special need request. These criteria include: 1)Data showing the organism of concern ?does not exist? in the state or showing its existing distribution. We have several concerns with this requirement. As mentioned above, the criteria do not provide states with the means to address pathways. For instance, would the state h…