Congress recognized the need to understand the problem of harm by non-indigenous species when it directed the Office of Technology Assessment (OTA) to evaluate and report on the topic. OTA produced a superb 1993 report finding that approximately 4500 species in the US were non-indigenous, including 200 NIS introductions in the last 10 years. Harmful Non-Indigenous Species in the United States (OTA, 1993).
Concern over non-indigenous species has recently surfaced in the interstices of federal law. The controversial 1994 crime control bill included a little-noted provision aimed at reducing the introduction of alien species to Hawaii, which has been especially hard hit by alien species introductions. Section 320108 of the act establishes a law enforcement task force, under the direction of the Attorney General of the United States, to
A. facilitate the prosecution of violations of federal and state laws relating to the conveyance, sale, or introduction of non- indigenous plant and animal species into Hawaii; and
B. make recommendations on ways to strengthen federal and state laws and law enforcement strategies designed to prevent the introduction of non-indigenous plant and animal species.
The task force is required to report to the Attorney General, Secretaries of Agriculture and Interior, US Senate Committees on the Judiciary and Agriculture, Nutrition and Forestry, and US House Committees on Judiciary, Agriculture, and Merchant Marine and Fisheries. Its report must assess
A. the progress of its enforcement efforts; and
B. the adequacy of existing federal laws and laws of the state of Hawaii that relate to the introduction of non-indigenous plant and animal species.
The issue of harmful NIS is ripe for thoughtful consideration and for development of wise policies.
The AGCI Conference on Biological Invasions as Global Change
From August 17 to September 2, 1994, a group of twenty five biologists, along with a few economists and lawyers, met under the auspices of the Aspen Global Change Institute to consider biological invasions as a kind of global change. The group was led by Drs. Peter Vitousek, Carla D'Antonio and Lloyd Loope. It included biologists from Australia and New Zealand - countries with major biological invasion problems.
Draft Model Act
One of the products of the conference was a sketch for a model act to reduce the rate and scope of harm from non-indigenous species. That sketch follows. It is still at a highly preliminary stage. The group is currently engaged in a process of drafting to produce a more refined model act.
Four Questions
Laws regarding harmful NIS introductions must respond to four central questions:
First, who has responsibility for identifying NIS invasions, and where is information on the nature and scope of invasions collected?
Second, who has responsibility for responding to harmful NIS invasions, and what kinds of responses are encouraged or allowed?
Third, what processes and standards are used to assess proposed intentional introductions of NIS?
Fourth, what kind of follow-up is conducted after efforts to respond to invasions, or following intentional introductions, to assess and understand the actual impact of NIS on other species, on ecosystems, and on industry?
This model act makes an initial effort to deal with these central questions and a host of related issues. It is intended to serve as a working model for any country interested in adopting or revising strategies that address non-indigenous species invasions.
Prevention of Harm by Non-Indigenous Species
Act
a draft text for discussion
I Statement of Purpose
II Definitions
III Prevention of NIS Introductions at Non-US sites; Exclusion at US Borders
IV Interstate and Intrastate Shipment; Special Pathways
V Release Review
VI Response to Biological Invasions
VII Dispute Resolution
VIII Research & Data
IX Education
X Liability for Releases
XI Support for State and Local Initiatives
XII Intentional Exports
XIII Funding
XIV Genetically Engineered Organisms
XV Agency Assignment of Responsibilities
Chapter I
Statement of Purpose
Human activity moves species from place to place at rates that are without precedent in the last tens of millions of years. The consequent establishment and spread of vast numbers of non- indigenous species (NIS) into entirely new regions represents a substantial global environmental change, one that alters both managed and wildland areas worldwide. While many introductions are beneficial - modern human society is largely dependent on non- indigenous crops - many others have brought substantial economic and environmental costs. Moreover, many invasions by NIS are irreversible on time scales far beyond those of most other ongoing global environmental changes.
Spreading populations of NIS interact with other components of human-caused global environmental change. Alterations in land use facilitate the success of many NIS - but many invaders in turn drive further changes in terrestrial and aquatic ecosystems, some of which favor additional NIS. The ongoing epidemic of extinction is driven in part by the spread of NIS; species of plants and animals that are unique to particular regions of Earth increasingly are replaced by a more homogeneous biota containing many NIS.
Many human introductions of NIS have been accidental, including plant pathogens brought in with contaminated soils or nursery stock, weed seeds brought in with crop seeds, and a wide variety of organisms that stow away on ships and airplanes. A number of domestic plants and animals have escaped to the wild. Finally, many NIS now recognized as harmful were introduced deliberately, for direct human utilization, as ornamental or domestic plants and animals, for sport fishing or hunting, or as agents of biological control for other NIS.
Introduced organisms have had a wide range of impacts throughout the world on human health, agricultural and grazing lands, fisheries and waterways and the functioning of wildland ecosystems. Impacts can be economic, or ecological including altering ecosystem processes that sustain natural and managed systems and reducing native biological diversity. The global spread of infectious disease is the most familiar of the direct human impacts of NIS. An example of an economic impact is the introduction of two mollusc species, the Asian clam (Corbicula fluminea) and the European zebra mussel (Dreissena polymorpha) into North American waterways. These accidental introductions have cost the U.S. power industry and local municipalities hundreds of millions of dollars due to waterline clogging, interruption of cooling systems and increased pipe sedimentation and corrosion.
The cost of introduced organisms in relatively natural areas is better estimated by irreversible losses to the world's biological diversity and the alteration of ecosystem processes. The introduction of NIS fish species for sport fishing, biological control, and through accidental releases is a significant factor contributing to the decline of 60% of the more than 250 fish species that are currently rare or threatened with extinction in the United States.
Fundamental changes in ecosystem processes in natural areas and on agricultural and grazing lands can also result from NIS. Fire- promoting grasses have been moved both deliberately and accidentally around the globe and where established have led to increased occurrence of fire. For example, fire frequency in extensive areas of western U.S. rangelands has changed from one fire per 60-110 years to one fire every 3-5 years in response to the invasion of sagebrush shrublands by the European grass Bromus tectorum (cheatgrass). Because native species in these habitats cannot tolerate frequent fire, over 100 million acres of land has been converted from perennial shrubland to low diversity stands of cheatgrass.
Recurrent fire in these systems has led to loss of soil organic matter and reduced rangeland productivity, decreasing the ability of western rangelands to support either livestock or wildlife. The conversion of structurally diverse forests and shrublands to grasslands maintained by introduced species and fire is occurring worldwide and has been projected to lead to drier local climatic conditions with potentially significant regional consequences.
The many examples of occurrence of harmful NIS from throughout the world demonstrate that existing laws, policies, and control procedures are inadequate to prevent their introduction and spread. The purpose of this legislation is to create a unified NIS law that will:
Chapter II
Definitions
For the purposes of this Act, terms shall be defined as follows:
Agriculture means the practice of producing crops or raising livestock.
Benefit means positive economic, environmental, and/or health effects.
Control means the prevention of spread of progeny of a non-indigenous species.
Cost means negative economic, environmental, and/or health effects.
Disturbance means a disruption, human-induced or otherwise, of an ecosystem.
Ecosystem means the sum of biological organisms in an ecological community considered together with the non-living factors of the environment as a unit.
Ecosystem processes means the transformation and flows of energy, material, and species among the component parts of the ecosystem.
Eradication means the act or process of eliminating an undesirable species.
Established means the condition of a non-indigenous species that has formed a self-sustaining free-living population in at least one location outside its natural range.
Feral means free-living animals that have escaped domestication or that are descended from domesticated ancestors.
Horticulture means the practice of cultivating flowers or ornamental plants. It may also include small-scale gardening of fruits or vegetables.
Hybrid means the offspring that result from the mating of to different taxa.
Indigenous means a species within its natural range or
natural zone of dispersal, i.e., within the range it could have or
would have occupied without direct or indirect introduction and/or
care by humans. It excludes species descended from domesticated
ancestors.
Synonym: native
Intentional introduction means all or part of the process by which a non-indigenous species is purposefully imported to a new locale.
Invasive means the capacity of a species to form self- sustaining, free-living, populations in an assemblage of species with which it has not previously associated, expanding its distribution. The species may or may not have been dispersed by humans.
Natural means occurring in conformity with the ordinary course of nature, outside the influence of humans.
Non-indigenous means a species present outside its
natural range or natural zone of dispersal; includes all domesticated
and feral species and all hybrids except for naturally occurring
crosses between indigenous species
Synonyms alien, exotic, non-native
Pet trade means the practice of introducing animals for pleasure rather than utility.
Quarantine means the process of containment of an organism to prevent or limit the spread of potentially harmful NIS.
Release means the intentional introduction of a species into a free-living state for a specific purpose.
Risk means the probability of negative economic, environmental, and/or health effects.
Species means the basic unit of taxonomic recognition; refers to populations of morphologically and genetically similar individuals and may include infraspecific categories such as subspecies, variety, forma, or breed.
Substantial harm means a significant negative effect on a native species, native ecosystem, agricultural crop, or managed ecosystem.
Taxon (taxa, plural) refers to any taxonomic grouping such as species (including infraspecie categories), genus, family, or order.
Unintentional introduction means all or part of the process by which a non-indigenous species uses human-controlled transport systems to escape to a free-living state.
Chapter III Prevention and Exclusion
A
Prevention
(decisions made in the country of origin)
This section outlines guidelines to prevent the movement of problem species out of their country of origin. Prevention can be improved by bringing attention to the issue of non-indigenous species problems in the international community, by improving screens against harmful introductions, and by encouraging safer locations for study of the life history and ecology of certain species. Consistent with the spirit and purpose of this Act, it is the purpose of this section to broaden existing prevention and exclusion programs to protect explicitly natural as well as agricultural and other managed systems.
It is a foreign policy goal of the United States to elevate awareness in the international community of the threat posed by biological invasions to natural and managed ecosystems throughout the world. To this end, the United States encourages agencies of the United Nations, such as the FAO or UNEP, to assist countries by promoting research on and control of potential pests in their countries of origin. Adherence to the terms of agreements such as the International Plant Pest Convention is strongly endorsed. [Query: Is there a role for USAID?]
It is a U.S. foreign policy goal to encourage each of the world's nations to establish screening agencies with the authority to inspect all intentional species exports and to catch accidental "hitchhikers." The U.S. discourages the export of species identified on an international "dirty list" developed by the U.N. agencies identified in Section B (or by IUCN?). The U.S. recommends that those same agencies develop protocols for minimizing risks from unintentional international transport, including, especially, risks from ballast water releases.
The United States encourages the United Nations to establish research centers in the world's major biogeographic zones for the study of species native to each region that have become pests elsewhere and to develop screening procedures for native and other species prior to their intentional introduction elsewhere. (Permits to import species not on the "clean list" described in Chapter III, Part B, section 3, may not be issued until the proposed species has been screened by the appropriate lab.) [Unresolved: Is research appropriate, or would it be better to call for an international information network? Are facilities prohibitively expensive? Who should pay? U.N.?, exporting country?, exporting company?, importing company?]
Several sanctions are authorized to ensure compliance with the intent of this law. For example, shipments arriving at the destination that do not meet established criteria for hygiene may be destroyed or returned to the country of origin at the expense of the exporter. Countries that repeatedly fail to enforce export hygiene standards may be denied the right to export certain high-risk products to any country that chooses to deny entry. [What authority exists here? How does GATT affect this section? What about non-flag carriers?]
B
Exclusion
(decisions made at the border of the importing country)
It is the purpose of this section to prevent the importation of unwanted species. The process involves inspection of imports that may harbor NIS at the port of entry.
This Act authorizes the establishment of an agency (the Agency) with the authority to prevent the entry of unwanted species into this country. Agents are given the authority to hold or deny entry to all shipments which, in their judgment, may contain species subject to this Act. The agency must develop adequate scientific support to identify problems in shipments, and it must develop guiding policies (e.g. lists, screening criteria) on which to base decisions, including the issuing of permits for importation and for release from quarantine (see Chapter V).
All intentional importations are subject to inspection. All species allowed into the country must be either on a "clean list" or admitted subject to a permit based on assessment of agricultural and environmental criteria. Species without a permit and species on a "dirty list" developed by the Agency shall be denied entry. (Limited importing of "dirty" species will be allowed under permits issued for scientific research.)
Shipments containing unintentionally exported species ("hitchhikers") detected at the port of entry will be denied entry unless the species occur(s) on the "clean list".
Species not on the importing country's "clean list" will be allowed entry into the country subject to the terms of a permit issued by the Agency (see description of permit process in Chapter V). In addition to the state of knowledge regarding the organism, the permit application shall describe the terms of the importation, including description of proposed evaluation procedures and proposed use.
During evaluation, the species shall undergo additional review before a decision is made whether to allow release of the species to the environment (including, for example, use as a pet or in ornamental horticulture) or to add the species to the clean or dirty list (see Chapter V). Permittees who follow the terms of the permit are relieved of liability for any future damages caused by the proposed organism during and after review. [Unresolved: Is it wise to release the permittee from liability during review? What about faulty quarantine? We need a mechanism for delisting, etc.]
In return for the limitation on liability, the permittee shall pay a reasonable fee to cover the expense of the research required to evaluate the species. (See Chapter XIII on funding). In the case when an importer is unwilling to pay for the screening and review processes described in paragraphs D and E, the responsible agency will seize the shipment and destroy it or return it to the country of origin, at the expense of the exporter.
Chapter IV
Interstate and Intrastate Shipment; Pathways
Concern with the movement of species and the prevention of introduction of harmful pests has traditionally been defined in terms of political boundaries rather than relevant biological boundaries. Political units, of course, are the obvious source of rules to deal with NIS. But species are properly conceived of as "non-indigenous" when they are alien to the ecosystem - not the political unit - in question. A law should include procedures and guidelines on movement of species between and within smaller political units such as states and counties.
A law must also take account of the full variety of possible pathways for unintentional or unapproved intentional introductions of NIS. One major pathway is the mail. Provisions must allow for adequate inspection of parcels moving internationally and between states to avoid a huge gap through which NIS can easily pass.
Chapter V
Assessment of Proposed Intentional Introductions of Non-Indigenous
Species
As recognized in Chapter I, NIS offer substantial economic, recreational and aesthetic benefits, but have the capacity to cause substantial environmental and economic harm. Therefore, the costs and benefits of intentional introductions must be carefully evaluated and safe standards must be established. It is equally important to exclude harmful introductions and to allow appropriate beneficial introductions.
The appropriateness of initial or successive introductions depends on the possibility, probability and consequences of environmental and economic effects. The potential benefits and risks over time must be weighed, resulting in a range of possible categories of absolute or conditional approval or denial for introductions. Successive introductions should be granted the benefit or barrier justified by the prior review, so that commerce may commence and resources may be properly allocated by authorities reviewing proposed introductions.
This chapter sets out general principles for assessing the benefits and risks of introducing non-indigenous species. It suggests that such assessment must be based on sound science, and be formal, public, and subject to review and appeal. This chapter offers a range of suggested categories of approval or denial.
A Review of Intentional Introductions
The assessment of costs and benefits of release is difficult because of the complexity of natural systems and inherent uncertainty in prediction. Nonetheless, responsible assessments are possible.
Benefits and costs are not necessarily evenly distributed. For example, the benefit of a particular NIS may accrue to a different group than the cost imposed by changing an ecosystem.
Different kinds or organisms have different probabilities of harm, and different ecosystems have different vulnerabilities to invasions. Assessments must be made about particular proposed NIS in the context of introduction to particular ecosystems.
New introductions require a rigorous assessment of desirability. Before introduction of new NIS the following information must be gathered and submitted in a proposal to an appropriate review board identified in a particular agency. This information will serve as the basis for review.
a What is the reason for the proposed introduction?
b What is the record of prior releases and outcomes?
c Prediction of possible impact
Species attributes
Habitat attributes
Potential harm
Possibility of mitigation
The potential benefits must outweigh the potential risks as measured by the probability of invasion and expected harm from the invasion. Both benefits and risks must be established at a level of reasonable accuracy and based on sufficient evidence.
Decisions must be made in light of the spatial, temporal, biological and economic dimensions identified above. Assessments must consider benefits and costs in the short, mid and long term (e.g. 1, 5, 30 and 100 years).
Decisions should take into account the principle of sustaining ecosystem integrity. Introductions should be denied if they pose risk of substantial harm to indigenous species or native ecosystems, regardless of potential benefit.
Thus, for example, the use of alien organisms to control native pests should be strictly prohibited unless a compelling reason can be offered.
The relevant board should have the power to issue contingent and limited approval for introductions. We recommend that categories of approval or denial that take account of:
Preliminary suggestion of possible categories include:
a Black List
b Gray List
c White List
d Further Information Required
One or more boards should be established to review proposed NIS. The number and scope of the boards should be a function of varying requirements in expertise, varying public, commercial, and government interests, and workload considerations.
Each board should include expert, public, commercial and government interests. Experts might include biologists and resource economists. The public might include environmental organizations, NGOs, and private citizens. Commercial interests might include agriculture, horticulture, recreation and the pet industry.
The board must respond within a fixed period of time (e.g. 90 days). The board must explain its decision in writing. Decisions should be made by a substantial majority of the board, but allow for affirmative action in the face of modest dissent. Dissents must also be in writing. For example, affirmative action might be allowed based on the vote of 10 of 12 board members.
Decisions should be subject to review on appeal, either through formal reconsideration, or by a second body.
Every intentional introduction is a hypothesis testing experiment, requiring follow-up (an opportunity to learn more).
Intentional introductions of risky NIS must include follow-up monitoring and reporting requirements.
Chapter VI
Response to Invasions During and After Establishment Phase
Concerns and responses to NIS are variable depending upon the status of the target or potential NIS. These can be divided into Stages as follows:
Stage 1. NIS not present in area of concern - response
consisting of detection and interception;
Stage 2. NIS detected at entry point but has not escaped
into area of concern - response limited to quarantine or disposal;
Stage 3. NIS introduced or escaped into area of concern,
but reproducing populations are not established;
Stage 4. NIS established and reproducing but population
size remains small and localized;
Stage 5. NIS established and in rising limb of expansion
into new habitats;
Stage 6. NIS in asymptotic phase of establishment, or fully
established, into most areas suitable for inhabitation.
A Concerns, and Shortcomings of Existing System and Responses
Interception and quarantine efforts, no matter how well designed and executed, will fail in some instances, resulting in incipient invasions into environments dedicated to commodity production and/or resource and ecosystem protection (Stage 3). Other potentially invasive and harmful NIS are already present in the environment but, because they are in a slow growth phase or environmental conditions are not presently suitable, have not yet entered their exponential expansion phase (Stage 4). If detected, these are relatively susceptible to treatment and eradication, provided that information and institutional mechanisms allow rapid response. Finally, some invasions of NIS have reached the level where they threaten valuable or irreplaceable resources (Stages 5, 6), at which point impacts and the need for control is clear and warranted but they are likely less susceptible to treatment and eradication.
Under present circumstances, often no action is taken when incipient invasions of NIS could be "nipped in the bud", simply because the NIS is not detected, no agency steps forward to initiate response, and/or information and expertise are not readily available to apply to the problem. Often no agency has been given an unambiguous mandate to respond within various jurisdictions, and legal authority for response is not clearly detailed in existing statutes. A common instance is that an invasive NIS is present on State or private lands and threatens adjacent "natural areas", but departments of agriculture lack a clear directive to confront threats outside of agricultural lands. Furthermore, there is generally little agency awareness of the presence of incipient invaders and the need for early response. A rapid response is necessary so that we can move from reacting to disaster (with associated high costs and low probability of success) to timely, cost-effective action prior to reaching an unacceptable threshold of damage.
The justification for legislation directed toward NIS present within Areas of Concern can, thus, be summarized by the following concerns:
B Biological Invasion Response Task Forces
To effectively deal with invasions once interception and quarantine measures have failed a Center for Harmful NIS Control will be established. The Center will serve as a clearinghouse for NIS database information and for coordinating the distribution of operating funds to the regional bodies described below.
Regional decision-making bodies will be formed to serve as conduits of information, provide risk assessment and priority regarding NISs, and to delegate responsibility and authorize funds to carry out actions. These bodies, or Task Forces, will be comprised of 8-12 representatives from regional and federal agencies responsible for resource management, and vital interest groups concerned with resource issues, including NGO's, academic researchers, and resource industries. Task Forces will be set up on a State-by-State basis, except where resource concerns are broadly overlapping among States, and/or regional responsibility is mutually acceptable (e.g. New England, Pacific Northwest states, Great Basin states).
The role of a Task Force is to allow a fast-track response to emergency situations, and to provide an efficient mechanism of response to established, problem invasions. Requests for action will be made by petition, initiated from any reliable source (with validation from recognized institution or organization concerned with resource issues), including the Task Force itself. Risk assessment will be conducted using information provided in the petition, and other supporting information, and priority level will be based on criteria set forth in the following sub-section (Chapter VI, Part 3). Risk assessment will follow a 2-track approach. An emergency petition involving incipient invasions requires a positive or negative response within a 30 day period from the time petition is accepted. A second track will involve already established invasions, and action based on assessment of the threat posed to resources, regardless of whether or not the target NIS has potential for expansion.
The Task Force will determine a Reasonable and Adequate Response to achieve the goal of NIS eradication or management at tolerable levels. This includes determining the costs of response, and authorizing distribution of funds from a Congressionally-approved Fund (see Chapter XIII). Although such authorization may take into account competing demands for response, determining the level of risk will be based only on scientific information and judgment, not on available funds. To provide comprehensive and consistent information, the Task Force will direct the establishment of a database on NIS's in and adjacent to the management region, which will be updated on a regular basis.
The Task Force will delegate responsibility for action to an appointed Response Team composed of experts and practitioners, along with the authority to spend funds. The Response Team will also be responsible for intensified monitoring efforts within the region of the invasion, to quantify extent of the invasion and as a baseline for required, post-treatment monitoring of progress toward the desired goal. Additional research information required to determine degree of threat can be requested from the Response Team, or from other recognized experts through similar funding mechanisms. Once actions have been taken, the Team will assess effectiveness of response, and further action based on discussion between the Team and the Task Force.
When a decision to conduct action against a NIS is made, the Task Force will simultaneously assign responsibility and funds for conducting an information campaign within the target region. This education effort will facilitate public approval for action and will promote understanding of the threat and reduce the role of citizens as vectors of the NIS.
Each Task Force will meet annually to review non-emergency petitions, and to consider the status of the developing database on biological invaders. Listing of risk level of NISs and determining appropriate responses can be done at that time. Emergency petitions do not require a joint meeting unless this is deemed necessary. All Task Force members must review such petitions within the 30-day period, however, and must be involved in determining Response Team leaders and appropriate level of response. Listing decisions will be based on majority approval of petition decision. A mechanism for dispute resolution will be provided to allow public objections and input regarding listing and action decisions, as set out in Chapter XI.
C Determination of NIS Priority Level or Risk
Newly established or recognized problem NISs will be prioritized according to their impacts on valued indigenous species and ecosystems, on economic resources, and on the impacts that control measures are likely to have. Action will be taken only when careful consideration indicates the overall impacts will be less disruptive than allowing the NIS to go unchecked. Priorities will be assigned so that the fastest growing and most disruptive problems are tackled first, thereby minimizing the overall long-term pest-control workload. Thus, preference will be given to attacking incipient NIS problems and outliers of larger infestations first, next, preventing the expansion of larger infestations, and then to reducing the size of or, if possible, eliminating larger infestations.
Priorities will be assigned to a particular NIS listing as follows:
Level 1
Emergency Response
NIS has capacity to alter fundamental ecosystem processes; NIS can invade and dominate relatively undisturbed indigenous assemblages and reduce or extirpate local populations of native species; NIS known to consume or reduce quality of important crops or other economic resources; NIS is capable of transmitting pathogens to human populations or to designated Threatened or Endangered species; NIS shows any traits listed above and is actively reproducing, and evidence suggests that populations are growing rapidly;
Level 2
Emergency Response
NIS has potential to consume, parasitize, spread pathogens to, or otherwise detrimentally interact with indigenous species following natural or other disturbances; NIS can prevent or depress reproduction/regeneration of indigenous species, possibly leading to long-term changes in species composition; NIS presents purely cosmetic damage to economic species, or is not known to damage economic species but is taxonomically related to other pests; NIS for which long-term control or eradication can be accomplished at reasonable expense;
Level 3
Highly Justifiable Response
NIS population is small, possibly indicating an incipient invasion, but does not possess traits suggesting immediate epidemic expansion is likely; NIS is well-established, known to have moderate impacts on indigenous assemblages and ecosystems or economic resources, but is extending range; NIS associated with disturbed areas, but may interfere with restoration efforts; NIS for which long-term control or eradication can be accomplished at reasonable expense;
Level 4
Low Priority Justifiable Response
NIS for which long-term control or eradication can be accomplished at reasonable expense; NIS that colonizes only disturbed areas (e.g. abandoned fields, overgrazed lands) and do not expand into undisturbed habitats; NIS that is eliminated by indigenous species during succession or re- establishment of natural processes, e.g. fires, floods; Established pest on economic crops with minor or cosmetic impacts on products;
Level 5
Probable Non-Justifiable Response
NIS which numbers remain low or decreasing; NIS for which long-term control or eradication cannot be accomplished at reasonable expense.
Chapter VII
Dispute Resolution
A Handling Conflicts of Interest Between Jurisdictions
What should be done if one state wishes to introduce a non- indigenous species, but one or more adjacent states object?
Species may be introduced into a state for recreation, agriculture and forestry, ornamental horticulture, biological control, or the pet/zoo trade. Individuals, businesses, or agencies may initiate such a request, but the state's approval of a request for introduction should be made by a committee that represents private as well as local, state, and federal interests. If permission for an introduction is granted by a state, adjacent states have an interest in the introduction because of the possibility of escape from control and subsequent invasion.
We propose that all neighboring states be notified when a state approves a request for introduction of an exotic species. These neighboring states (and the state proposing the introduction) would constitute a panel that, upon receiving notification of the request, would hear the evidence and vote on whether to permit the state to proceed with the introduction. A simple majority would be necessary for the state to proceed with introduction. In the case of even-numbered panels, a tie vote would constitute rejection.
The purpose of this panel is to introduce regional perspectives into a state's considerations. Any one state may participate in several regional panels (depending on what its neighbors are doing), increasing the likelihood of communication about problems as they develop. Appropriate panels for Alaska and Hawaii might include those states that dominate their interstate commerce relationships. Many decisions may be considered pro forma and could be handled by a mail ballot, but at least all neighboring states would be aware of all approved introductions. When such an action involves moving an established or indigenous species from one part of the country to another, the appropriate agency in the federal government should be kept informed.
We do not think the federal government should receive special consideration in this process, particularly in cases involving introduction from another country, in which it has already had opportunity to assess overall suitability. At the state level, therefore, it should comply with regional interests. For instance, if the Forest Service wishes to introduce a species for biological control into a National Forest, it must go through the same request process and panel decision as any other land manager. There are existing precedents for this in the provisions of the Clean Air Act, the Water Quality Act, and the Coastal Zone Management Act. No entity should be able to force introduction (or extirpation) onto the lands of another entity, however. In other words, states cannot demand that federal land managers introduce or extirpate species on federal lands. The converse is also true.
B Handling Conflicts between Different Parts of the Public
Although neighboring states may have no objection to an introduction plan, parties within a particular state may be divided on the issue. Alternatively, parties within a state may differ as to the desirability of eradicating a particular non-indigenous species.
If an unanticipated problem arises after an introduction (such as the one that precipitated the Australian Biological Control Act of 1984), it should be the responsibility of the state committee to establish a protocol, after consulting with appropriate experts, for resolving both economic and ecological conflicts. Solutions may range from removal of the introduced species to temporary subsidies to the "injured" party, depending on the economic and ecological nature of the conflict. Information about this conflict should also be communicated to adjoining states.
C Handling Disputes about the Proper Use of the "Indigenous" Label
What should be done if within a given state, a dispute arises as to whether a particular species is indigenous?
When a group (or state) wishes to reintroduce or eradicate a species on government-controlled or private lands, another group may dispute the species' status as indigenous or non-indigenous, respectively. It should be the responsibility of the group proposing the action to make its case; the state committee should decide which interpretation is correct after consulting appropriate experts. As outlined above, a majority vote of the adjacent states should also be obtained when proposing reintroduction of any indigenous organism into a state where it has been extirpated. A system for considering intrastate reintroductions should be constructed by each state. None of these provisions apply to introductions made to help with the recovery of a federal endangered species to avoid posing an additional burden to an already lengthy process.
Chapter VIII
A Non-Indigenous Species (NIS) Database
Database & Research
A database should be developed that contains information on species that have proven to be invasive and species that are proposed for introduction outside their natural range either by import or export. The database will be used as an information source and decision- support system for regulatory agencies, commercial enterprises, and educational institutions. The objectives of this database are to (1) provide information to assess the potential damage that might be caused by the species; (2) provide baseline information on invasive non-indigenous species; (3) provide information on ecosystems most susceptible to harmful invasion; (4) provide information on management of existing invasions and (5) provide a database for monitoring changes in geographic and environmental distribution.
The database should be developed and maintained by an international agency and updated by a corresponding federal agency in each country and should include the following types of information:
This database should be compatible with other international databases, such as the International Union for the Conservation of Nature (IUCN). It is also desirable for this database to be linked to the GAP analysis and Natural Heritage databases.
Some procedure needs to be established for changing databases and maintaining credibility of information. The database should be available to anyone, but the ability to make entries and changes should be limited to the responsible organization. It is especially important that this information be readily available to the agencies responsible for early detection and control (refer to section VI).
B Monitoring and Detection
An active program should be created for the detection of new invasions and monitoring the status of existing invasions. This information will be entered into the database, relayed to the agencies that respond to invasions (see Chapter VI) and the agencies concerned with invasion pathways (see Chapter IV).
Funding should be provided for the development of taxonomic expertise necessary for the identification of all organisms. (see Chapter XIII)
C Support for Research
A specific program should be established to fund basic and applied research on invasive species and invasion pathways (refer to Chapter XIII for funding mechanism). These research activities should be directed at improving our ability to anticipate problems and manage existing problems resulting from non-indigenous species. Supporting research should focus on improving our ability to prevent unintentional introductions (e.g. detection of seeds, container fumigation, ballast sterilization). (see Chapter XI)
Research should focus on identifying characteristics of invasive species, identifying ecosystems susceptible to invasion, and determining reasons for spread. Other research should focus on developing control strategies for existing harmful non-indigenous species.
Chapter IX
Education
Education is often more effective than enforcement in achieving compliance with broad policies. This section outlines three premises on which we base educational efforts.
First, the government has the responsibility to distribute educational information based on sound scientific research. The goal is to facilitate collection and wide distribution of information on NIS in general, and specifically on mechanisms by which introductions of NIS may lead to economic and/or environmental damage. We suggest provisions for educational activities aimed at the general public, at Kindergarten through grade 12 school students, and at specific target groups for whom NIS are particularly relevant (e.g. the nursery and pet industries, travelers).
Second, the government has a responsibility to inform all concerned parties of the provisions of this Act and of activities or progress related to it. Explanatory brochures prepared and distributed to relevant groups will promote a clear understanding of the Act and its provisions. Also, there should be regular and widely distributed reports of actions taken and progress achieved, in order to maintain/increase public awareness of the problem and of the Act.
Third, the government has a responsibility to provide adequate training to personnel involved in carrying out the Act's provisions. Where formal federal responsibility encompasses federal employees engaged in quarantine, inspection, response actions, etc., sound training and support should also be available to state and local employees, volunteer groups, etc., when these are involved in activities promoting the overall objectives of the Act.
A Education About Prevention
Experience validates that most people will "do the appropriate thing" if they know what the appropriate action is.
B General public education about NIS
The Agency will make research based information and information on current issues relative to this act available through regular bulletins, press releases, video clips to national television (CNN, Public Broadcasting, etc.) and print media (Gannet Publishers). The materials developed for distribution in section A.1. of this Act will also be made available to the general public.
In addition, the Agency will distribute specific research based information on non-indigenous species to the national network of Agricultural and Horticultural Extension Agents and Soil Conservation Agents.
C Local Involvement in monitoring and response
D Support for Education on NIS
E Training for Appropriate Federal Employees
Chapter X
Liability for Releases That Cause Harm
There should be civil liability for both intentional and unintentional introductions. Depending on the level of culpability involved in the introduction, different levels of liability might attach, distinguishing the costs of control of harmful NIS and the costs of the harm they impose. This section must also address waivers of sovereign immunity and payment by the government for harms that result from its errors. In the current federal context, this part of any act would need to consider instances of multiple party liability for control and harms (such as Pittman/Robertson and Wallop/Brough programs).
Criminal liability should attach for intentional introductions intended to cause harm. In the most extreme form, criminal provisions would address threats from "bioterrorism".
Chapter XI
State and Local Initiatives
This section outlines a program to provide funding for worthwhile research, management, and education projects involving non- indigenous species. Another funding program, similar in intent but very different in structure, is outlined in Chapter VIII of this model act.
The federal government cannot alone "solve" the problem of harmful non-indigenous species. Important research and education programs and control efforts have been undertaken by state and local governments, universities, private organizations, and private citizens. Individual states and communities should be encouraged to develop their own laws and policies to address these issues. We wish to encourage and support these efforts and, in particular, to stimulate new thinking and action on the topic of non-indigenous species. Accordingly, we recommend the establishing of a funding and technical support program.
Federal agencies should be authorized to set up competitive grants programs and cooperative agreements that would provide funding and assistance to individuals, public and private organizations, state and local governments, universities, and multi-state and multi- agency working groups for education, research and policy development and implementation, leading to control or elimination of harmful non-indigenous species. Special emphasis will be given to helping states or groups of states develop comprehensive state and regional programs to control invasive non-indigenous species. Each agency should be responsible for evaluating those proposals that focus on the land area, resources, or responsibilities under its control.
The participating federal agencies should, at a minimum, include the following: Department of Agriculture (SCS, APHIS, USFS, ARS); Department of Defense (Armed Services; Army Corps of Engineers); Department of Interior (Bureau of Reclamation, BLM, FWS, NPS, NBS, Bureau of Mines); Tennessee Valley Authority; Department of Energy; Department of Health and Human Services; Department of Education; National Science Foundation; Department of Transportation; and the Environmental Protection Agency. We suggest that independent grants programs be established in each agency unless there is a successful model for an interagency funding source. Agencies should also be authorized to provide technical assistance, if requested and where feasible.
Chapter XII
Exports
A law should be concerned with the export of indigenous species where they will be harmful. This principle was first captured in US law in an executive order on non-indigenous species signed by President Carter, and nominally still in effect.
Chapter XIII
Funding
This model law gives agencies additional responsibilities, e.g., for emergency responses to newly detected invasive species, for creation of complex international and national databases, for more thorough pre-release screening of proposed introductions, and for managing established non-indigenous species. The problems faced by the federal interagency Aquatic Nuisance Species Task Force - delays in reporting to Congress, lack of staff, etc. - illustrate what happens when new programs are authorized without supplying funds for their implementation.
Also, federal and state officials commonly cite funding problems as an important element in their inability to plan ahead and to ensure successful agency programs on harmful non-indigenous species (NIS). This is especially the case for weed management on federal lands but also for programs related to fish, wildlife, and natural area management.
For these reasons, new sources of funding are required if harmful NIS are to be researched, evaluated, excluded, and controlled in ways that effectively protect agricultural, grazing, forest, aquatic, marine, and natural area resources.
A Principles
The following recommendations are based on several principles.
B Recommendations
Permits and Permit Fees
All introductions of harmful or potentially harmful non-indigenous
species will be subject to federal permits and the federal government
will collect fees for issuing these permits. Permit fees to introduce
"gray list" and "dirty list" species will be based on the relative risk of
the organism being proposed and the amount of uncertainty
surrounding its possible effects, as determined by groups of experts.
That is, permits for highly risky organisms about which little is
known will require the highest fees. Fees will be high enough to
discourage spurious imports (e.g., biological control organisms for
which there is no or little evidence of likely effectiveness), to
stimulate caution regarding organisms known to be invasive
elsewhere, and to fund additional research on organisms for which
great biological uncertainty exists.
Fifty percent of permit fees (above processing costs) will be placed in the Non-Indigenous Species Research and Education Fund. These funds will be available for competitive research grants to individuals, public or private organizations, state and local governments or multi- state or multi-agency working groups for education and research and policy development and for paying nominal honoraria to expert proposal reviewers. The remaining fees above administrative costs (50 percent) would be available for emergency use, including the activities of the Biological Invasion Response Task Force.
Permit applications will include a proposal, as outlined in a previous section. This proposal will include detailed plans for controlling organisms that escape confinement or cause unexpected harm, with an estimate of the likely cumulative costs associated with control and restitution of harm. Once the permitting agency and the applicant agree on the accuracy of this estimate, an equal amount of money will be set aside in an interest-bearing Non-Indigenous Species Escrow Account. This money can be released to the applicant 25 years after introduction unless publicly-funded control efforts were needed and their costs equalled or exceeded the amount in escrow. In that case, the applicant forfeits the amount required to fund the control effort. For estimated cumulative control and indemnification costs greater than $250,000, applicants can escrow 50 percent of the estimated cumulative costs if they provide proof of adequate insurance to cover the full amount.
Any importer that sidesteps the review and permitting process will be subject to criminal fines and/or imprisonment.
User Fees
The authority to charge user fees is expanded to agencies that deal
with non-indigenous species and for purposes other than those
allowed now. That is, all passengers, carriers, and shippers will be
charged for port inspection and pest exclusion activities. Fees will be
based on the probability that a given activity or pathway will
intentionally or accidentally lead to importation and/or release of
harmful non-indigenous species.
Also, voluntary and mandatory certification programs - like those in place for weed-free forage, triploid grass carp, and non-Africanized honeybee queens - could recover at least 95% of their associated public costs from private users. Additional certification programs could be instituted, e.g., for baitfish, disease-free fish and wildlife, weed-free, non-invasive birdseed, indigenous and non-invasive wildflower seeds and wildflower seed mixtures, and non-invasive ornamental plants. Fees for interstate or international movement of certified products should be higher than fees for materials moved locally. In some cases, certificates could take the form of product tags, suitable for educating retailers and consumers.
Excise Taxes
The federal government collects a variety of funds that return to the
state for fish and wildlife management - Dingell-Johnson, Pittman-
Robertson, and Wallop-Breaux funds. For example, ten to eleven
percent manufacturers' federal excise tax is collected on firearms and
hunting and fishing supplies. These funds are returned, in the next
fiscal year, to states for fish and wildlife management projects.
This section explicitly broadens the availability of such funds for certain uses: 1) for projects that remedy harm caused by non- indigenous fish and wildlife (including introductions previously funded in these programs); 2) to control non-indigenous species in terrestrial and aquatic ecosystems; and 3) to conduct education programs. States that can document such broadened programs are automatically eligible for matching funds from the Non-Indigenous Species Research and Education Fund.
This section also limits the availability of such funds. No funds shall be used for the importation, introduction, release, or transport of non-indigenous fish and wildlife.
If documented shortfalls in funding for the prevention, quarantine and management of harmful non-indigenous fish and wildlife species exist five years from enactment of this law - as determined by task forces and state resource managers, the federal excise taxes described above shall be applied to sales of invasive, non-native plants and animals. Such organisms shall be determined jointly by federal, state, and industry officials. Revenues generated shall be equally divided among the federal Non-Indigenous Species Education Fund and federal aid-to-state funds.
General Funds
The funds and fees in this section are not intended to replace general
funds available to agencies.
C Immediately Available, Modest Changes
Agencies dealing with non-indigenous species could present their annual budget reports to Congress so that work related to these species is readily identifiable.
The National Park Service and other federal resource management agencies could increase any entrance or user fees not at the congressional limit, with all of the additional funds generated used for resource management programs.
D Status of Current Law
The 1990 Farm Bill authorized APHIS to collect user fees for international port inspections, for issuance of plant health certificates, animal quarantines and disease tests, and export health certificates. The Land and Water Conservation Fund Act of 1965 authorized 7 federal land management agencies to charge entrance or user fees for certain services, at certain facilities. It has been amended repeatedly. Dingell-Johnson, Pittman-Robertson funds are based on a federal-state cooperative program managed by the Fish and Wildlife Service.
Chapter XIV
Genetically engineered organisms
This section will be necessary only if the principles for handling genetically engineered organisms are sufficiently different from the general principles for review of proposed NIS introductions to require special standards or procedures.
Chapter XV
Agency Assignment of Responsibility
The assignment of responsibility among various agencies will depend on the structure of each government. In the US federal system many agencies are likely to be involved with different aspects of a comprehensive NIS law.
Drafted by participants in the
Chairs
Working Group Leader for this Draft Model Act-
Aspen Global Change Institute
Session on Biological Invasion as a Global Change
August 21 to September 2, 1994
Dr. Peter Vitousek
Dr. Carla D'Antonio
Dr. Lloyd Loope
Professor Marc Miller
Emory Law School
1722 North Decatur Road
Atlanta, GA 30322
telephone (404) 727-6528.