USDA / USFW Insect Permits

Paul Cherubini cherubini at
Tue Jun 13 20:56:00 EDT 2000

Tony Cynor wrote:

> Before we launch a debate we need to find out exactly what the
> legislation is and look it over since otherwise we are spinning our
> wheels.  Where is a copy of it posted as we need this information first.

We also need to know what the current laws are and the circumstances in
which they have or have not been enforced. For example, Dr. Robert Flanders,
who apparently had Wayne Wehling's job at the USDA in 1997, posted
the following on the dplex-list in Sept. 1997 about the USDA's authority to
regulate the interstate movement and environmental release of native,
non-endangered, non-pest butterflies like monarchs and painted ladies:

"Please note that the interstate movement and environmental release
of butterflies is regulated by USDA under the Federal Plant Pest Act.
Any organism that feeds upon, infects or otherwise damages plants is
considered a "plant pest." Obviously this is a legal definition, but by
placing it in the original Act, Congress conferred broad jurisdictional
authority to USDA over such organisms as butterflies (exotic and native).
USDA has had this authority/jurisdiction since the passage of the Act
in 1959, but has not vigorously enforced it in the past for shipments
and releases of living native butterflies. However, with increasing
public and commercial interest in collecting, rearing, exhibiting and releasing
butterflies, USDA has had to review and revise its past policies on
permit requirements for butterflies. You will find that many of our
revised policies and procedures on butterflies are a mix of butterfly
conservation, plant/environmental protection, and small business
facilitation. As usual, everyone will find something to like and dislike
in this mix!!"

Dr. Flanders seems to be saying:

1. Although it has been a violation of the Federal Plant Pest Act since 1959
to move live, native, non-endangered, non-pest butterflies like monarchs 
and painted ladies intended for environmental release across state lines 
without a permit, the USDA has rarely (ever?) enforced the permit 
requirement or levied fines against violators.  

According to one USDA and two state agricultural officials I have talked to,
the scope of the USDA's legal authority  to regulate the interstate movement of
organisms that feed on plants under the Federal Plant Pest Act of 1959 may
be limited to issues involving PLANT RISK and PLANT PROTECTION.
Example: the obvious known risk that interstate movement and
environmental release of gypsy moths would pose to plants.

But in his Sept. 1997 post above, Dr. Flanders seems to be saying
the scope of the Federal Plant Pest Act of 1959 is broader and confers
jurisdictional authority to the USDA to regulate the interstate movement and
environmental release of native, non-endangered, non-pest
insects like monarchs and painted ladies based on INSECT RISK AND
INSECT POPULATION PROTECTION issues. In other words, Flanders
seems to believe the USDA has the authority to require and grant/deny 
permits for the interstate movement of insects based on NON-PLANT RISK
issues such as the potential of monarch and painted lady releases to
co-transport diseases and parasites to recipient wild populations
change their genetic makeup, change migratory 
instincts, interfere with biogeographical records of species occurrence, etc.

In recent years USDA has, in fact, been imposing permit conditions on
native, non-endangered, non-pest butterflies like monarchs based
on non-plant risk issues: Examples: prohibiting
monarch shipments across the 100th meridian of longitude and/or across the
Rocky Mountains, putting a cap of 250 monarchs per shipment per location,
prohibiting shipments of monarchs collected from the wild.

Flanders expanded on this in a post to dplex-l on Sept. 20, 1997:

"I do not issue permits for interstate transport of field collected
organisms to accomplish environmental releases. As has been repeatedly 
discussed on this and several other list-servers, movement of 
field-collected materials for subsequent release raises too
many questions concerning co-transport of diseases, parasites,
genetically distinct subpopulations, etc. 
The recent commercialization of such activities is now forcing 
USDA and several State Departments of Agriculture to reexamine
their previous hands-off approach. Under the Federal Plant Pest Act,
[of 1959] USDA is now requiring permits for commercial shipments between
States for all native butterflies, including the monarch."

In his post today, Dr. Wayne Wehling stated:  "Congress has passed
the "Federal Plant Protection Act [of 2000]" ... it increases my ability to regulate
insect movements by expanding the definition of "plant pest" to include insects
causing secondary effects. We need to hear more from Wayne specifically
about what the scope of the definition of "plant pest" is now (assuming Clinton
will sign the new "Federal Plant Protection Act" ) compared to what it was in 
the 1959 versions of the Act. Was Flanders & USDA overstepping its legal authority 
when  it denied permits and imposed permit conditions based on non-plant risk issues
in the late 1990's?

And before we discuss in depth how the USDA's authority to regulate
insect movements has been increased by the new "Federal Plant Protection Act"
we need to have a clear understanding of the present and past scope of the
USDA's authority and history of enforcement actions with regard to permit
compliance. Example: Did the USDA in the late 1990's single out 
"warm and fuzzy" insects like butterflies for permit compliance while
ignoring less romanticized insects like ladybird beetles (long collected by the
millions from the wild by businesses and sold and shipped to nurseries 
around the country, which in turn sell them to organic home gardeners to release?).

Paul Cherubini

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