USDA / USFW Insect Permits

[Wayne F Wehling]

In response to Paul Cherubini's comments on USDA's regulation of butterflies I would add the following comments.

1.  I would like to see the discussion remain productive and lead to a useful meeting at Wake Forest.  I don't want to be arguing USDA's authority over these issues.  We have many attorneys that have examined these issues and have rendered decisions.  Any actions I take are backed by legal advice.  The details surrounding the implementation of the new Act, if it is signed, will take many months to shake out.

2.  All of the historical comments of Bob Flanders that Mr. Cherubini pointed out are accurate and still effective.  Dr. Flanders had the advice of legal council prior to posting this information in 1997.

3.  Congress gives the USDA the authority to implement and regulate these Congressional Acts.   It is up to the USDA, through the Federal Register, to develop the regulations and rules through which the USDA enforces these Acts of Congress.  Often the language in these Acts is subject to interpretation.  The intent of the new Plant Protection Act is to pull together into one act the language that has been covered in several acts previously.  And to clarify areas that have caused problems in the past. 

4.  The definition of a "plant pest" is "...any living stage of any insects, mites, nematodes, slugs, snails, protozoa, or other invertebrate animals, bacteria, fungi, other parasitc plants or reproductive parts thereof, viruses, or any organisms similar to or allied with any of the foregoing, or any infectious substances which can directly or indirectly injure or cause disease or damage in any plants or parts thereof, or any processed, manufactured, or other products of plants."  7 CFR 330.100.   The definition essentially does not change but now will, apparently, include parasites and pathogens of plant pests.   Again, a final determination will need to be made by our attorneys.  This will take months if not longer.

5.  Regarding Paul's comments about the USDA singling "out "warm and fuzzy" insects like butterflies for permit compliance while ignoring less romanticized insects like ladybird beetles"; no we did not single out butterflies, however, the USDA has the authority to remove from regulation insects that are no longer considered to require regulation or oversight.  We have done this for ladybird beetles and a bunch of biocontrol agents.  This is done through the Federal Register.  This is the avenue that I am proposing to consider for some saturniid moths.   Regulations for butterflies came about because of the rapid growth in interstate movement.

6.  Paul says, "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."  Again, all of the actions we have taken involved the advice of council (OGC).

7.   Paul Cherubini has been, and is currently, under investigation for alleged violations of the regulations surrounding butterfly releases.

Cheers,

Wayne Wehling
USDA APHIS PPQ