RULES AND REGULATIONS
Title 7--AGRICULTURE
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 110]
Noxious Weeds
[30 Pa.B. 5941] The Department of Agriculture (Department) amends § 110.1 (relating to noxious weed control list) to designate Lythrum salicaria (purple loosestrife), Lythrum virgatum and their cultivars and combinations thereof as noxious weeds and to add Galega officinalis (Goatsrue) and Heracleum mantegazzianum (Giant Hogweed) to the noxious weed control list. The text of this amendment is set forth at 30 Pa.B. 636 (February 5, 2000).
Statutory Authority
Sections 3(b), 8 and 9 of the Noxious Weed Control Law (act) (3 P. S. §§ 255.3(b), 255.8 and 255.9) require the Department to establish a noxious weed control list, prescribe certain plants to be included on that list and empower the Department to adopt regulations necessary to implement the act. The regulation is advanced under authority of these statutory provisions.
Need for the Rulemaking
There is a compelling public need to protect this Commonwealth's wetland plant and animal populations from the threat posed by nonnative purple loosestrife, cultivars of the plants and cultivars that are combinations of native and nonnative purple loosestrife species.
The addition of Giant Hogweed to the noxious weed control list is necessary to provide the Department needed authority to control and eradicate this nonindigenous plant at the locations in Crawford, Erie, McKean, Venango and Warren Counties where it has appeared. The sap of this plant can cause rashes on the skin of persons with whom it comes into contact.
The addition of Goatsrue to the noxious weed control list will provide the Department needed authority to address the presence of this nonindigenous plant at the Philadelphia area location where it has been detected. This plant is toxic to livestock.
Lythrum salicaria, commonly known as purple loosestrife, is a nonnative wetland plant that thrives in the absence of the insects and diseases that controlled it in Europe and Asia. It clogs waterways, crowds-out native plant species and decreases the population of animals that are dependent upon these native plant species for survival. For this reason the Department placed Lythrum salicaria, commonly known as purple loosestrife on the noxious weed control list in § 110.1. This regulatory change was published at 27 Pa.B. 1704 (April 12, 1997) and became effective on that date.
Since Lythrum salicaria was added to the noxious weed control list, the need to add other Lythrum species and their cultivars and combinations has become apparent. There are many cultivars (cultivated varieties) of purple loosestrife that are listed under species names other than Lythrum salicaria. These other species and cultivars present as great an environmental threat as does Lythrum salicaria. The regulation addresses the threat posed by these plants.
Lythrum virgatum is a source of purple loosestrife cultivars. Like Lythrum salicaria, Lythrum virgatum is a European wetland plant that has been introduced into North America. These two species are very similar, differing in only several minor diagnostic characteristics. The two also cross pollinate freely. For this reason, a number of plant specialists consider Lythrum salicaria and Lythrum virgatum to be the same species. The fact that these plants intercross freely has also helped to blur scientific distinctions between cultivars of the two.
Until recently, the various ornamental purple loosestrife cultivars were thought to be sterile. As such, there would be no danger these plants could naturally cross breed with Lythrum salicaria and pass along genetic traits which might make purple loosestrife an even greater ecological threat than it is already. Recent research, though, has shown that no purple loosestrife cultivar is sterile.
Although most cultivars are self-sterile (that is, incapable of reproducing alone), they produce large quantities of viable seed when functioning as either male or female parents in cross breeding with other cultivars and species of loosestrife. Bees and wasps are effective pollinators of loosestrife, and provide the means for cross pollination, even between plants that are a considerable distance from each other.
It is possible a relatively benign ornamental cultivar of indigenous purple loosestrife could cross breed with Lythrum salicaria and produce a new cultivar of purple loosestrife that combines the native species' tolerance of this Commonwealth's temperature extremes or its ability to thrive in areas other than wetlands with the aggressive growth characteristics and the disease resistant characteristics, or both, of Lythrum salicaria. This is not abstract speculation. Some genetic traits of Lythrum salicaria have already been found in cultivars of purple loosestrife.
Galega officinalis, commonly known as Goatsrue, is a nonnative plant that is on the Federal noxious weed list and is toxic to livestock. Goatsrue is only known to exist in this Commonwealth at an arboretum in the Philadelphia area.
Heracleum mantegazzianum, commonly known as Giant Hogweed, is a nonnative plant that is on the Federal noxious weed list and causes skin rashes on many persons who come into contact with it. The plant is only known to be present in this Commonwealth in Crawford, Erie, McKean, Venango and Warren Counties.
In summary, the Department is satisfied there is a need for the final-form regulation, and that it is otherwise consistent with Executive Order 1996-1, ''Regulatory Review and Promulgation.''
Comments
Notice of proposed rulemaking was published at 30 Pa.B. 636 and provided for a 30-day public comment period. Neither the Legislative Committees nor the Independent Regulatory Review Commission (IRRC) offered comment with respect to that document.
The sole comment originated from the Pennsylvania Landscape and Nursery Association (PLNA). Although PLNA supports the addition of Lythrum salicaria (purple loosestrife), Galega officinalis (Goatsrue), Heracleum mantegazzianum (Giant Hogweed) and Lythrum virgatum to the noxious weed control list, it expressed concern regarding the addition of the cultivars and combinations of Lythrum salicaria and Lythrum virgatum to that list. Rather than a broad designation of these cultivars and combinations as noxious weeds, PLNA recommended each such cultivar or combination be evaluated and considered individually for inclusion on the noxious weed control list. PLNA offered the opinion there is not ''. . . enough evidence to support that all cultivars, both current and future, should be considered noxious weeds.''
The Department gave careful consideration to PLNA's comment. On balance, the Department is satisfied that all cultivars and combinations of Lythrum salicaria and Lythrum virgatum should be included on the noxious weed control list, and that current scientific research supports this position.
Research conducted in Minnesota has shown that no purple loosestrife cultivar is sterile. All cultivars can produce viable seeds when crossed with other cultivars and species, including Lythrum alatum (winged loosestrife), a noninvasive native of wetlands. The cultivars pose a great risk because, unlike the parent species, they are adapted to grow in drier soils. Continued crossing between cultivars and parent species can lead to new genetic combinations that would allow loosestrife to colonize drier, more upland habitats, making it an even more troublesome weed.
The Department also believes that, even were it inclined to do so, it could not draw a workable regulatory line to exclude any particular cultivar or combination of Lythrum salicaria and Lythrum virgatum from the noxious weed control list. Distinguishing between cultivars of loosestrife is difficult at best. Like-named cultivars may look different and differently-named cultivars may appear identical. This situation would be unworkable for any plant inspector or botanist tasked with making a precise identification of a particular cultivar or combination.
The Department is mindful that certain cultivars or combinations of Lythrum salicaria and Lythrum virgatum are produced and sold commercially in this Commonwealth, and that these plants are not uncommon in ornamental flower gardens. It is satisfied, though, that there are numerous perennial plants that are suitable substitutes for these cultivars or combinations. This Commonwealth's plant nursery industry has been provided several years' advance notice that cultivars or combinations of Lythrum salicaria and Lythrum virgatum would be included on the noxious weed control list, and the Department believes the industry has prepared for this regulation by eliminating stocks of these plants or obtaining suitable substitutes for these plants. The Department views the inclusion of these plants on the noxious weed control list as the first logical step toward reducing the prevalence of these plants in this Commonwealth.
The Department is currently cooperating with the United States Department of Agriculture on a biocontrol project with respect to purple loosestrife. The project involves the release of several different species of beetles that attack loosestrife. Tests have shown these insects capable of drastically reducing loosestrife populations in natural areas, thereby allowing native plants to begin reclaiming these environments. The Department believes it would be self-defeating to allow sale of even a single cultivar or combination of loosestrife while it simultaneously pursues biological control efforts with respect to these plants.
On balance, the Department is satisfied that all cultivars and combinations of Lythrum salicaria and Lythrum virgatum should be included on the noxious weed control list, and that current scientific research supports this position.
Fiscal Impact
Commonwealth The final-form regulation will not impose appreciable costs upon the Commonwealth.
Political Subdivisions The final-form regulation will not impose appreciable costs upon political subdivisions.
Private Sector The final-form regulation will not impose appreciable costs upon the private sector. Only a small percentage of this Commonwealth's plant nurseries and similar establishments ever handled purple loosestrife. Of those that did, sales of those plants comprised only a small part of their business. As a result of the nursery industry's awareness of the environmental threat posed by purple loosestrife and the fact the final-form regulation was forthcoming, it is believed the fiscal impact of this amendment upon the private sector will be insignificant.
The inclusion of Goatsrue and Giant Hogweed on the Noxious Weed Control List is not expected to result in significant costs to the private sector. These plants are present in relatively few locations in this Commonwealth, and can be eliminated without significant expense.
General Public The final-form regulation will not impose appreciable costs upon the general public.
Paperwork Requirements
The final-form regulation will not result in an appreciable increase in the amount of paperwork handled by the Department, or increase the paperwork burden of political subdivisions, the private sector or the general public.
Contact Person
Further information is available by contacting the Department of Agriculture, Bureau of Plant Industry, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attention: Will Mountain.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 24, 2000, the Department submitted a copy of the notice of proposed rulemaking published at 30 Pa.B. 636 to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs for review and comment.
In compliance with section 5(c) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of all comments received, as well as other documentation. In preparing this final-form regulation, the Department has considered the comments received from IRRC, the Committees and the public.
This final-form regulation was deemed approved by the House and Senate Committees on October 5, 2000. IRRC met on October 19, 2000. The final-form regulation was deemed approved under section 5(g) of the Regulatory Review Act.
Findings
The Department finds that:
(1) Public notice of its intention to adopt the regulation encompassed by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments received were considered.
(3) Any modifications that were made to this regulation in response to comments received do not enlarge the purpose of the proposed amendment published at 30 Pa.B. 636.
(4) The adoption of the regulation in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under authority of the authorizing statute, orders that:
(a) The regulations of the Department, 7 Pa. Code Chapter 110, are amended by amending § 110.1 to read as set forth at 30 Pa.B. 636.
(b) The Secretary of Agriculture shall submit this order and 30 Pa.B. 636 to the Office of General Counsel and to the Office of the Attorney General for approval as required by law.
(c) The Secretary of the Department shall certify this order and 30 Pa.B. 636 and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
SAMUEL E. HAYES, Jr.,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 30 Pa.B. 5807 (November 4, 2000).)
Fiscal Note: Fiscal Note 2-117 remains valid for the final adoption of the subject regulation.
[Pa.B. Doc. No. 00-1973. Filed for public inspection November 17, 2000, 9:00 a.m.]
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