Chapter 3 

 

Petition and Permitting 

APHIS Permitting Process 

  

  

Content

  

Introduction   

Permitting Process for Weed Biological Agents   

Step 1: Early Input 3‐2‐2

Step 2: Obtaining Permits from APHIS   

Step 3: APHIS Responses to the Recommendation Letter from TAG‐BCAW   

Step 4: Environmental Compliance in Support of Petition for Release    

Step 5: Compliance with Certain Executive Orders   

  

Introduction 

APHIS has authority to regulate the importation and interstate 

movement and release of plant pests noxious weeds and biological 

control organisms under the Plant Protection Act of 2000. APHIS 

regulates the movement of these organisms in order to prevent the 

the dissemination of plant pests or noxious weeds. These 

regulations may be found in the Code of Federal Regulations 

Chapter 7 Part 330 (see 

http://www.aphis.usda.gov/regulations/index.shtml

Permitting Process section of the Petition and Permitting chapter 

provides information about APHIS’ role in each step of the review 

process for authorizing first-time release of non-indigenous 

organisms used as the documentation flow of petitions, and the 

approval process for weed biological control agents of weeds.
Permitting Process for Weed Biological 

Control Agents 

The Plant Protection Act of 2000 (7 U.S.C. 7701 et seq.) provides the 

Secretary of Agriculture with the authority to regulate “any enemy, 

antagonist, or competitor used to control a plant pest or noxious weed”. 

However, other legislation such as the National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et seq.), the Endangered Species Act (ESA) (16 

U.S.C. 1531 et seq.), and Executive Orders 13112 (64FR 6183) for 

Invasive Species and EO 12898 “Federal Actions to Address 

Environmental Justice in Minority Populations and Low-income 

Populations,” may affect the decision to release a non-indigenous weed 

biological control agent into the environment. Because the issuance of a 

permit is a federal action, it is therefore the responsibility of APHIS to 

meet any requirement of these Acts and Executive Orders. TAG-BCAW 

petitioners may refer to the following pages that describe the content of 

and flow of documents used by APHIS to meet the requirements of these 

Acts and Executive Orders. An understanding of the various documents 

APHIS prepares and or reviews conducted should help to clarify this 

process. 

Step 1: Early Input 

Researchers should submit a proposed test plant list to the Technical Advisory 

Group (TAG-BCAW) whether or not a candidate biological control agent 

has yet been identified,. The TAG,-BCAW an interagency group, was 

established to advise weed biological control researchers and provide the 

APHIS-PPQ Pest Permitting Branch with a recommendation on the 

proposed federal action, issuance of a permit authorizing release to the 

environment. At this early stage of the review process, TAG-BCAW 

makes recommendations on the target weed choices and comments on the 

proposed test plant list for host specificity testing. 

Both TAG-BCAW reviewers and researchers should review federal and state 

lists of threatened and endangered species prior to host specificity testing. 

All federally listed threatened and endangered species must be considered 

when designing the test plant list. Candidate species and species proposed 

for listing should also be considered because they may be listed at any 

time. Web sites to obtain information on listed species include 

http://ecos.fws.gov/tess_public/ or 

http://ecos.fws.gov/ecos/indexPublic.do. Even though a U.S. Fish and 

Wildlife Service (USFWS) representative participates on the TAG-BCAW 

review panel, this does not substitute for the ESA consultation process. 

Petitioners are encouraged to contact the Regional Offices and local Field 

Offices of the USFWS in the areas where the target weed is located prior 
to and during the host testing phase in order to obtain advice and guidance 

regarding any threatened,endangered, proposed and candidate species. 

The USFWS can also provide guidance regarding obtaining seeds or 

samples of these plants, or related species that can serve as surrogates for 

these species. 

Step 2 Obtaining Permits from APHIS 

Permits are required from APHIS for any of the following 

situations: 

1. Importation of live biological control organisms into the United States 

and its Territories (see Step 2-1; Importation Permits); 

2. Interstate movement of live biological control organisms (includes 

movement between any state, territory and the District of Columbia) 

(See Step 2-2; Interstate Movement Permits); 

3. Retaining live biological control organisms in containment facilities 

after expiration of a permit (see Step 2-3 Continued Curation 

Permits); 

4. The movement of any live biological control organism from the 

confines of a containment facility to any other containment facility, or 

for environmental release (see Step 2-4; Removal From Containment). 

ALL conditions of any permit, including all authorizations and 

restrictions, remain binding as long as the permit is valid and 

prior to expiry. Revocation or expiration of any permit 

requiring containment for the regulated organisms requires 

devitalization/destruction of all organisms regulated by that 

permit, or a new permit for the organisms. Guidance and step 

by step instructions for obtaining each of these types of PPQ 

526 Permits can be found at 

http://www.aphis.usda.gov/plant_health/permits/organism/inde

x.shtml

Step 2 -1: Importation Permits: 

This type of permit is needed every time live biological control 

organisms are imported into the United States and its 

Territories. These permits will require an USDA APHIS 

inspected containment facility as the destination, unless the 

organisms being imported are species having certain 

exemptions under APHIS regulations 7 CFR 330.200 et seq. , 
see also: 

http://www.aphis.usda.gov/plant_health/permits/organism/inde

x.shtml

Instructions and other information regarding applying for an 

Importation permit may be found at 

http://www.aphis.usda.gov/plant_health/permits/organism/plant

pest_howtoapply.shtml

Additional information concerning Containment facilities can 

be found at 

http://www.aphis.usda.gov/plant_health/permits/organism/conta

inment_facility_inspections.shtml

 

Step 2 -2: Interstate movement Permits: 

This type of permit is needed every time live weed biological 

control organisms are moved across state lines between any 

State of the United States and its Territories. Permits are 

required regardless of the use (research , release, etc.). There 

may be exceptions to the requirement for an interstate 

movement permit for certain biological control organisms. 

Additional information, including the list of such organisms can 

be found at 

http://www.aphis.usda.gov/plant_health/permits/organism/inde

x.shtml

Step 2 -3: Continued curation Permits:

These permits are required in order to retain live regulated 

organisms in containment beyond the expiration of any permit 

that requires containment. When continued movement is 

involved, colonies/cultures of organisms may be kept under the 

new importation or interstate permit when it is renewed. 

Additional information can be found at 

http://www.aphis.usda.gov/plant_health/permits/organism/inde

x.shtml

Step 2 -4: Permits for Removal from Containment:

These permits are required in order to move any live regulated 

organism from the confines of an APHIS inspected containment 

for any reason, including movement between containment 
facilities regardless of their relative location (in addition to such 

movements which may be described and permitted in the 

existing permit). If movement between specific containment 

facilities is already described and permitted in an existing 

permit importation, interstate or continued curation permit, then 

an additional permit is not required for such movement. . 

A permit is required to remove a weed biological control 

organism from containment and enables release into the 

environment after the APHIS approval following the processes 

described in Steps 3 and 4 below. It must be kept in mind, that 

any removal from containment without safeguards (i.e., escape 

proof packaging while moving to another containment facility, 

or a physically separate part of a containment facility) 

constitutes “release” into the environment. 

Step 3 APHIS Responses to the Recommendation 

Letter from the TAG-BCAW Chair 

After receiving the TAG-BCAW recommendation, APHIS 

reviews the recommendation, including reviewers’ comments 

and any information and references cited by reviewers, and any 

additional information available to APHIS in order to determine 

if APHIS will support release of the biological control agent. 

The decision by APHIS to support – or not support - release 

may or may not agree with the TAG-BCAW recommendation 

to release (or not release), based on all the information APHIS 

considers. However, historically the TAG-BCAW 

recommendation and the subsequent APHIS decision regarding 

release frequently coincide.. 

Soon after receipt of the Recommendation letter from the TAGBCAW Chair, APHIS typically will write a letter to inform the 

Petitioner of the APHIS decision regarding support of the 

request to release the biological control agent, with a copy to 

the TAG-BCAW Executive Secretary . In the cases where 

APHIS supports the request to release, APHIS may still request 

that the Petitioner provide additional information or 

clarification, which will be used to support and enhance the 

environmental compliance documents in the following steps. 
This additional information or clarification is usually in 

response to questions or concerns raised by the reviewers or 

other parties which are often received even with a 

TAG_BCAW recommendation for release. . 

When APHIS supports a request for release , then APHIS will 

invite the Petitioner to submit an application for removal from 

containment and environmental release of the agent ref. Step 

2.4 above. NOTE: an application may be submitted by any 

individual in accordance with APHIS regulations (7 CFR 

330.201 – 203), and may be from a party not the 

petitioner/researcher, but who is proposing to colonize, 

increase, or distribute the agent. Upon receipt of the 

application, APHIS will proceed with the Environmental 

Compliance process described in Step 4 below. 

When release of the weed biological control agent is not 

supported by APHIS (typically when the TAG-BCAW does not 

recommend release), then APHIS will convey the reasons for 

not supporting release in the letter to the Petitioner, and may 

outline steps to take if the Petitioner wishes to improve the 

petition. At this point, it will be the decision of the Petitioner or 

other researchers whether to invest additional time and 

resources to improving the petition and submitting an amended 

petition to the TAG-BCAW Executive Secretary. The 

subsequent submission of a new or amended petitiion may or 

may not lead to a recommendation for release, or support for 

release by APHIS. APHIS will deny any application submitted 

for removal from containment and therefore will not proceed 

with the Environmental Compliance process described in Step 4 

below. 

Step 4: Environmental Compliance in Support of 

Petition for Release

Issuance of permits by APHIS for the environmental release of 

nonindigenous weed biological control organisms is considered 

a Federal action and triggers compliance with the Endangered 

Species Act (ESA) and the National Environmental Policy Act 

(NEPA). Steps and procedures APHIS follows to comply with 
these acts regarding the proposed release of a biological control 

agent against weeds are described below in steps 3.1 and 3.2 

respectively. 

The petitioner should apply for a PPQ 526 permit to remove a 

weed biological control organism from containment (see Step 

2.4) after receipt of a letter from APHIS indicating support of 

the request to release the weed biological control organisms 

into the environment of the United States. APHIS proceeds 

with the steps for compliance with these environmental acts in 

response to receipt of the application for the permit to release 

(removal from containment). 

Step 4.1 Compliance with the Endangered Species Act

According to the ESA, any action that is authorized, funded, or 

carried out by a Federal agency must comply with the 

consultation requirements of Section 7 of the ESA. (See Section 

7 Consultations on page 6-1-1 ESA; Compliance on page 6-1-

1.). Although the researcher should have received input from 

the USFWS or possibly the National Marine Fisheries Service 

(referred to collectively as the “Services”) from the beginning, 

APHIS-PPQ determines if consultation with the Services must 

be conducted at this point in the process. If the proposed 

release will have no effect on listed species or designated 

critical habitat, no consultation with the Services is required. 

Informal consultation with the Services occurs when the release 

of the biological control organism “may affect, but is not likely 

to adversely affect” listed species or designated critical habitat. 

The document required for Section 7 consultation with the 

Services is a biological assessment. This document is prepared 

by APHIS and is submitted to the Services. . The BA includes 

several elements: 

1. A description of the action to be considered. 

2. A description of the specific area that may be affected by 

the action. 
3. A description of any listed species or critical habitat 

affected by the action 

4. A description of the manner in which the action may 

affect any listed species or critical habitat and an analysis of 

any cumulative effects. 

5. Relevant reports, including any EA or EIS. 

6. Other relevant information on the action, affected listed 

species, or critical habitat. 

The USFWS reviews the BA, and if they concur with the “may 

affect, not likely to adversely affect” determinations, they will 

send APHIS a concurrence letter and the consultation process is 

complete. Once complete, PPQ incorporates the concurrence 

from USFWS) into the environmental assessment (EA), and 

makes any final changes necessary. 

In very rare cases, APHIS may pursue formal consultation with 

the USFWS. Formal consultation is required when APHIS 

determines that the proposed release “may affect and is likely to 

adversely affect” listed species or designated critical habitat. 

Typically, APHIS does not proceed with formal consultation 

except under the unusual circumstances, where the adverse 

effect may be in doubt, or is likely to be very limited. 

Step 4.2 Compliance with the National Environmental 

Policy Act.

The document required for NEPA compliance is the 

Environmental Assessment (EA), a concise public document 

that provides evidence and analysis to determine whether a 

Finding of No Significant Impact (FONSI) can be reached. The 

EA is prepared by APHIS staff scientists. The EA provides the 

public with the potential positive and negative environmental 

impacts, both direct and indirect, that may occur following 

release into the environment. Petitioners from other Federal 

agencies must also consider their own NEPA implementing 

procedures specific to any proposed actions. 
Once the EA has been completed, PPQ publishes a 30-day 

notice of availability of the EA in the Federal Register to allow 

public comment on the proposed action. After considering the 

comments, PPQ does one of the following: 

 

 Reaches a finding of no significant impact (FONSI) and 

can process a pending permit application for movement out of 

containment; or 

 Is unable to reach a FONSI, and concludes that 

preparation of an Environmental Impact Statement is required. 

An EIS is a document prepared in compliance with NEPA 

when significant impacts are expected from the proposed 

action, although typically, APHIS does not support the release 

of a proposed agent if significant impacts are possible and thus, 

would not prepare an EIS. 

If a FONSI has been reached, APHIS will publish the 

availability of the FONSI in the Federal Register and post the 

final EA and FONSI on the APHIS website 

http://www.aphis.usda.gov/plant_health/ea/index.shtml. 

At this point, APHIS will proceed with processing the PPQ 

Form 526, Application to Move Live Plant Pests or Noxious 

Weeds so that the weed biological control agent may be moved 

out of containment facilities and subsequently released into the 

environment. 

Step 5: Compliance with Executive Order 13175 

APHIS, like other federal agencies, is bound to comply with 

various Executive Orders (EO), some of which apply to these 

proposed actions. EO 13175, “Consultation and Coordination 

with Indian Tribal Governments”, was issued to ensure that 

there would be “meaningful consultation and collaboration with 

tribal officials in the development of Federal policies that have 

tribal implications.” Therefore, APHIS implements contact and 

communication with federally recognized Tribal Governments 

regarding the proposed environmental release of weed 

biological control organismsms. Typically, prior to the 

publication of the EA in the Federal Register, APHIS staff 

prepares a letter describing the proposed Federal action and 
requests review and input from Native American Tribes in any 

area likely to be inhabited or affected by the release of the 

proposed biological control agent against weeds. If the tribal 

governments request documentation, then the draft EA is sent 

to them for their review. Any concerns they pose are addressed 

by APHIS and the petitioner. If a Tribal government requests 

consultation with APHIS, Environmental Compliance and other 

actions in preparation of the proposed release are paused until 

consultation is concluded.