The purpose of this amendment is to address the changes to Section 581.083, F.S., regarding the cultivation and transport of non-native plants, algae and blue-green algae in plantings greater than two acres and update forms and other minor editorial ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Division of Plant Industry

RULE NOS.:RULE TITLES:
5B-57.001Definitions
5B-57.002Purpose
5B-57.004 Introduction, Possession or Movement of Arthropods, Biological Control Agents, Plant Pests, Noxious Weeds, and Invasive Plants, Regulated by the Department
5B-57.006Regulation and Control of Noxious Weeds and Invasive Plants in Florida
5B-57.007Noxious Weed List
5B-57.010Noxious Weed and Invasive Plant Classification Procedures
5B-57.011Biomass Plantings
5B-57.012Casuarina Cunninghamiana Windbreaks
PURPOSE AND EFFECT: The purpose of this amendment is to address the changes to Section 581.083, F.S., regarding the cultivation and transport of non-native plants, algae and blue-green algae in plantings greater than two acres and update forms and other minor editorial revisions within the rule chapter. The effect is to improve the permitting process associated with the introduction or release of plant pests, noxious weeds, arthropods and biological control agents. The reflected changes will reduce regulatory burden without compromising plant protection duties and responsibilities assigned by Florida Statutes.
SUMMARY: To evaluate and control the production of non-native plants, algae and blue-green algae in plantings of larger than two acres within the state and to establish procedures under which the field releases of such are permitted. Such procedures will assist in confirming that introductions and field releases are conducted in a manner which provides for public and environmental protection. In addition, the conditions for broad category and specific exemptions are addressed and several new exempted species listed.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the adverse impact or potential regulatory costs of the proposed rule did not exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes. As part of this analysis, the Department relied upon past experiences with non-invasive species activities and rules of this nature. Additionally, no interested party submitted additional information regarding the economic impact.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 570.07 (23), 581.031(4), (5) FS.
LAW IMPLEMENTED: 570.07 (13), 581.031(4), (5), (6), (15) 581.083, 581.091 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Mr. Richard Gaskalla, Director, Division of Plant Industry, P. O. Box 147100, Gainesville, Florida 32614-7100. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Mr. Richard Gaskalla, Director, Division of Plant Industry, P. O. Box 147100, Gainesville, Florida 32614-7100

THE FULL TEXT OF THE PROPOSED RULE IS:

(Substantial rewording of Rule 5B-57.001 follows.  See Florida Administrative Code for present text. )

5B-57.001 Definitions.

(1) For the purpose of this rule chapter, the following definitions shall apply:

(a) Arthropod. Any segmented invertebrate animal having jointed appendages and an exoskeleton, including insects, spiders, ticks, mites, and scorpions, but excluding crustaceans for the purpose of this rule chapter.

(b) Beneficial Organisms. Any organism which benefits Florida’s native or agricultural plants, or benefits one without adversely impacting the other, by improving plant health or growth, or which may adversely affect pest species such as arthropods, fungi, bacteria, viruses, and nematodes.

(c) Biological Control Agent. Any biological agent such as bacteria, fungi, viruses, arthropods, parasitoids, parasites, nematodes, and predators that adversely affects pest species.

(d) Compliance Agreement. A written agreement between the Department and any person engaged in growing, handling, or moving articles, plants, plant products, plant pests, noxious weeds, invasive plants, arthropods, or biological control agents regulated under this rule chapter, wherein the person agrees to comply with stipulated requirements.

(e) Contiguous. Two or more plantings of non-native plants with a common boundary or a parcel of land that has been separated or divided into more than one planting of non-native plants whether separated or divided by a roadway or any other area not under cultivation with non-native plants.

(f) Department. The Florida Department of Agriculture and Consumer Services.

(g) International Movement. Movement into Florida from any country or area outside the United States.

(h) Interstate Movement. Movement into Florida from another state or U.S. possession.

(i) Intrastate Movement. Movement within the state of Florida.

(j) Invasive Plant. A naturalized plant that disrupts naturally occurring native plant communities by altering structure, composition, natural processes or habitat quality. All plants listed in Section 369.251(1), F.S., shall be included in the Department’s Noxious Weed and Invasive Plant List.

(k) Naturalized Plant. A plant that is reproducing spontaneously outside of cultivation and outside its native range.

(l) Nematode. A small unsegmented worm in all of its life stages in the Phylum Nematoda.

(m) Non-Native Species.  Any non-native plants, algae, or blue-green algae, including  genetically engineered plants, algae, or blue-green algae in plantings greater in size than two contiguous acres.

(n) Non-Native Species Permit.  A permit issued by the Department authorizing a non native species planting.

(o) Non-Native Species Planting.  The cultivation or production of a nonnative plants, algae, or blue-green algae, including a genetically engineered plants, algae, or blue-green algae in plantings greater in size than two contiguous acres.

(p) Noxious Weed. Any living stage, including, but not limited to, seeds and reproductive parts, of a parasitic or other plants of a kind, or subdivision of a kind, which may be a serious agricultural threat in Florida, or have a negative impact on the plant species protected under Section 581.185, F.S., or if the plant is a naturalized plant that disrupts naturally occurring native plant communities. All plants listed in Section 369.251(1), F.S., shall be included in the Department’s Noxious Weed and Invasive Plant List.

(q) Noxious Weed and Invasive Plant Review Committee. A committee appointed by the Department, in accordance with Section 570.0705, F.S., to review the Noxious Weed and Invasive Plant List in subsection 5B-57.010(2), F.A.C., as provided for in Section 581.091(4), F.S.

(r) Permit. An official document issued by the Department or the USDA allowing, under specific conditions, the entry or field release of plant pests, noxious weeds, invasive plants, arthropods, and biological control agents, defining the conditions under which such activities will be allowed, and containing specific instructions for inspection, movement, and containment.

(s) Plant Pest. Any living stage of any insects, mites, nematodes, slugs, snails, protozoa, or other invertebrate animals, bacteria, fungi, other parasitic plants or reproductive parts thereof, or 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, plant parts, or any processed, manufactured, or other products of plants, other than permitted biological control agents.

(t) USDA. The United States Department of Agriculture.

(2) The purpose of this rule chapter is to control the introduction into, or movement or spread within this state of any plant pest, noxious weed, or arthropod, and to establish procedures under which the field release of plant pests, noxious weeds, arthropods, and biological control agents or non-native species plantings are permitted. Such procedures will assist in confirming that introductions and field releases are conducted in a manner which provides for public and environmental protection.

Rulemaking Authority 570.07(13), (23) FS. Law Implemented 581.031(4), (5), (6), 581.083, 581.091 FS. History–New 7-27-93, Amended 4-18-04, Amended 10-1-06,_________.

 

5B-57.002 Purpose.

Rulemaking Authority 570.07(13), (23) FS. Law Implemented 581.031(4), (5), (6), 581.083, 581.091 FS. History–New 7-27-93, Amended 10-1-06, Repealed________.

 

5B-57.004 Introduction, Possession or Movement of Arthropods, Biological Control Agents, Plant Pests, Noxious Weeds, and Invasive Plants, Regulated by the Department.

(1) It is unlawful to introduce, multiply, possess, move, or release any arthropod, plant pest, biological control agent, noxious weed, or invasive plant regulated by the Ddepartment or the USDA except under permit issued by the Ddepartment unless a federal permit, PPQ 526, has been issued by the USDA with concurrence by the Ddepartment. No permit shall be issued nor concurrence with a federal permit, PPQ 526 made unless the Ddepartment has determined that the arthropod, plant pest, biological control agent, noxious weed, or invasive plant can be contained to prevent escape into the environment or that it will not pose a threat to agriculture, beneficial organisms, or the environment or become a public nuisance. If the possession of a plant listed in Rule 5B-57.007, F.A.C., has resulted from natural dispersion and there is neither danger of nor intent to further disperse the plant, then no permit is required. In the case of biological control agents, they must be specialized to the target pest or pests. The Ddepartment’s evaluation of permit applications may rely on findings of the Florida Department of Environmental Protection, the Florida Fish and Wildlife Conservation Commission, the USDA, the University of Florida, or any other State or Federal agency with expertise in these areas. In cases where there is inadequate information about the potential environmental impact of importing or releasing an organism, the Ddepartment will require the applicant to provide evidence that the accidental escape of organisms not intended for release would not be hazardous to Florida or U.S. agriculture, beneficial organisms, the public, or the environment and to provide contingency plans for containment should escape occur. The application procedures for permits are as follows:

(2) Unless a USDA permit 526 has been issued, anyone seeking a permit shall submit a completed Application and Permit to Move Organisms Regulated by the State of Florida, FDACS 08208 (Rev. 01/13), to the Division of Plant Industry, P. O. Box 147100, Gainesville, FL 32614-7100.  Application for permit shall be made on form DACS-08208 unless a USDA permit 526 has been issued. Application and Permit to Move Organisms Regulated by the State of Florida, DACS-08208, Revised 10/03, is incorporated into this rule chapter by reference. A department Pathogen Information Form is also required for plant pathogens. Pathogen Informational Form DACS-08214, revised 12/03 is incorporated into this rule chapter by reference. Copies of all Division of Plant Industry forms may be obtained from the Division of Plant Industry, P. O. Box 147100, Gainesville, Florida 32614-7100, or at the Division of Plant Industry website: http://www.doacs.state.fl.us/onestop/.  The form Application and Permit to Move Organisms Regulated by the State of Florida, FDACS 08208 (Rev. 01/13), is hereby adopted and incorporated by reference and may be obtained by writing the Division of Plant Industry at P. O. Box 147100, Gainesville, FL 32614-7100 or online at http://www.flrules.org/Gateway/reference.

(3) The completed application for permit shall be submitted to the Ddepartment for evaluation and approval or disapproval. The approval or disapproval of the application for permit shall be in accordance with the procedures outlined in Rule Chapter 28-107, F.A.C.

(4) Following approval by the Ddepartment, a permit (Application and Permit to Move Organisms Regulated by the State of Florida, FDACS 08208, Rev. 01/13) shall be issued. The conditions under which movement, introduction, possession, or release is permitted, and the length of time for which the permit is valid, will be specified on the permit or in a compliance agreement (DACS-08031). Compliance Agreement DACS-08031, revised 5/99 is incorporated into this rule chapter by reference. Copies of all Division of Plant Industry forms may be obtained from the Division of Plant Industry, P. O. Box 147100, Gainesville, Florida 32614-7100, or at the Division of Plant Industry website: http://www.doacs.state.fl.us/onestop/.

(5) Failure to comply with permit requirements shall subject the permit to revocation Any permit which has been issued shall be revoked by the Director of the Division of Plant Industry. in accordance with the procedures outlined in Rule Chapter 28-106, F.A.C. Where the Director has revoked withdrawn a permit for non-compliance with these specifications permit requirements, the permitted organism involved shall be seized by the Ddepartment if it is determined to pose a threat to the agricultural, horticultural, environmental, or public interests of the state as provided for in Section 581.031(15)(a), F.S.

Rulemaking Authority 570.07(13), (23) FS. Law Implemented 581.031(6), (7), 581.083, 581.091, 581.101 FS. History–New 7-27-93, Amended 6-20-00, 4-18-04,              ________.

 

5B-57.006 Regulation and Control of Noxious Weeds and Invasive Plants in Florida.

The Ddepartment, in addition to regulating the movement of the noxious weeds and invasive plants contained in Rule 5B-57.007, F.A.C., shall cooperate with the USDA, the Florida Department of Environmental Protection, and other appropriate parties to eradicate or control noxious weeds and invasive plants that are established in the State and are determined by the Ddepartment to be a nuisance or threat due to undesirable characteristics such as poisonous properties, or invasive or rapid reproductive tendencies. The eradication and control strategies developed shall be based on available science for each plant species considered for action. Eradication and control strategies include the use of biological control agents, integrated pest management, chemical control, and mechanical removal. The Ddepartment’s involvement in eradication and control programs for noxious weeds and invasive plants will be carried out within the scope of statutory authority and available resources.

Rulemaking Authority 570.07(13), (23) FS. Law Implemented 581.031(4), (6), (7), (16), (17), 581.083, 581.091, 581.101 FS. History–New 7-27-93, Amended 4-18-04,________.

 

5B-57.007 Noxious Weed List.

(1) Parasitic Weeds.

(a) Aeginetia spp. - (Aeginetia).

(b) Alectra spp. - (Alectra).

(c) Cuscuta spp. Only the native Florida species are excluded from this list. These include:

1. C. americana.

2. C. compacta.

3. C. exaltata.

4. C. gronovii.

5. C. indecora.

6. C. obtusiflora.

7. C. pentagona.

8. C. umbellata.

(d)1. Orobanche spp. - (broomrapes), with the exception of:

2. O. uniflora. (-oneflowered broomrape)

(2) Terrestrial Weeds.

(a) Ageratina adenophora - (crofton weed).

(b) Alternanthera sessilis - (sessile joyweed).

(c) Abrus precatorius - (rosary pea).

(d) Ardisia elliptica - (shoebutton ardisia).

(e) Asphodelus fistulosus - (onionweed).

(f) Avena sterilis (including Avena budoviciana) -  (animated oat, wild oat).

(g) Borreria alata - (broadleaf buttonweed).

(h) Carthamus oxyacantha - (wild safflower).

(i) Casuarina equisetifolia - (Australian pine).

(j) Casuarina glauca - (suckering Australian pine).

(k) Chrysopogon aciculatus - (pilipiliula).

(l) Colubrina asiatica - (latherleaf)

(m) Commelina benghalensis - (Benghal dayflower).

(n) Crupina vulgaris- (common crupina).

(o) Cupaniopsis anacardioides - (carrotwood) Propagation prohibited effective 7/1/99; sale or distribution prohibited 1/1/2001.

(p) Digitaria scalarum - (African couchgrass, fingergrass).

(q) Digitaria velutina - (velvet fingergrass, annual couchgrass).

(r) Dioscorea alata - (white yam).

(s) Dioscorea bulbifera - (air potato).

(t) Drymaria arenarioides - (lightning weed).

(u) Emex australis - (three-corner jack).

(v) Emex spinosa - (devil’s thorn).

(w) Euphorbia prunifolia - (painted euphorbia).

(x) Galega officinalis - (goat’s rue).

(y) Heracleum mantegazzianum - (giant hogweed).

(z) Imperata brasiliensis - (Brazilian satintail).

(aa) Imperata cylindrica - (cogongrass).

(bb) Ipomoea triloba - (little bell, aiea morning glory).

(cc) Ischaemum rugosum - (murainograss).

(dd) Leptochloa chinensis - (Asian sprangletop).

(ee) Leucaena leucocephala - (lead tree).

(ff) Lycium ferocissimum - (African boxthorn).

(gg) Lygodium japonicum - (Japanese climbing fern).

(hh) Lygodium microphyllum - (small-leaved climbing fern).

(ii) Melaleuca quinquenervia - (melaleuca).1

(jj) Melastoma malabathricum - (Indian rhododendron).

(kk) Mikania cordata - (mile-a-minute).

(ll) Mikania micrantha - (climbing hempweed).

(mm) Mimosa invisa - (giant sensitive plant).

(nn) Mimosa pigra - (catclaw mimosa).1

(oo) Nassella trichotoma - (serrated tussock).

(pp) Neyraudia reynaudiana - (Burma reed).

(qq) Opuntia aurantiaca - (jointed prickly pear).

(rr) Oryza longistaminata - (red rice).

(ss) Oryza punctata - (red rice).

(tt) Oryza rufipogon - (wild red rice).

(uu) Paederia cruddasiana - (sewer-vine).

(vv) Paederia foetida - (skunk-vine).

(ww) Paspalum scrobiculatum - (Kodomillet).

(xx) Pennisetum clandestinum - (Kikuyu grass).

(yy) Pennisetum macrourum - (African feathergrass).

(zz) Pennisetum pedicellatum - (Kyasuma grass).

(aaa) Pennisetum polystachyon - (missiongrass, thin napiergrass).

(bbb) Prosopis spp.

(ccc) Pueraria montana - (kudzu).

(ddd) Rhodomyrtus tomentosa - (downy myrtle).

(eee) Rottboellia cochinchinensis - (itchgrass).

(fff) Rubus fruticosus - (bramble blackberry).

(ggg) Rubus molluccanus - (wild raspberry).

(hhh) Saccharum spontaneum - (wild sugarcane).

(iii) Salsola vermiculata - (wormleaf salsola).

(jjj) Sapium sebiferum - (Chinese tallow tree).

(kkk) Scaevola taccada - (beach naupaka). Propagation prohibited immediately and distribution prohibited by July 1, 2007.

(lll) Schinus terebinthifolius - (Brazilian pepper-tree).1

(mmm) Setaria pallidefusca - (cattail grass).

(nnn) Solanum tampicense - (wetland nightshade).

(ooo) Solanum torvum - (turkeyberry).

(ppp) Solanum viarum - (tropical soda apple).

(qqq) Tridax procumbens - (coat buttons).

(rrr) Urochloa panicoides - (liverseed grass).

1Department of Environmental Protection permit required for these species.

Rulemaking Authority 570.07(13), (23) FS. Law Implemented 581.031(4), (5), (6), 581.083, 581.091 FS. History–New 7-27-93, Amended 2-28-94, 6-30-96, 7-7-99, 10-1-06,________.

 

5B-57.010 Noxious Weed and Invasive Plant Classification Procedures.

(1) The Department will propose the classification of a plant as a noxious weed or invasive plant and its inclusion on the Noxious Weed and Invasive Plant List, Rule 5B-57.007, F.A.C., if the plant is determined to be a serious agricultural threat in Florida, or have a negative impact on the plant species protected under Section 581.185 F.S., or if the plant is a naturalized plant that disrupts naturally occurring native communities.  In making these determinations, the Ddepartment will utilize information provided by the Institute of Food and Agricultural Sciences (IFAS) at the University of Florida or other experts that biologically justifyies the classification of a plant as a noxious weed or invasive plant based upon the best and currently available information.  Anyone seeking to have plants added to the Rule 5B-57.007, F.A.C., Noxious Weed List shall submit a completed Application for Inclusion to the Noxious Weed List, FDACS 08215, Rev. 01/13, to the Division of Plant Industry, P. O. Box 147100, Gainesville, FL 32614-7100.  The form Application for Inclusion to the Noxious Weed List, FDACS 08215, Rev. 01/13, is hereby adopted and incorporated by reference and may be obtained by writing the Division of Plant Industry, Bureau of Plant and Apiary Inspection, at P. O. Box 147100, Gainesville, FL 32614-7100 or online at http://www.flrules.org/Gateway/reference.    Individuals or groups seeking to have plants included in Rule 5B-57.007, F.A.C., may make application to the Ddepartment on form DACS-08215. Application for Inclusion to the Noxious Weed List DACS-08215, Effective 12/03 is incorporated into this rule chapter by reference. Copies of all Division of Plant Industry forms may be obtained by writing the Division of Plant Industry, P. O. Box 147100, Gainesville, Florida 32614-7100, or at the Division of Plant Industry website: “http://www.doacs.state.fl.us/onestop/.” To add a noxious weed or invasive plant to the list of noxious weeds and invasive plants the following information is required to assist in the development of the risk assessment: identification including scientific name and author, common synonyms, botanical classification, common names; summary of life history; native and world distribution; distribution in Florida or the United States if any; description of control efforts, if established in Florida or the United States; identification of regulation at the state level; consequences of introduction/spread; habitat suitability in Florida (predicted ecological range); dispersal potential (biological characteristics associated with invasiveness); potential economic impacts; potential environmental impacts; likelihood of introduction/spread; potential pathways into and within Florida; likelihood of survival and spread within each pathway; and supporting documentation (list of references). To remove a plant from the list the following information is required: evidence that the species no longer meets the definition of a noxious weed or invasive plant. For cultivars of a listed plant to be exempted, the following information must be supplied by IFAS: evidence of sterility and inability to cross pollinate with wild types, or evidence that the cultivar has narrower habitat suitability, less dispersal potential, less potential for negative impact on the economy and/or environment of Florida and evidence that the plant is not spreading vegetatively. The Ddepartment will review a submitted Application for Inclusion to the Noxious Weed List, FDACS 08215, Rev. 01/13, the application (DACS-08215) and forward it to the Noxious Weed and Invasive Plant Review Committee within 30 days provided all required information has been submitted. The Noxious Weed and Invasive Plant Review Committee will review the application and make a final recommendation to the Ddepartment to add or remove plants from Rule 5B-57.007, F.A.C. Any exemptions for cultivars, production practices, areas of distribution, or any other reasons will be denoted following the plant name on the Noxious Weed and Invasive Plant List. The Ddepartment may shall make a final determination regarding the disposition of the application within 30 days of receipt of the committee recommendation. Upon making a final determination, the rule amendment process will be initiated if necessary. By emergency rule, the Ddepartment shall may add a plant to the list at any time if there is an immediate threat to the agricultural, horticultural, environmental, or public interest of the state.

(2) The Noxious Weed and Invasive Plant List contained in Rule 5B-57.007, F.A.C., shall be subject to review, at least biennially, by the Ddepartment in conjunction with the Institute of Food and Agricultural Sciences at the University of Florida. The Noxious Weed and Invasive Plant List Review Committee appointed by the Ddepartment, in accordance with Sections 581.091(4) and 570.0705, F.S., will conduct the review. All reviews will be conducted in accordance with Section 120.525, F.S., which provides for public input. The Vice President for Agricultural and Natural Resources with the University of Florida will recommend two faculty members, one specializing in research on production agriculture and the other on natural resources, to the Ddepartment to serve on the committee. A representative from the Director’s Office, the Bureau of Plant and Apiary Inspection, and the Botany Section shall represent the Ddepartment. The Noxious Weed and Invasive Plant List Review Committee will make recommendations to the Ddepartment to add or remove plants from Rule 5B-57.007, F.A.C., based on the biological justification as described in subsection (1).

Rulemaking Authority 570.07(23) FS. Law Implemented 581.011(18), 581.031(6), 581.091(4) FS.  History–New 4-18-04,.

 

(Substantial rewording of Rule 5B-57.011 follows.  See Florida Administrative Code for present text. )

              5B-57.011 Non-Native Species Special Permits.

              (1) In accordance with Section 581.083, Florida Statutes, a person may not cultivate nonnative plants, algae, or blue-green algae, including genetically engineered plants, algae, or blue-green algae in plantings greater in size than two contiguous acres, except under a Special Permit issued by the Department’s Division of Plant Industry.  Anyone seeking a Special Permit shall submit a completed Non-Native Species Planting Permit Application, FDACS 08381 (Rev. 01/13), to the Division of Plant Industry, P. O. Box 147100, Gainesville, FL 32614-7100. 

              (a) A separate application shall be required for each noncontiguous growing location and must include a complete description of the non-native species to be grown and an estimated cost of removing and destroying the non-native species planting including the basis for calculating or determining that estimate.

              (b) Each application must be submitted with the $50.00 permit fee and proof that a bond or certificate of deposit has been obtained in accordance with subsection (3). 

              (c) A new application will be required if a new or additional planting (contiguous or noncontiguous) exceeds five percent (5%) of the acreage covered by an previous permit.               

              (d) The Department will not issue a Special Permit for any planting that includes any species listed on the State Noxious Weed List (See Rule 5B-57.007) or the federal noxious weed list (See Designation of Noxious Weeds, 7 C.F.R. 360.200 (2010)). 

              (e) The Department will not issue a Special Permit unless the applicant is the owner of the property or has written permission from the property owner to utilize the land for non-native species plantings for the duration of the life of the permit.

              (f) In evaluating the permit application, the Department will visit the proposed growing location and determine if feasible measures are available to prevent the spread of the plant into neighboring ecosystems.  The permit will require the following minimum requirements:

              1. A system of traps or filters, a fallow area consisting of bare earth greater than 25 feet, or ground cover (approved by Department staff as part of the application process) to prevent the non-native species from spreading through ditches, natural waterways, or other drainage. 

              2. If the non-native species is motile in water and presents a risk of invasiveness in an aquatic environment, the applicant will be required to use a berm.

              3. Any equipment used on the site must be cleaned of all debris before being moved from the property.

              4. Wildfire protection measures will be required to mitigate fire risk and damages to surrounding areas.

              (g) If additional measures are necessary (including, but not limited to, transportation restrictions) to prevent the spread of the non-native species into neighboring ecosystems, the applicant will be required to execute a Non-Native Species Compliance Agreement, FDACS-08383, (Rev. 01/13), containing additional preventative requirements.  The executed Compliance Agreement will become an addendum to the Special Permit.  Failure of the applicant to abide by the stipulations of the Special Permit or Compliance Agreement will subject the Applicant to the procedures of Section 581.083(4)(b),(c),(d), Florida Statutes.

              (2) If an applicant meets the application requirements of 5B-57.011(1), F.A.C., the Department’s Division of Plant Industry will issue a Non-Native Species Planting Permit, FDACS-08382, (Rev. 01/13), to the applicant for annual cultivation and maintenance of the non-native species . 

                (3) As required by Section 581.083(4)(e), Florida Statutes, each permit holder shall maintain, for each separate growing location, a bond or a certificate of deposit in an amount, determined by the Department, of not more than 150 percent of the estimated cost of removing and destroying the non-native species.  The maximum bond or certificate of deposit required will not exceed $5,000 per acre except as allowed by Section 581.083(4)(e), Florida Statutes.  The amount of the bond or certificate of deposit shall be increased, upon order of the Department, at any time if the Department finds such increase to be warranted by the cultivating operations of the permit holder.

              (a) Applicants shall provide proof of each bond or certificate of deposit by submitting with the Special Permit application either the form entitled Non-Native Species Plantings Bond, FDACS 08439 (Rev. 01/13), or Assignment of Certificate of Deposit For Non-Native Species Plantings, FDACS 08440 (Rev.  01/13), as appropriate.  

              (b) Permit holders desiring that the security requirement be decreased or removed must submit a written justification to the Division of Plant Industry.  The permit holder must provide specific information that justifies the request by demonstrating that the permit holder has decreased its cultivation operations or that research or practical field knowledge and observations indicate a low risk of invasiveness by the non-native species.  The factors that the Department will consider include, but are not limited to: multiple years or cycles of successful large-scale contained cultivation; no observation of plants, algae, or blue-green algae escape from managed areas; and science-based evidence that establishes or demonstrates adjusted cultivation practices provide a similar level of containment of the nonnative plants, algae, or blue-green algae.  The Department will review the information presented and issue a written response to the request.  

              (4) It shall be unlawful for any person to abandon a non-native species planting.  It is the responsibility of the property owner or permit holder to completely destroy the planting prior to vacating the property or stopping commercial production.  If the Department determines any of the factors of Section 581.083(4)(c), Florida Statutes, to be true, the Department will issue an immediate final order requiring the immediate removal and destruction of the non-native species.  Failure of the permit holder to remove and destroy the non-native species within 60 days of the order will result in action by the Department against the permit holders bond or certificate of deposit as described in Section 581.083(4)(d), Florida Statutes.

              (5) A Non-Native Species Planting Permit, FDACS 08382 (Rev. 01/13), is not required if the Department, after consultation with the University of Florida, Institute of Food and Agricultural Sciences (IFAS), determines, based on experience or research data, that the non-native species does not pose a threat of becoming an invasive species or pest of plants or native fauna under Florida conditions.  The following are specifically exempted from the requirements of this rule:

              (a) Any plant that is produced in Florida for purposes of human food consumption.

              (b) Any plant that is commonly grown in Florida for commercial feed, feedstuff, or forage for livestock, nursery stock, or silviculture. 

              (c) Aquatic plants, algae, or blue-green algae grown in compliance with Aquaculture Best Management Practices and certified by the Division of Aquaculture pursuant to s. 597.004, Florida Statutes.

              (d) Energy cane (complex hybrid of Saccharum officinarum, S. spontaneum, S. barberi and S. sinense)

              (e) Eucalyptus amplifolia

              (f) Eucalyptus benthamii

              (g) Eucalyptus dorrigoensis

              (h) Eucalyptus dunnii

              (i) Eucalyptus grandis

              (j) Eucalyptus gunni

              (k) Eucalyptus nitens

              (l) Eucalyptus smithii

              (m) Eucalyptus urograndis - E. grandis X E. urophylla

              (n) Hibiscus canabinus L

              (o) Miscanthus giganteus - M. sacchariflorusX M. sinensis

              (p) Pinus spp.

Note: With the exception of Miscanthus giganteus, importation of Saccharum and Miscanthus species requires a Special Permit in accordance with Rule 5B-3.003, F.A.C.

              (6)  The following documents are hereby adopted and incorporated by reference.  These documents may be obtained by writing to the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, at , P. O. Box 147100, Gainesville, FL 32614-7100 or online as indicated. 

              (a) Non-Native Species Planting Permit Application, FDACS 08381 (Rev. 01/13), http://www.flrules.org/Gateway/reference

              (b) Non-Native Species Compliance Agreement, FDACS-08383, (Rev. 01/13), http://www.flrules.org/Gateway/reference

              (c) Non-Native Species Planting Permit, FDACS-08382, (Rev. 01/13), http://www.flrules.org/Gateway/reference

              (d) Non-Native Species Plantings Bond, FDACS 08439 (Rev. 01/13), http://www.flrules.org/Gateway/reference

              (e) Assignment of Certificate of Deposit For Non-Native Species Plantings, FDACS 08440 (Rev. 01/13), http://www.flrules.org/Gateway/reference

              (f) Designation of Noxious Weeds, 7 C.F.R. 360.200 (2012), http://www.flrules.org/Gateway/reference 

Rulemaking Authority 570.07(13), (23) FS.  Law Implemented 581.031(4), (5), (6), 581.083, 581.091 FS.  History–New 10-1-06, Amended 9-24-08,_________.

 

5B-57.012 Casuarina Ccunninghamiana Windbreaks.

Purpose – The Department is authorized pursuant to Section 581.091, F.S., to develop and administer a pilot program to allow for, under special permits, the propagation of male Casuarina cunninghamiana trees, and the planting of those trees as windbreaks for commercial citrus groves in Indian River, Martin and St. Lucie Counties. The program is a five-year pilot that may be extended and expanded if so approved at the end of five years by the Noxious Weed and Invasive Plant Review Committee, the Department of Environmental Protection, the Department and a representative of the citrus industry, as provided in Section 581.091(5)(b), F.S.; or permanently suspended if hybrids are found that the Department determines, pursuant to Section 581.091(5)(k), F.S., have a high potential to be invasive.

(1) Definitions. For the purpose of this rule chapter, the definitions in Section 581.011, F.S., and the following shall apply:

(a) Casuarina cunninghamiana means a perennial tree in the family Casuarinaceae commonly called the “river she-oak.”

(b) Commercial citrus grove means a contiguous planting of 100 or more citrus trees where citrus fruit is produced for sale.

(c) Department means the Florida Department of Agriculture and Consumer Services.

(d) Registered source tree means a Casuarina cunninghamiana male tree of Florida origin that the Department has verified as sexually mature and horticulturally true to type and for which the Department has assigned a source tree registration number.

(2) Nursery Propagation Permit Application Requirements. The following requirements must be met in order obtain a permit to propagate Casuarina cunninghamiana for use as a windbreak around commercial citrus groves:

(a) Casuarina cunninghamiana may only be propagated by nurseries registered with the Department pursuant to Section 581.031(21), F.S.

(b) The nursery must submit an Application and Compliance Agreement to Propagate Casuarina cunninghamiana, FDACS 08446, Rev. 01/13, to obtain application for a special permit to propagate Casuarina Ccunninghamiana from the Department. The form titled Application and Compliance Agreement tTo Propagate Casuarina Ccunninghamiana, (FDACS-08446, Rev. 01/13 02/09) is hereby adopted and incorporated herein by reference and. The form may be obtained from the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, Bureau of Plant and Apiary Inspection, P. O. Box 147100, Gainesville, FL 32614-7100 or online at http://www.flrules.org/Gateway/reference.

(c) The application must be accompanied by a fee of $200.

(d) The Compliance Agreement included in the application shall include a statement that the owner or operator acknowledges that this is a pilot program, and that the Department may order the destruction at owner’s or operator’s expense of all Casuarina cunninghamiana trees propagated pursuant to the permit.

(e) Within 30 days of receipt of a complete permit application and signed compliance agreement that meet the requirements of this rule, the Department shall issue the applicant a Special Permit for Propagation of Casuarina cunninghamiana (FDACS 08455, Rev. 01/13 02/09).  The form titled Special Permit For Propagation Of Casuarina cCunninghamiana (FDACS-08455, Rev. 01/13 02/09) is hereby adopted and incorporated herein by reference and a sample of the form . The form may be obtained from the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, Bureau of Plant and Apiary Inspection, P. O. Box 147100, Gainesville, FL 32614-7100 or online at http://www.flrules.org/Gateway/reference

(f) If the application is not complete, the Department shall notify the applicant in writing of the reasons that the permit will not be issued and any corrective measures that the applicant must take to obtain approval.

(g) The special permit expires twelve months after the date of issuance.

(h) Application for renewal of the special permit for propagation must be received by the Department at least 60 days prior to its expiration and be accompanied by the application fee of $200.

(3) Propagation Permit Requirements.

(a) All Casuarina cunninghamiana plants must be vegetatively propagated from registered source trees.

(b) An annual fee of $50 must be paid for each registered source tree and each registered source tree must be labeled with a permanent tag that contains the source tree registration number assigned by the Department.

(c) Each plant propagated from the registered source tree must be labeled with a permanent tag that contains the source tree registration number.

(d) Propagations from each registered source tree shall be maintained in nursery rows or on greenhouse benches so that each group can be identified as originating from an individual registered source tree.

(e) Source tree registration numbers of the parent plants must be documented on each invoice provided to the buyer.

(f) Nurseries may only sell Casuarina cunninghamiana to a person with a Special Permit for Casuarina cunninghamiana Windbreaks. The nursery must include the buyers permit number on each invoice.

(g) Copies of Casuarina cunninghamiana invoices must be maintained for 5 years and be made available to the Department upon request.

(h) Upon expiration of the Special Permit to Propagate Casuarina cunninghamiana issued by the Department, all remaining propagations must be destroyed, or sold or transferred to a nursery that has a current Special Permit to Propagate Casuarina cunninghamiana.

(i) The destruction or movement of any Casuarina cunninghamiana plants must be done under the direct supervision of the Department.

(4) Citrus Grove Windbreak Permit Application Requirements. The following requirements must be met in order obtain a permit to plant a Casuarina cunninghamiana Windbreak around commercial citrus groves:

(a) Casuarina cunninghamiana windbreaks may only be planted around a commercial citrus grove as defined in paragraph 5B-57.012(1)(b), F.A.C., located in areas of Indian River, Martin, or St. Lucie Counties in which the Department has determined that citrus canker is widespread.

(b) The property owner or operator must submit an Application and Compliance Agreement for Casuarina cunninghamiana Windbreaks. The form titled Application and Compliance Agreement For Casuarina cCunninghamiana Windbreaks (FDACS-08445, Rev. 01/13 02/09) is hereby adopted and incorporated herein by reference and. The form may be obtained from the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, Bureau of Plant and Apiary Inspection, P. O. Box 147100, Gainesville, FL 32614-7100 or online at http://www.flrules.org/Gateway/reference.

(c) A separate permit must be obtained for each noncontiguous commercial citrus grove where the applicant intends to plant the windbreak.

(d) Each application must include the following:

1. The name of the applicant and the applicant’s address or the address of the applicant’s principal place of business and the location and multiblock numbers of each commercial citrus grove for which a permit is sought. If the applicant is a corporation, partnership, or other business entity, the applicant must also provide in the application the name and address of each officer, partner, or managing agent.

2. An application fee in the amount of $200.

3. A baseline survey of all lands within 500 feet of the proposed windbreak to detect any Casuarina species. If any Casuarina species is detected, a map showing the location and identification of each Casuarina species must be provided. Identifications must be verified by the Department prior to issuance of a permit.

(e) An estimate of the cost of removing and destroying the proposed Casuarina cunninghamiana windbreak and the basis for calculating the estimate.

(f) A signed compliance agreement stating that the property owner or operator will abide by all permit conditions. The compliance agreement in the application shall include a statement that the owner or operator acknowledges that this is a pilot program, and that the Department may order the destruction at owner’s or operator’s expense of all Casuarina cunninghamiana trees planted pursuant to the permit.

(g) Within 30 days of receipt of a complete application and signed compliance agreement that meets the requirements of this rule, the Department shall issue the applicant a Special Permit For Casuarina cunninghamiana Windbreak (FDACS 08454, Rev. 01/13 02/09) or notify the applicant in writing of the reasons that the permit will not be issued and any corrective measures that applicant must take to obtain approval of the permit. The form titled Special Permit For Casuarina Ccunninghamiana Windbreaks (FDACS-08454, Rev. 01/13 02/09) is hereby adopted and incorporated herein by reference and a sample of the form . The form may be obtained from the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, Bureau of Plant and Apiary Inspection, P. O. Box 147100, Gainesville, FL 32614-7100 or online at http://www.flrules.org/Gateway/reference.

(h) The Special Permit for Casuarina cunninghamiana Windbreaks shall be valid for 5 years from the date of issuance and is transferable to subsequent owners or operators upon approval by the Department.

(i) Application for renewal of the special permit for a Casuarina cunninghamiana windbreak must be received by the Department at least 60 days prior to its expiration and be accompanied by the application fee of $200.

(5) Citrus Grove Windbreak Permit Conditions. The special permit shall require the property owner or operator to:

(a) Maintain the commercial citrus grove in such a manner to facilitate inspections and to provide unrestricted access to the site for purposes of inspecting the Casuarina cunninghamiana windbreaks;

(b) Notify the Department within 30 days following the initial planting and any subsequent planting of Casuarina cunninghamiana;

(c) Be responsible for the removal of Casuarina cunninghamiana if invasive populations or other adverse environmental factors are determined to be present by the Department as a result of the use of Casuarina cunninghamiana windbreaks;

(d) Maintain all records of the invoices documenting the purchase of the Casuarina cunninghamiana, including the source tree registration numbers as stated in paragraph 5B-57.012(1)(d), F.A.C., and make those records available to the Department during normal business hours for their review.

(e) Notify the Department within 30 business days of any change of address or change in the principal place of business.

(f) Notify the Department of the property owner’s intent to sell or otherwise transfer the ownership of the property at least 30 days prior to the transfer of ownership. The permit holder shall provide the new owner with a copy of the Special Permit and of all invoices and certification documents prior to closing.

(g) The permit holder shall remain responsible for all aspects of the permit until the Department has issued a new permit to the new owner.

(h) The application must be accompanied by a fee of $200 for each non-contiguous citrus grove.

(i) This special permit expires 5 years after issuance.

(6) Additional Permit Requirements For Maintenance and Mitigation.

(a) If the property owner or operator detects any Casuarina seedlings within 500 feet of the planted windbreak, the property owner or operator shall notify the Department immediately. Once notified, the Department shall follow the procedures in subsection 5B-57.012(7), F.A.C.

(b) The property owner or operator shall inspect the windbreak at least one time per month for any signs of female flowers or cones and shall notify the Department immediately if any are detected. Records of each inspection shall be maintained by the property owner or operator and be available for inspection by the Department.

(7) Destruction of Casuarina cunninghamiana Windbreaks. Casuarina cunninghamiana windbreaks shall be destroyed under any of the following circumstances and conditions:

(a) By the property owner within 6 months after:

1. The property owner takes permanent action to no longer use the site for commercial citrus production; or

2. The site has not been used for commercial citrus production for five years; or

3. The Department determines the Casuarina cunninghamiana on the site has become invasive based on its own determination or on the recommendation of the Noxious Weed and Invasive Plant Review Committee and the Department of Environmental Protection and in consultation with a representative of the citrus industry who has a Casuarina cunninghamiana windbreak.

4. If the owner or operator neglects or refuses to comply, the Department shall destroy the plants, assess the expense against the owner and if payment is not received, record a lien against the property.

(b) Within 60 days, if the Department determines that female flowers or cones have been produced on any Casuarina cunninghamiana plant within a windbreak.

(c) By immediate final order if the Department determines that:

1. The permit holder is no longer maintaining the Casuarina cunninghamiana subject to the provisions of the special permit and has not removed and destroyed the trees; or

2. The continued use of Casuarina cunninghamiana as windbreaks presents an imminent danger to public health, safety, or welfare; or

3. The permit holder has violated the conditions of the special permit;

(d) In cases governed by subparagraphs 5B-57.012(7)(c)1.-3., F.A.C., above, the Department shall issue an immediate final order, which shall be immediately appealable or enjoinable as provided by Chapter 120, F.S., directing the permit holder to immediately remove and destroy the Casuarina cunninghamiana authorized to be planted under the special permit.

(e) The permit holder may make a written request to the Department for a 60 day extension of time to remove and destroy the Casuarina cunninghamiana as ordered in the immediate final order. The request must demonstrate specific facts showing why the Casuarina cunninghamiana could not reasonably be removed and destroyed in the applicable timeframe.

(f) Upon a showing that the permit holder has demonstrated the need for additional time to destroy the trees, the Department shall specify a later date by which the trees subject to the special permit must be destroyed.

(g) If upon issuance by the Department of an immediate final order to the permit holder, the permit holder fails to remove and destroy the Casuarina cunninghamiana subject to the special permit within 60 days after issuance of the order, such other extended time as granted by the Department, or such shorter period as is designated in the order as public health, safety, or welfare requires, the Department shall remove and destroy the Casuarina cunninghamiana that are the subject of the special permit.

(h) The reasonable costs and expenses incurred by the Department for removing and destroying the plants shall be paid out of the Citrus Inspection Trust Fund and shall be reimbursed by the party to which the immediate final order is issued.

(i) If the party to which the immediate final order has been issued fails to reimburse the state within 60 days, the Department shall record a lien on the property. The lien shall be enforced by the Department.

(8) Evaluation of Seedlings.

(a) Casuarina Sseedlings discovered within 500 feet of a Casuarina cunninghamiana windbreak shall be identified by the Department to species level, removed and evaluated by the Department to determine whether hybridization has occurred.

(b) If the Department determines that hybridization has occurred, the Department shall initiate action to determine the invasiveness of the hybrids.

(c) The Department shall report its findings to a reviewing group consisting of the Noxious Weed and Invasive Plant Review Committee, the Department of Environmental Protection and the citrus industry.

(d) If after consulting with the reviewing group the Department determines the hybrids have a high potential to become invasive, this program shall be permanently suspended, all propagation and windbreak special permits shall be rescinded, and Casuarina cunninghamiana planted pursuant to special permits shall be destroyed.

(9) Department Monitoring and Response. The Department shall:

(a) Conduct inspections of the windbreak within 30 days of the initial planting and any subsequent plantings, and

(b) Conduct inspections of the windbreak and all areas 500 feet from the windbreak at least annually thereafter.

(c) Conduct any other inspections needed to determine whether the Casuarina cunninghamiana has spread beyond the permitted location.

(10) Reevaluation, Extension and Expansion of Pilot Program.

(a) The program shall be evaluated annually by the Department to determine any adverse environmental impacts of the pilot program.

(b) In 2013, the Department shall conduct a comprehensive review and evaluation of the pilot program. The Department shall review and evaluate any adverse environmental impacts of the pilot program and determine the potential for future adverse environmental impacts from the use of Casuarina cunninghamiana as windbreaks around commercial citrus groves, and put its findings in a report.

(c) After the Department has completed its review, the pilot program and report shall be evaluated by a reviewing group consisting of the Noxious Weed and Invasive Plant Review Committee, the Department of Environmental Protection and a representative of the citrus industry who has a Casuarina cunninghamiana windbreak.

(d) If the reviewing group determines that there is a low potential for adverse environmental impacts from the program, the Department may extend and expand the use of the windbreaks to other areas of the state. Any such extension or expansion shall be by Department rule.

(e) If the reviewing group determines that additional time is needed to determine the impacts of Casuarina cunninghamiana windbreaks, the Department shall allow the program to remain in place but shall not expand the areas to be planted until such time as the evaluation is complete and the Department, in consultation with the reviewing group, determines that there is a low potential for adverse environmental impact.

Rulemaking Authority 570.07(23), 581.031(1), (3), (8), 581.091 FS. Law Implemented 570.07(2), (13), 570.32(5), (6), 581.031(1), (17), 581.091 FS. History–New 7-16-09, Amended________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Mr. Richard Gaskalla, Director, Division of Plant Industry
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Adam H. Putnam, Commissioner of Agriculture
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 12, 2013
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: February 18, 2013