DEPARTMENT OF AGRICULTURE
Plant Industries Section
PROPOSED
PUBLIC NOTICE
806 Regulations for Invasive Plants
Summary
Pursuant to the authority granted by Title 3, Section 2904(a) of the Delaware Code, the Department of Agriculture proposes to amend its Regulations to adopt Invasive Plant Regulations at 3 DE Admin. Code 806. The purpose of the new regulation is to provide a process for the exemption of sterile and reduced fertility plant cultivars. The Department published the proposed regulation in the Register of Regulation on May 1, 2022 and received public comment on the proposed regulations during the public comment period that ended May 31, 2022, related to creeping Jenny, Lysimachia nummularia and the invasiveness of this plant. Because of public comments and the Department's understanding of the incomplete process by which creeping Jenny, Lysimachia nummularia was placed on the Invasive Plant List, the Department has moved creeping Jenny, Lysimachia nummularia from the Invasive Plant List to the Plant Watch List. The time limits of notification between the Department and Commission was changed in order to be concise and consistent. The date of July 1, 2022 was to be the date of adoption of the proposed regulation and is now on or after August 1, 2022. Other regulations issued by the Department of Agriculture are not affected by this proposal. The Department of Agriculture is issuing these re-proposed regulations in accordance with Title 3 of the Delaware Code. This notice is issued pursuant to the requirements of Chapter 101 of Title 29 of the Delaware Code.
Comments
A copy of the proposed regulations is being published in the July 1, 2022, edition of the Delaware Register of Regulations. A copy is also on file in the office of the Department of Agriculture, 2320 South DuPont Highway, Dover, Delaware 19901 and is available for inspection during regular office hours. Copies are also published online at the Delaware Register of Regulations website: http://regulations.delaware.gov/services/current_issue.shtml.
Interested parties may offer written comments on the proposed regulations or submit written suggestions, data, briefs, or other materials to the Department of Agriculture at the above address or Jessica.Inhof@delaware.gov as to whether these proposed regulations should be adopted, rejected or modified. Pursuant to 29 Del.C. § 10118(a), public comments must be received on or before August 1, 2022. Written materials submitted will be available for inspection at the above address.
Adoption of Proposed Regulation
On or after August 1, 2022, following review of the public comment, the Department of Agriculture will determine whether to amend its regulations by adopting the proposed rules or make additional changes because of the public comments received.
Effective Date of Amendments to Regulations
If adopted by the Department of Agriculture, the amendments shall take effect ten days after being published as final in the Delaware Register of Regulations.
*Please Note: The Regulatory Flexibility Analysis and Impact Statement for this regulation, as required by 29 Del. C. Ch. 104, is available at:
http://regulations.delaware.gov/register/july2022/proposed/26 DE Reg 7RFA 07-01-22.pdf
806 Regulations for Invasive Plants
1.1 The purpose of these regulations is to clarify how the Department will eradicate, repress, and prevent the spread of plant pests as authorized in Title 3, Chapter 11 of the Delaware Code.
1.2 The Department will work with the Delaware Native Species Commission for expertise and advice on maintaining the Invasive Plant List and Plant Watch list and review of sterility exemption.
1.3 The Department will be responsible for enforcement of the Invasive Plant Law during routine inspections of businesses or inspections resulting from a complaint. During inspections, the Department will survey for plants on the Invasive Plant List and ensure businesses' compliance with signage requirements for plants on the Plant Watch List.
The following words and terms, when used in this regulation, have the following meaning:
"Commission" means the Delaware Native Species Commission.
"Cultivar" means a plant variety that has been produced in cultivation by selective breeding.
"Department" means the Delaware Department of Agriculture.
"Invasive plant" means any living part, cultivar, variety, species or subspecies not native to Delaware identified by the Secretary having the potential to do all of the following:
a. Result in widespread dispersal and establishment.
b. Out-compete other species in the same area.
c. Exhibit rapid growth or high seed or propagule productions.
d. Become established in natural areas in the State.
"Invasive Plant List" means the list of invasive plants maintained by the Secretary.
"Plant Watch List" means the list of potentially invasive plants maintained by the Secretary.
"Secretary" means the Secretary of the Delaware Department of Agriculture.
"Sterility" means unable to produce reproductive structures.
3.1 The Invasive Plant List
3.1.1 Amur honeysuckle, Lonicera maackii
3.1.2 Autumn olive, Elaeagnus umbellata
3.1.3 Callery pear, Pyrus calleryana
3.1.4 Chinese wisteria, Wisteria sinensis
3.1.5 Creeping water primrose, Ludwigia peploides subsp. glabrescens
3.1.6 English ivy, Hedera helix
3.1.7 European privet, Ligustrum vulgare
3.1.8 European reed, Phragmites australis subsp. australis
3.1.9 European sweetflag, Acorus calamus
3.1.10 Garlic mustard, Alliaria petiolata
3.1.11 Hydrilla, Hydrilla verticillata
3.1.12 Japanese barberry, Berberis thunbergii
3.1.13 Japanese honeysuckle, Lonicera japonica
3.1.14 Japanese knotweed, Fallopia japonica
3.1.15 Japanese pachysandra, Pachysandra terminalis
3.1.16 Japanese stiltgrass, Microstegium vimineum
3.1.17 Lesser celandine, Ficaria verna
3.1.18 Lesser periwinkle, Vinca minor
3.1.19 Marsh dewflower, Murdannia keisak
3.1.20 Mile-a-minute weed, Persicaria perfoliata
3.1.21 Morrow's honeysuckle, Lonicera morrowii
3.1.22 Multiflora rose, Rosa multiflora
3.1.23 Norway maple, Acer platanoides
3.1.24 Orange daylily, Hemerocallis fulva
3.1.25 Oriental bittersweet, Celastrus orbiculatus
3.1.26 Parrot-feather, Myriophyllum aquaticum
3.1.27 Porcelain berry, Ampelopsis glandulosa
3.1.28 Purple loosestrife, Lythrum salicaria
3.1.29 Spotted knapweed, Centaurea stoebe subsp. micranthos
3.1.30 Tatarian honeysuckle, Lonicera tatarica
3.1.31 Tree of heaven, Ailanthus altissima
3.1.32 Water hyacinth, Eichhornia crassipes
3.1.33 Wineberry, Rubus phoenicolasius
3.1.34 Winged euonymus, Euonymus alatus
3.1.35 Yam-leaved clematis, Clematis terniflora
3.1.36 Yellow flag iris, Iris pseudoacorus
3.2 The Plant Watch List. Plants listed on the Plant Watch List must be identified with a tag, label, or sign on each plant or in the general vicinity of the plants for sale.
3.2.1 Creeping Jenny, Lysimachia nummularia
4.1 The Secretary shall maintain the Invasive Plant List and Plant Watch List with the advice of the Commission, so long as the Commission exists.
4.1.1 Should the Department receive requests for review of plants to be added or removed from the Invasive Plant List or Plant Watch List, the Department shall submit requests to the Commission for advice, within 30 days of the request for review.
4.1.2 The Department and the Commission shall review any plants recommended to be added to or removed from the Invasive Plant List and Plant Watch List. The Department shall seek the advice of the Commission, or any subcommittee as designated by the Commission, to add or remove plants from the Invasive Plant List or Plant Watch List.
4.1.3 Should the Commission receive requests for review of plants to add or remove from the Invasive Plant List or Plant Watch List, the Commission shall provide its recommendations via email to the Secretary or during a Commission meeting within 60 days of the initial request for review. Recommendations must include, at a minimum, a detailed methodology used by the Commission to make a determination about each plant under consideration to be added to or removed from the Invasive Plant List and Plant Watch List.
4.1.4 The Secretary shall respond to the Commission with a decision or a request for additional information within 60 days of the date of the recommendation.
4.1.5 The Secretary shall initiate any required regulatory changes to the Invasive Plant List and Plant Watch List within 30 days of the date that a determination has been made.
5.1 The Department recognizes that the level of sterility of a plant impacts its potential to:
5.1.1 Result in widespread dispersal and establishment.
5.1.2 Out-compete other species in the same area.
5.1.3 Exhibit rapid growth or high seed propagule productions.
5.1.4 Become established in natural areas in the State.
5.2 The Department reserves the right to consider cultivars of plants based on level of sterility at their point of sale or delivery into the State of Delaware. The Department may grant an exemption for cultivars of plants listed on the Invasive Plant List.
5.3 Persons requesting that a cultivar be exempted from the Invasive Plant List must petition the Department by submitting a Petition to Exempt a Specific Cultivar form. Persons may request that plant cultivars be exempted from the Invasive Plant List based on sterility level and seed viability and must provide an explanation and references to justify the request.
5.4 The Department, with advice of the Commission, will consider submitted cultivars for exemption when there is independent, peer reviewed, scientific research evaluating the invasiveness of the cultivar. Petitions require burden of proof to be held by the breeder or plant representative and leave no responsibility to the State of Delaware.
5.4.1 Any requests brought to the Department for a cultivar to be exempted from the Invasive Plant List shall be submitted to the Commission via email within 30 days of the request for advice.
5.4.2 The Commission shall provide recommendations via email to the Secretary within 60 days of receiving the Petition to Exempt a Specific Cultivar form. The recommendations must include, at a minimum, a detailed methodology used by the Commission to make a determination about each cultivar under consideration to be exempted from the Invasive Plant List.
5.4.3 The Secretary shall respond to the Commission with a decision or a request for additional information via email within 60 days of the date of the recommendations.
5.4.4 The Secretary shall initiate any required regulatory changes to the Invasive Plant List within 30 days of the date that a determination has been made, with the advice of the Commission, to exempt a cultivar from the Invasive Plant List.
5.5 Exemptions are conditional and subject to revocation by the Department.
