Santa Monica Observer - Community, Diversity, Sustainability and other Overused Words

By USARK 

What you Need to Know about the Lacey Act Amendments and How it Will Affect Your Pet

Q&A compled by the United States Association of Reptile Keepers makes it clear that this anonymous amendment to a good law will harm many pet owners and their animals

 

March 21, 2022

Facebook group titled: Not to be Dramatic but I Would Die for this Reptile

Bearded dragons, the most common pet reptile, could be banned in your state if the anonymous amendments to the COMPETES Act are passed by the US Senate

Please note that the Lacey At amendments found in the America COMPETES Act have not passed! Many of our answers address "what if" they pass.

Q: How do we know about this issue?

USARK found and exposed the Lacey Act amendments buried in the nearly 3,000-page HR4521 on January 28. As awareness spread, many other groups began releasing alerts, too. USARK thanks every person and group who has worked to oppose this action!

Q: What bill(s) are we against?

USARK does not oppose HR4521 (America COMPETES Act), S1260 (U.S. Innovation and Competition Act), or the reconciled bill (merger of HR4521 and S1260) that is expected to eventually emerge from a conference committee. We are opposed specifically to the Lacey Act amendments found within HR4521, in Section 71102 (which was added behind closed doors absent from any public process). Our goal is to keep the Lacey Act amendments from being added to the merged bill, or any other bill.

USARK does oppose Senate Bill 626 (S626) sponsored by Senator Rubio which was introduced in 2021 and carried over into 2022 (second year of the two-year session).

Q: What animals are affected?

This could impact almost any species of animal. Species of fish, reptile, amphibian, bird, and invertebrates could be listed/affected. The only species that would be safe from these Lacey Act amendments are common, domesticated animals such as dogs, cats, and traditional livestock.

Q: May I share your Alert?

Yes! Please share our alert. The links are below.

Website: https://USARK.org/2022Lacey/

Facebook: https://www.facebook.com/UnitedStatesAssociationOfReptileKeepers/photos/a.4688220141259902/4775694432512472/

Q: Do you have flyers or Infographics?

Yes! Please print and share.

Flyer 1 (infographic): https://USARK.org/wp-content/uploads/2022/03/2022-Lacey-SD.pdf

Flyer 2 (more informative): https://USARK.org/wp-content/uploads/2022/03/2022-Lacey-flyer.pdf

Q: What does it do?

Briefly:

A ban on interstate transportation and importation of every species currently listed as "injurious" would be enacted, even for species that could not survive in most of the U.S. (Note: importation is currently banned.)

A new "emergency designation" would be granted that would allow species to be classified as "injurious" without due process, justification, or prior notice.

Only a limited number of species named to a "white list" (not yet written) would be approved to enter the U.S.

Q: What is the white list?

A white list is the opposite of a black list, or ban list. Typically, bills include black/ban lists of species that state what species are not allowed. A white list includes the species that are allowed. If a species is not on the white list, then it is not allowed. In this case, the white list will determine what species can be imported into the U.S.

Q: What species are on the white list?

There is no compiled white list at this time. That will happen only if the amendments pass. No one knows what species will make the white list. All we know is that a species had to be imported or transported interstate in "greater than minimal quantities" in the one year prior to the enactment date to even be potentially included on the white list.

Q: How will FWS create the white list? (FWS = U.S. Fish and Wildlife Service)

Only species that were imported or transported interstate in "minimal quantities" during the one-year period prior to enactment will be potential candidates for the white list. FWS must define minimal quantities within one year after enactment.

Q: What data will FWS use to create the white list?

We do not know. This is a huge problem. For example, FWS does not have accurate or sufficient data on many of the species imported into the U.S., nor those transported interstate. CITES and/or ESA data is sometimes all that is collected. If species are not listed under CITES or ESA they may just be imported as a generic animal (i.e. tropical fish). CITES = Convention on International Trade in Endangered Species and ESA = Endangered Species Act

Q: What is the new emergency designation?

The new emergency designation allows FWS to list species as injurious without due process. The listing would take effect immediately upon publication in the Federal Register. There may be a delayed effective date of up to 60 days, but only if FWS allows such. After an emergency listing, FWS may take up to three years to justify the listing. They may also decide not to permanently add the species to the injurious list.

Q. Did the bill change names?

HR4521 is still the America COMPETES Act but it will be merged with S1260. The reconciled bill has had several bill changes already. Currently, it is titled the Bipartisan Innovation Act.

Q: Where are we in the process? (updated 3/15/22)

HR4521 that contained the Lacey Act amendments of concern passed the House with a split vote on February 4. HR4521 will not be voted on by the Senate. Instead, HR4521 will be reconciled (or merged) with S1260. There have been delays due to a Senate recess, priority on budget, and other reasons. A conference committee should be formed to merge the two bills.

It is anticipated that a formal conference committee will be formed by early/mid-April. Once created, this committee will review HR4521 and S1260. The bills will be reconciled with one final version emerging from the committee. The primary goal of S1260/HR4521 to improve America's economic strength in the technology fields is a priority so this will be a high priority for Congress. As stated, our goal is not to stop the reconciled bill but to stop the Lacey Act amendments from being included.

Q: Do I need to get rid of my animals if this passes?

No. The federal law would not ban possession. Only if individual states took action might you need to rehome/surrender your animals.

Q: What is S1260?

As USARK reported on January 28, S1260 is the Senate version of HR4521 and is titled the U.S. Innovation and Competition Act (USICA). S1260 does not contain these Lacey Act amendments.

Q: How is USARK so sure they have the right interpretation?

We are very plainly stating what the legislation would do, how the Lacey Act will be amended, and what new authority FWS would have. We understand the legislative language can be confusing. USARK's analysis of the Lacey Act amendments in Section 71102 of the America COMPETES Act (HR4521) has been vetted by numerous attorneys, legislative experts, and other authorities.

Q: Does the white list apply to every state?

This is a federal law and the white list applies to importation into the U.S. Individual states can write their own laws that are more restrictive, but not less restrictive than the federal law. This means states cannot opt to allow for interstate movement of species listed as injurious. It is possible that states may write laws that reflect the federal law regarding the white list and could ban species not on the white list (or even species that are on the white list) as they see fit.

Q: Are injurious species banned from possession/ownership?

No. If a species is listed as injurious it is not banned from possession. However, individual states may choose to ban the possession of injurious species (or other species), as we have seen previously.

Q: Can I breed and sell injurious species?

Yes. As long as a species is not banned by state law, you can breed and sell that species within the same state (intrastate), even if it is listed as injurious by FWS. If these amendments pass, it would become illegal to transport them across state lines. However, state or local laws may place further restrictions on species.

Q: Does a species need to be invasive in most of the U.S. to be listed as injurious?

No. A species may be listed as injurious even if it is not invasive in the U.S. If there is even an interpreted possibility it might become invasive, it could be listed, as we have already seen. Also, while that invasive threat can be limited to an isolated area, like southern Florida, the species could still be federally listed as injurious and banned from movement between any of the states. Even if the potentially affected state has already banned or regulated the species, FWS can still list it as injurious.

Q: What does injurious mean?

Per FWS, a species may be listed if it could be, "injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States." In some cases, injurious is the same as "invasive." If a species could potentially be invasive and cause any type of harm anywhere in the U.S. then it could be listed as injurious. Listings can also occur because a species might carry/transport a disease. We saw this when FWS used an emergency rule to list 201 species of salamanders as injurious due to the concern that an animal might have Bsal (Batrachochytrium salamandrivorans) chytrid fungus. Other reasons could generate listings such as possible threats to human health or agriculture.

Q: Does this only apply to commerce/sales across state lines?

No. If passed, all interstate movement, for any reason, would be banned. It would even be illegal to take an animal across state lines for veterinary care, or job/family relocation.

Q: Are military members exempt?

No. This would hit military service men and women especially hard as they are relocated often. Not even active-duty service members would be allowed to take pets listed as injurious with them across state lines.

Q. Are there any articles about this?

Yes. There are several articles, podcasts, videos, and interviews on this topic now. Below are two articles:

article by USARK: https://usark.org/2022lacey1/

article by Art Perola and posted by NAIA: https://usark.org/federal-legislation-threatens-pets-zoos-and-aquariums-and-biomedical-research/

Veterinarians voice concerns about proposed Lacey Act amendment by Jennifer Fiala via URL: https://usark.org/lacey1a/

Q: Do we know when Congress will vote?

There is not a set timeline and a formal reconciliation of HR4521 and S1260 has not yet started. Any bill would need to pass before the end of session in December. 2022 is the second year of the two-year session (117th session of Congress).

Q. Should I contact the local offices?

Yes. Call the local House and Senate offices and speak directly to staff. Politely explain who you are, what you do, and why you are opposed. Local offices have a direct line to the D.C. offices. If you have a business or facility, you can invite staff to visit. Representatives and Senators will have offices in both D.C. and in their states of representation.

Q. Should I meet with my legislators?

Yes! You should definitely request meetings with legislators. Be prepared (read our alert and Talking Points at https://usark.org/2022lacey/) and be professional. Never feel intimidated. Your taxes pay their salaries and they are there to listen. Also, if you meet with staff, that is fine. They will pass along your message to the legislators.

Q: Can I just get a license to take my animal with me to a new state?

No. There are some very limited exemptions that allow for such a license but almost no one would be eligible.

Q: I am against illegal wildlife trafficking and this sounds like a good thing!

While another section of the Lacey Act is used to address wildlife trafficking, that is not what these amendments are about. This has nothing to do with wildlife trafficking.

Q. Will this help shut down illegal wildlife trafficking?

No. Illegal wildlife trafficking is already illegal, obviously. Misapplied laws like this only encourage and increase criminal activities because it drives the prices up for black market animals. This action is actually counterproductive to halting illegal trafficking.

Q: My Senator responded and said that the Lacey Act amendments were removed from the Senate COMPETES Act, so the coast is clear, right?

There is no Senate COMPETES Act. The America COMPETES is a House bill. The Senate version of the America COMPETES Act is S1260 and that bill never contained the Lacey Act amendments (so it would be impossible to remove them since they were never there to begin with). Also know that most responses are pre-written and not written exclusively in response to your emails/letters.

Q: My Senator responded and said that the Lacey Act amendments don't do what you said they do.

Federal legislators and staff are working on many issues. There may be miscommunication or a mistake as to the issue being discussed. The legislator or staff may also not have a good understanding of these Lacey Act amendments. Additionally, remember that legislators do not enforce laws! Once a bill becomes a law, the enforcement agency (in this case it is FWS) must write its regulation that reflects the legislation. The regulation will be much more complex than the legislative statute.

Q: How does the transportation ban work?

If passed, it will become illegal to transport any species listed as injurious under the Lacey Act across state lines. It is already illegal to import an injurious species into the U.S.

Q: What happens with species not included on the white list?

Species not on the white list cannot be imported into the U.S. These species would not be banned from interstate transport unless also listed as injurious. Note that this is how the statute would read, but this could change during either the legislative or FWS rulemaking process.

Q: How can I help stop this?

Contact your legislator with your opposition! We have instructions and more in our alert at https://USARK.org/2022Lacey/.

Q: I read that amendment 599 removed this section about the Lacey Act.

That is wrong. Amendment 599 to HR4521 was proposed by Arkansas Representative Crawford but it was not added to the bill. Amendment 599 would have removed Section 71102 from HR4521 if it had received enough votes. People who were unfamiliar with the legislative process were misreading what was posted by the House Committee on Rules.

Q: I want more information! Can you send me a PM?

All available details are included in our alert and related posts.

Q: Does it never end?

It really does not end. No one court case or legislative discussion will stop issues like these from coming up. Proposed legislation/regulation can happen at any time at any level of government (federal, state, county, or city). This is why USARK tirelessly watches for such issues and creates alerts that make it easy for you to learn and take action. We must always be vigilant.

Q: What politician was responsible?

We do not know which politician is responsible for Section 71102 of the America COMPETES Act (HR4521). We only know that HR4521 was originally introduced on 7/19/21 as the Bioeconomy Research and Development Act of 2021 (did not initially contain the Lacey Act amendments), sat without a hearing, and then reemerged as the America COMPETES Act on 1/28/22 (the same day that USARK found and reported the problem) with Section 71102.

Q: Does this include invertebrates?

Yes. We know that aquatic invertebrates are included. While the legislation does not mention terrestrial invertebrates, FWS can regulate terrestrial invertebrates (i.e., Endangered Species Act), and terrestrial invertebrates are included in the FWS definition of wildlife:

"Wildlife is any living or dead wild animal, its parts, and products made from it. Wildlife not only includes mammals, birds, reptiles, amphibians, and fish, but also invertebrates such as insects, crustaceans, arthropods, molluscs and coelenterates." – FWS

Also, within the Lacey Act the term "fish or wildlife" means: any wild animal, whether alive or dead, including without limitation any wild mammal, bird, reptile, amphibian, fish, mollusk, crustacean, arthropod, coelenterate, or other invertebrate, whether or not bred, hatched, or born in captivity, and includes any part, product, egg, or offspring thereof.

Q: This only includes wild animals so the animals I breed are okay to sell and move across the U.S., right?

Wrong. Animals will be listed by species. It does not matter if the animals are wild-caught or bred under human care. It also does not matter if the animals have wild-type coloration or a "morph" pattern/coloration. Some people are confused because the language reads, "...wild mammals, wild birds, fish (including mollusks and crustacea), amphibians, or reptiles, or the offspring or eggs of any such species..." What matters is the species of the animal.

Q: What is the effective date?

The effective date is one year after the date of enactment (date it is signed into law).

Q: USARK is the only group I see talking about this. If this was so bad, other groups would have alerts.

Many other groups do have alerts and are opposing these amendments. Just because you have not seen it does not mean it is not happening. Groups/businesses/keepers in aquaculture, aviculture, and mammals are all opposing this, along with herpetoculturists and USARK.

Q: Where can I read the Lacey Act amendments?

You can read Section 71102 of HR4521 at https://USARK.org/wp-content/uploads/2022/01/2022-HR4521-excerpt.pdf. This language is the same as found in S626. You can read S626 at https://USARK.org/wp-content/uploads/2021/03/2021-S626-Lacey-Act.pdf.

Q: I heard HR4521 changed before it was sent to the Senate. Are these Lacey Act amendments still there?

Yes. The final HR4521 text that was sent to the Senate after additional House floor amendments were added is 3,610 pages. The Lacey Act amendments found in Section 71102 now begin on page 2,060. You can read the full bill at https://USARK.org/wp-content/uploads/2022/02/2022-HR4521-COMPETES-final.pdf.

Q: I saw an animal group supporting this. Why do they support it?

Animal rights groups (groups trying to ban and remove all animals from our lives) are supporting this effort. They typically provide misinformation about what these amendments will do in order to gain further support. We have even seen them lie and say this will not affect common pet species. This is simply not true! No one knows what species will be listed and we have already seen common pet species listed as injurious. These animal rights groups have no problem with misleading the public and spending lots of money to create and distribute their agenda pushing propaganda (rather than actually helping animals or conservation as they claim to do).

Q: Why does USARK not know about S1260?

We do! We posted this bill by its name, the U.S. Innovation and Competition Act (USICA), on January 28 with our original alert. We have been talking about USICA/S1260 since day one.

Q: Why does USARK not know about the conference committee?

We do know about it! We have been discussing HR4521 and S1260 being reconciled (which is what happens with two similar bills in a conference committee) for many weeks and before anyone else reported this (that we are aware of).

Q: Can individual states overturn/oppose the Lacey Act amendments if they pass?

No. States cannot allow federally listed injurious species to be transported across state lines.

Q: Why aren't you telling people that this is only being supported along party lines?

While the legislative issues we post about may sometimes appear to be tied up in partisan politics, the activists pushing for these initiatives are not limited to working with only one party or another. HR4521 did pass along party lines (Democratic support) and we reported the 222 to 210 vote the day it passed the House. However, S626 is sponsored by a Republican.

Q: I read that the Lacey Act amendments were only proposed as an amendment to HR4521 but did not get added to the bill.

This is wrong. There was another amendment to the Lacey Act introduced as HR4521 Amendment 252 by Illinois Representative Quigley. This was an amendment version of the Big Cat Public Safety Act regarding large cats (lions, tigers, etc.). This is a very different Lacey Act amendment. Persons not well-versed with the Congressional amendment process misread what was posted by the House Committee on Rules. Amendment 252 was withdrawn.

Q: Why was this added as a last-minute amendment to HR4521?

These Lacey Act amendments were not a formal amendment to HR4521. They comprise a section of HR4521 (Section 71102). Since this section was included within the text of the America COMPETES Act, it is not actually a formal amendment to the America COMPETES Act.

Q: I spoke to a legislator's office and they said that the species I work with will be okay because it is common in trade.

This is wrong. First, legislators and their staff do not enforce laws. Law enforcement officers for FWS will be enforcing this law and they must enforce what the law says, not what a legislative staff person told you. Second, just because a species is common in trade does not mean it will not be listed as injurious. Some species already listed were common in trade but they were still listed as injurious. Being common in trade also does not mean it will be automatically added onto the white list.

Q: This will not impact animal species already being imported, traded, or transported. There is an exemption clause.

This is wrong. Only species imported in "minimal quantities" would qualify for the new importation white list. Qualifying does not mean they will be included on the white list. Not only must they have been imported and/or transported interstate within the one year before enactment (not two or more years ago), but they must also have been imported in "greater than minimal quantities." FWS gets to define minimal quantity later. Additionally, even if a species has been heavily represented in trade, it can still be listed as injurious and we have witnessed this. There is no exemption that makes any species automatically safe. As mentioned previously, there is also insufficient data for importation on many species and possibly no good data for interstate transportation.

Q: Can species be included on the white list even if they are not imported in greater than minimal quantities?

Yes, but it is an exhaustive process that must be paid for by the appropriate industry/businesses. Only the Secretary of the Department of Interior (FWS falls under the Department of the Interior) can add a species not meeting the "imported in greater than quantities" qualifier to the white list, if it "does not pose a significant risk of invasiveness to the United States." This means it cannot be invasive anywhere in the United States. Research findings (paid for by the relevant industry) would need to prove this. If those against us (they are very well funded) did their own science that disagreed, then FWS could choose either finding for the basis of their ruling.

Q: I read that this applies only to high-risk invasive species.

This is incorrect. We have already witnessed listings for species that may be able to become invasive and also listings for reasons other than invasive potential.

Q. USARK is the only organization that I know of that interprets the Lacey Act Amendments to mean that if a species is not on either white or black (deemed injurious) list, then this species can be transported across state lines. Everyone else says "not on white list" = "automatically on black list."

We have properly conveyed what is stated in the bill. This portion of the Lacey Act amendments is titled "PRESUMPTIVE PROHIBITION ON IMPORTATION." Additionally, the text clearly states, "IMPORTATION into the United States of any species of wild mammals, wild birds, fish (including mollusks and crustacea), amphibians, or reptiles, or the offspring or eggs of any such species,..." Again, it clearly states the white list only applies to importation.

However, we could see states banning species that do not appear on the FWS white list. Additionally, FWS could list every species that does not appear on the white list as injurious utilizing its new emergency designation. For instance, FWS could make a ruling that it is a risk to transport species not on the white list interstate until they can determine if a species cannot be invasive. Species not appearing on the white list would be in a constant limbo of being listed as injurious at any time.

The short answer is that the bill would not ban interstate transport of species not on the white list, but that interstate ban is still a possibility for species not on the white list (even if they are not formally listed as injurious). There is no way to be certain that species not on the white list could still be transported interstate after this is final (if it passes) and goes through FWS rulemaking.

Q: I got a response from my legislator saying he/she supports this! What can I do now?

Southwestern Herpetologists Society

Children admire box turtles at the Chumash Indian Museum; all exotic pets, including fish, would be in peril if the Lacey Act amendments pass

Please read the reply carefully. Many legislators have automatic reply emails. You may get a canned response supporting animal welfare, for example, and not these Lacey Act amendments specifically. Even if a legislator states he/she may support these Lacey Act amendments, that does not mean you cannot continue to educate. Remember that legislators and their staff are working on many issues and may not have a good grasp on the consequences. It is okay to be a squeaky wheel and send multiple messages. It is also very unlikely that a legislator had time to read your email and reply exclusively to you. Canned emails are written and then just sent as replies to people on a certain topic that may be as broad as "animal."

Q: I heard this only applies to minks and mink farming.

There is an amendment to HR4521 that bans "import, export, transport, sale, receipt, acquirement, or purchase in interstate or foreign commerce of mink [dead or alive]." That is separate from the Lacey Act amendments we are directly concerned with, but the mink ban also amends the Lacey Act. Our alert regards section 71102 of HR4521 as it was introduced when retitled the America COMPETES Act. The mink issue was an amendment to HR4521 added on the House floor.

 

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