Lacey Act Amendments FAQ 2023

May 17, 2023 | USARK Newsletter

This is a compilation of questions and incorrect statements from social media and emails.
Our original alert will always be maintained/updated at https://usark.org/23lacey/
Updates will be made to this FAQ as necessary.

Q: How do we know about these issues?

Our legislative alert system found these bills/reports and we posted our alert ASAP.

Q. What are the bill numbers?

The Senate bill is S1614. The House bill is H4922.

Q. Who are the bill sponsors?

S1614 is sponsored by Senator Rubio (FL) with no co-sponsors. H4922 is sponsored by Rep. Luna (FL). HR4922 has five original co-sponsors: Rep. Bilirakis (FL), Rep. Donalds (FL), Rep. Nehls (TX), Rep. Carl (AL), and Rep. Dunn (FL).

Q. Are the amendments also in another proposal?

Yes. There is a House Select Committee report that includes a version of these amendments. You can read more at https://usark.org/23laceyfaq/.

Q: What animals are affected?

This could impact almost any species of animal. Species of fish, reptiles, amphibians, birds, 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.

Q: What does the bill 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 a 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 bill passes. 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 “more 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: Where are we in the process?

The bill has only been introduced. No further movement has occurred.

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: 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 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: Do we know when Congress will vote?

There is no set timeline and the bill has not been assigned a hearing.

Q. Should I contact the local offices for my legislators?

Yes! Call the district House and Senate offices (those not in D.C.) and speak directly to staff. Politely explain who you are, what you do, and why you are opposed. District 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. District office phone numbers will be listed with the contact information on legislator websites.

Q. Should I meet with my legislators?

Yes! You should definitely request meetings with legislators. Be prepared 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 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?

We will have actions posted when appropriate.

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?

This bill was introduced by Senator Marco Rubio.

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 (the date it is signed into law).

Q: Where can I read the Lacey Act amendments?

You can read the bill at https://usark.org/wp-content/uploads/2023/05/23-Lacey-Rubio.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: 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: 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 the importation of 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, states may ban 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?

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.”

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