Just the Facts: Lacey Act and America COMPETES Act

Social media is carrying erroneous Lacey Act and COMPETES Act information or assumptions.  Here are Just the Facts for you to share or post…

HR 4521 (a 2,921-page bill known as the America COMPETES Act) has passed the US House of Representatives.  Within the bill is Section 71102 which significantly amends the Lacey Act to increase federal animal importation and interstate regulation.
The Lacey Act, passed in 1900, applies to all captive-bred as well as wild harvested “species of wild mammals, wild birds, fish (including mollusks and crustaceans), amphibians, or reptiles, or the offspring or eggs of any such species” found to be “injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States.” Captive breeding an animal does not classify it as “domesticated” under the Lacey Act.
Now a joint committee of the House and Senate will convene to figure out how to reconcile HR 4521 with a Senate companion bill, S 1260 (a 2,375-page bill known as USICA) to produce compromise legislation for the House and Senate to consider.
America COMPETES Act, Section 71102, radically changes the way that the U.S. Fish and Wildlife Service (FWS) has been regulating importation and interstate movement of wildlife species – a regulatory activity spanning 120 years by:  

  • Creating a “White List” of species that could remain in trade if and only if the species has been determined by the FWS to be in more than “minimal quantities” in trade (a standard to be determined by regulation) and not “injurious.” If an animal is not on the new “White List,” the species is by default “banned” as an invasive/injurious species and banned from importation or interstate movement.
  • White lists are unusual for the federal government as a regulatory tool and signatory or participant to international agreements and organizations predicated on prohibiting or restricting species trade for at-risk animals (i.e., Endangered Species Act or Convention on International Trade in Endangered Species of Wild Fauna and Flora), noxious plants (i.e., International Plant Protection Convention), pathogens that may infect US agricultural animals (World Organization for Animal Health) and imported animals and animal products capable of causing human disease (Center for Disease Control and Prevention).
  • Providing the FWS with new emergency listing authority of species in trade as well as species not yet in trade – a process that denies basic due process involving advance notice, opportunity to comment, public hearings, etc. While potentially appropriate for a species “not in trade,” this approach leaves US aquaculture at-risk for emergency listing for thousands of native and non-native aquatic species produced and sold to stock farms for grow-out, as farmed seafood, bait, recreational fish, biological control of nuisance aquatic plants or for aquarium and water gardening.
  • Interstate movement of animals could be severely impacted if an animal does not make it onto the “White List.”  The proposed amendment and the current Lacey Act does not provide any flexibility to the FWS to allow trade of species in portions of the country where they pose little to no risk (e.g., a tropical species in Alaska does not pose a similar risk as a tropical species in South Florida).
  • A “White List” is an impossible task for port inspectors or law enforcement to rapidly distinguish, for animal health and welfare reasons, the >1,000 farmed aquatic animals in the United States, >2,500 native freshwater and marine fish species, 466+ globally farmed species and the current 785 Injurious Wildlife Species already listed. Notably, the number of fish species in the world are estimated to be ~34,000 and grows at approximately 250 new species each year. A recent study estimated for the period 2000-14, animal imports reported to FWS because of the Endangered Species Act, Lacey Act and Convention on Trade in Endangered Species of Wild Fauna and Flora consisted of >2 million wildlife or wildlife product shipments, ~13,000 species, and >3.2 billion live organisms. The authors have posted a publicly accessible database for this information: GitHub – ecohealthalliance/lemis: R package providing access to data on wildlife imports into the United States.
  • Section 71102 was included in the COMPETES Act without a hearing by the House Committee on Natural Resources.  This Committees is responsible for legislative oversight of the Lacey Act.  Ranking Member to the Committee, Representative Bruce Westerman, spoke to this lack of thoughtful consideration during House debate when he stated:

This bill gives supreme unilateral authority to the U.S. Fish and Wildlife Service to determine what species can be imported into the U.S. This so-called white list mandated in the bill, it’s virtually impossible to implement and will effectively shut down aquaculture and similar industries who need trade to conduct business. The weaponization of the Lacey Act will only empower bureaucrats and ignores the current state-based approach on species imports. It’s legislative laziness since there have no hearings or even an introduced bill on this topic.

Next Steps:
A Senate/House reconciliation committee will convene to consider HR 4521 and S 1260.  The National Aquaculture Association will share information informing the aquaculture community who to contact as the appointed conferees in the House and Senate and suggest talking points to include in your communication whether by phone, email or fax.
Informing your Representative and Senators now of your opposition to Section 71102 is encouraged. In every instance, please remember you are speaking to dedicated Congressional staff that are charged with noting your comments and communicating them clearly and concisely to the House or Senate member.  Be courteous, be clear, be concise.

If you have questions, please do not hesitate.

All the best,

Paul W. Zajicek, Executive Director

National Aquaculture Association (USA)

Office: 850-216-2400

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