THE LACEY ACT

To understand how the amendments to the Lacey Act will affect parrot owners, it’s necessary to begin with some background on what the Lacey Act is, how it came about, and the intent of the original policy.

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The Lacey Act, signed by President William McKinley on May 25, 1900, gave the United States its first far-reaching federal wildlife protection law and set the stage for a century of progress in safeguarding wildlife resources. In reading the Lacey Act, it’s important to note the specific meaning of the phrase ‘injurious wildlife’. 

 

What Does Injurious Wildlife Mean?

Injurious wildlife are wild mammals, wild birds, amphibians, reptiles, fishes, crustaceans, mollusks and their offspring or eggs that are injurious to the interests of human beings, agriculture, horticulture, forestry, wildlife or wildlife resources of the United States. Plants and organisms other than those stated above cannot be listed as injurious wildlife. Lacey Act (18 U.S.C. 42; 50 CFR 16)

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What is the difference between the Lacey Act and CITES?  

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international agreement among governments to regulate or ban international trade in species under threat. The Lacey Act is a United States federal law that deals with illegal “trafficking” of wildlife, fish, and plants. The Lacey Act covers all fish, wildlife, plants, and their parts or products protected by the CITES and those protected by state law.

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Who Enforces the Lacey Act?

Various provisions of the Act are enforced by the U.S. Fish and Wildlife Service, the National Oceanic and Atmospheric Administration, U.S. Customs and Border Protection, the Animal and Plant Health Inspection Service and the U.S. Forest Service.

 

What is the Judicial standard for a Lacey Act Case?

The Lacey Act is a fact-based statute with strict liability. Strict liability means that only actual legality counts (no third-party certification or verification schemes can be used to “prove” legality under the Act) and that violators of the law can face criminal and civil sanctions even if they did not know that they were dealing with an illegally harvested product.

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How are Penalties determined?

Penalties for violating the Lacey Act vary in severity based on the violator’s level of knowledge about the product; penalties are higher for those who knew they were trading in illegally harvested materials. For those who did not know, penalties vary based on whether the individual or company in question did everything possible to determine that the product was legal. In the U.S. system, this is called “due care,” and is a legal concept designed to encourage flexibility in the marketplace.

Is violation of the Lacey Act a felony?

That depends on the exact nature of the violation:

•    Felony criminal sanctions are provided for violations involving imports or exports, or violations of a commercial nature in which the value of the wildlife is in excess of $350.

•    A misdemeanor violation was established, with a fine of up to $10,000 and imprisonment of up to 1 year, or both.

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How can an injurious animal be transported?

 To transport injurious wildlife, you must have a permit that is typically only issued to research facilities, academia, or zoos. If you do not have a permit, you cannot transport or have transported an injurious animal across state lines for any reason.  

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So how does this affect parrot owners and rescuers? The answer is that right now, parrots are not considered injurious wildlife. However, currently proposed amendments to the Lacey Act would change that, complicating the transport of birds across state lines for rescue, veterinary care, or even moving pet birds with your household.

AMENDMENTS TO THE LACEY ACT

What are these proposed amendments to the Lacey Act? The changes were inserted into the completely unrelated America COMPETES Act (HR 4521) beginning on page 2,060. Here are the actual amendments: 

Not very illuminating, is it? Here’s a breakdown of the changes to explain how they may affect parrot owners and rescuers if enacted into law:

Section 71102 of the America COMPETES Act, H.R. 4521 (passed the House), would amend the injurious species provisions of the Lacey Act (18 U.S.C. §42).

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•    in subsection (a)(1)—
The Lacey’s Act intentions was to stop smuggling, however by them in section (A) in the first sentence, striking “shipment between the continental United States” and inserting “transport between the States”;  

o    This provision could be interpreted to prohibit transport across state lines or transport in interstate commerce activity that does not necessarily cross state lines.

■    Example: traveling from Michigan to Ohio would now be regulated, previously only transporting from outside the United States into the country or from the United States to other countries.

o    How will this affect rescues, rehabs, sanctuaries, owners, etc?

■     It will limit the right for transportation across state borders for veterinary care, to pick birds to be brought to the facility, to transport parrots to new homes, to move out of state with your parrot. No traveling, by any means, out of the state the parrot resides in would be permissible.  Simply crossing a border with a parrot would be an automatic finding of guilt under a strict liability standard. This would make the caring for and placements of parrots extremely difficult. 

•    (B) by inserting after the first sentence the following: “Notwithstanding any other provision of law, the Secretary of the Interior may prescribe by regulation an emergency designation prohibiting the importation 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, as injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States, for not more than 3 years, under this subsection, if the Secretary of the Interior determines that such regulation is necessary to address an imminent threat to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States. An emergency designation prescribed under this subsection shall take effect immediately upon publication in the Federal Register, unless the Secretary of the Interior prescribes an effective date that is not later than 60 days after the date of publication. During the period during which an emergency designation prescribed under this subsection for a species is in effect, the Secretary of the Interior shall evaluate whether the species should be designated as an injurious wildlife species under the first sentence of this paragraph.”

o    Emergency Designation would stop import for up to 3 three years.

o    “under this subsection, if the Secretary of the Interior determines that such regulation is necessary to address an imminent threat to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States. An emergency designation prescribed under this subsection shall take effect immediately upon publication in the Federal Register.”

■   This gives the Secretary of the Interior power to declare any species a “imminent threat” without any scientific proof or reasoning beyond he or she says so. There is no oversight of decision.

o     “unless the Secretary of the Interior prescribes an effective date that is not later than 60 days after the date of publication.” 

■    The Secretary of the Interior can stop it from taking effect immediately but no longer than 60 days after published in the Federal Register.

o    “During the period during in which an emergency designation prescribed under this subsection for a species is in effect, the Secretary of the Interior shall evaluate whether the species should be designated as an injurious wildlife species under the first sentence of this paragraph.”

■    During this period The Secretary of the Interior may decide whether to change the emergency status of imminent threat to a permanent status as injurious, adding that species to the list of injurious species in 50 C.F.R. part 16. The statute provides criminal penalties for violating the prohibitions. The Secretary exercises this authority through the U.S. Fish and Wildlife Service (FWS).

 

•    What Does Injurious Wildlife Mean?

o    Injurious wildlife are wild mammals, wild birds, amphibians, reptiles, fishes, crustaceans, mollusks and their offspring or eggs that are injurious to the interests of human beings, agriculture, horticulture, forestry, wildlife or wildlife resources of the United States. 

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•    Injurious wildlife may only be transported with a permit that is typically not given to individuals, but only issued to research facilities, academia, or zoos. Without a permit you cannot transport or have transported an injurious animal across state lines for any reason.  

o    (1) IN GENERAL (A)(ii) “transported between the States, any territory of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any possession of the United States; or

■    Note that PR and District of Columbia are included in the interstate clause

o    (1) IN GENERAL(B) the Secretary of the Interior determines, after an opportunity for public comment, that the species does not pose a significant risk of invasiveness to the United States and publishes a notice in the Federal Register of the determination.

■    While there would be a period for public comment on the potential injuriousness of the species, the Secretary of the interior still makes the final determination.

o    The Secretary of Interior within one year of the enactment of this bill would be required to determine what constitutes “minimal quantities” of non-native species.

■    This prohibition would not apply to species that were imported into or transported within the United States in “more than minimal quantities”

o    Prohibiting Species Not Native to the United States
This would effectively create a whitelist* of non-native species that could be imported into the United States. A whitelist law bans importing all species except those approved on the list, in contrast to the current blacklist* approach that identifies specific species as prohibited from being imported. 

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•    ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 10 paragraph (1) shall be construed to limit the authority of the Secretary of the Interior under subsection (a)(1).’’.

o    Meaning the Secretary of the Interior has full discretion with no oversight.