The America COMPETES Act Amendments to the Lacey Act

The America COMPETES Act Amendments to the Lacey Act

INSIGHTi

The America COMPETES Act Amendments to
the Lacey Act
June 10, 2022
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).
The Injurious Species Provisions of the Lacey Act
The Lacey Act’s injurious species provisions prohibit importing certain species into the United States and
shipping such species “between the continental United States, the District of Columbia, Hawaii, the
Commonwealth of Puerto Rico, or any possession of the United States.” In 2017, the U.S. Court of
Appeals for the D.C. Circuit held in U.S. Association of Reptile Keepers v. Zinke that the statute did not
prohibit interstate shipment of injurious species—that is, shipment between states within the 49
continental United States.
The statute identifies certain species as injurious and authorizes the Secretary of the Interior to identify
other species as injurious to human beings; the interests of agriculture, horticulture, forestry; or wildlife or
the wildlife resources of the United States. The Secretary may list as injurious any “species of wild
mammals, wild birds, fish (including mollusks and crustacea), amphibians, reptiles, brown tree snakes, or
the offspring or eggs of any of the foregoing.” The list of injurious species appears 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).
Proposed Amendments to the Lacey Act in H.R. 4521
Section 71102 of H.R. 4521, as passed by the House, would amend the injurious species section of the
Lacey Act. First, it would prohibit “any interstate transport within the United States.” This provision
could be interpreted to prohibit transport across state lines or transport in interstate commerce activity that
does not necessarily cross state lines.
Second, it would allow the Secretary to issue an emergency designation of any species of wild mammal,
wild bird, fish, amphibian, or reptile as injurious and prohibit its import for up to three years. To issue an
emergency designation, the Secretary would have to determine that it was necessary to address an
imminent threat to human beings; agricultural, horticultural, or forestry interests; or wildlife or U.S.
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wildlife resources. The emergency designation would generally be effective immediately. While the
emergency designation was in effect, the Secretary would have to evaluate whether the species should be
listed as injurious.
Third, H.R. 4521 would amend the penalty provision to impose fines or imprisonment only for knowing
violations. This amendment would modify the mens rea required to establish criminal liability under this
section of the Lacey Act. The section does not currently include any mens rea requirement in the penalty
provision or in the provision prohibiting importing or shipping injurious species. A court would have to
determine what level of intentionality would be required for the government to obtain a conviction.
Finally, the bill would prohibit importing any species of wild mammals, wild birds, fish, amphibians, or
reptiles that are not native to the United States. This prohibition would not apply to species that were
imported into or transported within the United States in “more than minimal quantities” in the year before
the law was enacted. The prohibition would also not apply if the Secretary of the Interior determined,
after opportunity for public comment, that the species did not “pose a significant risk of invasiveness to
the United States.” The bill would require FWS to define “minimal quantities.”
Stakeholder Perspectives on the Proposed Amendments
Transport Between States
Some stakeholders have expressed support for banning the transport of injurious species across state lines.
They argue that this ban would reduce the proliferation and expansion of injurious species across the
United States. Some other stakeholders have contended that this provision would hamper the pet industry
by preventing certain species from being transported across state lines if they are designated as injurious.
Emergency Authority to Prohibit Importation
Stakeholders that support an emergency designation authority for injurious species generally argue that
this authority is needed to allow the Secretary to act quickly to stop the import of non-native species
before they are introduced and become established. They note that designating a species as injurious can
take time, which could allow a species to become established before it is listed. Scientists report that
listings can take between 14 months and 7 years. Some stakeholders oppose granting an emergency
designation authority because the designation could be made without a full scientific review of the species
and might be done arbitrarily or based on hypothetical or uncertain circumstances. Further, they assert
that allowing the designation to last for up to three years is excessive.
Prohibiting Species Not Native to the United States
This provision would effectively create a white list of non-native species that could be imported into the
United States. A white list law bans importing all species except those approved on the list, in contrast to
the current black list approach that identifies specific species as prohibited from being imported. Some
proponents of this provision might argue that the white list approach to importing non-native species
would immediately reduce the entry of invasive non-native species into the United States, thus lowering
their ability to establish and spread.
Several stakeholders are critical of this proposed provision as overbroad, contending that the provision
may ban the import of non-native species used in the pet industry, medical research, aquaculture, and
other industries and may reduce the number of species available for trade. Other stakeholders might raise
questions about how invasiveness will be defined when assessing species and note that exemptions from
the list are for species that do not “pose a significant risk of invasiveness,” which is different than
injurious. This point leads to questions regarding how species are evaluated. Stakeholders also question

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how long a determination for an exemption might take and whether adequate resources and scientific
information to make such determinations and enforce the provision exist. In contrast to these concerns,
some stakeholders assert that the provision would exempt non-native species currently being imported,
transported, sold, and traded in the United States.

Author Information

Erin H. Ward
Pervaze A. Sheikh
Legislative Attorney
Specialist in Natural Resources Policy

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