Parrots Need You! The Lacey Act and USDA-APHIS

Written by Apryl Miller, JD

reviewed
A Quaker parrot sitting behind a snake plant

Summary: Two new sets of regulations, from different parts of the US Government, are poised to create serious problems for parrot caregivers, avian veterinarians, rescuers, and breeders. This article looks at the legal foundations of the proposed amendments to the Lacey Act, which may prevent parrot caregivers from taking their birds across state lines for medical or behavior help, and the new USDA-APHIS regulations, which will put an undue strain on avian veterinary professionals. 


In 2021, while most of the United States was focused on dealing with COVID-19, legislation and regulations were quietly being pursued. Senator Marco Rubio brought forth Senate bill S.626 to amend the Lacey Act, an act first enacted in 1900 which “generally prohibits the import and shipment of listed living creatures and their eggs”.1

Meanwhile, USDA-APHIS (United States Department of Agriculture-Animal and Plant Health Inspection Service), by court order, was starting the administrative process to create regulatory standards for companion birds and birds under captive management under the Animal Welfare Act or AWA.2 Both these legal actions could change the landscape of the aviculture community with a few positive outcomes, but the majority harmful.

Both the updated regulatory standards and the proposed amendments to the Lacey Act have been criticized by many leading zoological and avian welfare organizations, such as the American Zoological Association, the Avian Veterinary Association, The American Federation of Aviculturists USARK, and the National Animal Interest Alliance.

This article will explain the background of both the USDA-APHIS regulations and the Lacey Act, and explore potential consequences to parrots and their caregivers.

Fundamentals of law

In the U.S. legal system, federal laws set the minimum standards, the floor, of rights. The states can grant more rights but cannot take away or go below the minimum standards. The process to amend the Lacey Act is different than the process to create regulatory standards of care for all companion birds and birds under captive management. The Lacey Act must be done through the legislative system, through House and Senate. The AWA’s standards for birds are a regulatory action from a federal agency (USDA-APHIS)  that is not controlled by a legislative body in its creation.3 Congress could be required to review the new regulation if it is “one that [is] economically significant and requires the Office of Information and Regulatory Affairs, OIRA, review”; or if the Congress and Senate pass a “resolution of disapproval and the President signs it”3; or Congress may exercise oversight “by holding hearings and posing questions to agency heads, by enacting new legislation, or by imposing funding restrictions.”3  So, the Lacey Act amendment is legislative, whereas the AWA’s standards for birds is regulatory agency law. The processes of creation and amendment is only one part to comprehending the impacts of Lacey and the AWA, historical context is also pertinent to understand the effect of the proposals.

Historical background of The Lacey Act

The Lacey Act was enacted by President McKinley in 1900 to “ban trafficking in fish, wildlife, or plants that are illegally taken, possessed, transported, or sold . . . indigenous to the United States”. 4,5  In 2008 the Lacey Act was amended to include “prohibition on trade . . . [and] harvest[ing] in violation of foreign law.”5 After more than 100 years of Lacey being on the books, with only a few amendments, why is it coming to the light now?

On March 3, 2021, S.626 was introduced in the United States Senate by sponsor Senator Marco Rubio of Florida and co-sponsor Senator Brian Schatz of Hawaii. The bill requests changes to the Lacey Act.6

This request to amend the Lacey Act was due to an ongoing conflict with USARK, United States Association of Reptile Keepers, which had started in 2011, over the interstate transport of nine types of constrictor snakes.7 On January 23, 2012, the Department of the Interior issued its final ruling, which prohibited not only importation but also interstate transport of four species of constricting snakes injurious in 77 Fed.Reg. 3330. USARK went to federal court December 18, 2013. 8 They then filed an amended complaint on May 9, 2014, questioning “whether Congress has also authorized the Interior Department to ban the interstate transportation of these ‘injurious species’.” 8 More specifically, “whether the Department acted within its authority when it issued regulations purporting to prohibit the interstate transportation of certain species of large constricting snakes.” 8 Following USARK filing suit, the Department of the Interior’s final ruling was published on March 10, 2015, listing an additional four constricting snake species as injurious and banning importation and interstate transportation of these snakes. 8 The Department used the example of the Burmese python problem in Florida and the danger of these snakes preying on native species, noting that these other constricting snakes listed would likely cause the same issues.  The 2015 rule took effect on April 9, 2015. 8 USARK was granted leave and filed a second amended complaint on March 23, 2015, with the intention of having both the 2012 and 2015 rules found invalid.

On May 12, 2015, the court found the Department of the Interior had exceeded its authority by adding “interstate” into the 2012 and 2015 rules. Lacey only controlled importation into the continental United State from other locations to protect the biodiversity of the continent. 8 The court upheld the injunction on the rules until the Appeals Court finding. On April 7, 2017, the United States Court of Appeal, in the case of United State Association of Reptile Keepers v. Ryan Zinke, Secretary of the Interior and U.S. Fish and Wildlife Service, Humane Society of the United States and Center for Biological Diversity9 ruled that in regards to Lacey’s prohibition on interstate transport of injurious species, the government lacked authority to prohibit transportation between continental states, even if the species was injurious.7

This loss in the Court of Appeals and the ever-growing problem with pythons “taking over the land and ultimately killing so many of the native species. . . [creating] concern for the preservation efforts of the historic wetland”10 is what led to Senator Rubio’s request to amend the Lacey Act under S.626. However, when Senator Rubio presented S.626 it did not move past the reading in committee phase. In order to get it passed quickly, Senator Rubio made sure it was dog-eared into the America Competes Act, HR 4521, in section 71102. According to the bill summary on Congress.gov, the America Competes Act “addresses U.S. technology and communications, foreign relations and national security, domestic manufacturing, education, trade, and other matters.” It is a wide-ranging act, and 2,912 pages long, with the amended Lacey Act being only five pages buried deep within this stem bill.11

HR 4521 passed in the House with no real discussion about Lacey. It then moved on and passed in the Senate and was sent back to the House for amending on March 28, 2022.11 As of April 7, 2022, HR 4521 is resolving different phases and Lacey is being looked at by the Judiciary Committee.11 If Lacey gains the approval of the committee and all other differences are resolved, it will then head to the President for signing. The President has stated he supports the America Competes Act so there is no reason to believe he will veto it.12 If we assume the Lacey amendment passes and is signed into law, what is the effect of these new amendments on parrots and their owners?

If the President passes the America COMPETES Act

‌Lacey would become active upon the signing of the President. The amendments would be as follows:

(a)

In general

Section 42 of title 18, United States Code, is amended—

(1)

in subsection (a)(1)—

(A)

in the first sentence, by striking shipment between the continental United States and inserting transport between the States; and

(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.; and

(2)

by adding at the end the following:

(d)

Presumptive prohibition on importation

(1)

In general

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, that is not native to the United States and, as of the date of enactment of the Lacey Act Amendments of 2021, is not prohibited under subsection (a)(1), is prohibited, unless—

(A)

during the 1-year period preceding the date of enactment of the Lacey Act Amendments of 2021, the species was, in more than minimal quantities—

(i)

imported into the United States; or

(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

(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.

(2)

Rule of construction

Nothing in paragraph (1) shall be construed to limit the authority of the Secretary of the Interior under subsection (a)(1).

Under the new Lacey, “shipment between the continental United States” would be changed to “transport between the States.” 13 This would grant the Department of the Interior the power that they did not have when they created rules in 2012 and 2015. Also, the Secretary of the Interior can make an emergency designation. This means the Secretary of the Interior could state that a species is injurious and ban it from being imported or transported interstate for up to three years.

An emergency designation will be prescribed if the Secretary of the Interior finds a species is an imminent threat to human beings or the interest of agriculture, horticulture, forestry, wildlife, or wildlife resources.  During the period of the emergency designation, the Secretary of the Interior will determine if the species should be declared injurious. This declaration does not require proof of injuriousness at the time; it can be based solely on the Secretary of the Interior’s opinion.  Additionally, the Secretary of the Interior can create regulation to define the term “minimal quantities” with one year of the enactment date. 13

Finally, the Secretary of the Interior ascertains the species that “does not pose a significant risk of invasiveness to the United States.” 13 This can only be done after an opportunity for public comment. Then it will be published in the Federal Register as a final list of species that do not pose a “significant risk of invasiveness, 13” also known as the white list. Anything not on the white list will be considered on the black list, or banned list. Those on the banned list will not be allowed to be transported interstate for any reason. If an animal is not well researched, it will be considered on the black list until proven not to be injurious or invasive. In short, if you have animal outside of a traditional farm animal, dog, or cat, Lacey will affect your ability to travel with your pet interstate.

Editor’s note: The IAABC Foundation Journal strongly prefers “permitted list” and “banned list” to “white list” and “black list.”  An exception is made here because the legal texts refer to black and white lists.

How long will it take to create the white and black lists?

I am speculating it will take about a year to create the white list. This is based on the typical 60 days for open comments, then time for the Secretary of the Interior to decide which animals and plants will be on the list. The black list is those animals and plants that are banned either because they have already been found injurious or are not on the white list. The U.S. Fish and Wildlife Services, FWS, will be the federal agency enforcing the restrictions of the black list. FWS commonly works with USDA. For example, when parrots are smuggled into the country, FWS handles confiscation and typically hands them over to USDA facilities to be in quarantine until they are taken to their final location. This interagency interaction of FWS and USDA causes concern that USDA will add parrots that they find invasive on the black list that FWS would be required to enforce.

Currently, USDA-APHIS has declared Rose-ringed parakeets as an invasive species in Hawaii and other states. 14 This could explain why Senator Brian Schatz, Hawaii, is a co-sponsor on Lacey amendments with the hope that using the USDA-APHIS declaration of invasiveness would have them immediately placed on the black list. 14 The next parrot most likely to be added to the black list based on USDA-APHIS input is monk parakeets, AKA quaker parrots.15

So how does being on the black list impact these parrots? As an example, I own a quaker parrot, who needs a basic vet check because they are known for having fatty liver disease. Where I live, the nearest avian veterinarian is across the state line in Indiana. If quaker parrots are on the black list and I cross the border for veterinary care, I would be in violation of Lacey with a fine of $10,000 and one year in jail, minimum.

Lacey is a strict liability law. 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 illegal animal. In plain terms you are responsible for just having the animal, and there is no real defense against it. The penalties for violating the Lacey Act vary in degree based on the violator’s level of knowledge about the animal. The penalty could be a misdemeanor or felony and could include imprisonment. I could be fined and go to prison for simply getting appropriate, responsible care for my quaker parrot. Furthermore, the quaker parrot would be confiscated and likely euthanized. There would be a chance the veterinarian could refuse to see my parrot for fear of being an accomplice to a crime. This situation would be applicable to any exotic pet owner who needed access to routine or specialized veterinarian care, behavioral care, or breeding to maintain the genetic pool of endangered species, or even traveling with the family on trips.

USDA concurrently establishes Federal standards

Not only is there is interagency interaction, USDA-APHIS has its own regulation that it is currently promulgating on standards of care for birds under the Animal Welfare Act, AWA.16,17

In January 2020, the U.S. Circuit Court of Appeals provided a deadline for APHIS to promulgate regulations and standards for the humane care and treatment of birds. USDA-APHIS proposed in AWA’s definition §1.1 for “pet animals” to add birds such as parrots and canaries.18 This means states that use the term “pet” in their statutory laws for animal neglect and abuse will now include pet birds, which is a great win for aviculturists. However, Lacey could be law in a few months, and USDA-APHIS’s inclusion of birds in its definition of pets will not be law for another year. So, this great new aspect of the law will not protect parrots from being placed on the black list. Furthermore, the proposed Lacey Act would hinder an owner from scheduling a check-up with a veterinarian or emergency care out of state. If the owner does not take their parrot for necessary veterinarian care they could be charged with neglect, but if the owner crosses a state line after the Lacey Act is amended, they could also be arrested and face jail time and fines. This puts owners, breeders, and rescuers in a catch-22 situation when trying to protect parrots. This is also true if the parrot owner needs to visit a behavioral specialist and they have to cross state boundaries to access their services.

To add to the above stated complications, the proposed AWA standards for birds are written with facilities like zoos, roadside attractions, and similar locations in mind. These standards are not written in consideration of cottage industries such as parrot breeders and rescuers. This means that many of these individuals who work from their homes, and do not have a separate building that houses their parrots, would be required to give up their right to privacy in their own home due to unannounced inspections. Individuals could be required to pay for a license even if their birds unexpectedly bred and had one hatchling; they would then be under USDA-APHIS inspections for three years.  While USDA-APHIS compares parrots to dogs and cats, they do not inspect AKC breeders in the same fashion that is being required for parrot breeders.

Challenges for veterinarians and veterinary technicians

 The United States has an avian veterinary shortage, making any barrier to care an even greater burden on parrot owners, breeders, and rescuers.19 Currently, pet bird owners sometimes have to wait two months or more to get on their veterinarian’s calendar for basic checkups and are having issues getting emergency care. Behavior consultants and trainers are also in short supply, with many taking clients from across state, and even country lines.

The new USDA-APHIS guidelines will require that veterinarians have much more involvement in the everyday care and maintenance of parrot flocks at facilities. Under the AWA, “facilities” include: boarding locations, training locations, breeding programs (even in homes, unless covered by de minus exception), rehabilitation locations, research locations, and any exhibition locations such: “carnivals, circuses, animal acts, zoos, and educational exhibits, exhibiting such animals whether operated for profit or not. This term excludes retail pet stores.”

Sanctuaries and rescues, were not defined under the AWA prior to these additional regulations for birds. In the current regulations, sanctuaries or rescues are not specifically addressed.  However, there were numerous comments addresses that the AWA failed in its obligations by not including sanctuaries and rescue under the proposed regulations.  Therefore USDA-APHIS may choose to add sanctuaries and rescues. If USDA-APHIS does include sanctuaries and rescues, they would have to meet all the proposed regulation to maintain a license whether run from a large dedicated aviary or from an individual’s home.

The new guidelines propose that “the attending veterinarian for a facility, whether full- or part-time would need to document and maintain a record that the space in all enclosures  housing birds is adequate and allow for normal postural and social adjustment” §3.153(b); required for all nail, beak, and wing trimming; define prescribed temperature and humidity levels would be part of the written program of veterinary care or part of the full-time veterinarian’s records.

The facility would have to “develop, document, and follow a species-appropriate plan for environment enhancement adequate to promote the psychological well-being of birds. This plan, which would be part of the required program of veterinary care, would have to be approved by a veterinarian and be in accordance with the other regulations proposed in Subpart G.”

There are simply not enough specialist avian veterinarians to make regular scheduled visits to all these sites. The increase in demand to travel to facilities will also make it even more difficult for them to provide veterinary services for parrots in private homes. Especially since the Lacey Act would make it illegal for these individuals to visit the veterinarian’s office if they are in a different state. Both the USDA-APHIS regulations and the Lacey Act amendments will have negative consequences for parrot caregivers, but together they exacerbate one another.

There are also some specific requirements that are unreasonable to expect veterinarians to be able to undertake. Under §3.154(a) the law “would require that bird compatibility be determined in accordance with generally accepted professional practices and observations by attending veterinarian during his or her regularly scheduled visits to the facility.”  It is not realistic that a visiting veterinarian would have the best knowledge of interaction in the flocks they visit. Requiring the vet to determine how to house individuals in or out of the flock based on social interaction is not sensible; this should be the responsibility of the breeder who is around the flocks daily. Under §3.160 the veterinarian should only be responsible if they need to be removed from the flock due to medical reasons.  All these added responsibilities onto veterinarians will hinder parrots from receiving appropriate care.

 AWA standards for birds along with the Lacey Act will make it more challenging to get care of from a veterinarian or behaviorist without facing criminal charges. Additionally, the proposed amendments to the Lacey Act do not only impact parrots and all other exotic pets. These rules could make it more difficult to maintain strong and diverse genetic lines to keep endangered species alive. If the animal cannot be transported for breeding purposes to help maintain the species, this will diminish the breeding program’s ability to help keep them around for future generations.

The reality is Florida has a major constrictor snake problem that is ruining the Everglades ecosystem. However, these amendments to Lacey will do a serious harm to a greater number of animals and not undo the harm created in Florida. As people who care about parrots, exotic pets, or helping endangered species, we need to help be part of Florida’s solution through means outside of Lacey. Additionally, USDA-APHIS needs to be educated on how the needs of parrots and pet birds are different from all other birds. Other birds do not typically live in human homes; therefore, we need separate standards that correctly address the needs they have while preventing neglect and abuse.

References

  1. 626 – 117th Congress (2021-2022): Lacey Act Amendments of 2021. (2021, March 9).
  1. USDA-APHIS (2017) 7 U.S.C. § 2131 et seq. In: Animal Welfare Acts and Animal Welfare Regulations (Blue Book). Last accessed 5/31/2022.
  1. Office of the Federal Register (2011) A Guide to the Rulemaking Process. Last accessed 5/31/2022.
  2. Wisch, R. F. (2003). Overview of the Lacey Act (16 U.S.C. SS 3371–3378). Michigan State University Animal Legal & History Center. Retrieved December 4, 2022.
  3. US Lacey Act. Forest Legality. (n.d.). Retrieved April 12, 2022.
  1. Cosponsors – S.626 – 117th Congress (2021-2022): Lacey Act Amendments of 2021. (2021, March 9).
  2. Andrew Wyatt. (2017). Landmark Victory for USARK in Python Ban Lawsuit. The Last Word on Wildlife, April 8
  3. S. Ass’n of Reptile Keepers, Inc. v. Jewell, 103 F. Supp. 3d 133 (D.D.C. 2015).
  4. S. Ass’n of Reptile Keepers, Inc. v. Zinke, 852 F.3d 1131 (D.C. Cir. 2017)
  5. Everglades Holiday Park. Pythons are becoming a problem in the Florida Everglades. Retrieved April 16, 2022.
  6. R.4521 – 117th Congress (2021-2022): United States Innovation and Competition Act of 2021. (2022, May 5).
  7. Boggs, J. (2022) Biden urges support for bill aimed at manufacturing innovation. KGTV, April 14. Last accessed 5/31/2022.
  8. Text of S. 626: Lacey Act Amendments of 2021 (Introduced version). Retrieved April 16, 2022
  9. USDA-APHIS (2021) Invasive Parakeets’ Role in Spreading Invasive Weeds. Last accessed 5/31/2022
  10. Avery, M., & Lindsay, J. (2016). Monk Parakeets. USDA-APHIS Wildlife Damage Management Technical Series. Last accessed 5/31/2022.
  11. Bell, L. & Cole, A. (2022) USDA Seeks Public Comment on Proposal to Establish Animal Welfare Regulations for Birds. USDA-APHIS. Last accessed 5/31/2022.
  12. USDA-APHIS (2022) Standards for Birds Not Bred for Use in Research Under the Animal Welfare Act [Review of Standards for Birds Not Bred for Use in Research Under the Animal Welfare Act.] Federal Register.  Last accessed 5/13/2022.
  13. USDA-APHIS (2020) Animal Care Posts Transcripts from Recent Animal Welfare Act Bird Standards Listening Sessions. Last accessed 5/31/2022
  14. Kottke, C. (2021, May 26). Alarming suicide rates reflective of stresses felt by veterinarians. Wisconsin State Farmer.
TO CITE: Miller, A. (2022) Parrots need you! The Lacey Act and USDA-APHIS. The IAABC Foundation Journal 24, doi: 10.55736/iaabcfj24.1

Apryl Miller JD, BS, is the Executive Director of Legislative Rights for Parrots and is also currently working with a group in Spain to stop the culling of quaker parrots.  She has a Juris Doctorate, a BS in History, and an AA in Interpreting for the Deaf.  Apryl and her husband husband have 15 survivor parrots in their flock ranging in size from lovebird to Macaw.  They also have three geriatric cats. When not working to help parrots, or spending time with her large feathered and furry family, Apryl can be found doing genealogy, gaming, or advocating for others who, like her, have autoimmune diseases.

In Memorium of Xander and Simon, two rescued Moluccan Cockatoos who suffered abuse at the hands of their “rescue.” I promised them that I would never stop fighting for what is best for birds. This article is one more step in that journey.

Two male moluccan cockatoos,leaning against one another

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