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THE DEPARTMENT OF THE 

INTERIOR’S PROPOSAL TO USE A 

CATEGORICAL EXCLUSION UNDER 

THE NATIONAL ENVIRONMENTAL 

POLICY ACT (NEPA) FOR ADDING 

SPECIES TO THE LACEY ACT’S LIST 

OF INJURIOUS WILDLIFE 

OVERSIGHT HEARING 

BEFORE THE

SUBCOMMITTEE ON FISHERIES, WILDLIFE, 

OCEANS AND INSULAR AFFAIRS 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

Friday, September 20, 2013 

Serial No. 113–44 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

PETER A. DEFAZIO, OR, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Mark E. Amodei, NV 

Markwayne Mullin, OK 

Chris Stewart, UT 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Jason T. Smith, MO 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Steven A. Horsford, NV 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA 

Vacancy 

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Penny Dodge, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

SUBCOMMITTEE ON FISHERIES, WILDLIFE, OCEANS 

AND INSULAR AFFAIRS 

JOHN FLEMING, LA, Chairman 

GREGORIO KILILI CAMACHO SABLAN, CNMI, Ranking Democratic Member 

Don Young, AK 

Robert J. Wittman, VA 

Glenn Thompson, PA 

Jeff Duncan, SC 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Jason T. Smith, MO 

Doc Hastings, WA, ex officio 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Madeleine Z. Bordallo, GU 

Pedro R. Pierluisi, PR 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Vacancy 

Peter A. DeFazio, OR, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Friday, September 20, 2013 ........................................................ 1 

Statement of Members: 

DeFazio, Hon. Peter A., a Representative in Congress from the State 

of Oregon ....................................................................................................... 10 

Fleming, Hon. John, a Representative in Congress from the State of 

Louisiana ....................................................................................................... 1 

Questions submitted to U.S. Fish and Wildlife Service for the record . 49 

Sablan, Hon. Gregorio Kilili Camacho, a Delegate in Congress from the 

Territory of the Northern Mariana Islands ................................................ 2 

Statement of Witnesses: 

Gehan, Shaun M., Attorney, Kelley Drye & Warren, Representing U.S. 

Association of Reptile Keepers ..................................................................... 25 

Prepared statement of ............................................................................... 27 

Hoskins, David, Assistant Director, Fish and Aquatic Conservation, U.S. 

Fish and Wildlife Service ............................................................................. 12 

Prepared statement of ............................................................................... 13 

Jenkins, Peter, Executive Director, Center for Invasive Species Prevention ................................................................................................................. 17 

Prepared statement of ............................................................................... 19 

Maddy, Jim, President and CEO, Association of Zoos and Aquariums ....... 21 

Prepared statement of ............................................................................... 23 

Meyers, Marshall, Senior Advisor, Pet Industry Joint Advisory Council .... 32 

Prepared statement of ............................................................................... 33 

Additional Materials Submitted for the Record: 

Fleming, John and members of the Committee on Natural Resources, 

Letter to Fish and Wildlife Service submitted for the record ................... 47 

Gould, Rowan W., U.S. Department of the Interior, Fish and Wildlife 

Service, Response letter submitted for the record ..................................... 47 

Imperial Irrigation District, Imperial, CA, Letter submitted for the 

record ............................................................................................................. 53 

Journal of Biological Invasions, November 29, 2012, ‘‘Genetic Analysis 

of a Novel Invasion of Puerto Rico by an Exotic Constricting Snake’’, 

Article submitted by Delegate Sablan ......................................................... 4 

List of material retained in Committee’s official files ................................... 63 

North Texas Municipal Water District, Wylie, TX, Prepared statement 

of ..................................................................................................................... 54 

U.S. Fish and Wildlife Service, Memorandum of Understanding ................ 56 

Western Coalition of Arid States (WESTCAS), Washington, DC, Prepared 

statement of ................................................................................................... 61 

(1) 

OVERSIGHT HEARING ON THE DEPARTMENT 

OF THE INTERIOR’S PROPOSAL TO USE A 

CATEGORICAL EXCLUSION UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT 

(NEPA) FOR ADDING SPECIES TO THE 

LACEY ACT’S LIST OF INJURIOUS WILDLIFE 

Friday, September 20, 2013 

U.S. House of Representatives 

Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs 

Committee on Natural Resources 

Washington, DC 

The subcommittee met, pursuant to notice, at 10:07 a.m., in room 

1324, Longworth House Office Building, Hon. John Fleming [Chairman of the Subcommittee] presiding. 

Present: Representatives Fleming, Sablan, Shea-Porter, Garcia, 

and DeFazio. 

Dr. FLEMING. The subcommittee will come to order. The Chairman notes the presence of a quorum. 

Good morning. 

STATEMENT OF THE HON. JOHN FLEMING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA 

Dr. FLEMING. On July 1, 2013 the Department of the Interior 

proposed a categorical exclusion for the listing of injurious wildlife 

by the U.S. Fish and Wildlife Service. Three weeks later, I, along 

with my distinguished committee colleagues Rob Bishop, Don 

Young, and Steve Southerland, asked the Director of the Service to 

withdraw the proposed rule. 

On September 10 we received a response to that letter, indicating 

that the public comment period would be extended until October 

15, and that the proposed exemption would affect only one small 

part of a complex regulatory procedure. 

This begs the question as to why, 43 years after the enactment 

of the National Environmental Policy Act, NEPA, this change is 

suddenly necessary. Before examining the new categorical exclusion, it may be useful to review the history of the injurious wildlife 

program. To date, the Service has added 236 species of birds, crustaceans, fish, mammal, and reptiles to the list that prohibits their 

importation and interstate trade. 

Since 1970, more than 40 species have been reviewed under 

NEPA. And on two occasions the Service did utilize a Department 

of the Interior categorical exclusion, which meant that there was 

no scoping process, discussion of environmental alternatives, public 

hearings, economic analysis, or a record decision on those two petitions. 

2 

In the Federal Register notice, the summary section states that 

the goal of the new categorical exclusion is ‘‘making the NEPA 

process for listing injurious species more efficient.’’ 

My question is, more efficient for whom? Because it will certainly 

not be more efficient for aquariums, individual Americans, research 

institutions, small businesses, and zoos who will be forced to seek 

redress in our Federal courts. 

While not contemplating an environmental impact statement or 

environmental assessment may save the Fish and Wildlife Service 

money, I suggest a better alternative to short-circuiting the NEPA 

process would be to dedicate more than two Federal employees to 

the listing process each year. 

By contrast, the Service has 1,139 employees working on the Endangered Species Act program, 246 working on migratory bird 

management, 105 on the Federal aid programs, and 89 employees 

in the Land Acquisition Office. By making this program a priority, 

this service can utilize its resources to stop invasive species before, 

and not after, they become established in the United States. 

We must strive to ensure that never again will species like nonnative carp be allowed to devastate our fisheries. There is no reason, other than the lack of attention, that it should have taken the 

Service 7 years to list black, silver, and large-scale carp. 

Today, the Fish and Wildlife Service will have the opportunity to 

justify the request for a new categorical exclusion, why the Service 

has not previously sought such an exclusion, and how it will benefit 

the regulated community. We will also hear from the Association 

of Zoos and Aquariums, the Pet Industry Joint Advisory Council, 

the U.S. Association of Reptile Keepers, and the Center for 

Invasive Species Prevention, who will give us their perspective on 

the proposed categorical exclusion. 

At this time, I am pleased to recognize the distinguished Ranking Member, the gentleman from the Commonwealth of the Northern Marianas, Congressman Sablan, for an opening statement that 

he would like to make. 

STATEMENT OF THE HON. GREGORIO KILILI CAMACHO 

SABLAN, A DELEGATE IN CONGRESS FROM THE TERRITORY 

OF THE NORTHERN MARIANA ISLANDS 

Mr. SABLAN. Well, thank you very much, Mr. Chairman. And 

welcome to all of our witnesses this morning. Today we will hear 

testimony on the Fish and Wildlife Service’s proposal to establish 

a categorical exclusion under NEPA, the National Environmental 

Policy Act, for adding species to the Lacey Act’s list of injurious 

wildlife. The Service’s welcome foresight in this instance is based 

on sound science, not politics, and it is a logical step to protect our 

environment, while also making government more efficient. 

The value of this measured proposal should be clear to those on 

both sides of the aisle, especially considering the Majority’s repeated attempts to waive NEPA entirely whenever it suits them. 

Ironically, though, it seems that in this case the Majority’s witnesses are arguing to slow down the NEPA process. 

The purpose of a NEPA review is to determine whether a proposed Federal action will impact the environment. As the Fish and 

Wildlife Service will testify, adding a potentially harmful species to 

3 

the injuries wildlife list does not have a negative impact on the environment. It is beneficial to the environment. 

In fact, reviews of previous injurious wildlife listing proposals 

have resulted in findings of no significant impact under NEPA. I 

find opposition to this proposed rule particularly puzzling, because 

H.R. 1823, a bill to add the Quagga mussels to the list of injurious 

wildlife, with no consideration of NEPA, or the evaluation process 

established under the Lacey Act, has no fewer than three Republican cosponsors of this committee. 

We should be moving more swiftly to prevent the spread of 

invasive species. Economic damage from biological invasions in the 

United States is estimated at $137 billion per year. That is a huge 

sum of money, as much as the total cost of all cyber crime in the 

United States, or the same amount that Fannie Mae and Freddie 

Mac owe the American taxpayers after the collapse of the housing 

market, or the GDP of my district for 250 years. 

Yet, instead of addressing the threat invasive species pose to our 

environment and economy, some of this committee would prevent 

the Federal Government from acting swiftly against the threat and 

protecting taxpayers while conserving valuable resources. 

In my home, the Commonwealth of the Northern Mariana Islands, we face severe ecological and economic threats from invasive 

species. The brown tree snake, for example, is considered the number one threat to native wildlife. This snake has already caused 

major economic and ecological damage on the Island of Guam, 

where it has hunted more than 75 percent of native birds and lizard species into extinction, and causes frequent and costly power 

outages. 

Our Division of Fish and Wildlife has had to create an entire program dedicated to preventing the introduction of this snake to our 

islands. We worry that other reptiles, particularly giant constrictor 

snakes, could cause similar damage to our islands. Sadly, this is already unfolding in Puerto Rico, where invasive boa constrictors 

have established breeding populations and are displacing native 

wildlife. 

We face invasive species problems across the Nation. Infestations 

of invasive plants and animals can negatively affect property values, agriculture, productivity, public utility operations, native fisheries, tourism, outdoor recreation, and the overall health of an ecosystem. 

In the Florida Everglades, the injurious Burmese python is associated with startling declines in native mammal populations. In the 

Great Lakes, the Federal Government has committed millions of 

dollars to stop the Asian carp from doing further harm to the region’s fisheries and remaining populations of endangered or threatened aquatic species. In Louisiana and other States, the invasive 

nutria, a large, semi-aquatic rodent, has caused extensive damage 

to coastal wetlands. U.S. agriculture loss is $13 billion annually in 

crops from invasive insects. 

The list goes on, and the threat is only increasing, as continued 

global warming creates new suitable habitats for non-native species. With that, I look forward to hearing from our witnesses and 

discussing how we can work together to address our Nation’s 

invasive species. 

4 

And, Mr. Chairman, I ask unanimous consent to enter into the 

record a recent report published in the peer review journal, ‘‘Biological Invasions.’’ The report shows that non-native boa constrictor 

populations have become established in Puerto Rico. The report is 

titled, ‘‘Genetic Analysis of Invasion of Puerto Rico by an Exotic 

Constricting Snake.’’ 

Thank you, and I yield back my time. 

Dr. FLEMING. Without objection, so ordered. 

[The report from the journal ‘‘Biological Invasions’’ submitted by 

Mr. Sablan for the record follows:] 


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Dr. FLEMING. The Chairman now recognizes the Ranking Member of the full committee, Mr. DeFazio, for an opening statement. 

STATEMENT OF THE HON. PETER DEFAZIO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. DEFAZIO. Thank you, Mr. Chairman. I appreciate the opportunity. I brought a photo. I will explain it and then I will incorporate it in my speech. This would be a python. This would be the 

tail of an alligator, where it burst through the python which attempted to devour it. This was, of course, in the Florida Everglades. So thanks, that is good. 

The—you know, invasive species pose enormous threats to our 

economy and native wildlife. Some have been inadvertently introduced through ballast water or cargo, and we need to take steps 

to deal with that. Some have been smuggled in. We need to have 

strong sanctions on those folks. But some have actually been deliberately imported for commercial purposes. 

Now, this python, which is descended from a python that was introduced for the pet trade was only 13 feet long. Only. They actually grow to 20 feet and weigh over 200 pounds. And perhaps one 

that was that large would have been able to digest the alligator. 

You know, the alligator was an endangered species, we have 

brought it back from endangered status. And now it is threatened 

by a non-native invasive species that was deliberately imported 

into the United States. The snakes also eat wood storks, Key Largo 

wood rats, and many other species. If it could get a hold of the last 

Florida panther, it might eat that, too. 

So we are now spending millions of dollars a year in the Everglades to try and eradicate this non-native predator. Last year, 

Fish and Wildlife took action to add Burmese pythons and three 

similar species, large constrictor snakes, to the Lacey Act of injurious wildlife. But unfortunately, the Burmese pythons are already—have established a large breeding population in the Everglades. If they could have acted more quickly or sooner, perhaps we 

could have prevented this problem. 

The proposed rule is the agency’s attempt to take a proactive approach, a more prompt approach, to deal with potentially injurious 

species under the Lacey Act. Environmental concerns aside, you 

don’t need to look much further than our neighbor to the north, in 

Canada, where last summer an African python, one of four species 


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listed by the Services last year, escaped from its cage and killed 

two young boys in their sleep. These are pets? 

You know, when public safety and massive damage to the environment are at stake for all, the benefits of taking a precautionary 

approach greatly outweigh the costs incurred by a few. In the case 

of the four constrictor snakes, the loss of estimated sales was between $3 and $7.6 million. But the costs that are going to be borne 

by the taxpayers of the United States will probably ultimately total 

tens or hundreds of millions of dollars to try and eradicate this 

python. 

In the Northwest we have a particular concern about the spread 

of Quagga mussels, and we see this proposed rule as a potential 

tool for taking action to prevent the spread of that by imposing 

more stringent measures and quarantines from areas that are infected. You know, and I look forward to hearing more today about 

how the Service intends to use the categorical exclusion to stop biological invasions. 

You know, I am not totally hostile to the concerns raised by the 

industry folks, and I will propose later, I think, perhaps a way that 

we might deal with some of their concerns but still give this tool 

for potentially injurious wildlife to the agency. 

Dr. FLEMING. The gentleman yields back. And before we begin, 

just to make an announcement, we expect votes probably in about 

15 minutes. So it is our goal to get through our panel of witnesses’ 

testimony. Assuming that we have not had enough time to ask 

questions, we will recess until after the votes, which could take 60 

to 90 minutes, give you plenty of time to load up on coffee and all 

the other goodies here at the Capitol, and then we will return, of 

course, to finish out our panel today. 

We will now hear from our panel of witnesses, which includes 

Mr. David Hoskins, Assistant Director of Fish and Aquatic Conservation, U.S. Fish and Wildlife Service; Mr. Peter Jenkins, Executive Director, Center for Invasive Species Prevention; Mr. Jim 

Maddy, President and CEO, Association of Zoos and Aquariums; 

Mr. Shaun Gehan—sir? 

Mr. GEHAN. Gehan. 

Dr. FLEMING. Gehan. Sorry. In Louisiana we always add an extra 

syllable. So I apologize. 

[Laughter.] 

Dr. FLEMING. Gehan, Attorney, Kelly Drye & Warren, representing the U.S. Association of Reptile Keepers; and Mr. Marshall Meyers, Senior Advisor, Pet Industry Joint Advisory Council. 

Your full written testimony will appear in the hearing record, so 

I ask that you keep your oral statements to 5 minutes, as outlined 

in our invitation letter to you, and under Committee Rule 4(a). 

Our microphones are not automatic. Be sure to turn them on, 

and make sure the tip is close to you. Shift it over, they are moveable. 

To explain our timing lights, they are very simple. You will be 

under a green light for the first 4 of your 5-minute testimony, then 

yellow for the last minute, leading up to red. And we want you to 

conclude your remarks by the time red comes on. 

And remember that your written testimony will be entered into 

the record, even if you don’t complete it today, verbally. 

12 

Mr. Hoskins, you are now recognized for 5 minutes to present 

testimony on behalf of the U.S. Fish and Wildlife Service. 

STATEMENT OF DAVID HOSKINS, ASSISTANT DIRECTOR, FISH 

AND AQUATIC CONSERVATION, U.S. FISH AND WILDLIFE 

SERVICE 

Mr. HOSKINS. Good morning, Chairman Fleming, Ranking Member Sablan, Ranking Member DeFazio, and members of the subcommittee. I am David Hoskins, Assistant Director for Fish and 

Aquatic Conservation for the U.S. Fish and Wildlife Service. Thank 

you for this opportunity to talk to you about the Service’s proposal 

for a categorical exclusion under the National Environmental Policy Act for listing of injurious wildlife under the Lacey Act. 

First crafted in 1900, the injurious provisions of the Lacey Act 

are the Nation’s only legal tool for prohibiting the importation of 

such species. We don’t have to look far to see the adverse impacts 

of injurious wildlife species. For example, the zebra mussel spread 

rapidly from its initial introduction into the United States, clogging 

municipal water supplies and even causing a Great Lakes power 

plant to close after the mussels interfered with its operation and 

damaged its infrastructure. 

Another well-known example are Asian carp. Imported into the 

United States 30 to 40 years ago to keep waste water and agriculture retention ponds clean, silver and bighead carp have overwhelmed the Mississippi River Basin, threatening commercial valuable fisheries in the Mississippi and Ohio Rivers. 

In addition to the harm these and other species can cause to our 

native biodiversity, the cost of addressing the threats from and 

damages caused by invasive species nationwide is now billions of 

dollars each year. Although preventing the introduction and establishment of these species in the wild is clearly the most cost-effective approach, the protracted listing process under the Lacey Act 

can jeopardize our ability to achieve this important goal. 

With the increasing globalization of trade and potential for invasions of harmful species, we believe that we need to begin to take 

modest steps to streamline the listing process to strengthen our 

ability to avoid the environmental and economic harm caused by 

invasive species. 

As part of the listing process under our current procedures for 

complying with the National Environmental Policy Act, the Service 

prepares an environmental assessment to determine whether the 

proposed action would result in a significant effect on the human 

environment requiring the preparation of an environmental impact 

statement. All of the EAs done for injurious wildlife listings under 

the Lacey Act, subsequent to the enactment of NEPA, have found 

no significant impact. 

The Council on Environmental Quality Regulations allow Federal 

agencies to establish categorical exclusions for actions that, under 

normal circumstances, do not have a significant environmental effect, individually or accumulatively. When appropriately established and applied, categorical exclusions serve a beneficial purpose. They allow Federal agencies to expedite the environmental 

review process for proposals that typically do not require more resource-intensive EAs or EISs. 

13 

In July of this year, the Service published a proposal in the Federal Register to establish a categorical exclusion for listings of injurious wildlife under the Lacey Act to streamline the listing process. 

For the reasons set forth in our proposal, we believe that this step 

would not only greatly strengthen the Service’s ability to act more 

quickly to protect the Nation from invasive species, but is readily 

justified, based on CEQ’s own guidance. 

In particular, listings of injurious wildlife maintain the environmental status quo and have a long track record of EAs that have 

consistently resulted in a finding of no significant impact. 

I would like to take this opportunity to also briefly address some 

of the concerns that have been raised about this proposal. 

First, it is important to note that a categorical exclusion does not 

waive the National Environmental Policy Act. Instead, consistent 

with CEQ’s guidance, it simply would give us the flexibility, under 

normal circumstances, to forego preparing an EA. 

In addition, all analyses and assessments required under other 

applicable statutes would continue to be carried out in conformance 

with these laws and regulations. Under the Lacey Act and the Administrative Procedure Act, we are required to explain in our rules 

the basis for our determination that a species qualifies as injurious, 

and the effect that the action is expected to have on the public. In 

addition, the public has the opportunity to comment on a regulatory action. 

In addition, we would continue to comply with the Regulatory 

Flexibility Act and Executive Order 12866. As you know, the Regulatory Flexibility Act requires Federal agencies to analyze the effect 

of their regulatory actions on small entities. And, where the regulatory effect is likely to be ‘‘significant,’’ affecting a ‘‘substantial’’ 

number of these entities, to consider less burdensome alternatives. 

Executive Order 12866 looks at the effect the rule will have on 

the economy, other Federal agencies’ actions, entitlements, grants, 

user fees and loan programs, or if it raises novel, legal, or policy 

issues. We have conducted and will continue to conduct economic 

analyses where appropriate under this executive order. 

In conclusion, I very much value and welcome this opportunity 

to share our views on this important issue, and to hear your concerns on the proposed categorical exclusion. I would be happy to 

answer any questions you may have. 

[The prepared statement of Mr. Hoskins follows:] 

PREPARED STATEMENT OF DAVID HOSKINS, ASSISTANT DIRECTOR FOR FISH AND

AQUATIC CONSERVATION, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE

INTERIOR

Good morning Chairman Fleming, Ranking Member Sablan, and Members of the 

Subcommittee. I am David Hoskins, Assistant Director for Fish and Aquatic Conservation for the U.S. Fish and Wildlife Service (Service), and I welcome this opportunity to testify before you today. 

As you are aware, the Secretary of the Interior has the authority to take regulatory action to list species of wild animals as ‘‘injurious wildlife’’ under 18 U.S.C. 

42, a portion of the Federal statute sometimes called the Lacey Act. The public may 

also petition the Secretary for such a listing. Once listed under this statute, the species may not be transported over state lines or imported into the country without 

a permit. Permits may be granted only for zoological, educational, medical, and scientific purposes, if the Secretary deems that the permit ensures the continued protection of the public interest and health. A violation is a Class B misdemeanor, punVerDate Mar 15 2010 09:15 Oct 20, 2014 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 J:\02 FISHERIES, WILDLIFE\02SE20 1ST SESS\9-20-13 P\82951.TXT DARLEN
14 

1http://anstaskforce.gov/more_impacts.php. 

ishable by no more than 6 months in jail and/or up to a $5,000 fine for an individual, or $10,000 for an organization. 

Before I explain our rationale for seeking a categorical exclusion under the National Environmental Policy Act (NEPA) for adding species as injurious under 18 

U.S.C. 42, I would like to explain the purposes and obligations carried out by the 

Service in the implementation of this statute. The statute was first created by Congress in 1900 to protect United States’ interests from the harmful effects of species 

that are determined to be injurious, including some specific species added by Congress (such as mongooses and bats known as ‘‘flying foxes’’) and ‘‘such other birds 

and animals as the Secretary of the Interior may declare to be injurious to the interests of agriculture or horticulture.’’ In 1960, this was amended (74 Stat. 753) to 

apply the statute’s prohibitions to any species that is ‘‘injurious to human beings, 

to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States.’’ More recently, the zebra mussel (Dreissena 

polymorpha) was added by Congress to the list of injurious wildlife species during 

passage of the Non-Indigenous Aquatic Nuisance Prevention and Control Act of 

1990 (NANPCA) because of its rapid spread from initial introduction to the United 

States and the economic harm it was causing, including causing a Great Lakes 

power plant to close after the mussels interfered with its operation and damaged 

its infrastructure. The Service, therefore, implements 18 U.S.C. 42 in light of the 

purpose expressed in the original Lacey Act and subsequent amendments and the 

context of the Congressional zebra mussel listing to protect United States interests 

from the harm such species can cause to the nation’s economic, environmental, and 

human interests. However, the administrative process for listing injurious wildlife 

can be protracted and complex, reducing its effectiveness in preventing initial importation and introduction of new invasive species into the country. 

THREATS FROM INJURIOUS WILDLIFE SPECIES

Invasive species are among the primary factors that have led to the decline of native fish and wildlife populations in the United States and are among the most significant natural resource management challenges facing the Service. 

Next to loss of habitat, invasive species are considered the greatest threat to native biodiversity. They play a significant role in driving populations of native species 

toward extinction. In fact, invasive species significantly harm the populations of 

about four in ten species listed under the Endangered Species Act (ESA). They are 

also among the most significant of threats to the National Wildlife Refuge System 

(NWRS), where they can destroy habitat, displace wildlife, and significantly alter 

ecosystems. While much of the invasive species burden on the NWRS is created by 

invasive plants that cover approximately 2.4 million acres of NWRS lands, there are 

also at least 4,423 invasive animal populations recorded on NWRS lands. Although 

the NWRS is committed to controlling and eradicating these invasive animals and 

plants, the task is challenging and expensive. Between 2004 and 2012, base funding 

spent on managing invasive species increased from $6 million to $17.2 million. 

Among the best known of invasive species are the zebra mussel, noted above as 

listed as injurious wildlife by congressional action, and the related quagga mussel 

(Dreissena rostriformis bugensis). Both are nonnative, invasive freshwater mollusks 

that negatively affect both the natural environment and human infrastructure. They 

spread rapidly, covering all available surfaces and removing large amounts of organic material from the water column, thus outcompeting and smothering native 

mussel species, including species federally listed as threatened or endangered. The 

mussels also clog municipal and industrial infrastructure that process water, such 

as power generating plants or fresh water supply transport and delivery; they cause 

an estimated $30 million in damage each year to water delivery systems in the 

Great Lakes.1 These species attach quickly to recreational boating and other equipment used in fresh water, and they are then carried from one hydrologic system to 

another. In early 2007, quagga mussels were discovered in the Lake Mead National 

Recreation Area. They have since been found in Arizona, California, other parts of 

Nevada, and all 242 miles of the Colorado River Aqueduct. In January 2008, the 

first populations of zebra mussels were found in the San Justo Reservoir in California and Lake Pueblo in Colorado. 

Another well-known example is the brown tree snake (Boiga irregularis), which 

is a major threat to the biodiversity of the Pacific region. A native of Indonesia, New 

Guinea, the Solomon Islands, and Australia, brown tree snakes arrived on Guam 

sometime during the 1940s or 1950s as stowaways on boats. The snakes have since 

spread across the entire island and have caused or contributed to the extirpation 

15 

2 Chick, J. H., and M. A. Pegg. 2001. Invasive carp in the Mississippi River basin. Science 

292(5525):2250–2251. 3Draft Asian Carp Surveillance Plan for areas outside of the Great Lakes. 2013. 

4Southwick Associates. 2004. Potential economic losses associated with uncontrolled nutria 

populations in Maryland’s portion of the Chesapeake Bay, 17 pp. 

of 17 of Guam’s native terrestrial vertebrates, including fruit bats, lizards, and 9 

of 13 native forest bird species. Insect species that are no longer naturally controlled 

by native birds and lizards on Guam reduce fruit and vegetable production and their 

uncontrolled numbers require greater reliance on pesticides. Brown tree snakes also 

cause millions of dollars in damage to Guam’s infrastructure and economy by climbing power poles and causing power outages. Of major concern is that the brown tree 

snake could be carried to other Pacific Islands (including Hawaii) and subtropical 

regions of the continental United States in cargo. The brown tree snake was listed 

as injurious in the early 1990s. 

While the above examples were accidentally introduced into the United States and 

were not intentionally imported, deliberate importations have played a significant 

role as the origin of invasive species in the United States. Brought into the country 

to meet or create consumer demand, individuals of nonnative species have escaped— 

or been released—into the wild and have established reproducing populations in the 

wild. The United States is a leading import market for live non-native animals. Regardless of whether an invasive species was accidentally brought into the United 

States or intentionally imported, these species are costing the Nation billions of dollars each year in local, State, and Federal tax dollars, loss of private incomes, and 

loss of economic potential. 

One of the most widely known—and among the most dramatic—of nonnative species imported into the United States are the group of fish known collectively as 

Asian carp. These include the silver carp (Hypophthalmichthys molitrix) and bighead carp (Hypophthalmichthys nobilis). Silver and bighead carp were imported into 

the United States 30 to 40 years ago to keep wastewater and aquaculture retention 

ponds clean. Competing with native fish for the same food sources, both carp species 

can quickly overtake native fish in biomass, and they can live for 20 years. They 

now occur in 23 states. The silver carp tends to jump en masse into the air when 

startled, and because they can grow to be 100 pounds, this can present a significant 

physical hazard for recreational boaters and fishermen. These two species have 

overwhelmed the Mississippi River Basin; commercial harvest of bighead carp in the 

Mississippi River Basin, for instance, increased from 5.5 tons to 55 tons between 

1994 and 1997.2 Within the Basin, Asian carps now compose up to a staggering 63 

percent of the fish biomass.3 The commercial value of Asian carp is extremely low 

and much less valuable than the native fish they replaced, and the loss of more 

commercially valuable fish is threatening an industry worth billions of dollars to the 

economies of the States in the region. The geographic range of Asian carp species 

is expanding in the Mississippi River Basin and threatening invasion of the Great 

Lakes. 

As another example, a small number of nutrias (Myocastor coypus) were brought 

to the United States in the 1930s to the Chesapeake Bay and to Louisiana to bolster 

the fur trade. The nutria is a large, aquatic rodent from South America. Animals 

escaped or were released into the wild, and by the early 1990s, the Delmarva Peninsula (Eastern Maryland and Virginia and Delaware) population was estimated to 

exceed 150,000 animals. Although highly vulnerable to very cold winter temperatures, the rodent’s capacity to reproduce allows its populations to quickly rebound 

and grow in milder spring, summer, and fall weather. Nutria eat aquatic plants, 

particularly brackish wetland species that are crucially important for holding wetland soils together to prevent wetland loss to erosion and for providing food for native species in and around the Blackwater National Wildlife Refuge. In 2004, the 

Maryland Department of Natural Resources estimated that economic losses from related wetland damage were $4 million per year. This report also predicted that social losses and the losses associated with the environmental services of these wetlands could reach up to nearly $40 million a year by 2050 if the nutria population 

was not controlled.4 Nutria has since been extirpated on the Refuge, but work to 

eradicate them from the Delmarva Peninsula continues. 

Another example of a commercially imported species that has become established 

in the wild is the Burmese python, which was brought into the country for the pet 

trade. Many pythons have escaped or been released into the Everglades and other 

areas. A population of these snakes is established and breeding now, and the National Park Service reports that over 1,900 have been removed from Everglades National Park and surrounding areas. A study published in 2011 by the National Academy of Sciences links the growth of the Burmese python population in the Park with 

16 

5Dorcas, Michael E., et al. 2011. Severe Mammal declines coincide with proliferation of 

invasive Burmese pythons in Everglades National Park, Proceedings of the National Academy 

of Sciences (December 2011). 

a severe decline in mammals in the Park, including a 98 percent decline in raccoons.5

The ongoing efforts to control established populations of invasive species clearly 

cost much more than would prevention of their introduction. The Lacey Act injurious wildlife provisions provide the only legal instrument the United States can use 

to prohibit importation of such species, but the listing process can be protracted to 

effectively accomplish this. For example, a petition to list certain invasive carp species was received by the Service in October of 2002, but the final listing decision 

did not occur for 5 years. 

THE LISTING PROCESS

Under the injurious wildlife provisions of the Lacey Act, the Secretary of the Interior is authorized to prescribe by regulation those wild mammals, wild birds, fish, 

mollusks, crustaceans, amphibians, and reptiles, and the offspring or eggs of any of 

the aforementioned, that are injurious to human beings, or to the interests of agriculture, horticulture, or forestry, or to the wildlife or wildlife resources of the United 

States. An injurious listing subsequently prohibits importation and interstate transportation of that species. The provisions of the Act regarding injurious species are 

intended to protect human health and welfare and the human and natural environments of the United States by identifying and reducing the threat posed by certain 

nonnative wildlife species. 

I would like to explain briefly how the Service currently lists species as injurious 

and what would change if we obtain the categorical exclusion. The Service currently 

complies with the legal requirements of the Lacey Act, the Administrative Procedure 

Act, the Regulatory Flexibility Act, and other required determinations for all injurious rulemakings and will continue to do so. This includes NEPA. 

The Lacey Act and the Administrative Procedure Act (APA) require that the agency explain in our rules the basis for our determination that a species qualifies as 

injurious and the effect that the action is expected to have on the public. The public 

has the opportunity to comment on the regulatory action. We will continue to 

present our biological assessments and evaluation of each species for injuriousness 

in our rules as part of analyses under the Lacey Act and the APA. 

The Regulatory Flexibility Act is the governing statute that requires Federal 

agencies to analyze the effect of their regulatory actions on small entities (small 

businesses, small non-profit organizations, and small jurisdictions of government) 

and, where the regulatory effect is likely to be ‘‘significant,’’ affecting a ‘‘substantial 

number’’ of these small entities, consider less burdensome alternatives for them. 

The Service will continue to provide the required information under the Regulatory 

Flexibility Act. 

Executive Order 12866 for Regulatory Planning and Review looks at whether the 

rule will have an annual effect of $100 million or more on the economy or adversely 

affect an economic sector, productivity, jobs, the environment, or other units of the 

government; whether the rule will create inconsistencies with other Federal agencies’ actions; whether the rule will materially affect entitlements, grants, user fees, 

loan programs, or the rights and obligations of their recipients; or whether the rule 

raises novel legal or policy issues. We have conducted and will continue to conduct 

economic analyses, where appropriate, under this Executive Order. 

Under our current procedure for complying with NEPA, the Service prepares an 

environmental assessment (EA) for listing species as injurious. The purpose of an 

EA is to determine whether the proposed Federal action would result in a significant effect on the human environment requiring the preparation of an environmental impact statement (EIS). If, after investigating and preparing the EA, the 

agency finds no significant effects on the environment, the agency produces a Finding of No Significant Impact (FONSI). All injurious wildlife listing EAs subsequent 

to the enactment of NEPA have resulted in FONSIs, including the most recent— 

the 2012 listing of the four species of large, constrictor snakes as injurious wildlife. 

THE PROPOSED CATEGORICAL EXCLUSION

The Service is concerned with the length of time our previous listings have taken, 

because that protracted process has often defeated the purpose of the listing. Part 

of that process has been the preparation of EAs. However, the Council on Environmental Quality (CEQ) regulations allow the agency to establish a categorical exclusion and to bypass the completion of an EA or an EIS when undertaking actions 

17 

that a Federal agency identifies that, under normal circumstances, do not have a 

potentially significant environmental impact, either individually or cumulatively (40 

CFR 1507.3(b); 40 CFR 1508.4). When appropriately established and applied, categorical exclusions serve a beneficial purpose. They allow Federal agencies to expedite the environmental review process for proposals that typically do not require 

more resource-intensive EAs or EISs (CEQ 2010). Thus, we are pursuing the categorical exclusion. 

To ensure that a categorical exclusion was appropriate for injurious wildlife listings, the Service first consulted with the Department of the Interior’s Office of Environmental Policy and Compliance, and with CEQ, which administers NEPA implementation. CEQ approved the proposal for publication with notice and comment. 

Thus, the Service published the proposal in the Federal Register on July 1, 2013. 

The action is based on three justifications consistent with CEQ’s guidance for categorical exclusions: (1) maintaining the environmental status quo, meaning the listing action does not cause the condition of the environment to change; (2) history of 

findings of ‘‘no significant impact’’ for injurious listings; and (3) the proposed categorical exclusion would be consistent with existing Service categorical exclusions. 

The Service must obtain CEQ’s final approval after we address the public comments. To address concerns about the public comment period for the proposed categorical exclusion, the Service reopened it for 60 days on August 16, 2013, and comments are now due by October 15. 

The categorical exclusion proposed would apply only to the listing of injurious 

wildlife species, not to any further Federal action taken to prevent introduction or 

control established populations of injurious wildlife species in the United States. 

This proposal is consistent with our ongoing efforts to increase the effectiveness of 

the Lacey Act injurious wildlife provisions to prevent the introduction and establishment of invasive species into new habitats in the United States and to maximize 

efficiency wherever possible in Service procedures. A categorical exclusion would 

give the agency the flexibility to forgo the preparation of an EA when, absent any 

‘‘extraordinary circumstances,’’ listing a species as injurious. The protections of 

NEPA would still apply. The review for using a categorical exclusion for a proposed 

listing would consider whether ‘‘extraordinary circumstances’’ particular to the proposed listing, would merit additional environmental review. In the Department of 

the Interior’s Manual (Environmental Quality Program Series, Part 516, Chapter 8- 

Managing the NEPA Process, U.S. Fish and Wildlife Service) is a section including 

the categorical exclusions that are currently in place and that may be used under 

appropriate circumstances. 

CONCLUSION

In conclusion, the proposed categorical exclusion is consistent with NEPA and 

CEQ’s regulations and guidance for complying with NEPA. With the categorical exclusion, the agency would have the flexibility to forgo preparing an EA. All analyses 

and assessments required under the Lacey Act and other applicable statutes would 

continue to be carried out for each proposed injurious wildlife listing. 

With the increasing globalization of trade and potential for invasions of harmful 

species, the Federal Government needs to create more efficient procedures, to 

strengthen the Service’s ability to protect the nation’s interests from harm caused 

by invasive species. This one step of obtaining a categorical exclusion would greatly 

strengthen the Service’s ability to act quickly yet intelligently to protect the Nation 

from invasive species. 

Dr. FLEMING. Thank you, Mr. Hoskins. 

Mr. Jenkins, you are recognized for 5 minutes. 

STATEMENT OF PETER JENKINS, EXECUTIVE DIRECTOR, 

CENTER FOR INVASIVE SPECIES PREVENTION 

Mr. JENKINS. Thank you, Mr. Chairman. Chairman Fleming, 

Ranking Member Sablan, members of the subcommittee, thank you 

for the opportunity to speak today. 

Speaking as a consultant working through my firm, The Center 

for Invasive Species Prevention, I advise the National Environmental Coalition on invasive species, or NECIS. NECIS works to 

improve Federal policy on invasive species. It includes the National 

18 

Wildlife Federation, the Nature Conservancy, the Wildlife Society, 

and many other groups. With the short notice for the hearing, my 

testimony is not official NECIS testimony, but the positions I am 

going to talk about are directly from the NECIS comment we submitted on the categorical exclusion proposal, which I wrote. 

I have 23 years of experience on invasive species issues as a policy analyst, attorney, advocate, consultant, author, and speaker. On 

NEPA itself, the bedrock of our environmental laws, I worked for 

the Fish and Wildlife Service Region 2 for 5 years as a NEPA compliance consultant. I have trained law students as adjunct law professor and Federal officials in NEPA compliance. 

Before getting into the categorical exclusion, though, let me talk 

about one question in your hearing invitation that goes beyond 

NEPA. In the hearing invitation it asks, ‘‘Do I expect the agency 

to use the categorical exclusion for the hundreds of amphibian species proposed for listing in 2009?’’ 

First, that question is just wrong on its facts. I wrote that 2009 

Defenders of Wildlife petition on amphibians, and it does not propose to list hundreds of species as injurious. The background of 

that petition is that a deadly disease carried in trade, the chytrid 

fungus, is wiping out amphibians worldwide, including in the 

United States. In 2008, the World Organization for Animal Health, 

or OIE, recommended measures to reduce the risk of chytrid in the 

trade. 

That OIE standard was written with input by USDA Veterinary 

Services experts, and then it was adopted in 2008 by unanimous 

vote of the OIE parties. The Defenders of Wildlife petition to Service was simply that the agency adopt that OIE standard into an enforceable trade regulation. The proposal and the petition was not 

to list all amphibians as injurious. It would only regulate particular 

amphibian shipments as injurious if they do not comply with that 

OIE standard. Shipments that do comply and don’t pose a risk of 

carrying chytrid into the country would not be regulated as injurious. 

The Service took a very similar disease prevention listing approach for all salmonid imports under the Lacey Act, and it has 

worked, largely to protect our native salmon and trout from imported diseases. 

Now, on to the categorical exclusion, or what practitioners call a 

CATEX. It will save wasted time and resources preparing unnecessary environmental assessments which, in the past, have never 

found a significant harmful impact from any injurious species listing—going back to 1982. 

While my client environmental groups, the ones I mentioned, 

generally don’t like CATEXs, they disfavor CATEXs generally in 

many contexts, here it makes sense and our group strongly supports it. Prohibiting an injurious species is a positive environmental benefit, by definition. Thus, preparing a NEPA EA is redundant and unneeded. Foregoing that step will help speed up listings of harmful, non-native animals. 

The United States currently has one of the developed world’s 

slowest and most expensive systems for regulating imports of injurious animals. It is widely recognized as inadequate to address the 

risks of the trade. We need to speed it up. It is taking 4 years, on 

19 

average, for one regulatory listing. Proposed CATEX is a very small 

step to help remedy this. 

Now, some of the business interests here today are going to allege that CATEX might weaken the economic analysis the Service 

conducts. But we have just heard that that is not the case. NEPA 

EAs do not address pure economic impacts; they only address economic effects that flow from a tangible environmental impact. And, 

as we have heard, there are no tangible environmental impacts 

from doing these regulatory actions in the United States. 

Further, the CATEX in no way reduces the Service’s obligation 

to assess economic effects of the proposals under other laws, primarily the Regulatory Flexibility Act. Any business here that is 

concerned about economic effects can rely on those other acts and 

executive orders, and make sure that their economic concerns are 

addressed. 

The bottom line is that our Nation, as a whole, is losing—we are 

losing—economic benefits by allowing thousands of non-native species—harmful non-native species, in some cases, to be imported 

that haven’t gone through any risk assessment at all, which is generally the case. Speeding the process up and letting the Service do 

more risk assessment for imports will provide our Nation more, not 

fewer, economic benefits. That is what this is about. 

Chairman Fleming, I recall the field hearing that you had 2 

years ago in your Louisiana district on the invasive species. There 

your focus was Caddo Lake and its severe infestation by imported 

giant salvinia—that is a plant. If the United States had a more efficient and effective risk assessment process in place for plant imports, that invasion might have been prevented. 

We need a better, faster system on the animal side, too, to protect your district and the rest of the Nation from further invasions. 

We don’t need an agency that is further bogged down in red tape, 

which is what we have now. Thanks very much. 

[The prepared statement of Mr. Jenkins follows:] 

PREPARED STATEMENT OF PETER JENKINS, EXECUTIVE DIRECTOR, CENTER FOR

INVASIVE SPECIES PREVENTION

Chairman Fleming, Ranking Member Sablan, members of the Subcommittee, 

thank you for the opportunity to testify on The Department of the Interior’s proposal 

to use a Categorical Exclusion under the National Environmental Policy Act (NEPA) 

for adding species to the Lacey Act’s list of injurious wildlife. 

I am testifying as an independent consultant. My work in this area is through 

my firm the Center for Invasive Species Prevention, and I advise the National Environmental Coalition on Invasive Species (NECIS). NECIS is a coalition of groups 

concerned about invasive species and Federal policy. It includes the National Wildlife Federation (NWF), The Nature Conservancy, The Wildlife Society and many 

other groups. Given the short notice for me being a witness, my full testimony has 

not been approved as NECIS testimony, but the positions I will advocate are directly from the NECIS comment on the Categorical Exclusion Proposal, which I 

drafted. 

A bit on my background: I have 23 years of experience, both national and international, in invasive species as a policy analyst, attorney, advocate, lobbyist, consultant, manager, author and speaker. I have been invited to speak at conferences 

around the world on invasive species policy and management and testified three 

times before to this Sub or Full Committee on the topic—once back in 1993 and 

again in 2008 and 2012. I have approximately 15 publications addressing multiple 

aspects of invasive species, including having written the chapter on the ‘‘Pet Trade’’ 

in the comprehensive Encyclopedia of Biological Invasions, published in 2011 by the 

University of California Press. My most recent paper is in Biological Invasions, entiVerDate Mar 15 2010 09:15 Oct 20, 2014 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 J:\02 FISHERIES, WILDLIFE\02SE20 1ST SESS\9-20-13 P\82951.TXT DARLEN
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1 Jenkins PT (2012) Invasive animals and wildlife pathogens in the United States: the economic case for more risk assessments and regulation. Biol. Invasions DOI: 10.1007/s10530–012– 

0296–8. 

tled ‘‘Invasive animals and wildlife pathogens in the United States: the economic 

case for more risk assessments and regulation.’’ 

On NEPA, I worked for the U.S. Fish and Wildlife Service, Region 2, in Albuquerque for 5 years as a NEPA compliance consultant. I have trained both law students (as an Adjunct Professor) and Federal officials in NEPA compliance. I am very 

familiar with this law as a practicing environmental lawyer. 

Before getting into the Categorical Exclusion issue, let me talk about two subjects 

the Hearing Notice focuses on that go beyond NEPA. 

(1) Why the completion of Economic assessments has become such a burden to the U.S. Fish and Wildlife Service? They are a burden but the Categorical Exclusion has very little to do with Economic assessments and will not change 

the Service’s obligation to do them. They are a burden as they require detailed economic analysis in some cases and the Service lacks the staff and funding to pay for 

them so they can take many years. 

(2) Do I expect the agency to use a Categorical Exclusion for the hundreds of amphibian species that were proposed for listing in 2009? First, 

that question is wrong in its facts. I wrote the 2009 Defenders of Wildlife petition 

on amphibians and it simply does not propose to list hundreds of species of amphibians. That must be from some ill-informed blog or other source that has not read 

the Petition. 

The background to that listing Petition is that a deadly disease carried in trade, 

the Chytrid fungus, is wiping out amphibians worldwide, including in the United 

States. In about 2006–2008, the World Organization for Animal Health (OIE) developed recommended measures to reduce the risk of chytrid in trade. That OIE standard was developed with extensive input by USDA Veterinary Services experts. It 

was adopted in 2008 unanimously by an OIE vote—consisting of delegates from virtually the entire world. The Defenders of Wildlife Petition to the Fish and Wildlife 

Service was very simply that the agency adopt that OIE standard into an enforceable trade regulation—as it is not an enforceable standard unless countries adopt 

it into law. Unfortunately, U.S. law on wildlife diseases is very sparse—the Lacey 

Act is it. In any event, the proposal in the Petition is not to list all amphibians as 

injurious. It would only list particular amphibian shipments as injurious if they do 

not comply with the unanimously supported OIE standard. Shipments that comply 

and do not pose significant risk of carrying dangerous chytrid pathogens into the 

country would not be injurious, regardless of the species. The Service took exactly 

the same listing approach for all salmonid imports under the Lacey Act and it has 

worked—and people don’t go around nonsensically saying that hundreds of salmon 

and trout species are listed as ‘‘injurious’’ because of that Lacey disease standard. 

I would urge this subcommittee to look at this issue more closely and consider 

adopting a better law aimed specifically at preventing wildlife disease, as the Lacey 

Act is not the ideal law for that, but right now it is what we have. A great start 

is in Section 10 of H.R. 996, the Invasive Fish and Wildlife Prevention Act, that is 

right now in this subcommittee’s jurisdiction. It was introduced by Mrs. Slaughter 

of New York and has 30 co-sponsors. The NECIS groups strongly support it and 

urge a hearing on it as soon as possible. 

Now, on the Categorical Exclusion, or what NEPA practitioners call a ‘‘CatEx’’; it 

will save wasted time and resources preparing unnecessary environmental assessments (EAs), which in the past have never found a significant impact from any nonnative injurious species listing regulation, going back to 1982 when NEPA implementation began for this program. While my client environmental groups general 

disfavor CatEx’s, in this case it makes sense. Prohibiting an injurious species is a 

positive environmental benefit, virtually by definition. Thus, preparing a NEPA EA 

is redundant. Avoiding that administrative step will help speed up listings. 

This is consistent with NECIS policy positions urging the Service to do swifter 

injurious species listings. We do note that the Service’s proposal correctly points out 

that the CatEx for listing a species does not apply to a possible later Federal management or control action for the listed species. In short, a Lacey Act injurious species listing does not compel or mandate any later Federal management or on-theground control actions for the species. 

The United States currently has one of the developed world’s slowest and costliest 

known systems for regulating imports of non-native injurious animals.1 It has been 

criticized as too reactive and inadequate to address the ongoing invasion and disease risks of the globalized live wild animal trade, taking an average of 4 years to 

21 

2Fowler AJ, Lodge DM, Hsia J (2007) Failure of the Lacey Act to protect U.S. ecosystems 

against animal invasions. Front. Ecol. Environ. 5:353–359. 3 Chapter 6, and section 804, of Title 5, United States Code. 

4Springborn M, Romagosa CM, Keller RP (2011) The value of nonindigenous species risk assessment in international trade. Ecol. Econ. 70:2145–2153. 5Keller RP, Lodge DM, Finnoff DC (2007) Risk assessment for invasive species produces net 

bioeconomic benefits. Proc. Nat. Acad. Sci. 104:203–207. 

achieve one regulatory listing over recent decades.2 The proposed CatEx is a small, 

needed step to partially remedy this. 

Some comments from business interests allege that adoption of the CatEx might 

weaken the economic analysis that the Service conducts for proposed listings. That 

will not be the case. EAs under NEPA do not analyze purely economic effects, only 

economic effects that flow from environmental impacts. As it is very unlikely that 

there will be any environmental impacts from the listing of injurious non-native species, there will be no need to analyze resulting economic effects in a NEPA EA. Further, the CatEx does not in any way reduce the Service’s obligation to assess economic effects of its listing proposals under other laws, primarily the Regulatory 

Flexibility Act.3 Any business concerned about economic effects can rely on that Act 

and need not rely on future NEPA EAs. 

In fact, the economic arguments cut strongly in favor of speeding up the listing 

process, rather than keeping it in its slow status quo. A recent study reported in 

Ecological Economics, using years of United States data on amphibian and reptile 

imports, demonstrated how doing pre-import risk assessments for that segment of 

the trade can ‘‘pay off’’ in reduced costs for the nation.4 The study estimated the 

long-term expected net benefits from using a risk screening system range from 

roughly $54,000 to $141,000 for each species assessed, including both those species 

found to be harmful and non-harmful, assuming typical import and impact scenarios. While based on amphibian and reptile imports, the authors indicated that 

similar benefits likely apply to risk screening for birds, mammals and other groups. 

Their findings are consistent with findings from Australia documenting that pre-import risk assessments for the plant trade are cost-beneficial for that nation.5

The bottom line is our nation is losing potential economic benefits by allowing 

novel non-native animal species to be imported that have not gone through any risk 

assessment, as is overwhelmingly the case now. Speeding up the process and doing 

more risk assessments for such imports will provide more, not fewer, economic benefits for our country. 

While the Service has properly observed in its proposal that it has never found 

a ‘‘significant’’ impact in three decades of doing NEPA EAs for listing proposals, 

nevertheless I concur with the Service that it is appropriate to allow for EAs to be 

prepared in ‘‘extraordinary circumstances’’ under long-standing Department of the 

Interior NEPA policies (50 CFR 46.215). Such extraordinary circumstances that 

would justify overriding the CatEx and conducting an EA or full EIS are hypothetical at this point, but it is not inconceivable that such circumstances could arise. 

In sum, I applaud the care and foresight the Service has applied in this proposal 

and urge its swift adoption as an Interior NEPA policy. 

Dr. FLEMING. I thank you, Mr. Jenkins. 

Mr. Maddy, you are now recognized for 5 minutes to present your 

testimony on behalf of the 222 accredited members of the Association of Zoos and Aquariums who contribute $160 million a year to 

wildlife conservation. 

STATEMENT OF JIM MADDY, PRESIDENT AND CEO, 

ASSOCIATION OF ZOOS AND AQUARIUMS 

Mr. MADDY. Thank you, Chairman Fleming and Ranking Member Sablan, for the opportunity to testify before the subcommittee 

regarding the Department of the Interior’s proposal to allow a categorical exclusion under NEPA for adding species to the Lacey 

Act’s list of injurious wildlife. My name is Jim Maddy, I am the 

President and CEO of the Association of Zoos and Aquariums. 

As you just mentioned in part, our 222 accredited zoos and 

aquariums annually see more than 182 million visitors. They colVerDate Mar 15 2010 09:15 Oct 20, 2014 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 J:\02 FISHERIES, WILDLIFE\02SE20 1ST SESS\9-20-13 P\82951.TXT DARLEN
22 

lectively generate more than 20 billion in economic activity, and 

support more than 200,000 jobs. AZA-accredited institutions support more than 1,000 field conservation and research projects at 

the level of approximately $160 million annually, as the Chairman 

just mentioned. 

In the last 10 years, accredited zoos and aquariums formally 

trained more than 400,000 teachers. School field trips and programs connect more than 15 million students with the natural 

world every year, just in our institutions. 

AZA and its member institutions work in concert with Congress, 

the Federal agencies, conservation organizations, the private sector, and the public, to conserve our wildlife heritage. In particular, 

we have the longstanding partnership with the U.S. Fish and Wildlife Service. 

Our collaborative efforts have focused on engaging in endangered 

species recovery and reintroduction—for example, black-footed ferrets, the California condor, the Mexican and red wolves and whooping cranes, and many other species. Our collaborative efforts with 

the Fish and Wildlife Service are also dedicated to serving multinational species conservation funds and State wildlife grants. And 

we collaborate with the agency on partnership involving wildlife 

refuges, migratory birds, freshwater fisheries, illegal wildlife trade, 

amphibians, and invasive species. 

The issue of injurious wildlife listing under the Lacey Act is of 

concern to many of our member institutions, especially those who 

regularly transport certain wildlife species for education and conservation purposes. Our accredited zoos and aquariums cannot fulfill their important mission of conservation, education, outreach, 

public display, and science without living animals. Responsible 

management of living animal populations necessitates that some 

individuals be acquired and others be removed from collection at 

certain times for the purposes of genetic and geographic diversity. 

The ability to effectively and efficiently transport animals is critical 

to the success of national and international efforts to conserve and 

maintain animal species and to educate the public on the plight of 

threatened and endangered species. 

In the case of AZA-accredited zoos and aquariums, the movement 

of animals between these member institutions, between these institutions and other international zoological parks and aquariums 

worldwide, and from countries around the world into our institutions, would be negatively impacted without the timely transport of 

live animals. Any additional permit restrictions or regulations 

which could arise from a significant increase in injurious wildlife 

listings would greatly hamper our members’ ability to engage in 

these critical animal movements. 

So, we believe that when adding species to the list of injurious 

wildlife, all avenues for public comment must be made available. 

This is especially true in this case, since objective injurious wildlife 

listing criteria are not readily available. 

AZA and its member institutions take the issue of invasive species very seriously. And 10 years ago, our board of directors adopted a policy on non-native invasive species, which encourages our 

members to partner with Federal, State, and local agencies to esVerDate Mar 15 2010 09:15 Oct 20, 2014 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 J:\02 FISHERIES, WILDLIFE\02SE20 1ST SESS\9-20-13 P\82951.TXT DARLEN
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tablish policies that regulate the acquisition, ownership, and disposition of non-native, potentially invasive organisms. 

As part of our rigorous accreditation standards, we require that 

animal transportation must include plans for any emergencies and 

contingencies that may occur. This requirement includes ensuring 

an adequate number of appropriately trained personnel to handle 

the transport, and the standards also require that all animal exhibits and holding areas must be secure to prevent the unintended 

animal egress, and they require the implementation of risk management plans. 

The strict standards required by AZA accreditation and the 

strong commitment by zoo and aquarium professionals to the safety 

of animals and the public means that accredited zoos and aquariums have not been responsible for the introduction and spread of 

injurious wildlife into the United States. Unfortunately, some injurious wildlife listings, without the proper vetting and opportunity 

for public notice and comment, could have a deleterious effect on 

our ability to build and sustain zoological collections. A categorical 

exclusion for adding species to the Lacey Act’s list of injurious wildlife would potentially eliminate valuable NEPA procedures that 

help to ensure that Federal rules do not result in undue and unreasonable financial or permitting burdens on these accredited zoos 

and aquariums. 

With that, I conclude my remarks. Happy to take questions. And, 

again, I thank you for the invitation to appear. 

[The prepared statement of Mr. Maddy follows:] 

PREPARED STATEMENT OF JIM MADDY, PRESIDENT & CEO, ASSOCIATION OF ZOOS

AND AQUARIUMS

Thank you Chairman Fleming and Ranking Member Sablan for the opportunity 

to testify before the Subcommittee regarding the Department of the Interior’s proposal to allow a Categorical Exclusion under the National Environmental Policy Act 

(NEPA) for adding species to the Lacey Act’s list of injurious wildlife. 

My name is Jim Maddy and I am the President and CEO of the Association of 

Zoos and Aquariums (AZA). AZA’s 222 accredited zoos and aquariums annually see 

more than 182 million visitors, collectively generate more than $21 billion in annual 

economic activity, and support more than 204,000 jobs across the country. Over the 

last 5 years, AZA-accredited institutions supported more than 1,000 field conservation and research projects with $160,000,000 annually in more than 100 countries. 

In the last 10 years, accredited zoos and aquariums formally trained more than 

400,000 teachers, supporting science curricula with effective teaching materials and 

hands-on opportunities. School field trips and programs annually connect more than 

15,000,000 students with the natural world. This is very important as a recent National Research Council study found that people learn as much as 90 percent of 

their science in informal settings such as AZA-accredited zoos and aquariums. 

AZA and its member institutions work in concert with Congress, the Federal 

agencies, conservation organizations, the private sector and the general public to 

conserve our wildlife heritage. In particular, AZA and its member institutions have 

a long-standing partnership with the U.S. Fish and Wildlife Service. Our collaborative efforts have focused on: 

• Engaging in endangered species recovery and reintroduction (For example: 

black-footed ferrets, California condor, Mexican and red wolves, whooping 

cranes); 

• Supporting multinational species conservation funds and state wildlife grants; 

and 

• Collaborating on partnership opportunities involving wildlife refuges, migratory birds, freshwater fisheries, illegal wildlife trade, amphibians and 

invasive species. 

The issue of injurious wildlife listings under the Lacey Act is of concern to many 

of our member institutions, especially those which regularly transport certain wildVerDate Mar 15 2010 09:15 Oct 20, 2014 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 J:\02 FISHERIES, WILDLIFE\02SE20 1ST SESS\9-20-13 P\82951.TXT DARLEN
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life species for educational and conservation purposes. AZA accredited zoological 

parks and aquariums cannot fulfill their important missions of conservation, education, outreach, public display and science without living animals. Responsible 

management of living animal populations necessitates that some individuals be acquired and that others be removed from the collection at certain times for the purposes of genetic and geographic diversity. The ability to effectively and efficiently 

transport animals is critical to the success of national and international efforts to 

conserve and maintain animal species and to educate the general public on the 

plight of threatened and endangered species. In the case of AZA accredited zoos and 

aquariums, the movement of animals between these member institutions, between 

these institutions and other international zoological parks and aquariums worldwide, and from native habitats and countries around the world into our institutions 

would be negatively impacted without the timely transport of live animals. Any additional permit restrictions or regulations which could arise from a significant increase in injurious wildlife listings could greatly hamper our members’ ability to engage in these critical animal movements. Thus, AZA believes that when adding species to the list of injurious wildlife, all avenues for public comments must be made 

available. This is especially true in this case since objective injurious wildlife listing 

criteria are not readily available. 

AZA and its member institutions take the issue of invasive species very seriously. 

In 2003 the AZA Board of Directors adopted a policy on non-native invasive species 

which: 

• Encourages AZA members to make every effort to ensure that their animal 

and plant collections and management practices do not become the source of 

non-native species introductions; • Urges zoo and aquarium horticulturalists to be cognizant of invasive species 

concerns when working with non-native ornamental or browse plants; • Encourages AZA members to partner with Federal, state, and local agencies 

to establish policies that regulate the acquisition, ownership, and disposition 

of non-native, potentially invasive organisms; • Encourages AZA members who travel overseas to follow all relevant government regulations regarding the transportation of biological materials; • Encourages AZA members to educate the public and key decisionmakers 

about the deleterious impacts associated with species introductions; and • Reminds AZA members to consult the IUCN Guidelines for the Prevention of 

Biodiversity Loss Caused by Alien Invasive Species. 

As part of our rigorous accreditation standards, the AZA requires that animal 

transportation must include plans for any emergencies and contingencies that may 

occur. This requirement includes ensuring an adequate number of appropriately 

trained personnel to handle the transport. The standards also require that all animal exhibits and holding areas must be secured to prevent unintentional animal 

egress, and they require the implementation of risk management plans. 

The strict standards required by AZA accreditation and the strong commitment by 

zoo and aquarium professionals to the safety of animals and the public means that 

accredited zoos and aquariums have not been responsible for the introduction and 

spread of injurious wildlife into the United States. Unfortunately, some injurious 

wildlife listings, without the proper vetting and opportunity for public notice and 

comment, could have a deleterious effect on our ability to build and sustain zoological collections. 

A categorical exclusion for adding species to the Lacey Act’s list of injurious wildlife would potentially eliminate valuable NEPA procedures that help to ensure that 

Federal rules do not result in undue and unreasonable financial or permitting burdens on AZA-accredited institutions. Without critical reviews, assessments, and opportunities for public comment under the current Federal framework, we are concerned that the Department would be free to declare certain species as injurious 

without factoring in the significant impact such a listing would place on institutions 

like AZA-accredited zoos and aquariums. 

For example, in our comments on the previous USFWS proposed rule to list nine 

species of constrictor snakes as injurious under the Lacey Act, AZA provided an example of how such a listing could impact our members. Clyde Peeling’s Reptiland, 

an AZA-accredited zoological park in Pennsylvania, operates a permanent zoological 

facility and designs, builds, and manages a fleet of educational exhibitions that are 

hosted by zoos, natural history museums, and science centers throughout North 

America. These exhibitions include pythons, boas, and other live animals under the 

care of the zoo’s professional staff. Reptiland also conducts wildlife lecture programs 

(all of which include large boas and pythons) for organizations nationwide. If all of 

the proposed nine species of constrictor snakes were listed as injurious under the 

25 

Lacey Act, it would dramatically affect Reptiland’s ability to conduct offsite exhibitions and lectures, which account for fully two-thirds of its revenue and one-third 

of its staff. 

And while it may be possible for institutions to get injurious wildlife permits 

under the Lacey Act for zoological purposes, theoretically a separate permit would 

be required for each interstate or international move (and Reptiland makes 50 or 

more interstate moves each year). Federal wildlife permits are often slow in being 

issued due to budget and staffing constraints at the USFWS’s Division of Management Authority and the Division of Scientific Authority—AZA institutions have 

waited as much as nine months—and the process is cumbersome. Even if permits 

took as little as 3 months to issue, contracting with schools or natural history museums to provide date-certain exhibitions or lectures would be a practical impossibility. Very often exhibition and lecture contracts are made with little lead time. 

I commend the USFWS for working collaboratively with AZA staff and AZA members to develop and implement a blanket permit protocol to allow AZA institutions 

to make multiple interstate movements of listed snakes in a timely manner. AZA 

appreciates the willingness of the Service to work with us on this common-sense solution. 

In closing, we view ourselves as critical partners with the Department and the 

Service for playing a vital role in delivering their key messages and educational programs to more than 182,000,000 zoo and aquarium visitors. Any long-term solution 

to invasive species depends on responsible, educated citizens. Connecting people 

with wildlife and environmental issues is what zoos and aquariums do best. We do 

not believe that a categorical exclusion under NEPA for the future listing of injurious wildlife will help to accomplish this objective. Rather, we believe that we 

should work with USFWS to make the injurious wildlife listing process more efficient, more effective and more reflective of the current budget, staffing, economic 

and environmental realities both for invasive species that are already in this country and those that have not been introduced. 

Thank you for the opportunity to testify on this important matter, and I would 

be happy to answer any questions that you may have. 

Dr. FLEMING. Thank you, Mr. Maddy. 

Mr. Gehan, you are now recognized for 5 minutes to present testimony on behalf of the United States Association of Reptile Keepers. 

STATEMENT OF SHAUN M. GEHAN, ATTORNEY, KELLEY DRYE 

& WARREN, REPRESENTING U.S. ASSOCIATION OF REPTILE 

KEEPERS 

Mr. GEHAN. Mr. Chairman, Ranking Member, members of the 

committee, thank you very much for this opportunity to appear. My 

name is Shaun Gehan, testifying on behalf of the United States Association of Reptile Keepers, a trade association representing 

breeders, conservationists, researchers, hobbyists, academics, and 

pet owners, as well as the reptile industry’s many business sectors. 

The hearing addresses the Fish and Wildlife Service’s proposal to 

exclude itself from NEPA’s most minimal obligations when listing 

animals that it, in its sole and unchallengeable discretion, decides 

are injurious. Due to the specter of expedited future listings, the 

proposal alone has stalled growth in this interstate commerce-dependent industry. 

The proposed exclusion guts the Lacey Act of the only meaningful tool the public has for holding FWS accountable for its listing 

decisions. It seems hardly a coincidence that the Service made this 

proposal only 3 months after USARK informed Director Ashe of 

several NEPA violations committed in listing four species of constricting snakes as injurious. After all, as the Chairman mentioned, 

NEPA has been on the books for over 40 years, and the agency alVerDate Mar 15 2010 09:15 Oct 20, 2014 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6602 J:\02 FISHERIES, WILDLIFE\02SE20 1ST SESS\9-20-13 P\82951.TXT DARLEN
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ready has available a categorical exclusion which it can and has 

used. 

The Lacey Act has none of the requirements or protections more 

modern laws provide. For example, the Endangered Species and 

Magnuson-Stevens Acts each provide multiple opportunities for 

public input, and require rigorous analysis using the best science 

to justify decisions made. Each requires at least some consideration 

of economic impacts on all affected parties. 

Lacey merely requires that an injurious finding be implemented 

by regulation. All this means is that a notice of the proposed listing 

containing virtually any justification, from the Secretary’s not-unreasonable belief to un-verified statements in a listing petition be 

published, and that the public be given an opportunity to comment. 

The Regulatory Flexibility Act applies, but only requires analysis 

of impacts on small entities. 

As in the case of the constricting snake rule, so long as the Service recognizes some reasonably likely impacts, it prepares a final 

regulatory flexibility analysis, the RFA imposes no other duties. 

There are also many excellent executive orders, but they are 

policed only by the administration in power. They create no rights 

the public can enforce. NEPA is the only law that provides additional opportunities for public input, and forces the Service to explain its decision in terms of relevant science, to lay out a case for 

why listing will have environmental benefits, and explain the 

harms it may avert. Above all, NEPA allows the public to hold the 

Service accountable in court if it ignores science, relevant information, or public comment. In short, NEPA is the only law that even 

partially fills Lacey Act’s gaps. 

And just because the Service may find that a listing has no significant impact on the human environment does not mean the process has no value. As USARK’s experience with the snake rule 

shows, it does. This was the first-ever listing of a species longpresent in the United States, held as pet, and part of a small, vibrant, national industry. 

The proposal was based on a single report that generated years 

of controversy and peer reviewed in literature. Empirical studies 

cast doubt on the rule’s central premise, that these snakes could 

invade and colonize up to a third of the Continental United States, 

a discredited finding that applied to only one of the nine species, 

the Burmese python, proposed to be listed. 

NEPA requires, where Lacey does not, that these issues be addressed. The environmental assessment must discuss controversies, 

contrary science, and all relevant information brought to the agency’s attention. Courts call this the ‘‘hard look.’’ In the snake world, 

as USARK amply demonstrated in its letter to Director Ashe, submitted for the record, the Service looked the other way, failing to 

address the public’s and even other public officials at the State and 

Federal level environmental concerns, a shocking ambition, given 

NEPA’s purpose. 

With a categorical exclusion, none of these issues would even be 

relevant. However, because one was prepared for the proposed 

snake listing, it has become obvious that the Service should, in 

fact, have found the listing would cause significant impacts on the 

human environment, and thus prepared an EIS. 

27 

Moreover, as the Fish and Wildlife Service prepared a wholly inadequate EA, USARK and others had the opportunity to seek redress for its failure to fully engage relevant issues and respond to 

legitimate concerns. Lacey gives a handful of public officials an 

awesome amount of power. 

In our case, a long-established industry has been jeopardized on 

a theory proven false by the facts. More American jobs, more liberties, will be lost as the Service increasingly uses Lacey to list 

other animals that are widely held and in commerce. Such power 

should be accompanied by some minimal level of accountability. 

Lacey is a blunt instrument, offering only one solution. Until replaced by a more refined system, the Service proposal moves the 

law in exactly the wrong direction. 

[The prepared statement of Mr. Gehan follows:] 

PREPARED STATEMENT OF SHAUN M. GEHAN, ATTORNEY, KELLEY DRYE & WARREN, 

REPRESENTING U.S. ASSOCIATION OF REPTILE KEEPERS

Chairman Fleming, Ranking Member Sablan, Members of the Subcommittee, 

thank you very much for this opportunity to testify on the U.S. Fish and Wildlife 

Service’s (‘‘FWS’’ or ‘‘Service’’) proposed ‘‘categorical exclusion’’ under the National 

Environmental Policy Act (‘‘NEPA’’) for the Service’s decisions to designate nonnative species as ‘‘injurious’’ under the Lacey Act, 18 U.S.C. § 42. 

My testimony is presented on behalf of the United States Association of Reptile 

Keepers (‘‘USARK’’), a trade association representing all segments of this industry, 

including its reptile breeding, retail, transportation, equipment manufacture, trade 

show promotion, medical supply, herpetological veterinary, hobbyists, and wholesale 

sectors, as well as pet owners, conservationists, researchers, and academics. 

I am an attorney with the Washington, DC office of Kelley Drye & Warren LLP 

and have served as legal counsel and advisor to USARK for over 5 years. My expertise is in natural resources, environmental, and administrative law, with particular 

focus on issues relevant to this Subcommittee, including, among others, the Lacey 

Act, Magnuson-Stevens Fishery Conservation and Management Act, the Endangered 

Species Act (‘‘ESA’’), NEPA. 

I. SUMMARY OF COMMENTS

USARK believes the Service’s proposal for a categorical exclusion for its Lacey Act 

listings is unjustifiable and wholly unnecessary. There may be instances when employment of a categorical exclusion is warranted, particularly for species not in 

trade or not currently present in the United States. In such circumstances, however, 

the Department of Interior already has an appropriate categorical exclusion of 

which the Service has availed itself in past listing decisions. For most listings, however, NEPA provides for both public participation and rigorous scientific assessment, elements that are currently otherwise lacking in the law. 

The Lacey Act invests the Secretary of Interior with discretion, delegated to FWS, 

to declare species of wildlife ‘‘to be injurious to human beings, to the interests of 

agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the 

United States.’’ 18 U.S.C. § 46(a)(1). The law is unique among this Nation’s conservation laws in that it provides neither standards, such as a ‘‘best science’’ requirement, nor procedural requirements to which the Service must adhere in making such decisions. The only prerequisite is that the listing be done ‘‘by regulation,’’ 

which assures only the provision of notice-and-comment rulemaking and a minimally sufficient explanation of the basis of the decision. 

It is important to understand why Administrative Procedure Act (‘‘APA’’) processes alone are not adequate to protect the public interest. A determination that a 

species is ‘‘injurious’’ under the Lacey Act involves judgment by agency experts involving determinations both technical and scientific. Congress has vested the authority to make such determinations in the Secretary, while providing no criteria 

to guide her decisionmaking. Under such circumstances, the agency is given the utmost deference by courts. In fact, so long as some rationale is presented, it is unlikely a listing decision could ever be successfully challenged. 

This makes FWS’ continued adherence to NEPA essential. Years of judicial interpretation have established a clear framework for agencies to follow in making regulatory decisions. For example, it must evaluate the opinions of the public and outVerDate Mar 15 2010 09:15 Oct 20, 2014 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 J:\02 FISHERIES, WILDLIFE\02SE20 1ST SESS\9-20-13 P\82951.TXT DARLEN
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1See 75 Fed. Reg. 11808 (March 12, 2010) (proposed rule); 77 Fed. Reg. 3330 (Jan. 23, 2012) 

(final rule listing four of the nine species as injurious). 

side experts, respond to all legitimate concerns brought forth relating to the environmental impacts of their actions, and consider significant proposed alternatives. 

If an agency fails to take the required ‘‘hard look’’ or adhere to processes the law 

requires, it can be held accountable. By contrast, utilization of a categorical exclusion shortcuts these procedures and places the burden of assuring FWS’ NEPA compliance in the hands of the public. 

In fact, as described in more detail below, the Service has a checkered past with 

respect to NEPA compliance in conjunction with Lacey Act listings. When it listed 

four species of constricting snakes as injurious in 2012, the Environmental Assessment (‘‘EA’’) prepared was legally inadequate and FWS’ accompanying ‘‘finding of 

no significant impact’’ (‘‘FONSI’’), wholly unjustified. This listing, done in partial 

completion of a 2010 proposal to list nine species of constricting snakes (five others, 

including the economically important boa constrictor, remain outstanding). 

This was the first Lacey Act listing of species that are widely held in pet ownership and the foundation of a domestic industry. The proposal was highly controversial—one of the key NEPA criteria for producing a full environmental impact statement (‘‘EIS’’)—for social and economic as well as scientific reasons. However, when 

USARK pointed out legal deficiencies with the EA, FWS’ NEPA compliance generally, and other legal shortcomings in a detailed letter to FWS Director Dan Ashe 

in April of this year (a copy of which is attached to this testimony), the agency responded with the proposed categorical exclusion that is the subject of this hearing. 

This response is inadequate, and the proposed exclusion, more generally, is unjustified and should be rejected. 

II. BACKGROUND: WHY USARK OPPOSES FWS’ PROPOSED LACEY LISTING OF

CONSTRICTING SNAKES

USARK has, on several grounds, strongly opposed FWS’ effort to list nine species 

of constricting snakes as ‘‘injurious’’ under the Lacey Act since it was first proposed 

in 2010.1 While only a handful of the proposed and listed species are in active trade 

(most especially the boa constrictor, reticulated python, and the Burmese python), 

those that are support a thriving and dynamic domestic industry. Comprised of 

thousands of small, ‘‘mom and pop’’ breeders and hobbyists, this segment of the $1.4 

billion reptile pet industry supports specialized equipment manufacturers, veterinarians, feed producers, and an active trade show industry, of which scores are held 

each year across the country. At every level, this industry is comprised of small 

businesses. 

The proposed and partially finalized listing process has caused economic harm industry-wide, as almost 90 percent of all sales involve interstate commerce. As a result, the market diminished considerably due to fears that FWS will prohibit owners 

from moving across state lines with their pets. Breeders have had to cut back and 

even destroy valuable brood stock due to low demand and the high costs of maintenance these animals require. Economic harm at both the macro and micro level has 

occurred as a result of FWS’ actions. 

For example, Jeremy Stone, a reptile breeder for over 25 years, built a full-time 

business 10 years ago. A graduate of Brigham Young University, Stone supports his 

wife and four children through his reptile business. Stone’s business is captive bred, 

high-end boa constrictors with rare colors and patterns. Advanced hobbyists may 

spend $10,000 or more on these snakes. Just the proposal to list boa constrictors 

has decreased his business by over 60 percent. Before the proposed listing, Stone 

had eight employees. He has reluctantly been forced to lay off five of these individuals. The listing also would have trickle-down effects on other businesses, such as 

his feeder rodent supplier, which he pays $60,000 annually. This Subcommittee 

heard a similar story last year from Colette Sutherland of TSK, Inc., who testified 

on H.R. 511. 

However, because FWS failed to do an adequate economic analysis, required by 

the Regulatory Flexibility Act (‘‘RFA’’), USARK commissioned an economic study by 

a respected Washington economics firm. Even under the most conservative economic 

assumptions, lost revenue impacts from a finalized listing of all nine snakes range 

from $42.8 million to $58.7 million annually. However, given the fact that such 

interstate sales comprise a large portion of total revenue, more realistic annual revenue losses range from $75.6 million to $103.6 million. Many of these impacts have 

already been experienced, causing harm to USARK’s members. 

Substantively, FWS’ proposed listing is predicated on a highly controversial and 

imprecise study declaring that Burmese pythons ‘‘could find suitable climatic condiVerDate Mar 15 2010 09:15 Oct 20, 2014 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 J:\02 FISHERIES, WILDLIFE\02SE20 1ST SESS\9-20-13 P\82951.TXT DARLEN
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2 77 Fed. Reg. at 3332; see also id. at 3331 (‘‘The purpose of listing the Burmese python and 

its conspecifics . . . as injurious wildlife is to prevent the accidental or intentional introduction 

of and the possible subsequent establishment of populations of these snakes in the wild in the 

United States.’’). 

tions in roughly a third of the United States.’’ 2 The report, prepared by researchers 

with the U.S. Geological Survey (‘‘USGS’’), utilized a climate-matching methodology, 

the value of which has been debated in peer-reviewed literature. Detailed critiques 

over the data and assumptions employed in the USGS study have also been published. Among the principle scientific objections was the climate-matching methodology which relied on mean monthly temperatures rather than temperature extremes and the assumption that Burmese python hibernate, although they have 

never been observed engaging in this behavior. It has been noted also that a significant percentage of weather stations ostensibly within the species’ native range and 

used to generate mean temperatures were at altitudes or in regions where these 

snakes have never been observed nor at which they could survive. 

Empirical studies demonstrate that the initial projections of suitable habitat have 

been grossly overestimated. Nonetheless, FWS continued to rely on these findings 

when it listed four of the nine species under the Lacey Act in 2012. Further, the 

Burmese python, inappropriately defined as including the Indian python (Python 

molurus molurus)—a distinct subspecies which is listed as ‘‘endangered’’ under the 

ESA, can be found in a broader range of climates than any of the other eight species. Each is found in tropical regions and are unlikely to survive anywhere in the 

continental United States outside of the subtropical regions of extreme southern 

Florida. 

In fact, the boa constrictor, which accounts for the largest percentage of revenues 

for the industry by far, has had a small remnant population in a small area of south 

Florida known as the Deering Estate since the 1950s. Believed to have been left behind after a film shoot or television production, this population has remained small 

and well contained. This empirical evidence belies FWS’ claims that such snakes 

will spread and engulf the continental United States, from Washington State to 

Washington, DC and beyond. 

In short, the proposal is unjustified. As shown below, the process by which the 

four species of snakes was listed violated applicable law, including not only the RFA 

and APA, but NEPA as well. 

III. USARK INFORMS FWS OF NEPA AND OTHER VIOLATIONS

The Federal Register notice proposing a categorical exclusion for Lacey Act listings followed by only 3 months submission of a letter by USARK to FWS Director 

Ashe that highlighted, among other things, stark inadequacies in the EA accompanying the final rule listing four species of constricting snakes as injurious. 

USARK’s letter identified deficiencies with the rigor and thoroughness of scientific 

analysis the Service undertook in support of the listing, some of which are described 

above. In fact, important scientific studies submitted by the public were never considered. More importantly, the EA failed to address significant environmental concerns raised by the public during the rulemaking process. 

In addition to USARK, organizations including environmental groups, state wildlife officials, the zoo and aquarium community, academic and private conservation 

researchers, and personnel with other Federal conservation agencies raised concerns 

with the environmental impacts stemming from the proposed listing, including: 

• Concerns that the proposal would engender the asserted harm; that is, create 

a perverse incentive for irresponsible or aggrieved owners of snakes to release 

them into the wild if they cannot be transported across state lines or lose 

value due to a market collapse; 

• Academic and private researchers whose work is partially funded through 

breeding and sales operations noted that important conservation research and 

programs to develop captive breeding techniques to replenish threatened and 

endangered snake populations in the wild would be terminated; 

• State fish and wildlife agencies discussed adverse impacts on limited state 

conservation and enforcement resources; 

• The zoo and aquarium community raised concerns about adverse impacts on 

interstate and international transfers necessary for species survival programs 

and, along with USARK, negative effects on environmental education programs. 

Matters such as these lie at the heart of NEPA. As USARK noted in its letter, 

however, none of these matters were addressed at all in the EA. Further, the EA 

30 

3See 40 CFR § 1508.27(b) (‘‘A significant effect may exist even if the Federal agency believes 

that on balance the effect will be beneficial’’). 4See, e.g., Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior, 344 F. Supp. 2d 108, 

134–36 (D.D.C. 2004). 5 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). 6Pub. Utils. Comm’n v. FERC, 900 F.2d 269, 282 (D.C. Cir. 1990) (quoting Kleppe v. Sierra 

Club, 427 U.S. 390, 410 n.21 (1976)) (internal quotes omitted). 7 Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999) (citing 

Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378–85 (1989)); see also 40 CFR § 1500.2 

(‘‘Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.’’). 8 Roosevelt Campobello Int’l Park Comm’n v. United States E.P.A., 684 F.2d 1041, 1047 (1st 

Cir. 1982) (internal quotations omitted). 9Sierra Club v. Espy, 38 F.3d 792, 796 (5th Cir. 1994). 10Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1482 (W.D. Wash. 1992). 

entirely failed to mention that the listing itself was controversial and that there was 

considerable disagreement within the scientific community—including among Federal scientists—over the proposed listings’ scientific basis. 

Some recommended FWS consider an import ban for these species as an alternative that would minimize much of the adverse economic impacts. Instead, the 

Service merely considered different combinations of the nine snakes to list as ‘‘alternatives.’’ Despite NEPA’s requirements, no serious consideration to meaningful alternatives occurred. 

The letter, a copy of which is appended for the record, amply supported USARK’s 

claim that these deficiencies in the Service’s NEPA documentation was contrary to 

the law, NEPA’s implementing regulations, and decades of well-established case 

law. In fact, far from making the unsupported finding that the listing would not 

have a significant effect on the human environment, the record demonstrated that 

a full environmental impact statement was required. Given that, it is difficult for 

USARK to see FWS’ proposal for a categorical exclusion as anything other than a 

wholly inadequate response to the legal shortcomings it identified. 

IV. PROBLEMS WITH THE CATEGORICAL EXCLUSION AND THE IMPORTANCE OF NEPA IN

LACEY ACT PROCESSES

A. Brief Background on NEPA 

NEPA applies to ‘‘major Federal actions significantly affecting the quality of the 

human environment.’’ Contrary to FWS’ assertion in the proposed Categorical exclusion, there is no exemption for actions that ostensibly benefit the environment.3

NEPA applies to the actions under the Endangered Species Act,4 and certainly to 

injurious listings under the Lacey Act. 

NEPA is an ‘‘action forcing’’ statute with two major objectives: (1) it ‘‘ensures that 

the agency, in reaching its decision, will have available, and will carefully consider, 

detailed information concerning significant environmental impacts’’; and (2) ‘‘guarantees that the relevant information will be made available to the larger audience 

that may also play a role in both the decisionmaking process and the implementation of that decision.’’ 5 ‘‘An agency’s primary duty under NEPA is to take a ‘hard 

look’ at environmental consequences.’’ 6 ‘‘[A]n agency takes a sufficient ‘hard look’ 

when it obtains opinions from its own experts, obtains opinions from experts outside 

the agency, gives careful scientific scrutiny and responds to all legitimate concerns 

that are raised.’’ 7 Further, an agency must consider ‘‘all alternatives that appear 

reasonable and appropriate for study at the time of drafting the EIS, as well as significant alternatives suggested by other agencies or the public during the comment 

period.’’ 8

NEPA regulations provide that if the agency is uncertain whether the impacts 

rise to the level of a major Federal action requiring an EIS, the agency must prepare an environmental assessment. An EA is ‘‘a concise document that briefly discusses the relevant issues and either reaches a conclusion that preparation of [an] 

EIS is necessary or concludes with a finding of no significant impact, in which case 

preparation of an EIS is unnecessary.’’ 9 For its part, an EIS is required when, 

among other things, an action’s ‘‘effects on the quality of the human environment 

are likely to be highly controversial; . . . possible effects on the human environment 

are highly uncertain or involve unique or unknown risks; [and when an] action may 

establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.’ ’’ 40 CFR § 1508.27(b). 

An agency’s NEPA analysis insufficient where it lacks a ‘‘reasoned discussion of 

major scientific objections.’’ 10 When ‘‘highly qualified experts’’ raise criticisms regarding important scientific findings, an ‘‘agency cannot merely say that the [information] and the criticisms arising from it make no difference; to comply with NEPA, 

31 

11Found. for N. Am. Wild Sheep v. U.S. Dept. of Agr., 681 F.2d 1172, 1178 (9th Cir. 1982). 12 40 CFR § 1508.4; see also id. § 1507.3(b)(2)(ii) (requiring agencies to adopt NEPA procedures 

including categorical exclusions). 

it must give a reasoned analysis and response.’’ Id. at 1482–83. The need to consider 

important scientific issues also applies when an agency develops an EA.11

A categorical exclusion is a form of NEPA compliance, albeit one that applies to 

‘‘a category of actions which do not individually or cumulatively have a significant 

effect on the human environment and which have been found to have no such effect 

in procedures adopted by a Federal agency in implementation of these regulations.’’ 12 However, even for such categories of actions, an agency must analyze an 

action for ‘‘extraordinary circumstances in which a normally excluded action may 

have a significant environmental effect.’’ 40 CFR § 1508.4. 

B. USARK’s Concerns With the Proposed Categorical Exclusion 

The Lacey Act is a statute with a conservation purpose that is unusual both in 

the fact it is set forth in Title 18 of the U.S. Code, which deals with criminal laws, 

and in the utter absence of any standards or process to guide the listing process. 

Unlike the ESA or the Magnuson-Stevens Fishery Conservation and Management 

Act, the law contains no requirement that the agency utilize the best scientific information or assess economic impacts of the action. A determination that a species is 

injurious is almost entirely committed to the Secretary’s discretion. 

NEPA fills a gap that no other provision of law provides. For example, while the 

APA sets forth procedural requirements for notice-and-comment rulemaking, that 

law does not require any substantive analysis of a proposal. Its requirement for reasoned decisionmaking merely provides that an agency explain its authority and rationale for promulgating a rule. Agency determinations, especially those involving 

scientific determinations, are given high deference by courts. The Lacey Act’s lack 

of standards or criteria ensures that every listing would pass judicial review, unless 

the Service itself declared that it had ‘‘arbitrarily and capriciously’’ decided to list 

a species. 

The RFA, for its part, requires economic impacts analysis, but only as to small 

entities. While in the case of constricting snakes, such analysis captures the overwhelming majority of the sector’s economic activity, here and elsewhere the law does 

not require FWS to capture or describe the full range of economic impacts. Similarly, executive orders, like E.O. 12866, require agencies to compare benefits and 

costs and utilize sound scientific information. However, executive orders are not judicially enforceable. Only the Office of Management and Budget’s Office of Information and Regulatory Affairs (‘‘OIRA’’) controls their implementation. And as OIRA 

is charged with implementing an administration’s regulatory philosophy, it can be 

a weak guardian of these procedural safeguards. 

Among all of these, NEPA is the only law that provides assurances that listing 

decisions will be based on sound science; that the public will have input on the quality of the analyses and underpinning of a rule; and, most importantly, to hold FWS 

accountable for political decisionmaking. USARK’s letter to Director Ashe makes 

this case convincingly. Without the ability to challenge the agency’s compliance with 

NEPA, the public would be entirely subject to the whims of the FWS. If the categorical exclusion had been applied in this instance, what was already weak and perfunctory analysis would be even more shrouded from public view. 

Even though application of NEPA provides an important tool, it is also far from 

perfect. USARK agrees with FWS that the law may be too blunt an instrument to 

effectively address invasive species concerns. However, in addition to providing additional tools to address specific issues—for example, in the case of the constricting 

snakes, a ban on imports only would effectively meet the concerns while minimizing 

impacts—the law must include substantive standards and procedures. 

USARK would ask the Subcommittee to consider adding the types of protections 

found in other conservation laws. For example, the MSA requires economic impact 

analysis, use of the best scientific information available, provides for ample public 

input, and includes a host of other required analyses including for an impact statement on affected parties. Similar provisions should be considered for the Lacey Act. 

Recognizing that a revisiting of the law is unlikely in the near term, full application of NEPA is the next best alternative. For all these reasons, USARK strongly 

opposes the Service’s proposed exclusion. 

I thank you very much for this opportunity to testify on this very important matter. If there is any further information that would assist the Committee in its work, 

I will do my very best to provide it. 

32 

Dr. FLEMING. Thank you, Mr. Gehan. 

Next is Mr. Meyers, Mr. Marshall Meyers, who will present testimony on behalf of the Pet Industry Joint Advisory Council. Mr. 

Meyers, you are now recognized for 5 minutes. 

STATEMENT OF MARSHALL MEYERS, SENIOR ADVISOR, PET 

INDUSTRY JOINT ADVISORY COUNCIL 

Mr. MEYERS. Mr. Chairman and members of the committee, I am 

Marshall Meyers, Senior Advisor and former CEO of the Pet Industry Joint Advisory Council. Thank you for inviting me to appear 

today to address the Service’s proposal to establish a categorical exclusion under Lacey. 

PIJAC is a national trade association representing all segments 

of the pet industry. Our members serve 63 percent of the U.S. 

households that care for and maintain pets of all types, sizes, and 

descriptions, the majority of which fall under the purview of Lacey. 

The empirical evidence demonstrates that the vast majority of 

these pet species pose little risk of release and establishment as injurious species. 

However, inasmuch as we are engaged in trading more live specimens of more species than any other industry, we recognize our responsibility for environmental stewardship. This includes collaboration with the Fish and Wildlife Service pursuant to two memorandums of understanding, one involving public education outreach on 

non-release, and one signed only this June with the Service and 

the Association of Fish and Wildlife Agencies to develop voluntary, 

non-regulatory approaches to reduce the risk of importing potentially invasive species not currently found in the United States. 

Our historic and primary concern with respect to implementation 

of Lacey is its total lack of statutory listing criteria, as well as statutory processes, other than complying with the Administrative Procedures Act. 

The Service’s justification is somewhat baffling. In one breath 

the Service argues it would only conduct an EA when, as, and if 

it determines that there is ‘‘significant effect on the human environment.’’ However, in another breath it argues that it will not 

have to comply with NEPA, because the species should not be here 

in the first place, and therefore, cannot have a significant effect on 

the human environment. Such circular reasoning. 

For species already present in the United States, prohibiting 

such species could well have an impact on the human environment, 

and that impact must be evaluated, pursuant to NEPA standards. 

We are also mystified by the justification for a categorical exclusion on the basis that injurious wildlife listings to date have shown 

that the listings would have no significant effect on the human and 

natural environment. Assuming, arguendo, that that is accurate for 

past listings—other than the constrictor listing—how can the Service predict a similar conclusion for all future listings, especially for 

species in trade or already present in the United States? 

NEPA safeguards are far too important to be circumvented by 

adopting a blanket exclusion in this instance. What is being proposed goes far beyond the use contemplated by NEPA. NEPA calls 

for evaluating impacts of agency action on a wide variety of areas 

involving both negative and beneficial impacts on the human and 

33 

natural environment, including social impacts, environmental justice issues, and impacts on disadvantaged communities. 

We are somewhat sympathetic to the Service’s desire to avoid or 

minimize duplication. There may be grounds for justifying a 

CATEX when dealing with species not currently present in the 

United States. 

It is our position the Department should step back, withdraw 

this proposal, consider convening stakeholder meetings to explore 

how the listing process can be improved, consistent with law and 

resources, improve transparency, and seek public input at every 

stage of the process. We recognize and support the need to improve 

the injurious wildlife listing process, but we don’t believe this is the 

best way forward. 

CEs are traditionally reserved for those situations where agency 

actions are effectively administrative or administerial in nature. At 

best, we have three proposals. Adoption of and clear enunciation of 

the listing criteria and processes that the Service is encompassing, 

the NEPA elements that they claim that are duplicative under 

NEPA as an integral part of their procedures and protocols. Create 

a tiered process for evaluating species not present in the United 

States that would be different than those that are present here, either in trade or otherwise present. And for species in trade or otherwise present, ensure that they incorporate NEPA style processes. 

PIJAC is willing to work collaboratively with the Service and 

other stakeholders to explore the feasibility of such programmatic 

reviews, and believes such reviews could well meet a range of interests. 

Now, in conclusion, Mr. Chairman, I guess I am about to reveal 

my age. My involvement with injurious wildlife dates back to circa 

1973, when the Service sought to list all non-natives injurious until 

proven innocent. We successfully challenged that approach on the 

grounds that it lacked, among other things, scientific integrity, and 

raised a number of substantial due process issues. 

Proving a negative has always been problematic for scientists, 

and even for lawyers like myself. Now, 40-plus years later, they 

want to sidestep NEPA. Considered by many as one of the most important environmental safeguards for scientific integrity, full disclosure, and reasoned decisionmaking. Loosely paraphrasing H.L. 

Mencken, for every complex problem there is a categorical exclusion that is simple, neat, and wrong. 

Thank you, Mr. Chairman. We look forward to working with the 

subcommittee and the Service in addressing this very important 

environmental issue. 

[The prepared statement of Mr. Meyers follows:] 

PREPARED STATEMENT OF MARSHALL MEYERS, PET INDUSTRY JOINT ADVISORY

COUNCIL

Mr. Chairman and Members of the Subcommittee, I am Marshall Meyers, Senior 

Advisor and former CEO of the Pet Industry Joint Advisory Council (PIJAC). Thank 

you for inviting me to appear before the Subcommittee today to address the Department of Interior’s proposal to establish a Categorical Exclusion under the National 

Environmental Policy Act (NEPA) for listing non-native species as ‘‘injurious wildlife’’ under the Lacey Act (18 U.S.C. 42, as amended). 

PIJAC is a nonprofit, service-oriented national trade association representing all 

segments of the pet industry. These include importers and exporters of live organisms, retail pet stores, product manufacturers, other industry trade associations in 

34 

the United States and abroad, as well as hobby clubs and aquarium societies. Our 

members serve 63 percent of the U.S. households that care for and maintain pets 

of all types, sizes and descriptions: the majority of which fall within provisions of 

the Lacey Act. 

Pet owners across this Nation possess thousands of non-native (nonindigenous) 

species in significant numbers. This is not a new phenomenon. For generations, people have maintained a diverse array of non-native mammals, birds, reptiles, amphibians, and fish as companion animals. It is not the intent of the pet industry 

to intentionally release these animals into the natural environment. Nor would the 

vast majority of pet owners have any such intent. In fact, the majority of pet owners 

consider their pets family members. The empirical evidence demonstrates that the 

vast majority of these pet species pose little risk of release and establishment as 

injurious species. 

The bond between pets and their owners is well documented—as are the benefits 

of this bond . . . greater mental and physical health among adults and greater socialization and learning skills among children. Furthermore, it is clear that children 

who grow up with pets develop empathy for animals and the environment in general. I have no doubt that the vast majority of individuals who are members of environmental organizations are also pet owners and developed their love for animals 

by the pets they grew up with. 

Inasmuch as the pet industry is engaged in trading more live specimens of more 

species than any other industry, we recognize that part of our mission requires fostering environmental stewardship. Indeed, this is expressly encompassed by PIJAC’s 

mission statement. That includes collaboration pursuant to a Memorandum of Understanding (MOU) with the Fish and Wildlife Service in educating not only our industry, but also our customers on the importance of not releasing animals into the 

environment. 

In June of this year, PIJAC, the Association of Fish and Wildlife Agencies 

(AFWA), and the Fish and Wildlife Service (Service) executed an MOU to collaborate on the development of non-regulatory approaches to reduce the risk of introducing/importing potentially invasive species not currently found in the United 

States. The MOU also provides that the parties will collaborate on voluntary biosecurity and mitigation practices designed to minimize the likelihood of release and 

establishment if such species enter the United States. The Steering Committee, CoChaired by AFWA and PIJAC, is currently preparing a 2013–2014 Action Plan. 

It is important to note that the pet industry is not the only commercial or recreational group having a long-standing relationship with nonnative species. Other 

significant stakeholders dependent upon nonnative species include: sports fishing, 

Federal/state hatcheries, agriculture, biological and biomedical research, entertainment, hunting, food aquaculture, zoos and aquariums, and classroom educators. 

While most of these organisms are never intended for release into natural environments, some of these species (e.g. oysters, trout, bass, deer, game birds) are intentionally placed into natural environments by government and private entities 

throughout the United States. Representatives of those communities are invited to 

support the MOU and become a signatory. 

My involvement with the Service’s implementation of its ‘‘injurious wildlife’’ authority under the provisions of the Lacey Act dates back to the early 1970s when 

the Service sought to list all non-native species as ‘injurious’’ until proven innocent 

on a species-by-species basis. We successfully challenged that approach on grounds 

that it lacked, among other things, a science-based justification and raised a number 

of substantial due process issues. Proving the negative has always been problematic! 

It would have placed an untenable burden on the government and/or the trade to 

‘‘scientifically prove’’ a negative—i.e. the absence of current or any potential harm 

‘‘to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife 

or wildlife resources of the United States.’’ (18 U.S.C. 42(a)(1)) 

Prior to seeking a Categorical Exclusion, PIJAC believes it would have been far 

more prudent, let alone informative, had the Service published in some form (preferably annotated) its listing criteria, including the process or processes utilized in 

determining environmental harm and concluding that a particular species is in fact 

‘‘injurious’’ and warrants listing. Simply directing one to read the recent ‘‘Constrictor Rule’’ and accompanying documents is grossly insufficient. 

Our historic and primary concern with respect to the Service’s implementation of 

the Lacey injurious wildlife listing provisions is the total lack of statutory listing 

criteria as well as statutory processes (other than complying with the provisions of 

the Administrative Procedure Act) for assessing the species’ characteristics, receiving public input and comments, documenting the evidence, disclosure of the rationale for listing, etc. 

35 

1 U.S. Fish & Wildlife Service Bulletin, dated July 1, 2013. 

As noted in the Service’s ‘‘Frequently Asked Questions’’ explaining why it is seeking a ‘‘Categorical Exclusion for Listing Species as Injurious Wildlife,’’ an Environmental Assessment (EA) or Environmental Impact Statement (EIS) would only be 

needed ‘‘if the action could have a significant effect on the human environment.’’ 

While one would assume that completing an EA would be at a minimum fundamental to determining whether the listing of a proposed species has or could have 

a ‘‘significant effect on the human environment,’’ simple logic dictates that finding 

a nonnative species ‘‘injurious’’ would by its very nature require a thorough and 

complete assessment of its impact on the environment as a condition precedent to 

any proposed listing. Thus, the Service’s justification is somewhat baffling. In one 

breath, the Service argues it would only conduct an EA when, as, and if it determines (we assume without public notice and comment) that there is a ‘‘significant 

effect on the human environment,’’ however, in another breath it argues it will not 

have to comply with NEPA because the species should not be here in the first place 

and ‘‘prohibiting a nonindigenous injurious species from being introduced into an 

area in which it does not naturally occur cannot have a significant effect on the 

human environment.’’ The argument is specious. For species already present in the 

United States, irrespective of whether they were unintentionally introduced or intentionally imported for commercial or other purposes, prohibiting such species indubitably does have an impact on the human environment, and that impact should 

be evaluated. 

So attempts to circumvent such assessments by adopting Categorical Exclusions 

for all nonnative species, absent some process for assuring NEPA-styled safeguards, 

defeats the underlying purpose of NEPA. Nor has the Service provided a compelling 

justification for abandoning its prior reliance on utilizing Categorical Exclusions on 

a case-by-case basis when the action did not warrant conducting a full blown NEPA 

analysis. 

To add to the confusion of the Service’s position is its recognition that ‘‘it has generally prepared EAs for listing rules . . .’’ and therefore ‘‘a categorical exclusion 

would allow the Service to exercise its authority . . . more effectively and efficiently 

by precluding the need to conduct redundant environmental analyses.’’ This position 

could have merit depending on the criteria utilized and the scope of the initial Service assessment. If the Service does in fact conduct an EA or other NEPA-styled assessments, PIJAC acknowledges there may be benefits by minimizing redundancy 

by not having to simply replicate them under NEPA. However, the failure to conduct a NEPA-styled EA or EIS would allow the Service to bypass consideration of 

social, economic or other beneficial impacts taken into consideration within a NEPA 

process. The Service’s concerns about redundant processes are belied by its FAQ 

statement, in which it indicates that it would not have to produce an EA to determine whether or not ‘‘a significant effect on the human environment’’ exists or could 

exist! What type of an assessment would the Service rely on other than an EA or 

an EIS to reach such a conclusion? The Service appears to be discounting the need 

for NEPA based on an alternative process that it then goes on to suggest would, 

itself, be unnecessary. Such disingenuousness confirms the worst fears of those concerned about the broad Categorical Exclusion being proposed by the Service: that 

the ultimate result will be no evaluation process at all or at best an extremely limited assessment! 

Thus, we remain somewhat mystified by the Service’s justification for seeking a 

Categorical Exclusion so it could avoid conducting an Environmental Assessment 

(EA) on the basis that injurious wildlife listings to date have shown that the listings 

would have no significant effect on the human and natural environment. Assuming 

arguendo that this is accurate for past listings, other than the recent Constrictor 

listing decision, how can the Service predict a similar conclusion for all future listings, especially for species already in trade and/or in the United States? The apparent justification is based on the premise that ‘‘a listing action helps keep species out 

of the United States that are not naturally found here or helps prevent the spread 

of injurious wildlife into new areas within the country where they are not normally 

found . . .’’ therefore, ipso facto, they have ‘‘no effect on the environment.1 ’’ Such 

a conclusion, if it has any validity at all, could only apply to species not yet found 

in the United States. For species already present, whether unintentionally introduced or the result of importation years or even decades ago for commercial purposes, the rationale offered by the Service is wholly inapplicable. 

The Service’s argument is overly simplistic in justifying its desire to indulge in 

an ‘‘abbreviated review’’ of a proposed species listing and severely limits if not essentially precludes public input prior to the Service’s publishing its conclusions in 

a proposed rule. While this would certainly streamline the process intended to keep 

36 

out injurious wildlife or to prevent their spread across state lines, it would not make 

the process more effective but would, rather, undermine the fundamental tenants 

of NEPA, an Act that is relied upon to ensure a systematic interdisciplinary approach to decisionmaking involving the environment. Indeed, eliminating due process will always ‘‘streamline’’ any legal procedure, but far from enhancing effectiveness it defeats the purpose of the process itself. NEPA’s safeguards are far too important to be sidestepped by adopting a blanket Categorical Exclusion in this instance. What is being proposed goes far beyond the use contemplated by NEPA. 

We are somewhat sympathetic to the Service’s desire to avoid or minimize the degree of duplication that may result by complying with NEPA under all circumstances. There may be grounds for justifying a Categorical Exclusion when dealing with a species which is not present in the United States and for which the Service has demonstrated potential invasiveness if introduced into the environment of 

the United States. For species in trade or otherwise already present in the United 

States, utilizing Categorical Exclusions does not provide adequate safeguards to prevent the Service from systematically indulging in species’ listings without full and 

complete NEPA-styled Environmental Assessments or Environmental Impact Statements when a significant impact on the human and natural environment has been 

documented or there is substantial controversy surrounding the science, its impact 

on the human environment, and the overall proposed listing. 

PIJAC assumes that the Service relies upon different criteria for listing an unintentionally introduced species versus a species intentionally imported into the 

United States. Additionally, PIJAC assumes that the criteria for listing species not 

yet in the United States would differ substantially from species already in-trade 

and/or are possessed as pets or are maintained in some form of commercial or recreational activity, such as food aquaculture, sports fishing, bio-control agents, zoological exhibition, biomedical research, etc. Such listings are clearly not analogous 

and certainly deserve separate treatment. But nothing in the proposal demonstrates 

the manner in which these two completely different circumstances will be addressed. Absent such well-defined criteria as an integral component of an EA and/ 

or an EIS, seeking a Categorical Exclusion for all potential scenarios simply cannot 

be justified. 

For those species in trade or already within the United States an Environmental 

Assessment at a minimum is an essential tool for decisionmakers when evaluating 

the positive and negative environmental effects of a proposed action, including identifying one or more alternative actions that might be selected instead of a simple 

ban. Based upon those findings, a properly conducted Environmental Impact Statement would be required to address substantial controversies involving the scientific 

assessments, socioeconomic impacts, potential mitigation measures, environmental 

justice issues, or other mechanisms for regulating or limiting access to such species. 

A glaring weakness in the Service’s justification of their proposal is the failure to 

give due consideration to the balancing act that a NEPA assessment is meant to 

provide; that is, not only the potential for harm due to a species’ presence, but also 

the benefits such presence brings as well. 

In our opinion, an Environmental Assessment is a critical and essential component of any evaluation of a nonnative species as a potentially ‘‘injurious wildlife’’ 

species. Circumventing a process that incorporates NEPA-styled processes under the 

theory that keeping ‘‘species out of the country that are injurious or to prevent their 

spread across State lines’’ is ill conceived when dealing with species in-trade or already within the United States. For such species, the Service cannot legitimately 

claim such action would have no effect on the human and natural environment because the species’ being listed are not normally found here when in fact such species 

are already present, often in significant numbers. How would the Service determine 

that such species are harmful to the named interests under Lacey without conducting an EA? How can it conclude that its proposed action does not individually 

or cumulatively have an impact on the human environment absent receipt of public 

comment and completing some form of an assessment subject to public comment? 

Again, the NEPA assessment must weigh not just potentially negative benefits of 

a species, but the positive benefits of such species as well. 

The simplistic approach of ignoring a NEPA-styled EA or EIS essentially disregards from the outset any benefits that may result from trade in many non-native 

species. Moreover, if the Service can simply find a non-native species injurious without ascertaining the scope of its harm (e.g. it impacts a significant portion of the 

United States vs. being regional or found locally negatively impacting a single thermal spring,) or take into consideration alternatives as contemplated under NEPA, 

the Service’s approach falls far short of any claim that its decisions are transparent, 

science-based, or have thoroughly evaluated whether there are any positive or negative impacts on the environment. 

37 

The pursuit of a more efficient and effective process under the Lacey Act requires 

a thorough overhaul of an outdated law not geared to a modern economy or today’s 

world. Listing criteria for species in trade should be significantly different than for 

species not in trade or not yet found within the United States. Once in trade, however, the Service should not circumvent processes that promote collaboration, transparency, and sound science-based decisionmaking. Simply reducing the time to process a listing should not be the goal—improving the risk assessment processes, enhancing transparency, and encouraging increased collaboration by engaging stakeholder involvement in the process should be the desired objective. Until this Act is 

updated, an effective, thorough, and transparent evaluation process is that much 

more critical. Inasmuch as the Lacey Act’s injurious wildlife provisions are conspicuously silent as to the criteria for listing or evaluating the environmental impacts/ 

benefits, NEPA is an essential safeguard to ensuring a rigorous assessment evaluating all relevant information and reliance on scientific integrity, public input, and 

transparency at various stages of the decisionmaking process. 

PIJAC has long advocated updating the injurious wildlife listing process by differentiating between first time introductions/importations and species already in 

international trade or present in the United States. PIJAC has served on the 

Invasive Species Advisory Committee since its inception and recognizes the need for 

tools that facilitate more effective and efficient listings. Shortcutting the process by 

not automatically conducting an EA to ascertain injuriousness, as well as conducting an EIS when the species is in international and/or domestic trade or otherwise exists in the United States for recreational purposes, pets, research, zoological 

exhibition would create a severe risk of unnecessarily restricting species that not 

only represent no harm but in fact offer substantial benefits to the people of this 

country. For species in trade or already in the United States, the Service should 

automatically conduct a NEPA-styled EA as well as an EIS as a matter of course. 

And this does not mean that the process would have to be duplicated under NEPA. 

The Service would be able to continue its practice of NEPA compliance as it has 

in the past. 

It is our position that the Department should step back, withdraw this proposal, 

and consider convening stakeholder meetings to explore how the listing process can 

be improved consistent with law and resources, improve transparency, seek public 

input at different stages of the process in lieu of publishing at one time a proposed 

rule containing the Department’s conclusions and findings along with the Service’s 

Draft Environmental Assessment, Draft Economic Analysis, Initial Regulatory Flexibility Analysis, etc. By shifting injurious listings to a Categorical Exclusion and the 

non-development of an EA, there is very limited, or even no, disclosure of environmental impacts, including social impacts, environmental justice issues, and impacts 

to disadvantaged communities in the Service’s reaching its ultimate determination. 

A Categorical Exclusion assumes that none of these occur and the public could be 

precluded from submitting comments in an informed way on impacts normally disclosed in an EA. Eliminating any chance of public meetings even when the issues 

are highly controversial, subject to scientific debate and disagreement. 

On behalf of the Pet Industry Joint Advisory Council (PIJAC), we thank you for 

providing us an opportunity to share our thoughts and concerns on utilization of a 

blanket Categorical Exclusion for injurious wildlife listings. We recognize and support the need to improve the injurious wildlife listing process, but do not believe 

that this is the most efficacious or proper approach. As mentioned previously, at 

best there should be: 

1. A tiered process evaluating species not present in the United States from species in-trade or otherwise already present in the United States; 

2. Adoption of and clear enunciation of the listing criteria and processes that encompasses the elements that the Service claims are duplicative under NEPA 

as an integral part of the Service’s procedures and protocols for listing injurious wildlife; and 

3. For species in trade or otherwise present in the United States incorporate in 

the Service’s protocols a mandate for public input at various stages of the 

process to ascertain which issues, if any, involve questions of scientific debate 

and integrity, highly controversial issues with respect to significant impacts 

on the human and natural environment, and ensure that highly controversial 

issues are thoroughly vetted in an open and transparent fashion. 

Despite our reservations about the Service’s position on this matter, we remain 

committed to working with the Subcommittee and the Service to address this important environmental issue. 

Thank you again for inviting me to appear today. I would be happy to answer any 

questions. 

38 

Dr. FLEMING. OK. Thank you, Mr. Meyers. Votes have been 

called. Rather than going ahead and digging in, I think we will go 

ahead and recess for votes. We will return after votes, and we will 

hear questions from the panel. And we thank you. We are in recess. 

[Recess.] 

Dr. FLEMING. The committee is back in session. And we thank 

you for your indulgence. Hopefully you enjoyed some good Capitol 

coffee while we were voting. 

At this point I would like to recognize myself for 5 minutes for 

questions. And first, for the Fish and Wildlife Service, these are 

yes-and-no questions. We will go on to maybe more discussion, but 

I would like to get just brief yes-or-no answers to these, thus far. 

Has the Service previously sought a categorical exclusion for 

Lacey Act listing in the past? 

Mr. HOSKINS. Yes. In 2002 we invoked a categorical exclusion for 

listings. 

Dr. FLEMING. So one example, then, thus far. 

Mr. HOSKINS. Well, there were two different species, snakehead 

and a brushtail possum. But yes, it was one case in which we invoked it in 2002. 

Dr. FLEMING. OK. According to your congressional affairs office, the Service has two Federal employees and spends about $60,000 

a year on listing decisions. Does that sound like your agency believes this is a priority program? 

Mr. HOSKINS. Given the financial and budget constraints that we 

are operating, we are doing the best that we can with the resources 

that we have. 

Dr. FLEMING. Let’s see. Well, you have, for candidate conservation, 74; listing, 144; consultation, 451. Let’s see, where is the land 

acquisition? Oh, land acquisition, realty division, 89. So are you 

having similar difficulties finding resources for those departments 

and that manpower? 

Mr. HOSKINS. Well, in the current budget climate we are in the 

process of trying to operate within less funds each year. And so, 

those are historical numbers, but I think the other programs headed by other assistant directors are facing similar budget constraints. 

In the context of the Lacey Act, as you know, the categorical exclusion is intended to help streamline the process—— 

Dr. FLEMING. But—— 

Mr. HOSKINS [continuing]. So that we can move forward more effectively—— 

Dr. FLEMING. But the size has been this way for a number of 

years. So this was well before we came into our financial constraints. So, obviously, that really wouldn’t apply, would it? If you 

only had two employees 10 years ago, before these issues came to 

bear, then you really couldn’t use that as an excuse, can you? 

Mr. HOSKINS. Well, I take your point that the resources that we 

devote to the program are a limiting factor in our ability to move 

forward with listings. But, in that context, the categorical exclusion—that is the subject of the July 1 proposal—is intended to 

streamline the process so that we can make more effective and efficient use of the resources that we have. 

39 

Dr. FLEMING. Well, needless to say, of the over 1,000 employees 

you have, 2 employees would be a very, very small, minuscule aspect, in terms of priority. 

How about this question? Would you make the commitment 

today that the agency would only use a categorical exclusion for the 

listing of species that are not yet here in the United States? 

Mr. HOSKINS. The categorical exclusion that we proposed on July 

1 is intended to apply across the board. So the answer, in terms 

of the proposal, is that it is intended to apply, under normal circumstances, because there is an extraordinary—— 

Dr. FLEMING. Again, I am limited in time. A yes or no would be 

adequate. 

Mr. HOSKINS. Is it—— 

Dr. FLEMING. Are we not—— 

Mr. HOSKINS. Would we apply it to species that are not in trade, 

that are in trade? Yes, we intend to apply it to both. 

Dr. FLEMING. OK, thank you. All right. If you have not—what 

has dramatically changed that cries out for this fundamental 

change? 

Mr. HOSKINS. As I said in my testimony, the problem of invasive 

species is a significant one, costing billions of dollars per year. And 

what we are trying to do is work within the construct of the current Act to move forward more efficiently and effectively to address 

that problem, which causes not only environmental damage, in 

terms of loss of biodiversity, but significant economic damage. 

Dr. FLEMING. You know, I am impressed with the fever, the 

energy to streamline regulations for this purpose of exclusions. But 

it is amazing how there is not the equal exuberance when it comes 

to the effect and impact on private industry. 

But I will move on to the next question. What has been the environmental community’s reaction to your proposed categorical exclusion? 

Mr. HOSKINS. I think, as reflected in Mr. Jenkins’ testimony, it 

has been generally favorable, not because they are in favor of categorical exclusions under NEPA, per se, but because they recognize 

that this is a need that needs to be addressed, and that, in this 

case, based on the prior record of FONSIs, finding of no significant 

impact, it is warranted. 

Dr. FLEMING. OK. Can you provide us letters or some documentation of their support? 

Mr. HOSKINS. Well, I believe Mr. Jenkins testified on behalf of 

several environmental organizations today. 

Dr. FLEMING. Well, that is kind of secondhand. Can we get a direct comment from those organizations? Mr. Jenkins? 

Mr. JENKINS. Thank you, Mr. Chairman. Yes, happy to address 

that. We did submit a detailed letter of support into the record that 

the Service has, a comment letter, as well as my testimony, which 

reflects the points in our comment letter. We would be happy to 

put our comment letter into the record for this hearing, if you 

would like. 

And, as Mr. Hoskins said, the environmental community generally has looked disfavorably on categorical exclusions, and tends 

to be suspicious of them because, you know, we like to see EAs 

about projects. However, as Mr. Sablan pointed out, this is an ironVerDate Mar 15 2010 09:15 Oct 20, 2014 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 J:\02 FISHERIES, WILDLIFE\02SE20 1ST SESS\9-20-13 P\82951.TXT DARLEN
40 

ic situation where the environmental community sees the real 

value of this and how it fits with the NEPA guidelines and history, 

whereas you have this business community that typically has 

wanted more—sorry. 

Dr. FLEMING. Yes, I am sorry. I am way over my time. I appreciate your comments. 

The Chairman now yields to the Ranking Member, Mr. Sablan, 

for 5 minutes. 

Mr. SABLAN. Thank you very much, Mr. Chairman. I am tempted 

to let Mr. Jenkins continue, but I have my own set of questions. 

So, Mr. Hoskins, according to the Fish and Wildlife Service, the 

brown tree snake was first detected on Guam in the 1950s, and by 

the early 1960s had already started devastating native bird populations. However, the Service did not list the snake as injurious 

under the Lacey Act until 1990. Today, nearly $2.5 million is spent 

annually to control and detect the brown tree snake. And the snake 

continues to wreak havoc on Guam’s island ecosystem. 

Will you please talk about how the option to use a categorical exclusion will help stop costly biological invasions before they get out 

of control? 

Mr. HOSKINS. Well, as reflected in your question, once a species 

becomes established, control and eradication is very expensive and 

potentially impossible. And the goal of the categorical exclusion is 

to try to streamline the listing process under the Lacey Act so that 

we can expedite listings to try to prevent the introduction and establishment before these species become a problem. 

Mr. SABLAN. All right. And following a pattern of similar—the 

word here is ‘‘eerily similar’’—to that of the brown tree snake on 

Guam, the boa constrictor has invaded Puerto Rico, and is having 

serious negative impacts on native wildlife. I am very disappointed 

last year when the Service failed to list the constrictor, the boa constrictor, along with four other proposed species of the large constrictor snakes as injurious under the Lacey Act. 

What is the Service doing to stop the spread of invasive boa constrictors in Puerto Rico, and prevent them from becoming established elsewhere in the United States? And are you still considering an injurious wildlife listing for the boa constrictor? How will 

that make your job easier? 

Mr. HOSKINS. I need to consult with our ecological services and 

refuge programs about the work that we are doing in Puerto Rico 

that you referenced, and I will be happy to get back to you on that 

question. 

With respect to the proposed listing of nine species, as you alluded to, we went forward with four, and we are still considering 

how to move forward, in terms of a final determination with respect to the remaining five, which includes the boa constrictor. 

Mr. SABLAN. Yes, and I hope it doesn’t take you 40 years, like 

you did with the brown tree snakes on Guam. 

Mr. HOSKINS. I hope so, too. 

Mr. SABLAN. Mr. Jenkins, can you please describe the purpose of 

NEPA with respect to protecting our environment and the meaning 

of the term ‘‘human environment’’? Is it true that NEPA regulations state clearly that the economic and social effects of a Federal 

41 

action do not, by themselves, require an environmental impact 

statement? 

Mr. JENKINS. That is correct, Mr. Sablan. And that purely social 

and economic effects are not the subject of NEPA. As I said in my 

testimony, they are the subject of other Federal laws that require 

economic effects to be analyzed. 

But NEPA is really about tangible environmental effects on the 

natural or the human-built environment. So there has to be some— 

you know, some visible, tangible impact that is going to happen. 

And then, if the Service is analyzing that effect, then it can also 

analyze associated economic effects associated with the tangible environmental impact. But, as has been stated, in 30 years of doing 

these listings, they have consistently found that there is no significant harm—environmental harm from listing an injurious species, 

which, of course, makes sense. So, the economic analysis is not 

under NEPA, it is under the other acts. 

Mr. SABLAN. All right. So let me—so does the Lacey Act provide 

all the authorities—we need to stop the spread of invasive species 

in the United States. And, if not, what other authorities are necessary? 

Mr. JENKINS. Yes—— 

Mr. SABLAN. Is the level of Federal funding for invasive species 

prevention adequate? 

Mr. JENKINS. Thank you, Mr. Sablan. As we have heard, the 

Lacey Act was written 113 years ago. It is not a modern law. I 

would hope that this committee would take it up and really dig 

into the problems. Because I think we have all agreed that the 

Lacey Act is not a great law to be working under, it just happens 

to be the one that we have. 

So, H.R. 996 is a bill that is in front of this subcommittee that 

actually is aimed directly at modernizing the Lacey Act. And I 

would hope that the subcommittee would take it up. It does provide 

a whole slew of additional authority. And, for example, it gives the 

criteria that Mr. Meyers wanted to see spelled out much more in 

detail, as far as what would be a proper listing. It gives emergency 

authority, disease authority, and all those sorts of things. So I urge 

the subcommittee to grab H.R. 996 and have a hearing on it. 

Thank you, sir. 

Mr. SABLAN. Yes. We don’t control the gavel, but we will send a 

suggestion upstairs. Thank you. 

Dr. FLEMING. The gentleman’s time is up. Mr. DeFazio has arrived, so the Chairman—yes, very good, perfect timing. So I yield 

5 minutes for questioning to Mr. DeFazio. 

Mr. DEFAZIO. Thank you, Mr. Chairman. The disconnect here is 

those who are involved in the—both in the industry as the commercial part of the industry and those who are involved in aquariums 

and zoos are concerned about, you know, the potential for their 

concerns being ignored. As I understand it with zoos and aquariums, their problem is they have already got some exceptions in 

law, but it takes way too long for the agency to process those exceptions, and they are worried that this could even further muddle 

that process. Is that correct on the part of zoos and aquariums? 

Mr. MADDY. Yes, that is correct. 

42 

Mr. DEFAZIO. OK. I haven’t heard anyone object to your exemptions from any perspective. So that is something that we would 

need to figure out a way to take care of. And as for the commercial 

part of the industry, the concern is that the impact on business 

would be ignored without the NEPA process. 

I am wondering. And this is, at this point, sort of a work in 

progress in my head, but if we gave the agency—you know, I mean, 

agencies move slowly. But if we were to create some sort of new 

process which would allow for an emergency temporary designation 

that would be short-term, and then we would, after that, there 

would be a public process, and then you would either go into, say, 

the full NEPA process if the case wasn’t made for the need for 

emergency designation—I am just trying to think of a way to 

thread this needle, because I think that this is really something 

where we can kind of work this out. 

From my perspective, obviously, our goal is both to safeguard the 

environment and public assets, as what I talked about what happened with the Everglades. But also, you know, we are here for 

jobs and business, and we are certainly here for education and public recreation, in terms of those. 

So I would just like everybody—if anybody up there has an idea 

on perhaps a different process, as opposed to saying, ‘‘Stick to 

NEPA,’’ because, to be truthful, on any other day, this guy would 

not be supporting the idea of putting anything into a NEPA process. No offense, I mean—— 

[Laughter.] 

Mr. DEFAZIO. But we fight about that here all the time. 

Dr. FLEMING. I thank the gentleman for speaking for me today. 

[Laughter.] 

Mr. DEFAZIO. So—yes. 

Mr. GEHAN. Thank you, Member DeFazio. One thing I would like 

to clarify—and just before Mr. Jenkins—you came into the room, 

Mr. Jenkins reiterated a point he made, that in the case of NEPA, 

it is concerned about economic and social impacts to the extent that 

they overlap or involve the environmental concerns. 

And that gets to an issue that you begin to address when we are 

talking about animals that are and have been in trade, widely held 

on a national basis as pets. And that is the economic incentive created—or I should say disincentive—created by a listing. 

The ban, as the Service reads the law on interstate commerce, 

means that if you are a pet owner and your job takes you to another State, or you are a breeder and you have a large brood stock 

that is—you have invested millions in, but it is very, very, very 

costly to maintain, that the State Association of Fish and Wildlife 

Agencies itself said, ‘‘We are concerned that this listing will result 

in releases of these animals, engender the very harm you are trying to oppose, and this will tax State resources.’’ That is an environmental and economic concern that the Service never addressed 

in its environmental assessment. 

So, beyond just the impacts on the industry, which have been 

very, very significant, we are concerned about that. And so, I think, 

to your question, we are looking for a way to deal with species that 

are pets where the—in the case of—Burmese are very—they have 

the broadest range of any of the nine species proposed. Everything 

43 

else is tropical. In fact, boa constrictors’ range extends to Northern 

Mexico, but they have never moved further north, either, because 

it is too arid, too dry, or too cold. 

And I think State-Federal partnerships are one solution, allowing 

the agency to prohibit import only may be a tool they could use in 

their toolbox, and I think there are other solutions we could think 

of, including public education and partnerships between the industry, the agency and Congress. 

Mr. DEFAZIO. OK. Well, my time has expired, but, you know, I 

would like to continue the discussion. Because, I really think there 

are ways to divide this up a bit so that the agency feels that it has 

the tools it needs to prevent the importation of a new problem, and 

do it relatively quickly. 

And then you are raising a whole other issue with dealing with 

things that are already in domestic commerce, and how—what sort 

of actions—or how should we process those. 

And then, the other part we are not even talking about here, 

which all goes to the inadvertently—and I have dealt with this for 

years on Transportation with ballast water. We don’t have a good 

solution there. I mean the stuff that is coming into this country inadvertently has actually caused the greatest harm, and we don’t 

have great solutions there, either. 

So I am really open to ideas that people have. So thank you, Mr. 

Chair. 

Dr. FLEMING. The gentleman’s time up, and I think there are 

some more questions, so we will have another round for the panel. 

And I now yield myself 5 minutes for questions. 

Dr. FLEMING. These questions are specifically for the other side 

of the panel. I focused on the left over here, and now I am to the 

right. Mr. Maddy, Gehan, and Meyers. 

What is the value of an environmental assessment, as mandated 

by the National Environmental Policy Act? 

Mr. MADDY. From our perspective, the value is this opportunity 

to be heard, the opportunity to formally submit comments and 

make sure that the very specific concerns—scientific, biological, 

and also economic and business concerns—to make sure we have 

a place to get a good hearing, to work with it. 

We do work well with the Service, and we have worked with the 

Service more recently on the issue of blanket permits for some of 

these accredited institutions. And back to Mr. DeFazio’s comments, 

that might be a model that could be expanded for some of these. 

Dr. FLEMING. OK. So certainly fast-tracking and exclusions can 

take away some valuable opportunities for community input. 

Mr. MADDY. Correct. 

Dr. FLEMING. How does the failure to complete an environmental 

impact statement, or environmental assessment, affect the likelihood of your members or clients prevailing in Federal court? 

Mr. GEHAN. Thank you, Mr. Chairman. Additionally, I just want 

to add to your prior question that—a point I embrace in testimony. 

You could take the Magnuson-Stevens Fisheries Management and 

Conservation Act, which this subcommittee has jurisdiction over. It 

requires the use of best science, impacts on fishing communities, 

minimizing habitat, fisheries impact statements, and NEPA still 

44 

applies to all these things, but there are multiple opportunities for 

input and analysis that are required at multiple stages. 

NEPA is the only tool that provides for public input, specifically 

the notice and comment rulemaking. But that makes—gives the opportunity for the public to comment on the science, the rationale 

that is used. And that ties directly into litigation. Nobody wants to 

be in litigation. But the determination as to whether a species is 

injurious, which Congress completely committed—didn’t define 

committed to the agency’s discretion, means that any reasonable 

basis for thinking it might harm agriculture, human health, or 

other issues, you know, no judge would be able to allow it. 

But if an agency has to go through the NEPA processes, there 

are standards that have been created over years that lay out what 

the agency’s duties are, and we all know what they are. And then 

we are talking about whether the assessment was reasonable. 

Dr. FLEMING. OK. What are your specific concerns about the use 

of a categorical exclusion by the Fish and Wildlife Service? 

Mr. MEYERS. Well, as we have testified on numerous occasions, 

because there are no statutory standards, no prescribed process, we 

really feel that this could become a shortcut, it could become a bureaucratic—lead to some bureaucratic inertia on really doing a 

thorough and complete NEPA-styled analysis. 

We need that type of a record to be able to—really to justify and 

to try to figure out exactly how this will be implemented. This is 

a serious problem—again, going back to the weaknesses in the underlying statute. And, therefore, we look to the NEPA-styled assessments as being critical. And if they are going to be able to exclude that under categorical exclusion, where are we? We are back 

to being in controversy and questioning the science. And it is just 

going to be a bigger morass of stalling tactics, possibly by everybody. 

Dr. FLEMING. Sure. Would the regulated community be less concerned about the negative impacts of a Lacey Act categorical exclusion if it was limited to species that are not here or established in 

the United States? 

Mr. GEHAN. Well, briefly, I think that raises a lot less concern. 

However, USARK, you know, is in favor of just simply a blanket 

ban on every non-native species. You know, there are species in the 

European trade that aren’t traded here. There may be future opportunities. I just don’t think there is a substitute for an actual injurious finding, based on a record. 

Dr. FLEMING. OK. 

Mr. MEYERS. And in my testimony I point out that because you 

have been able to use it in the past on certain listings, I don’t know 

how you can predict that that is uniformly applicable in the future 

for all other species. So it is—I think it is a dangerous road to 

walk. 

Dr. FLEMING. OK. One more question. What is your reaction to 

Mr. Jenkins’ testimony that preparing a NEPA EA is redundant? 

Avoiding that administrative step will help speed up listings? 

Mr. GEHAN. Redundant of what? I mean there is no other law 

that requires the agency to do such analyses. 

Dr. FLEMING. OK. 

45 

Mr. GEHAN. And I can’t imagine that preparing an environmental assessment has delayed brown tree snakes for 40 years. 

Dr. FLEMING. Right. 

Mr. GEHAN. Or—you know, any of the others. 

Mr. MEYERS. And I find it interesting, because it has been the 

environmental community that has enjoyed the NEPA requirements, as a club to oversee Federal activities. So I guess what is 

good for the goose isn’t good for the gander. 

Dr. FLEMING. Right. Well, my point, precisely. Cutting through 

red tape, cutting through bureaucracy is great. But it should be a 

two-way street, not simply for the environmental community or for 

government. These impacts, the ultimate price is paid for, often, by 

the private industry. 

My time is up. I yield to my colleague—— 

Mr. SABLAN. Thank you very much, Mr. Chairman. And I want 

to thank you also for staying behind and probably rearranging your 

flights. I don’t have that problem, so—— 

[Laughter.] 

Mr. SABLAN. But Mr. Jenkins, let me ask. Even if a species is 

already here, isn’t the Lacey Act’s provision against interstate 

transport a powerful tool to keep invasions from spreading? 

Mr. JENKINS. Yes, and I would like to address that question 

about somehow having different categorical exclusion, depending 

on whether a species is here or not here. 

When I was at Defenders of Wildlife 2007, we issued a report 

called ‘‘Broken Screens,’’ that actually did a FOIA on all the 

records the Fish and Wildlife Service has about imports. We know 

that there are at least 3,000 different species of non-native animals 

that are imported—or have been imported in the United States, according to those records. Now, the exact number could be up to 

10,000. Marshall Meyers with PIJAC may tell you that their industry has imported, you know, many more than the ones that are 

shown in the records by species name. 

The problem is, what does it mean that a species has already 

been imported? Are all those species going to be excluded from further analysis? No, that doesn’t make sense. What does it mean that 

a species is here? It has been shipped into the United States once 

or twice, or it is already in—as somebody’s pet? 

Now, I agree there are concerns about the way the Lacey Act regulates people who have private pets that got later listed under the 

Lacey Act. And H.R. 996 would deal with that. It has a 

grandfathering exemption to give them a grandfathering ability to 

keep those species and take them across State lines without becoming a Federal felon, which I agree is a problem. 

But that is an entirely different issue from NEPA. The risk that 

the species propose—doesn’t matter if it has been imported once or 

twice already or not—the scientists just need to look at the risks, 

scientifically. 

Mr. SABLAN. All right. And so I am going to come back to Mr. 

Hoskins. 

Some of the testimony we have heard today makes it sound like 

this categorical exclusion gives the Service a carte blanche to list 

whatever species it wants to as injurious with no justification. And 

I don’t think so, but I don’t want you to do that. But—so is it true, 

46 

or will species still be reviewed on a case-by-case basis to determine if listing under the categorical exclusion is appropriate? 

Mr. HOSKINS. Well, first of all, I think the threshold question is 

whether it would qualify for a categorical exclusion. And based on 

the CEQ’s own guidance, we believe it is reflected in the notice that 

it does, because it maintains the environmental status quo, and 

there is a long record of environmental assessments that had found 

findings of no significant impact. 

In addition, it does not obviate our need to comply with the Administrative Procedures Act, the requirements of the Lacey Act, the 

Regulatory Flexibility Act, and Executive Order 12866, as reflected 

in my testimony. 

And, finally, to address your specific question, we would continue 

in that context to assess whether a species qualifies for injurious 

listing under the provisions of the Lacey Act and the APA. 

Finally, in circumstances that are deemed extraordinary, there 

would be an obligation on the Service at that point to invoke the 

normal EA requirement. 

Mr. SABLAN. So you are talking the bureaucracy—so let me ask 

you this now. Will the science behind any listing proposal under 

the categorical exclusion still be cited in the Federal Register for all 

of us to see? 

Mr. HOSKINS. We would explain, in the context of the proposed 

listing, why the action is necessary, and the effect that the action 

is expected to have on the public. It also would provide opportunities for comment. And that would include looking at the science 

that underpins the decision whether to list that species as insurance under the Lacey Act. 

Mr. SABLAN. So, the proposed rule—does the proposed rule eliminate any avenues for judicial review of decisions made by the Service? Will the proposed listing of species under the categorical exclusions still be subject to public notice and comment? 

Mr. HOSKINS. It would still be subject to public notice and comment if it is a regulatory action under the APA. 

Mr. SABLAN. And the judicial review? 

Mr. HOSKINS. They would also be subject to judicial review. 

Mr. SABLAN. All right, thank you. Mr. Chairman, I yield back my 

time. 

Dr. FLEMING. The gentleman yields back. Are there any further 

questions? 

Mr. SABLAN. No, sir. 

Dr. FLEMING. OK. Well, I want to thank the members of our 

panel for a very important, very enlightening, educational discussion today. 

Members of this subcommittee may have additional questions for 

the witnesses, and we ask you to respond to these in writing. The 

hearing record will be open for 10 days to receive these responses. 

Before closing, I would like to ask unanimous consent to submit 

for the record a letter I wrote, along with our colleagues, Rob 

Bishop, Don Young, and Steve Southerland, to Director Dan Ashe, 

asking him to withdraw the proposal, and the recent response of 

the Fish and Wildlife Service. 

Dr. FLEMING. No objection? So ordered. 

47 

[The letter and response provided by Dr. Fleming for the record 

follows:] 

LETTER TO U.S. FISH AND WILDLIFE SERVICE

U.S. HOUSE OF REPRESENTATIVES, 

WASHINGTON, DC, 

JULY 24, 2013. 

Hon. DANIEL M. ASHE, Director, 

U.S. Fish and Wildlife Service, 

1848 C Street, N.W., 

Washington, DC 20240. 

DEAR DIRECTOR ASHE: 

On July 1, 2013, the U.S. Fish and Wildlife Service announced in the Federal 

Register its intention to implement a Categorical Exclusion under the National Environmental Policy Act (NEPA) for the addition of species to the ‘‘injurious wildlife’’ 

list under the Lacey Act. 

While invasive species pose a growing challenge to the Fish and Wildlife Service 

(Service), the public has an interest in the Service continuing to conduct Environmental Assessments to determine whether a particular species or group of species 

merits inclusion on the ‘‘injurious wildlife’’ list. This is particularly important in 

light of the fact that the Service has recently been listing species causing major economic impact on thousands of small businesses in the United States. Those Americans who will potentially be affected in the future deserve a full examination of the 

environmental, economic and social impacts of such a listing. 

In particular, on March 20, 2012, the Service proposed to list nine species of nonnative constrictor snakes. After nearly 2 years of careful analysis of the Environmental Assessment by the Small Business Administration and the Office of Management and Budget, the Service decided to only list four of the nine snake species. 

At that time, Secretary Ken Salazar said his decision was to ‘‘strike a balance’’ between economic and environmental concerns. This careful review would not have occurred with a NEPA Categorical Exclusion. 

The Service has not made a sufficient case to establish the necessity of a categorical exclusion for the Lacey Act. Further, we are not aware that the Service even 

publicly mentioned this idea prior to July 1, 2013. Therefore, we request that the 

Service immediately withdraw this ill-timed proposal. 

As you know, the Natural Resources Committee is currently in the process of 

holding a series of oversight hearings on the Lacey Act. Once the proposal has been 

withdrawn, we will invite the Service to testify in a public hearing to the justification, rationale and need for this fundamental change in the application of the National Environmental Policy Act. 

Mr. Director, we would be pleased to discuss this with you further at any time 

and look forward to hearing from you at your earliest convenience. 

Sincerely, 

JOHN FLEMING, 

ROB BISHOP, 

STEVE SOUTHERLAND, 

DON YOUNG, 

Committee on Natural Resources. 

RESPONSE LETTER FROM U.S. FISH AND WILDLIFE SERVICE

U.S. DEPARTMENT OF THE INTERIOR,

FISH AND WILDLIFE SERVICE, 

WASHINGTON, DC 20240, 

AUGUST 28, 2013. 

Hon. JOHN FLEMING, 

U.S. House of Representatives, 

Committee on Natural Resources, 

Washington, DC 20510. 

DEAR REPRESENTATIVE FLEMING: 

48 

Thank you for your letter of July 24, 2013 regarding the proposed Categorical Exclusion under the National Environmental Policy Act (NEPA) for the Administrative 

listing of species to the injurious wildlife list under the Lacey Act (18 U.S.C. 42). 

The proposed Categorical Exclusion (CE) would affect only one small part of a 

much larger and more complex regulatory procedure. It would simply provide the 

U.S. Fish and Wildlife Service (Service) with the flexibility to use a CE when appropriate for a given injurious wildlife listing procedure, which means we would not 

necessarily have to prepare an Environmental Assessment (EA). Just as with all 

promulgations of Federal regulations, injurious wildlife listings would still be subject to NEPA, and the Service would have to make a determination for each one 

as to whether or not its circumstances fit the conditions of the CE. 

All other statutory requirements for establishing Federal regulations would remain in place, including those under the Administrative Procedure Act (APA), Executive Order 12866, and the Regulatory Flexibility Act (RFA). These laws impose the 

bulk of public participation and analysis that you mention in your letter. As they 

did with the constrictor snake rule, these statutes provide for the preparation of 

rules that contain an evaluation of each species proposed for listing, including the 

biological and risk assessments (which include environmental effects), as well as 

economic and regulatory flexibility analyses. Under the APA, we will also continue 

to offer the public an opportunity to review and comment on any proposed listing 

under the Lacey Act. All of these actions are conducted separately from the EA. 

The EA for the constrictor snake rule resulted in a ‘‘Finding of No Significant Impact’’. The only comments we received on that EA, per se, stated that the Service 

should consider impacts of harvesting these snake species in their native ranges. 

The Small Business Administration (SBA) did not provide any comments on that 

EA, but the SBA did provide comments on the economic analysis and regulatory 

flexibility analysis, which were prepared under Executive Order 12866 and RFA. 

The Service addressed SBA’s comments in the final versions of the economic analysis and the regulatory flexibility analysis in January 2012. 

The case made by the Service for the proposed action consists of three justifications that uphold the Council on Environmental Quality’s (CEQ) guidelines for a 

CE: (1) maintaining the environmental status quo, meaning the listing action does 

not cause the condition of the environment to change; (2) history of findings of ‘‘no 

significant impact’’; and (3) the proposed CE would be consistent with existing CEs. 

CEQ reviewed and approved this notice prior to publication. In response to your 

concerns, the Service has reopened the public comment period for an additional 60 

days, closing on October 15, 2013, to give the public more time to provide input on 

the proposal. We have provided the Federal Register notice and other related information on our website at http://www.fws.gov/injuriouswildlife/catex.html. When we 

review and address public comments from the current notice, we will again coordinate with CEQ on a final determination. 

The Service agrees with your observation that invasive species pose a growing 

threat to our Nation. By working proactively to reduce this threat through implementation of the Lacey Act’s injurious wildlife provisions, we are striving to reduce 

the long-term economic and environmental burden on the public by preventing irreversible harm to natural resources from invasive species. 

Thank you for the opportunity to respond and address your concerns. If you have 

any further questions, please contact me personally, or have your staff contact the 

Service’s Assistant Director for Fish and Aquatic Conservation, Mr. David Hoskins, 

at (202) 208–6393. 

Sincerely, 

ROWAN W. GOULD, DEPUTY DIRECTOR, 

Fish and Wildlife Service. 

Dr. FLEMING. I find it fascinating that there has not been more 

outrage from the environmental community, who never hesitates to 

demand full NEPA compliance, but is strangely quiet in this particular case. 

In the final analysis, I am pleased that the Service decided to extend the public comment period until October 15. However, the 

case has not been made for the categorical exclusion. And I agree 

with the Small Business Administration’s office of advocacy, who, 

in their comments on the proposal, wrote that—and quote—‘‘It is 

49 

unclear why the Interior would propose a categorical exclusion for 

FWS’s listing under the Lacey Act, based upon the premise that 

those listings will have no environmental impact when, by statute, 

all wildlife that is proposed to be listed under the Lacey Act must 

be shown to have an injurious environmental impact.’’ 

I want to thank Members and their staff for their contributions 

today for this hearing. If there are no further business, without objection, the subcommittee stands adjourned. 

[Whereupon, at 12:55 p.m., the subcommittee was adjourned.] 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

QUESTIONS SUBMITTED FOR THE RECORD BY CHAIRMAN FLEMING TO THE U.S. FISH

AND WILDLIFE SERVICE

Question. Did you consult with the Council on Environmental Quality on the proposed Categorical Exclusion? Please provide the Subcommittee with copies of your 

correspondence to them. 

Answer. Pursuant to section 1507.3(a) of Council on Environmental Quality (CEQ) 

Regulations, the Service must consult with and receive approval from the CEQ before establishing a new or revised categorical exclusion. For this categorical exclusion, the Service coordinated with CEQ through the Department’s Office of Environmental Policy and Compliance (OEPC). 

Question. In the future, how will the regulated community know when the Service 

used a Categorical Exclusion? Is there a requirement to print its use in the Federal 

Register? 

Answer. In the future, when the Service uses a categorical exclusion in a rule to 

list a species as injurious, the Service will include that information when it publishes its proposed and final rules in the Federal Register. This information is required and will be found under the heading ‘‘Required Determinations’’ and the subheading ‘‘National Environmental Policy Act’’, where each published injurious wildlife rule will include information on how the Service addressed NEPA and whether 

the Service relied upon a categorical exclusion. 

Question. If the Categorical Exclusion is utilized, what sort of record will the 

Service’s decision be based on and will such record be provided to the public? 

Answer. If the Service uses a categorical exclusion, we must document our decision with an Environmental Action Statement (form 550 FW 3, Exhibit 4). That 

form will be part of the broader Administrative Record for the injurious wildlife 

rulemaking and will be made available to the public. 

Question. Will the Service’s ‘‘extraordinary circumstances’’ analysis be published, 

either in the record or in the Federal Register notice? 

Answer. In determining whether to utilize the categorical exclusion, the Service 

will consider whether any of the ‘‘extraordinary circumstances’’ set forth in 43 CFR 

46.215 applies to the proposed action, and will document that determination in the 

Environmental Action Statement and injurious wildlife rulemaking administrative 

record. 

Question. What is a normal time-frame to complete an Environmental Impact 

Statement (EIS)? What about the costs to the agency? 

Answer. Time-frames and costs for environmental impact statements vary widely 

with the complexity of each proposed action. Preparation times for environmental 

impact statements among Department of the Interior bureaus have ranged from 18 

months to 5 years at costs ranging from around $500,000 to $2 million. 

Question. How long does it take to complete an Environmental Assessment? How 

is it fundamentally different from an EIS? What are the cost differences between 

the two? 

Answer. Environmental Assessments (EAs) may take up to 1 year to complete, 

but we have no cost estimates for them. The content requirements for an EIS are 

more extensive than for an EA and are set forth in Council on Environmental Quality regulations at 40 CFR § § 1502.10 through 1502.25. In contrast, environmental 

assessments include brief discussions of the proposal, the need for the proposal, alternatives, environmental impacts of the proposed action and the alternatives, and 

a list of agencies and persons consulted (40 CFR § 1508.9 and 43 CFR § 46.310), 

50 

Question. What is the value of these environmental assessments? 

Answer. Under NEPA regulations, the purpose of an environmental assessment 

is to determine whether the proposed action has the potential to cause significant 

impact on the human environment and to inform the decisionmaker and the public 

of such environmental determinations. The EA is used to determine whether to prepare an environmental impact statement or to make a finding of no significant impact (FONSI). Its value lies in saving an agency from having to prepare a very 

lengthy document (EIS) when there is reason to believe that an EIS will not be necessary. 

Question. When the Fish and Wildlife Service proposes to administratively establish a new national wildlife refuge does it conduct an Environmental Impact Statement or an Environmental Assessment? Who makes that decision? 

Answer. The Service routinely completes an EA for refuge establishments and 

major refuge expansions, unless circumstances warrant the completion of an EIS. 

The regional director decides if an EIS is to be completed at the outset, rather than 

an EA, based on a review of known or reasonably foreseeable, potential impacts on 

the human environment or that controversy over the environmental effects exists. 

The assessment made through the development of the EA may result in a determination that an EIS is necessary. In either case, with respect to refuge establishments and major refuge expansions, developing an EIS has been rare. For example, 

every establishment and major refuge expansion in the Southeast Region over the 

past 25 years has been accomplished through the completion of an EA with the exception of the establishment of Waccamaw National Wildlife Refuge (NWR) in 1998. 

The Waccamaw establishment was completed through an EIS at the request of 

State elected officials and because of the level of environmental controversy associated with the proposed project. 

Question. In the case of the Everglades Headwaters National Wildlife Refuge, the 

Fish and Wildlife Service conducted an Environmental Impact Statement. Why was 

this considered a major Federal action? 

Answer. The Service did not find the establishment of Everglades Headwaters 

NWR to be a major Federal action under NEPA requiring preparation of an EIS. 

An EA for the establishment of Everglades Headwaters NWR was prepared, and it 

was published in January 2012. The EA resulted in a Finding of No Significant Impact, which negated the need to prepare an EIS. 

Question. Conversely, when the Fish and Wildlife Service proposed to increase the 

size of the Chickasaw and Lower Hatchie National Wildlife Refuges in Tennessee, 

which would be more than twice the number of acres acquired by fee title in Central 

Florida, the Service used an Environmental Assessment. What was the difference? 

Answer. Similar to the establishment of Everglades Headwaters NWR, the Service 

has drafted an EA in the proposed boundary expansions of Lower Hatchie and 

Chickasaw NWRs. The draft EA is not yet final. 

Question. Does the Fish and Wildlife Service use an Environmental Impact Statement or Environmental Assessment for the completion of a statutory required refuge Comprehensive Conservation Plan? Wouldn’t it be much more efficient to simply 

seek a Category Exclusion for the completion of these plans? 

Answer. Similar to the land acquisition planning process, the decision to complete 

an EIS or EA for a refuge’s Comprehensive Conservation Plan (CCP) is usually 

based on a review of known, reasonably foreseeable potential impacts of the project 

on the human environment or environmental controversy that exists at the outset 

of determining the need for the action. According to Service Manual 602 FW 3, each 

CCP must comply with NEPA through the concurrent preparation of an EA or EIS 

for the completion of the plan. A CCP describes the desired future conditions of a 

refuge and provides long-range guidance and management direction to achieve refuge purposes, as well as compliance with various laws and executive orders. Given 

the nature of a CCP, the variability between needs and management approaches at 

each NWR, and the often complex environmental and sociological issues involved, 

either an EA or an EIS is appropriate for the completion of a CCP. 

The Service may use only categorical exclusions that have been approved. There 

is no categorical exclusion on record for the CCP, and the Service does not believe 

this activity fits the guidelines for establishing categorical exclusions. 

Question. Has the Fish and Wildlife Service previously sought a Categorical Exclusion for Lacey Act listings in the past? 

Answer. Although the Service has utilized an existing NEPA Categorical Exclusion (see response to Question 16), it has not previously sought the addition of a 

new Categorical Exclusion for the listing of injurious wildlife under the Lacey Act. 

51 

Question. If you have not, what has dramatically changed that cries out for this 

fundamental change? After all, you are already doing just an Environmental Assessment on these species. is that not correct? 

Answer. The Service implements 18 U.S.C. 42 to protect United States interests 

from the harm such species can cause to the Nation’s economic, environmental, and 

human interests. This statutory tool protects these interests by preventing harmful 

species from being imported into the Nation or from being transported over State 

lines without a permit. However, the administrative process for listing injurious 

wildlife can be protracted and complex, reducing its effectiveness. We are seeking 

opportunities available under the regulatory process to expedite the listing process 

and, in so doing, support the purposes of the Lacey Act’s injurious wildlife provisions. 

Question. Under a Categorical Exclusion is the Fish and Wildlife Service required 

to conduct any environmental analysis? Please describe in detail. 

Answer. For the purposes of rulemaking, the Administrative Procedure Act (APA) 

requires the Service to explain in our listing rules the basis for our determination. 

For each proposed injurious wildlife listing, we also present risk and biological assessments of the proposed species for injuriousness in the listing rule as part of our 

analyses that we use in the decisionmaking process to justify listing species under 

the Lacey Act. The risk and biological assessments are not specifically required in 

the law, but the Service provides them as a part of our explanation for the basis 

of our determinations. 

If a categorical exclusion is applied to a Federal action, an Environmental Action 

Statement is prepared. The Service explains why the proposed rule qualifies for the 

categorical exclusion under NEPA and also considers whether any of the ‘‘extraordinary circumstances’’ found at 43 CFR 46.215 apply. 

Question. Is the Fish and Wildlife Service required to complete an economic analysis under a Categorical Exclusion? Please describe in detail. 

Answer. Under NEPA, an economic analysis is not required, but it may be carried 

out as part of an Environmental Assessment in order to assess the economic impacts 

generated by the impacts of a Federal action on the human environment. If a Federal action is eligible for a categorical exclusion, it has no significant impacts on the 

quality of the human environment, and therefore no economic analysis is carried out 

for that purpose. 

However, as part of the rulemaking process, the Regulatory Flexibility Act (RFA) 

requires Federal agencies to analyze the effect of their regulatory actions on small 

entities (small businesses, small non-profit organizations, and small jurisdictions of 

government) and consider less burdensome alternatives, if the regulatory effect is 

likely to be ‘‘significant,’’ affecting a ‘‘substantial number’’ of these small entities. 

The economic analysis conducted by the Service under the RFA is independent of 

any requirements or process under NEPA. 

Also part of the rulemaking process, Executive Order 12866 for Regulatory Planning and Review Looks at whether: (1) the rule will have an annual effect of $100 

million or more on the economy or adversely affect an economic sector, productivity, 

jobs, the environment, or other units of the government; (2) the rule will create inconsistencies with other Federal agencies’ actions; (3) the rule will materially affect 

entitlements, grants, user fees, loan programs, or the rights and obligations of their 

recipients; or (4) the rule raises novel legal or policy issues. Significant rulemakings 

under EO 12866 are required to assess the potential costs and benefits of the regulatory action, which would extend to impacts beyond the scope of analyses pursuant 

to RFA. Any ‘‘economically significant’’ rulemakings under section 3(f)(1) of this Executive Order must include not only an assessment of costs and benefits but also 

reasonably feasible alternatives. The Service will continue to conduct economic analyses, where appropriate, under this Executive Order, for injurious wildlife listing actions, regardless of whether or not the proposed categorical exclusion is finalized. 

Question. In 2002, the Service utilized the Department’s Categorical Exclusion to 

list the brushtail possum and snakehead fish. Why is it no longer appropriate to 

utilize this existing authority? 

Answer. In 2002, the Service used an existing departmental categorical exclusion: 

‘‘Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are 

too broad, speculative, or conjectural to lend themselves to meaningful analysis and 

will later be subject to the NEPA process, either collectively or case-by-case’’ [(43 

CFR 46.210(i)] in the listing actions for the brushtail possum and snakehead fish 

species, The Service stated in its proposal for the categorical exclusion at issue: 

‘‘Upon further review, the Service believes that this is not the best description of 

why injurious species listings do not have a significant effect on the human environVerDate Mar 15 2010 09:15 Oct 20, 2014 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6621 J:\02 FISHERIES, WILDLIFE\02SE20 1ST SESS\9-20-13 P\82951.TXT DARLEN
52 

ment. Therefore, the Service is pursuing the addition of a new categorical exclusion 

for the listing of injurious species under the Act.’’ 

Question. In its comments on the proposed Categorical Exclusion, the United 

States Association of Reptile Keepers claims the Environmental Assessment the 

Service prepared for this listing failed to address significant scientific issues and to 

respond to significant environmental issues raised by environmental groups, State 

wildlife officials, the zoo and aquarium community, academic and private conservation researchers during the comment period. How were these issues addressed in 

the NEPA documents? 

Answer. Many of the comments raised by United States Association of Reptile 

Keepers (USARK) for the Service’s listing of several constrictor snakes as injurious 

wildlife were for subjects not relevant to NEPA. They were addressed in responses 

published in the final rule. 

Question. Of the previous 230 Lacey Act listing, how did the constrictor snake 

case compare and contrast with those efforts? Isn’t this the first time that a widely 

held species was listed as injurious? 

Answer. One example of how the listing of injurious wildlife has differed in some 

cases from the 2012 listing of large, constrictor snakes is by virtue of some prior 

listings having been completed through the legislative process. Reasons for listing 

by the Service may vary, depending on a range of factors that may include how the 

species may enter the United States or be transported between States, its natural 

history, and how it impacts the specified statutory interests, However, all injurious 

wildlife listings completed through the rulemaking process are consistent with all 

applicable Federal laws. Bighead carp, a species commonly kept and traded in the 

aquaculture industry and listed by Congress in 2010, was also a widely held injurious wildlife species at the time of listing, albeit not by individuals as pets. 

Question. Does the Service intend to use a Categorical Exclusion for the remaining five constrictor snakes that Secretary Salazar decided not to list 20 months ago? 

Answer. The proposed categorical exclusion (published in the Federal Register 

July 1, 2013) will not be applied in the Service’s consideration of injurious wildlife 

listing for the remaining five species of large, constrictor snakes proposed for such 

listing in March of 2010. 

Question. When will a decision be made on these species? It strikes me that it 

is fundamentally unfair that these species have been treated as defacto listings for 

the past 20 months. 

Answer. The status of the remaining fives species is under consideration and review, and we anticipate that a decision will be made in early 2014. 

Question. What other species are pending a decision on whether they qualify as 

injurious wildlife? Please explain the delay. 

Answer. The Service received a petition in September 2009 to list all amphibians 

as injurious unless they are accompanied on import or interstate transport by a certificate declaring them as free of Batrachochytrium dendrobatidis (amphibian 

chytrid fungus). The Service published a Notice of Inquiry in the Federal Register 

in September 2010, and the petition is currently still under consideration. The Service also received a petition on May 28, 2003, from the North American Brown Tree 

Snake Control Team requesting that the entire Boiga genus of snakes be considered 

for inclusion in the injurious wildlife regulations. The Service published a Notice of 

Inquiry in the Federal Register on September 12, 2003. We received public comments and started the process for preparing a risk assessment for the Boigas. The 

delay for the listing process for these petitions is primarily due to their complexity, 

competing priorities, and limited available resources. 

Question. Under current law, the Fish and Wildlife Service can petition itself to 

list a species as ‘‘injurious wildlife’’. By making it easier or in the words of the agency ‘‘more efficient’’, are there any limits on what the Service could list under the 

Lacey Act? Could the agency simply decide to list all non-native species? 

Answer. The Service may list species as injurious wildlife only to the extent allowed by existing Federal law. For example, the Lacey Act authorizes only specific 

taxonomic groups that may be listed as injurious (wild mammals, wild birds, fish, 

reptiles, amphibians, mollusks, and crustaceans). In addition, we must justify that 

they are injurious to the health and welfare of human beings, to the interests of 

forestry, agriculture, and horticulture, or to wildlife or wildlife resources of the 

United States. New efficiencies captured by the Service in the regulatory listing 

process must also conform to existing Federal laws. Making the process more efficient means that the Service will be able to expedite the injurious wildlife listing 

process, allowing it to tackle major threats to the American people and economy 

53 

more cost-effectively, while also continuing to ensure that listings remain scientifically accurate and promote public transparency and accountability. 

Question. Does the Fish and Wildlife Service believe that the listing of non-native 

species as ‘‘injurious wildlife’’ is a priority program within the agency? 

Answer. The Service considers the listing of harmful species as injurious wildlife 

one of many priorities within the agency. 

Question. If yes, how many FTEs and how much money is dedicated to the listing 

program each year? Please provide to the Subcommittee an annual breakdown over 

the past 20 years on the number of FTEs that have worked on the listing process. 

Answer. The Service currently employs two FTEs for injurious wildlife. Prior to 

2000, listing of injurious wildlife activities were carried out as part of the duties of 

staff also assigned to other work in the Fish and Aquatic Conservation Program. 

From 2000 until 2009, the Service dedicated one FTE for injurious wildlife listing. 

A second FTE was added in 2010. Funding for the listing program supports the 

FTEs (estimated at $150,000 per FTE per year) and includes some additional funds 

to support administering listings, such as Federal Register printing costs and related technical work, such as conducting risk assessments. 

Question. By contrast, the Fish and Wildlife Service has 1,139 employees working 

on the Endangered Species Act, 89 employees working in the Realty Division, and 

105 employees in the Federal Aid to Sport Fish and Wildlife Program who calculate 

and distribute excise taxes collected by the Department of the Treasury to the 

States. Can you honestly tell me that 2 Federal employees who must decide whether 

to list or not list a species demonstrates a commitment to remove the threats of 

invasive species? 

Answer. While the Service agrees that removing the threat of invasive species 

through the listing of injurious wildlife is important, the agency has no specific appropriation to carry out this work. Many statutory obligations and commitments are 

also considered in our allocation of limited discretionary funds, and most of our resources are appropriated for a specific purpose, such as Land Acquisition or the 

Sport Fish and Wildlife Restoration programs. The law prevents the Service from 

using specifically appropriated funds for purposes other than as intended by Congress. 

LETTER SUBMITTED FOR THE RECORD FROM IMPERIAL IRRIGATION DISTRICT

IMPERIAL IRRIGATION DISTRICT

IMPERIAL, CA 92251 

OCTOBER 3, 2013. 

Hon. JOHN FLEMING, Chairman, 

Hon. GREGORIO KILILI CAMACHO SABLAN, Ranking Member, 

Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs, 

Committee on Natural Resources, 

Washington, DC 20515. 

Re: Statement for the record of the hearing on The Department of the Interior’s 

proposal to use a Categorical Exclusion under the National Environmental Policy Act (NEPA) for adding species to the Lacey Act’s list of injurious wildlife 

DEAR CHAIRMAN FLEMING AND RANKING MEMBER SABLAN: 

The Imperial Irrigation District of California respectfully requests that this letter 

be included in the record of the Subcommittee’s hearing on The Department of the 

Interior’s proposal to use a Categorical Exclusion under the National Environmental 

Policy Act (NEPA) for adding species to the Lacey Act’s list of injurious wildlife. 

IID is seriously concerned that the U.S. Fish and Wildlife Service’s (USFWS) proposal to forgo a full NEPA review of proposed additions to the Lacey Act’s list of 

injurious species, specifically the possible addition of the invasive quagga mussel, 

would not allow for proper consideration of the potential adverse effects that such 

a listing would have on existing and future interstate water supply operations and 

water transfers. 

IID is a public agency that diverts 3.1 million acre-feet of water annually from 

the Colorado River to irrigate 520,000 acres of highly productive farm land in California’s Imperial Valley. IID’s water supplies are conveyed through the federally 

owned Imperial Dam and All-American Canal, which IID operates and maintains 

under contracts with the Department of the Interior, and through IID’s own system 

54 

of more than 3,000 miles of canals and drains. Additionally, IID distributes electricity generated by hydroelectric facilities built along the All-American Canal. 

IID is well aware of the threat posed by aquatic invasive species, including the 

quagga mussels in the Colorado River water supply, and we support the intensive 

state and local efforts already under way to prevent and control the spread of these 

destructive invasives. 

However, IID is concerned by the proposal to adopt a blanket categorical exclusion 

for NEPA review on new additions to the Lacey Act list, particularly in light of the 

USFWS use of the Lacey Act to curtail water supply and transfer operations on 

Lake Texoma in Texas. In the Texas case, the USFWS invoked the Lacey Act to 

halt a critical water supply project because of the presence of invasive zebra mussels 

in the lake, even though the transfer project included special provisions to prevent 

the spread of the mussels. The 112th Congress had to enact legislation (PL 112– 

237) to allow the Texas water project to continue operation. 

Zebra mussels are listed as ‘‘injurious’’ under the Lacey Act, while the similarly 

destructive quagga mussels are not listed under the Act. Quagga mussels are 

present in the Colorado River. If quagga mussels are added to the Lacey Act list, 

the Act’s strict restrictions on interstate transport of listed invasive species could 

be applied in a manner that would disrupt vital water supply operations on the Colorado River, including water transfer agreements to which IID is a party. 

For this reason, IID and other public agencies in the Lower Colorado River Basin 

asked for a 60-day extension of the initial 30-day comment period on the USFWS 

categorical exemption proposal so that the potential effects on Colorado River operations and transfers can be more fully considered. In response to these requests, the 

USFWS reopened the comment period for 60 days, ending October 15. 

IID believes that a categorical exclusion is inappropriate when additional Federal 

regulation of the species proposed for listing would have potentially significant adverse impacts on water supply and hydroelectric operations vital to the regional 

economy and the well-being of millions of citizens. 

Actions taken under the Lacey Act to alter, delay or halt Colorado River operations—as the USFWS did at Lake Texoma—would disrupt both the human and environmental status quo and could be expected to significantly affect highly productive agricultural lands and fish and wildlife habitat (including ongoing efforts to improve conditions at the Salton Sea), Further, such actions would be highly controversial, would likely have unforeseen consequences, could conflict with existing 

inter- and intrastate agreements, and may undermine the authorized purposes of 

the Federal Government’s water storage and distribution facilities in the Lower Colorado River Basin. 

For these reasons, IID believes that the USFWS should not apply a categorical 

exclusion to proposed Lacey Act listings when such a listing would likely affect 

interstate water supply operations, hydroelectric operations or water transfers. Potential impacts to these operations must be thoroughly examined in a transparent, 

public process before a new listing is made. 

IID greatly appreciates the Subcommittee’s oversight of the USFWS proposal and 

its potential consequences. Thank you for considering IID’s views on this important 

matter. 

Sincerely, 

KEVIN E. KELLEY, 

General Manager. 

PREPARED STATEMENT OF NORTH TEXAS MUNICIPAL WATER DISTRICT

The North Texas Municipal Water District [NTMWD] wishes to express its appreciation for the hearing which you conducted on September 20, 2013 concerning the 

categorical exclusion, which is being proposed by the United States Fish and Wildlife Service [FWS] for listing a species under the Lacey Act. During this hearing, 

FWS Assistant Director David Hoskins testified that implementation of a categorical exclusion would allow the Service to, ‘‘. . . bypass the completion of an EA or 

an EIS when undertaking actions that a Federal agency identifies that, under normal circumstances, do not have a potentially significant environmental impact, either individually or cumulatively.’’ 

NTMWD is deeply concerned over the issue of listing species under the Lacey Act, 

particularly with regard to invasive mussels. Nearly 4 years ago, zebra mussels 

were discovered in Lake Texoma, a water supply reservoir that provides 28 percent 

of the water supply for NTMWD’s 1.7 million customers. This Subcommittee is well 

55 

aware of the subsequent steps that were necessary to restore this essential water 

supply, including the introduction and passage of H.R. 6007, the ‘‘North Texas 

Zebra Mussel Barrier Act of 2012’’ which subsequently became P.L. 112–237. This 

effort also required NTMWD to spend over $300 million of our customers’ money 

to construct a 46-mile long closed pipeline from Lake Texoma to our water treatment plant in Wylie, Texas. The closed pipeline ensures that zebra mussels, although technically transported across the Oklahoma/Texas border will not be spread 

by the NTMWD into the waters of Texas. 

The Subcommittee will also recall that while FWS did not question whether our 

proposed plan essentially eliminated the spread of zebra mussels, they opposed the 

North Texas Zebra Mussel Barrier Act of 2012 based on their rigid interpretation 

of the Lacey Act, which prohibits any possession or transport of a listed species, regardless of whether a critical water supply for an entire region would be put at risk. 

The counteroffer of FWS for a 5-year moratorium on prosecution under the Lacey 

Act would have required us to enter into a non-prosecution agreement with the U.S. 

Attorney for the Eastern District of Texas. It also required the formal approval of 

numerous Federal and State agencies in both Texas and Oklahoma and had to be 

renewed every 5 years. Given the fact that NTMWD’s need to deliver water is ongoing and cannot be broken down into 5-year cycles, it would have been irresponsible 

for NTMWD to agree to a plan that would have exposed 28 percent of its water supply to repeated interruption. 

FWS has identified more than 4,400 invasive species which inhabit their National 

Wildlife Refuge System. Each of these species is a candidate for listing under the 

Lacey Act, with that process shortened by implementation of a categorical exclusion. 

There is also an effort in the 113th Congress to legislatively mandate that quagga 

mussels be listed as an invasive species under the Lacey Act. The use of a categorical exclusion that removes the requirement for either an Environmental Assessment or an Environmental Impact Study has the potential to greatly speed this listing process based on a congressional mandate. Given the current state of FWS policy with regard to enforcement of the Lacey Act, the question must be asked how 

this expedited process would impact the water supply of tens of millions of people 

throughout the Southwest. 

Zebra mussels were the subject of the Non-Indigenous Aquatic Nuisance Prevention and Control Act of 1990 and were formally listed as an invasive species under 

the Lacey Act on November 7, 1991. This was a reasonable response to a problem 

that was at that time confined to the Great Lakes and had been traced to contaminated ballast water. But, over the next 20 years, and despite the efforts of Federal 

agencies like the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, 

and a host of State agencies, zebra mussels inexorably spread throughout the eastern half of the United States. They reached the border of Texas and NTMWD’s Lake 

Texoma water supplies in 2009. Despite the fact that NTMWD stopped its pumping 

activities upon discovering that zebra mussels were present in this reservoir, the 

mussels have recently been discovered by the Texas Parks and Wildlife Service in 

lakes hundreds of miles south of the Oklahoma/Texas border. 

The Federal Government could not stop the march of the zebra mussel from the 

Great Lakes to Lake Texoma. Nor did NTMWD have anything to do with spreading 

the mussel throughout Texas. This likely occurred through the movement of boats 

among various reservoirs as well as birds and animals which are well-known as contributors to the spread of zebra mussels. But, the prohibitions of the Lacey Act 

against moving an invasive species over a State line have been fully brought to bear 

on NTMWD’s water supplies despite the fact that the mussels are already well established in Oklahoma and increasingly in Texas. 

We trust the Committee will remember its experience in helping NTMWD deal 

with FWS and the Lacey Act, and consider the potential impact of a categorical exclusion with regard to the quagga mussel without an Environmental Assessment or 

an Environmental Impact Statement. Would this lead to a quick listing of quagga 

mussels? If this occurs, would FWS implement the same policies it has with 

NTMWD, despite the fact that quaggas are already well established from Colorado 

to California, including the Colorado River aqueduct? Would it matter that water 

resource agencies which depend upon the Colorado River for their water needs have 

already established aggressive programs to remove quaggas, ranging from scrapping 

them off of intake and pumping facilities to the use of chlorine to prevent their colonizing in holding areas. 

The criteria under 43 CFR 46.215, ‘‘Extraordinary Circumstances Not to Do a Categorical Exclusion,’’ should be clarified to specifically address and include water 

transport, whether in North Texas or anywhere in the Nation. To limit delays in 

adding species to the Lacey Act, this request should be further bracketed to apply 

only to adding species that already exist in the waters of the United States. Without 

56 

recognition of water transfers in the West as exceptional circumstances, the proposed categorical exclusion raises the larger issue of how the Lacey Act and its prohibitions of transporting or possessing a listed species can be made to work in conjunction with long-established water transfers, which are essential to regional water 

supplies. In the case of NTMWD, adding quagga mussels to the Lacey Act and subsequently finding a single quagga in Lake Texoma could negate a $300 million investment to restore 28 percent of NTMWD’s water supply from Lake Texoma. 

Because of these complicating issues, NTMWD opposes a categorical exclusion for 

listing species under the Lacey Act, until additional clarification can be developed 

by FWS with regard to how it proposes to administer the Act’s provisions while not 

interrupting the delivery of critical water supplies. NTMWD’s closed conveyance system now nearing completion was opposed by the Service and required congressional 

legislation for our district to restore 28 percent of the water supply of 1.7 million 

people. What is essential to remember is that stopping cross border water transfers 

of a species that is already well established is not an effective policy in implementing the Lacey Act. 

When listing aquatic species which impact interstate water supplies, it is essential that FWS prepare an EA and an EIS during the listing process, addressing the 

substantial social and economic impacts that accrue to the extraordinary circumstances of water supply transfers. We also urge that the criteria under 43 CFR 

46.215 ‘‘Extraordinary Circumstances Not to Do a Categorical Exclusion,’’ needs to 

be clarified and expanded to specifically address water transports. In conclusion, 

NTMWD wishes to thank the Subcommittee once again for its attention to these 

very important issues. 

MOU SUBMITTED BY THE U.S. FISH AND WILDLIFE SERVICE

MEMORANDUM OF UNDERSTANDING 

between 

the UNITED STATES FISH AND WILDLIFE SERVICE and 

the PET INDUSTRY JOINT ADVISORY COUNCIL and 

the ASSOCIATION OF FISH AND WILDLIFE AGENCIES 

to COLLABORATE 

ON THE DEVELOPMENT OF NONREGULATORY 

APPROACHES TO REDUCE THE RISK OF INTRODUCING 

POTENTIALLY INVASIVE SPECIES 

THROUGH INTERNATIONAL TRADE AND 

TO PROMOTE VOLUNTARY NO-TRADE 

IN CERTAIN SPECIES NOT PRESENTLY IN TRADE 

This Memorandum of Understanding (MOU) is entered into by the Pet Industry 

Joint Advisory Council (PIJAC) (hereinafter referred to as ‘‘nongovernmental parties’’) and the following Federal agencies, hereinafter referred to as the ‘‘agencies’’ 

or by their name or initials: 

United States Fish and Wildlife Service (FWS) 

and the following State Government Trade Associations, hereinafter referred to as 

‘‘Associations’’ or by their name or initials: 

Association of Fish and Wildlife Agencies (AFWA) 

I. PURPOSE 

The purpose of this MOU is to establish a general framework for cooperating and 

collaborating among FWS, the States (via their Associations), industry, and other 

nongovernmental parties to promote nonregulatory approaches with the goal of reducing the risks of potentially invasive, nonnative species being introduced into the 

United States. The parties to this MOU desire to explore a variety of voluntary riskmanagement approaches that can be implemented collaboratively by industry and 

Federal and State governments. Under this Federal, State, and industry partnership, species that are not currently in trade and not currently found in the United 

States, but that are determined by FWS under section VIII to be of high or uncertain ecological risk to the United States, would voluntarily not be imported or traded, or if they enter the United States, such entry would be conducted only through 

voluntary biosecurity and mitigation practices designed to minimize the likelihood 

57 

1 Executive Order 13112, February 8, 1999. 

2 Executive Order 13112, February 8, 1999. 

3 Andersen, M.C., H. Adams, B. Hope, and M. Powell, 2004. Risk Assessment for Invasive Species. Risk Analysis 24(4):787–793. 

of release and establishment consistent with pledges made by companies, individuals, or other entities. While this approach is voluntary and therefore cannot guarantee that the trade of such species will not occur, the non-Federal parties to this 

MOU will endeavor to educate the respective industries on the benefits of preventative action. 

II. AUTHORITIES 

1. Fish and Wildlife Programs Improvement and National Wildlife Refuge System Centennial Act of 2000, Public Law 106–408; 

2. Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq.; 

3. Take Pride in America Act, Public Law 101–628; 

4. Executive Order 13112 on Invasive Species, Executive Orders. February 8, 

1999; 

5. Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, as 

amended (16 U.S.C. 4701 et seq.); 

6. Lacey Act, as amended (18 U.S.C. 42); 

7. Endangered Species Act of 1973, as amended (16 U.S.C. 1531–1544); and 

8. National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). 

III. DEFINITIONS 

For the purposes of this MOU, the following definitions are used: 

1. Alien species: ‘‘. . . with respect to a particular ecosystem, any species, including its seeds, eggs, spores, or other biological material capable of propagating 

that species, that is not native to that ecosystem.’’1 For the purposes of this 

MOU, this does not include nonnative species in such States where they are 

being managed under the authority of State Fish and Wildlife agencies. 

2. Biosecurity: utilizing a combination of measures designed to protect the environment by preventing the escape to or establishment of species in the natural environment. Measures include, but are not limited to, preventing highrisk species from coming in contact with the natural environment by ensuring 

containment in facilities that are designed to maintain the species in closed 

systems in which effluent discharge and other waste materials are treated to 

prevent to prevent the release of live organisms. 

3. Invasive species: ‘‘. . . an alien species whose introduction does or is likely to 

cause economic or environmental harm or harm to human health.’’ 2 While 

current funding is limited to aquatic species, the MOU applies to any species. 

4. Risk management: The process of identifying, evaluating, selecting, and implementing actions to reduce risk (Anderson et al. 2004); 3 can include voluntary 

and regulatory approaches that prevent invasive species from entering the 

U.S. by limiting or prohibiting the importation of species classified as either 

high risk or uncertain risk. 

5. Risk screening: a risk assessment system designed to rapidly evaluate the 

invasiveness (establishment and impact) potential of a nonnative species. 

IV. THE PARTIES 

1. The Pet Industry Joint Advisory Council (PIJAC) is a nonprofit, service-oriented organization composed of members from every segment of the pet industry. These include importers and exporters of live organisms, retail pet 

stores, product manufacturers, other industry trade associations in the United 

States and other countries, as well as hobby clubs and aquarium societies. 

PIJAC, a nonprofit corporation organized pursuant to the laws of the District 

of Columbia, enters into this MOU pursuant to the approval of its Board of 

Directors. 

2. The Association of Fish and Wildlife Agencies (AFWA) is a nonprofit trade association representing North America’s State and territorial fish and wildlife 

agencies, promoting sound management and conservation policy that speaks 

with a collective voice at the national level. 

58 

3. The mission of the Fish and Wildlife Service includes working with others to 

conserve, protect, and enhance fish, wildlife, and plants and their habitats for 

the continuing benefit of the American people. The vision of the FWS is to 

continue to be a leader and trusted partner in fish and wildlife conservation, 

known for its scientific excellence, stewardship of lands and natural resources, dedicated professionals, and commitment to public service. The conservation principles of FWS include: 

‘‘Science—Our work is grounded in thorough, objective science. 

Stewardship—Our ethic is to conserve natural resources for future generations. 

Service—It is our privilege to serve the American people. 

Professionalism—We hold ourselves to the highest ethical standards, strive for 

excellence and respect others. 

Partnerships—We emphasize creative, innovative partnerships. 

People—Our employees are our most valued asset. 

Legacy—We ensure the future of natural resource conservation by connecting 

people with nature.’’ 

V. STATEMENT OF MUTUAL INTERESTS AND BENEFITS 

1. FWS manages 150 million acres in 556 national wildlife refuges and other 

units of the Refuge System, owns or manages 38 wetland management districts, and includes nearly 16,000 acres of lands and waters in the National 

Fish Hatchery System. FWS’s responsibilities include conservation of threatened and endangered species, migratory birds, fisheries, and native habitats 

both on and off refuge lands. 

2. AFWA represents the State and district fish and wildlife agencies charged 

with the management of fish and wildlife resources in the public trust. 

3. Each of the parties participating in this MOU is a national entity with an interest in fostering environmental stewardship within its respective community, including protecting the environment from the release of nonnative 

invasive species. 

4. Each of the parties acknowledges that the introduction of various invasive, 

nonnative species may be detrimental to, and not in the best interests of, 

their respective communities and the natural resources of the United States. 

5. The parties recognize that the most effective way to manage invasive species 

is to prevent importation, and that nonregulatory methods of prevention are 

beneficial. 

6. All parties would benefit from the development of science-based assessments 

of the likely adverse ecological effects of potentially invasive species that 

could guide their internal management or policy decisions. 

VI. PRINCIPLES 

The parties agree that invasions by nonnative, species imported for the live animal and plant trade can cause the United States incalculable environmental and 

human harm as well as financial losses every year. Stopping initial importation of 

risky, nonnative species is the most effective way of preventing these invasions in 

the United States. The industries that trade in live, nonnative species can take a 

voluntary, responsible, proactive approach to assist the regulatory agencies in preventing these introductions. 

Coordination of these voluntary actions will be facilitated by the nongovernmental 

parties with FWS as described in section VII. 

VII. IMPLEMENTATION 

To the extent authorized by law and consistent with agency management objectives, all of the parties to this MOU agree: 

1. To provide consistent and effective communication among the MOU parties, 

the non-Federal entities shall appoint representatives to a steering committee 

of no fewer than three or greater than nine, where committee members may 

be asked to complete assigned tasks and to discuss and consider new activities as appropriate that may be pursued under this MOU. 

2. To develop a work plan (through the steering committee) that includes, but 

is not limited to: 

59 

a. Participating in scheduled Steering Committee meetings and conference 

calls; 

b. Participating in an annual strategic planning meeting of the Steering 

Committee and identifying goals and objectives as appropriate under this 

MOU; 

c. Reviewing the Ecological Risk Screening protocol and standard operating 

procedures and providing recommendations with respect to its application 

and implementation; 

d. Explaining how FWS would logistically receive species nominations from 

individual representatives on the steering committee of species that would 

be covered by the MOU; 

e. Developing and implementing a collaborative communication strategy to 

increase public awareness about the need to prevent the introduction of 

living organisms that the parties have identified as species of high or uncertain ecological risk to the United States and that may present a high 

or uncertain risk of becoming an invasive species. 

3. The parties agree that the highest priority is to promote a collaborative and 

comprehensive voluntary approach to prevent the introduction into the 

United States of species not present in the United States that have been demonstrated through ecological risk screening procedures to possess a high or 

uncertain risk of becoming an invasive species if introduced into the United 

States. Furthermore, the parties agree to similarly address low risk species 

as resources permit. 

4. The parties will explore the alternatives of industry-supported initiatives that 

may include: (a) no-trade, (b) implementation of mitigation measures or best 

management practices, and (c) regionally based trade through which an ecological risk screening procedure identifies species that are of low risk of population establishment, spread, and harm. The companies, individuals, or other 

entities may pledge to refrain from trading (see (a) of this paragraph). The 

species determined to be high or uncertain risk through the Ecological Risk 

Screenings are listed on FWS’s website, which may be amended as appropriate. 

5. The parties recognize and acknowledge that the collaborative voluntary approach implemented pursuant to this MOU in no way preempts the FWS 

from listing a species as injurious wildlife under Title 18 of the Lacey Act or 

other applicable statutes or regulations, or precludes any State or Territory 

from enforcing existing, or implementing new, statutes or regulations concerning nonnative or invasive wildlife species. The Service retains all existing 

discretion and authority under applicable laws. 

VIII. TO THE EXTENT AUTHORIZED BY LAW AND CONSISTENT WITH 

AGENCY MANAGEMENT OBJECTIVES, THE ASSOCIATIONS AND 

THE AGENCIES AGREE TO: 

1. FWS agrees to: 

a. Provide background materials to the parties, including protocols and 

standard operating procedures, associated with the ‘‘Ecological Risk 

Screening’’ process being utilized by the FWS to evaluate nonnative species; 

b. Provide a public FWS website with: 

1. all completed Ecological Risk Screening Summaries; 

2. an email address for the general public to provide information and observations on the Ecological Risk Screening Summaries that will be 

provided to the author(s) for consideration; and 

3. the revised Ecological Risk Screening Summaries; 

c. Work with the parties to foster integration of regulatory and nonregulatory approaches to reduce the risks or invasive nonnative species affecting 

the United States; 

d. Conduct an Ecological Risk Screening for species that are nominated by 

individual representatives of the steering committee, within available 

funding or personnel constraints; 

e. Conduct an Ecological Risk Screening for species that are nominated by 

the public through the PWS website soliciting public input, within available funding or personnel constraints; 

60 

f. Inform the Steering Committee of additional Ecological Risk Screenings 

conducted based on FWS’s scientific knowledge; and 

g. Provide a list of species of low, uncertain, and high risk that will be posted online at a publicly available FWS website and provided to the Steering Committee, along with explanations for the risk categories (found in 

the Standard Operating Procedures being posted on FWS’s website). 

2. AFWA, in its role in providing a national forum for coordinated action among 

State and territorial fish and wildlife agencies, agrees to: 

a. Facilitate compilation of responses to data requests by State and territorial members of the AFWA Invasive Species Committee (and other committees as relevant and appropriate) as requested by one or more of the 

parties, within available personnel and resource constraints; 

b. Coordinate review by State and territorial agencies of ecological risk 

screening procedures, best management practices, or other related reports 

and policies through the AFWA Invasive Species Committee (and other 

committees as relevant and appropriate), within available personnel and 

resource constraints; 

c. Provide a foundation for discussion and development of strategic 

prioritization of invasive species threats through the AFWA Invasive Species Committee; and 

d. Inform its State and territorial members of opportunities to engage in 

educational and outreach campaigns being conducted by one or more of 

the parties, and inform the parties of such campaigns that any of its State 

and territorial members may be conducting. 

3. Each of the nongovernmental parties agrees to: 

a. Take steps to engage members within their respective communities to 

conduct proactive public outreach and education campaigns that promote 

awareness of species determined to be of high or uncertain ecological risk 

to the United States; 

b. Evaluate various voluntary mitigation practices that include sterilization, 

single sex trade, facility biosecurity protocols, rating systems for certain 

species that may be appropriate by region of the country, and other best 

management practices; 

c. Encourage their members to review and consider the environmental covenant pledge in the Appendix; and 

d. Provide to its respective Steering Committee representative nominations 

for species to be screened by FWS. 

IX. PRINCIPAL CONTACTS 

The principal contact for the Fish and Wildlife Service concerning this MOU is: 

Name: Jeff Underwood (Acting) 

Title: Assistant Director, Fish and Aquatic Conservation 

Address: MS 3043, 1849 C Street, NW, Washington, DC 20240 

Telephone: 202–208–6393 

The principal contact for the Pet Industry Joint Advisory Council concerning this 

MOU is: 

Name: Marshall Meyers 

Title: Senior Advisor 

Address: 1620 L Street, NW, Suite 610, Washington, DC 20016 

Telephone: 202–256–6726 

The principal contact for the Association of Fish and Wildlife Agencies concerning 

this MOU is: 

Name: 

Title: 

Address: 

Telephone: 

The principal contact information for other agencies or nongovernmental parties 

shall be indicated in an Addendum to this Agreement. 

61 

X. MISCELLANEOUS PROVISIONS 

1. The parties will carry out their own activities related to this MOU and use 

their own resources, including the expenditure of their own funds, in pursuing 

the objectives outlined in this MOU. 

2. In implementing this MOU, each Party will operate under its own applicable 

laws, regulations, and policies, subject to the availability of funds and personnel constraints. 

3. Nothing in this MOU authorizes any of the parties to obligate or transfer 

funds. Specific projects or activities that involve the transfer of funds, services, or property among the parties requires execution of separate agreements 

and are contingent upon the availability of funds. These activities must be 

independently authorized as appropriate. Negotiation, execution, and administration of these agreements must comply with all applicable laws. 

4. Other than the agencies’ and Associations’ support of the principles in this 

MOU, nothing in this MOU constitutes or shall be interpreted to imply an 

endorsement by the United States of any product, service, or opinion of any 

of the nongovernmental parties. 

5. Nothing in this MOU is intended to alter, limit, or expand the agencies’ or 

States’ statutory and regulatory authorities. 

6. This MOU in no way restricts any of the parties from participating in similar 

activities with other public or private agencies, organizations, and individuals. 

7. This MOU is not intended to (nor does it) create any rights, benefits, or trust 

responsibilities, substantive or procedural, enforceable by law or equity, by a 

party against the United States and its individual States or territories, its 

agencies, its officers, or any person. 

8. Each nongovernmental party recognizes and acknowledges that the MOU does 

not provide immunity from Federal or State antitrust laws. 

9. Each party represents that its participation in the MOU, and any action it 

takes relating to the MOU (including the nomination of species to be included 

in this agreement), is independent and voluntary, is not conditioned upon the 

participation or actions of any other entity, and is not the result of any agreement or understanding with any actual or potential competitor. 

10. Each party represents that, in conducting activities relating to the MOU, it 

shall not disclose directly or indirectly to another party any information regarding its business plans, strategies, costs, production, inventories, prices, 

sales, customers, or other competitively sensitive information. 

11. Pursuant to Federal Law, no member of, or delegate to, Congress may benefit from this MOU either directly or indirectly. 

12. Any information furnished to the agencies or States (via their representative 

Associations) under this MOU is subject to the Freedom of Information Act, 

5 U.S.C. Section 552. 

13. All parties will Comply with the Federal Advisory Committee Act to the extent that it is applicable. 

14. Other Federal agencies and nongovernmental entities may be added to this 

MOU with the unanimous written concurrence of all of the parties. 

15. This MOU takes effect on the date it is fully executed and will expire 10 

years from its effective date. This MOU may be extended or amended upon 

written agreement of all of the parties. 

16. Either the Federal agencies collectively, Associations collectively, or the nongovernmental parties collectively may terminate this MOU 60 days after written notice. Any individual party may terminate its participation in the MOU 

60 days after written notice to the other parties. 

PREPARED STATEMENT OF THE WESTERN COALITION OF ARID STATES (WESTCAS) 

The Western Coalition of Arid States represents municipalities, regional water 

and wastewater agencies, irrigation districts, water resource agencies, counties, engineering firms and law firms in Arizona, California, Colorado, New Mexico, Nevada, and Texas. Our goal is to promote policies, laws, and regulations that help 

ensure sustainable water quality in the Arid West. 

62 

WESTCAS wishes to provide its thoughts and perspectives with regard to your 

hearing of September 20, 2013 to consider a proposal by the U.S. Fish and Wildlife 

Service to implement a categorical exclusion from the National Environmental Policy Act (NEPA) process for adding species to the injurious wildlife list under the 

Lacey Act. It also proposes that the application of this categorical exclusion for each 

listing action would include the review of all ‘‘extraordinary circumstances’’ under 

43 CFR 46.215, which we agreed should be conducted. In this regard, WESTCAS 

believes it is essential that the extraordinary circumstances associated with existing 

and future managed water supply transfers across State lines in the Western United 

States be a part of the categorical exclusion process. 

We appreciate that a fast-track process for the Service to use in adding a species 

to the Lacey Act could enable the Fish and Wildlife Service to stop a species before 

it becomes ‘‘irrevocably invasive.’’ However, we are concerned that the extraordinary 

circumstances of these water transfers is not or will not be fully recognized in the 

proposed categorical exclusion to the Department’s Manual (DM). 

REQUEST 

For the reasons cited above, WESTCAS requests that when the Fish and Wildlife 

Service is considering an aquatic species for addition to the injurious list, that the 

Department of Interior Manual recognize Western water transfers as an exceptional 

circumstance. We urge that the criteria under 43 CFR 46.215 ‘‘Extraordinary Circumstances Not to Do a Categorical Exclusion’’ be clarified and expanded to specifically address and include Western water transport. To limit delays in adding species 

to the Lacey Act, this request can be further bracketed to apply only to adding species that already exist in the waters of the United States. 

ANALYSIS 

Without recognition of water transfers in the West as exceptional circumstances, 

the proposed categorical exclusion raises the larger issue of how the Lacey Act and 

its prohibitions of transporting a listed species across a State line can be made to 

work in conjunction with long-established water transfer arrangements that are essential to the water supply of much of the Arid West. Our concerns are centered 

upon the zebra mussel, which is already a listed species under the Lacey Act and 

also the quagga mussel which is not listed but already present throughout most of 

the Western States and is the subject of pending Congressional Legislation which 

would require the Service to add this species to the Lacey Act. 

Water supply transfers in the West are critical to a sustainable water supply that 

benefit not only human health and welfare but also underpin the economy and provide crucial environmental flow. The Department of Interior through the Bureau of 

Reclamation plays a major role in transporting water over State lines through its 

water supply and water transfer facilities. Unless accompanied with an extraordinary circumstances definition that it applied to cross-border water supply transfers, the proposed categorical exclusion may be inconsistent with the Bureau of Reclamation operations or policies. Time limits on responding to the Notice have prevented WESTCAS from a thorough review of this concern. 

Western water agencies are working actively to control the spread of invasive species. In the case of zebra mussels, this includes a $300 million closed-pipeline currently under construction by the North Texas Municipal Water District that will 

carry zebra mussels from over the Oklahoma-Texas State line to a treatment plant 

where all mussels will be removed. The treatment process is so thorough that although zebra mussels will technically be moved over a State line, they will not be 

spread to the waters of Texas. 

With regard to quagga mussels, the Metropolitan Water District of Southern California employs scuba divers 24 hours a day, 7 days a week to scrape quagga mussels 

off of its intake and pumping structures. The Coachella Valley Water District has 

adopted special treatment strategies designed to prevent quagga mussels from colonizing its distribution system. Coachella has also prohibited boating activities on its 

water conveyance and storage facilities and also actively supports Federal and State 

boat inspection programs. The San Juan Water Commission in New Mexico has already implemented policies ranging from early detection of quagga mussels to enhanced inspection partnerships with Federal and State agencies. 

Western water resource agencies are united in their efforts to try and control the 

spread of invasive species, especially aquatic varieties. But the fact remains that the 

population centers and the agricultural production of the Arid West, including helping sustain the intervening aquatic habitat, are dependent upon the long-established movement of water supply across State boundaries. This frequently involves 

formal partnerships with the U.S. Army Corps of Engineers and the Bureau of Reclamation. Providing an uninterrupted water supply is a challenge that can require 

63 

finding compatibilities rather than inflexible prohibitions. While Western water 

transfer arrangements may involve the transport each day of zebra or quagga mussels across a state line, the interruption or suspension of water transfers would create chaos with the water supply of millions of people as well as with important segments of the agricultural industry. 

Because of this complicating feature, WESTCAS opposes a categorical exclusion 

for the Service for listing species under the Lacey Act until additional clarification 

can be developed by the Service with regard to how it proposes to administer the 

Act’s provisions while not interrupting the delivery of water supply in the Arid 

West. The closed conveyance system proposed by the North Texas Municipal Water 

District was vigorously opposed by the Service and required Congressional Legislation for the District to restore 28 percent of the water supply of 1.7 million customers. 

Western water agencies are mounting determined efforts to control the spread of 

quagga mussels. But their efforts do not embrace outright bans on interstate water 

transport. It would take many billions of dollars to build and operate closed conveyance treatment systems throughout the Arid West. It must be recognized that species such as quagga mussels and zebra mussels are already well established in the 

water supplies of multiple states. Stopping cross border water transfers would not 

stop the spread of these mussels. 

CONCLUSION 

When listing aquatic species which impact interstate water supplies, WESTCAS 

believes that is essential that the Service prepare an EA and an EIS during the listing process, including the substantial social and economic impacts that accrue to the 

extraordinary circumstances of water supply transfers. We also urge that the criteria under 43 CFR 46.215 ‘‘Extraordinary Circumstances Not to Do a Categorical 

Exclusion’’ needs to be clarified and expanded to specifically address and include 

Western water transport related issues. WESTCAS strongly supports the implementation of NEPA requirements for EA’s and EIS’s as an essential part of the listing 

process any time a cross-border water transfer could be impacted by the Lacey Act. 

While WESTCAS appreciates the opportunity to submit these comments, due to 

the limited time available, we were not able to fully develop our concerns. If the 

comment period is extended, WESTCAS may elect to supplement or more fully support these comments. 

Thank you for the opportunity to provide our perspectives with regard to this 

issue. 

[LIST OF MATERIAL RETAINED IN COMMITTEE’S OFFICIAL FILES]

—Letter from Kelley Drye & Warren LLP on behalf of the 

United States Association of Reptile Keepers (USARK) submitted to Mr. Daniel M. Ashe, Director, U.S. Fish and Wildlife Service. 

Æ