[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]










    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






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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
            PETER A. DeFAZIO, OR, Ranking Democratic Member

Don Young, AK                        Eni F. H. Faleomavaega, AS
Louie Gohmert, TX                    Frank Pallone, Jr., NJ
Rob Bishop, UT                       Grace F. Napolitano, CA
Doug Lamborn, CO                     Rush Holt, NJ
Robert J. Wittman, VA                Raul M. Grijalva, AZ
Paul C. Broun, GA                    Madeleine Z. Bordallo, GU
John Fleming, LA                     Jim Costa, CA
Tom McClintock, CA                   Gregorio Kilili Camacho Sablan, 
Glenn Thompson, PA                       CNMI
Cynthia M. Lummis, WY                Niki Tsongas, MA
Dan Benishek, MI                     Pedro R. Pierluisi, PR
Jeff Duncan, SC                      Colleen W. Hanabusa, HI
Scott R. Tipton, CO                  Tony Cardenas, CA
Paul A. Gosar, AZ                    Steven A. Horsford, NV
Raul R. Labrador, ID                 Jared Huffman, CA
Steve Southerland, II, FL            Raul Ruiz, CA
Bill Flores, TX                      Carol Shea-Porter, NH
Jon Runyan, NJ                       Alan S. Lowenthal, CA
Mark E. Amodei, NV                   Joe Garcia, FL
Markwayne Mullin, OK                 Matt Cartwright, PA
Chris Stewart, UT                    Vacancy
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Jason T. Smith, MO

                       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                        Eni F. H. Faleomavaega, AS
Robert J. Wittman, VA                Frank Pallone, Jr., NJ
Glenn Thompson, PA                   Madeleine Z. Bordallo, GU
Jeff Duncan, SC                      Pedro R. Pierluisi, PR
Steve Southerland, II, FL            Carol Shea-Porter, NH
Bill Flores, TX                      Alan S. Lowenthal, CA
Jon Runyan, NJ                       Joe Garcia, FL
Jason T. Smith, MO                   Vacancy
Doc Hastings, WA, ex officio         Peter A. DeFazio, OR, ex officio
                                 ------                                


















                                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
                                     


 
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.
    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 
non-native 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 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.
    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:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



    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 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.
    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.
    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, punishable 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.
---------------------------------------------------------------------------
    \1\ http://anstaskforce.gov/more_impacts.php.
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \2\ Chick, J. H., and M. A. Pegg. 2001. Invasive carp in the 
Mississippi River basin. Science 292(5525):2250-2251.
    \3\ Draft Asian Carp Surveillance Plan for areas outside of the 
Great Lakes. 2013.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \4\ Southwick Associates. 2004. Potential economic losses 
associated with uncontrolled nutria populations in Maryland's portion 
of the Chesapeake Bay, 17 pp.
---------------------------------------------------------------------------
    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 a severe decline in mammals in the Park, including a 
98 percent decline in raccoons.\5\
---------------------------------------------------------------------------
    \5\ Dorcas, 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).
---------------------------------------------------------------------------
    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 
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 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 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, entitled 
``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 non-native 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-the-
ground 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 
achieve one regulatory listing over recent decades.\2\ The proposed 
CatEx is a small, needed step to partially remedy this.
---------------------------------------------------------------------------
    \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.
    \2\ Fowler 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \3\ Chapter 6, and section 804, of Title 5, United States Code.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \4\ Springborn M, Romagosa CM, Keller RP (2011) The value of 
nonindigenous species risk assessment in international trade. Ecol. 
Econ. 70:2145-2153.
    \5\ Keller RP, Lodge DM, Finnoff DC (2007) Risk assessment for 
invasive species produces net bioeconomic benefits. Proc. Nat. Acad. 
Sci. 104:203-207.
---------------------------------------------------------------------------
    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 
collectively 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 multi-national 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 establish 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 wildlife 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 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 already 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 
long-present 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.
    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. Sec. 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. Sec. 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 outside 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.
---------------------------------------------------------------------------
    \1\ See 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).
---------------------------------------------------------------------------
    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 conditions 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.
---------------------------------------------------------------------------
    \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.'').
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \3\ See 40 CFR Sec. 1508.27(b) (``A significant effect may exist 
even if the Federal agency believes that on balance the effect will be 
beneficial'').
    \4\ See, 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\ Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 
(1989).
    \6\ Pub. 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 Sec. 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).
---------------------------------------------------------------------------
    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 
Sec. 1508.27(b).
---------------------------------------------------------------------------
    \9\ Sierra Club v. Espy, 38 F.3d 792, 796 (5th Cir. 1994).
---------------------------------------------------------------------------
    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, 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\
---------------------------------------------------------------------------
    \10\ Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1482 
(W.D. Wash. 1992).
    \11\ Found. for N. Am. Wild Sheep v. U.S. Dept. of Agr., 681 F.2d 
1172, 1178 (9th Cir. 1982).
---------------------------------------------------------------------------
    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 Sec. 1508.4.
---------------------------------------------------------------------------
    \12\ 40 CFR Sec. 1508.4; see also id. Sec. 1507.3(b)(2)(ii) 
(requiring agencies to adopt NEPA procedures including categorical 
exclusions).
---------------------------------------------------------------------------
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.
                                 ______
                                 
    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 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 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, Co-Chaired 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.
    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.
---------------------------------------------------------------------------
    \1\ U.S. Fish & Wildlife Service Bulletin, dated July 1, 2013.
---------------------------------------------------------------------------
    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 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.
    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.
                                 ______
                                 
    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.
    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 ironic 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 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.
    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 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 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.
    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, 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.
    [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 non-native 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:

    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 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 
Sec. Sec. 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 Sec. 1508.9 and 43 CFR Sec. 46.310),

    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.

    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 environment. 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 
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 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 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 
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 risk-management 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 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.
---------------------------------------------------------------------------
    \1\ Executive Order 13112, February 8, 1999.

  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 high-
            risk 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.
---------------------------------------------------------------------------
    \2\ Executive Order 13112, February 8, 1999.

  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.
---------------------------------------------------------------------------
    \3\ Andersen, M.C., H. Adams, B. Hope, and M. Powell, 2004. Risk 
Assessment for Invasive Species. Risk Analysis 24(4):787-793.

  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.

  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:

          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;

          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.
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.
    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 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.

                                 [all]
