[Senate Report 111-53]
[From the U.S. Government Publishing Office]
Calendar No. 118
111th Congress Report
SENATE
1st Session 111-53
======================================================================
CAPTIVE PRIMATE SAFETY ACT
_______
July 20, 2009.--Ordered to be printed
_______
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
[To accompany H.R. 80]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred a bill (H.R. 80) to amend the Lacey Act Amendments of
1981 to treat nonhuman primates as prohibited wildlife species
under that Act, to make corrections in the provisions relating
to captive wildlife offenses under that Act, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
General Statement and Background
Nonhuman primates kept as pets pose serious risks to public
health and safety. These animals can be dangerous and can
spread life-threatening diseases. Infant primates often seem
endearing and cooperative, but they grow larger, stronger and
more aggressive. They can inflict serious harm by biting and
scratching. Removing their teeth, as some pet owners do, is
cruel and there is no safeguard against injury.
On March 11, 2008, the Humane Society of the United States
testified before the House Committee on Natural Resources that
more than 100 people--including 29 children--were injured by
captive primates over the last 10 years, with more incidents
likely but unreported. On February 16, 2009, a much publicized
chimpanzee attack of a Connecticut woman has purportedly left
her blind for life and without her hands, nose, lips and
eyelids. Reports document an additional 4 human injuries caused
by captive primate attacks from February to May of 2009.
Many incidents occur when primates have contact with people
other than their owners or trained caretakers. The probability
of contact with strangers and untrained people increases during
interstate transport. If a nonhuman primate becomes too
difficult to handle for the pet owner, there are few options
for caring for them. Nonhuman primates purchased in the
interstate pet trade can ultimately face abandonment,
euthanasia, or a lifetime of containment in unsatisfactory
conditions.
Nonhuman primates are a possible source of infectious
agents that pose a threat to humans, due to their genetic,
physiologic and social similarities. The following zoonotic
disease threats are known to originate in primates: Herpes B,
monkeypox, Simian Immunodeficiency Virus (SIV), tuberculosis,
yellow fever, and the Ebola virus. Not only do nonhuman
primates pose significant risk of viral and bacterial disease
transmission, but they also share fungal and parasitic diseases
with humans, such as streptothricosis (a skin infection),
ringworm, nematodes and arthropods (lice, mites and fleas).
Because of the serious health risk, importing nonhuman
primates to the United States for the pet trade has been banned
by federal regulation since 1975. In addition, many states
already prohibit these animals as pets. Still, there is a
vigorous trade in these animals. Estimates are that 15,000 are
in private hands and, as the trade is largely unregulated, the
number may be much higher. Because many of these animals move
in interstate commerce, federal legislation is needed.
Objectives of the Legislation
H.R. 80 amends the Lacey Act by adding monkeys, apes, and
other nonhuman primates to the list of animals that cannot be
transported across state lines for the pet trade. It has no
impact on trade or transportation of animals for zoos, research
facilities, or other federally licensed and regulated entities.
The bill is similar to the Captive Wildlife Safety Act, which
Congress passed in 2003 to ban interstate commerce in lions,
tigers, and other big cats for the pet trade.
H.R. 80 also makes technical corrections to the Lacey Act
Amendments of 1981 and the Captive Wildlife Safety Act (CWSA)
in order to ensure that the CWSA provisions found in 16 U.S.C
3372 are fully enforceable. After the development of the
regulations to implement the CWSA, the U.S. Fish and Wildlife
Service (Service) became concerned that in certain cases
enforcement of the CWSA might be questioned because of the
provision's location within the Lacey Act Amendments of 1981.
Specifically, the Lacey Act's civil and criminal wildlife
trafficking prohibitions are built upon a two-part prohibition
scheme. Each trafficking violation requires proof of two acts
involving wildlife at issue. First, the wildlife must be taken,
possessed, transported or sold by someone in violation of
existing laws or treaties. Second, the wildlife must be
imported, exported, transported, sold, received, acquired or
purchased. Although it was not Congress' intent, the Service is
concerned that the Act might be interpreted as providing that
these two prohibited acts cannot be collapsed into one step or
act committed by the defendant. Therefore, H.R. 80 includes
technical corrections to ensure that the original intent of the
legislation is achieved.
Section-by-Section Analysis
Section 1. Short title
This section provides that this Act may be cited as the
``Captive Primate Safety Act''.
Sec. 2. Addition of nonhuman primates to the definition of prohibited
wildlife species
This section amends the Lacey Act by adding nonhuman
primates to the list of animals that cannot be transported,
sold, received, acquired or purchased in interstate or foreign
commerce.
Sec. 3. Captive wildlife amendments
This section makes technical corrections to section 3 of
the Lacey Act Amendments of 1981 (16 U.S.C. 3372, 3373(a) and
3373(d)) and clarifies application of these prohibitions to
certain entities and activities.
Sec. 4. Applicability provision amendment
This section makes technical corrections to section 3 of
the Captive Wildlife Safety Act (117 Stat. 2871; Public Law
108-191).
Sec. 5. Regulations
This section amends section 7(a) of the Lacey Act Amendment
of 1981 (16 U.S.C. 3376(a)) to direct the Secretary of the
Interior, in consultation with other relevant federal and state
agencies, to issue regulations to implement the Captive
Wildlife Safety Act.
Sec. 6. Authorizations of appropriations for additional law enforcement
personnel
This section authorizes an appropriation to the Secretary
of the Interior of $5 million for fiscal year 2010 to hire
additional law enforcement personnel for the U.S. Fish and
Wildlife Service.
Legislative History
In the 109th Congress, similar legislation, S. 1509, was
introduced by Senator James Jeffords, which was reported by the
Senate Environment and Public Works Committee on June 19, 2006,
and passed the Senate without amendment by Unanimous Consent on
July 11, 2006. In the 110th Congress, similar legislation was
introduced by Senator Barbara Boxer, S. 1498, and was ordered
to be reported by the Senate Environment and Public Works
Committee with an amendment favorably on July 31, 2007.
On January 6, 2009, Rep. Earl Blumenauer [D-OR] introduced
H.R. 80. Companion legislation was introduced by Senator
Barbara Boxer on February 24, 2009. The bill passed the House
of Representatives on February 24, 2009 and was received, read
twice and referred to the Senate Committee on Environment and
Public Works on March 13, 2009. The Committee met on May 14,
2009, and ordered H.R. 80 to be reported favorably by voice
vote.
Rollcall Votes
There were no roll call votes. The measure was approved by
the Committee on Environment and Public Works at a business
meeting, a quorum being present, by voice vote on May 14, 2009.
Regulatory Impact Statement
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee finds that H.R. 80
does not create any additional regulatory burdens, nor will it
cause any adverse impact on the personal privacy of
individuals.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the Committee finds that H.R. 80 would not
impose Federal intergovernmental unfunded mandates on State,
local, or tribal governments.
Congressional Budget Office Cost Estimate
H.R. 80--Captive Primate Safety Act
Summary: H.R. 80 would amend the Lacey Act to prohibit
interstate and foreign trade of nonhuman primates. The
legislation also would authorize appropriations for the U.S.
Fish and Wildlife Service (USFWS) to carry out that act.
Assuming appropriation of the amounts authorized, CBO estimates
that implementing H.R. 80 would cost $20 million over the 2010-
2014 period. The legislation could increase revenue collections
and direct spending, but we estimate that any such changes
would be insignificant.
H.R. 80 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of state, local, or tribal governments.
H.R. 80 would impose a private-sector mandate, as defined
in UMRA, on certain entities that handle nonhuman primates. CBO
expects that the aggregate direct cost of the mandate would
fall well below the annual threshold established in UMRA for
private-sector mandates ($139 million in 2009, adjusted for
inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 80 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------------
2010 2011 2012 2013 2014 2010- 2014
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level.................................... 8 3 3 3 3 20
Estimated Outlays...................................... 4 4 4 4 4 20
----------------------------------------------------------------------------------------------------------------
Basis of estimate: H.R. 80 would make it illegal to import,
export, transport, sell, receive, acquire, or purchase nonhuman
primates (such as monkeys and apes). Violators of the proposed
prohibition on interstate and foreign trade of such animals
would be subject to criminal and civil penalties.
The legislation would reauthorize appropriations of $3
million annually through 2014 for enforcement of the Lacey Act.
For 2010, an additional $5 million would be authorized to hire
new enforcement personnel. (The bill would not authorize
appropriations after 2010 to fund the additional employees.)
Assuming appropriation of the authorized amounts, CBO
estimates that enforcing the legislation's prohibitions on
transactions involving nonhuman primates would cost $20 million
over the 2010-2014 period. For this estimate, we assume that
the USFWS would spend the 2010 authorization of $5 million
evenly over the 2010-2014 period to hire and compensate new
enforcement employees, resulting in a program level for captive
primates of $4 million annually. We assume that enforcing
existing provisions of the Lacey Act would continue to be
funded with a portion of the annual appropriations provided for
USFWS law enforcement. (That funding--recently about $60
million a year--is authorized and appropriated under other
federal statutes governing USFWS enforcement activities.)
Enacting H.R. 80 could increase revenues from civil and
criminal fines. Based on information obtained from the USFWS
about the relatively small number of violations likely to
occur, CBO estimates that any such increase would be less than
$500,000 annually. Moreover, such changes would be fully offset
by increases in direct spending from the Crime Victims Fund
(where criminal fines are deposited) or the resource management
account of the USFWS (where civil fines are deposited and used
for rewards to informers and for other program costs).
Estimated impact on state, local, and tribal governments:
H.R. 80 contains no intergovernmental mandates as defined in
UMRA and would not affect the budgets of state, local, or
tribal governments.
Estimated impacts on the private sector: H.R. 80 would
impose a private-sector mandate, as defined in UMRA, by
prohibiting any person from importing, exporting, transporting,
selling, receiving, acquiring, or purchasing nonhuman primates
in interstate or foreign commerce. Several groups would be
exempted from the prohibition, including entities that are
licensed or registered by a federal agency. Importers, dealers,
exhibitors, transporters, and research facilities that handle
nonhuman primates are already required to obtain a permit or
license, or register with a federal agency. Therefore, those
entities would not be affected by the provisions in the act.
H.R. 80 also would authorize persons to transport nonhuman
primates in some circumstances if they comply with the
requirements for transport specified in the act. CBO expects
that the cost to comply with those requirements would be
minimal. The costs to others who would be affected by the
prohibition also would be small. Consequently, CBO expects that
the total cost of complying with the mandate would fall well
below the annual threshold established in UMRA for private-
sector mandates ($139 million for 2009, adjusted for
inflation).
Estimate prepared by: Federal costs: Deborah Reis; Impact
on state, local, and tribal governments: Melissa Merrill;
Impact on the private sector: Amy Petz.
Estimated approved by: Theresa Gullo, Assistant Director
for Budget Analysis.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
* * * * * * *
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LACEY ACT AMENDMENTS OF 1981
* * * * * * *
SEC. 2. [16 U.S.C. 3371] DEFINITIONS.
For purposes of this Act:
(a) The term ``fish or wildlife'' means any wild animal,
whether alive or dead, including without limitation any wild
mammal, bird, reptile, amphibian, fish, mollusk, crustacean,
arthropod, coelenterate, or other invertebrate, whether or not
bred, hatched, or born in captivity, and includes any part,
product, egg, or offspring thereof.
(b) The term ``import'' means to land on, bring into, or
introduce into, any place subject to the jurisdiction of the
United States, whether or not such landing, bringing, or
introduction constitutes an importation within the meaning of
the customs laws of the United States.
(c) The term ``Indian tribal law'' means any regulation of,
or other rule of conduct enforceable by, any Indian tribe,
band, or group but only to the extent that the regulation or
rule applies within Indian country as defined in section 1151
of title 18, United States Code.
(d) The terms ``law,'' ``treaty,'' ``regulation,'' and
``Indian tribal law'' mean laws, treaties, regulations or
Indian tribal laws which regulate the taking, possession,
importation, exportation, transportation, or sale of fish or
wildlife or plants.
(e) The term ``person'' includes any individual, partnership,
association, corporation, trust, or any officer, employee,
agent, department, or instrumentality of the Federal Government
or of any State or political subdivision thereof, or any other
entity subject to the jurisdiction of the United States.
(f) The terms ``plant'' and ``plants'' mean any wild member
of the plant kingdom, including roots, seeds, and other parts
thereof (but excluding common food crops and cultivars) which
is indigenous to any State and which is either (A) listed on an
appendix to the Convention on International Trade in Endangered
Species of Wild Fauna and Flora, or (B) listed pursuant to any
State law that provides for the conservation of species
threatened with extinction.
(g) Prohibited Wildlife Species.--The term ``prohibited
wildlife species'' means any live species of lion, tiger,
leopard, cheetah, jaguar, or cougar or any hybrid of such
species or any nonhuman primate.
* * * * * * *
SEC. 3. [16 U.S.C. 3372] PROHIBITED ACTS.
(a) Offenses Other Than Marking Offenses.--It is unlawful for
any person--
(1) to import, export, transport, sell, receive,
acquire, or purchase any fish or wildlife or plant
taken, possessed, transported, or sold in violation of
any law, treaty, or regulation of the United States or
in violation of any Indian tribal law;
(2) to import, export, transport, sell, receive,
acquire, or purchase in interstate or foreign
commerce--
(A) any fish or wildlife taken, possessed,
transported, or sold in violation of any law or
regulation of any State or in violation of any
foreign law; or
(B) any plant--
(i) taken, possessed, transported, or
sold in violation of any law or
regulation of any State, or any foreign
law, that protects plants or that
regulates--
(I) the theft of plants;
(II) the taking of plants
from a park, forest reserve, or
other officially protected
area;
(III) the taking of plants
from an officially designated
area; [or]
* * * * * * *
[(C) any prohibited wildlife species (subject
to subsection (e));]
(3) within the special maritime and territorial
jurisdiction of the United States (as defined in
section 7 of title 18, United States Code)--
(A) to possess any fish or wildlife taken,
possessed, transported, or sold in violation of
any law or regulation of any State or in
violation of any foreign law or Indian tribal
law, or
(B) to possess any plant taken, possessed,
transported, or sold in violation of any law or
regulation of any State; or
(4) to attempt to commit any act described in
paragraphs (1) through (3) or subsection (e).
* * * * * * *
[(e) Nonapplicability of Prohibited Wildlife Species
Offense.--
[(1) In general.--Subsection (a)(2)(C) does not
apply]
(e) Captive Wildlife Offense.--
(1) In general.--It is unlawful for any person to
import, export, transport, sell, receive, acquire, or
purchase in interstate or foreign commerce any live
animal of any prohibited wildlife species.
(2) Limitation on application.--This subsection--
(A) does not apply to a person transporting a
nonhuman primate to or from a veterinarian who
is licensed to practice veterinary medicine
within the United States, solely for the
purpose of providing veterinary care to the
nonhuman primate, if--
(i) the person transporting the
nonhuman primate carries written
documentation issued by the
veterinarian, including the appointment
date and location;
(ii) the nonhuman primate is
transported in a secure enclosure
appropriate for that species of
primate;
(iii) the nonhuman primate has no
contact with any other animals or
members of the public, other than the
veterinarian and other authorized
medical personnel providing veterinary
care; and
(iv) such transportation and
provision of veterinary care is in
accordance with all otherwise
applicable State and local laws,
regulations, permits, and health
certificates;
(B) does not apply to a person transporting a
nonhuman primate to a legally designated
caregiver for the nonhuman primate as a result
of the death of the preceding owner of the
nonhuman primate, if--
(i) the person transporting the
nonhuman primate is carrying legal
documentation to support the need for
transporting the nonhuman primate to
the legally designated caregiver;
(ii) the nonhuman primate is
transported in a secure enclosure
appropriate for the species;
(iii) the nonhuman primate has no
contact with any other animals or
members of the public while being
transported to the legally designated
caregiver; and
(iv) all applicable State and local
restrictions on such transport, and all
applicable State and local requirements
for permits or health certificates, are
complied with;
(C) does not apply to a person transporting a
nonhuman primate solely for the purpose of
assisting an individual who is permanently
disabled with a severe mobility impairment,
if--
(i) the nonhuman primate is a single
animal of the genus Cebus;
(ii) the nonhuman primate was
obtained from, and trained at, a
licensed nonprofit organization
described in section 501(c)(3) of the
Internal Revenue Code of 1986 the
nonprofit tax status of which was
obtained--
(I) before July 18, 2008; and
(II) on the basis that the
mission of the organization is
to improve the quality of life
of severely mobility-impaired
individuals;
(iii) the person transporting the
nonhuman primate is a specially trained
employee or agent of a nonprofit
organization described in clause (ii)
that is transporting the nonhuman
primate to or from a designated
individual who is permanently disabled
with a severe mobility impairment, or
to or from a licensed foster care home
providing specialty training of the
nonhuman primate solely for purposes of
assisting an individual who is
permanently disabled with severe
mobility impairment;
(iv) the person transporting the
nonhuman primate carries documentation
from the applicable nonprofit
organization that includes the name of
the designated individual referred to
in clause (iii);
(v) the nonhuman primate is
transported in a secure enclosure that
is appropriate for that species;
(vi) the nonhuman primate has no
contact with any animal or member of
the public, other than the designated
individual referred to in clause (iii);
and
(vii) the transportation of the
nonhuman primate is in compliance
with--
(I) all applicable State and
local restrictions regarding
the transport; and
(II) all applicable State and
local requirements regarding
permits or health certificates;
and
(D) does not apply; to importation,
exportation, transportation, sale, receipt,
acquisition, or purchase of an animal of [a]
any prohibited wildlife species, by a person
that, under regulations prescribed under
paragraph [(3)](4), is described in paragraph
[(2)](3) with respect to that species.
[(2)](3) Persons described.--A person is described in
this paragraph, if the person--
(A) is licensed or registered, and inspected,
by the Animal and Plant Health Inspection
Service or any other Federal agency with
respect to that species;
(B) is a State college, university, or
agency, State-licensed wildlife rehabilitator,
or State-licensed veterinarian;
(C) is an accredited wildlife sanctuary that
cares for prohibited wildlife species and--
(i) is a corporation that is exempt
from taxation under section 501(a) of
the Internal Revenue Code 1986 and
described in sections 501(c)(3) and
170(b)(1)(A)(vi) of such Code;
(ii) does not commercially trade in
[animals listed in section
2(g)]prohibited wildlife species,
including offspring, parts, and
byproducts of such animals;
(iii) does not propagate [animals
listed in section 2(g)]prohibited
wildlife species; and
(iv) does not allow direct contact
between the public and
[animals]prohibited wildlife species;
or
(D) has custody of the [animal]prohibited
wildlife species solely for the purpose of
expeditiously transporting the
[animal]prohibited wildlife species to a person
described in this paragraph with respect to the
species.
[(3)](4) Regulations.--Not later than 180 days after
the date of enactment of this subsection, the
Secretary, in cooperation with the Director of the
Animal and Plant Health Inspection Service, shall
promulgate regulations describing the persons described
in paragraph [(2)](3).
[(4)](5) State authority.--Nothing in this subsection
preempts or supersedes the authority of a State to
regulate wildlife species within that State.
[(5)](6) Authorization of appropriations.--There is
authorized to be appropriated to carry out [subsection
(a)(2)(C)]this subsection $3,000,000 for each of fiscal
years [2004 through 2008]2010 through 2014.
SEC. 4. [16 U.S.C. 3373] PENALTIES AND SANCTIONS.
(a) Civil Penalties.--
(1) Any person who engages in conduct prohibited by
any provision of this Act (other than subsections (b),
(d), (e), and (f) of section 3) and in the exercise of
due care should know that the fish or wildlife or
plants were taken, possessed, transported, or sold in
violation of, or in a manner unlawful under, any
underlying law, treaty, or regulation, and any person
who knowingly violates subsection (d), (e), or (f) of
section 3, may be assessed a civil penalty by the
Secretary of not more than $10,000 for each such
violation: Provided, That when the violation involves
fish or wildlife or plants with a market value of less
than $350, and involves only the transportation,
acquisition, or receipt of fish or wildlife or plants
taken or possessed in violation of any law, treaty, or
regulation of the United States, any Indian tribal law,
any foreign law, or any law or regulation of any State,
the penalty assessed shall not exceed the maximum
provided for violation of said law, treaty, or
regulation, or $10,000, whichever is less.
* * * * * * *
(d) Criminal Penalties.--
(1) Any person who--
(A) knowingly imports or exports any fish or
wildlife or plants in violation of any
provision of this Act (other than subsections
(b), (d), (e), and (f) of section 3), or
(B) violates any provision of this Act (other
than subsections (b), (d), (e), and (f) of
section 3) by knowingly engaging in conduct
that involves the sale or purchase of, the
offer of sale or purchase of, or the intent to
sell or purchase, fish or wildlife or plants
with a market value in excess of $350,
knowing that the fish or wildlife or plants were taken,
possessed, transported, or sold in violation of, or in
a manner unlawful under, any underlying law, treaty or
regulation, shall be fined not more than $20,000, or
imprisoned for not more than five years, or both. Each
violation shall be a separate offense and the offense
shall be deemed to have been committed not only in the
district where the violation first occurred, but also
in any district in which the defendant may have taken
or been in possession of the said fish or wildlife or
plants.
(2) Any person who knowingly engages in conduct
prohibited by any provision of this Act (other than
subsections (b), (d), (e), and (f) of section 3) and in
the exercise of due care should know that the fish or
wildlife or plants were taken, possessed, transported,
or sold in violation of, or in a manner unlawful under,
any underlying law, treaty or regulation shall be fined
not more than $10,000, or imprisoned for not more than
one year, or both. Each violation shall be a separate
offense and the offense shall be deemed to have been
committed not only in the district where the violation
first occurred, but also in any district in which the
defendant may have taken or been in possession of the
said fish or wildlife or plants.
(3) Any person who knowingly violates subsection (d),
(e), or (f) of section 3--
* * * * * * *
SEC. 7. [16 U.S.C. 3376] ADMINISTRATION.
(a) Regulations.--
(1) The Secretary, after consultation with the
Secretary of the Treasury, is authorized to issue such
regulations, except as provided in paragraph (2), as
may be necessary to carry out the provisions of
sections 3(f), 4, and 5 of this Act.
(2) The Secretaries of the Interior and Commerce
shall jointly promulgate specific regulations to
implement the provisions of subsection 3(b) and of this
Act for the marking and labeling of containers or
packages containing fish or wildlife. These regulations
shall be in accordance with existing commercial
practices.
(3) The Secretary shall, in consultation with other
relevant Federal and State agencies, issue regulations
to implement section 3(e).
* * * * * * *
Captive Wildlife Safety Act
* * * * * * *
[(a) In General.--Section 3]Section 3
* * * * * * *
[(b) Application.--Section 3(a)(2)(C) of the Lacey Act
Amendments of 1981 (as added by subsection (a)(1)(A)(iii))
shall apply beginning on the effective date of regulations
promulgated under section 3(e)(3) of that Act (as added by
subsection (a)(2)).]
* * * * * * *