In response to two interim rules by the U.S. Fish and Wildlife (Service), the National Aquaculture Association (NAA) submitted a comment letter arguing the agency lacks the authority to list native species and to cite a potential pathogen as rationale. 

The NAA requested our letter and the Federal Register Notice published in Volume 90, Number 6, pages 2170-2215, concerning two interim rules listing nonnative and native salamanders due to risk of a foreign animal pathogen, a salamander chytrid fungus, be referred to the Secretary of the Interior and the agency’s Department of Governmental Efficiency Team Leader for review, in coordination with the Director of the Office of Management and Budget. This review to conform with Executive Order 14219, Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative directing federal agencies to identify:

• “…regulations that are based on unlawful delegations of legislative power…”
• “…regulations that are based on anything other than the best reading of the underlying statutory authority or prohibition…”
• “…regulations that implicate matters of social, political, or economic significance that are not authorized by clear statutory authority…”
• “…regulations that impose undue burdens on small business and impede private enterprise and entrepreneurship.”

The two interim rules described in the Federal Register Notice qualify for the four categories identified.

The NAA’s analysis of readily available Congressional Records revealed it is clear the purpose and intent of the Lacey Act, as expressed in 1900 and throughout subsequent amendments, is to focus federal agency regulatory action upon the importation of foreign animal species.  At no time has the Lacey Act been further modified to authorize the listing of native animals as injurious wildlife. In no instance have knowledgeable citizens, or Congressional offices that have analyzed the Lacey Act, interpreted the Act to authorize the inclusion of native animals as injurious wildlife. The Service has exceeded its authority and the intent of Congress by implementing the 2016 interim rule and this second interim rule.

Throughout the history of the Lacey Act and subsequent listing of species as Injurious Wildlife up until 2016, assessing the environmental, human and economic risks has focused on species biological activity (predation; habitat, crop or structural damage; attacks on people). Listing a species, native or foreign, based upon a pathogen invites listings unintended by Congress. As examples, current agency interpretation should trigger Injurious Wildlife listings for animal zoonotic and non-zoonotic pathogens.

• Birds for avian influenza, Chlamydia psittaci, salmonellosis, cryptococcosis, histoplasmosis, and cryptosporidiosis.
• Bison and elk for brucellosis.
• Deer for tuberculosis and brucellosis, Q fever, and leptospirosis.
• Squirrels for hantavirus, leptospirosis, ringworm, salmonella, Lyme disease, and tularemia.
• Raccoons, skunks, squirrels, bats, foxes, dogs, cats, horses and rabbits for rabies.

The NAA suggested an alternative approach be explored and adopted by the Service to take advantage of Congressional authorities and governmental efficiencies to prevent the introduction or movement of animal pathogens to the United States by collaborating with the U.S. Department of Agriculture, Animal and Plant Health Inspection Service.