Entomologists' Response to Proposed Lacey Act Rules

Jim Beach beach at VIOLET.BERKELEY.EDU
Thu Nov 10 13:25:48 CST 1994

Taxacom U.S. Subscribers:

This letter was originally mailed to an Entomology mailing list regarding
the proposed rules for the Lacey Act which substantially regulates the
importation of wild-collected specimens into the U.S.  It is of importance
to all U.S. systematics collections insitutions.  The introduction below is
followed by the letter sent to the US Fish and Wildlife Service by
John Morse on behalf of the Entomological Society of America.

--- Introduction ---

As noted earlier on this list, I, as ESA Section A chairman this year, have
been asked by ESA president George Teetes to respond to USFWS's Proposed
Rules regarding the Lacey Act.  In my response, I have noted not only several
problems with the Proposed Rules as they pertain to entomological collections
and insect systematics research, but also I have provided the rudiments of a
counterproposal for a PROFESSIONAL ACCOUNTABILITY SYSTEM.  Obviously, such a
system will need much elaboration in details before it can be implemented.
Nevertheless, several have suggested that I provide my response on E-mail for
further discussion.

In particular, please notice that a self-policing system allows a collection
to maintain its own records of the legalities of its acquisitions according
to some yet-to-be-collectively-agreed protocol.  Frequent exchange of forms
and correspondence with an outside organization, such as the USFWS, is
unnecessary.  Adherence to the accountability protocol can be assured by
on-site, unannounced audits by ASC and/or USFWS personnel, similar to IRS
audits of personal and corporate income taxes.  The point of all this is to
try to satisfy the concerns of the USFWS without making our continuing
scientific research efforts more difficult or impossible.  SUGGESTIONS ARE

John Morse

--- Letter ---

8 November 1994

Ms. Mollie Beattie, Director
U.S. Fish and Wildlife Service
P.O. Box 3247
Arlington, VA  22203-3247
FAX: 703-358-2271

RE:  Federal Register, 14 Sep 1994, Vol. 59 (Number 177), pages
47212-47220: 50 CFR Parts 13 and 14, RIN 1018-AB49

Dear Ms. Beattie,

     Insect species currently comprise over half of all plant and
animal species on earth, and nearly three-quarters of all animal
species (E.O. Wilson, 1988, Biodiversity).  Consequently, it can
be expected that most threatened or endangered species in the
world are actually insects.  The 641 United States members of
Section A (Systematics/Morphology/Evolution) of the Entomological
Society of America, whom I represent as Chairperson this year,
comprise the majority of US scientists involved in the
description of insect species, inference of their evolutionary
relationships, and interpreters and predictors of their
biogeographical and biological characteristics.  Therefore, these
biologists are typically some of the most fervent advocates for
protection of natural habitats and are historically and
potentially some of the most significant contributors to the
database of the National Biological Survey.  Thus it is also
understandable that Section A entomologists and the US Fish and
Wildlife Service have enjoyed a long-standing, and mutually
beneficial relationship since the establishment of the Service.

     It is with alarm, therefore, that we read the Proposed Rules
in the subject document.  These proposed regulations threaten to
impede taxonomic and systematic research on insects at the very
time in history when such work is most desperately needed.  Only
5 - 50% of existing insect species are presently known to
science.  At the same time, habitats are being lost very rapidly,
especially in developing tropical countries, and the human and
financial resources needed to describe and appreciate this
disappearing biota are themselves in very limited supply.  We
truly believe that the Proposed Rules were written in good faith,
but that they were proposed without appreciating the considerable
difference between large and readily identifiable vertebrates
with small numbers of individuals per species and considerable
commercial value on the one hand and small and usually difficult-
to-identify insects with usually astronomical numbers of
individuals per species and rarely any commercial value on the
other.  We believe rare and endangered insect exceptions (listed
in 50 CFR 17 and 50 CFR 23 - CITES) should be regulated closely,
both to learn as much as possible from every specimen that can be
studied and to facilitate efforts to enhance their recovery.  At
the same time, we believe that, with your cooperation, the
aggressive and unimpeded collection, exchange, and study of yet
unknown species should be pursued to the full extent of our
capability.  It is only by this means that the world, including
the USFWS, will come to learn what species and habitats are in
most need of protection.

     We are pleased to support the continuation of rules
regarding endangered species and regarding the import and export
of specimens for commercial purposes.  However, we respectfully
request that the rules promote, rather than impede, importation
and exportation for scientific purposes of noncommercial insect
specimens of species not known to be endangered.

     We are concerned especially with five components of the
Proposed Rules:

(1)  The need to file USFWS Form 3-177 for routine international
shipment of insect  specimens, together with requirements for
refiling every 180 days for yet unidentified specimens;

(2)  The prohibition against use of the US Mail Service for such

(3)  The definition of commercial that activates this
requirement and this prohibition;

(4)  The continuing practice of physical inspection of insect
shipments at ports of entry; and

(5)  The retroactive enforcement of the Lacey Act back to, and
before, 1981.

More specifically:

(1)  A requirement to file USFWS Form 3-177 for imported
specimens, including updates and refiling every 180 days for
amendments to the species list or for extensions of the
unidentified specimens, is a heavy burden for most museums
already stretched to the limits of their budgets and personnel.
Even greater is the problem of completing separate forms for each
shipment of an international loan.  Please understand that
entomological research deals in much larger numbers of more-
difficult-to-identify organisms than does research on
vertebrates.  Most insect species are yet unnamed and 99% of
captured specimens cannot be named in the field; identification
requires a microscope or even more sophisticated identification
devices or techniques.  Consider a common scenario in insect
museums:  an investigator undertakes a 3-month expedition to a
tropical developing country and returns to his/her museum with
120,000 unidentified specimens, approximately 500 species, mostly
yet-unknown to science.  The specimens are sorted to family and
genus over the course of several months and then work begins on
their species-level identification.  Genera are revised one-at-a-
time, perhaps in cooperation with colleagues, with perhaps two or
three genera revised in a given year.  The species are described
and named at the rate of 20-30 each year.  About five loans each
year are transacted with international collections to obtain
comparative material for description of the species.  Completion
of the task will require about 20 years.  If the requirement to
refile USFWS Form 3-177 is enacted, more than 40 revisions of the
original Form 3-177 will have been filed at 180-day intervals
before the project is completed and about 200 Forms 3-177 will
have been filed to receive and return the loans -- more than 240
forms resulting from one expedition!  This administrative burden
is more than many of us are able to bear and will greatly retard
or stop systematics work in many collections.  As a result, the
intent of the regulation (protection of endangered species) will
not be served by the regulation, but rather hindered by it.  The
requirement is proposed with the best intentions, but its need is
not obvious:  There is no evidence that scientific collecting is
harming non-endangered species of insects.  Therefore, we
recommend that submission of USFWS Form 3-177 not be required for
routine shipments of non-commercial insect specimens of species
not known to be endangered.

 (2) Regarding the prohibition against use of the US Mail Service
for international shipment of insect specimens, you should
understand that this presently is by far the most common and most
economical means of shipment of insect specimens.  Costs for
shipment by other carriers to designated ports of entry will
greatly retard the exchange of scientific specimens because such
costs for noncommercial specimens cannot be recovered by
increasing the charges to a customer.  A requirement to issue
permits to import or export wildlife at nondesignated ports for
scientific purposes (Subpart C, SS 14.31) will greatly overburden
the Service unnecessarily.  Rather we recommend that a standard
Customs declaration suffice for use of US Mail Service at any
international airport or seaport receiving international mail and
that this declaration carry a signed and sworn statement
regarding its veracity, under penalty of law.

(3) The proposed definition of  commercial  (SS 14.4 [a]) is
appropriate through the first sentence.  However, the presumption
 that eight or more similar unused items (except for antiques,
collectibles, or curios) are for commercial use is grossly
inappropriate for insect specimens intended for scientific study.
Because systematics research is concerned with the range and
limits of variation within a species and between species, the
maintenance of a large number of specimens (generally more than
 eight ) of the same species is crucial to the furtherance of
scientific investigation.  Even more confusing is the definition
of the term  similar ; does this mean specimens of the same
species? genus? family? order?  Confusion also surrounds the
meaning of the exceptions to this presumption.  Does a dead
specimen qualify as  used ?  At what age since it was killed may
an insect specimen qualify as antique ; 100 years (SS 14.22)?
Most scientifically useful specimens are held in collections; do
they therefore qualify as collectibles?  Most research
specimens are maintained for their potential to answer valid
scientific issues; do they therefore qualify as curios?  We
recommend that a simple sworn declaration that the specimens are
for scientific study and do not have commercial value should be
sufficient to identify noncommercial insects.

(4)  The inspection of dried insect specimens (SS14.51) is
particularly of concern to members of Section A.  Anecdotal
horror stories about such inspections are widely repeated in the
insect systematics community.  Dried specimens are extremely
fragile and are packed with utmost care since the loss of body
parts greatly devalues specimens for scientific purposes.  Unique
type specimens, which are the legal name-bearers for a species,
cannot be replaced; their scientific value is inestimable, even
though they have no real commercial value.  It is the height of
folly that a systematist must shake in terror as an inspector,
without appreciation of what he is holding, pokes fingers in an
opened container among these fragile and irreplaceable specimens.
Some museums both in the US and internationally are considering
refusing to send specimens for study because of these dangers,
impeding or halting crucial biodiversity investigations.  Again,
we recommend that a simple sworn declaration on the outside of an
unopened container, under penalty of law for a false statement,
should be sufficient to identify the contents.

(5)  The development of a national and international resource
such as an insect collection relies heavily on the contributions
of insect collectors other than its curatorial staff.  Whether by
ignorance or by design, many insects in present collections were
taken in violation of the laws of the region where they were
collected.  The inclusion of  arthropods  (insects and their
relatives) within the definition of  wildlife  occurred first in
the 1981 amendments to the Lacey Act.  Therefore, before 1981,
museum curators had no reason to inquire about the legal status
of specimens and gratefully received all that were given.
Several collections within the United States now house millions
of specimens; others are smaller with commensurately smaller
curatorial staffs.  Since 1981, collectors have died or their
whereabouts are unknown and the curatorial staff that received
the specimens are no longer in the employment of the museum.  The
verification of the legal status of all specimens within these
collections is thus all but impossible.  We therefore recommend a
statute of limitations extending back to 16 November 1981 and an
amnesty on existing museums that provide the USFWS evidence of
intent to abide by the Service s regulations such as proposed

As you can see, for the science of entomology, the Proposed Rules
of the subject regulations will not serve to promote protection
of endangered species, but rather will impede the discovery of
the very data most needed by the USFWS to accomplish its mandate.
At the same time, the USFWS will be burdened with a great load of
paperwork for which it must institute infrastructure, hire staff,
and build space to accommodate.  We propose, instead, a
professional accountability system:

(1)  All institutions and individual scientists requiring
frequent international shipments of noncommercial specimens for
scientific study devise, in consultation with the USFWS, a
convention of accountability for such transactions.  The
Association of Systematics Collections (ASC) could be the lead
organization to devise the standards for this convention.

(2)  Cooperating institutions and individuals would then maintain
records of all international transactions, as well as
documentation of legal collections from National Parks, Indian
tribal lands, permit-requiring States, etc.  (Institutions not
cooperating in this accountability convention presumably would
not be allowed to transact international shipments of specimens,
except as  wildlife  under the Proposed Rules, and would be
subject to present and proposed USFWS  search and seizure
activities for any illegal specimens in their possession.)

(3)  Cooperating institutions and individuals will be subject to
occasional, unannounced audits, similar to audits by the US
Internal Revenue Service (IRS), conducted by ASC and/or USFWS

(4)  Audit results will include notice of any irregularities to
be corrected and citation of any legal infractions, whose
specified penalties should be commensurate with their

We believe this system has much greater likelihood of success
than the Proposed Rules because it is being effected by us
ourselves, the professionals with the most to gain by its success
and the most to lose by being subjected to the Proposed Rules.
At the same time, it will relieve both the USFWS and the
systematics community of a great burden of unnecessary
administrative activity.

Above all, we urgently request the reaffirmation of original
Lacey Act SS 42 (a) (4):   Nothing in this subsection shall
restrict the importation of dead natural-history specimens for
museums or for scientific collections . . . .

Finally, we urgently request an extension on the 14 November 1994
deadline for comments regarding the Proposed Rules or that an
additional comment period be allowed until 15 January 1995.  The
Entomological Collections Network will meet on 11-13 December
1994 and the Entomological Society of America will meet on 13-17
December 1994 in Dallas, Texas, at which time these matters may
be brought to the attention of a much greater number of affected
scientists who can contribute to this review of your Proposed

Please note that the use of  we  in this communication represents
an informal consensus reached in discussions with colleagues of
Section A.  Formal adoption of the recommendations and proposals
is not possible until the Section meets in December.  An
extension of the deadline until 15 January 1995 will permit
adoption of a formal proposal, perhaps similar to the one
outlined here.


John C. Morse, PhD
Chairman 1994, Section A (Systematics-Morphology-Evolution)
Entomological Society of America

Professor of Entomology and Director of
The Clemson University Arthropod Collection (CUAC)
office phone:  803-656-5049
home phone:    803-646-3580
FAX:      803-656-5065
E-mail:   jmorse at clust1.clemson.edu

xc:  The Honorable Bruce Babbitt, Secretary
     Department of the Interior
     1849  C  Street NW
     Washington, DC  20240

James H. Beach                                  beach at violet.berkeley.edu
Museum Informatics Project                            Tel: (510) 642 0246
University of California                              Fax: (510) 643 8856
2111 Bancroft Way, Suite 501
Berkeley, CA 94720-6200

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