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release and dispersal are adequately addressed.
<br />Other than the recommended report in 3C, this
<br />recommendation is simply a reiteration that
<br />Federal agencies should improve their compli-
<br />ance with already existing authorities. As noted
<br />below (see "Protocols and Environmental
<br />Assessments" section), adherence to the
<br />International Council for the Exploration of the
<br />Sea (ICES), American Fisheries Society (AFS),
<br />the research protocol developed under this Act,
<br />or other protocols for introductions may provide
<br />useful mechanisms to assure such compliance.
<br />Several State agencies and sportfishing groups
<br />indicated opposition to this recommendation
<br />during the comment period and questioned the
<br />authority of the Federal Government to place
<br />]imitations on utilization of funds under the
<br />Federal Aid in Sport Fish Restoration Act. Such
<br />action is not without precedent, however. In two
<br />recent cases, the U.S. Fish and Wildlife Service
<br />did not approve funding of nonindigenous intro-
<br />ductionswithout an adequate assessment of
<br />potential impacts. As indicated above, when the
<br />State of New Jersey requested funds to stock Chi-
<br />nook salmon in the Delaware River, a full EIS
<br />was required. In late 1993, the State of Maryland
<br />was told that such funds could not be used to
<br />stock cutthroat trout without adequate consider-
<br />ation of potential impacts.
<br />There is clear Federal authority to place such a
<br />condition on such projects. The regulations cov-
<br />ering such funding require that any project "uti-
<br />lizeaccepted fish and wildlife conservation and
<br />management principles, sound design, and
<br />appropriate procedures..." (50 CFR 80.13(c).
<br />Further, 50 CFR 80.21 provides, "The State
<br />must agree to and certify that it will comply with
<br />all applicable Federal laws, regulations, and
<br />requirements as they relate to the application,
<br />acceptance and use of Federal funds under the
<br />Act."
<br />Provision of project funds for species introduc-
<br />tionsunder any of the programs mentioned con-
<br />stitutes aFederal action under both NEPA and
<br />the ESA. As such, an EA or an EIS may be
<br />required under NEPA, and consultation may be
<br />required under Section 7 of the ESA. Executive
<br />Order l 1987 restricts the use of funds for exotic
<br />species introductions unless it has been deter-
<br />mined that the introduction will not have an
<br />adverse effect on natural ecosystems.
<br />Recommendation 3E
<br />Improvements in Federal activity that should
<br />be taken under the Lacey Act include: 1) expe-
<br />diting the injurious species listing process; 2)
<br />fostering compliance with interstate commerce
<br />clauses of the Lacey Act by maintaining and
<br />making available to all interested entities infor-
<br />mation on State lists (approved, restricted, pro-
<br />hibited) and regulatory requirements; 3)
<br />establishing a list of Federally approved and
<br />prohibited species to facilitate quick decisions
<br />on those species; 4) [under the Lacey Act or
<br />other appropriate authority], initiating a
<br />review system for all other species not so listed;
<br />and 5) making an effort to identify pathogens
<br />and parasites of concern.
<br />The Lacey Act, administered by the U.S. Fish
<br />and Wildlife Service, has two major purposes: 1)
<br />preventing commerce in unlawfully taken
<br />wildlife; and 2) preventing the importation of
<br />injurious wildlife. Under the Lacey Act, it is
<br />unlawful to import, export, transport, sell,
<br />receive, acquire, or purchase fish or wildlife or
<br />plants taken, possessed, transported, or sold:.])
<br />in violation of U.S. or Indian tribal law, or 2) in
<br />interstate or foreign commerce any fish or
<br />wildlife taken, possessed or sold in violation of
<br />State law or regulation or foreign law (or, in rela-
<br />tion to plants, in violation of State law or regula-
<br />tion). The effectiveness of the Lacey Act in
<br />influencing the movement of nonindigenous
<br />species is thus in large part a reflection of the
<br />strengths or weaknesses of the laws of other
<br />jurisdictions. The legislative history accompany-
<br />ing the Lacey Act Amendments of 1981 illus-
<br />trated the intent of the Congress to support State
<br />regulation of non-native species in interstate
<br />commerce by specifically citing interstate com-
<br />merce in grass carp as an example of appropriate
<br />use of the Lacey Act to support State regulations.
<br />The Lacey Act also prohibits importation of wild
<br />vertebrates and other "injurious" animals listed
<br />in the Act or declared by the Secretary of the
<br />Interior by regulation to be potentially harmful to
<br />human beings or the interests of agriculture, hor-
<br />ticulture, forestry, or fishes and wildlife of the
<br />United States. Few species have been listed
<br />under this provision. Only three aquatic species
<br />(zebra mussels, mitten crabs, and walking cat-
<br />fish) and four viruses affecting salmonid fishes
<br />(VHSV, IHNV, IPNV, and OMV) are currently
<br />on the list. However, Lacey Act listing is a slow
<br />process and many species listed under the act
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