do not know whether in all respects that is a good idea for the Congress to play around with.

Certainly, we would agree that the application of the Lacey Act and the Black Bass Act to Indian tribe regulations would make those regulations easier to enforce, and would strengthen the total enforcement effort.

We have that whole problem before the Federal courts right now. There are at least two cases that I am familiar with, one in the 9th circuit, and I believe one in the 10th circuit, that deal with this problem of whether a State has the authority to regulate the taking of wildlife by nontribal citizens on Indian reservations.

We suggest that you may want to look at this critically, and solicit advice from your legal advisors, and perhaps those of the Department, and decide whether now, and in this place, it is the time to attempt to bring the tribes under the cover of the two basic acts.

As you know, from my testimony, the association has had these problems before it, off and on, for several years. I would like to make sure that you understand that our resolutions in support of this kind of action by the Congress do not relate directly to the issue of diseased fish.

A few years ago there was a move on the part of some of the States to try to get Federal legislation to control the transportation of fish from one place to another. That, however, dealt with the requirement of Federal regulations which would mandate a certificate of health for the shipment. We did not agree at that time to take that course. But we do feel that since this will allow every State to do whatever it believes is in the best interest of its own resources, that this is a much sounder approach toward the overall problem. Not only the one of effect on the habitat, but also the one on effect of bringing diseased fish into a State.

Mr. BREAUX. Let me ask you some questions.

You heard concerns expressed in part by the previous witness, Mr. Malone, on behalf of the American Fish Farmers Federation. How would you address his concerns? Is he correct in his concerns and opposition to the acts?

Mr. GOTTSCHALK. I have to say, Mr. Chairman, that I was out until just at the end of Mr. Malone's testimony, and I did not get to hear the whole thing.

Mr. BREAUX. The basic premise, if you have a problem with just one species, then this broad brush approach and umbrella approach is really not necessary. If you have a problem with one species being illegally shipped across State lines, we will spell it out and make the law applicable to that, but do not include everything that might possibly be a violation in the future down the road.

Mr. GOTTSCHALK. I do not think it is possible to anticipate the impact of a particular species. And I do not believe that our association would be willing to support a proposition which attempted to identify only passive species.

It is true that the so-called grass carp has been a big pain for most of the State agencies in recent years. I have had direct experience with it myself, and know that it has been a very difficult problem for states to cope with, because that species does

compete with native species, and most of the States are trying to protect their native biota, that is, their native species.

To some extent, this goes beyond the grass carp. There are some States elsewhere who are trying to protect native species of trout. For example, the native brook trout in the Southeast. The States, North Carolina in particular, in cooperation with the Great Smokies National Park, have been trying to preserve the eastern brook trout.

One of the big problems is that people bring rainbow trout, and other species, and stock those streams illicitly. The State authorities have a very difficult time dealing with this problem, unless they can get some hold on the introduction of those fish before they get put in the water. Somebody will always sneak them in, there is no doubt about that, but this gives a little better handle.

Mr. BREAUX. You recommend also that we exclude Indian rules that would be applicable to Indian tribes in Indian reservations. How would that work?

Mr. GOTTSCHALK. Again it would apply in relation to whatever State laws are applicable in that State. I think that is the issue, whether or not the State laws can apply to citizens of a State when fishing on or hunting on an Indian reservation or bringing species taken off the reservation in contravention of the State law, though taken legally on the Indian reservation.

Frankly, it seems to us until the question of the sovereignty of the reservation has been established—as I mentioned, there are a couple of cases before the Federal courts right now—that it might be better not to directly face this question in this particular kind of legislation.

What it really boils down to is whether or not the citizens of a State-not the Indians-but the citizens who go on and fish on reservations are subject to State regulations.

Mr. BREAUX. Is the International Association of Fish and Wildlife Agencies clearly supportive of the amendments that have been suggested in H.R. 5604?

Mr. GOTTSCHALK. That is correct. We feel that the administration will not be any more difficult than under the Black Bass Act and the Lacey Act.

In the past, these laws have been real pillars of conservation law. They have been tremendously effective. We do not see any reason for a greater problem with the new law as proposed as in the past. Mr. BREAUX. Thank you.

Mr. Forsythe?

Mr. FORSYTHE. Thank you, Mr. Chairman. Thank you, John. It seems to me it makes a great deal of sense to caution us about trying to pick up the Indian laws and regulations in this particular legislation until there is resolution of those basic issues that are now being tried in courts all over the land.

Mr. GOTTSCHALK. Beyond fish and wildlife.

Mr. FORSYTHE. We are facing parallel issues in NOAA offshore problems so I know. So it is very complex.

You give a blanket endorsement to these amendments but I have some concern, and concern has been expressed by some other committee members, that in trying to make enforcement easier with this act, which I understand was one of the purposes of these

amendments, we may be going too far in that it is difficult to make sure that people get a fair shake in terms of innocent operation. You do not feel that concern in any way whatsoever?

Mr. GOTTSCHALK. Mr. Forsythe, I had the experience of seeing one Federal prosecutor after another throw cases out because they did not feel it was meritorious. And if we got it through the prosecutor, the Federal judge threw it out.

I have come to the conclusion that in terms of this sort of the sort of thing we are talking about where an innocent bystander, so to speak, carries something that he bought at a pet store in Baltimore down to Washington, and so goes from one State to another, into Virginia, let us say, those things just do not get prosecuted unless there is a commercial overtone, a taint of outright commercialism in it. Then there is a chance to get it prosecuted.

But I do not know of any Federal court that will entertain cases against unwitting violators. That is not to say that the way the law is drafted, that could not happen. I am saying that practically it does not happen.

Mr. FORSYTHE. You are also saying that perhaps the social values of protecting animals are hard enough to defend without having this kind of problem arise.

Mr. GOTTSCHALK. You can see what a loophole there is for commercialization. If you do not have language to pretty well cover the whole problem, everybody will be an innocent transporter of something or other. I think it makes such a tremendous loophole and we are trying to get it plugged at this point.

Mr. FORSYTHE. Thank you. Thank you, Mr. Chairman.

Mr. OBERSTAR [presiding]. I have a problem with what I perceive to be a substantial move from the Lacey Act., the removal of the word "knowingly," which provides in the Lacey Act any person who knowingly violates.

The administration proposed language, simply that it is unlawful for any person to import, export, sell, et cetera. We are removing a rather significant distinction here that may have some far-reaching impact for innocent parties or persons who are not commercially the prime movers, the prime beneficiaries of any illegal or illicit trade.

I just wonder if there is not a way of getting at those who are the primary beneficiaries, those who really should to know that they are doing something wrong, doing something that is prohibited by law, the importers and exporters themselves, and make them subject to these criminal penalties and provide that standard of knowing to others who are in some sense removed from that primary interaction.

Mr. GOTTSCHALK. You are putting that in the form of a question? Mr. OBERSTAR. Asking for your reaction.

Mr. GOTTSCHALK. My reaction is that I think it is time that we try to tighten up a little bit. The pet trade obviously has a place in our country. There is no doubt about that. But there is a tremendous illicit pet trade.

I think if we retain that idea of only making the individual liable who can be shown to knowingly violate the law, that we have given ourselves a tremendous enforcement handicap in this day and age. It is not as difficult as one might think for the larger operators.

I recall a few years ago when we first began to get into largescale shipments that we made a concerted effort to inform all the commercial carriers. It was a big job, to be sure, but all of the primary offices of TWA and American Airlines and Pan Am, and all railroads and the bus companies and all the rest of them were informed of the 1969 Endangered Species Act and the amendments of the Lacey Act.

I really do not think there was ever any problem with doing that. It really comes down, I think, and your concern comes down, I suspect, to the private individual who is not commercially involved, and the extent to which he might be liable for an inadvertent violation of the law.

From what I know about it-and I have to say I am not an attorney-in my experience, it has not been a problem. I do not think you will find on the record many times, if any-I do not know of any in my own recollection-of someone who innocently picked up a fish in violation of the Black Bass Act and was convicted. The courts just do not consider that sort of thing a serious problem.

And we are trying to put in enough teeth so we can get a good strong grip on the commercial actions.

Mr. OBERSTAR. I realize what you are saying, and the Interior earlier seemed to be suggesting the same thing, trying to give assurances in the course of a committee hearing, that this kind of action against an innocent citizen is not going to happen. But that person, that purchaser, in a pet shop, or in some other form of illegal or prohibited article or item, has to be expected to be protected by that language in the Lacey Act knowingly. Knowingly violates. That protection is going to be removed under this language in the bill under consideration.

Mr. GOTTSCHALK. We are making it stronger.

Mr. OBERSTAR. That troubles me for the individual innocent third party there. I think it is easy enough to pinpoint the folks in that direct chain of command.

You know, we have done that in a great many other pieces of legislation in this committee. But this seems to be reaching out beyond that, and I just wonder if that does not trouble you at all.

Mr. GOTTSCHALK. Frankly, it does not. I really do not think it will be a problem. That is my personal opinion. I was going to suggest that you might want to get some more people who had perhaps more direct experience, and have the records, to tell you exactly what may have happened.

Of course, again, we go back to the "knowingly" aspect. I believe that through the training of the enforcement staff, through the education of the public, including the pet dealers themselves-and this is where most of those problems originate-that this problem can be alleviated.

Mr. OBERSTAR. It is very hard to try to establish in the case that you are making, because I think it is very speculative, we do have some precedents with the Endangered Species Act in a different fashion, but it is one I think we need to consider a little further. Any questions or comments?

Mr. FORSYTHE. No.

Mr. OBERSTAR. Thank you very much.

Mr. GOTTSCHALK. Thank you.

Mr. OBERSTAR. Our next witness is Mr. Marshall Meyers, counsel for the Pet Industry Joint Advisory Council and Research AnimalAlliance.

STATEMENT OF MARSHALL MEYERS, COUNSEL, PET INDUSTRY JOINT ADVISORY COUNCIL AND RESEARCH ANIMAL ALLIANCE, ACCOMPANIED BY ROBERT ROBINSON, EXECUTIVE VICE PRESIDENT

Mr. MEYERS. Mr. Chairman, I am accompanied by Mr. Bob Robinson, executive vice president.

Mr. OBERSTAR. Thank you for being with us today.

Mr. MEYERS. Thank you for giving us this opportunity to testify. Because of the hour and the length of the presentation, I will summarize it, and maybe give examples to highlight some of the points and, therefore, let me testify

Mr. OBERSTAR. Your complete statement will appear in full in the record at this point.

[The following was received for the record:]

STATEMENT OF MARSHALL MEYERS, COUNSEL, PET INDUSTRY JOINT ADVISORY COUNCIL AND RESEARCH ANIMAL ALLIANCE

Mr. Chairman and members of the Committee, my name is Marshall Meyers and I am appearing today as counsel for two organizations-the Pet Industry Joint Advisory Council (PIJAC) and the Research Animal Alliance (RAA). We are grateful for being provided an opportunity to testify on problems we view as inherent in the Lacey Act (18 U.S.C. 43) and in the proposed amendments to that Act and the Black Bass Act (16 U.S.C. 52).

Inasmuch as the Administration's desired revisions have yet to be introduced formally, our comments will be directed (1) to existing problems under the Acts and (2) to certain provisions contained in the draft proposal.

While we support certain changes embodied in the proposed amendments, such as the consolidation of myriad wildlife statutes, the simplification of the statutory language, and the provision for review of civil penalties, we are opposed to a statute which we consider to be replete with vagueness and ambiguities. We are also opposed to a statute which imposes strict civil and/or criminal penalties on citizens for the acts of persons not under their control, especially when one is a subsequent purchaser in due course two or three steps removed from the initial, alleged violation. We are further opposed to a statute which incorporates by reference every law and regulation in the world affecting wildlife and fishes whether or not said law involves wildlife conservation or protection. Moreover, we are opposed to expansion of penalties in an already vague statute permitting such wide discretion in the administration of the statute a statute which can be utilized to harass, close down businesses, and achieve what otherwise could not be done if proper Constitutional due process safeguards were included.

Prior to overhauling the Lacey Act, we suggest that serious consideration of the legislative intent and the due process safeguards is warranted. More extensive hearings are needed.

To place our position in proper perspective, I shall preface our comments with some background information on the organizations I represent and their experience with the Department of Interior.

The Pet Industry Joint Advisory Council (PIJAC) consists of twenty pet associations and approximately 750 individual and compnay memberships. The Pet Industry is extensive, employing many thousands in every state as well as in several foreign countries. The membership of PIJAC and its member organizations consists of sole proprietorships, small companies as well as large corporations engaged in every aspect of the Pet Industry. Live animals are sold in tens of thousands of stores throughout the United States to afford the general public an opportunity to acquire pets; the related products are sold in more than a half million stores across the nation. PIJAC's members breed, acquire, import, export, transport and market virtually every species of live animal, not only for pets, but also for zoological specimens and for biomedical research.