Federal Laws and Regulations

Handbook Contents | Legal Learning Objectives | Federal Laws and Regulations | New York State Laws | Local Regulations | NYS Endangered Species | Environmental Conservation Law | Resources | ICWDM | Wildlife Species Information

Contents 1 Legal Issues: Federal laws related to wildlife control 1.1 Endangered Species Act 1.2 Migratory Bird Treaty Act 1.3 Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 1.4 Occupational Safety and Health Act (OSHA) 1.5 Handbook Contents 1.6 Disclaimer 1.7 Contact Information 1.8 Resources 1.9 Acknowledgments

Legal Issues: Federal laws related to wildlife control

Several agencies are involved in the regulation of the nuisance wildlife control industry. The major agencies involved in regulating the NWCO industry at the federal level are the U.S. Fish and Wildlife Service (US FWS), the U.S. Environmental Protection Agency (US EPA), and the Occupational Safety and Health Administration in the Department of Labor (OSHA). In special circumstances other federal agencies may have jurisdiction, such as the Federal Aviation Administration, which supervises wildlife control at airports.

The U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Division of Wildlife Services (USDA-APHIS-WS) provides federal leadership in addressing wildlife damage issues, but doesn’t have a regulatory role. They help manage wildlife to reduce damage to agriculture and natural resources, to minimize risks to human health and safety, and to help protect endangered and threatened species.

Here are brief descriptions of the most pertinent federal laws affecting the NWCO industry. These laws, which are part of the U.S. Code, may be found online and at most public libraries. We’ve included the website addresses and the citation for the relevant section of the U.S. Code. Reference librarians can help you find the law in the books, especially if you present the citation, such as “16 U.S.C. 1531-1544, 87 Stat. 884.”

Endangered Species Act

Regulatory agencies: US FWS, and each state’s lead wildlife agency (in NY, that’s the DEC)

Applicable to: All plants and animals on the federal endangered or threatened species lists

Read the law:

online—Fish and Wildlife Service Laws
print—16 U.S.C. 1531–1544, 87 Stat. 884

This law protects endangered or threatened plant and animal species. What does it mean for you? It’s simple: it means an endangered or threatened species should not be injured or harassed by your nuisance wildlife control activities. These species cannot be killed, harmed, or collected except under some carefully described circumstances, and then, only with permits.

If there are endangered or threatened species living in the areas where you work, you must take special precautions. This might affect how you set traps or apply pesticides, for example. One measure of a pest manager’s professionalism is how diligently you try to protect other species from control activities, whether or not those “non-targeted species” are endangered.

Migratory Bird Treaty Act

Regulatory agencies: US FWS, and each state’s lead wildlife agency (again, in NY, that’s the DEC)

Applicable to: all migratory birds (such as ducks, geese, songbirds, gulls, shorebirds, wading birds, birds of prey) with these exceptions:

• Three nonnative birds: the common pigeon (a.k.a. “rock dove”), house sparrow (a.k.a. “English sparrow”), and European starling

• Game birds that don’t migrate, and are managed by the DEC (such as turkey, quail, pheasant, and grouse)

• Certain blackbirds in certain agricultural situations (see below)

Read the law:
online—http://laws.fws.gov/lawsdigest/migtrea.html
print—16 U.S.C. 703–712; Ch. 128; July 13 1918; 40 Stat. 755

This law protects all migratory birds, their feathers, nests, and eggs (with the few exceptions listed above). You may not take, possess, or transport a migratory bird without a special federal permit. Before you attempt to control a migratory bird, the landowners must obtain the 50 CFR Depredation Permit from the U.S. Fish and Wildlife Service. This permit allows the taking of migratory birds that have become a nuisance, are destructive to public or private property, or are a threat to public health or welfare. The permit spells out the conditions under which the birds may be controlled and the methods that may be used. Permit holders may control migratory birds that are clearly shown to cause, or are about to cause, serious damage to crops, nursery stocks, or fish in hatcheries. (USDA-APHIS-WS staff can help you apply for this permit. There is a fee for the permit.)

That said, the Migratory Bird Treaty Act has a special provision about blackbirds: “A federal permit shall not be required to control yellow-headed, red-winged, rusty, and Brewer’s blackbirds, cowbirds, all grackles, crows, and magpies when found committing or about to commit depredations upon ornamental or shade trees, agricultural crops, livestock, or wildlife, or when concentrated in such numbers and manner as to constitute a health hazard or other nuisance…”

State and local ordinances may further define control activities. For example, in New York, the Environmental Conservation Law states “Red-winged blackbirds, common grackles and cowbirds destroying any crop may be killed during the months of June, July, August, September and October by the owner of the crop or property on which it is growing or by any person in his employ.”

Local laws may limit the types of treatments that can be used in controlling birds, for example, they may limit the use of pyrotechnics. Check local and state laws before attempting to control any bird species.

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)

Regulatory agency: Responsibilities are split between the US EPA (federal level) and the state designated lead agency (in NY, that’s the DEC).

Applicable to: All pesticides

Read the law:
online—http://www.epa.gov/pesticides/fifra.htm

print—Title 7, U.S.C. Ch. 6

Sit up straight, because this one is complicated. FIFRA is the federal law that regulates pesticides. (A pesticide is any substance designed to prevent, destroy, repel, or mitigate any pest.) However, in most states, certain provisions of FIFRA are enforced at the state level through state pesticide regulations. We’ll talk about those later.

Because of FIFRA:

• All pesticides, as well as each use of that pesticide, must be registered by the US EPA. The EPA must also approve the product label.
• The EPA also classifies pesticides as either “general use” or “restricted use.” (A “restricted use” pesticide is one that, even if used as directed, might possibly harm people or the environment.)
• A restricted use pesticide may only be used by, or under the direct supervision of, a certified applicator.
• The amount of pesticide residue allowed on food is described.
• There are regulations for storing and disposing of pesticides and their containers.
• The EPA provides standards for worker safety and re-entry into a pesticide-treated area.
• There are criminal or civil penalties for violations of FIFRA. Big ones. A commercial applicator could be fined up to $25,000 or serve one year in prison, or both. NWCOs using pesticides on the job qualify as commercial applicators.
• States may set stricter standards but they can’t establish a more permissive one. That means that no state can allow the sale or use of a pesticide that is not permitted by federal law.

Each state has laws governing the sale, use, disposal, storage, and transportation of pesticides. Nearly every state controls the certification of pesticide applicators within its borders (in Colorado and Nebraska, federal programs handle this duty).

Avoid the “oops” (Pay attention when using something as pesticides)

FIFRA is probably the law that is most misunderstood by NWCOs. Why? Because in many cases, they don’t even realize they’re dealing with a pesticide. Avoid the “oops!” (Pay attention when using something as a pesticide.)

Any substance that’s meant to prevent, destroy, or repel pests, or reduce their damage, is legally classified as a pesticide. It doesn’t matter if it’s a commercial product or a home remedy. Chemical repellents are pesticides. So are fumigants, such as phosphine gas tablets or a carbon monoxide gas cartridge used to control rodents in their burrows. Poison baits, such as rodenticides, are pesticides.

There’s an easy way to figure this all out. Read the product label. If it’s a legal pesticide, the label will include all the information you need.

And—the label is the law.

What about “home remedies?” That term covers concoctions such as Auntie Sue’s chipotle-garlic deer repellent and the novel use of a household product as a pesticide (for example, household ammonia used as a repellent to drive raccoons out of a chimney). When a product hasn’t gone through the regulatory process, you lack vital information such as:

• What’s the recommended dose?
• Precisely how are you supposed to use and dispose of the product?

That’s really important information. Ammonia is a legal product. It’s also toxic to people. With bad instructions, someone trying to use ammonia as a repellent could get hurt.

In certain cases, the restrictions may seem ludicrous. A raccoon is living in the home, peeing wherever it pleases, but you can’t apply a little bit of raccoon eviction fluid, a product that contains raccoon urine. Puuh-leeze! Can’t we use a little common sense?

How do you trust everyone?

Not all manufacturers are honest or competent. They might purposefully or accidentally include a dangerous substance in the product. That’s why we rely on scientific studies and government regulatory processes. That’s how you know that the list of ingredients is complete and accurate. That’s how you know that a 2% solution is just that, not 0.2% solution in this bottle and a 20% solution in that one.

Remember, too, that just because a pesticide is sold through a trade magazine or the internet, that doesn’t mean you can legally use it in New York State. (Legal pesticides are registered by the EPA and the DEC or are in a special category, “25b minimum risk exemptions.”)

If you have any questions about pesticides, check the DEC website.

Occupational Safety and Health Act (OSHA)

Regulatory agency: OSHA division of the U.S. Department of Labor

Applicable to: all employers who have more than ten employees

Read the law:
online—http://www.osha.gov/comp-links.html
print—Public Law 91-596, 91st Congress, S. 2193, Dec. 29, 1970

This law requires that all employers who have more than ten employees keep records of all work-related deaths, injuries, and illnesses, and report to OSHA periodically. It also requires the investigation of employee complaints that may be related to the use of pesticides. OSHA also sets standards to promote worker safety. For example, you have to tell your workers about job hazards, such as possible exposure to histoplasmosis from contact with pigeon droppings. Even if you don’t have more than ten workers, the OSHA standards and training recommendations are worth reviewing, especially those concerning the safe use of ladders and respirators.