New York Legislator’s Bill Would Ban Federally Legal Shipment Of Certain Animals By US Postal Service Is Likely Preempted By Federal Law.

Fox Rothschild LLP

Fox Rothschild LLP

Well known animal rights activist, New York Assemblymember L. Rosenthal, has introduced a bill that seemingly runs afoul of federal law, that among other permissible shipments, allows the shipment of certain poultry through the mail, under specifically prescribed conditions. The language of the proposed bill would ban these and other federally lawful practices,

     “ Section 1. The agriculture and markets law is amended by adding a new section 382 to read as follows:

  •            382. Prohibition of the shipping of live animals by postal mail.

It shall be unlawful for any person, firm, partnership or corporation to mail or offer for mailing a live animal by postal mail into or within the state of New York or from the state of New York to points outside the state of New York. As used in this section, “live animal” shall mean any mammal, bird, reptile, or amphibian.  “Postal mail” shall mean mail that is processed and delivered by the United States postal service or other mail carrier.  A person, firm, partnership or corporation shall be considered to have mailed or offered for mailing a live animal in violation of this section when such person, firm, partnership or corporation causes such live animal and applicable postage or shipping fee to be physically placed in the possession of the United States postal service or other mail carrier.

As provided on an USPS website (see here ) the following animals are legally permitted to be shipped by mail, with certain requirements:

“526 Mailable Live Animals

526.1 General

Some animals are mailable under proper conditions. See the specific instructions as noted for the following kinds of animals:

Live bees, 526.2 and Exhibit 526.21.

Live, day–old poultry, 526.3 and Exhibit 526.33.

Live adult birds, 526.4.

Live scorpions (only under limited circumstances), 526.5 and Exhibit 526.5.

Other small, harmless, cold–blooded animals, 526.6 and Exhibit 526.6.

The law requires USPS and shippers to provide for care of animals before and during shipment, and prohibits postal workers from rejecting a shipment if animals are properly protected.  It seems likely that the proposed bill, if challenged under the Supremacy clause of the Constitution of the United States, would be considered invalid.

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