Importation of Exotic Wild Birds to the United States; Final Rule Implementing the Wild Bird Conservation Act of 1992

DEPARTMENT OF THE INTERIOR

50 CFR Part 15

RIN 1018-AC15

Importation of Exotic Wild Birds to the United States; Final Rule

Implementing the Wild Bird Conservation Act of 1992

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On October 23, 1992, the Wild Bird Conservation Act of 1992

(WBCA) was signed into law, the purposes of which include promoting the

conservation of exotic birds by: Ensuring that all imports of exotic

bird species into the United States are biologically sustainable and

not detrimental to the species; ensuring that imported birds are not

subject to inhumane treatment during capture and transport; and

assisting wild bird conservation and management programs in countries

of origin. This final rule implements procedures for the establishment

of an approved list of species listed in the Appendices to the

Convention on International Trade in Endangered Species of Wild Fauna

and Flora that may be imported without a WBCA permit because it has

been determined that trade in these species involves only captive-bred

specimens.

EFFECTIVE DATE: This rule is effective January 3, 1995.

FOR FURTHER INFORMATION CONTACT: Dr. Susan S. Lieberman, U.S. Fish and

Wildlife Service, Office of Management Authority, 4401 N. Fairfax

Drive, room 420C, Arlington VA 22203, telephone (703) 358-2093.

SUPPLEMENTARY INFORMATION: This final rule implements aspects of the

WBCA, which was signed into law on October 23, 1992. This is the second

of two rulemakings under the WBCA; the first final rulemaking under the

WBCA was published in the Federal Register on November 16, 1993 (58 FR

60524). The WBCA limits or prohibits imports of exotic bird species to

ensure that their wild populations are not harmed by trade. It also

encourages wild bird conservation programs in countries of origin by

both ensuring that all imports of such species into the United States

are biologically sustainable and not detrimental to the species, and by

creating an Exotic Bird Conservation Fund to provide conservation

assistance in countries of origin. The final rule of November 16, 1993,

summarized the effects of the WBCA and established procedures for

obtaining import permits authorized by the WBCA.

An immediate moratorium, effective October 23, 1992, was

established on the importation of 10 species of wild birds of

particular concern that were listed in Appendix II of the Convention on

International Trade in Endangered Species of Wild Fauna and Flora

(CITES, or Convention), two of which were moved to Appendix I at the

March 1992 CITES meeting. The prohibition on importation of those

species was announced in the Federal Register on December 4, 1992 (57

FR 57510).

During the one-year period immediately following enactment of the

WBCA, from October 23, 1992, to October 22, 1993, import quotas were

established for CITES-listed bird species. Those quotas were announced

in the Federal Register on December 4, 1992 (57 FR 57510). A notice

published on March 30, 1993 (58 FR 16644), solicited public comments

and announced a public meeting, held April 15-16, 1993, to receive

input from the public for the development of regulations to implement

some of the provisions of the WBCA. Useful input was received from a

broad cross-section of interested members of the public who

participated in the meeting and submitted comments in writing; that

input has been used to develop this final rule. A notice published on

April 16, 1993 (58 FR 19840), announced species for which the quotas

had been met and no further individual birds could be imported.

With the publication of the final rule of November 16, 1993,

imports of all CITES-listed birds (as defined in the final rule) are

prohibited, except for (a) species included in an approved list; (b)

specimens for which an import permit has been issued; (c) species from

countries that have approved management plans for those species; or (d)

specimens from approved foreign captive-breeding facilities. The U.S.

Fish and Wildlife Service (Service) published a proposed rule in the

Federal Register on March 17, 1994 (59#FR 12784), that would implement

procedures for approval of foreign captive-breeding facilities and

establishment of an approved list of species listed in the CITES

Appendices that can be imported without a WBCA permit; that approved

list is published herein.

As a result of a lawsuit filed on February 15, 1994, by the Humane

Society of the United States and Defenders of Wildlife, and a resultant

District Court Order that found a portion of the regulation in the

November 16, 1993, Federal Register (58 FR 60524) invalid, the Service,

consistent with that Court Order, announced in the Federal Register on

May 24, 1994 (59 FR 26810), that all exotic birds listed in Appendix

III of CITES are covered by the automatic import moratorium of the

WBCA, regardless of their country of origin. A proposed rule was

published on June 3, 1994 (59 FR 28826), to promulgate that regulatory

change.

This rule finalizes those proposals made in the Federal Register of

March 17, 1994, for the approved list of captive-bred species, with

some modifications based on comments received and further analysis by

the Service. The proposed regulations for the approval of foreign

breeding facilities and the approved list for wild-caught CITES-listed

species will be addressed in a future final rulemaking.

Comments and Information Received

The Service received roughly 4800 comments from the public,

including over 4600 form letters from private aviculturists (bird

breeders) and comments from 6 conservation and/or animal welfare

organizations, 1 zoological organization, 2 scientific organizations, 1

representative of the pet industry, 2 private companies, 3 importers,

11 avicultural organizations, and 6 falconry/raptor breeder

organizations; the remaining comments were from other private

individuals.

Comments of a General Nature

Several commenters, including a scientific organization, several

conservation organizations, a zoological organization, an avicultural

organization, and some private individuals, supported the criteria for

listing species on the approved list of captive-bred species and the

proposed list of captive-bred species in their entirety.

Numerous comments contended that the proposed list of approved

captive-bred species was too restrictive and allowed for the captive

breeding of only those species on the approved list. The Service is

aware that the proposed list of approved captive-bred species has

caused misunderstanding and confusion in the avicultural community and

wishes to clarify what the WBCA and the approved list for captive-bred

species actually regulates. Neither the Wild Bird Conservation Act nor

the Service's regulations implementing Section 106 of the Act impose

new burdens or requirements on buying, selling, breeding, transport,

interstate commerce, or export of birds bred in the United States.

Those activities are not regulated by the WBCA. What the WBCA does is

to restrict imports of bird species listed in the CITES Appendices,

whether taken from the wild or bred in captivity.

Species listed on the approved list of captive-bred species are

those species that can be imported into the United States without a

WBCA permit. This approved list of captive-bred species does not

regulate the breeding, selling, transport, interstate commerce, or

export of birds bred in the United States. Several commenters were

under the false impression that, if a species is not on the approved

list of captive-bred species, this species could not be possessed or

bred in the United States. The Service encourages such captive breeding

within the United States to meet the commercial demand for pet birds.

The Service also notes that the approved list of captive-bred species

only means that the species is approved for import without a WBCA

permit; it does not mean that the Service does not approve the breeding

of other species. The Service is in the process of working to ease the

bird breeding public's concerns by initiating a program of public

education on the WBCA and its regulations.

Comments Pertaining to Section 15.31: Criteria for Including Species in

the Approved List for Captive-Bred Species

This section establishes the criteria for the inclusion of captive-

bred species in the approved list. Pursuant to Section 106 of the WBCA,

the Secretary of the Interior (Secretary) is required to publish a list

of species of exotic birds that are listed in an appendix to the

Convention and that are not subject to a prohibition or suspension of

importation otherwise applicable under the WBCA. In order to list a

species as exclusively captive-bred, the Service is required by the

statute to determine that the species is regularly bred in captivity

and that no wild-caught birds of the species are in trade, legally or

illegally.

These captive-bred species can be imported into the United States

without meeting any additional requirements of the Wild Bird

Conservation Act or this Part 15; however, all of the existing

requirements in Parts 13 and 14, Part 17 (species listed as endangered

or threatened under the Endangered Species Act (ESA)), Part 21

(Migratory Bird Treaty Act), and Part 23 (species listed in the

Appendices to the Convention, or CITES) must still be complied with.

This section establishes the following criteria for the approval of

the importation of captive-bred species:

(a) All specimens of the species known to be in trade (legal or

illegal) must be captive-bred;

(b) No specimens of the species can be known to be removed from the

wild for commercial purposes;

(c) Any importation of specimens of the species must not be

detrimental to the survival of the species in the wild; and

(d) Adequate enforcement controls must be in place in countries of

export to ensure compliance with the aforementioned paragraphs. Imports

of species approved according to the criteria of this section are not

limited to specimens originating from qualifying facilities as

described under Subpart E of this Part.

If a species is bred in captivity in large numbers, but individual

birds of that species are frequently, sometimes, or even rarely taken

from the wild, or if there are enforcement concerns that illegal trade

occurs in the species, the statute does not allow that species to be

included as a captive-bred species. However, individual captive-bred

birds may still be imported into the United States under one of the

following conditions: (1) the foreign breeding facility could be

approved pursuant to Subpart E of this Part 15; or (2) a permit for an

individual import could be obtained pursuant to Subpart C, if the

requirements of that Subpart are met.

As established in the WBCA, the Service will periodically review

the list of species that meet the approval criteria for the importation

of captive-bred species. Any changes [additions and/or deletions] to

this approved list will be proposed in the Federal Register for public

comment, followed by a final rule in which the proposed changes will be

made or an explanation provided for not making them.

Numerous commenters, including 762 form letters from aviculturists,

requested that all captive-bred birds be exempted from the WBCA and its

implementing regulations. The Service disagrees, since that is not

allowed by the statute. One of the purposes of the WBCA is to assist

wild bird conservation and management in the countries of origin.

However, except for the 10 bird families specifically exempted from the

WBCA, the WBCA applies to all species of exotic birds being exported

from any country, whether individual birds are of captive or wild

origin. In passing the WBCA, Congress recognized that there are serious

concerns that wild-caught birds are often intentionally misrepresented

as captive-bred. For this reason, the law specifies criteria for the

import of captive-bred species; it does not simply exempt them.

Furthermore, the Service is aware of illegal trade whereby wild-caught

birds are misrepresented as captive-bred and laundered as captive-bred

birds. Therefore, it would be inconsistent with both the plain language

and intent of the statute to exempt entirely all birds that are claimed

to be bred in captivity from the provisions of the law. However, the

Service notes that, in addition to the list of approved captive-bred

species, several other ways exist to import captive-bred birds into the

United States under the WBCA.

Numerous commenters objected to the Service's use of the standards

adopted by the State of New York with respect to establishing the

criteria for including species in the approved list for captive-bred

species, and commented that such standards were too restrictive. The

Service disagrees. The Service was advised to adopt such standards by

the House of Representatives Committee Report for the WBCA. The House

Merchant Marine and Fisheries Committee advised the Service ``to use

the standards adopted by the State of New York with respect to

importation of captive-bred species, and include such species on the

approved list under this section, as long as the Secretary believes

that trade based on these standards will not result in harm to species

in the wild'' [House Report No. 102-749 (I) pages 1602-1603]. These

standards would include species of exotic birds in the approved list if

the species is regularly bred in captivity and none are taken from the

wild for trade. Many commenters stated that many more species are bred

in captivity than occur on the New York State Approved List of Captive-

bred Species and that this list was adopted years ago when avicultural

techniques were not as developed as they are today. The Service agrees

that many more species are bred in captivity now than when New York

State developed its regulations and approved list. The Service has

adopted the standards used by New York State in developing its criteria

for the approval of captive-bred species, and has included many species

that are not found on the New York State approved list of captive-bred

species.

Animal welfare organizations and one conservation organization

supported the criteria for including species on the approved list of

captive-bred species, but requested that additional criteria be added

to conform to CITES requirements for the humane transport of live

animals. They requested that species experiencing 10% or higher

mortality in transit or 15% or higher mortality in quarantine not be

included on the approved list of captive-bred species. Although the

Service is concerned about the humane treatment and transport of all

birds, it disagrees that such criteria are required for including

species on the approved list of captive-bred species. The Service

implements requirements for the humane and healthful transport of live

birds imported into the United States through its implementation of the

Lacey Act humane and healthful transport requirements, found in 50 CFR

Part 14. In including species on the approved list of captive-bred

species, the Service is required to determine that the species is

regularly bred in captivity and no wild-caught birds of the species are

in trade, legally or illegally. The Service notes as well that

mortalities in shipments of birds that are bred in captivity tend to be

lower than those of wild-caught birds.

Several aviculturists commented that the approved list of captive-

bred species should include species where captive breeding of the

species is needed to conserve the species. The Service recognizes the

contribution that captive breeding may make to the conservation of some

species, but the statute does not instruct the Secretary to list a

species on the approved list of captive-bred species using such

criteria. If an ex-situ captive-breeding program is needed for a

species' conservation, wild-caught or captive-bred birds may be

imported from approved overseas breeding facilities, from countries

with approved management plans, and for scientific research, zoological

breeding, and approved cooperative breeding programs under WBCA permits

available from the Service. The Service notes that cooperative breeding

programs encourage such conservation efforts.

Several aviculturists commented that the approved list of captive-

bred species would cause a loss of genetic diversity in captive

populations of birds in the U.S. and restrict access to new bloodlines

for a species' conservation. The Service disagrees and notes that birds

which are not on the approved list of captive-bred species may still be

imported into the U.S. under the WBCA in several other ways: from

approved overseas breeding facilities, from countries with approved

management plans, and for scientific research, zoological breeding, and

approved cooperative breeding programs. Congress included the

exemptions for zoological breeding and cooperative breeding programs

for just this purpose. The Service notes that it is not the intent of

approval of captive-bred species to enhance conservation of a species,

but rather to facilitate imports of specimens that in no way impact

wild populations.

Numerous aviculturists (including 2318 represented by form

letters), a representative of the pet industry, avicultural groups, and

several importers commented that any species that is regularly captive-

bred, and that is prohibited from export for the pet trade by its

country of origin, should be listed on the approved list of captive-

bred species (regardless of enforcement concerns). For example, they

recommend that all species which are regularly bred in captivity and

are indigenous solely to Australia, a country from which there is no

legal avian trade in wild-caught birds, should be listed on the

approved list of captive-bred species. The Service disagrees. There

remain problems in adequate regulatory and enforcement mechanisms in

many countries of origin for species which are subject to illegal

trade. Adoption of this recommendation would lead to the logically

absurd conclusion to list all indigenous parrots of Mexico on the

approved list of captive-bred species because Mexico bans their export.

Since there exists a flourishing domestic trade in wild-caught parrots

in Mexico and their subsequent illegal export to the U.S., such

inclusion on the approved list would undermine species conservation, as

well as Mexico's enforcement efforts. We cannot adopt this

recommendation, which is counter to the purpose of the statute and the

intent of Congress.

Several aviculturists, some importers, and a raptor breeders'

organization commented that species should be listed on the approved

list of captive-bred species, on a country-by-country basis, if they

are reliably bred in captivity in a specific country only. For example,

Saker falcons from Great Britain would be listed on the approved list

of captive-bred species because they are reliably captive-bred in Great

Britain. The Service disagrees and is making no changes based on these

comments. The statute does not provide for species listings in such a

country-by-country manner. However, the qualifying overseas breeding

facilities can be listed by the country from which the species is to be

imported.

The representative of the pet industry and a national avicultural

organization objected to Section 15.31 (a) stating that it is

inappropriate for the Service to require that all specimens of the

species known to be in trade (legal or illegal) be captive-bred. They

consider trade to be legal trade only and that illegal trade should not

be considered to be trade. They recommend that the Service not take

illegal trade into consideration. The Service strongly disagrees and

recognizes that it was Congress' intent to prevent the illegal trade in

birds, which is detrimental to species' survival, and the laundering of

wild-caught birds as captive-bred specimens. The Service notes that,

for any species, trade includes both legal and illegal trade. Article I

of the CITES Convention defines trade as ``export, re-export, import

and introduction from the sea'' and does not differentiate legal from

illegal. For the purposes of implementing this law, the Service agrees

with the authors of the CITES Convention, as well as the reality of

international trade, that trade has both legal and illegal components.

The Service originally proposed that Section 15.31 (b) read ``no

specimens of the species can be known to be removed from the wild for

the pet bird market.'' In its review of the comments, the Service noted

that several commenters were confused by this wording and the Service

has changed Section 15.31 (b) to read ``no specimens of the species can

be known to be removed from the wild for commercial purposes.'' If in

the future wild-caught specimens are imported to the U.S. for the

exemptions allowed under the WBCA for scientific research, zoological

breeding or display, personal pets, or approved cooperative breeding

programs, such importations would not preclude listing the species in

the approved list of captive-bred species when the species is reliably

bred in captivity and all specimens imported for commercial purposes

are captive-bred. Commercial purposes includes but is not limited to

the pet market (it also includes travelling animal acts, circuses, and

other uses which result in financial benefit).

The representative of the pet industry and a national avicultural

organization objected to Section 15.31 (c) stating that ``inasmuch as

the listing process requires that no wild-caught specimens are in

trade, there is no necessity even to address the non-detriment issue''

and that such a requirement is beyond the scope of the WBCA. The

Service disagrees. One of the stated purposes of the WBCA is to ensure

that all trade in species of exotic birds involving the U.S. is

biologically sustainable and is not detrimental to the species. The

WBCA requires the Service to make such a finding before listing species

on the approved list of captive-bred species. The Service was also

advised to adopt such standards by the House of Representatives

Committee Report for the WBCA. In this Committee Report, the Secretary

was advised ``to use the standards adopted by the State of New York

with respect to importation of captive-bred species, and include such

species on the approved list under this section, as long as the

Secretary believes that trade based on these standards will not result

in harm to species in the wild'' [House Report No. 102-749 (I) pages

1602-1603].

Furthermore, the Service believes that if the inclusion of any

species on an approved list could be detrimental to the survival of the

species in the wild, the intent of Congress, the purposes of the WBCA

and the ``non-detriment'' requirements of CITES for Appendix II species

are such that the species should not be included in the approved list.

The Service cannot list a species in the approved list if such listing

could undermine the conservation of wild bird species in the wild.

Therefore, the Service is making no changes based on these comments.

Several aviculturists and one conservation organization expressed

confusion over Section 15.31 (d). They note that adequate enforcement

controls should be in place in countries of export of captive-bred

birds, as well as in countries of origin of the wild populations. The

Service agrees and notes that it is just as critical that enforcement

be in place and adequate in range countries as it be in place in

exporting countries. The Service notes that adequate enforcement in

exporting countries is critical to ensure that wild-caught birds will

not be misrepresented and laundered as captive-bred birds. Adequate

enforcement is critical to implementation of CITES, a specified purpose

of the WBCA. Therefore, the Service has modified 15.31 (d) accordingly.

General Comments Pertaining to Section 15.33: Species Included in the

Approved List for Captive-Bred Species

This section establishes a list of approved captive-bred species,

based on the criteria in Section 15.31. The Service used the best

information available, including records of imports into the United

States of both wild-caught and captive-bred birds for the years 1988-

1992, CITES annual reports, published reports on the bird trade, law

enforcement data on the commercial trade in captive-bred species, law

enforcement and intelligence information on the illegal trade in exotic

bird species, information from the CITES Secretariat, and information

from other governments. The final list of approved species includes 45

captive-bred exotic bird species and the color mutations for 3 captive-

bred species that can be imported from any other country without a WBCA

permit; other applicable requirements still apply, including any

permits or documents required by CITES, other federal laws, and the

exporting country.

The Service has included in the approved list of captive-bred

species several exotic bird species that are not listed in any Appendix

to the Convention but are regularly bred in captivity and are not taken

from the wild. Although these species are not listed in an Appendix and

thus are not presently prohibited under the WBCA, these species are

included in the list for the convenience of the public. If any of these

species were to become listed in CITES Appendix I, II, or III, their

importation would remain exempt from the provisions of the WBCA,

pursuant to this section. To ensure that there is no confusion, even if

the species or higher taxon to which it belongs were subsequently

listed in the Appendices to the Convention, the Service would still

consider it to be an approved captive-bred species pursuant to this

subpart D.

Several commenters supported the approved list of captive-bred

species published in the March 17, 1994 Federal Register notice,

whereas numerous commenters suggested specific additions of parrot and

finch species to the approved list. The Service reviewed information

available to it for all of these species, based on the criteria in

Section 15.31. These comments are addressed below.

Several falconry/raptor breeder organizations commented that all

birds in the order Falconiformes should be exempted from the WBCA and

its implementing regulations. The Service disagrees and cannot exempt

entire families of birds that Congress did not choose to exempt. Except

for the 10 bird families specifically exempted by the WBCA, the WBCA

applies to all species of exotic birds being exported from any country,

whether individual birds are of captive or wild origin. However, the

Service notes that raptors can be imported into the United States in

several ways, including under permit requirements for scientific

research, cooperative breeding programs, or zoological display or

breeding.

Several commenters expressed concerns that once this list of

approved captive-bred species is published, no additional species could

be added to the list. That is not the case. As new information becomes

available, and as captive breeding becomes more successful, the Service

may propose modifications to this list of approved captive-bred

species, including the inclusion of additional species.

Some of the species recommended by several commenters for inclusion

in the list of approved captive-bred species are very rare in

aviculture, and there are few records of their international trade,

either in the United States or elsewhere. The Service has not included

such species in the approved list, and notes that a purpose of the list

of approved captive-bred species is to facilitate commercial

importation of captive-bred species, whose trade in no way can be

detrimental to populations of these species in the wild. The

fundamental purpose of the WBCA is conservation of exotic bird species

in the wild. For species that are rare in aviculture, individual

captive-bred birds may be imported for approved cooperative breeding

programs, zoological breeding and display, or scientific research,

pursuant to Subpart C of this part.

Comments on Specific Species

Several commenters suggested specific species for inclusion in the

approved list of captive-bred species, which are addressed as follows:

Psittacines That Cannot Be Added to the Approved List

The Service found that the following psittacine species could not

be added to the approved list of captive-bred species because they did

not meet the criteria for approval in Sec. 15.31(a), and that wild-

caught birds are in trade and have been imported into the United

States: Red-faced lovebird (Agapornis pullaria), Fischer's lovebird

(Agapornis fischeri), Madagascar or Grey-headed lovebird (Agapornis

cana), Green-winged king parrot (Alisterus chloropterus), Amboina king

parrot (Alisterus amboinensis), Blue-fronted amazon (Amazona aestiva),

Yellow-crowned Amazon (Amazona ochrocephala), Orange-winged Amazon

(Amazona amazonica), Mealy Amazon (Amazona farinosa), Red-winged Parrot

(Aprosmictus erythropterus), Scarlet macaw (Ara macao), Blue and yellow

macaw (Ara ararauna), Green-winged macaw (Ara chloroptera), Golden-

crowned conure (Aratinga aurea), Orange-fronted conure (Aratinga

canicularis), Golden-capped Conure (Aratinga auricapilla), Andean or

Sierra Parakeet (Bolborhynchus aymara), Tovi or orange-chinned Parakeet

(Brotogeris jugularis), Canary-winged parakeet (Brotogeris

versicolurus), Citron-crested cockatoo (Cacatua sulphurea

citrinocristata), White or umbrella cockatoo (Cacatua alba), Salmon-

crested Cockatoo (Cacatua moluccensis), Lesser sulphur-crested Cockatoo

(Cacatua sulphurea), Greater sulphur-crested cockatoo (Cacatua

galerita), Triton cockatoo (Cacatua galerita triton), Bare-eyed

cockatoo (Cacatua sanguinea), Ducorp's cockatoo (Cacatua ducorpsii),

Goffin's cockatoo (Cacatua goffini), Red-vented cockatoo (Cacatua

haematuropygia), Duyvenbode's lory (Chalcopsitta duivenbodei), Yellow-

streaked lory (Chalcopsitta scintillata), Stella's lorikeet (Charmosyna

papou), Red-flanked lorikeet (Charmosyna placentis), Vasa parrot

(Coracopsis vasa), Eclectus parrot (Eclectus roratus), Austral conure

(Enicognathus ferrugineus), Blue-streaked lory (Eos reticulata), Red

lory (Eos bornea), Pacific parrotlet (Forpus coelestis), Green-rumped

parrotlet (Forpus passerinus), Blue-winged parrotlet (Forpus

xanthopterygius), Chattering lory (Lorius garrulus), Black-headed

caique (Pionites melanocephala), White-crowned Pionus (Pionus senilis),

Meyer's parrot (Poicephalus meyeri), Senegal parrot (Poicephalus

senegalus), Moustache parakeet, (Psittacula alexandri), Derbyan

parakeet (Psittacula derbiana), Alexandrine parakeet (Psittacula

eupatria), Slaty-headed parakeet (Psittacula himalayana), African

Indian Ringneck (Psittacula krameri krameri), Blossom-headed parakeet

(Psittacula roseata), African grey parrot (Psittacus erithacus),

Maroon-tailed conure (Pyrrhura melanura), Painted conure (Pyrrhura

picta), Goldie's lorikeet (Trichoglossus goldiei), Perfect lorikeet

(Trichoglossus euteles), Swainson's or blue mountain lorikeet

(Trichoglossus haematodus moluccanus) and red-collared lorikeet

(Trichoglossus haematodus rubritorquis).

Although no imports of wild-caught Sun conures (Aratinga

solstitialis) were recorded for the United States, wild-caught birds

were available from Guyana, which had an annual export quota of 600

birds for this species during 1988-1991. Therefore, Sun conures are not

included in the approved list.

The Service found that the following species, which commenters

requested be included in the approved list, could not be added to the

approved list of captive-bred species because they did not meet the

criteria for approval in Sec. 15.31(a) and wild-caught birds are in

international trade: Lineolated or barred parakeet (Bolborhynchus

lineola), and Spectacled parrotlet (Forpus conspicillatus).

The Service found that the following bird species, which commenters

requested be included in the approved list, could not be added to the

approved list of captive-bred species because there was insufficient

information to determine that all specimens in trade were captive-bred:

Black goshawk (Accipiter melanoleucus), Black-cheeked lovebird

(Agapornis nigrigenis), Black-collared lovebird (Agapornis

swinderniana), Abyssinian lovebird (Agapornis taranta), Buffon's macaw

(Ara ambigua), Blue-throated [Caninde] macaw (Ara glaucogularis),

Illiger's macaw (Ara maracana), Mountain parakeet (Bolborhynchus

aurifrons), Blue-eyed cockatoo (Cacatua ophthalmica), Slender-billed

conure (Enicognathus leptorhynchus), Yellow-faced parrotlet (Forpus

xanthops), Sclater's parrotlet (Forpus sclateri), Red-cheeked parrot

(Geoffroyus geoffroyi), Musk lorikeet (Glossopsitta concinna), Purple-

crowned lorikeet (Glossopsitta porphyrocephala), Little lorikeet

(Glossopsitta pusilla), Philippine hanging parrot (Loriculus

philippensis), Purple-capped lory (Lorius domicellus), Black-capped

lory (Lorius lory), Tepui parrotlet (Nannopsittaca panychlora), Orange-

bellied parakeet (Neophema chrysogaster), Rock parakeet (Neophema

petrophila), White-bellied caique (Pionites leucogaster), Coral-billed

pionus (Pionus sordidus), Plum-crowned pionus (Pionus tumultuosus),

Ruppell's parrot (Poicephalus rueppellii), Paradise parrot (Psephotus

pulcherrimus), which is probably extinct in the wild, Pesquet's parrot

(Psittrichas fulgidus), Malabar parakeet (Psittacula columboides),

Blaze-winged conure (Pyrrhura devillei), Fiery-shouldered conure

(Pyrrhura egregria), Sulphur-winged conure (Pyrrhura hoffmanni), Pearly

conure (Pyrrhura perlata), Crimson-bellied conure (Pyrrhura

rhodogaster), Black-capped conure (Pyrrhura rupicola), all 7 species of

Touit parrotlets, Varied lorikeet (Trichoglossus versicolor), and Blue-

crowned lory (Vini australis).

For the above species, there are either no records or very few

records of any specimens in trade. The Service was therefore not able

to make the determination required by the statute that the above

species are regularly bred in captivity and that the importation of

specimens of the species is not detrimental to the species survival in

the wild. The Service recognizes that with increased captive breeding

efforts for these species, they may be able to meet criteria for

approval in Sec. 15.31 in the future.

Birds of Prey That Cannot Be Added to the Approved List

The Service found that the following bird of prey species could not

be added to the approved list of captive-bred species because they did

not meet the criteria for approval in Sec. 15.31(a), and that wild-

caught birds are in trade: Black kite (Milvus migrans), and European

eagle owl (Bubo bubo).

Toucans That Cannot Be Added to the Approved List

The Service found that the following toucan species, which

commenters requested be included in the approved list, could not be

added to the approved list of captive-bred species because it did not

meet the criteria for approval in Sec. 15.31(a) and wild-caught birds

are in trade and have been imported into the United States: Toco toucan

(Ramphastos toco).

Law Enforcement Concerns

The Service found that the following bird species, all of which

commenters requested be included in the approved list, could not be

added to the approved list of captive-bred species because they did not

meet the criteria for approval in Sec. 15.31 due to law enforcement

concerns that wild-caught birds are in trade illegally and have been

imported either into the United States or other countries: Nyasa

lovebird (Agapornis lilianae), Australian king parrot (Alisterus

scapularis), Double yellow-headed Amazon (Amazona ochrocephala

oratrix), Green-cheeked Amazon (Amazona viridigenalis), Gang-gang

cockatoo (Callocephalon fimbriatum), Major Mitchell's cockatoo (Cacatua

leadbeateri), Western long-billed cockatoo (Cacatua pastinator), Long-

billed corella (Cacatua tenuirostris), Spix's macaw (Cyanopsitta

spixii), Rose-breasted cockatoo or Galah (Eolophus roseicapillus),

Mexican parrotlet (Forpus cyanopygius), Black Palm cockatoo

(Probosciger aterrimus), Lanner falcon (Falco biarmicus), Saker falcon

(Falco cherrug), Gyrfalcon (Falco rusticolus), Red siskin (Carduelis

cucullata), and Crimson finch (Neochmia phaeton).

Illegal trade in lanner falcons and saker falcons was reported in

the Review of Alleged Infractions and Other Problems of Implementation

of the Convention (Doc. 9.22), which is a document prepared by the

CITES Secretariat for discussion at the Ninth Meeting of the Conference

of the Parties to CITES. These species appear to be involved in illegal

trade on a fairly regular basis, including the laundering of wild-

caught specimens through captive-breeding operations.

The Service received 1708 form letters requesting that all cockatoo

species from Australia be added to the approved list of captive-bred

species. The Service disagrees, because all cockatoo species do not

meet the criteria for approval in Sec. 15.31 due to the illegal trade

in wild-caught birds from Australia. A recent three-year covert law

enforcement investigation, dubbed Operation Renegade, found that over a

10-year period individuals were hired as couriers and travelled to

Australia each fall during the cockatoo nesting season to remove eggs

from nests in the wild. Several hundred smuggled eggs were then

incubated, hand-reared, and sold as captive-bred birds to collectors in

the United States. Among the smuggled species were Rose-breasted

cockatoos, Red-tailed black cockatoos, Major Mitchell's cockatoos, and

Slender-billed corellas. This investigation was a joint effort with law

enforcement officials from Australia, New Zealand, and the United

States, and to date, has resulted in criminal convictions against 17

individuals.

CITES-Listed Passerines That Cannot Be Added to the Approved List

The Service found that the following CITES-listed passerine

species, which commenters requested be included in the approved list,

could not be added to the approved list of captive-bred species because

they did not meet the criteria for approval in Sec. 15.31(a) and wild-

caught birds are in trade and have been imported into the United States

or have been in international trade: Strawberry finch (Amandava

amandava), Greater Indian [Javan] hill myna (Gracula religiosa), St.

Helena waxbill (Estrilda astrild), Orange-cheeked waxbill (Estrilda

melpoda), Black-rumped waxbill (Estrilda troglodytes), Yellow-crowned

bishop (Euplectes afer), Orange weaver (Euplectes orix franciscanus),

Village Indigobird or Senegal combassou (Vidua chalybeata), Red-billed

firefinch (Lagonosticta senegala), Quail finch (Ortygospiza

atricollis), Cordon bleu [red-cheeked finch] (Uraeginthus benegalus),

and Pin-tailed whydah (Vidua macroura).

Non-CITES-Listed Passerines That Cannot Be Added to the Approved List

The Service found that the following non-CITES-listed species,

which commenters requested be included in the approved list, could not

be added to the approved list of captive-bred species because they did

not meet the criteria for approval in Sec. 15.31 (However, since they

are not listed in the CITES Appendices, they are not covered by the

WBCA): Hooded pitta (Pitta sordida), Hartlaub's turaco (Tauraco

hartlaubi), Blue-faced parrot-finch (Erythrura trichroa), Red-headed

parrot-finch (Erythrura psittacea), Pin-tailed parrot-finch (Erythrura

prasina), Black-cheeked waxbill (Estrilda erythronotos), Violet-eared

waxbill (Uraeginthus granatina), Peters' twinspot (Hypargos

niveoguttatus), Chestnut munia (Lonchura malacca), Yellow-rumped finch

(Lonchura flaviprymna), Melba finch (Pytilia melba), Orange-winged

Pytilia (Pytilia afra), Saffron finch (Sicalis flaveola), Purple

grenadier (Uraeginthus ianthinogaster), White-rumped shama thrush

(Copsychus malabaricus), Silver-eared mesa (Leiothrix argentauris),

Pekin robin (Leiothrix lutea), and Asian Fairy bluebird (Irena puella).

Some commenters asked that the Java sparrow (Padda oryzivora) be

approved as a captive-bred species. The Java sparrow is listed as an

injurious wildlife species, under regulations in 50 CFR Part 16, and

its importation, transportation, or acquisition is prohibited.

Therefore, the Service cannot list it as a species approved for

importation.

Several form letters were received recommending that the Northern

Cardinal (Cardinalis cardinalis) be added to the approved list of

captive-bred species. This species is native to the United States and

is protected under the Migratory Bird Treaty Act (16 U.S.C. 703-711)

and implementing regulations in 50 CFR Subchapter B. Therefore, the

Service cannot list it as a species approved for importation.

Comments Pertaining to Section 15.33: Species Included in the Approved

List for Captive-bred Species. Inclusion of Species in the Approved

List, in Addition to Those in the Proposed Rule of March 17, 1994

The Service found that the following species could be added to the

approved list of captive-bred species because they meet the criteria

for approval in Sec. 15.31: Cherry finch (Aidemosyne modesta), Diamond

sparrow (Emblema guttata), Red-browed finch (Aegintha temporalis),

Masked lovebird (Agapornis personata), Jendaya conure (Aratinga

jandaya), Yellow-fronted parakeet (Cyanoramphus auriceps), Red-fronted

parakeet (Cyanoramphus novaezelandiae), Blue-winged parrot (Neophema

chrysostoma), Elegant parrot (Neophema elegans), Northern rosella

(Platycercus venustus), Western or Stanley rosella (Platycercus

icterotis), Golden-shouldered parakeet (Psephotus chrysopterygius),

Indian ringneck parakeet (Psittacula krameri manillensis), Scaly-

breasted lorikeet (Trichoglossus chlorolepidotus), and Common buzzard

(Buteo buteo).

Several commenters requested that color mutations of several

psittacine species be added to the approved list of captive-bred

species. The Service agrees when the color mutation is (a) rare or non-

existent in the wild, and therefore not likely to be obtained as wild-

caught stock; (b) regularly produced in captivity, and (c)

distinguishable from the typical wild form and such ability to

distinguish the color mutation is easy for the non-expert. Therefore,

the Service is adding the following color mutations for selected

species to the approved list of captive-bred species: Pacific parrotlet

(Forpus coelestis) - lutino, yellow, blue and cinnamon forms;

lineolated or barred parakeet (Bolborhynchus lineola) - blue, yellow,

and white forms; and Alexandrine parakeet (Psittacula eupatria) - blue

and lutino forms. The Service understands that newly discovered color

mutations are continuously appearing and being established in

captivity, and would appreciate information as the process occurs, so

that additional color mutations could be listed on the approved list of

captive-bred species.

Comments Pertaining to Section 15.33: Species Included in the Approved

List for Captive-Bred Species. Deletions of Species in the Approved

List

Animal welfare organizations and one conservation organization

commented that Peach-faced lovebird (Agapornis roseicollis) and Plum-

headed parakeet (Psittacula cyanocephala) do not meet the criteria for

approval in Sec. 15.31(a) and wild-caught birds are in trade. The

Service has reviewed its own and international import trade records for

Peach-faced lovebirds and is satisfied that all specimens of the

species known to be in trade are captive-bred. The commenters expressed

concern that imports of Peach-faced lovebirds from South Africa could

be wild-caught birds, since the species occurs in the wild there. The

Service reviewed the wildlife import declarations for all Peach-faced

lovebirds imported from South Africa to the U.S. from 1988 through 1992

and is satisfied that the birds imported were captive-bred. Virtually

all shipments had been certified by the South African CITES Management

Authority as captive-bred. This species meets the criteria for approval

in Sec. 15.31 and will remain on the approved list of captive-bred

species.

The Service has reviewed import trade records for Plum-headed

parakeets and found wild-caught specimens of this species in trade,

although none have been imported into the United States. Therefore,

this species does not meet the criteria for approval in Sec. 15.31, and

the Service is not including the Plum-headed parakeet in the approved

list of captive-bred species.

The Government of Australia communicated its concern with listing

in the approved list of captive-bred species the following species: the

Port Lincoln parrot (Barnardius zonarius), Swift Parrot (Lathamus

discolor), Green rosella (Platycercus caledonicus), Yellow rosella

(Platycercus flaveolus), and Blue-bonnet parakeet (Psephotus

haematogaster). They stated that these species are not common in

captivity in Australia and that there are problems associated with the

smuggling of wild-caught specimens of these species. The Service

proposed these species for listing in its March 17, 1994, Notice of

Proposed Rulemaking, based on the information available to it at that

time, which showed that specimens imported into the U.S. were captive-

bred. Given this new information from Australia, the Service agrees and

is not including these species in the final list of approved captive-

bred species.

Animal welfare organizations and one conservation organization

recommended that the Gouldian finch (Chloebia gouldiae), Long-tailed

grassfinch (Poephila acuticaudata), and Double-barred finch (Poephila

bichenovii) be deleted from the approved list of captive-bred species

because of the high mortality these species suffer in transit and

quarantine. Although the Service recognizes the problems with mortality

of birds in trade, the statute does not allow the use of such

information in listing captive-bred species on the approved list. The

Service is committed, however, to enforcement of the Humane and

Healthful Transport Regulations in 50 CFR Part 14, which apply to these

and all other bird species imported into the United States.

The representative of the pet industry and two aviculturists

commented it was ``in error and misleading'' for the Service to list

Bourke's parrot (Neophema bourkii) and the Scarlet-chested parrot

(Neophema splendida) on the approved list of captive-bred species

because they are listed as endangered under the U.S. Endangered Species

Act (ESA). The Service disagrees and notes that we are aware of the

species' listing under the ESA. The Service did not intend to mislead

the public and was aware that these species were listed under the ESA

and would require ESA permits to be imported. However, the Service

found that these 2 species met the criteria in Section 15.31, and since

a few captive-bred birds had been imported into the U.S. in past years,

it was appropriate to list them and not require a WBCA permit for their

import. The Service notes that, although the species is endangered in

the wild in Australia, adequate enforcement controls exist such that

wild-caught birds are not threatened by illegal trade. The Service does

not have any evidence of any specimens in international trade that are

not captive-bred. The Government of Australia agrees with this

interpretation for these species. The Service has footnoted the species

on the approved list of captive-bred species which require an ESA

permit for importation to avoid any confusion.

Effects of the Rule

The Service has determined that this final rule is categorically

excluded under Departmental procedures in complying with the National

Environmental Policy Act (NEPA). See 516 DM [Departmental Manual] 2,

Appendix 1 Paragraph 1.10. The regulations are procedural in nature,

and the environmental effects, while crafted to carry out the benign

purposes of the WBCA, are judged to be minimal, speculative, and do not

lend themselves to meaningful analysis. Future regulations implementing

the WBCA may be subject to NEPA documentation requirements, on a case-

by-case basis.

Executive Orders 12866, 12612, and 12630 and the Regulatory Flexibility

Act

This rule was not subject to Office of Management and Budget review

under Executive Order 12866. This action is not expected to have

significant taking implications for United States citizens, as per

Executive Order No. 12630. It has also been certified that these

revisions will not have a significant economic effect on a substantial

number of small entities as described by the Regulatory Flexibility

Act. Since the rule applies to importation of live wild birds into the

United States, it does not contain any Federalism impacts as described

in Executive Order 12612.

Paperwork Reduction

This final rule does not contain any increase in information

collection or record keeping requirements as defined by the Paperwork

Reduction Act of 1980. The information collection requirement(s)

contained in this section have been approved by the Office of

Management and Budget, as required by 44 U.S.C. 3501 et seq.

List of Subjects in 50 CFR Part 15

Imports, Reporting and recordkeeping requirements, Transportation

and wildlife.

Regulation Promulgation

PART 15--WILD BIRD CONSERVATION ACT

Accordingly, 50 CFR Part 15 is amended as follows:

1. The authority citation for Part 15 continues to read as follows:

Authority: Pub. L. 102-440, 16 U.S.C. 4901-4916.

2. A new Subpart D, consisting of Sections 15.31, 15.32, and 15.33,

is added to Part 15 to read as follows:

Subpart D--Approved List of Species Listed in the Appendices to the

Convention

Sec.

15.31 Criteria for including species in the approved list for

captive-bred species.

15.32 Criteria for including species in the approved list for non-

captive-bred species. [Reserved].

15.33 Species included in the approved list.

15.31 Criteria for including species in the approved list for captive-

bred species.

The Director will periodically review the list of captive-bred

exotic bird species in paragraph 15.33(a), for which importation into

the United States is approved. Any exotic bird species listed in

paragraph 15.33(a) pursuant to this section must meet all of the

following criteria:

(a) All specimens of the species known to be in trade (legal or

illegal) are captive-bred;

(b) No specimens of the species are known to be removed from the

wild for commercial purposes;

(c) Any importation of specimens of the species would not be

detrimental to the survival of the species in the wild; and

(d) Adequate enforcement controls are in place to ensure compliance

with paragraphs (a) through (c) of this section.

Sec. 15.32 Criteria for including species in the approved list for

non-captive-bred species. [Reserved]

Sec. 15.33 Species included in the approved list.

(a) Captive-bred species. The list in this paragraph includes

species of captive-bred exotic birds for which importation into the

United States is not prohibited by section 15.11. The species are

grouped taxonomically by order.

----------------------------------------------------------------------------------------------------------------

Species Common name

----------------------------------------------------------------------------------------------------------------

Order Falconiiformes:

Buteo buteo........................................ Common European buzzard.

Order Columbiformes:

Columba livia...................................... Rock dove.

Order Psittaciformes:

Agapornis personata................................ Masked lovebird.

Agapornis roseicollis.............................. Peach-faced lovebird.

Aratinga jandaya................................... Jendaya conure.

Barnardius barnardi................................ Mallee ringneck parrot.

Bolborhynchus lineola (blue form).................. Lineolated parakeet (blue form).

Bolborhynchus lineola (yellow form)................ Lineolated parakeet (yellow form).

Bolborhynchus lineola (white form)................. Lineolated parakeet (white form).

Cyanoramphus auriceps.............................. Yellow-fronted Parakeet.

Cyanoramphus novaezelandiae........................ Red-fronted parakeet.

Forpus coelestis (lutino form)..................... Pacific parrotlet (lutino form).

Forpus coelestis (yellow form)..................... Pacific parrotlet (yellow form).

Forpus coelestis (blue form)....................... Pacific parrotlet (blue form).

Forpus coelestis (cinnamon form)................... Pacific parrotlet (cinnamon form).

Melopsittacus undulatus............................ Budgerigar.

Neophema bourkii................................... Bourke's parrot.

Neophema chrysostoma............................... Blue-winged Parrot.

Neophema elegans................................... Elegant Parrot.

Neophema pulchella\1\.............................. Turquoise parrot.

Neophema splendida\1\.............................. Scarlet-chested parrot.

Nymphicus hollandicus.............................. Cockatiel.

Platycercus adelaide............................... Adelaide rosella.

Platycercus adscitus............................... Pale-headed rosella.

Platycercus elegans................................ Crimson rosella.

Platycercus eximius................................ Eastern rosella

Platycercus icterotis.............................. Western (stanley) rosella.

Platycercus venustus............................... Northern rosella.

Polytelis alexandrae............................... Princess parrot.

Polytelis anthopeplus.............................. Regent parrot.

Polytelis swainsonii............................... Superb parrot.

Psephotus chrysopterygius\1\....................... Golden-shouldered parakeet.

Psephotus haematonotus............................. Red-rumped parakeet.

Psephotus varius................................... Mulga parakeet.

Psittacula eupatria (blue form).................... Alexandrine parakeet (blue form).

Psittacula eupatria (lutino form).................. Alexandrine parakeet (lutino form).

Psittacula krameri manillensis..................... Indian ringneck parakeet.

Purpureicephalus spurius........................... Red-capped parrot.

Trichoglossus chlorolepidotus...................... Scaly-breasted lorikeet.

Order Passeriformes:

Aegintha temporalis................................ Red-browed Finch.

Aidemosyne modesta................................. Cherry Finch.

Chloebia gouldiae.................................. Gouldian finch.

Emblema guttata.................................... Diamond Sparrow.

Emblema picta...................................... Painted finch.

Lonchura castaneothorax............................ Chestnut-breasted finch.

Lonchura domestica................................. Society (=Bengalese) finch.

Lonchura pectoralis................................ Pictorella finch.

Neochmia ruficauda................................. Star finch.

Poephila acuticauda................................ Long-tailed grassfinch.

Poephila bichenovii................................ Double-barred finch.

Poephila cincta.................................... Parson finch.

Poephila guttata................................... Zebra finch.

Poephila personata................................. Masked finch.

Serinus canaria.................................... Common Canary.

----------------------------------------------------------------------------------------------------------------

\1\Note: Permits are still required for these species under Part 17 (species listed as endangered or threatened

under the Endangered Species Act (ESA)) of this Chapter.

(b) Non-captive-bred species. [Reserved].

Dated: November 21, 1994.

George T. Frampton Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 94-29673 Filed 12-1-94; 8:45 am]

BILLING CODE 4310-55-Pz