Captive-bred Wildlife Regulation

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB10

Captive-bred Wildlife Regulation

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The final rule amends the definition of ``harass'' in

Sec. 17.3 applied to captive wildlife to exclude generally accepted

animal husbandry practices, breeding procedures, and provisions of

veterinary care that are not likely to result in injury to the animal.

The final rule deletes the requirement to obtain a CBW registration for

eight species of pheasants, parakeets of the species Neophema splendida

and N. pulchella, the Laysan duck, and the ``generic'' or inter-

subspecific crossed tiger. This final rule will be followed in the

future by a new proposed rule that will set forth proposed criteria for

addition to, or deletion from, the list of taxa exempted from

registration requirements, and will further consider the subject of

education.

DATES: This rule is effective October 13, 1998.

ADDRESSES: The complete file for this rule is available for inspection

by appointment at the Office of Management Authority, U.S. Fish and

Wildlife Service, 4401 N. Fairfax Drive, Room 700, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Teiko Saito, Chief, [see ADDRESSES

section] telephone 703/358-2093; fax 703/358-2281.

SUPPLEMENTARY INFORMATION: On January 7, 1992, the Service initiated a

review of the Captive-bred Wildlife (CBW) regulation (50 CFR 17.21(g)).

On June 11, 1993, the Service followed with a proposed rule (58 FR

32632) that included several proposed changes to the CBW regulation,

including elimination of CBW registrations for several species that are

present in the United States in large numbers and/or that are

genetically unsuitable for scientifically based breeding programs;

amendment of the definition of ``harass'' in 50 CFR 17.3 to exclude

normal animal husbandry practices such as humane and healthful care

when applied to captive wildlife; and deletion of education from the

definition of ``enhance'' in Sec. 17.3. On December 27, 1993, the

Service published a final rule (58 FR 68323) that eliminated public

education through exhibition of living

[[Page 48635]]

wildlife as the sole justification for issuance of a CBW registration.

On the same date, the Service published a notice (58 FR 68383) that

reopened the comment period on the balance of the issues in the

proposed rule, including the larger question of the value education

provides to the conservation of non-native species in the wild as it

applies to endangered and threatened species permits issued under

Secs. 17.22 and 17.32.

The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et

seq.), and implementing regulations prohibit any person subject to the

jurisdiction of the United States from conducting certain activities

with endangered or threatened species of fish, wildlife, or plants.

These activities include import, export, take, and interstate or

foreign commerce. The Secretary of the Interior (or the Secretary of

Commerce in the case of certain marine species) may permit such

activities, under such terms and conditions as he/she will prescribe,

for scientific purposes or to enhance the propagation or survival of

the affected species, provided these activities are consistent with the

purposes of the Act. The Secretary of the Interior's authority to

administer permit matters relating to endangered and threatened species

generally has been delegated through the Director of the Fish and

Wildlife Service to the Office of Management Authority (OMA).

Since 1976, the Service has been striving to achieve an appropriate

degree of control over prohibited activities involving living wildlife

of non-native species born in captivity in the United States.

In 1978, the Service announced a review of regulations on captive-

bred wildlife (43 FR 16144, April 14, 1978). The notice reiterated the

Service's philosophy on its approach to captive versus wild

populations.

The Service considers the purpose of the Act to be best served

by conserving species in the wild along with their ecosystems.

Populations of species in captivity are, in large degree, removed

from their natural ecosystems and have a role in survival of the

species only to the extent that they maintain genetic integrity and

offer the potential of restocking natural ecosystems where the

species has become depleted or no longer occurs.

Following an extensive public review in 1978 and 1979, the Service

published a final rule (44 FR 54002, September 17, 1979) that

established the Captive-bred Wildlife (CBW) registration system. The

final rule amended regulations in 50 CFR 17.21 by adding Sec. 17.21(g),

which granted general, conditional permission to take; export or re-

import; deliver, receive, carry, transport, or ship in the course of a

commercial activity; or sell or offer for sale in interstate or foreign

commerce any non-native endangered or threatened wildlife that is bred

in captivity in the United States. In other words, the regulation

itself contains the permit. For persons or institutions to operate

under that permit, certain conditions must be met, including that the

person or institution must first register with the Service.

Authorization for the Service to collect information from persons

wanting to register was submitted and approved by the Office of

Management and Budget under the clearance number of 1018-0093.

Unless an exception is made under Sec. 17.21(g)(5), the CBW system

applies only to species that do not include any part of the United

States (as defined in 50 CFR part 10) in their natural geographic

distribution. Additionally, the individual specimens must have been

born in captivity in the United States. The registration authorizes

interstate purchase and sale only between entities that each hold a

registration for living wildlife of the taxon concerned. Interstate or

foreign commere, in the course of commercial activity, with respect to

non-living wildlife is not authorized under a CBW registration. To

conduct such activities, separate permits must be applied for under the

appropriate regulations for endangered or threatened wildlife at 50 CFR

17.22 or 50 CFR 17.32.

The 1979 final rule also amended the definition of ``enhance the

propagation or survival'' of wildlife in captivity to include a wide

range of normal animal husbandry practices used to maintain self-

sustaining and genetically viable stocks of wildlife in captivity.

Specifically included in those practices were ``culling'' and

``euthanasia''. Other aspects of the definition of ``enhance'' that

were codified in 1979 and are still used today include accumulation and

holding and transfer of animals not immediately needed or suitable for

propagative or scientific purposes (50 CFR 17.3).

The above definition is found in subpart A, the General Provisions

of part 17. Therefore, it applies not only to CBW registrations, but to

all endangered and threatened species permits for captive wildlife

issued under Secs. 17.22 and 17.32.

After 12 years' experience with the system, the Service began

another review with a notice of intent to propose a rule, published on

January 7, 1992 (57 FR 548). The notice discussed problems the Service

was experiencing with the system and offered for discussion three

options intended to show the range of possible actions that might be

taken. These ranged from no action (no change in the system) to

complete elimination of the CBW registration process. The notice also

questioned whether the term ``harass'' as defined in Sec. 17.3 applied

to captive-born wildlife, and whether education of the American public

through exhibition of living, non-native wildlife actually accomplished

measurable enhancement of the survival of the affected species in the

wild. Three options for dealing with education were presented, ranging

from no change in the existing definition to deleting education as a

justification for permits and CBW registrations.

It should be noted here that while the preamble to the proposed

rule referred to ``captive-born wildlife'' in the context of the

discussion of the proposed amendment of the term ``harass'', the

proposed rulemaking language refers to ``captive wildlife''. This was,

and is, the Service's intent. Therefore, the rest of this discussion is

in terms of ``captive wildlife'' to make it agree with both proposed

and final rulemaking language.

Public comments and suggestions were solicited. Written responses

were received from 942 individuals, institutions, and organizations.

After review of comments received, the Service published a proposed

rule on June 11, 1993 (58 FR 32632), that proposed several changes to

Sec. 17.21(g): Elimination of registration for several species that are

present in the United States in large numbers and/or that are

genetically unsuitable for scientifically based breeding programs;

restriction of eligibility for CBW registrations to those entities that

are participants in an approved responsible cooperative breeding

program for the taxon concerned; amendment to the definition of

``harass'' in Sec. 17.3 to exclude normal animal husbandry practices

such as humane and healthful care when applied to captive wildlife;

and, the conditional deletion of education from the definition of

``enhance'' in Sec. 17.3.

On December 27, 1993, the Service published a final rule (58 FR

68323) that was limited to the narrow issue of education as it relates

to the CBW system. That rule eliminated public education through

exhibition of living wildlife as the sole justification for issuance of

a CBW registration under Sec. 17.21(g). That decision was based on the

Service's belief that the scope of the CBW system should be revised to

relate more closely to its original intent, i.e., the encouragement of

responsible breeding that is specifically designed to help conserve the

species involved. On the same date, the Service published a

[[Page 48636]]

notice (58 FR 68383) that reopened the comment period on the balance of

the issues in the proposed rule, including the larger question of the

value that education provides to the conservation of non-native species

in the wild as it applies to endangered and threatened species permits

issued under Secs. 17.22 and 17.32.

Information and Comments

A total of 1,269 sets of written information and comments were

received from individuals, institutions, and organizations in response

to the proposed rule and during the re-opened comment period. Some

commenters responded both times.

Of comments received, some 450 were form letters, patterned

responses, or multiple signatures on letters or petitions. Opinions

expressed on specific issues are summarized as follows (a number of

letters offered comments on more than one issue):

Retain education as part of the definition of enhancement of

survival of the species...........................................1,165

Retain education, but establish guidelines...........................29

Delete education.....................................................10

Require CBW registrants to participate in a responsible

cooperative breeding program.........................................17

Do not require participation in a responsible cooperative

breeding program.....................................................77

Change definition of ``harass'' to exclude normal animal

husbandry practices for captive wildlife.............................18

Do not change definition of ``harass''................................3

Replace CBW registration with rebuttable presumption..................2

Do not use rebuttable presumption....................................37

Completely deregulate captive-bred wildlife..........................36

Deregulate interstate commerce in captive-bred wildlife..............65

Exempt certain species from registration requirements as proposed

26

Exempt some species but not all of the proposed taxa.................13

Exempt no species.....................................................2

Because the Service has decided to reformulate its proposal

concerning deletion of education from the definition of

``enhancement'', the discussion below deals only with comments on other

aspects of the proposed rule. Comments concerning education are being

considered and will be the subject of a Federal Register notice at a

later date.

Comments Concerning Definitions

Comment: Commenters generally favored changing the definition of

``harass'' to exclude normal animal husbandry practices for captive

wildlife. Some felt that terms such as ``normal'', ``adequate'',

``safe'', and ``healthful'' are vague, subjective, and amenable to

widely varying interpretation. Various suggestions for rewording the

definition were offered.

Response: The Service agrees and believes that the revised

definition in this final rule reduces subjectivity to the extent

possible.

Comment: Some commenters objected to a change in the definition of

``harass''. Some believed that the change created a broad exception to

the prohibition against harassment. One commenter suggested that any

concerns over the definition be addressed through specific permit

restrictions for individual permittees and registrants, thus tailoring

protection to the particular affected species.

Response: The Service believes this approach could result in the

need for preparing husbandry manuals for each species and would not

result in a commensurate benefit to the species. To evaluate facilities

and care provided by applicants, the Service will continue to consult

with experts such as the Department of Agriculture's Animal and Plant

Health Inspection Service, which is charged with administering the

Animal Welfare Act, and knowledgeable persons in the zoo and aquarium

communities and the private sector, as needed.

Comment: Several commenters recommended amending the definition of

``take'' to apply only to animals from the wild. This is based on the

concern that holding animals in captivity or transferring them for

breeding opportunities could be construed as a ``taking''.

Response: ``Take'' was defined by Congress in Section 3 of the Act

as * * * ``to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect * * *'' endangered or threatened wildlife, whether

wild or captive. Therefore, the definition can be clarified by further

defining its component terms, but the statutory term cannot be changed

administratively.

The purpose of amending the Service's definition of ``harass'' is

to exclude proper animal husbandry practices that are not likely to

result in injury from the prohibition against ``take''. Since captive

animals can be subjected to improper husbandry as well as to harm and

other taking activities, the Service considers it prudent to maintain

such protections, consistent with Congressional intent.

Comment: One comment was that the Service is not authorized to

treat members of a particular species differently based on whether the

specimen is wild or held in captivity; the Act's protections are

afforded to whole species of endangered and threatened animals and

their habitats.

Response: It is true that the Act applies to all specimens that

comprise a ``species'' (as defined in the Act) that has been listed as

endangered or threatened, and in general does not distinguish between

wild and captive specimens thereof. However, the definition of ``take''

in the Act clearly applies to individual specimens or groups of

specimens, and the captive or non-captive status of a particular

specimen is a significant factor in determining whether particular

actions would ``harass'' that specimen or whether such actions would

``enhance the propagation or survival'' of the species. The Service

believes that ample authority is provided by the Act to adopt the

regulatory amendments set out in this final rule as a proper

interpretation of the statutory provisions of the Act.

To decide otherwise would place those persons holding captive

specimens of a listed species in an untenable position. If providing

for the maintenance and veterinary care of a live animal were

considered to be ``harassment'', those persons holding such specimens

in captivity would be forced to obtain a permit or give up possession

since any failure to provide proper care and maintenance would be an

unlawful ``taking''. Since Congress chose not to prohibit the mere

possession of lawfully-taken listed species in Section 9(a)(1) of the

Act, the Service believes that congressional intent supports the

proposition that measures necessary for the proper care and maintenance

of listed wildlife in captivity do not constitute ``harassment'' or

``taking''.

Comments Concerning CBW Questions

Comment: Responses showed over-whelming opposition to a rebuttable

presumption, usually based on the argument that it would in effect mean

that a person was considered guilty until proven innocent.

Response: The Service does not agree with this assessment. As

discussed in detail in the preamble to the proposed rule a rebuttable

presumption is not a presumption of guilt. Section 10(g) of the Act

imposes a burden of proof on any person claiming the benefit of an

exemption or permit under the Act. Thus, the final regulation requires

persons claiming benefit of exception at Sec. 17.21(g) to maintain

records and make them available for inspection at reasonable hours by

law enforcement

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officials as prescribed by 50 CFR 13.46 and 13.47 to document legal

activities.

Comment: A few commenters favored completely deregulating captive-

bred wildlife. However, most commenters thought the Service should

deregulate and exempt only certain non-native species from the CBW

registration requirements.

Response: The Service agrees that it is best, at this time, to

delete the registration requirement for species that are known to be in

the United States in large numbers and breeding well, and/or are

genetically unsuitable for scientific breeding programs.

Comment: Commenters generally favored efforts by the Service to

lessen the regulatory and paperwork requirements for interstate

breeding transactions with captive-bred wildlife. Many believed that

the current regulations for interstate commerce were the cause of

inbreeding and hybridization of certain species within their State.

Some stated that a change to the regulations would increase interstate

breeding transactions resulting in better management of captive

populations.

Response: The Service agrees that provisions of the final rule will

facilitate interstate breeding transactions with exempted species, and

thereby, increase successful breeding and maintenance of these

endangered and threatened species.

Comment: Seventy-seven commenters opposed and seventeen favored the

proposal to restrict CBW registrations to those entities that

participate in an organized breeding program. Most of those opposed

were concerned that currently there are very few organized programs

other than the Species Survival Plans (SSP) of the American Zoo and

Aquarium Association (AZA). As private breeders or non-AZA member

institutions, they might have difficulty gaining approval to

participate in an SSP. Another objection was that SSP's do not exist

for most species and that it would be unrealistic to estimate more than

80-100 programs by the year 2000. Some commented to the effect that the

proposed rule would create a monopoly on the part of the entity that

would approve programs and would mandate a bureaucratic nightmare.

Another concern was the cost and difficulty of developing and

maintaining new breeding programs as opposed to participating in those

already in place.

One commenter noted that the proposal doesn't meet Vice President

Gore's goal of reducing regulatory burden and unnecessary paperwork; it

actually creates a new layer of regulatory oversight and adds potential

for litigation by those who disagree with the Service's decisions

regarding those programs or participants that do or do not qualify.

Another comment was that the Service couldn't, in effect, deny a permit

to one who was refused participation in a breeding program without

allowing the exercise of the appeal process; this would constitute

abdication of the Service's responsibility to a private group or

institution.

Some commenters also questioned what would happen if there were two

applications for approval of a program for the same species; some said

there should only be a single program for each species/subspecies,

while others argued that more than one program should be allowed.

Finally, it was pointed out that the goal should not be to develop a

single well-managed genetically diverse and self-sustaining population.

A species can be managed for either retention of alleles or of

heterozygosity, and possibly both management schemes could be correct.

Response: While the Service believes that the concept embodied in

the proposal is theoretically sound, the proposal has been deleted from

this final rule. The practical, socio-economic, and biological problems

inherent in attempting to manage such an effort in an effective and

equitable manner could result in a significant increase in workload and

paperwork. There is a potential for agency decisions to be perceived as

unfair or biologically improper. Such a situation might give rise to

frequent appeals and litigation, that would add to the burden on the

public and the Service while contributing little to management of

captive-bred wildlife.

Comment: The proposal to exempt certain species from CBW

registration requirements elicited 142 comments, of which 101

recommended either complete deregulation of captive-bred wildlife or at

least of interstate commerce in such animals. The proposal was

supported by 26 commenters and opposed by 2. Thirteen other commenters

favored or opposed some, but not all of the taxa proposed for

exemption. The majority of the latter were concerned about exempting

generic tigers because it might encourage uncontrolled breeding and

further hybridization for commercial sales and exploitation. A related

concern was that purebred tigers might be ``laundered'' as generic in

order to avoid regulation, thus losing potentially valuable breeders

from the SSP's for the various subspecies.

Response: The Service believes that the breeding of generic tigers

has not been affected by the CBW system. Those who hold CBW

registrations can legally purchase and sell generic tigers in

interstate commerce. Non-commercial interstate transfers (e.g.,

breeding loans, donations) are not prohibited. As pointed out in the

notice of intent to propose rule (57 FR 548), generic tigers can be

found in most of the 50 states, and intrastate commerce is not

regulated. The Service does not believe that ``laundering'' of purebred

tigers as generic animals in order to avoid regulation would be

widespread, since so doing would decrease the value of the animals in

most cases. Further, those who would do this would probably not be

likely participants in SSP's for purebred tiger subspecies.

Comment: Two commenters who generally supported the exemption for

pheasants argued that several species are not present in the United

States in large numbers (if at all), and therefore those species should

continue to be regulated under the CBW system. These species are:

Edwards, cheer, Swinhoe's, Mikado, imperial, and white eared pheasants;

Sclater's and Chinese monals; and Blyth's, Cabot's, and western

tragopans.

Response: Based on the 1993 survey conducted by the American

Pheasant and Waterfowl Society (482 respondents, or the equivalent of

nearly 25% of APWS membership), several of these species do have low

captive populations: Imperial pheasant--0; Sclater's monal--0; western

tragopan--25; Blyth's tragopan--32; and Cabot's tragopan--75.

Therefore, these species will not be exempted from the CBW registration

requirements at this time. Of the other 10 species to be exempted, the

sample shows numbers of 222 or more. As stated in the proposed rule, it

is impossible to project total pheasant populations in the United

States with any certainty due to possible sampling bias, plus the fact

that there is probably a significant number of pheasant breeders who do

not belong to the APWS.

Comment: One objection to exemption was received for each of the

following: Laysan duck, white-winged wood duck, and Neophema.

Response: The APWS survey indicates healthy captive populations of

the Laysan duck (445) and the white-winged wood duck (278); therefore,

they will be exempted from CBW registration requirements.

The 1991 Psittacine Captive Breeding Survey, done by World Wildlife

Fund in collaboration with the American Federation of Aviculture,

concludes that serious thought should be given to downlisting or

delisting the captive stocks of Neophema splendida and N.

[[Page 48638]]

pulchella because the survival of these species in captivity appears

assured if inbreeding can be minimized. Both 1990 and 1991 censuses

showed that these species are well represented and are breeding well in

captivity. In 1991, 114 pairs of N. splendida hatched 337 eggs, and 61

pairs of N. pulchella hatched 266 eggs. Thus, these species are

exempted by this final rule.

Comment: No criteria were provided for the addition or deletion of

taxa from the list exempted from the CBW registration requirement.

Response: The Service believes that a case-by-case determination of

eligibility, consistent with the provisions of the Act and the public

notice and comment procedure, is adequate for the small number of

species that will be considered for exemptions. In the near future, the

Service will propose a new rule that sets criteria for adding or

deleting taxa from the list exempted from the CBW registration

requirements. The Service will solicit comments from the public on the

proposed rule to ensure that the proposal is as accurate and effective

as possible.

Comment: The proposed exemptions from registration requirements

violate the notice, comment, and finding provisions of sections 10(c)

and (d) of the Act.

Response: The proposed exemptions make no change in existing CBW

procedures concerning notice and review. Section 17.21(g)(1) contains a

general permit issued to ``any person''. The question involved here is

whether entities (permittees) holding the exempted taxa would be

required to register with the Service. Thus, the new exemptions

represent changes to the terms of the existing general permit, and

public notice and comment procedures have been observed in developing

those changes.

Comment: The proposed exemptions improperly do away with the Act's

requirement that listed species be held for scientific purposes or to

enhance the propagation or survival of the species.

Response: The proposed rule did not specify that the purpose of

activities with species from taxa where the holder is exempted from

registrating must be for the enhancement of propagation or survival of

the species. This final rule now includes such language in the

regulation at Sec. 17.21(g)(6)(i). Captive U.S. stocks of taxa to be

exempted from the CBW registration requirement are characterized by

large numbers of specimens and successful breeding efforts; therefore,

their survival in captivity appears assured. The fact that these stocks

are sufficient to satisfy demand is evidenced by little or no demand

for additional specimens from the wild. Computerized permit records

show that in the 3-year period 1991 to 1993, there were no imports of

wild specimens of any of these taxa (for the pheasants, there have been

no requests for such imports since 1986). Importation of wild-caught

specimens of these taxa for breeding purposes could be approved only in

unusual circumstances, including a definitive showing of need for new

bloodlines that could only be satisfied by wild animals. A

determination would have to be made that the status of the wild

population would safely allow limited taking. Preference would be given

to imports of captive-born specimens of the exempted taxa. The

importation of either wild-caught specimens or specimens born in

captivity outside the United States would continue to require permits

under section 10 of the Act as well as the Convention on International

Trade in Endangered Species.

Comment: In the final rule published on December 27, 1993 (58 FR

68323), Sec. 17.21(g)(1) was amended to state that the principal

purpose of activities with animals regulated under the CBW system must

be to facilitate captive breeding. Section 17.21(g)(1)(ii) requires

that the purpose be to enhance the propagation or survival of the

species. This double requirement is confusing and apparently redundant.

Response: The Service agrees. The purpose of the wording added to

Sec. 17.21(g)(1) was to indicate that public education could not be

used as the sole basis for justifying issuance of a CBW registration

for species that do not qualify for the exempted taxa list. The text of

this final rule has been revised to clarify this issue.

Comment: An objection was made that the proposed rule would require

entities such as circuses to show that permanent exports of generic

tigers would be for the purpose of enhancement of propagation or

survival of the species in accordance with Sec. 17.21(g)(4). This does

not make sense, since the Service has concluded that inter-subspecific

crossed or generic tigers have no value in terms of preserving the

species through propagation because they no longer have the same

genetic makeup as wild populations.

Response: The Service agrees that generic or inter-subspecific

crossed tigers cannot be used for enhancement of propagation of the

species. However, they can be used in a manner that should enhance

survival of the species in the wild. Examples include exhibition in a

manner designed to educate the public about the ecological role and

conservation needs of the species and satisfaction of demand for tigers

so that wild specimens or captive purebred subspecies are not used.

Export of any of the exempted taxa will continue to require

appropriate CITES documentation under 50 CFR part 23. The information

required by Sec. 17.21(g)(4) can be submitted with the CITES

application, as is current practice.

Discussion of Final Rule

This final rule revises existing Secs. 17.3 and 17.21(g). These

revisions and their effects are discussed below:

1. ``Harass'' under the definition of ``take in Sec. 17.3 is an act

or omission that creates the likelihood of injury by annoying wildlife

to such an extent as to significantly disrupt normal behavior patterns.

The applicability of this concept to captive-held animals has been

unclear, since human activities, including normal husbandry practices,

provided in caring for captive-held wildlife in all probability disrupt

behavior patterns.

In light of this, the definition of ``harass'' in 50 CFR 17.3 is

modified to exclude normal animal husbandry practices that are not

likely to result in injury such as humane and healthful care when

applied to captive wildlife. While no permit is required to possess

lawfully acquired listed wildlife, a person cannot possess wildlife

without doing something to it that might be construed as harassment

under a literal interpretation of the definition in use since 1979,

e.g., keep it in confinement, provide veterinary care, etc. Under this

scenario, a person who legally possessed wildlife without a permit

could be considered in violation of the prohibition against harassment

unless they obtained a specific permit that authorized them to conduct

normal animal husbandry activities. Had Congress intended this result,

the prohibition on possession in section 9 of the Act would not have

been limited to endangered species taken in violation of the Act.

However, maintaining animals in inadequate, unsafe or unsanitary

conditions, physical mistreatment, and the like constitute harassment

because such conditions might create the likelihood of injury or

sickness. The Act continues to afford protection to listed species that

are not being treated in a humane manner.

2. Ten species of pheasants (family Phasianidae), parakeets of the

species Neophema splendida and N. pulchella, the Laysan duck, the

white-winged wood duck, and the ``generic'' tiger are exempted from the

CBW registration

[[Page 48639]]

requirements of Sec. 17.21(g)(2), because their survival in captivity

appears assured. All of these taxa are present in the United States in

large numbers and/or are genetically unsuitable for scientifically-

based breeding programs (as is the case with the generic tiger). The

four purebred subspecies of tiger in captivity in the United States are

the subject of breeding programs under SSP's and will continue to

require CBW registrations.

Current holders of CBW registrations for the above taxa (listed in

Sec. 17.21(g)(6)) will no longer need them. Applications for new or

renewed registrations for these taxa that are pending before the

Service on the effective date of this rule will not be processed.

No written annual reports will be required of holders of these

exempted taxa. However, record keeping and inspection requirements of

50 CFR 13.46 and 13.47 are still in place for persons holding the

exempted taxa or other captive-bred species requiring a CBW

registration. It is estimated that the paperwork burden of the CBW

system on the Service and the public will be reduced.

The Service believes that this relaxation of the registration

requirement in Sec. 17.21(g) will not operate to the disadvantage of

the species in the wild; further, it will be consistent with the

conservation of the species because domestic demand has been, and will

continue to be, satisfied by captive-born wildlife. The import of live

wild-caught specimens, including those belonging to the exempted taxa,

would not be authorized unless evidence showed a need for new

bloodlines that could not be satisfied by internal exchange or that

foreign-bred specimens were unavailable. Furthermore, the Service would

have to determine that the wild populations could sustain limited

taking.

Regulatory Analysis

This rulemaking has been reviewed by the Office of Management and

Budget review under Executive Order 12866. Furthermore, the Department

of the Interior certifies that this document will not have a

significant economic effect on a substantial number of small entities

(zoos, circuses, independent breeders) under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). This rule will beneficially affect about

400 small entities currently registered under the CBW system. The

economic effects are minor since they represent less than $20,000 and

thus, the total effect on such small entities will be minimal. There

will be a regulatory reduction for those entities holding species to be

exempted from registration by this rule. This rule may also provide a

reduction of risk to holders of captive wildlife because of the amended

definition of ``harass''.

This final rule is not a major rule under 5 U.S.C. 804(2), the

Small Business Regulatory Enforcement Fairness Act and will not

negatively effect the economy, consumer costs, or U.S. based-

enterprises. The Service recognizes that the rule will effect a

substantial number of small entities, such as zoo, circuses, or

independent breeders, but in a beneficial manner.

The Service has determined and certified pursuant to the Unfunded

Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will

not impose a cost of $100 million or more in any given year on private

entities, or local or State governments.

The Department has determined that these final regulations meet the

applicable standards provided in Section 3(a) and 3(b)(2) of Executive

Order 12988.

This rule will not have substantial direct effects on the States,

in their relationship between the Federal Government and the States or

on the distribution of power and responsibilities among the various

levels of government. Therefore, in accordance with Executive Order

12612 the Service has determined that the rule does not have

significant Federalism implications to warrant the preparation of a

Federalism Assessment.

The Service has determined that the rule has no potential takings

of private property implications as defined in Executive Order 12630.

Persons registering with the Service for a captive-bred wildlife

registration requires the collection of information, and the Office of

Management and Budget has approved the collection of information

contained in this rule under 44 U.S.C. 3501 et seq. and assigned

clearance number 1018-0093 with an expiration date of February 28,

20001. The application information submitted by a person for a captive-

bred wildlife registration is used by the Service to make decisions in

accordance with wildlife regulations on the issuance, suspension,

revocation or denial of permits. The Service has reviewed all permit

information collection requirements and ensured the burden imposed on

the public is the lowest possible. It should be noted that the main

intent of this rule is to lower the number of persons needing a

registration.

The Service has reviewed this rule under Executive Order 12372 and

determined that intergovernmental consultation is unnessary.

The Service has determined that these regulations are categorically

excluded from further National Environmental Policy Act (NEPA)

requirements. Part 516 of the Departmental Manual, Chapter 6, Appendix

I, section 1.4(A)(1) categorically excludes changes or amendments to an

approved action when such changes have no potential for causing

substantial environmental impact.

The Service has evaluated possible effects on Federally recognized

Tribes and determined that there will be no adverse effects to any

Tribe. Any individual tribal member possessing a CBW registration will

receive the same beneficial regulatory and economic relief as other

registrants who hold wildlife species that will be exempted by this

rule.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

For the reasons set forth in the preamble, title 50, chapter I,

subchapter B, part 17, subpart C is amended as set forth below.

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500.

Subpart A--Introduction and General Provisions

2. The definition of ``Harass'' in Sec. 17.3 is revised to read as

follows:

Sec. 17.3 Definitions.

* * * * *

Harass in the definition of ``take'' in the Act means an

intentional or negligent act or omission which creates the likelihood

of injury to wildlife by annoying it to such an extent as to

significantly disrupt normal behavioral patterns which include, but are

not limited to, breeding, feeding, or sheltering. This definition, when

applied to captive wildlife, does not include generally accepted:

(1) Animal husbandry practices that meet or exceed the minimum

standards for facilities and care under the Animal Welfare Act,

(2) Breeding procedures, or

(3) Provisions of veterinary care for confining, tranquilizing, or

[[Page 48640]]

anesthetizing, when such practices, procedures, or provisions are not

likely to to result in injury to the wildlife.

* * * * *

Subpart C--Endangered Wildlife

3. Section 17.21(g) is revised to read as follows:

Sec. 17.21 Prohibitions.

* * * * *

(g) Captive-bred wildlife. (1) Notwithstanding paragraphs (b), (c),

(e) and (f) of this section, any person may take; export or re-import;

deliver, receive, carry, transport or ship in interstate or foreign

commerce, in the course of a commercial activity; or sell or offer for

sale in interstate or foreign commerce any endangered wildlife that is

bred in captivity in the United States provided either that the

wildlife is of a taxon listed in paragraph (g)(6) of this section, or

that the following conditions are met:

(i) The wildlife is of a species having a natural geographic

distribution not including any part of the United States, or the

wildlife is of a species that the Director has determined to be

eligible in accordance with paragraph (g)(5) of this section;

(ii) The purpose of such activity is to enhance the propagation or

survival of the affected species;

(iii) Such activity does not involve interstate or foreign

commerce, in the course of a commercial activity, with respect to non-

living wildlife;

(iv) Each specimen of wildlife to be re-imported is uniquely

identified by a band, tattoo or other means that was reported in

writing to an official of the Service at a port of export prior to

export from the United States; and

(v) Any person subject to the jurisdiction of the United States who

engages in any of the activities authorized by this paragraph does so

in accordance with paragraphs (g) (2), (3) and (4) of this section, and

with all other applicable regulations in this Subchapter B.

(2) Any person subject to the jurisdiction of the United States

seeking to engage in any of the activities authorized by this paragraph

must first register with the Service (Office of Management Authority,

U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Arlington,

Virginia 22203). Requests for registration must be submitted on an

official application form (Form 3-200-41) provided by the Service, and

must include the following information:

(i) The types of wildlife sought to be covered by the registration,

identified by common and scientific name to the taxonomic level of

family, genus or species;

(ii) A description of the applicant's experience in maintaining and

propagating the types of wildlife sought to be covered by the

registration, and when appropriate, in conducting research directly

related to maintaining and propagating such wildlife;

(iii) Photograph(s) or other evidence clearly depicting the

facilities where such wildlife will be maintained; and

(iv) a copy of the applicant's license or registration, if any,

under the animal welfare regulations of the U.S. Department of

Agriculture (9 CFR part 2).

(3) Upon receiving a complete application, the Director will decide

whether or not the registration will be approved. In making this

decision, the Director will consider, in addition to the general

criteria in Sec. 13.21(b) of this subchapter, whether the expertise,

facilities or other resources available to the applicant appear

adequate to enhance the propagation or survival of the affected

wildlife. Public education activities may not be the sole basis to

justify issuance of a registration or to otherwise establish

eligibility for the exception granted in paragraph (g)(1) of this

section. Each person so registered must maintain accurate written

records of activities conducted under the registration, and allow

reasonable access to Service agents for inspection purposes as set

forth in Secs. 13.46 and 13.47. Each person registered must submit to

the Director an individual written annual report of activities,

including all births, deaths and transfers of any type.

(4) Any person subject to the jurisdiction of the United States

seeking to export or conduct foreign commerce in captive-bred

endangered wildlife that will not remain under the care of that person

must first obtain approval by providing written evidence to satisfy the

Director that the proposed recipient of the wildlife has expertise,

facilities or other resources adequate to enhance the propagation or

survival of such wildlife and that the proposed recipient will use such

wildlife for purposes of enhancing the propagation or survival of the

affected species.

(5)(i) The Director will use the following criteria to determine if

wildlife of any species having a natural geographic distribution that

includes any part of the United States is eligible for the provisions

of this paragraph:

(A) Whether there is a low demand for taking of the species from

wild populations, either because of the success of captive breeding or

because of other reasons, and

(B) Whether the wild populations of the species are effectively

protected from unauthorized taking as a result of the inaccessibility

of their habitat to humans or as a result of the effectiveness of law

enforcement.

(ii) The Director will follow the procedures set forth in the Act

and in the regulations thereunder with respect to petitions and

notification of the public and governors of affected States when

determining the eligibility of species for purposes of this paragraph.

(iii) In accordance with the criteria in paragraph (g)(5)(i) of

this section, the Director has determined the following species to be

eligible for the provisions of this paragraph:

Laysan duck (Anas laysanensis).

(6) Any person subject to the jurisdiction of the United States

seeking to engage in any of the activities authorized by paragraph

(g)(1) of this section may do so without first registering with the

Service with respect to the bar-tailed pheasant (Syrmaticus humiae),

Elliot's pheasant (S. ellioti), Mikado pheasant (S. mikado), brown

eared pheasant (Crossoptilon mantchuricum), white eared pheasant (C.

crossoptilon), cheer pheasant (Catreus wallichii), Edward's pheasant

(Lophura edwardsi), Swinhoe's pheasant (L. swinhoii), Chinese monal

(Lophophorus lhuysii), and Palawan peacock pheasant (Polyplectron

emphanum); parakeets of the species Neophema pulchella and N.

splendida; the Laysan duck (Anas laysanensis); the white-winged wood

duck (Cairina scutulata); and the inter-subspecific crossed or

``generic'' tiger (Panthera tigris) (i e., specimens not identified or

identifiable as members of the Bengal, Sumatran, Siberian or

Indochinese subspecies (Panthera tigris tigris, P.t. sumatrae, P.t.

altaica and P.t. corbetti, respectively) provided:

(i) The purpose of such activity is to enhance the propagation or

survival of the affected exempted species;

(ii) Such activity does not involve interstate or foreign commerce,

in the course of a commercial activity, with respect to non-living

wildlife;

(iii) Each specimen to be re-imported is uniquely identified by a

band, tattoo or other means that was reported in writing to an official

of the Service at a port of export prior to export of the specimen from

the United States;

(iv) No specimens of the taxa in this paragraph (g)(6) of this

section that were taken from the wild may be imported for breeding

purposes absent a definitive showing that the need for new bloodlines

can only be met by wild specimens, that suitable foreign-bred,

[[Page 48641]]

captive individuals are unavailable, and that wild populations can

sustain limited taking, and an import permit is issued under

Sec. 17.22;

(v) Any permanent exports of such specimens meet the requirements

of paragraph (g)(4) of this section; and

(vi) Each person claiming the benefit of the exception in paragraph

(g)(1) of this section must maintain accurate written records of

activities, including births, deaths and transfers of specimens, and

make those records accessible to Service agents for inspection at

reasonable hours as set forth in Secs. 13.46 and 13.47.

Dated: May 26, 1998.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 98-24384 Filed 9-10-98; 8:45 am]

BILLING CODE 4310-55-P