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Captive Bred Wildlife Registration 1998

Captive Bred Wildlife Registration Creating Generic Tiger Loophole

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 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 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 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. 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 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; 99, 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 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, 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

http://www.federalregister.gov/articles/1998/09/11/98-24384/captive-bred-wildlife-regulation

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