Captive Bred Wildlife Registration Creating Generic Tiger Loophole

SUMMARY: The final rule amends the definition of ``harass'' inSec. 17.3 applied to captive wildlife to exclude generally acceptedanimal husbandry practices, breeding procedures, and provisions ofveterinary care that are not likely to result in injury to the animal.The final rule deletes the requirement to obtain a CBW registration foreight species of pheasants, parakeets of the species Neophema splendidaand N. pulchella, the Laysan duck, and the ``generic'' or inter-subspecific crossed tiger. This final rule will be followed in thefuture by a new proposed rule that will set forth proposed criteria foraddition to, or deletion from, the list of taxa exempted fromregistration requirements, and will further consider the subject ofeducation.DATES: This rule is effective October 13, 1998.ADDRESSES: The complete file for this rule is available for inspectionby appointment at the Office of Management Authority, U.S. Fish andWildlife Service, 4401 N. Fairfax Drive, Room 700, Arlington, VA 22203.FOR FURTHER INFORMATION CONTACT: Teiko Saito, Chief, [see ADDRESSESsection] telephone 703/358-2093; fax 703/358-2281.SUPPLEMENTARY INFORMATION: On January 7, 1992, the Service initiated areview of the Captive-bred Wildlife (CBW) regulation (50 CFR 17.21(g)).On June 11, 1993, the Service followed with a proposed rule (58 FR32632) that included several proposed changes to the CBW regulation,including elimination of CBW registrations for several species that arepresent in the United States in large numbers and/or that aregenetically unsuitable for scientifically based breeding programs;amendment of the definition of ``harass'' in 50 CFR 17.3 to excludenormal animal husbandry practices such as humane and healthful carewhen applied to captive wildlife; and deletion of education from thedefinition of ``enhance'' in Sec. 17.3. On December 27, 1993, theService published a final rule (58 FR 68323) that eliminated publiceducation 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) thatreopened the comment period on the balance of the issues in theproposed rule, including the larger question of the value educationprovides to the conservation of non-native species in the wild as itapplies to endangered and threatened species permits issued underSecs. 17.22 and 17.32.The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 etseq.), and implementing regulations prohibit any person subject to thejurisdiction of the United States from conducting certain activitieswith endangered or threatened species of fish, wildlife, or plants.These activities include import, export, take, and interstate orforeign commerce. The Secretary of the Interior (or the Secretary ofCommerce in the case of certain marine species) may permit suchactivities, under such terms and conditions as he/she will prescribe,for scientific purposes or to enhance the propagation or survival ofthe affected species, provided these activities are consistent with thepurposes of the Act. The Secretary of the Interior's authority toadminister permit matters relating to endangered and threatened speciesgenerally has been delegated through the Director of the Fish andWildlife Service to the Office of Management Authority (OMA).Since 1976, the Service has been striving to achieve an appropriatedegree of control over prohibited activities involving living wildlifeof 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 theService's philosophy on its approach to captive versus wildpopulations.The Service considers the purpose of the Act to be best servedby conserving species in the wild along with their ecosystems.Populations of species in captivity are, in large degree, removedfrom their natural ecosystems and have a role in survival of thespecies only to the extent that they maintain genetic integrity andoffer the potential of restocking natural ecosystems where thespecies has become depleted or no longer occurs.Following an extensive public review in 1978 and 1979, the Servicepublished a final rule (44 FR 54002, September 17, 1979) thatestablished the Captive-bred Wildlife (CBW) registration system. Thefinal 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 acommercial activity; or sell or offer for sale in interstate or foreigncommerce any non-native endangered or threatened wildlife that is bredin captivity in the United States. In other words, the regulationitself contains the permit. For persons or institutions to operateunder that permit, certain conditions must be met, including that theperson or institution must first register with the Service.Authorization for the Service to collect information from personswanting to register was submitted and approved by the Office ofManagement and Budget under the clearance number of 1018-0093.Unless an exception is made under Sec. 17.21(g)(5), the CBW systemapplies only to species that do not include any part of the UnitedStates (as defined in 50 CFR part 10) in their natural geographicdistribution. Additionally, the individual specimens must have beenborn in captivity in the United States. The registration authorizesinterstate purchase and sale only between entities that each hold aregistration for living wildlife of the taxon concerned. Interstate orforeign commere, in the course of commercial activity, with respect tonon-living wildlife is not authorized under a CBW registration. Toconduct such activities, separate permits must be applied for under theappropriate 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 thepropagation or survival'' of wildlife in captivity to include a widerange 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'' thatwere codified in 1979 and are still used today include accumulation andholding and transfer of animals not immediately needed or suitable forpropagative or scientific purposes (50 CFR 17.3).The above definition is found in subpart A, the General Provisionsof part 17. Therefore, it applies not only to CBW registrations, but toall endangered and threatened species permits for captive wildlifeissued under Secs. 17.22 and 17.32.After 12 years' experience with the system, the Service begananother review with a notice of intent to propose a rule, published onJanuary 7, 1992 (57 FR 548). The notice discussed problems the Servicewas experiencing with the system and offered for discussion threeoptions intended to show the range of possible actions that might betaken. These ranged from no action (no change in the system) tocomplete elimination of the CBW registration process. The notice alsoquestioned whether the term ``harass'' as defined in Sec. 17.3 appliedto captive-born wildlife, and whether education of the American publicthrough exhibition of living, non-native wildlife actually accomplishedmeasurable enhancement of the survival of the affected species in thewild. Three options for dealing with education were presented, rangingfrom no change in the existing definition to deleting education as ajustification for permits and CBW registrations.It should be noted here that while the preamble to the proposedrule referred to ``captive-born wildlife'' in the context of thediscussion of the proposed amendment of the term ``harass'', theproposed rulemaking language refers to ``captive wildlife''. This was,and is, the Service's intent. Therefore, the rest of this discussion isin terms of ``captive wildlife'' to make it agree with both proposedand final rulemaking language.Public comments and suggestions were solicited. Written responseswere received from 942 individuals, institutions, and organizations.After review of comments received, the Service published a proposedrule on June 11, 1993 (58 FR 32632), that proposed several changes toSec. 17.21(g): Elimination of registration for several species that arepresent in the United States in large numbers and/or that aregenetically unsuitable for scientifically based breeding programs;restriction of eligibility for CBW registrations to those entities thatare participants in an approved responsible cooperative breedingprogram for the taxon concerned; amendment to the definition of``harass'' in Sec. 17.3 to exclude normal animal husbandry practicessuch 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 FR68323) that was limited to the narrow issue of education as it relatesto the CBW system. That rule eliminated public education throughexhibition of living wildlife as the sole justification for issuance ofa CBW registration under Sec. 17.21(g). That decision was based on theService's belief that the scope of the CBW system should be revised torelate more closely to its original intent, i.e., the encouragement ofresponsible breeding that is specifically designed to help conserve thespecies involved. On the same date, the Service published a notice (58 FR 68383) that reopened the comment period on the balance ofthe issues in the proposed rule, including the larger question of thevalue that education provides to the conservation of non-native speciesin the wild as it applies to endangered and threatened species permitsissued under Secs. 17.22 and 17.32.Information and CommentsA total of 1,269 sets of written information and comments werereceived from individuals, institutions, and organizations in responseto the proposed rule and during the re-opened comment period. Somecommenters responded both times.Of comments received, some 450 were form letters, patternedresponses, or multiple signatures on letters or petitions. Opinionsexpressed on specific issues are summarized as follows (a number ofletters offered comments on more than one issue):Retain education as part of the definition of enhancement ofsurvival of the species...........................................1,165Retain education, but establish guidelines...........................29Delete education.....................................................10Require CBW registrants to participate in a responsiblecooperative breeding program.........................................17Do not require participation in a responsible cooperativebreeding program.....................................................77Change definition of ``harass'' to exclude normal animalhusbandry practices for captive wildlife.............................18Do not change definition of ``harass''................................3Replace CBW registration with rebuttable presumption..................2Do not use rebuttable presumption....................................37Completely deregulate captive-bred wildlife..........................36Deregulate interstate commerce in captive-bred wildlife..............65Exempt certain species from registration requirements as proposed26Exempt some species but not all of the proposed taxa.................13Exempt no species.....................................................2Because the Service has decided to reformulate its proposalconcerning deletion of education from the definition of``enhancement'', the discussion below deals only with comments on otheraspects of the proposed rule. Comments concerning education are beingconsidered and will be the subject of a Federal Register notice at alater date.Comments Concerning DefinitionsComment: Commenters generally favored changing the definition of``harass'' to exclude normal animal husbandry practices for captivewildlife. Some felt that terms such as ``normal'', ``adequate'',``safe'', and ``healthful'' are vague, subjective, and amenable towidely varying interpretation. Various suggestions for rewording thedefinition were offered.Response: The Service agrees and believes that the reviseddefinition in this final rule reduces subjectivity to the extentpossible.Comment: Some commenters objected to a change in the definition of``harass''. Some believed that the change created a broad exception tothe prohibition against harassment. One commenter suggested that anyconcerns over the definition be addressed through specific permitrestrictions for individual permittees and registrants, thus tailoringprotection to the particular affected species.Response: The Service believes this approach could result in theneed for preparing husbandry manuals for each species and would notresult in a commensurate benefit to the species. To evaluate facilitiesand care provided by applicants, the Service will continue to consultwith experts such as the Department of Agriculture's Animal and PlantHealth Inspection Service, which is charged with administering theAnimal Welfare Act, and knowledgeable persons in the zoo and aquariumcommunities 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 theconcern that holding animals in captivity or transferring them forbreeding opportunities could be construed as a ``taking''.Response: ``Take'' was defined by Congress in Section 3 of the Actas * * * ``to harass, harm, pursue, hunt, shoot, wound, kill, trap,capture, or collect * * *'' endangered or threatened wildlife, whetherwild or captive. Therefore, the definition can be clarified by furtherdefining its component terms, but the statutory term cannot be changedadministratively.The purpose of amending the Service's definition of ``harass'' isto exclude proper animal husbandry practices that are not likely toresult in injury from the prohibition against ``take''. Since captiveanimals can be subjected to improper husbandry as well as to harm andother taking activities, the Service considers it prudent to maintainsuch protections, consistent with Congressional intent.Comment: One comment was that the Service is not authorized totreat members of a particular species differently based on whether thespecimen is wild or held in captivity; the Act's protections areafforded to whole species of endangered and threatened animals andtheir habitats.Response: It is true that the Act applies to all specimens thatcomprise a ``species'' (as defined in the Act) that has been listed asendangered or threatened, and in general does not distinguish betweenwild and captive specimens thereof. However, the definition of ``take''in the Act clearly applies to individual specimens or groups ofspecimens, and the captive or non-captive status of a particularspecimen is a significant factor in determining whether particularactions would ``harass'' that specimen or whether such actions would``enhance the propagation or survival'' of the species. The Servicebelieves that ample authority is provided by the Act to adopt theregulatory amendments set out in this final rule as a properinterpretation of the statutory provisions of the Act.To decide otherwise would place those persons holding captivespecimens of a listed species in an untenable position. If providingfor the maintenance and veterinary care of a live animal wereconsidered to be ``harassment'', those persons holding such specimensin captivity would be forced to obtain a permit or give up possessionsince any failure to provide proper care and maintenance would be anunlawful ``taking''. Since Congress chose not to prohibit the merepossession of lawfully-taken listed species in Section 9(a)(1) of theAct, the Service believes that congressional intent supports theproposition that measures necessary for the proper care and maintenanceof listed wildlife in captivity do not constitute ``harassment'' or``taking''.Comments Concerning CBW QuestionsComment: Responses showed over-whelming opposition to a rebuttablepresumption, usually based on the argument that it would in effect meanthat a person was considered guilty until proven innocent.Response: The Service does not agree with this assessment. Asdiscussed in detail in the preamble to the proposed rule a rebuttablepresumption is not a presumption of guilt. Section 10(g) of the Actimposes a burden of proof on any person claiming the benefit of anexemption or permit under the Act. Thus, the final regulation requirespersons claiming benefit of exception at Sec. 17.21(g) to maintainrecords and make them available for inspection at reasonable hours bylaw enforcement officials as prescribed by 50 CFR 13.46 and 13.47 to document legalactivities.Comment: A few commenters favored completely deregulating captive-bred wildlife. However, most commenters thought the Service shouldderegulate and exempt only certain non-native species from the CBWregistration requirements.Response: The Service agrees that it is best, at this time, todelete the registration requirement for species that are known to be inthe United States in large numbers and breeding well, and/or aregenetically unsuitable for scientific breeding programs.Comment: Commenters generally favored efforts by the Service tolessen the regulatory and paperwork requirements for interstatebreeding transactions with captive-bred wildlife. Many believed thatthe current regulations for interstate commerce were the cause ofinbreeding and hybridization of certain species within their State.Some stated that a change to the regulations would increase interstatebreeding transactions resulting in better management of captivepopulations.Response: The Service agrees that provisions of the final rule willfacilitate interstate breeding transactions with exempted species, andthereby, increase successful breeding and maintenance of theseendangered and threatened species.Comment: Seventy-seven commenters opposed and seventeen favored theproposal to restrict CBW registrations to those entities thatparticipate in an organized breeding program. Most of those opposedwere concerned that currently there are very few organized programsother than the Species Survival Plans (SSP) of the American Zoo andAquarium Association (AZA). As private breeders or non-AZA memberinstitutions, they might have difficulty gaining approval toparticipate in an SSP. Another objection was that SSP's do not existfor most species and that it would be unrealistic to estimate more than80-100 programs by the year 2000. Some commented to the effect that theproposed rule would create a monopoly on the part of the entity thatwould approve programs and would mandate a bureaucratic nightmare.Another concern was the cost and difficulty of developing andmaintaining new breeding programs as opposed to participating in thosealready in place.One commenter noted that the proposal doesn't meet Vice PresidentGore's goal of reducing regulatory burden and unnecessary paperwork; itactually creates a new layer of regulatory oversight and adds potentialfor litigation by those who disagree with the Service's decisionsregarding those programs or participants that do or do not qualify.Another comment was that the Service couldn't, in effect, deny a permitto one who was refused participation in a breeding program withoutallowing the exercise of the appeal process; this would constituteabdication of the Service's responsibility to a private group orinstitution.Some commenters also questioned what would happen if there were twoapplications for approval of a program for the same species; some saidthere 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 asingle well-managed genetically diverse and self-sustaining population.A species can be managed for either retention of alleles or ofheterozygosity, and possibly both management schemes could be correct.Response: While the Service believes that the concept embodied inthe proposal is theoretically sound, the proposal has been deleted fromthis final rule. The practical, socio-economic, and biological problemsinherent in attempting to manage such an effort in an effective andequitable manner could result in a significant increase in workload andpaperwork. There is a potential for agency decisions to be perceived asunfair or biologically improper. Such a situation might give rise tofrequent appeals and litigation, that would add to the burden on thepublic and the Service while contributing little to management ofcaptive-bred wildlife.Comment: The proposal to exempt certain species from CBWregistration requirements elicited 142 comments, of which 101recommended either complete deregulation of captive-bred wildlife or atleast of interstate commerce in such animals. The proposal wassupported by 26 commenters and opposed by 2. Thirteen other commentersfavored or opposed some, but not all of the taxa proposed forexemption. The majority of the latter were concerned about exemptinggeneric tigers because it might encourage uncontrolled breeding andfurther hybridization for commercial sales and exploitation. A relatedconcern was that purebred tigers might be ``laundered'' as generic inorder to avoid regulation, thus losing potentially valuable breedersfrom the SSP's for the various subspecies.Response: The Service believes that the breeding of generic tigershas not been affected by the CBW system. Those who hold CBWregistrations can legally purchase and sell generic tigers ininterstate commerce. Non-commercial interstate transfers (e.g.,breeding loans, donations) are not prohibited. As pointed out in thenotice of intent to propose rule (57 FR 548), generic tigers can befound in most of the 50 states, and intrastate commerce is notregulated. The Service does not believe that ``laundering'' of purebredtigers as generic animals in order to avoid regulation would bewidespread, since so doing would decrease the value of the animals inmost cases. Further, those who would do this would probably not belikely participants in SSP's for purebred tiger subspecies.Comment: Two commenters who generally supported the exemption forpheasants argued that several species are not present in the UnitedStates in large numbers (if at all), and therefore those species shouldcontinue 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 westerntragopans.Response: Based on the 1993 survey conducted by the AmericanPheasant and Waterfowl Society (482 respondents, or the equivalent ofnearly 25% of APWS membership), several of these species do have lowcaptive populations: Imperial pheasant--0; Sclater's monal--0; westerntragopan--25; Blyth's tragopan--32; and Cabot's tragopan--75.Therefore, these species will not be exempted from the CBW registrationrequirements at this time. Of the other 10 species to be exempted, thesample shows numbers of 222 or more. As stated in the proposed rule, itis impossible to project total pheasant populations in the UnitedStates with any certainty due to possible sampling bias, plus the factthat there is probably a significant number of pheasant breeders who donot belong to the APWS.Comment: One objection to exemption was received for each of thefollowing: Laysan duck, white-winged wood duck, and Neophema.Response: The APWS survey indicates healthy captive populations ofthe 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 WildlifeFund in collaboration with the American Federation of Aviculture,concludes that serious thought should be given to downlisting ordelisting the captive stocks of Neophema splendida and N. pulchella because the survival of these species in captivity appearsassured if inbreeding can be minimized. Both 1990 and 1991 censusesshowed that these species are well represented and are breeding well incaptivity. In 1991, 114 pairs of N. splendida hatched 337 eggs, and 61pairs of N. pulchella hatched 266 eggs. Thus, these species areexempted by this final rule.Comment: No criteria were provided for the addition or deletion oftaxa from the list exempted from the CBW registration requirement.Response: The Service believes that a case-by-case determination ofeligibility, consistent with the provisions of the Act and the publicnotice and comment procedure, is adequate for the small number ofspecies that will be considered for exemptions. In the near future, theService will propose a new rule that sets criteria for adding ordeleting taxa from the list exempted from the CBW registrationrequirements. The Service will solicit comments from the public on theproposed rule to ensure that the proposal is as accurate and effectiveas possible.Comment: The proposed exemptions from registration requirementsviolate the notice, comment, and finding provisions of sections 10(c)and (d) of the Act.Response: The proposed exemptions make no change in existing CBWprocedures concerning notice and review. Section 17.21(g)(1) contains ageneral permit issued to ``any person''. The question involved here iswhether entities (permittees) holding the exempted taxa would berequired to register with the Service. Thus, the new exemptionsrepresent changes to the terms of the existing general permit, andpublic notice and comment procedures have been observed in developingthose changes.Comment: The proposed exemptions improperly do away with the Act'srequirement that listed species be held for scientific purposes or toenhance the propagation or survival of the species.Response: The proposed rule did not specify that the purpose ofactivities with species from taxa where the holder is exempted fromregistrating must be for the enhancement of propagation or survival ofthe species. This final rule now includes such language in theregulation at Sec. 17.21(g)(6)(i). Captive U.S. stocks of taxa to beexempted from the CBW registration requirement are characterized bylarge numbers of specimens and successful breeding efforts; therefore,their survival in captivity appears assured. The fact that these stocksare sufficient to satisfy demand is evidenced by little or no demandfor additional specimens from the wild. Computerized permit recordsshow that in the 3-year period 1991 to 1993, there were no imports ofwild specimens of any of these taxa (for the pheasants, there have beenno requests for such imports since 1986). Importation of wild-caughtspecimens of these taxa for breeding purposes could be approved only inunusual circumstances, including a definitive showing of need for newbloodlines that could only be satisfied by wild animals. Adetermination would have to be made that the status of the wildpopulation would safely allow limited taking. Preference would be givento imports of captive-born specimens of the exempted taxa. Theimportation of either wild-caught specimens or specimens born incaptivity outside the United States would continue to require permitsunder section 10 of the Act as well as the Convention on InternationalTrade in Endangered Species.Comment: In the final rule published on December 27, 1993 (58 FR68323), Sec. 17.21(g)(1) was amended to state that the principalpurpose of activities with animals regulated under the CBW system mustbe to facilitate captive breeding. Section 17.21(g)(1)(ii) requiresthat the purpose be to enhance the propagation or survival of thespecies. This double requirement is confusing and apparently redundant.Response: The Service agrees. The purpose of the wording added toSec. 17.21(g)(1) was to indicate that public education could not beused as the sole basis for justifying issuance of a CBW registrationfor species that do not qualify for the exempted taxa list. The text ofthis final rule has been revised to clarify this issue.Comment: An objection was made that the proposed rule would requireentities such as circuses to show that permanent exports of generictigers would be for the purpose of enhancement of propagation orsurvival of the species in accordance with Sec. 17.21(g)(4). This doesnot make sense, since the Service has concluded that inter-subspecificcrossed or generic tigers have no value in terms of preserving thespecies through propagation because they no longer have the samegenetic makeup as wild populations.Response: The Service agrees that generic or inter-subspecificcrossed tigers cannot be used for enhancement of propagation of thespecies. However, they can be used in a manner that should enhancesurvival of the species in the wild. Examples include exhibition in amanner designed to educate the public about the ecological role andconservation needs of the species and satisfaction of demand for tigersso that wild specimens or captive purebred subspecies are not used.Export of any of the exempted taxa will continue to requireappropriate CITES documentation under 50 CFR part 23. The informationrequired by Sec. 17.21(g)(4) can be submitted with the CITESapplication, as is current practice.Discussion of Final RuleThis final rule revises existing Secs. 17.3 and 17.21(g). Theserevisions and their effects are discussed below:1. ``Harass'' under the definition of ``take in Sec. 17.3 is an actor omission that creates the likelihood of injury by annoying wildlifeto such an extent as to significantly disrupt normal behavior patterns.The applicability of this concept to captive-held animals has beenunclear, since human activities, including normal husbandry practices,provided in caring for captive-held wildlife in all probability disruptbehavior patterns.In light of this, the definition of ``harass'' in 50 CFR 17.3 ismodified to exclude normal animal husbandry practices that are notlikely to result in injury such as humane and healthful care whenapplied to captive wildlife. While no permit is required to possesslawfully acquired listed wildlife, a person cannot possess wildlifewithout doing something to it that might be construed as harassmentunder a literal interpretation of the definition in use since 1979,e.g., keep it in confinement, provide veterinary care, etc. Under thisscenario, a person who legally possessed wildlife without a permitcould be considered in violation of the prohibition against harassmentunless they obtained a specific permit that authorized them to conductnormal animal husbandry activities. Had Congress intended this result,the prohibition on possession in section 9 of the Act would not havebeen limited to endangered species taken in violation of the Act.However, maintaining animals in inadequate, unsafe or unsanitaryconditions, physical mistreatment, and the like constitute harassmentbecause such conditions might create the likelihood of injury orsickness. The Act continues to afford protection to listed species thatare not being treated in a humane manner.2. Ten species of pheasants (family Phasianidae), parakeets of thespecies Neophema splendida and N. pulchella, the Laysan duck, thewhite-winged wood duck, and the ``generic'' tiger are exempted from theCBW registration requirements of Sec. 17.21(g)(2), because their survival in captivityappears assured. All of these taxa are present in the United States inlarge numbers and/or are genetically unsuitable for scientifically-based breeding programs (as is the case with the generic tiger). Thefour purebred subspecies of tiger in captivity in the United States arethe subject of breeding programs under SSP's and will continue torequire CBW registrations.Current holders of CBW registrations for the above taxa (listed inSec. 17.21(g)(6)) will no longer need them. Applications for new orrenewed registrations for these taxa that are pending before theService on the effective date of this rule will not be processed.No written annual reports will be required of holders of theseexempted taxa. However, record keeping and inspection requirements of50 CFR 13.46 and 13.47 are still in place for persons holding theexempted taxa or other captive-bred species requiring a CBWregistration. It is estimated that the paperwork burden of the CBWsystem on the Service and the public will be reduced.The Service believes that this relaxation of the registrationrequirement in Sec. 17.21(g) will not operate to the disadvantage ofthe species in the wild; further, it will be consistent with theconservation of the species because domestic demand has been, and willcontinue to be, satisfied by captive-born wildlife. The import of livewild-caught specimens, including those belonging to the exempted taxa,would not be authorized unless evidence showed a need for newbloodlines that could not be satisfied by internal exchange or thatforeign-bred specimens were unavailable. Furthermore, the Service wouldhave to determine that the wild populations could sustain limitedtaking.Regulatory AnalysisThis rulemaking has been reviewed by the Office of Management andBudget review under Executive Order 12866. Furthermore, the Departmentof the Interior certifies that this document will not have asignificant economic effect on a substantial number of small entities(zoos, circuses, independent breeders) under the Regulatory FlexibilityAct (5 U.S.C. 601 et seq.). This rule will beneficially affect about400 small entities currently registered under the CBW system. Theeconomic effects are minor since they represent less than $20,000 andthus, the total effect on such small entities will be minimal. Therewill be a regulatory reduction for those entities holding species to beexempted from registration by this rule. This rule may also provide areduction of risk to holders of captive wildlife because of the amendeddefinition of ``harass''.This final rule is not a major rule under 5 U.S.C. 804(2), theSmall Business Regulatory Enforcement Fairness Act and will notnegatively effect the economy, consumer costs, or U.S. based-enterprises. The Service recognizes that the rule will effect asubstantial number of small entities, such as zoo, circuses, orindependent breeders, but in a beneficial manner.The Service has determined and certified pursuant to the UnfundedMandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking willnot impose a cost of $100 million or more in any given year on privateentities, or local or State governments.The Department has determined that these final regulations meet theapplicable standards provided in Section 3(a) and 3(b)(2) of ExecutiveOrder 12988.This rule will not have substantial direct effects on the States,in their relationship between the Federal Government and the States oron the distribution of power and responsibilities among the variouslevels of government. Therefore, in accordance with Executive Order12612 the Service has determined that the rule does not havesignificant Federalism implications to warrant the preparation of aFederalism Assessment.The Service has determined that the rule has no potential takingsof private property implications as defined in Executive Order 12630.Persons registering with the Service for a captive-bred wildliferegistration requires the collection of information, and the Office ofManagement and Budget has approved the collection of informationcontained in this rule under 44 U.S.C. 3501 et seq. and assignedclearance 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 inaccordance with wildlife regulations on the issuance, suspension,revocation or denial of permits. The Service has reviewed all permitinformation collection requirements and ensured the burden imposed onthe public is the lowest possible. It should be noted that the mainintent of this rule is to lower the number of persons needing aregistration.The Service has reviewed this rule under Executive Order 12372 anddetermined that intergovernmental consultation is unnessary.The Service has determined that these regulations are categoricallyexcluded from further National Environmental Policy Act (NEPA)requirements. Part 516 of the Departmental Manual, Chapter 6, AppendixI, section 1.4(A)(1) categorically excludes changes or amendments to anapproved action when such changes have no potential for causingsubstantial environmental impact.The Service has evaluated possible effects on Federally recognizedTribes and determined that there will be no adverse effects to anyTribe. Any individual tribal member possessing a CBW registration willreceive the same beneficial regulatory and economic relief as otherregistrants who hold wildlife species that will be exempted by thisrule.List of Subjects in 50 CFR Part 17Endangered and threatened species, Exports, Imports, Reporting andrecordkeeping requirements, Transportation.Regulation PromulgationFor 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 Provisions2. The definition of ``Harass'' in Sec. 17.3 is revised to read asfollows:Sec. 17.3  Definitions.* * * * *Harass in the definition of ``take'' in the Act means anintentional or negligent act or omission which creates the likelihoodof injury to wildlife by annoying it to such an extent as tosignificantly disrupt normal behavioral patterns which include, but arenot limited to, breeding, feeding, or sheltering. This definition, whenapplied to captive wildlife, does not include generally accepted:(1) Animal husbandry practices that meet or exceed the minimumstandards 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 notlikely to to result in injury to the wildlife.* * * * *Subpart C--Endangered Wildlife3. 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 foreigncommerce, in the course of a commercial activity; or sell or offer forsale in interstate or foreign commerce any endangered wildlife that isbred in captivity in the United States provided either that thewildlife is of a taxon listed in paragraph (g)(6) of this section, orthat the following conditions are met:(i) The wildlife is of a species having a natural geographicdistribution not including any part of the United States, or thewildlife is of a species that the Director has determined to beeligible in accordance with paragraph (g)(5) of this section;(ii) The purpose of such activity is to enhance the propagation orsurvival of the affected species;(iii) Such activity does not involve interstate or foreigncommerce, in the course of a commercial activity, with respect to non-living wildlife;(iv) Each specimen of wildlife to be re-imported is uniquelyidentified by a band, tattoo or other means that was reported inwriting to an official of the Service at a port of export prior toexport from the United States; and(v) Any person subject to the jurisdiction of the United States whoengages in any of the activities authorized by this paragraph does soin accordance with paragraphs (g) (2), (3) and (4) of this section, andwith all other applicable regulations in this Subchapter B.(2) Any person subject to the jurisdiction of the United Statesseeking to engage in any of the activities authorized by this paragraphmust 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 anofficial application form (Form 3-200-41) provided by the Service, andmust 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 offamily, genus or species;(ii) A description of the applicant's experience in maintaining andpropagating the types of wildlife sought to be covered by theregistration, and when appropriate, in conducting research directlyrelated to maintaining and propagating such wildlife;(iii) Photograph(s) or other evidence clearly depicting thefacilities 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 ofAgriculture (9 CFR part 2).(3) Upon receiving a complete application, the Director will decidewhether or not the registration will be approved. In making thisdecision, the Director will consider, in addition to the generalcriteria in Sec. 13.21(b) of this subchapter, whether the expertise,facilities or other resources available to the applicant appearadequate to enhance the propagation or survival of the affectedwildlife. Public education activities may not be the sole basis tojustify issuance of a registration or to otherwise establisheligibility for the exception granted in paragraph (g)(1) of thissection. Each person so registered must maintain accurate writtenrecords of activities conducted under the registration, and allowreasonable access to Service agents for inspection purposes as setforth in Secs. 13.46 and 13.47. Each person registered must submit tothe 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 Statesseeking to export or conduct foreign commerce in captive-bredendangered wildlife that will not remain under the care of that personmust first obtain approval by providing written evidence to satisfy theDirector that the proposed recipient of the wildlife has expertise,facilities or other resources adequate to enhance the propagation orsurvival of such wildlife and that the proposed recipient will use suchwildlife for purposes of enhancing the propagation or survival of theaffected species.(5)(i) The Director will use the following criteria to determine ifwildlife of any species having a natural geographic distribution thatincludes any part of the United States is eligible for the provisionsof this paragraph:(A) Whether there is a low demand for taking of the species fromwild populations, either because of the success of captive breeding orbecause of other reasons, and(B) Whether the wild populations of the species are effectivelyprotected from unauthorized taking as a result of the inaccessibilityof their habitat to humans or as a result of the effectiveness of lawenforcement.(ii) The Director will follow the procedures set forth in the Actand in the regulations thereunder with respect to petitions andnotification of the public and governors of affected States whendetermining the eligibility of species for purposes of this paragraph.(iii) In accordance with the criteria in paragraph (g)(5)(i) ofthis section, the Director has determined the following species to beeligible for the provisions of this paragraph:Laysan duck (Anas laysanensis).(6) Any person subject to the jurisdiction of the United Statesseeking to engage in any of the activities authorized by paragraph(g)(1) of this section may do so without first registering with theService with respect to the bar-tailed pheasant (Syrmaticus humiae),Elliot's pheasant (S. ellioti), Mikado pheasant (S. mikado), browneared 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 (Polyplectronemphanum); parakeets of the species Neophema pulchella and N.splendida; the Laysan duck (Anas laysanensis); the white-winged woodduck (Cairina scutulata); and the inter-subspecific crossed or``generic'' tiger (Panthera tigris) (i e., specimens not identified oridentifiable as members of the Bengal, Sumatran, Siberian orIndochinese 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 orsurvival 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-livingwildlife;(iii) Each specimen to be re-imported is uniquely identified by aband, tattoo or other means that was reported in writing to an officialof the Service at a port of export prior to export of the specimen fromthe United States;(iv) No specimens of the taxa in this paragraph (g)(6) of thissection that were taken from the wild may be imported for breedingpurposes absent a definitive showing that the need for new bloodlinescan only be met by wild specimens, that suitable foreign-bred, captive individuals are unavailable, and that wild populations cansustain limited taking, and an import permit is issued underSec. 17.22;(v) Any permanent exports of such specimens meet the requirementsof 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 ofactivities, including births, deaths and transfers of specimens, andmake those records accessible to Service agents for inspection atreasonable 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

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