[Federal Register Volume 59, Number 52 (Thursday, March 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6098]
[[Page Unknown]]
[Federal Register: March 17, 1994]
_______________________________________________________________________
Part VII
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
50 CFR Part 15
Importation of Exotic Wild Birds to the United States; Proposed Rule
Implementing the Wild Bird Conservation Act of 1992
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 15
RIN 1018-AC15
Importation of Exotic Wild Birds to the United States; Proposed
Rule Implementing the Wild Bird Conservation Act of 1992
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: On October 23, 1992, the Wild Bird Conservation Act of 1992
(WBCA) was signed into law, the purposes of which include promoting the
conservation of exotic birds by: ensuring that all imports into the
United States of species of exotic birds are biologically sustainable
and not detrimental to the species; ensuring that imported birds are
not subject to inhumane treatment during capture and transport; and
assisting wild bird conservation and management programs in countries
of origin. This proposed rule would implement procedures for approval
of foreign captive-breeding facilities and establishment of an approved
list of species listed in the Appendices to the Convention on
International Trade in Endangered Species of Wild Fauna and Flora that
can be imported.
DATES: The Fish and Wildlife Service (Service) will consider comments
and information received by April 16,1994 in formulating a final rule,
except for subpart D, Sec. 15.32, for which the Service will consider
comments and information received by June 15, 1994 in formulating a
final rule.
ADDRESSES: Comments and information should be sent to: Director, U.S.
Fish and Wildlife Service, 1849 C Street NW., 420 ARLSQ, Washington, DC
20240.
FOR FURTHER INFORMATION CONTACT: Susan S. Lieberman, Office of
Management Authority, at the above address, telephone (703) 358-2093.
SUPPLEMENTARY INFORMATION: This rule proposes regulations implementing
aspects of the WBCA, which was signed into law on October 23, 1992.
This is the second of two notices of proposed rulemaking under the
WBCA; the first was published in the Federal Register on August 12,
1993 (58 FR 42926). The first final rulemaking under the WBCA was
published in the Federal Register on November 16, 1993 (58 FR 60524).
The WBCA limits or prohibits imports of exotic bird species to ensure
that their wild populations are not harmed by trade. It also encourages
wild bird conservation programs in countries of origin by both ensuring
that all trade in such species involving the United States is
biologically sustainable and is not detrimental to the species, and by
creating an Exotic Bird Conservation Fund to provide conservation
assistance in countries of origin. The final rule of November 16, 1993,
summarized the effects of the WBCA and proposed procedures for
obtaining import permits authorized by exemptions in the WBCA.
An immediate moratorium, effective October 23, 1992, was
established on the importation of ten species of wild birds of
particular concern that are listed in appendix II of the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES, or Convention), two of which were moved to appendix I at the
March 1992 CITES meeting. The prohibition on importation of those
species was announced in the Federal Register of December 4, 1992 (57
FR 57510).
During the one-year delay period from October 23, 1992, to October
22, 1993, there was an import quota on CITES-listed bird species. That
quota was announced in the Federal Register of December 4, 1992 (57 FR
57510). A notice published on March 30, 1993 (58 FR 16644), solicited
public comments and announced a public meeting, held April 15-16, 1993,
to receive input from the public in the development of regulations to
implement some of the provisions of the WBCA. Useful input was received
from a broad cross-section of interested members of the public who
participated in the meeting and submitted comments in writing; that
input has been utilized in developing this proposed rule. A notice
published on April 16, 1993 (58 FR 19840) announced species for which
the quota had been met and no further individual birds could be
imported.
With the publication of the final rule of November 16, 1993,
imports of all CITES-listed birds (as defined in the final rule) are
prohibited, except for species included in an approved list, or for
which an import permit has been issued. The approved list, which will
include species (by country) and/or specific captive-breeding
facilities, is proposed herein. The Service also has the emergency
authority to suspend imports of any CITES-listed bird species at any
time based on a series of criteria.
This notice of proposed rulemaking proposes regulations called for
in the WBCA that will accomplish the following: (1) For wild-caught
CITES-listed birds to be on an approved list, the Service must
determine that: CITES is being effectively implemented for the species
for each country of origin from which imports will be allowed; CITES-
recommended measures are implemented; there is a scientifically based
management plan for the species that provides for the conservation of
the species and its habitat, includes incentives for conservation,
ensures that the use of the species is biologically sustainable and
maintained throughout its range at a level consistent with its role in
its ecosystem, and addresses factors that include illegal trade,
domestic trade, subsistence use, disease, and habitat loss; and that
the methods of capture, transport, and maintenance of the species
minimize the risk of injury or damage to health.
(2) For captive-bred birds to be imported from other countries, in
order to be listed in an approved list, the Service is required to
determine either that the species is regularly bred in captivity and no
wild-caught birds of the species are in trade, or that the species is
bred in a qualifying facility.
The Service is also required to review trade in all non-CITES avian
species, and establish a moratorium on the import of any species, by
country of origin, if any of a series of findings cannot be made. The
procedures for such findings will be proposed in a future notice of
proposed rulemaking.
Section-by-Section Analysis
In the Federal Register notice of November 16, 1993, the Service
included the regulations implementing the WBCA in 50 CFR part 15,
subparts A-F. This proposed rulemaking proposes text for subparts D and
E only, along with additional definitions for subpart A. A future
notice of proposed rulemaking will propose regulations for subpart F.
Subpart D--Approved List of Species Listed in the Appendices to the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora
Section 15.31 Criteria for Including Species in the Approved List for
Captive-Bred Species
Pursuant to Section 106 of the WBCA, the Secretary is required to
publish a list of species of exotic birds that are listed in an
appendix to the Convention and that are not subject to a prohibition or
suspension of importation otherwise applicable under the WBCA. In order
to list a species as exclusively captive-bred, the Service is required
to determine that the species is regularly bred in captivity and no
wild-caught birds of the species are in trade, legally or illegally.
These captive-bred species can be imported into the United States
without meeting any additional requirements of the Wild Bird
Conservation Act or this part 15; however, all of the existing
requirements in parts 13 and 14, part 17 (species listed as endangered
or threatened under the Endangered Species Act (ESA)), part 21
(Migratory Bird Treaty Act) and part 23 (species listed in the
Appendices to the Convention, or CITES) must still be complied with.
This section establishes the criteria for the approval of the
importation of captive-bred species. In the House of Representatives
Committee Report for the WBCA, the Secretary was instructed ``to use
the standards adopted by the State of New York with respect to
importation of captive-bred species, and include such species on the
approved list under this section, as long as the Secretary believes
that trade based on these standards will not result in harm to species
in the wild.'' These standards direct the Secretary to include species
of exotic birds in the approved list if the species is regularly bred
in captivity and none are taken from the wild for the trade. In order
to comply with such standards, the Service proposes the following
criteria for the approval of the importation of foreign captive-bred
species: (a) All specimens of the species known to be in trade (legal
or illegal) must be captive-bred; (b) No specimens of the species can
be known to be removed from the wild for the pet bird market; (c) Any
importation of specimens of the species must not be detrimental to the
survival of the species in the wild; and (d) Adequate enforcement
controls must be in place in countries of export to ensure compliance
with the aforementioned paragraphs.
If a species is bred in captivity in large numbers, but individual
birds of that species are frequently, sometimes, or even rarely taken
from the wild, or if there are enforcement concerns that illegal trade
occurs in the species, that species cannot be included as a captive-
bred species. Thus, that species would not be approved as a captive-
bred species. However, individual captive-bred birds may still be
imported into the United States under one of the following conditions:
(1) The foreign breeding facility could be approved pursuant to subpart
E of this part 15; or (2) a permit for an individual import could be
obtained pursuant to subpart C, if the requirements of that subpart are
met.
15.32 Criteria for Including Species in the Approved List for Non-
Captive-Bred Species
Pursuant to Section 106 of the WBCA, the Secretary is required to
publish a list of species of exotic birds that are listed in an
Appendix to the Convention and that are not subject to a prohibition or
suspension of importation otherwise applicable under the WBCA. For non-
captive-bred (i.e., wild-caught) exotic birds to be imported from other
countries, in order to be listed in an approved list, the Service is
required by the WBCA to ``use the best scientific information
available, and to consider the adequacy of regulatory and enforcement
mechanisms in all countries of origin for the species, including such
mechanisms for control of illegal trade.'' In developing criteria on
which to base approval of sustainable use management plans, the Service
reviewed information available on the sustainable use of exotic birds
subject to international trade. Beissinger and Bucher (1992) proposed a
model for sustainable use of parrot species when biological data are
incomplete (Bioscience Vol. 42, No 3, March, 1992: Can Parrots be
Conserved through Sustainable Harvesting?); the Service drew upon this
model in developing the approval criteria for non-captive-bred species.
The WBCA requires the Service to ``find that the Convention is
being effectively implemented with respect to that species''. The
Service believes that it is conceivable, although extremely unlikely,
that a country which is not a CITES Party might be complying with all
relevant CITES requirements. However, a country that is not a CITES
Party can be considered for approval of its sustainable use management
plan under this rule. The Service does not wish to discourage the
development of effective sustainable use management plans. The Service
welcomes comment and input on these qualification requirements, in
order to ensure that the final rule promotes conservation objectives
and expands opportunities to implement scientifically-based management
strategies.
The WBCA requires the Service to make the finding that the
Convention is being effectively implemented, by making each of the
following findings specified in section 106, paragraph (c) of the WBCA,
each of which the Service has included in Sec. 15.32(b):
(1) That the country of origin has established a Scientific
Authority.
(2) That the requirements of Article IV of the Convention are
implemented with respect to that species.
In addition, since the WBCA requires that each country be
effectively implementing the Convention, the proposed approval criteria
also require that countries demonstrate implementation of Article VIII
of the Convention regarding establishment of implementing legislation
and submission to the Convention's Secretariat of required annual
reports.
(3) That remedial measures recommended by the Parties to the
Convention with respect to that species are implemented. The House of
Representatives Committee Report for the WBCA states that ``The
Committee expects that the Secretary will weigh heavily the willingness
and commitment of an exporting country to implement remedial measures
in deciding whether to include a species on the list of approved
species.'' This factor is included in the criteria for approval of
country management plans.
(4) ``That a scientifically-based management plan has been
developed for the species which provides for the conservation of the
species and its habitat and includes incentives for conservation''
(Section 106, paragraph (c)(2)(A) of the WBCA). The proposed approval
criteria incorporate this consideration in a number of ways, including
requiring: (a) Information on species conservation status and
distribution; (b) habitat conservation information, including habitat
requirements, habitat distribution and protection status, and habitat
status and trends; and (c) information on population dynamics,
including population assessments, reproductive success, and evidence of
how the sustainable use management plan promotes the value of the
species and its habitats. In the case of habitat information, several
pieces of information are required, including management plans for
habitats important to the species. They are only required, however, if
they are available or applicable. For a species that breeds in the
country of export, the Service has proposed a requirement of a
description of nest sites and/or plant communities that are most
frequently used for placement of nests and, if applicable, nesting
habits. Nesting habit information may include clutch size, ability to
renest, nesting season, and known nest competitors/predators.
(5) ``That a scientifically-based management plan has been
developed for the species which ensures that the use of the species is
biologically sustainable and maintained throughout the range of the
species in the country to which the plan applies at a level that is
consistent with the role of the species in the ecosystem and is well
above the level at which the species might become threatened with
extinction'' (Section 106, paragraph (c)(2)(B) of the WBCA). The
proposed criteria, in fulfilling this statutory requirement, require
the following: (a) Information on the population of the species; and
(b) information on the species' role in its ecosystem, including nest
requirements and diet. The proposed rule requires information on any
species or plant community that is dependent on the occurrence of the
exotic bird species, in order to make the required finding that the
proposed capture and export are at levels that are consistent with the
role of the species in its ecosystem. The proposed rule requires recent
population data of the population of the species in the country of
export, as derived from indices of relative abundance (such as catch
per unit effort or call count surveys) or population estimates (if
available), along with documentation for each estimate. These
population data or estimates should be based on studies conducted for
at least three separate years, or data for one year can be provided,
with a description of survey plans for future years. Population
assessments should have been conducted during the same season (breeding
or non-breeding) of each year for which documentation is submitted.
For long-lived, more ``K-selected'' species of birds (as listed in
the proposed rule in Sec. 15.32) the Service is proposing to require
that the management plan (for species that breed in the country of
export) include information on nesting ecology, and reproductive rates
or mortality rates. Those species are defined as those not in one of 19
specified families of birds. The Service is proposing more rigorous
standards for the sustainable utilization of ``K-selected'' species,
based on an awareness that their sustainable utilization is very
difficult, and that they are extremely sensitive to population
depletion.
For species included in one of the 19 families of birds specified
in the proposed rule in Sec. 15.32 (more ``r-selected'' species), the
Service is proposing that, instead of detailed demographic information,
the management plan (for species that breed in the country of export)
need only include an estimation of recent reproductive success.
Reproductive success may be estimated using pre-breeding and post-
breeding counts, wherever that is appropriate. For all birds, when the
species occurs in the country of export only during the nonbreeding
season, the Service proposes to require documentation or a letter from
the Convention Scientific Authority that the species does not breed
there.
The Service has proposed, for the purposes of the WBCA, to define
sustainable use as ``the use of a species in a manner and at a level
such that populations of the species are maintained at optimal levels
for the long term and involves a determination of the productive
capacity of the species and its ecosystem, in order to ensure that
utilization does not exceed those capacities or the ability of the
population to reproduce and maintain itself.'' In order to determine
that the management plan utilization of the species is sustainable, the
Service proposes to require evidence of how levels of sustainable use
were determined, including either (1) adequate long-term trends in
relative abundance and take levels, or (2) population estimates,
reproductive success, and estimation of the number exported from the
country during the past 2 years, and the number of birds removed
directly from the wild for export, domestic trade, illegal trade,
subsistence use, and other purposes. The information should include the
estimated number of birds to be removed from the wild from each area or
region of take each year for all purposes, including age-class
information for ``K-selected'' species, and a description of future
plans to monitor the species in each area of take and to determine
whether the number of birds taken has been sustainable. Throughout the
proposed rule, area or region of take refers to the area or region
within the country of export where birds will be removed from the wild;
the degree of specificity used will depend on the particular situation
in the country of export. If the species is abundant throughout its
range, the region of take could be the entire country; a species that
is locally abundant but rare elsewhere might have a more restricted
area of take.
The Service is aware that the criteria for approval of sustainable
use management plans proposed herein may appear to be rigorous, and
although desirable and scientifically valid, they may be difficult for
many countries. The Service proposes to give particularly positive
consideration to situations wherein very conservative capture and
export quotas are implemented prior to being able to obtain all of the
biological information necessary for a more large-scale management plan
(in effect, a ``preliminary'' approval). Thus, the more tentative the
biological information is, the more conservative the capture and export
quotas are expected to be; the closer the capture quotas are to the
reproductive capacity of the species, the biological information is
expected to be more rigorous.
(6) ``That a scientifically-based management plan has been
developed for the species which addresses factors relevant to the
conservation of the species, including illegal trade, domestic trade,
subsistence use, disease, and habitat loss'' (Section 106, paragraph
(c)(2)(C) of the WBCA). The proposed criteria, in fulfilling this
statutory requirement, require the following information: estimation of
annual mortality or loss, including natural mortality and take for
subsistence use, export trade, and domestic trade (in each area or
region of take); and the estimated number of birds that will be removed
from the wild from each area or region of take each year for all
purposes (export trade, domestic trade, illegal trade, and subsistence
use), including information on the regulation of these factors within
the country. When applicable, information on age-classes removed from
the wild should be included. As in the previous paragraph, the Service
will give particularly positive consideration to situations wherein
very conservative capture and export quotas are implemented prior to
being able to obtain all of the biological information necessary for a
more large-scale management plan (a sort of ``preliminary'' approval).
(7) That the management plan is implemented and enforced (Section
106, paragraph (c)(3) of the WBCA). The proposed criteria incorporate
this finding in a number of ways, including requiring: (a)
Certification from the country of export's Management Authority that
the country has the legal means necessary to ensure enforcement of and
compliance with the requirements of the management plan and to ensure
that the number of birds removed from the wild or exported will be
consistent with the management plan; (b) an explanation of
infrastructure and law enforcement and monitoring mechanisms that will
ensure compliance with methodology in the management plan; and (c)
evidence of implementing legislation. The Service expects in this
context not just a copy of a country's implementing legislation, but a
summary of how that legislation and the management plan is or will be
put into practice. Information provided could be varied, but might
include how a country's wildlife department is organized, how the
wildlife department will monitor implementation and enforcement of the
management plan, and evidence of prior enforcement actions.
(8) That the methods of capture, transport, and maintenance of the
species minimize the risk of injury or damage to health, including
inhumane treatment (Section 106, paragraph (c)(4) of the WBCA). The
proposed criteria incorporate this required finding in a number of
ways, including requiring: (a) a description of the process of removing
birds from the wild, including locations, time of year of removal,
capture methods, means of transport, and pre-export conditioning; and
(b) a description of the shipping methods and enclosures proposed to be
used to transport the exotic birds, including but not limited to
feeding and care during transport, and shipping densities. Since there
is evidence that for some species and, in some cases, consignment size
may increase the risk of mortality in transport, the Service has also
proposed that estimated consignment sizes be included with the
management plan. Although the proposed rule does not establish a
maximum consignment size, the Service will take this factor into
consideration in making the required finding. Consignment size in this
context refers to the number of birds in a single shipment exported
from the country of export.
The WBCA also requires that the Service ``consider the adequacy of
regulatory and enforcement mechanisms in all countries of origin for
the species, including such mechanisms for control of illegal trade''
(WBCA Sec. 106(a)(3)). Therefore, in the approval criteria, for species
with a multi-national distribution, the Service proposes to make the
following determinations (the information needed may need to come from
sources other than the country requesting approval of its management
plan): (a) whether populations of the species in other countries in
which it occurs will be detrimentally affected by exports of the
species from the country requesting approval (this information could be
obtained from those governments and/or from other sources, and could
include communication from the Scientific Authorities of other range
states); (b) whether factors affecting conservation of the species,
including export from other countries, illegal trade, domestic use, or
subsistence use are regulated throughout the range of the species so
that recruitment and/or breeding stocks of the species are not
detrimentally affected by the proposed export; (c) whether the proposed
take and export from the requesting country include enough demographic
information to ensure they will not detrimentally affect breeding
populations; and (d) whether the proposed take and export will not
detrimentally affect any existing enhancement activities or
conservation programs throughout the species' range.
The approved non-captive-bred (i.e., wild-caught) species can be
imported into the United States without meeting any additional
requirements of the WBCA or this part 15; however, all of the existing
requirements in parts 13 and 14, part 17, part 21, and part 23 must be
complied with. Upon receipt of a completed sustainable use management
plan for a country of export, the Director will publish a Notice in the
Federal Register for public comment. Approval of species will be
granted in accordance with the criteria proposed in Sec. 15.32.
The Service proposes to consider only sustainable use management
plans for appendix II species and appendix III species from the country
for which they are listed, since trade for primarily commercial
purposes is not permitted under the Convention for appendix I species.
If specimens of an appendix I species are required for zoological,
scientific, or breeding purposes, individuals desiring such import may
apply for a permit under Subpart C of this Part 15.
Section 15.33 Species Included in the Approved List
(a) Captive-bred species. In order to establish a proposed list of
approved captive-bred species, based on the criteria in proposed
Section 15.31, the Service used the best information available,
including import records of captive-bred species, law enforcement and
intelligence data on the commercial trade in captive-bred species, and
law enforcement and intelligence information on the illegal trade in
exotic bird species. The proposed list of approved species includes 37
captive-bred exotic bird species that can be imported from any other
country, with export permits required by CITES, other federal laws, and
the exporting country. In addition, the Service has proposed to include
in the approved list of captive-bred species several exotic bird
species that are not listed in an appendix to the Convention but are
regularly bred in captivity and are not taken from the wild. Although
these species are not listed in an Appendix and thus are not presently
prohibited under the WBCA, these species are included in the list for
the convenience of the public. To ensure that there is no confusion,
even if the species or higher taxon to which it belongs were
subsequently listed in the Appendices to the Convention, the Service
would still consider it to be an approved captive-bred species pursuant
to this subpart D.
As established in the WBCA, the Service will periodically review
the list of species that meet the approval criteria for the importation
of captive-bred species. Any changes to this approved list will be
proposed in the Federal Register for public comment. The Service is
interested in receiving the comments, including documentation, of any
interested individuals or organizations with information on the
captive-bred status of any of the species in the list proposed in this
subsection, or of any other exotic bird species that meet the criteria
in Sec. 15.31 for inclusion in this list.
(b) Non-captive-bred species. No species can be proposed for
approval under this paragraph until the proposed regulations in Section
15.32 are finalized, and a completed sustainable use management plan
for a country of export for that species has been received by the
Director. Upon granting approval in accordance with the issuance
criteria of this section, approved species and countries of export
would be listed in this paragraph.
Subpart E--Qualifying Foreign Facilities Breeding Exotic Birds in
Captivity
Section 15.41 General Application Procedures
Pursuant to Section 107 of the WBCA, any person may submit a
petition to the Director to determine whether a foreign exotic bird
breeding facility shall be designated as a qualifying facility. If a
foreign facility is approved as a qualifying facility, species of
exotic birds for which the facility is approved can be imported into
the United States from that facility without import permits issued
pursuant to subpart C of this part 15. In all cases, any additional
requirements in 50 CFR parts 13, 14, 17, 21, and 23 must also be met.
Applications for approval shall be submitted to the Service's Office of
Management Authority. A separate application must be submitted for each
species for which approval is requested.
Applications must contain information as required in paragraph (c)
of this section, in order to make a series of findings required by the
WBCA. The Service notes that the fundamental purposes of these findings
is to ensure that the birds exported from these facilities are indeed
bred in captivity, no illegal trade is involved, and wild populations
are not harmed by either the breeding program or export from these
facilities. The information required includes but is not limited to the
following: (1) Certification from the Management Authority of the
country in which the facility is located that the facility is capable
of breeding the species in the numbers to be traded, without detriment
to the wild population of the species; (2) A summary of the
legislation, and regulations where appropriate, implementing the
Convention in the country in which the facility is located; (3) A
detailed statement of the facility's capability of breeding the species
in captivity in the numbers desired, including breeding methods,
experience, and production levels; (4) A detailed statement
demonstrating that the facility is operated in a manner not detrimental
to the survival of the species, including details on the establishment
of the parental stock; (5) A statement of any anticipated need for
augmentation of breeding stock from other sources; (6) A detailed
statement demonstrating that the facility is operated in a humane and
healthful manner; (7) A description of the care and maintenance
practices of the facility, including mortality and disease records and
husbandry, veterinary, and hygienic practices; (8) A statement that all
birds to be exported from the facility will be marked with closed leg
bands or an electronic marking system; and (9) Details on the system of
recordkeeping and tracking of birds and their progeny hatched at the
facility would be required.
Section 15.42 Approval Criteria and Conditions
This section would establish the criteria for approval of foreign
captive-breeding facilities by the Director, and approval conditions
and duration. The approval conditions would include: (1) Whether the
facility is located in a country that is Party to the Convention and is
implementing the requirements of the Convention, including designation
of functioning Scientific and Management Authorities, submission of
annual reports, and establishment of implementing legislation; (2)
Whether the facility is capable of producing captive-bred birds in the
numbers to be exported; (3) Whether the parental breeding stock was
acquired from legally obtained, exported, and/or imported birds; (4)
Whether the facility is operated in a manner not detrimental to the
survival of the species in the wild; (5) Whether adequate enforcement
controls are in place; (6) Whether the breeding protocol of the
facility is adequate; (7) Whether the facility is operated in a humane
and healthful manner; (8) Whether the facility will provide for proper
and healthful care and maintenance of the birds; and (9) Whether all
birds are identifiable through closed leg bands or electronic marking.
The Service welcomes comments on these criteria, including those
related to the applicability of relevant international law.
The approval conditions established in this section require the
submission of an annual report to the Service containing production and
mortality records, including hatching records, numbers of birds
exported, and their identification numbers. As established in the WBCA,
approvals are to be effective for three years, provided that the
facility continues to meet the requirements and approval conditions.
Each application submitted for approval is proposed to be published in
the Federal Register for public comment, and the Service will
periodically publish in the Federal Register a list of all approved
foreign breeding facilities and the effective dates of their approval.
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
any comments or suggestions from the public, other concerned
governmental agencies, the scientific or conservation communities,
trade organizations, or any other interested party concerning any
aspect of this proposal are hereby solicited.
Effects of the Rule
The Service has determined that this proposed rule is categorically
excluded under Departmental procedures in complying with the National
Environmental Policy Act (NEPA). See 516 DM [Departmental Manual] 2,
appendix 1 Paragraph 1.10. The proposed regulations are procedural in
nature, and the environmental effects while crafted to carry out the
benign purposes of the WBCA, are judged to be minimal, speculative, and
do not lend themselves to meaningful analysis. Future regulations
implementing the WBCA may be subject to NEPA documentation
requirements, on a case-by-case basis.
Executive Orders 12866, 12612, and 12630 and the Regulatory Flexibility
Act
This rule has been reviewed under Executive Order 12866. This
action is not expected to have significant taking implications for U.S.
citizens, as per Executive Order No. 12630. It has also been certified
that these revisions will not have a significant economic effect on a
substantial number of small entities as described by the Regulatory
Flexibility Act. Since the rule applies to importation of live wild
birds into the United States, it does not contain any Federalism
impacts as described in Executive Order 12612.
Paperwork Reduction
This proposed rule does not contain information collection
requirements for persons subject to the jurisdiction of the United
States that require approval by the Office of Management and Budget
under 44 U.S.C. 3501 et seq.
Author
The primary authors of this proposed rule are Dr. Susan S.
Lieberman, Office of Management Authority, and Dr. Rosemarie Gnam,
Division of Law Enforcement, U.S. Fish and Wildlife Service,
Washington, D.C. 20240 (703/358-2093).
List of Subjects in 50 CFR Part 15
Imports, Reporting and recordkeeping requirements, Transportation
and Wildlife.
Proposed Regulation Promulgation
PART 15--[AMENDED] EXOTIC WILD BIRD CONSERVATION
Accordingly, 50 CFR part 15 is proposed to be amended as follows:
1. The authority citation for part 15 continues to read as follows:
Authority: Pub. L. 102-440, 16 U.S.C. 4901-4916.
2. Amend part 15 subpart A Sec. 15.3 by adding the following
definitions, in alphabetical order:
Sec. 15.3 Definitions.
* * * * *
Documentation means a description of how information was collected,
including the methodologies used; names and institutions of individuals
conducting the work; dates and locations of any study; and any
published results or reports from the work.
* * * * *
Life cycle means the annual processes involved with breeding,
migration, and all other non-breeding activities.
* * * * *
Status means a qualitative measure of the vulnerability to
extinction or extirpation of a population at a given time (e.g.,
endangered, threatened, vulnerable, not threatened, non-threatened or
insufficiently known).
Sustainable use means the use of a species in a manner and at a
level such that populations of the species are maintained at optimal
levels for the long term and involves a determination of the productive
capacity of the species and its ecosystem, in order to ensure that
utilization does not exceed those capacities or the ability of the
population to reproduce and maintain itself.
Trend means a long-term projection of any change in the size of a
species' population or habitat over time (e.g., increasing, decreasing,
equilibrium, insufficiently known).
* * * * *
3. Subpart D is revised to read as follows:
Subpart D--Approved List of Species Listed in the Appendices to the
Convention
15.31 Criteria for including species in the approved list for
captive-bred species
15.32 Criteria for including species in the approved list for non-
captive-bred species.
15.33 Species included in the approved list.
Sec. 15.31 Criteria for including species in the approved list for
captive-bred species.
The Director will periodically review the list of captive-bred
exotic bird species in Sec. 15.33(a), for which importation into the
United States is approved. Any exotic bird species listed in paragraph
15.33(a) pursuant to this section must meet all of the following
criteria:
(a) All specimens of the species known to be in trade (legal or
illegal) are captive-bred;
(b) No specimens of the species are known to be removed from the
wild for the pet bird market;
(c) Any importation of specimens of the species would not be
detrimental to the survival of the species in the wild; and
(d) Adequate enforcement controls are in place in countries of
export to ensure compliance with paragraphs (a) through (c) of this
section.
Sec. 15.32 Criteria for including species in the approved list for
non-captive-bred species.
Upon receipt of a completed sustainable use management plan for a
country of export, the Director may approve a species listed in
Appendices II or III of the Convention for importation from that
country. Such approval shall be granted in accordance with the issuance
criteria of this section. All approved species and countries of export
will be listed in section 15.33.
(a) Requirements for scientifically-based sustainable use
management plans. Sustainable use management plans developed by the
country of export shall include the following information, and any
other information that may be appropriate:
(1) Background information, including the following:
(i) The scientific and common name of the species;
(ii) Letters from the country of export's Management and Scientific
Authorities transmitting the management plan of this species;
(iii) A summary of the country of export's legislation related to
this species and legislation implementing the Convention, and, where
appropriate, a summary of implementing regulations;
(iv) A summary, from the country of export's Management Authority,
of the country's infrastructure and law enforcement and monitoring
mechanisms designed to ensure both enforcement of and compliance with
the requirements of the management plan, and that the number of birds
removed from the wild or exported will be consistent with the
management plan;
(v) Recent information on the distribution of the species within
the country of export, including scientific references and maps, and
historical information on distributions, if relevant; and
(vi) The species' status and its current population trend in the
country of export, including scientific references.
(2) Habitat information, including:
(i) A general description of habitats used by the species for each
portion of the life cycle completed within the country of export;
(ii) Recent information on the size and distribution of these
habitats throughout the country of export and in each area or region of
take, including scientific references and maps. The approximate
location of any reserves that provide protection for this species
should be indicated on the accompanying map(s);
(iii) Status and trends of the important habitats used by the
species in the country of export as a whole and within each area or
region of take, whenever available, including scientific references;
(iv) Factors, including management activities, favoring or
threatening the species' habitat in the foreseeable future throughout
the country of export and within each area or region of take, whenever
available, including scientific references; and
(v) A list of management plans that have been or are being planned,
developed, or implemented for the species' important habitats, if any.
(3) Information on the role of the species in its ecosystem,
including:
(i) A description of the part(s) of the species' life cycle
completed within the country of export;
(ii) For a species that breeds in the country of export, a
description of nest sites and/or plant communities that are most
frequently used for placement of nests and, if applicable, nesting
habits;
(iii) A general description of the species' diet, where the species
forages (aerial feeder, tree canopy, tree trunk, midstory, understory,
open water or other), and seasonal changes in foraging habits,
including, when available, scientific references; and
(iv) Information on any species or plant community which is
dependent on the occurrence of the exotic bird species.
(4) Population dynamics of the species, including:
(i) Recent population data of the population of the species in the
country of export, as derived from indices of relative abundance or
population estimates, along with documentation for each estimate;
(ii) Within each area or region of take, documentation for recent
population data or estimates, conducted for at least three separate
years or one year with a description of survey plans for future years.
These population assessments should have been conducted during the same
season (breeding or non-breeding) of each year for which documentation
is submitted;
(iii) If a species belongs to the avian families Columbidae,
Fringillidae, Ploceidae, Estrildidae, Sturnidae, Tinamidae,
Podicepedidae, Burhinidae, Scolopacidae, Tyrannidae, Pittidae,
Emberizidae, Zosteropidae, Vireonidae, Atrichornithidae, Sylviidae,
Oriolidae, Meliphagidae, or Icteridae, the management plan shall
include the following information:
(A) For a species that does not breed in the country of export,
documentation or a letter from the Convention Scientific Authority that
the species occurs in the country of export only during the nonbreeding
season; and
(B) For a species that breeds in the country of export, estimation
(with documentation) of recent reproductive success. Where
apppropriate, this assessment could include number of young produced
per egg-laying female per year, or pre-breeding and post-breeding
surveys conducted within the same annual cycle; and
(C) Estimation (with documentation) of annual mortality or loss
including natural mortality and take for subsistence use, export trade,
and domestic trade in each area of take; or
(D) In lieu of paragraphs (a)(4)(iii) (A) and (C) of this section,
documentation of long-term population and offtake trends based on
indices of relative abundance, and measures of offtake and description
of any long-term changes in other mortality factors (including
subsistence use, domestic trade, and capture or transport mortalities).
(iv) If a species belongs to an avian family other than those
listed in paragraph (a)(4)(iii) of this section, the management plan
shall include the following information:
(A) For a species that does not breed in the country of export,
certification by the Scientific Authority of that country that the
species occurs in the country of export only during the nonbreeding
season;
(B) For a species that breeds in the country of export, scientific
assessment (with documentation) of the nesting ecology of the species.
Such an assessment may include the availability of active nest sites
and the number of females or pairs that successfully produce young per
year in each area or region of take; and
(C) For a species that breeds in the country of export, estimation
(with documentation) of recent reproductive rates (number of young
produced per egg-laying female or pair per year) or mortality rates;
and
(v) Estimation (with documentation) of annual mortality or loss,
including natural mortality and take for subsistence use, export trade,
and domestic trade in each area of take.
(5) Determination of biologically sustainable use:
(i) Estimation of the number exported from the country during the
past 2 years, and the number of birds removed from the wild for export,
domestic trade, illegal trade, subsistence use, and other purposes
(specify) for the country of export during the past 2 years;
(ii) The estimated number of birds that will be removed from the
wild from each area of take each year for all purposes (export trade,
domestic trade, illegal trade, and subsistence use), including a
description of age-classes (nestlings, fledglings, sub-adults, adults,
all classes), when applicable;
(iii) For the projected take addressed in the management plan, a
description of the removal process, including, but not limited to,
locations, time of year, capture methods, means of transport, and pre-
export conditioning;
(iv) Documentation of how each level of take was determined;
(v) Explanation of infrastructure and law enforcement and
monitoring mechanisms that ensure compliance with the methodology in
the management plan and that the species will be removed at a level
that ensures sustainable use; and
(vi) Description of future plans to monitor the species in each
area or region of take and to determine whether the number of birds
taken has been sustainable.
(6) A description of incentives for conservation, including a
description of how the sustainable use management plan promotes the
value of the species and its habitats by means of environmental
education, cooperative efforts or projects, development of cooperative
management units, and/or activities involving local communities.
(7) Additional factors:
(i) Description of any captive-propagation programs (private and
governmental) for the species carried out in the country of export;
(ii) Description of any existing enhancement activities developed
for the species, including, but not limited to, annual banding
programs, nest watching/guarding, and nest improvement; and
(iii) Description, including photographs or diagrams, of the
shipping methods and enclosures proposed to be used to transport the
exotic birds, including but not limited to feeding and care during
transport, densities of birds in shipping enclosures, and estimated
consignment sizes.
(b) Approval criteria. Upon receiving a sustainable use management
plan in accordance with paragraph (a) of this section, the Director
will decide whether or not an exotic bird species should be listed as
an approved species for importation from the country of export, under
Sec. 15.33. In making this decision, the Director shall consider in
addition to the general criteria in part 13 of this subchapter, all of
the following factors for the species:
(1) Whether the country of export is effectively implementing the
Convention, particularly with respect to:
(i) establishment of a functioning Scientific Authority;
(ii) the requirements of Article IV of the Convention;
(iii) remedial measures recommended by the Parties to the
Convention with respect to the species, including recommendations of
permanent committees of the Convention; and
(iv) Article VIII of the Convention, including but not limited to
establishment of legislation and infrastructure necessary to enforce
the Convention, and submission of annual reports to the Convention's
Secretariat;
(2) Whether the country of export has developed a scientifically
based management plan for the species that:
(i) provides for the conservation of the species and its
habitat(s);
(ii) includes incentives for conservation;
(iii) is adequately implemented and enforced;
(iv) ensures that the use of the species is:
(A) sustainable;
(B) maintained throughout its range at a level that is consistent
with the species' role in its ecosystem; and
(C) is well above the level at which the species might become
threatened;
(v) addresses illegal trade, domestic trade, subsistence use,
disease, and habitat loss; and
(vi) ensures that the methods of capture, transport, and
maintenance of the species minimize the risk of injury, damage to
health, or inhumane treatment; and
(3) If the species has a multi-national distribution:
(i) Whether populations of the species in other countries in which
it occurs will not be detrimentally affected by exports of the species
from the country requesting approval;
(ii) Whether factors affecting conservation of the species,
including export from other countries, illegal trade, domestic use, or
subsistence use are regulated throughout the range of the species so
that recruitment and/or breeding stocks of the species will not be
detrimentally affected by the proposed export;
(iii) If the species does not breed in the country of export,
whether the projected take and export will not detrimentally affect
breeding populations; and
(iv) Whether the projected take and export will not detrimentally
affect existing enhancement activities, conservation programs, or
enforcement efforts throughout the species' range.
(c) Publication in the Federal Register; The Director shall publish
notice in the Federal Register of each complete sustainable use
management plan under paragraph (a) of this section. Each notice shall
invite the submission from interested parties of written data, views,
or arguments with respect to the proposed approval.
(d) Duration of approval. A species and country of export listed in
Sec. 15.33 as approved shall be approved for three years, at which time
renewal of approval shall be considered by the Service.
Sec. 15.33 Species included in the approved list.
(a) Captive-bred species. The list in this paragraph includes
species of captive-bred exotic birds for which importation into the
United States is not prohibited by Sec. 15.11. The species are grouped
taxonomically by order.
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Species Common name
------------------------------------------------------------------------
Order Columbiformes:
Columba livia.................... Rock dove.
Order Psittaciformes:
Agapornis roseicollis............ Peach-faced lovebird.
Barnardius barnardi.............. Mallee Ringneck parrot.
Barnardius zonarius.............. Port Lincoln parrot.
Lathamus discolor. Swift parrot.
Melopsittacus undulatus.......... Budgerigar.
Neophema bourkii. Bourke's parrot.
Neophema pulchella............... Turquoise parrot.
Neophema splendida............... Scarlet-chested parrot.
Nymphicus hollandicus............ Cockatiel.
Platycercus adelaide............. Adelaide rosella.
Platycercus adscitus............. Pale-headed rosella.
Platycercus caledonicus.......... Green rosella.
Platycercus elegans.............. Crimson rosella.
Platycercus eximius.............. Eastern rosella.
Platycercus flaveolus............ Yellow rosella.
Polytelis alexandrae............. Princess parrot.
Polytelis anthopeplus............ Regent parrot.
Polytelis swainsonii............. Superb parrot.
Psephotus haematogaster.......... Blue-bonnet parakeet.
Psephotus haematonotus........... Red-rumped parakeet.
Psephotus varius................. Mulga parakeet.
Psittacula cyanocephala.......... Plum-headed parakeet.
Purpureicephalus spurius......... Red-capped parrot.
Order Passeriformes:.
Chloebia gouldiae................ Gouldian finch.
Emblema picta.................... Painted finch.
Lonchura castaneothorax.......... Chestnut-breasted finch.
Lonchura domestica............... Society (=Bengalese) finch.
Lonchura pectoralis.............. Pictorella finch.
Neochmia ruficauda............... Star finch.
Poephila acuticauda.............. Long-tailed grassfinch.
Poephila bichenovii.............. Double-barred finch.
Poephila cincta.................. Parson finch.
Poephila guttata................. Zebra finch.
Poephila personata............... Masked finch.
Serinus canaria.................. Common Canary.
------------------------------------------------------------------------
(b) Non-captive-bred species. The list in this paragraph includes
species of non-captive-bred exotic birds and countries for which
importation into the United States is not prohibited by Sec. 15.11. The
species are grouped taxonomically by order, and may only be imported
from the approved country, except as provided under a permit issued
pursuant to subpart C of this part.
Species Common name Country Date approved
(To be determined at a later date)
4. Subpart E is revised to read as follows:
15.41 General application procedures.
15.42 Approval criteria and conditions.
Subpart E--Qualifying facilities breeding exotic birds in captivity
Sec. 15.41 General application procedures.
(a) Any person may petition the Director to determine whether a
foreign exotic bird breeding facility may be designated as a qualifying
facility. The Director may approve foreign breeding facilities to
import exotic birds otherwise prohibited by Sec. 15.11, in accordance
with the approval criteria of this subpart. Approved species from
qualifying facilities do not require permits issued under this part 15
and are not limited as to the number of birds that can be imported, for
purposes of the WBCA.
(b) Applications for approval of foreign breeding facilities under
this subpart shall be submitted to the Director, U.S. Fish and Wildlife
Service, Office of Management Authority, 4401 N. Fairfax Drive,
Arlington, Virginia 22203. Each application must be submitted on an
official application (Form 3-200) provided by the Service and must
contain all of the information specified in this section. The
sufficiency of the application shall be determined by the Director in
accordance with the requirements of this part. A separate petition must
be submitted for each species for which the approval is requested.
(c) Upon receipt of a complete application, the Director may
approve foreign breeding facilities, which will allow individuals to
import exotic bird species otherwise prohibited by section 15.11, if
they are captive-bred in the facility. Each application shall provide
the following information and any such other information that the
Director may require:
(1) A description of the exotic bird species to be imported,
including the common and scientific name of the species;
(2) The name and address of the foreign breeding facility, and a
statement of the reasons supporting approval;
(3) Certification in writing from the Management Authority of the
country in which the facility is located that the facility has the
capability of breeding the species in captivity in the numbers to be
traded without detriment to the wild population, and that the operator
of the facility has not been convicted of any violations of the
country's laws governing trade and export of avian species;
(4) A summary of the legislation implementing the Convention in the
country in which the facility is located;
(5) A statement of the facility's capability of producing captive-
bred birds of the species and in the numbers they wish to export to the
United States, including:
(i) Relevant experience of persons involved in the operation of the
facility;
(ii) Current stock of the facility, including total number, ages,
sexes, and numbers of breeding pairs;
(iii) Production levels that have been achieved at the facility, at
least for the past two complete calendar years, including numbers of
eggs produced, chicks hatched, and chicks reared to independence;
(iv) Anticipated future production;
(v) A breeding protocol, including a genetic management plan and a
description of breeding methods. Breeding methods shall include whether
breeding is continuous or seasonal (including descriptions of
photoperiod manipulations used to stimulate or control breeding, if
any) and whether breeding birds are induced to produce multiple
clutches by the removal of eggs for artificial incubation; and
(vi) Descriptions of incubation and rearing methods, as well as any
other methods used to enhance production, including artificial
insemination when applicable;
(6) A statement demonstrating that the facility is operated in a
manner that is not detrimental to the survival of the species in the
wild, including:
(i) The number and origin of original breeding stock (founders);
(ii) A statement from the Scientific Authority of the country in
which the facility is located attesting that the parental stock was
established in a manner that was not detrimental to the survival of the
species in the wild;
(iii) If any parental breeding stock was wild-caught, a statement
as to the country of origin, date of acquisition, and certification by
the Management Authority in the country in which the facility is
located that the parental breeding stock was legally acquired; and
(iv) Certification from the Management Authority in the country in
which the facility is located that adequate controls, including
inspections, are in place to prevent the use of the facility for the
export of wild-caught stock;
(7) A statement of any anticipated need for augmentation of
breeding stock with specimens from other sources; if augmentation is to
be from the wild, an explanation as to why the removal of additional
specimens from the wild shall be included. This explanation must
address whether other captive-bred stock is available and describe
breeding strategies employed at the facility to avoid deleterious
inbreeding so that the need for augmentation from the wild is
minimized;
(8) A statement describing the facility and demonstrating that it
is operated in a humane and healthful manner, including:
(i) Diagrams or photographs of the facility;
(ii) Descriptions of enclosures, including dimensions, construction
materials, substrates, availability of water, lighting, ventilation,
the need for supplemental heat or cooling and how these are provided,
and shading (for outdoor enclosures);
(iii) Densities of birds in enclosures;
(iv) Internal features of enclosures, including perches, nest
boxes, and plantings; and
(v) A description of any facility features designed to satisfy
unique requirements of the particular species;
(9) A description of the care and maintenance practices of the
facility, including:
(i) Husbandry practices, feeding regimes (number of feedings per
day), and diet;
(ii) Hygienic practices, including methods and frequency of
cleaning and disinfection of equipment and facilities;
(iii) A statement as to the availability of routine professional
veterinary care, including annual flock inspection or examination, and
medication/vaccination schedules;
(iv) Records of mortality and disease outbreaks for both adults and
chicks for at least the past two years. Episodes of high mortality or
disease should be explained, and measures taken to prevent similar
mortality or disease outbreaks in the future should be described; and
(v) Qualifications and experience of the personnel who will be
responsible for the care of the exotic birds;
(10) A statement that all birds exported or to be exported from the
facility are bred at the facility and are marked with closed leg bands
or an electronic marking system;
(11) Details on the system of recordkeeping and tracking of birds
and their progeny hatched at the facility, including:
(i) Documentation that the facility maintains records of hatch
dates and band numbers of all birds produced at the facility;
(ii) Documentation that the facility maintains records of all birds
traded from the facility, including both within the country in which
the facility is located and internationally; and
(iii) Copies of these production and trade data shall be included
with the application for the past two calendar years; and
(12) A statement documenting that adequate enforcement controls are
in place in the country and at the facility to prevent the use of the
facility for the export or re-export of wild-caught stock, including a
statement on security at the facility and any prior losses due to
theft.
Sec. 15.42 Approval criteria and conditions.
(a) Approval criteria. Upon receiving an application completed in
accordance with Sec. 15.41 of this subpart, the Director will decide
whether or not a breeding facility should be approved. In making this
decision, the Director shall consider, in addition to the general
criteria in part 13 of this subchapter, the following factors:
(1) The facility is located in a country that is:
(i) a Party to the Convention;
(ii) has domestic legislation that adequately implements the
Convention;
(iii) has designated functioning Management and Scientific
Authorities; and
(iv) is current in providing annual reports to the Convention
Secretariat;
(2) The facility has demonstrated the capability of producing
captive-bred birds of the species in the numbers to be imported into
the United States from that facility;
(3) The facility is operated in a manner that is not detrimental to
the survival of the species in the wild;
(4) The parental breeding stock was acquired from birds that were
legally obtained, exported, and/or imported;
(5) Adequate enforcement controls are in place to prevent the use
of the facility for the export or re-export of wild-caught stock;
(6) The breeding protocol of the facility is adequate to avoid
deleterious inbreeding so that the need for augmentation from the wild
is eliminated or minimized;
(7) The facility is operated in a humane and healthful manner;
(8) The facility has the expertise or other resources necessary for
proper and healthful care and maintenance of the exotic birds, and the
facility is operated according to professionally recognized standards;
and
(9) All birds that are to be exported from the facility are bred at
that facility, and are identifiable through either closed leg bands or
electronic marking, and records kept are adequate to ensure
identification, parentage, and disposition of individual birds.
(b) Approval conditions. In addition to the general conditions set
forth in part 13 of this subchapter, qualifying facilities must submit
a report to the Service within 12 months of approval, and annually
thereafter. These reports shall contain production and mortality
records of the facility, including hatching and banding records, and
the numbers of birds exported to the United States during the reporting
period and the numbers by which the birds were identified. All
approvals shall be subject to other conditions as the Director may deem
appropriate.
(c) Duration of approval. Approvals of foreign breeding facilities
shall be effective for three years from the time a determination is
made, provided that:
(1) The facility continues to meet the requirements of a qualifying
facility for the entire time;
(2) The facility submits an annual report in order to remain
designated as a qualifying facility; and
(3) If the Director finds that a facility no longer meets these
requirements, its designation as a qualifying facility shall be
terminated. A notice will be published in the Federal Register
containing the date that the approval is terminated and the reason for
the termination.
(d) Publication in the Federal Register. The Director shall publish
a notice in the Federal Register of each application submitted for
approval under this subpart. Each notice shall invite the submission of
written data, views, or arguments with respect to the application from
all interested parties. The Director shall publish notice periodically
in the Federal Register listing the approved foreign breeding
facilities and the effective dates of their approval.
Dated: October 19, 1993.
Bruce Blanchard,
Director.
[FR Doc. 94-6098 Filed 3-16-94; 8:45 am]
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