[Federal Register Volume 59, Number 231 (Friday, December 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29674]


[[Page Unknown]]

[Federal Register: December 2, 1994]


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Part IX





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 15




Importation of Exotic Wild Birds to the United States; Amendment of 
Final Rule Implementing the Wild Bird Conservation Act of 1992; Final 
Rules
DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 15

RIN 1018-AC51

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

AGENCY: Fish and Wildlife Service.

Action: Final rule.

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SUMMARY: On October 23, 1992, the Wild Bird Conservation Act (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 final rule amends the final rule published by the Fish 
and Wildlife Service (Service) on November 16, 1993, in the Federal 
Register (58 FR 60524), which implements the prohibitions stipulated in 
the WBCA and provides permit requirements and procedures for some 
allowed exemptions. As a result of a lawsuit filed on February 15, 1994 
by the Humane Society of the United States and Defenders of Wildlife, 
and a resultant District Court Order that declared a portion of the 
contested regulation as invalid, the Service hereby amends 50 CFR 15.11 
(b) and (c). Notice of the Court Order was published in the Federal 
Register on May 24, 1994 (59 FR 26810). Consistent with that Court 
Order, the Service announced in that Federal Register notice that all 
exotic birds in listed Appendix III of The Convention on International 
Trade in Endangered Species (CITES) are covered by the automatic import 
moratorium of the WBCA, regardless of their country of origin.

EFFECTIVE DATE: This final rule is effective on the December 2, 1994.

FOR FURTHER INFORMATION CONTACT: Dr. Susan S. Lieberman, U. S. Fish and 
Wildlife Service, Office of Management Authority, 4401 N. Fairfax 
Drive, Room 420C, Arlington, VA 22203, telephone (703) 358-2093.

SUPPLEMENTARY INFORMATION: This rule amends 50 CFR 15.11 (b) and (c)--
Prohibitions, of the final rule published in the Federal Register, 
November 16, 1993 (58 FR 60524).
    In the final rule of November 16, 1993, the Service interpreted 
that Appendix III species are considered CITES-listed species for the 
purposes of these regulations only if they originate in the country 
that listed them in Appendix III. The Service noted that the listing of 
a species in Appendix III is a unilateral action by a particular CITES 
Party, thereby requiring CITES permits and implementation of CITES 
permit issuance requirements for that country only; when the species is 
found in countries that did not list it in Appendix III, only a 
certificate of origin is required, stating that it did not originate in 
the country that listed the species in Appendix III. Therefore, when 
the species is found in countries other than where listed in Appendix 
III, it is not subject to the same level of CITES controls, and indeed 
is only listed in the Appendices to assist the listing state in 
implementing its domestic legislation. Based on its understanding of 
the intent of Congress, the Service implemented a final rule whereby 
Appendix III species were subject to the automatic import prohibitions 
of the law, only if they originated in the listing country. Otherwise, 
they would be subject to the discretionary prohibitions of the law.
    The Humane Society of the United States and Defenders of Wildlife 
brought a civil action against the Secretary of the Interior in the 
United States District Court for the District of Columbia challenging 
that part of 50 CFR 15.11 which restricts the importation of certain 
Appendix III exotic birds (Humane Society of the United States v. 
Babbitt, Civ. No. 94-0296, D.D.C., March 29, 1994). A hearing in the 
District Court took place on March 7, 1994. Plaintiffs argued that this 
provision, which was adopted through notice and comment procedures, 
violates the language of the Wild Bird Conservation Act of 1992. They 
sought relief to suspend or invalidate the following exception, 
contained in the final rule, to the prohibition on importation of birds 
listed in the Convention's appendices: ``This paragraph (b) does not 
apply to an exotic bird species listed in Appendix III to the 
Convention that originated in a country that has not listed the species 
in Appendix III'' (50 CFR 15.11 (b) (2)). Plaintiffs argued that this 
provision violates the plain language of the Act, which bars the 
importation of ``any'' species listed in ``any'' appendix to the 
Convention.
    On March 29, 1994, U.S. District Judge Louis F. Oberdorfer found 
the contested regulation to be invalid. [This Court Order was discussed 
in a Notice in the Federal Register published on May 24, 1994.] 
Therefore, the Service hereby amends 50 CFR 15.11 (b) and (c) to comply 
with the Court Order. The Service mandates that all bird species listed 
in CITES Appendix III (in addition to those in Appendices I or II), 
wherever found, cannot be imported into the U.S. unless they are either 
accompanied by an import permit issued pursuant to Subpart C of 50 CFR 
Part 15, or they are included in an approved list. On March 17, 1994, 
the Service published in the Federal Register (59 FR 12784) a proposed 
rule that would establish those approved lists. This final rule is a 
result of the Court Order discussed in the Notice published in the 
Federal Register on May 24, 1994, and is adopted through public notice 
and comment procedures. Therefore, in accordance with 5 U.S.C. 
553(d)(3), the Service has determined that good cause, as reflected by 
the final Court Order, exists so that this final rule will be made 
effective upon publication in the Federal Register. The Service 
received a total of three comments on the proposed rule preceding this 
final rule that was published in the Federal Register on June 3, 1994 
(59 FR 28826). One commenter endorsed the proposed ruling. One 
commenter supported the original interpretation by the Service in the 
WBCA of birds listed in CITES Appendix III, and inquired as to why the 
Service did not appeal the decision rendered in the Court Order. The 
decision not to appeal was made by the Service, the Solicitor's Office, 
and the Justice Department after careful deliberation over the legal, 
policy, and budgetary implications of continued litigation. The 
remaining commenter addressed concerns that though valid, were not 
pertinent to the contents of the proposed rule.

Effects of the Rule

    The Service has determined that this final rule is categorically 
excluded under Departmental procedures in complying with the National 
Environmental Policy Act (NEPA). See DOI Departmental Manual, 516 DM 2, 
Appendix 1, 1.10. The regulations are procedural in nature, and the 
environmental effects are judged to be minimal, speculative, and do not 
lend themselves to meaningful analysis. The permits and other 
administrative actions authorized under the WBCA and regulations will 
be subject to future NEPA documentation requirements, on a case-by-case 
basis.

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

    This final rule was not subject to Office of Management and Budget 
review under Executive Order 12866. This action would not be expected 
to have significant taking implications for U.S. citizens, as per 
Executive Order 12630. Any effects on small entities (importers, 
shippers, etc.) would likely be minor, and would in any event be the 
mandatory result of the district court ruling. Future final rulemaking 
will establish procedures for listing of species approved for import, 
which may reduce any effects on small entities. No reporting 
requirements would be added to existing regulations. Therefore, this 
revision would not have a significant economic effect on a substantial 
number of small entities as described by the Regulatory Flexibility 
Act. Since this final rule applies to importation of live exotic birds 
into the United States, it does not contain any Federalism impacts as 
described in Executive Order 12612. The Department has certified that 
this rule meets the applicable standards provided in Sections 2(a) and 
2(b)(2) of Executive Order 12778.

Paperwork Reduction Act

    No new information collection requirement(s) are contained in this 
final rule for which OMB approval under 44 U.S.C. 3501 is necessary.

Author

    The author of this final rule is Mark Phillips, Office of 
Management Authority, U.S. Fish and Wildlife Service, Arlington, VA 
22202 (703/358-2104, ext. 5450)

List of Subjects in 50 CFR Part 15

    Imports, Reporting and recordkeeping requirements, Transportation, 
Wildlife.

Regulation Promulgation

    Accordingly, Part 15 of Chapter I of title 50 of the Code of 
Federal Regulations is amended as follows:

PART 15--[AMENDED]

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

    Authority: 16 U.S.C. 4901-4916.

    2. Section 15.11 of Subpart B is amended by revising Sec. 15.11 (b) 
and (c) to read as follows:


Sec. 15.11  Prohibitions.

* * * * *
    (b) It is unlawful to import into the United States any exotic bird 
species listed in the Appendices to the Convention that is not included 
in the approved list of species, pursuant to subpart D of this part, 
except that this paragraph (b) does not apply to any exotic bird that 
was bred in a foreign breeding facility listed as qualifying pursuant 
to subpart E of this part.
    (c) It is unlawful to import into the United States any exotic bird 
species not listed in the Appendices to the Convention that is listed 
in the prohibited species list, pursuant to subpart F of this part.
* * * * *
    Dated: November 21, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-29674 Filed 12-1-94; 8:45 am]
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