[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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