[Federal Register Volume 63, Number 166 (Thursday, August 27, 1998)]
[Notices]
[Pages 45839-45854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23074]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Policy on Giant Panda Permits
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of policy on the issuance of permits for giant panda
imports.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces a
policy on the issuance of permits for the import of live giant pandas
to clarify what information the Service considers in making the permit
findings under the Convention on International Trade in Endangered
Species and the U.S. Endangered Species Act and to assist persons in
filing a complete application. The policy is intended to complement,
and not replace, the current permit procedures and issuance criteria in
the regulations. The goal of this policy is that all imports directly
benefit panda conservation through a coordinated effort that supports
China's National Plan, National Survey, or Captive Breeding Plan. Based
on current information on the status of pandas and their habitat, the
policy emphasizes research and captive-breeding activities needed to
ensure the captive population becomes self-sustaining and to recover
panda populations in the wild. Thus, all monies used in a loan
agreement or raised as a result of a panda import should fund giant
panda conservation efforts, with a significant portion being used for
priority in-situ conservation projects in China. Display of a panda
would be allowed as an ancillary component that would not interfere
with the research or captive-breeding activities. It is unlikely that
the Service would be able to make the necessary findings to issue a
permit to import animals removed from the wild after December 31, 1996.
The policy also addresses the transfer of live pandas within the United
States and the import or export of tissue samples. The policy
supersedes previous policy. The suspension of the review and processing
of permit applications to import live giant pandas is now lifted.
DATES: This policy is effective August 27, 1998 and will remain in
effect until modified or terminated.
ADDRESSES: Questions regarding this policy should be addressed to the
Chief, Office of Management Authority, U.S. Fish and Wildlife Service,
1849 C Street, N.W., Mailstop ARLSQ-700, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Teiko Saito, Chief, Office of
Management Authority, telephone (703) 358-2093 or fax (703)-358-2280,
(see ADDRESSES section).
SUPPLEMENTARY INFORMATION:
Acronyms Used in This Notice
AZA American Zoo and Aquarium Association
CBSG Conservation Breeding Specialist Group (a program of the IUCN)
CITES Convention on International Trade in Endangered Species of Wild
Fauna and Flora
ESA U.S. Endangered Species Act
IUCN World Conservation Union
MOC Ministry of Construction (China)
MOF Ministry of Forestry (China)
SSP Species Survival Program (a program of the AZA)
WWF World Wildlife Fund for Nature
Background
The survival and ultimate recovery of the population of the giant
panda (Ailuropoda melanoleuca) in its ecosystem is the strong desire of
the United States, the People's Republic of China (China), and the
international conservation community. As such, the panda is subject to
strict protection by its listing as an endangered species under the ESA
and its inclusion in Appendix I of CITES. The Service is responsible
for regulating pandas by deciding whether to grant permits to allow
their movement into and within the United States. In making these
decisions the Service, under the ESA, must determine whether the
proposed activities are not likely to jeopardize the continued
existence of the giant panda and would be for scientific research that
promotes the conservation of the species or enhancement of propagation
or survival, and under CITES, would be for purposes that are not
detrimental to the survival of the species and that are not primarily
commercial.
In the late 1980's, the proposals for temporary exhibition (short-
term) loans of giant pandas became an increasingly controversial issue.
During one period in 1988, the Service received reports that as many as
30 institutions may have been negotiating, or planning to negotiate,
with various entities in China to arrange panda loans, potentially
posing additional threats to the wild and captive populations of
pandas. As a result the Service, through the public review process,
published a policy on March 14, 1991 (56 FR 10809), for the issuance of
import permits for short-term exhibition loans. In 1992, after the
Service had issued a permit to the Columbus Zoo to import a pair of
giant pandas for a short-term exhibition loan, the CITES Secretariat
requested the Service to re-evaluate its policy on panda imports. The
Service published a notice in the Federal Register on June 29, 1992 (57
FR 28825), requesting public comment on the existing policy.
Before re-evaluation of the existing policy on short-term
exhibition loans was completed, the Service received an application
from the Zoological Society of San Diego (San Diego Zoo) to import a
pair of giant pandas for a long term, captive-breeding loan. On April
20, 1993, the AZA announced the development of a Giant Panda
Conservation Action Plan, which has since been formalized. The plan
outlines a captive-breeding program with support from 29 zoological
institutions in North America. In addition, in July 1993, China's MOC
(the agency generally responsible for China's ex-situ panda
conservation) published the second giant panda studbook, listing all
pandas then in captivity.
With the possibility of receiving an increasing number of import
permit applications for giant pandas for public exhibition, scientific
research, and/or captive-breeding purposes, the Service felt that a re-
examination of the long-range implications of panda imports was
necessary to ensure that such imports best serve the conservation needs
of the species. Thus, on December 20, 1993, the Service announced in a
news release the temporary suspension of the processing of any new
permit applications for the import of live giant pandas during a
reassessment of the policy. On May 4, 1994, the Service requested
public comments and announced a working public meeting to assist the
Service in formulating the draft revised policy (59 FR 23077). Public
meetings were held by the Service on May 26 and August 23, 1994. The
Service published the proposed policy for comment on March 30, 1995 (60
FR 16487). See that notice for a summary of the comments previously
[[Page 45840]]
received. The comment period on the new proposed policy was
subsequently extended for an additional 60 days in 1995 and reopened
for 150 days in 1997 to receive new information relevant to the
proposed policy (60 FR 33224, 62 FR 35518, and 62 FR 53017).
The following summarizes new information received during the open
comment periods of the proposed policy and discusses the rationale for
decisions reflected in the final policy.
Population Status
The proposed policy summarized the information on the status of
wild panda populations. The 1985-1988 survey remains the most current
information on the status of wild panda populations. The most commonly
accepted current estimate is that there are fewer than 1,000 pandas
left in the wild. A new Chinese national survey is to commence in 1998.
Status of Captive Breeding in China and the Need for Breeding
Efforts Outside of China
The proposed policy indicated that the captive-breeding program in
China is not currently self-sustaining. While this remains true,
advances have been made. In December 1996, the Chinese Association of
Zoological Gardens, MOC, in collaboration with the CBSG, held a Giant
Panda Captive Management Planning Workshop (MOC/CBSG Workshop) in
Chengdu, China. The objectives of the workshop were to assist local
captive population managers and policy makers to: (1) Formulate
priorities for a practical and scientific management program that fully
utilized all founders in captivity for the purpose of developing a
healthy, growing population of giant pandas in China; (2) formulate a
program that has linkage to the wild population, including the possible
reintroduction of individuals, if needed; (3) eliminate the need to
take more giant pandas from the wild; (4) develop a risk analysis and
simulation population model for the captive population that can be used
to guide and evaluate management and research activities; (5) identify
useful technology transfer and training, including evaluating all
adult, reproductive-age giant pandas in Chinese institutions; and (6)
identify and recruit potential international collaborators, when
needed, to enhance action. A final report was published that outlines
recommendations in order to meet these goals.
Reintroduction
The proposed policy noted that reintroduction is a long-term goal
that needs to be incorporated into coordinated international
conservation efforts. The Service still understands that reintroduction
is a stated long-term goal and sees value in discussing this issue as
long as it does not overshadow efforts to protect panda habitat.
In September 1997, WWF and China's MOF (the ministry generally
responsible for in-situ panda conservation) held a workshop on
reintroduction. Several action steps were recommended: (1) Implement a
national survey; (2) conduct further research aimed at improving birth
and neonatal survival rates in the captive population; (3) continue to
urge the government of China to completely implement the China National
Plan for Panda Conservation (National Plan); (4) promote long-term
national and international cooperation in raising funds; and (5)
initiate an experimental program with pandas in the captive population
designed to provide additional information on conducting successful
releases.
Giant Panda Conservation Plans
The proposed policy outlined the status of the National Plan and
AZA's Giant Panda Conservation Action Plan, and focused on funding of
in-situ projects from the National Plan to ensure conservation of
pandas in the wild. While the primary goal of the policy continues to
be conservation of pandas in the wild, the policy has been broadened to
include all of China's giant panda conservation efforts--the National
Plan, National Survey, and Captive Breeding Plan (as updated by the
MOC/CBSG Workshop report). The Service recognizes that although the
National Plan and National Survey are the primary plans identifying
high priority in-situ projects, the Captive Breeding Plan may have in-
situ projects (e.g., surveys or reintroduction efforts). The Service
also recognizes that although the Captive Breeding Plan is the primary
plan identifying high priority ex-situ conservation projects, the
National Plan may have ex-situ projects.
In September 1997, the Chinese hosted the International Symposium
on Environmental Protection and City Development of the 21st Century in
which panda conservation was a key topic. This symposium is a further
example of the willingness of the Chinese to collaborate and cooperate
on an international scale to further the conservation of pandas.
Purposes
The purposes of the ESA are to provide a means by which the
ecosystems upon which endangered and threatened species depend may be
conserved, to provide a program for the conservation of such species,
and to take such steps as may be appropriate to achieve the purposes of
certain conservation treaties and conventions. The purpose of CITES is
to protect animals and plants to ensure that commercial demand does not
threaten their survival in the wild by regulating trade in listed
species. This policy is derived from these purposes. The proposed
policy required that any import should be part of a coordinated
international panda effort. While this should be a long term goal, it
may not be possible to have all institutions worldwide holding pandas
to be part of an international panda conservation effort. Therefore,
the final policy clarifies that any U.S. institution wishing to import
pandas should participate in a coordinated international conservation
effort as much as possible and coordinate efforts in the context of
China's National Plan, National Survey, or Captive Breeding Plan.
Wild-Taken Pandas
The proposed policy set out that no pandas removed from the wild
after December 31, 1986, be allowed to be imported because of the
potential threat of incentives for removal due to demand for captive
pandas. The Service re-evaluated this determination and based on new
information, changed the date to December 31, 1996. This new date
coincides with the date of the MOC/CBSG Workshop where it was
determined that no additional wild-caught pandas were needed to sustain
the captive population. Concerns over take from the wild have decreased
based on information from the giant panda studbook which shows only a
few pandas have been removed from the wild in the past several years
and on previous information from China on rescue guidelines. Changing
the date will allow imports of genetically important wild-caught pandas
that are already in captivity but have not bred. One aim of the AZA
Giant Panda SSP is to focus their expertise on investigating why these
pandas are not breeding. Known breeders would most likely remain in
China as part of the breeding program. See further discussion of this
topic in the Summary of Comments.
Age and Other Parameters of Animals Available for Importation
The proposed policy provided that no post-breeding age pandas
(i.e., 20 years and older) would be considered for
[[Page 45841]]
import because it was felt that the risks from transport were
unacceptable. In the final policy the Service will use age as a factor
in determining issuance of a permit as it relates to the proposed
purpose of import. However, no upper age limit is set since the Service
has no scientific information to show that it would be very risky to
ship older pandas, but infirm animals will not be allowed to be
imported if transport will compromise the health of the panda.
Length of Loans
In the proposed policy, the length of giant panda loans was to be
determined by the purpose(s) of the loan and the length of time
necessary to accomplish the goals of the import. This has not been
changed in the final policy. The Service believes that internationally
coordinated giant panda conservation efforts could incorporate various
types of import, exchange, or loan arrangements requiring varying
lengths of time.
Enhancement and Conservation Benefits of Specific Projects
The Service proposed that the majority of net profits (80 percent)
should be used to fund in-situ conservation projects in China's
National Plan. The Service continues to believe that in-situ
conservation is critical to the recovery of giant pandas in China, but
recognizes the need to ensure to the extent possible that the captive-
breeding program in China is self-sustaining. Additionally, funding of
captive breeding and research can potentially contribute toward
conservation of pandas in the wild, particularly now that China has a
scientifically based captive-breeding/research plan. Thus, the policy
now states that a significant portion of all funds associated with the
loan, not just net profits, should be used to fund in-situ conservation
projects, instead of designating a specific percentage. This retains
the appropriate emphasis on in-situ conservation, but allows more funds
to support ex-situ projects as primarily outlined in the Captive
Breeding Plan. The proposed policy also outlined a regime to identify
and track project implementation. This has been retained, but project
selection may now be expanded beyond the National Plan to include the
National Survey and Captive Breeding Plan.
The Service continues to emphasize the need to relate giant panda
imports to the conservation and enhancement of the species in the wild,
especially through funding of in-situ projects. Presumably, most of the
imports will be from China but funding associated with imports of
pandas from other countries will also need to be linked to in-situ
conservation projects, although more flexibility will be allowed for
these imports. It is expected that most imports would be for multiple
purposes and funds (loan money and/or net profits) would be generated.
The allocation of funds to panda conservation satisfies part of the
conservation and enhancement findings required by an import under the
ESA. If no funds are associated with the import or transfer of live
pandas, the proposed activities must significantly contribute to panda
conservation in the wild. On the other hand, if funds are involved,
then a significant portion of all funds, including net profits received
by an applicant during a loan period, regardless of the source of the
panda, should be used for conservation projects.
Scientific Research
The Service proposed that imports for scientific research must
contribute to the conservation of pandas in the wild and in captivity.
The final policy has added some flexibility in that the research can be
more focused on contributions for captive animals if the import is for
dual purposes (scientific research and enhancement of the propagation
and survival of the species under the ESA).
There needs to be continual coordinated efforts to set priorities
for panda research. China's National Plan provides the following
research priorities: (1) Habitat improvement; (2) captive breeding; (3)
ecology, population status, and monitoring; (4) rearing and nutrition;
(5) prevention of illness; and (6) reintroduction of captive pandas to
the wild. The ``Giant Panda Breeding Plan'' developed in China lists
the following areas that need basic research: (1) artificial
insemination biology and techniques; (2) breeding behavior; (3) disease
prevention; (4) reproductive physiology; (5) diet; (6) mating ability;
(7) reproductive longevity; and (8) fertility. These priorities for the
captive population are further clarified in the report from the MOC/
CBSG Workshop. Because of the precarious level of the panda population,
it is important that research findings are shared quickly and
methodologies are transferred to China for use in the field and in the
captive-breeding program.
The ESA regulations [50 CFR 17.22(a)(1)(vii)] provide that an
applicant must give a full statement of the reasons the applicant is
justified in obtaining a permit for scientific purposes, including
details of the activities. The final policy continues to outline that
the applicant must provide a research proposal that demonstrates that
the research is properly designed and can be accomplished with the
available expertise and resources. The Service will not categorize or
identify acceptable kinds of research, but will retain the option of
evaluating the validity and/or current need of the proposal based on
priorities included in China's National Plan, National Survey, or
Captive Breeding Plan, or any subsequent modification of these plans.
If the panda(s) would also be on exhibition, the applicant should have
a monitoring plan to ensure that the display does not interfere with
the research or bias the data. Thus, under the proposed policy the
applicant needed to have adequate facilities separate and apart from
the public exhibition areas in case it is found that exhibition
interfered with the research. This same guidance was included in the
Captive Breeding section. Through the comments, it was evident that the
wording was interpreted to mean applicants needed facilities totally
separated from the exhibit. The final policy clarifies that the intent
is for an applicant to have off-exhibit facilities of sufficient size
to house pandas on a long term basis, if necessary, to conduct research
or breeding, but not necessarily be physically separated.
Captive Breeding
The ESA regulations [50 CFR 17.22(a)(1)(viii)] provide that an
applicant demonstrate a willingness to participate in a cooperative
breeding program and maintain or contribute data to a studbook. The
current issuance criteria require the Service to find the proposed
activity will not directly or indirectly conflict with any known
program intended to enhance survival probabilities of the population.
Thus, the proposed policy emphasized that institutions that import
pandas for captive breeding should participate actively in a
coordinated international panda conservation effort and needed to
supplement the breeding program in China. The final policy continues to
require that imports for captive breeding supplement China's breeding
program but ties such participation to the MOC/CBSG Workshop report. In
addition, to assist in wild panda recovery and development of a self-
sustaining captive population, captive-breeding activities should have
a research component.
The continued decline of the wild population of giant pandas and
the increasing fragmentation of its habitat may make it increasingly
important to establish a self-sustaining captive
[[Page 45842]]
population. The current captive population represents about 10 percent
of the total panda population, captive and wild. As of December 1996,
there were 124 giant pandas in captivity in 38 institutions: 104
animals were in institutions in China and 20 pandas were in 9
institutions located outside of China. In China, five institutions had
73 animals and were responsible for nearly all the breeding success.
Seventeen institutions held single animals. The Chinese recognize that
these captive pandas need to be moved for better breeding opportunities
and to ensure that all mature individuals participate in breeding. Of
the 20 pandas currently held in 9 institutions outside China, 3
institutions hold only 1 panda. These data demonstrate the great need
to coordinate the movement of captive-held pandas internationally.
The captive-breeding program in China is not currently self-
sustaining. Between 1936 and 1988, 345 pandas held in captivity
produced 67 litters of 106 cubs, with only 32 surviving more than a
year. In recent years, improvement in management and joint efforts
within China enhanced breeding and survival rates and reduced the
infant mortality rate of the captive population. However, a review of
the International Studbook of the Giant Panda suggests that the current
number of founders contributing to the captive population is
inadequate. According to the studbook, the current captive population
is descended from 32 founders. However, recent research suggests that
fewer than 32 founders may exist because the paternity of some of the
captive-born pandas is uncertain. Ongoing research should solve this
question. The current captive population includes 48 wild-caught pandas
that have not reproduced, but only 32 of these are currently of
reproductive age. If these pandas can be encouraged to breed, the
captive population will not need additional genetic material from the
wild population to become self-sustaining. This is supported by
information from the 1996 MOC/CBSG Workshop.
Permittees who import pandas for captive breeding should actively
coordinate with all panda holders as much as possible and must
participate in the AZA's Giant Panda SSP or a similar plan approved by
the Service. Imports of pandas for the sole purpose of producing more
pandas would not likely satisfy the required finding of enhancement
under the ESA. Since it is expected most of the pandas to be imported
into the United States for breeding would have a history of not
reproducing, it is anticipated that there will be a research component
to any captive-breeding activities.
Exhibition
The policy proposed two alternatives for exhibition: (1) Exhibition
solely as an ancillary component, and (2) short-term exhibition. The
final policy reflects Alternative 1. Therefore, applications for import
of pandas solely for exhibition purposes would not be approved as a
general matter. This is consistent with the AZA moratorium on short-
term panda loans. Educational display (exhibition) would be allowed as
an ancillary component of a scientific research or research/captive-
breeding program, when the display will not interfere with the research
or captive-breeding activities. Even temporary loans of pandas solely
for display to another institution during the non-breeding season would
likely not be allowed, as this could be disruptive to behavioral
interactions, endocrine monitoring, and research designed to maximize
breeding success.
With advances in coordinated conservation efforts for the giant
panda, if institutions in the United States are exhibiting captive
pandas, the Service believes that the institutions should focus their
energy on activities that best ensure the recovery of wild pandas. The
Service recognizes that the use of any of these animals for short-term
exhibition could detract from the overall captive conservation efforts
by stimulating institutions to use resources for short-term exhibition,
rather than committing resources to needed captive breeding or
research. Furthermore, the use of breeding age pandas for short-term
exhibition loans could increase the stress and reduce acclimation of
pandas to breeding surroundings while minimizing the opportunities for
important research and captive-breeding activities. Thus, the Service,
as a matter of policy, discourages the issuance of permits for the
import of pandas for solely exhibition purposes (even though such
exhibits might raise substantial funds to go back to China). Every
panda import must have intrinsic conservation benefits in its own
right, in addition to financial contributions to China.
Primarily Commercial
Under CITES, Appendix-I species, such as giant pandas, cannot be
imported for primarily commercial purposes. Therefore, an applicant for
a giant panda import permit must provide sufficient information to the
Service to consider in making a finding that the import is not for
primarily commercial purposes [(50 CFR 23.15(d)(7)]. Thus, the language
on internal accounting systems was clarified in the final policy and
monitoring visitation was added as a way to provide additional
information needed to calculate net profits. No other major changes
were made in the final policy in this section.
Suitability of Facilities
Under the CITES regulations, the recipient of a giant panda is
required to have suitable housing and equipment to care for the
panda(s) [50 CFR 23.15(d)(6)] and under the ESA regulations at 50 CFR
17.22(a)(2)(vi), the facilities and resources must be adequate to
successfully accomplish the objectives stated in the permit
application. Applicants for a giant panda permit must submit sufficient
information to show that they meet these requirements. The proposed
policy enabled applicants to provide copies of existing protocols for
monitoring health and behavior recommended by a coordinated
international panda conservation effort. The final policy allows
applicants to submit protocols recommended by a coordinated panda
conservation effort, such as the AZA Giant Panda SSP, since there is no
one true organized international panda conservation effort at this
time. Additionally, the requirement to note any roads adjacent to panda
facilities was dropped since there is no evidence that shows activity
or noise from adjacent roads negatively affects panda behavior.
Transfers of Pandas to Other Entities Within the United States
The policy clarifies that persons intending to transfer live pandas
in the United States will need to meet the provisions of the policy,
either by obtaining an interstate commerce permit or prior approval of
the Service as conditioned by the import permit.
Summary of Comments and Responses
Comments on the proposed policy were received during four comment
periods (March to May 1995, June to July 1995, July to September 1997,
and September to November 1997) and were considered in formulating this
final policy. The following summarizes those comments organized by
elements in this policy. The Service received 205 comments (letters,
form letters, and form post cards) from 4 zoological institutions, 5
conservation groups, 7 animal interest groups, 3 business or trade
organizations, 1 State agency, 7 foreign governmental agencies, and 178
individuals. The Service has reviewed all of these written comments.
Comments or information updating the data presented in the
Supplementary
[[Page 45843]]
Information section are incorporated into that section of this final
notice.
Purposes
Issue: Several commenters suggested that there was no single
coordinated international panda conservation effort and that there
should be flexibility and discretion to pursue the primary goal of
survival of the species.
Response: The Service agrees that it may not be possible to have
all institutions worldwide that have pandas be part of one
international panda conservation effort. However, this should be a long
term goal and any U.S. institution wishing to import giant pandas
should participate in a coordinated panda conservation effort as much
as possible and should work closely with the Chinese government to
ensure their efforts are based on recommendations of China's National
Plan, National Survey, or the Captive Breeding Plan. The language has
been changed appropriately.
Issue: One commenter stated that the Service should withdraw the
proposed policy, abandon efforts to set any specific policy for imports
of giant pandas, immediately lift the moratorium on panda imports, and
evaluate imports on a case-by-case basis.
Response: The Service disagrees since pandas are critically
endangered and engender much public interest. The purpose of the policy
is to openly and clearly outline how applicants who wish to import
giant pandas can meet the criteria of CITES and the ESA. This policy
will be applied to each application for import on a case-by-case basis
and will provide clear guidance for consistent evaluation so pandas in
the wild will benefit.
Issue: One commenter thought the ban on importing giant pandas
should remain in place so that maximum conservation resources for
saving these animals could be focused on saving them in their natural
habitat. Other commenters stated that no giant pandas should be held in
a zoo.
Response: The Service agrees that conservation efforts should be
primarily focused on saving pandas in the wild. However, pandas that
are already in captivity can serve a role in conservation of pandas in
the wild. Captive pandas offer opportunities to conduct needed research
and can help to educate people worldwide on the plight of pandas. Money
generated from importing and exhibiting captive pandas can be used to
fund in-situ panda projects. While in the past, the motivation for
removing pandas from the wild was questionable, it is clear from the
December 1996 studbook, that very few pandas have been removed from the
wild in the past several years and the Captive Breeding Plan states
that no additional wild-caught pandas are needed to sustain the captive
population. The Service does not believe that importing captive pandas
into the United States at this time under the final policy will lead to
further removal from the wild. However, the Service will consider this
when evaluating specific applications and not allow the import of
pandas removed from the wild, except in exceptional circumstances. The
Service would be remiss if it did not allow activities with captive
pandas to occur, within the criteria of CITES and the ESA, that can be
shown to benefit pandas in the wild.
Wild-Taken Pandas
Issue: Several commenters did not believe the proposed use of
December 31, 1986, as the cut-off date to be justified in light of
current information on the limited removal of pandas from the wild and
the under-represented founder stock of the captive population. Another
commenter stated that they believed that the studbook data was
incorrect and that the MOF was actually ``rescuing'' more pandas than
was reflected in the studbook.
Response: The Service agrees that caution should be used when
considering imports of wild-caught pandas into the United States so
loans will not stimulate further wild take. However, a number of the
wild-caught pandas already in captivity have not bred and are very
important genetic founders, as determined in the MOC/CBSG Workshop. The
AZA Giant Panda SSP recognizes this as an area where U.S. zoos can use
their specialized expertise. The Service agrees that this would be an
appropriate issue for U.S. zoos to become involved in since pandas that
are known breeders would most likely remain in China as part of the
breeding program. Non-breeding pandas could potentially be exported to
the United States to research why they were not breeding. Additionally,
the MOC/CBSG Workshop report noted that no additional wild-caught
pandas were needed to sustain the captive population based on the
assumption that more captive pandas will become successful breeders.
The Service changed the date to December 31, 1996, to coincide with the
MOC/CBSG Workshop date based on information from the workshop,
including the updated studbook showing few recent wild-caught pandas
being added to the captive population, and on the previous information
from China on rescue guidelines. At this time, the Service has no
evidence that the studbook information is incorrect. Should information
become available through genetic research to show that more wild-caught
animals have been added to the captive population in recent years, the
Service will consider revising this section of the policy. Since each
import of a panda will be evaluated on a case-by-case basis, the
Service still reserves the right to deny the import of a wild-caught
animal, regardless of when it was removed from the wild, if the Service
determines that the removal from the wild may have been detrimental to
the species. It is unlikely that the Service would be able to make the
necessary finding to issue a permit to import any pandas ``rescued''
from the wild after December 31, 1996, since it was concluded that
these pandas are not needed for captive population maintenance.
Recently ``rescued'' pandas should remain in China to either be
returned to the wild or used in their captive-breeding program.
Age and Other Parameters of Animals Available for Loans
Issue: Several commenters agreed with the Service's proposal that
post-breeding age pandas not be considered for import due to risks
associated with transport. Several other commenters disagreed,
indicating there is no data to support the proposal.
Response: The Service agrees there is a lack of data on the risk of
transporting pandas over the age of 20, and therefore did not set an
upper age limit for pandas to be imported into the United States.
Additionally, since current research is not focused on aging in pandas,
this may be one area that U.S. institutions may want to conduct
research. The Service feels it should not eliminate the possibility of
doing this type of research in the United States. The Service will,
however, consider age as a factor in determining issuance of a permit
as it relates to the proposed purpose of import on a case-by-case
basis. Regardless of age, the Service agrees that, except in an
emergency situation where there is no reasonable alternative medical
care available, infirm animals should not be imported unless the
medical condition has improved to the point that transport will not
further compromise the health of the panda nor interfere with the
purpose of the import.
Length of Loans
Issue: Several commenters were opposed to short-term loans, in
particular for exhibition purposes. Another commenter felt length of
loans should be a function of permit purposes and flexibility should be
allowed in
[[Page 45844]]
order to accomplish the proposed activities in a reasonable period of
time.
Response: The Service feels the language in the proposed policy
allows flexibility but appropriately ties the length of the loan to the
proposed purpose of the import. Thus, the language in this section has
not been revised.
Enhancement and Conservation Benefits of Specific Projects
Issue: The MOC pointed out that China does not have one national
program for the conservation of the panda but both their agency and MOF
have panda conservation programs.
Response: The Service has clarified the language in this notice.
Issue: The Service received a number of comments on the proposed
distribution of net profits ranging from agreement with the proposed
policy to suggestions on different ways to divide the net profits,
including not designating a ratio. One commenter thought the policy
should not require all net profits be used for panda conservation only.
Another thought China should decide how funds are used.
Response: The Service agrees there should be some flexibility in
how net revenues are used for panda conservation but also strongly
believes that in-situ conservation should remain the central focus to
panda recovery. The Service has changed the policy to read that a
significant portion (rather than 80 percent) of all revenue related to
the holding of the pandas, not just net profits, should go to in-situ
panda conservation. Because there appeared to be some confusion in the
comments regarding the source of funds so allocated, the Service has
also changed the language in the policy to clarify this issue. To make
the required findings under the ESA and CITES, and work toward the
recovery of the giant panda, the Service believes that all panda funds
should be used for panda conservation. The Chinese government and the
applicant select the projects to be funded in the loan agreement. The
policy clarifies that the Service will consider whether these are
priority projects in panda plans developed by the Chinese.
Issue: One commenter stated that it was unreasonable to assume that
any movement of giant pandas generates funds and this part of the
policy concerning non-Chinese pandas be omitted. Several commenters
suggested that the criterion of ownership for allocation of funds be
dropped.
Response: The Service does not agree that it is unreasonable to
assume that any movement of pandas generates funds. The Service would
agree that putting pandas on exhibit may not result in an increase in
profit per se, but there have not been any imports which demonstrate
this. However, there are many examples showing that pandas on exhibit
generate revenue. Since the Service is changing the policy language for
pandas belonging to China to be more flexible, there would be little
difference in the distribution of revenue for the display of pandas
from China and for display of pandas from non-Chinese institutions.
Because of this, the Service has decided to eliminate the distinction
between pandas owned by China and pandas belonging to other entities.
The final policy states that a significant portion of all revenues for
any panda import should be used for in-situ conservation of pandas in
the wild with the remainder being used for either in-situ or ex-situ
panda conservation projects.
Issue: One commenter suggested that the Service clarify the
relationship between the Enhancement section and the Primarily
Commercial section by combining the sections or sequencing them to more
clearly acknowledge the ties between the two sections.
Response: The Service agrees and revised the policy language to
better explain these relationships. In order to validate the CITES
finding that the import is not for primarily commercial purposes, the
policy outlines that any net profit, over the time of holding the
animal(s), should be used to fund panda conservation projects in China.
In addition, the use of net profits and loan agreement monies to fund
conservation projects is part of the findings under the ESA, which
requires that the import benefit the conservation of the species in the
wild. The Service believes that to reach conservation and enhancement
of pandas in the wild, all funds generated by pandas should be used for
pandas and not directly for other species. The Service also continues
to believe that permittees need to track net profits and project status
to ensure the integrity of the original findings.
Issue: Commenters both supported and opposed the proposed policy
requirement to monitor progress of projects funded for panda
conservation in China.
Response: The Service believes the use of funds in meaningful panda
conservation activities in China is a key means to help reach
conservation and enhancement under the ESA and the ability to verify
that this is being met is crucial. Therefore, the Service did not alter
the requirements in this section of the policy.
Issue: One commenter noted that there are several types of in-situ
conservation projects that should be the highest priorities for support
from panda loan revenue, including the National Survey scheduled to
begin in 1998.
Response: The Service agrees that priority should be given to
funding the National Survey and urges institutions to strongly consider
funding this effort during their negotiations to obtain pandas. The
Service also agrees that it may be useful to utilize panda revenues to
integrate field staff into projects and to support field educational
activities and will consider this when reviewing giant panda import
applications.
Scientific Research
Issue: One commenter stated that scientific research on panda
reproduction should be conducted only in the wild, not in zoos or
artificial study facilities. Other commenters stated that the policy
should recognize the expertise and capability outside of China that can
be used to assist the international effort.
Response: The Service believes there are studies which can be
conducted on captive animals that would provide information useful in
studying or managing wild panda populations. Captive pandas should be
utilized to the greatest extent possible to benefit the wild
populations. Scientific research both in China and the United States is
one area where this can happen.
Issue: Two commenters thought the proposed policy was too intrusive
and burdensome. The requirements exceed the Service's goal of ensuring
that applicants are engaging in valid and needed research and could
cause delays or limit research. Two commenters supported the Service's
detailed requirements.
Response: The Service believes an applicant must clearly show that
the scientific research is bona fide and will contribute to the
conservation of the panda, particularly in the wild. This information
is similar to information researchers routinely submit to receive other
research grant funds and is information that a scientist needs to
conduct a valid investigation. The Service needs to be informed of
major procedural changes in the research since the granting of an
import permit for scientific research is based on a particular research
proposal. Radical changes in a scientific investigation could be reason
for suspending a permit if the research no longer contributes to panda
conservation. The Service will make every effort to evaluate any
proposed changes in a research program
[[Page 45845]]
in a timely manner so research is not interrupted, but it is also
important for the permittee to alert the Service to changes as soon as
possible.
Issue: One commenter suggested that milk be added to urine, feces,
and synthetic DNA as substances that would not require a permit for
export or import, when collected as outlined in the proposed policy.
Another commenter indicated that until another decision is made by the
Conference of Parties to CITES, the Secretariat considers urine, feces,
and synthetic DNA as covered by CITES.
Response: The Service has not included milk in this short list of
exempted by-products at this time since, for the most part, it cannot
be obtained without manipulating an animal. The Service has written the
Secretariat outlining the U.S. position on urine, feces, and synthetic
DNA and recognizes that some countries may require permits for these
products. That is why the policy recommends that people contact the
foreign CITES Management Authority to meet their requirements.
Issue: One commenter disagreed that facilities to house pandas
needed to be separate and apart from the public exhibition facility as
there is no evidence that exhibition would interfere with research and
it could be extremely costly. Another commenter stated that a recipient
zoo should provide adequate off-exhibit space in which to conduct
research.
Response: In considering the comments, the Service changed the
policy to no longer require housing or research areas totally separate
and apart from the exhibition areas, but the applicant/permittee should
have adequate housing away from public view should the Service
determine that exhibition of the pandas is not compatible with the
research.
Captive Breeding
Issue: One commenter strongly agreed with the need to: (1)
Coordinate the movement of captive-held pandas internationally since
the captive-breeding effort in China is not currently self-sustaining
and (2) enhance captive propagation efforts, with special emphasis on
unrepresented founders, particularly males.
Response: The Service continues to believe that breeding of
captive-held/captive-born pandas needs to be coordinated
internationally. The MOC/CBSG Workshop held in December 1996 in Chengdu
is an excellent step toward this goal.
Issue: One commenter recognized the concerns of the Service about
the role of captive breeding but felt requiring a detailed breeding
protocol was unnecessary and intrusive. Another commenter stated that
since the policy requires all applicants to be members of a coordinated
international effort, the Service should defer to those coordinated
efforts (AZA programs and SSPs) to ensure that an institution has the
necessary facilities and expertise to import a panda.
Response: The Service needs to be assured that any applicant
wishing to import a giant panda for breeding has the necessary
knowledge, expertise and facilities to accomplish their goal. In order
to be more flexible, the Service will accept a statement that the
applicant is following the AZA Giant Panda SSP recommendations for
breeding protocols in lieu of submitting the actual protocol. However,
the Service will still require submission of facility and exhibit
information in the form of photographs, diagrams, and written
description with each application.
Issue: One commenter did not agree that the name, position, and
qualifications of the individual making the decision to take animals
off display must be supplied but thought that this decision should be
made by the institution's animal managers.
Response: The Service agrees that the submission of this
information is not necessary and has removed the language from the
policy.
Exhibition
Issue: A majority of the commenters supported Alternative 1 which
proposed to allow imports for exhibition solely as an ancillary
component. One commenter, while generally supporting this alternative,
also recommended that the Service recognize the role of exhibition in
raising revenues necessary to support conservation efforts.
Response: The Service selected Alternative 1 for the final policy.
Although exhibition typically cannot be the sole purpose of an import,
the Service expects it will be a component of most applications and the
funds raised will be considered when making the enhancement finding
under the ESA.
Primarily Commercial
Issue: One commenter stated that the Service does not have the
authority to propose that all net profits resulting from the import of
a panda for long term captive-breeding loans be used for the
conservation of pandas in the wild; the Service should recognize that
long term breeding loans are inherently not for primarily commercial
purposes and that the intended purpose of the loan, to save the giant
panda, is non-commercial.
Response: The Service has the authority to propose how net profits
should be used, since this is a part of the not for primarily
commercial purposes and conservation/enhancement findings. The Service
does not have enough information at this time to conclude that long
term breeding loans are inherently not commercial. The intent to save
giant pandas does not necessarily mean that an institution would not
also want to generate revenue while contributing to the panda
conservation effort. Historically, the exhibition of pandas has
generated much public interest and short-term loans have generated much
revenue for the institution exhibiting them. There has only been one
long term loan undertaken and it has only been in effect for little
over a year. Until more experience is gained, the Service needs to
review each application for import and receive information, in the form
of accounting for profit, to satisfy itself that the initial finding
that the import was not for primarily commercial purposes remains valid
for long term loans.
Issue: One commenter was concerned about the degree of specificity
applied to allowable expenses and suggested language to clarify
reasonable expenses.
Response: The Service agrees that these recommendations will
provide additional flexibility and has incorporated them into the
policy. The clarifying changes do not affect the Service's ability to
review the data submitted and to ensure that its finding that the
permitted activity is ``not for primarily commercial purposes'' remains
accurate.
Issue: Two commenters felt that to make the not-for-primarily
commercial finding requires an initial determination concerning the
overall purpose as well as a need for ongoing review in order to be
satisfied that those purposes are being met. One commenter added that
the same measures for compliance with CITES have to be met for each and
every applicant.
Response: The Service agrees with this evaluation which is
reflected in the policy.
Issue: Commenters sought clarification of the term ``indirect
revenues.'' One of these commenters suggested that since the proposed
policy used only direct expenses, the final policy should use a similar
approach for calculating revenue. Commenters also stated that the
Service should clarify that the cost of the loan is included in
reasonable expenses. One commenter
[[Page 45846]]
added that the cost of technology transfer programs and education
programs in the United States also be included.
Response: The Service agrees with the above and has changed the
policy.
Issue: Two commenters stated that it will be extremely difficult
for an institution, over long periods of time, to accurately assess the
exact ``net profits'' related to a panda loan.
Response: The Service agrees that it may be difficult to assess
exact net profits over time, but reasonable information is necessary to
continue to assess that the import is not for primarily commercial
purposes.
Issue: One commenter believed that exhibition of pandas for
whatever purpose remains ``primarily commercial'' and thus falls under
the restriction applied to CITES Appendix-I listings.
Response: The Service does not agree that exhibition of pandas
should automatically be determined primarily commercial. It is true
that exhibition of pandas generates revenue, but if no net profits are
generated or if net profits are generated but are used for conservation
of the affected species, the Service can conclude that the import was
not for primarily commercial purposes.
Issue: Several commenters suggested language changes to help
clarify the intent of the section on internal accounting systems.
Response: The Service agrees with these suggestions and has revised
the policy accordingly.
Issue: One commenter felt the proposed policy was too restrictive
in requiring approval from the Service if the permittee changes the
conservation projects to be funded from those presented in their
application; this requirement was unnecessary and appears to intrude in
the internal affairs of a sovereign nation since all conservation
projects are to be high priorities of the China's National Plan.
Response: To make the findings under the ESA and CITES, the Service
needs to consider whether the funds will be used to support priority
conservation projects identified by the Chinese government in the
National Plan, National Survey or Captive Breeding Plan. The Service
sees this as a way to support China's management of pandas. Requiring
permittees to obtain approval from the Service if they change the
conservation projects to be funded ensures that funds are going to
priority projects identified by the Chinese government in these plans.
Issue: One commenter recommended that reports only be required on a
multiple-year basis, such as every five years. Another commenter
recommended that the Service carefully review and monitor financial
reports annually to determine whether the commercial test is actually
being met, and that the policy provide for possible adjustments in
conservation funding commitments based on actual panda-related income.
Response: The Service believes that it is important to review the
information on primarily commercial before too much time elapses and
has retained the requirement for an annual report.
Issue: One commenter was concerned by the level of what they
considered to be micro management; suggested the Service is not
equipped to deal with the internal accounting procedures and annual
reports as proposed in the policy; and thought the use of marketing
data (such as visitors surveys) would be a more productive way to
obtain information on revenue earned due to exhibition of giant pandas.
Response: The Service feels that the collection of this level of
information has been useful in evaluating the current permit held by
the San Diego Zoo. The Service agrees that marketing data such as
visitation monitoring is also important to collect since it allows for
more accurate calculation of how much revenue a facility is generating
because of pandas and has revised the policy.
Issue: One organization stated that the disparate treatment
business corporations are subjected to under the current policy for
``short-term exhibition only'' loans should have no place in a final
policy dealing with long term captive-breeding loans. They added that
it is the intended use of the species, not the tax status of the
applicant, that should be of concern and that the Service should not
impose a higher burden of proof on business corporations to engage in
long term captive-breeding loans under the AZA plan. Another commenter
stressed that the difficulty for commercial entities is inherent in the
treaty language itself; since commercial entities have as a fundamental
purpose the pursuit of profit, assurances will be sought from profit-
making entities just as from non-profit entities that the requirements
of CITES are being met in an ongoing manner.
Response: The Service views ``for-profit'' (business corporations)
institutions as having a more difficult time in satisfying the burden
of proof, since they are founded with the purpose of making a profit
and have additional factors, such as a fiduciary duty to stockholders,
that must be addressed in the finding that an import is not for
primarily commercial purposes. The captive breeding example in
Resolution Conf. 5.10 specifically mentions the need to account for
benefits to stockholders.
Issue: One commenter cited WWF v. Hodel, Civ. No. 88-1276 (D.D.C.
1988) as evidence that the Service acknowledged that CITES does not
require the types of restrictions that the proposed policy applies in
connection with the issue of commercialism. Another commenter stated
that they are also well aware of this case and pointed out that the
position taken by DOI on commercialism was in fact rejected by the
Court in that matter.
Response: In World Wildlife Fund v. Hodel, District Judge Johnson
found that the Service had failed to articulate the reasons supporting
its ``implicit'' finding that the importation of giant pandas by the
Toledo Zoo for short-term exhibition purposes ``was not primarily for
commercial purposes.'' Judge Johnson, after determining that the
additional fee charged by the Toledo Zoo for the public to view the
pandas was ``significant to a consideration of the CITES requirement
that the import was not primarily for commercial purposes'', issued a
preliminary injunction against the Toledo Zoological Gardens to prevent
the collection of such additional fees. While Judge Johnson's ruling
did not prescribe a firm boundary between those activities that are
primarily commercial in nature from those that are not, her ruling did
correctly identify the responsibility of the Service to explain the
basis of its permitting action with particular emphasis on statutory
and treaty-based requirements and criteria. In dealing with complex
permitting questions like those covered by this policy, it is the
Service's goal that decisions be made on the basis of complete
administrative records and fully explained records of decision. This
policy was intended to achieve that goal, especially on the complex
findings and determinations that must be made as a prerequisite to
issuing any import permits for giant pandas.
Suitability of Facilities and Care
Issue: One organization commented that their experience with pandas
has led to the realization that exercise and open space may be much
more important for the well-being of pandas than had previously been
thought. The suitability of facilities and care should be directly
associated with the purposes of the permit.
Response: The Service agrees the suitability of facilities and care
is tied directly with the purposes of the permit.
[[Page 45847]]
In addition, the amount of open space or opportunities for pandas to
exercise will be considered during review of permit applications when
deciding whether permit issuance criteria under CITES and the ESA are
met.
Issue: One commenter did not understand why the Service needs to
know the existence of adjacent roads to the panda facility and urged
this requirement be deleted.
Response: At the time the proposed policy was written, the Service
was concerned about the impact of traffic noises on panda behavior.
Since then, the Service has received information from facilities
holding pandas that pandas are unaffected by routine traffic noises.
Thus, this has been deleted from the policy.
Issue: One commenter suggested that the Service require that the
importer account for the animals' psychological, behavioral, and
physical needs while housed prior to, after, and during transport.
Additionally, a veterinarian with expertise in panda well-being should
be required to travel with any imported animal to ensure direct and
immediate care throughout the trip.
Response: Importers of pandas are required to ship the animals
under humane and healthful conditions and follow the regulations on
providing care, food, and water during transport (50 CFR Part 14,
Subpart J). The Service agrees that it is a good idea for a
veterinarian or other animal care personnel with expertise in panda
care to accompany pandas. In the past, China has required Chinese
caretakers to accompany pandas in transit. Since the Service is not
aware of any problems that have occurred during prior shipments of
pandas, the Service does not believe it is necessary to change the
policy at this time.
Transfer of Pandas to Other Entities Within the United States
Issue: One commenter did not understand the grounds for requiring
an interstate commerce permit to transfer loaned giant pandas to other
entities within the United States.
Response: Under the ESA, the transfer of a giant panda to another
institution across state lines constitutes interstate commerce, and
therefore requires an ESA permit, since it is expected that the
receiving facility gains financially or otherwise by having that animal
at their facility. The Service has a long-standing policy that
legitimate non-commercial breeding loans do not need interstate
commerce permits because they generally do not involve the transfer of
specimens in the pursuit of gain or profit. However, panda loans
present exceptional facts that require the recipient of any panda
transfer to address all the elements of the panda policy and interstate
commerce permits would be required for any interstate transfer since
exhibition of giant pandas generate much public interest and monetary
gain for the exhibiting institution.
Issue: One organization commented that it is burdensome and
decreases the flexibility in a breeding program to require an applicant
to indicate in the import application any intended transfers of the
pandas within the United States at a later time.
Response: The Service agrees that an importer may not be able to
project whether the pandas they wish to import would need to be moved
to another facility at a later date and has deleted the requirement to
anticipate interstate movement prior to import under the policy.
However, the subsequent transfer of a panda will need to meet the
provisions of the policy through an interstate commerce permit or
intrastate transfer authorization from the Service as conditioned under
the import permit. This is to ensure that all transfers meet the
approval of the Chinese government or the entity that owns the animal
and meet the purposes of the original import under CITES and the ESA.
Required Determinations
Issue: One organization stated that Executive Order 12866 requires
any significant regulatory action be reviewed by the Office of
Management and Budget. The Executive Order defines ``significant
regulatory action'' to include those actions which ``* * * raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.''
Section 1(a) of the order states: ``The Regulatory Philosophy. Federal
agencies should promulgate only such regulations as are required by law
* * * or are made necessary by compelling public need, such as material
failures of private markets to protect or improve * * * the environment
* * *'' Based on the definition of ``significant regulatory action''
and Section 1(a), the commenter asserted that the Service's proposed
policy should be subject to OMB review. They further stated that their
comments on the proposed policy question whether the ``primarily
commercial purposes'' standards the Service proposes ``are required''
by law, and whether there is a compelling public need for the policy
based on ``* * * material failures of private markets to protect or
improve * * * the environment * * *'' The commenter believes that the
``private market'' of zoological institutions, and specifically in this
case the AZA, has protected and continues to protect endangered species
like the panda through non-governmental captive-breeding programs.
Response: While the Service believes that this action is a policy
and not a rule, it has followed the Administrative Procedures Act, the
Regulatory Flexibility Act, and Executive Order 12866. The policy sets
out guidance that is intended to assist the decision-makers and staff
within the Service to carefully review applications for panda import
permits, to ensure that all statutory and treaty-based criteria have
been addressed and fully explained in the administrative record, and,
assuming that these goals are met, to thereby enhance the conservation
of the giant panda. The policy does not prescribe new restrictions or
limitations of general application to those who would apply for such
permits, but instead sets out a ``road map'' on how to develop and
submit a complete application in light of the best available scientific
information available to the Service at this time. No regulatory impact
analyses are required by law for the adoption of this statement of
agency policy. Even if such analyses were required, nothing in this
policy could be construed to impose an economic impact that does not
already exist as a result of the ESA and CITES.
Other Issues
Issue: One commenter pointed out that CITES Notification No. 932
(Loans of Giant Pandas) does not carry forward the implied criticisms
of captive breeding outside of China contained in the CITES Standing
Committee document, Doc. SC.36.15. The notification explicitly
recognizes that there may well be a role for institutions outside of
China for captive breeding. The repeal of Notification No. 477 removes
any open criticism by the Secretariat or the Standing Committee of
captive breeding, especially as this purpose relates to commercialism.
Response: The Service agrees that Notification No. 932 recognizes
the export of giant pandas for captive breeding under specific
circumstances, and believes this has come about because of the positive
changes in panda conservation efforts in China and elsewhere.
Issue: One commenter believed that reasonable assumptions on the
question of commercialism can be drawn from the Notification and Doc.
SC.36.15. The first assumption is the Secretariat's view that the giant
panda is not actually or
[[Page 45848]]
currently threatened by international trade. The second assumption is
that panda loans can be made in accordance with the normal provisions
of CITES. All that is necessary in addressing commercialism is
application of the standard provisions of Conf. 5.10.
Response: The Service agrees. The Secretariat also cautioned that
care needs to be taken that the money offered to China reflect the real
value of pandas to that institution and are not a ``token gesture,''
with the bulk of the monies being retained by the institution itself
for its own benefit. The Secretariat noted that the latter would be
incompatible with the requirement that imports of Appendix-I species be
for purposes which are not primarily commercial.
Issue: One commenter stated that the application of the CITES
standard to only export Appendix-I animals in exceptional circumstances
should not be confused with the subjective and limited definition, when
there is a high degree of probability of captive breeding taking place.
Another commenter added that the emphasis should be on the ``best
interest of the whole species.''
Response: The Service believes that Section 3.c of Notification No.
932 should be interpreted to mean that breeding age animals should only
be exported to institutions either in potential breeding pairs or
singly to facilities that already have breeding age panda(s). This is
further qualified by limiting exports to institutions that cooperate
with others in a breeding program. The Service does not believe that
this would exclude the possibility of exporting animals that have not
bred in China to a United States breeding program, such as AZA's Giant
Panda SSP, in which the focus is to research why these pandas have not
successfully bred.
Issue: One commenter stated that the Service does not have the
authority to implement Notification No. 932 and the proposed policy
itself can only be implemented and enforced as a formal Service
regulation adopted after rulemaking procedures.
Response: The Service has discretion to formulate policy that
defines or clarifies how to interpret or implement already existing
regulations, in this case 50 CFR Parts 13, 17, and 23 for a particular
species.
Issue: One commenter stated they were very concerned by the
negative impact this policy has had on commercial entities in their
desire to help panda conservation through long term breeding loans that
would result in in-situ financial contributions and captive breeding
research in the United States.
Response: The Service recognizes that commercial institutions can
potentially make significant contributions toward conservation programs
for endangered species. However, in the case of all Appendix-I imports,
including giant panda imports, the Service is obligated to determine
that the import is not for primarily commercial purposes. Commercial
entities must be able to show that they will not economically gain by
the import over time, before the Service can approve an import permit.
These types of institutions could still contribute financially to panda
conservation, without importing the animals, if they chose to do so.
With publication of this policy, the Service lifts the suspension
of the review and processing of permit applications to import live
giant pandas, which has been in place since December 20, 1993. The
policy is effective immediately to allow organizations that have, or
are finalizing, loan agreements with China to apply without further
delay. Accordingly, we have good cause under 5 U.S.C. 533(d) to waive
the 30-day effective date. Applicants should allow at least 120 days
for the processing of an application. This time frame includes a notice
in the Federal Register of the availability of each application for a
30-day public comment period as required under the ESA.
Required Determinations
The information collection requirements identified in this policy
as part of the permit application have been approved by the Office of
Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501
et seq. and assigned clearance number 1018-0093. OMB has reviewed this
document under Executive Order 12866.
The Service has determined that this policy is categorically
excluded under Departmental procedures from complying with the National
Environmental Policy Act (NEPA) (516 Departmental Manual, Ch. 2, Appx.
1, paragraph 1.10). An Environmental Action Memorandum is on file at
the Service's Office of Management Authority in Arlington, Virginia.
Policy on Import of Giant Pandas
Given the long history and controversial nature of the issue of
giant panda imports, the Service considers the conservation status of
the giant panda sufficiently unique to warrant establishment of a
separate policy on the import of giant pandas. The policy sets out
guidance that is intended to assist the decision-makers and staff
within the Service to carefully review applications for panda import
permits, to ensure that all statutory and treaty-based criteria have
been addressed and fully explained in the administrative record, and,
assuming that these goals are met, to thereby enhance the conservation
of the giant panda. The policy does not prescribe new restrictions or
limitations but instead sets out a ``road map'' on how to develop and
submit a complete application in light of the best scientific
information available to the Service at this time.
Before a decision is made on any application for a permit to import
or engage in interstate commerce in giant pandas, the Service must
review the application in terms of the applicable requirements of CITES
and the ESA. Issuance of an import permit under CITES requires prior
findings that: (1) The proposed import would not be for purposes
detrimental to the survival of the species; (2) the import would not be
for primarily commercial purposes; and (3) the permit applicant is
suitably equipped to house and care for the animals. Issuance of a
permit under the ESA requires prior determinations that, among other
things: (1) The activity would be for scientific purposes or to enhance
the propagation or survival of the species, in a manner consistent with
the purposes and policies of the ESA; and (2) issuance of the permit
would not be likely to jeopardize the continued existence of the
species. These requirements are further implemented by application
requirements and issuance criteria found in 50 CFR 13.12, 17.22, 23.14,
and 23.15. In addition, Section 9(d) of the Lacey Act, with regulations
at 50 CFR 14, Subpart J, requires that shipments of live wild mammals
being shipped to the United States are done under humane and healthful
conditions such that the animals arrive alive, healthy, and uninjured.
This policy provides guidance on Service consideration of these
requirements relative to the giant panda only. These considerations and
this policy are in no way intended to apply to import permit
applications for other species. All such applications must continue to
demonstrate that the proposed imports meet the applicable requirements
of CITES and the ESA consistent with the conservation status of the
particular species in question and the best scientific information
available for that species.
[[Page 45849]]
Purposes
The primary goal of the policy is to ensure that all permitting
decisions involving the transfer of giant pandas into and within the
United States contribute toward the survival, and ultimately the
recovery of panda populations in the wild. The long term goal is to
have all captive-holders of giant pandas cooperate in one international
plan. Toward that goal, all transfers should be part of a coordinated
panda conservation effort, a term used in this policy to mean an
organized effort through which all giant panda movements support high
priority projects in China's National Plan, National Survey, or Captive
Breeding Plan. If an import or transfer has breeding as one of its
purposes, the institution should also coordinate their activities with
China's Captive Breeding Plan and must participate in AZA's Giant Panda
SSP or a similar plan approved by the Service, as required generally
under existing regulations. The Service anticipates that most permit
applications will be for multiple purposes. Applicants must identify
the primary purpose for the proposed import or interstate transfer and
all other intended purposes. No activities for additional purposes
should be undertaken after issuance of a permit without prior approval
from the Service since issuance of the permit would be based on the
purposes identified in the initial application.
The ultimate objective of managing captive pandas should be for
research or research/breeding purposes, and any training or use of
pandas in animal acts would detract from this objective. Therefore, use
of pandas in animal acts or shows most likely would not meet the
current permit issuance criteria in the regulations and is discouraged
under this policy.
Wild-Taken Pandas
The following criteria would be used when evaluating import
applications involving pandas removed from the wild. These temporal
criteria are based on information available to the Service suggesting
that the removal of pandas from the wild has increasingly come under
Chinese control, starting prior to the WWF Plan of August 1989.
In all cases, the Service continues its policy of approving import
permit applications only when it is sure that the import did not, or
will not, contribute to the removal of pandas from the wild.
1. For wild-taken pandas, those removed from the wild prior to
December 31, 1996, would be considered eligible for inclusion in an
import permit.
2. Pandas removed from the wild after December 31, 1996, are not
likely to be eligible for inclusion in an import permit, in part
because the MOC/CBSG Workshop report states that no additional wild-
caught pandas are needed to have a self-sustaining captive population.
No Detriment Finding Under CITES
Under CITES Article III.3(a), the import of any specimen of a
species included in Appendix I requires a finding by the country of
import that the import will be for purposes that are not detrimental to
the survival of the species. This finding must be made within the
context of the fundamental principle that trade in specimens of
Appendix-I species must only be authorized in exceptional
circumstances. This finding is made on a case-by-case basis, and is
governed by the best available scientific information and the status of
the species involved, both in captivity and the wild. The finding also
considers whether the intended purposes cannot be achieved by other
means (better alternative uses for the animals). Relative to imports of
giant pandas, this finding will focus on ensuring that an import will
not adversely affect wild populations by directly or indirectly causing
the removal of animals from the wild either for the specific import
under consideration or by creating a perception that additional imports
will be authorized. The finding will also consider the purpose for
import to ensure that it contributes to improving the conservation
status of the species.
Age and Other Parameters of Animals Available for Importation
1. The Service will consider the age of the pandas and how it
relates to accomplishing the proposed activities.
2. The Service also will consider how each specific panda relates
to accomplishing the proposed activities and how it was selected to
ensure the import will not interfere with China's research and breeding
programs.
3. Except in an emergency situation where there is no reasonable
alternative medical care available, an infirm animal will not be
allowed to be imported unless transport will not further compromise the
health of the panda or interfere with the purposes of the import.
Humane Shipment and Transport
Any giant panda shipped to the United States must comply with the
regulations in 50 CFR Part 14, Subpart J: Standards for the Humane and
Healthful Transport of Wild Mammals and Birds to the United States.
Shipments of pandas by air must meet the International Air Transport
Association's Live Animal Regulations. The Service will evaluate
proposed shipping containers to ensure that live pandas shipped to the
United States arrive alive, healthy, and uninjured and that
transportation occurs under humane and healthful conditions.
Length of Loans
In situations where the movement of the panda is part of a loan
agreement, the Service will evaluate the length of time requested for
the loan to ensure it is appropriate to the proposed activity. The
length of the loan should be of sufficient duration to accomplish the
stated goals. It is anticipated that such activities may require 3 to 5
years, or longer, to produce research results for the maximum benefit
for captive-breeding activities or to produce research results that
benefit captive and wild populations
Section 7 Consultation Under the ESA: No Jeopardy Finding
Under section 7 of the ESA, the Service is required to insure that
its permit action to allow import, export, and interstate or foreign
commerce involving giant pandas is not likely to jeopardize the
continued existence of that species. The Service will conduct
consultation which will conclude with issuance of a biological opinion
stating whether the proposed action is or is not likely to jeopardize
the continued existence of the giant panda. A biological opinion will
be prepared for each permit application.
Each biological opinion will include a description of the proposed
action and take into consideration the status of the giant panda in
China, the status of the giant panda in captivity (domestic and
international), the effects of the action, and the cumulative effects
of the action. If it is determined that the proposed action is likely
to jeopardize giant pandas, reasonable and prudent alternatives would
be recommended to avoid jeopardy. In the event no reasonable and
prudent alternatives are available, the Service will not issue the
permit.
If a specific biological opinion concludes the proposed permit is
not likely to jeopardize giant pandas, an incidental take statement
will be provided to address the anticipated incidental take, if any,
that would result from the permit issuance. In addition, the incidental
take statement would include terms and conditions to
[[Page 45850]]
minimize the impact of incidental take. Such terms and conditions would
also be incorporated into the ESA permit.
Enhancement and Conservation Benefits of Specific Projects
Enhancement of the propagation or survival of a species and
conservation benefits for scientific research under the ESA can be
achieved through the following: (1) The proposed activities must
ultimately benefit pandas in the wild, and (2) all funds should be used
for giant panda conservation including habitat protection or captive
breeding efforts, with a significant portion of all funds being used
for in-situ conservation projects for the giant panda. Both of these
elements should be met to address the conservation/enhancement finding.
1. Whenever funding (import or loan agreement, fundraising money,
and net profits) is associated with the import or transfer of giant
pandas, the following should be addressed:
(a) Conservation projects to be funded should address the
following:
They should be included in China's National Plan, National
Survey, or Captive Breeding Plan and should be formally approved by
China's Project Office of MOF, MOC, or other appropriate entity.
They should be considered a high priority in the most
recent Plan.
They should be described as specifically as possible, with
funding allocations to specific tasks given in foreign currency (e.g.,
yuan) and in U.S. dollars, and projected timeframes given for use of
the funds to initiate and complete specific projects or activities.
Conservation projects that do not meet the above criteria
will be considered by the Service, if compelling reasons are given.
Any change in conservation projects to be funded once a
permit is granted would be considered an amendment and would need prior
approval of the Service.
(b) The applicant should provide a plan to monitor the disbursement
of funds for selected conservation projects or activities. The plan
needs to be sufficiently complete so that the Service is satisfied of
its effectiveness and is assured the projects will be completed. Such a
monitoring plan should include provisions equivalent to the following:
Before funds are transferred to the appropriate office in
China or the lending entity, the permittee and the appropriate foreign
entity should agree on a detailed budget, work plan, and timetable for
project completion. Specific, measurable objectives and a schedule for
progress reports should be identified for each project.
Payments should be made in installments. Each payment
needs to be linked to actions taken toward completion of the
project(s).
Subsequent payments should be contingent on approval of
progress reports by the permittee.
An assessment should be conducted annually to verify
progress toward project implementation.
The permittee should have permission from the Chinese
implementing agency or lending entity for the permittee, an authorized
representative, and the Service to examine records and to make site
visits to funded projects at least annually if needed.
(c) Funds (import or loan agreement money, fund raising money, and
net profits) associated with the import/transfer of giant pandas should
be allocated for panda conservation as follows (see Primarily
Commercial Purposes for additional discussion of net profits):
A significant portion of the funds should be used for in-
situ conservation projects for the giant panda and its habitat in China
as listed in China's National Plan, National Survey, or Captive
Breeding Plan.
The remaining funds should be used to support panda
conservation including breeding or educational efforts for the giant
panda in China or additional in-situ projects or, if the panda
originated in a country outside of China, panda conservation projects
outside of China.
In the event that funds generated exceed the ability of
the Chinese to apply the monies to priority projects or captive
breeding in China at any one time, then funds may be used to support
breeding efforts for the giant panda outside China.
The allocation of funds for other uses than outlined above
will be considered by the Service if compelling reasons are given.
Any change in allocation of funds once a permit is granted
would be considered an amendment and would need prior approval of the
Service.
2. If neither the payment of money nor the generation of revenue
are associated with the import or transfer of live pandas, the
applicant should provide information to the Service to show
convincingly that the results of the proposed activities will
contribute significantly to the conservation of the panda in the wild.
3. Annual reports to the Service will be required, which should
give an accounting and report of funds transferred and portions of the
conservation project completed (see Primarily Commercial Purposes for
further reporting requirements). Copies of reports received by the
applicant from the recipient of funding should be included, with
English translations if reports are not in English.
The policy considerations concerning the enhancement and
conservation benefits in this Section and in the related sections on
the types of activities for which a permit can be issued--Scientific
Research, Biological/Scientific Samples, Captive Breeding, and
Exhibition--would be used by the Service relative to the giant panda
only. These considerations and this policy are in no way intended to
apply to import permit applications for other species. All such
applications must continue to demonstrate that the proposed imports
meet the applicable requirements of the ESA and CITES consistent with
the conservation status of the particular species in question and the
best scientific information available for that species.
Scientific Research
One of the purposes of the ESA is to provide a means whereby the
ecosystems upon which endangered and threatened species depend may be
conserved. The ESA defines ``conservation'' as the use of all methods
and procedures which are necessary to bring an endangered or threatened
species to the point it no longer needs to be protected by the ESA.
There is a great need for scientific research on the giant panda, both
in the wild and in captivity to help achieve this goal. If permits are
issued for imports of live animals for a combination of research and
captive breeding, the proposed research must contribute to panda
conservation but may be more focused on captive populations.
1. The applicant must provide information to show that the research
is bona fide, meaning research that is properly designed using the
scientific method, and can be accomplished with the expertise and
resources available. This should include:
Objectives and goals should be clearly defined in the
research protocol. Hypotheses and experimental designs intended to test
them should be described. Any subsequent substantive procedural changes
and/or additions must be pre-approved by the Service. The Service will
review changes in a timely manner so as not to disrupt the research as
applicable.
Investigative procedures and research protocols should be
described in detail or referenced as published in
[[Page 45851]]
a recognized refereed, peer-review journal.
Estimated time frames need to be given.
Research should not be duplicative unless it is a
collaborative effort, or if repetition can be justified.
The results of the research would be expected to identify,
evaluate, or resolve panda conservation problems or contribute to the
basic knowledge of panda biology and ecology deemed important to the
survival of the panda.
The research results would likely be published in a
recognized refereed, peer-reviewed scientific journal.
2. The applicant must have the expertise and resources to
accomplish the stated objectives of the proposed research, and describe
how the research would not conflict in any way directly or indirectly
with known conservation programs for that species. For research with
live pandas:
Research should be recognized as a high priority activity
in China's National Plan, National Survey, or Captive Breeding Plan.
The proposal should describe how the study may contribute
to the conservation of the giant panda in the wild. If portions of the
research are in-situ, the research must be a collaborative effort with
Chinese scientists. For any ex-situ portion of the research, the
applicant should describe why it is best conducted outside China, and
how any information gained or methodologies developed will be
transferred for use in China, including estimated time frames of
transfers, training, or collaborative efforts.
Any physically invasive procedures to be used or any
behavioral modifications anticipated as part of research activities
should be described.
The permittee must provide an annual report summarizing
research activities associated with the purposes of the permit,
including a brief description of each project, a copy of protocols
developed and methodologies used, a summary of data collected with a
discussion of results and copies of published papers resulting from the
research. The report must also indicate whether the research resulted
in the development of protocols or other methodologies, if the products
were transferred to the Chinese government, and how they have been or
will be used for giant panda conservation.
3. If live pandas are going to be on exhibition at any time during
the term of the research project, the following should be addressed:
The applicant should provide protocols outlining how the
research and exhibition will be monitored to ensure that having the
pandas on exhibit is not interfering with the research or biasing data.
In lieu of submitting the protocol, the applicant may cite the
protocols of the AZA Giant Panda SSP or other relevant breeding plan.
The applicant must have adequate facilities to conduct the
research and provide information on alternative facilities to house the
pandas away from public exhibition in case it is found that exhibition
interferes with the research. The off-exhibit space, in addition,
should be large enough to provide an adequate exercise area should
panda(s) need to be housed there on a long term basis.
Biological/Scientific Samples
Permits for import of panda biological samples can be issued for
scientific research (including, but not limited to, genetic research,
monitoring of health status and diagnosis of disease or other
pathological conditions, physiological and behavioral research,
assessment of contaminant loads, and gene banking).
For research involving biological samples, the applicant should
have the expertise and resources to accomplish the stated objectives:
Salvaged specimens (i.e., those obtained from animals that
have died of natural causes; naturally shed hair; deposited scent gland
secretions) should be obtained without harassing any live animals, and
collection must be authorized by the MOF, MOC, or the Project Office or
the owner of the panda if not owned by China.
Any invasive sampling or sample collection involving
restraint of the animals should be done by qualified personnel (as
determined by the applicant), preferably veterinarians, with
appropriate training and experience in capture, restraint, and sample
collection, so as not to result in death or injury of animals.
Collection of samples, including semen specimens, that involve the use
of general anesthesia generally may be imported if collected by
individuals who possess appropriate expertise in anesthesia of giant
pandas so that risk to the animals is minimized, and in the case of
semen, persons collecting specimens should also possess appropriate
expertise in electro-ejaculation techniques for giant pandas. Invasive
sampling or sample collection involving restraint of wild pandas,
including semen collection, is limited generally to situations
resulting from capture activities conducted for another purpose
approved by MOF authorities and should not involve any type of
remuneration for the collection of the samples. Animals should not be
captured for the sole purpose of collecting samples.
The results of research conducted with imported specimens
must be reported to the Service at least annually; a report should
include copies of any scientific publications produced. The report
should contain information on the number and type (e.g., blood, hair,
skin biopsy) of samples imported, specific source/location from which
each sample was collected (if more than one was authorized), and brief
observations on the effects of sampling on the animals. The report
should also indicate whether the research resulted in the development
of protocols or other methodologies, if the products were transferred
to the Chinese government, and how they have been or will be used for
giant panda conservation.
Permits to import samples to monitor or determine
reproductive status or to import semen for use in captive breeding may
be issued. Imports of semen from China should be coordinated with
China's Captive Breeding Plan, the AZA Giant Panda SSP, or other
coordinated panda conservation plan approved by the Service. Imports of
semen from countries other than China must also be done in accordance
AZA's Giant Panda SSP (or other plan) but may not require specific
written approval from China.
The import or export of urine, feces, and synthetic DNA,
when collected in a manner that does not involve the capture,
detention, or killing of protected wildlife, does not require a permit
from the Service. The CITES Management Authority of any exporting or
importing country should be contacted to meet any requirements it may
have.
Captive Breeding
Any captive breeding conducted with imported pandas needs to
benefit panda conservation by supplementing the breeding program in
China to achieve a self-sustaining captive population (as outlined in
the MOC/CBSG Workshop report), and typically provide a source of funds
for panda conservation in the wild. There may be a need to maximize the
use of pandas currently held in captivity that are not essential to
China's Captive Breeding Plan. The Service expects that most of the
pandas made available for import into the United States will be ones
that have not successfully bred in China. Thus, at this time, the
Service finds that captive breeding for the sole purpose of producing
offspring is not sufficient to satisfy the enhancement requirement of
the ESA. This policy therefore stresses the need for any permit
applications
[[Page 45852]]
involving captive breeding to include a research component that will
benefit panda conservation.
1. If the applicant intends to conduct captive breeding of imported
pandas, in addition to the research requirements, the applicant should
provide sufficient information to demonstrate the necessity of
importing pandas for captive breeding:
Enhancement may be partially satisfied through captive
breeding if it can be convincingly shown that results will be used to
study and/or manage giant pandas in a way that contributes to panda
conservation. The application or request will be expected to include a
research component aimed at increasing reproductive success especially
if the animals involved have a history of being non-breeding animals.
It is expected that requests to import live giant pandas for captive
breeding will also include other enhancement activities, such as the
generation of funds for panda conservation in the wild.
The proposed captive breeding should be part of a
coordinated panda conservation effort designed to complement
conservation efforts for the wild panda population and the applicant
must actively participate in the AZA's Giant Panda SSP or a similar
plan approved by the Service.
The captive breeding program should coordinate with
China's Captive Breeding Plan and should demonstrate how it will
contribute to the preservation of the panda's gene pool (i.e.,
retention of maximum genetic diversity). The choice of individuals to
be imported should be based on scientific management of the captive
populations with genetic and demographic criteria used to determine
mating pairs.
Applications for panda movements should describe how the
study would contribute to the conservation of the giant panda in the
wild or in captivity, and how any information gained or methodologies
developed will be for use in China, including estimated time frames of
transfers, training, or collaborative efforts.
2. The applicant should provide information to show that he/she has
the expertise and resources to accomplish the stated objectives:
The applicant should submit a detailed breeding protocol
that outlines when male and females will be paired for breeding, how
females and males will be visually and physically separated and/or
managed together, with layout of facilities and protocols for rearing
potential young. In lieu of submitting the protocol, the applicant
could show they are using the protocol of the AZA Giant Panda SSP.
However, the Service will still request submission of facility and
exhibit information in the form of photographs, diagrams and written
description with each application.
Artificial insemination or any other physically invasive
procedures should be described, and any subsequent substantive
procedural changes and/or additions must be pre-approved by the
Service.
The permittee must provide quarterly updates and an annual
report summarizing breeding and research activities, including a copy
of protocols developed and methodologies used, a summary of data
collected with a discussion of results, and copies of any published
papers. The report should also indicate whether the activities resulted
in the development of protocols or other methodologies, if such
products were transferred to the Chinese government, and how they have
been or will be used for giant panda conservation.
3. If pandas are going to be on exhibition at any time during the
captive-breeding loan:
The applicant should provide protocols outlining how the
captive breeding, its research component, and exhibition will be
monitored to ensure that having the pandas on exhibit does not
interfere with captive breeding and/or its research component.
The applicant must have adequate facilities to conduct the
captive breeding and its research and provide information on
alternative facilities to house the pandas away from public exhibition
in case it is found that the exhibition interferes with the captive
breeding or research. The off-exhibit area should provide sufficient
space for exercise should pandas need to be housed there long term.
The applicant must consent to the movement, substitution,
or transfer of any panda to another approved institution if, in the
judgment and at the request of the Chinese government or the SSP Panda
Coordinator, such action is needed to maximize successful captive-
breeding opportunities.
Exhibition
1. The import of giant pandas for the sole purpose of educational
exhibition would not be sufficient to satisfy enhancement requirements.
The Service expects institutions importing giant pandas to educate the
U.S. public about the ecological role and conservation needs of the
giant panda, but will not consider this as an adequate justification
for issuing a permit. However, if an applicant is developing a panda
conservation education program that would be transferable to the
Chinese government, or is developing a program specifically for use in
China, particularly in localities near giant panda habitat and
reserves, the Service will consider this project as part of a
coordinated conservation effort in making its enhancement finding.
Educational programs in China should be aimed at local
people, school children, panda researchers (field and captive), reserve
biologists, and managers and should be in conjunction with the full
cooperation of the Chinese authorities.
Educational activities or projects should be described in
detail, including samples of the kinds of educational materials to be
used and a description of evaluation methods.
The messages conveyed through the educational program
should stress historical and contemporary impacts on the status of the
giant panda in the wild and conservation efforts that might be required
to halt the species' decline and degradation of its habitat.
2. Educational displays would only be allowed as an ancillary
component of a research or research/captive-breeding program. However,
if an applicant intends to exhibit the panda(s), educational display(s)
should be developed and implemented to educate the U.S. public about
the ecological role and conservation needs of the giant panda.
Specifically, the import of pandas solely for exhibition loans is
discouraged.
Primarily Commercial Purposes
With regard to the determination of whether an import of giant
pandas is not to be used for primarily commercial purposes, the Service
will utilize the following policy.
1. Resolution Conf. 5.10 of the Conference of Parties to CITES
provides that:
The nature of the transfer of specimens between the owner
in the country of export and the recipient in the country of import may
be commercial. It is the intended use of the specimens in the country
of import that must not be for primarily commercial purposes, and it is
the responsibility of the recipient country's Management Authority to
make this determination.
There may be some commercial aspects of that use, but the
non-commercial uses must predominate in order to be deemed primarily
non-commercial.
2. Any public, private, non-profit, or commercial (profit-making)
institutions, organizations, and agencies will receive consideration
for applications for the
[[Page 45853]]
importation of pandas. The Service's general regulations at 50 CFR
10.12 define ``public'' institutions as those that ``* * * are open to
the general public and are either established, maintained, and operated
as a government service, or are privately endowed and organized but not
operated for profit.'' Although commercial organizations may also
choose to apply for an import permit, the orientation of such
organizations to carry out transactions in the pursuit of gain or
profit would make it more difficult for the Service to find that the
specimen proposed for import is not to be used primarily for commercial
purposes. As in all cases, the burden rests with the applicant to show
that this CITES requirement is satisfied.
3. The Service's policy is that all net profits should be used for
panda conservation in China, with a significant portion of such funds
being used for in-situ conservation (see Enhancement and Conservation
Benefits of Specific Projects). Net profits include all funds or other
valuable considerations (including enhanced value of common stock
shares) received or attained by an institution or related organization
(including any commercial parent organization of the applicant, but not
including unrelated private entities, such as hotels, not associated
with the applicant) as a result of the panda import, to the extent that
such funds or other valuable considerations exceed the reasonable
expenses that are properly attributable to the proposed activities
(e.g., exhibition).
Reasonable expenses would include, but are not limited to,
the following: Facility construction if amortized for the entire
proposed length of stay for the imported animal(s); cost of the
importation agreement; facility maintenance; and direct labor and
operating expenses and supplies needed for the care of the pandas and
necessary to conduct research or research/captive-breeding activities
that have been identified in the application.
In making decisions on panda import permit applications,
the Service's goal would be to maximize funds going back to
conservation projects in China and, as such, costs associated with
ordinary operations, such as advertising, general personnel costs,
general legal expenses (not directly related to the panda import),
would not be considered reasonable expenses unless they can be shown to
be necessary to sustain the conservation purpose of the import.
Collection of revenues generated by import of the panda by
the importing institution (e.g., gate receipts, food and drink sales,
tourist souvenirs), either for its own use or for the use of other
organizations, for purposes other than those previously described
ordinarily would be judged to be a primarily commercial activity, as
would the use of revenues for profit-making purposes.
Monitoring of visitation and other means of tracking
monies earned as a result of panda activities should be employed by the
institution to assist in gathering data used to calculate net profits.
4. Each applicant for a panda import, in satisfying the applicable
requirements of 50 CFR subchapter B, must submit a detailed plan for
the allocation of all funds raised in excess of expenses (net profits),
as a result of the panda import. The application should also include a
statement from a licensed, independent certified public accountant
stating that the applicant's internal accounting system is sufficient
to account for and track funds generated directly by the panda import,
and for the subsequent disbursement of funds.
5. Each recipient of a permit to import pandas is required, in
accordance with 50 CFR 13.45, to submit an annual report to the Service
as a condition of the permit. The annual report must contain a full
accounting of all funds raised directly by the institution or related
organization, the reasonable expenses incurred and the portion of the
funds raised that is in excess of these expenses, and what portion of
these funds are to be disbursed for giant panda conservation projects
or activities as outlined in the prior section, Enhancement and
Conservation Benefits of Specific Projects. A description of the method
used to calculate net profits and categories of expenses and revenues
(including enhanced stock value, if applicable) must also be included
in the report.
The report should include names of people involved,
location of the activities, a brief description of each project and
assessment of project implementation, and the amount and use of money
being provided the project.
Conservation projects other than those projects presented
in the application must receive approval from the Service prior to
allocating funds.
If applicants wish to protect the specific dollar amounts
submitted in their annual report from disclosure under the Freedom of
Information Act, they should indicate this in the report along with a
reasonable justification to withhold confidential business information.
These policy considerations would be used by the Service only for
determining whether panda imports are primarily commercial in nature.
They are not intended to apply to Appendix-I import permit applications
for other species. All such applications must continue to demonstrate
that the proposed import meets the general requirements of CITES
Article III to satisfy the ``not to be used for primarily commercial
purposes'' test.
Suitability of Facilities and Care
Under CITES, the Service must be ``satisfied that the proposed
recipient of a living specimen (to be imported) is suitably equipped to
house and care for it.'' Under the regulations implementing the ESA,
the Service must determine that the applicant has ``* * * The
expertise, facilities, or other resources * * * to successfully
accomplish the objectives * * *'' To aid in satisfying these
requirements, applicants should provide the following information in
addition to the information required in 50 CFR 17.22:
Copies of protocols for monitoring general health and
behavior. In lieu of new protocols, an applicant may submit copies of
protocols recommended by a coordinated panda conservation effort,
including the AZA Giant Panda SSP.
Diagrams and photographs clearly depicting all enclosures
where the panda may be housed, including any off-exhibit areas and
panda holding area(s) in relation to other facilities.
Information to demonstrate the applicant has adequately
consulted with other facilities that have successfully held pandas in
recent years, that the applicant has facility features that address the
National Zoological Park's recommended measures for giant panda care
and facilities, and that zoo staff, especially keepers and
veterinarians, have had proper training and experience to care for
pandas.
Approval of facilities by the Chinese or appropriate
authority in the lending country, if such a stipulation has been made
in a contractual agreement.
Transfer of Pandas to Other Entities Within the United States
Transfer of pandas already in the United States may be allowed as
part of a scientific research or research/captive-breeding program but
should address all of the considerations noted in this policy. Pandas
may be displayed as long as it does not interfere with breeding or
research. The proposed recipient of the panda transferred between
states will need to apply for and receive an interstate commerce permit
under the ESA prior to the transfer since the recipient would
potentially gain
[[Page 45854]]
financially by having pandas at their facility and/or are being held
under a loan (e.g., lease-hold agreement) from China or other lending
entity. The proposed recipient of the panda will need to provide all
the information required by the ESA, its regulations, and this policy
in order for the Service to make its findings prior to issuance of a
permit. The Service will facilitate, to the extent possible, the
transfer of animals within the United States when it is part of a
coordinated research or research/breeding program. If the receiving
institution has a panda permit on file with the Service, it can
reference the permit number and information in this file, and provide
any new information for the Service to review in consideration of an
interstate commerce permit. Because applications will be published in
the Federal Register, the applicant will need to allow at least 90 days
for processing. Since transfers must also have the prior approval of
the Chinese government or the entity that owns the animals, a permittee
must have prior approval of the Service to transfer pandas within a
state, and the proposed recipient should address all of the
considerations noted in this policy. The number of times an individual
panda is transferred within the United States will be closely monitored
by the Service to protect the overall health and well-being of the
animal.
This notice was prepared under the authority of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: June 22, 1998.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 98-23074 Filed 8-26-98; 8:45 am]
BILLING CODE 4310-55-P