[Federal Register Volume 63, Number 176 (Friday, September 11, 1998)]
[Rules and Regulations]
[Pages 48634-48641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24384]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB10


Captive-bred Wildlife Regulation

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The final rule amends the definition of ``harass'' in 
Sec. 17.3 applied to captive wildlife to exclude generally accepted 
animal husbandry practices, breeding procedures, and provisions of 
veterinary care that are not likely to result in injury to the animal. 
The final rule deletes the requirement to obtain a CBW registration for 
eight species of pheasants, parakeets of the species Neophema splendida 
and N. pulchella, the Laysan duck, and the ``generic'' or inter-
subspecific crossed tiger. This final rule will be followed in the 
future by a new proposed rule that will set forth proposed criteria for 
addition to, or deletion from, the list of taxa exempted from 
registration requirements, and will further consider the subject of 
education.

DATES: This rule is effective October 13, 1998.

ADDRESSES: The complete file for this rule is available for inspection 
by appointment at the Office of Management Authority, U.S. Fish and 
Wildlife Service, 4401 N. Fairfax Drive, Room 700, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Teiko Saito, Chief, [see ADDRESSES 
section] telephone 703/358-2093; fax 703/358-2281.

SUPPLEMENTARY INFORMATION: On January 7, 1992, the Service initiated a 
review of the Captive-bred Wildlife (CBW) regulation (50 CFR 17.21(g)). 
On June 11, 1993, the Service followed with a proposed rule (58 FR 
32632) that included several proposed changes to the CBW regulation, 
including elimination of CBW registrations for several species that are 
present in the United States in large numbers and/or that are 
genetically unsuitable for scientifically based breeding programs; 
amendment of the definition of ``harass'' in 50 CFR 17.3 to exclude 
normal animal husbandry practices such as humane and healthful care 
when applied to captive wildlife; and deletion of education from the 
definition of ``enhance'' in Sec. 17.3. On December 27, 1993, the 
Service published a final rule (58 FR 68323) that eliminated public 
education through exhibition of living

[[Page 48635]]

wildlife as the sole justification for issuance of a CBW registration. 
On the same date, the Service published a notice (58 FR 68383) that 
reopened the comment period on the balance of the issues in the 
proposed rule, including the larger question of the value education 
provides to the conservation of non-native species in the wild as it 
applies to endangered and threatened species permits issued under 
Secs. 17.22 and 17.32.
    The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.), and implementing regulations prohibit any person subject to the 
jurisdiction of the United States from conducting certain activities 
with endangered or threatened species of fish, wildlife, or plants. 
These activities include import, export, take, and interstate or 
foreign commerce. The Secretary of the Interior (or the Secretary of 
Commerce in the case of certain marine species) may permit such 
activities, under such terms and conditions as he/she will prescribe, 
for scientific purposes or to enhance the propagation or survival of 
the affected species, provided these activities are consistent with the 
purposes of the Act. The Secretary of the Interior's authority to 
administer permit matters relating to endangered and threatened species 
generally has been delegated through the Director of the Fish and 
Wildlife Service to the Office of Management Authority (OMA).
    Since 1976, the Service has been striving to achieve an appropriate 
degree of control over prohibited activities involving living wildlife 
of non-native species born in captivity in the United States.
    In 1978, the Service announced a review of regulations on captive-
bred wildlife (43 FR 16144, April 14, 1978). The notice reiterated the 
Service's philosophy on its approach to captive versus wild 
populations.

    The Service considers the purpose of the Act to be best served 
by conserving species in the wild along with their ecosystems. 
Populations of species in captivity are, in large degree, removed 
from their natural ecosystems and have a role in survival of the 
species only to the extent that they maintain genetic integrity and 
offer the potential of restocking natural ecosystems where the 
species has become depleted or no longer occurs.

    Following an extensive public review in 1978 and 1979, the Service 
published a final rule (44 FR 54002, September 17, 1979) that 
established the Captive-bred Wildlife (CBW) registration system. The 
final rule amended regulations in 50 CFR 17.21 by adding Sec. 17.21(g), 
which granted general, conditional permission to take; export or re-
import; deliver, receive, carry, transport, or ship in the course of a 
commercial activity; or sell or offer for sale in interstate or foreign 
commerce any non-native endangered or threatened wildlife that is bred 
in captivity in the United States. In other words, the regulation 
itself contains the permit. For persons or institutions to operate 
under that permit, certain conditions must be met, including that the 
person or institution must first register with the Service. 
Authorization for the Service to collect information from persons 
wanting to register was submitted and approved by the Office of 
Management and Budget under the clearance number of 1018-0093.
    Unless an exception is made under Sec. 17.21(g)(5), the CBW system 
applies only to species that do not include any part of the United 
States (as defined in 50 CFR part 10) in their natural geographic 
distribution. Additionally, the individual specimens must have been 
born in captivity in the United States. The registration authorizes 
interstate purchase and sale only between entities that each hold a 
registration for living wildlife of the taxon concerned. Interstate or 
foreign commere, in the course of commercial activity, with respect to 
non-living wildlife is not authorized under a CBW registration. To 
conduct such activities, separate permits must be applied for under the 
appropriate regulations for endangered or threatened wildlife at 50 CFR 
17.22 or 50 CFR 17.32.
    The 1979 final rule also amended the definition of ``enhance the 
propagation or survival'' of wildlife in captivity to include a wide 
range of normal animal husbandry practices used to maintain self-
sustaining and genetically viable stocks of wildlife in captivity. 
Specifically included in those practices were ``culling'' and 
``euthanasia''. Other aspects of the definition of ``enhance'' that 
were codified in 1979 and are still used today include accumulation and 
holding and transfer of animals not immediately needed or suitable for 
propagative or scientific purposes (50 CFR 17.3).
    The above definition is found in subpart A, the General Provisions 
of part 17. Therefore, it applies not only to CBW registrations, but to 
all endangered and threatened species permits for captive wildlife 
issued under Secs. 17.22 and 17.32.
    After 12 years' experience with the system, the Service began 
another review with a notice of intent to propose a rule, published on 
January 7, 1992 (57 FR 548). The notice discussed problems the Service 
was experiencing with the system and offered for discussion three 
options intended to show the range of possible actions that might be 
taken. These ranged from no action (no change in the system) to 
complete elimination of the CBW registration process. The notice also 
questioned whether the term ``harass'' as defined in Sec. 17.3 applied 
to captive-born wildlife, and whether education of the American public 
through exhibition of living, non-native wildlife actually accomplished 
measurable enhancement of the survival of the affected species in the 
wild. Three options for dealing with education were presented, ranging 
from no change in the existing definition to deleting education as a 
justification for permits and CBW registrations.
    It should be noted here that while the preamble to the proposed 
rule referred to ``captive-born wildlife'' in the context of the 
discussion of the proposed amendment of the term ``harass'', the 
proposed rulemaking language refers to ``captive wildlife''. This was, 
and is, the Service's intent. Therefore, the rest of this discussion is 
in terms of ``captive wildlife'' to make it agree with both proposed 
and final rulemaking language.
    Public comments and suggestions were solicited. Written responses 
were received from 942 individuals, institutions, and organizations.
    After review of comments received, the Service published a proposed 
rule on June 11, 1993 (58 FR 32632), that proposed several changes to 
Sec. 17.21(g): Elimination of registration for several species that are 
present in the United States in large numbers and/or that are 
genetically unsuitable for scientifically based breeding programs; 
restriction of eligibility for CBW registrations to those entities that 
are participants in an approved responsible cooperative breeding 
program for the taxon concerned; amendment to the definition of 
``harass'' in Sec. 17.3 to exclude normal animal husbandry practices 
such as humane and healthful care when applied to captive wildlife; 
and, the conditional deletion of education from the definition of 
``enhance'' in Sec. 17.3.
    On December 27, 1993, the Service published a final rule (58 FR 
68323) that was limited to the narrow issue of education as it relates 
to the CBW system. That rule eliminated public education through 
exhibition of living wildlife as the sole justification for issuance of 
a CBW registration under Sec. 17.21(g). That decision was based on the 
Service's belief that the scope of the CBW system should be revised to 
relate more closely to its original intent, i.e., the encouragement of 
responsible breeding that is specifically designed to help conserve the 
species involved. On the same date, the Service published a

[[Page 48636]]

notice (58 FR 68383) that reopened the comment period on the balance of 
the issues in the proposed rule, including the larger question of the 
value that education provides to the conservation of non-native species 
in the wild as it applies to endangered and threatened species permits 
issued under Secs. 17.22 and 17.32.

Information and Comments

    A total of 1,269 sets of written information and comments were 
received from individuals, institutions, and organizations in response 
to the proposed rule and during the re-opened comment period. Some 
commenters responded both times.
    Of comments received, some 450 were form letters, patterned 
responses, or multiple signatures on letters or petitions. Opinions 
expressed on specific issues are summarized as follows (a number of 
letters offered comments on more than one issue):

Retain education as part of the definition of enhancement of 
survival of the species...........................................1,165
Retain education, but establish guidelines...........................29
Delete education.....................................................10
Require CBW registrants to participate in a responsible 
cooperative breeding program.........................................17
Do not require participation in a responsible cooperative 
breeding program.....................................................77
Change definition of ``harass'' to exclude normal animal 
husbandry practices for captive wildlife.............................18
Do not change definition of ``harass''................................3
Replace CBW registration with rebuttable presumption..................2
Do not use rebuttable presumption....................................37
Completely deregulate captive-bred wildlife..........................36
Deregulate interstate commerce in captive-bred wildlife..............65
Exempt certain species from registration requirements as proposed
                                                                     26
Exempt some species but not all of the proposed taxa.................13
Exempt no species.....................................................2

    Because the Service has decided to reformulate its proposal 
concerning deletion of education from the definition of 
``enhancement'', the discussion below deals only with comments on other 
aspects of the proposed rule. Comments concerning education are being 
considered and will be the subject of a Federal Register notice at a 
later date.

Comments Concerning Definitions

    Comment: Commenters generally favored changing the definition of 
``harass'' to exclude normal animal husbandry practices for captive 
wildlife. Some felt that terms such as ``normal'', ``adequate'', 
``safe'', and ``healthful'' are vague, subjective, and amenable to 
widely varying interpretation. Various suggestions for rewording the 
definition were offered.
    Response: The Service agrees and believes that the revised 
definition in this final rule reduces subjectivity to the extent 
possible.
    Comment: Some commenters objected to a change in the definition of 
``harass''. Some believed that the change created a broad exception to 
the prohibition against harassment. One commenter suggested that any 
concerns over the definition be addressed through specific permit 
restrictions for individual permittees and registrants, thus tailoring 
protection to the particular affected species.
    Response: The Service believes this approach could result in the 
need for preparing husbandry manuals for each species and would not 
result in a commensurate benefit to the species. To evaluate facilities 
and care provided by applicants, the Service will continue to consult 
with experts such as the Department of Agriculture's Animal and Plant 
Health Inspection Service, which is charged with administering the 
Animal Welfare Act, and knowledgeable persons in the zoo and aquarium 
communities and the private sector, as needed.
    Comment: Several commenters recommended amending the definition of 
``take'' to apply only to animals from the wild. This is based on the 
concern that holding animals in captivity or transferring them for 
breeding opportunities could be construed as a ``taking''.
    Response: ``Take'' was defined by Congress in Section 3 of the Act 
as * * * ``to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect * * *'' endangered or threatened wildlife, whether 
wild or captive. Therefore, the definition can be clarified by further 
defining its component terms, but the statutory term cannot be changed 
administratively.
    The purpose of amending the Service's definition of ``harass'' is 
to exclude proper animal husbandry practices that are not likely to 
result in injury from the prohibition against ``take''. Since captive 
animals can be subjected to improper husbandry as well as to harm and 
other taking activities, the Service considers it prudent to maintain 
such protections, consistent with Congressional intent.
    Comment: One comment was that the Service is not authorized to 
treat members of a particular species differently based on whether the 
specimen is wild or held in captivity; the Act's protections are 
afforded to whole species of endangered and threatened animals and 
their habitats.
    Response: It is true that the Act applies to all specimens that 
comprise a ``species'' (as defined in the Act) that has been listed as 
endangered or threatened, and in general does not distinguish between 
wild and captive specimens thereof. However, the definition of ``take'' 
in the Act clearly applies to individual specimens or groups of 
specimens, and the captive or non-captive status of a particular 
specimen is a significant factor in determining whether particular 
actions would ``harass'' that specimen or whether such actions would 
``enhance the propagation or survival'' of the species. The Service 
believes that ample authority is provided by the Act to adopt the 
regulatory amendments set out in this final rule as a proper 
interpretation of the statutory provisions of the Act.
    To decide otherwise would place those persons holding captive 
specimens of a listed species in an untenable position. If providing 
for the maintenance and veterinary care of a live animal were 
considered to be ``harassment'', those persons holding such specimens 
in captivity would be forced to obtain a permit or give up possession 
since any failure to provide proper care and maintenance would be an 
unlawful ``taking''. Since Congress chose not to prohibit the mere 
possession of lawfully-taken listed species in Section 9(a)(1) of the 
Act, the Service believes that congressional intent supports the 
proposition that measures necessary for the proper care and maintenance 
of listed wildlife in captivity do not constitute ``harassment'' or 
``taking''.

Comments Concerning CBW Questions

    Comment: Responses showed over-whelming opposition to a rebuttable 
presumption, usually based on the argument that it would in effect mean 
that a person was considered guilty until proven innocent.
    Response: The Service does not agree with this assessment. As 
discussed in detail in the preamble to the proposed rule a rebuttable 
presumption is not a presumption of guilt. Section 10(g) of the Act 
imposes a burden of proof on any person claiming the benefit of an 
exemption or permit under the Act. Thus, the final regulation requires 
persons claiming benefit of exception at Sec. 17.21(g) to maintain 
records and make them available for inspection at reasonable hours by 
law enforcement

[[Page 48637]]

officials as prescribed by 50 CFR 13.46 and 13.47 to document legal 
activities.
    Comment: A few commenters favored completely deregulating captive-
bred wildlife. However, most commenters thought the Service should 
deregulate and exempt only certain non-native species from the CBW 
registration requirements.
    Response: The Service agrees that it is best, at this time, to 
delete the registration requirement for species that are known to be in 
the United States in large numbers and breeding well, and/or are 
genetically unsuitable for scientific breeding programs.
    Comment: Commenters generally favored efforts by the Service to 
lessen the regulatory and paperwork requirements for interstate 
breeding transactions with captive-bred wildlife. Many believed that 
the current regulations for interstate commerce were the cause of 
inbreeding and hybridization of certain species within their State. 
Some stated that a change to the regulations would increase interstate 
breeding transactions resulting in better management of captive 
populations.
    Response: The Service agrees that provisions of the final rule will 
facilitate interstate breeding transactions with exempted species, and 
thereby, increase successful breeding and maintenance of these 
endangered and threatened species.
    Comment: Seventy-seven commenters opposed and seventeen favored the 
proposal to restrict CBW registrations to those entities that 
participate in an organized breeding program. Most of those opposed 
were concerned that currently there are very few organized programs 
other than the Species Survival Plans (SSP) of the American Zoo and 
Aquarium Association (AZA). As private breeders or non-AZA member 
institutions, they might have difficulty gaining approval to 
participate in an SSP. Another objection was that SSP's do not exist 
for most species and that it would be unrealistic to estimate more than 
80-100 programs by the year 2000. Some commented to the effect that the 
proposed rule would create a monopoly on the part of the entity that 
would approve programs and would mandate a bureaucratic nightmare. 
Another concern was the cost and difficulty of developing and 
maintaining new breeding programs as opposed to participating in those 
already in place.
    One commenter noted that the proposal doesn't meet Vice President 
Gore's goal of reducing regulatory burden and unnecessary paperwork; it 
actually creates a new layer of regulatory oversight and adds potential 
for litigation by those who disagree with the Service's decisions 
regarding those programs or participants that do or do not qualify. 
Another comment was that the Service couldn't, in effect, deny a permit 
to one who was refused participation in a breeding program without 
allowing the exercise of the appeal process; this would constitute 
abdication of the Service's responsibility to a private group or 
institution.
    Some commenters also questioned what would happen if there were two 
applications for approval of a program for the same species; some said 
there should only be a single program for each species/subspecies, 
while others argued that more than one program should be allowed. 
Finally, it was pointed out that the goal should not be to develop a 
single well-managed genetically diverse and self-sustaining population. 
A species can be managed for either retention of alleles or of 
heterozygosity, and possibly both management schemes could be correct.
    Response: While the Service believes that the concept embodied in 
the proposal is theoretically sound, the proposal has been deleted from 
this final rule. The practical, socio-economic, and biological problems 
inherent in attempting to manage such an effort in an effective and 
equitable manner could result in a significant increase in workload and 
paperwork. There is a potential for agency decisions to be perceived as 
unfair or biologically improper. Such a situation might give rise to 
frequent appeals and litigation, that would add to the burden on the 
public and the Service while contributing little to management of 
captive-bred wildlife.
    Comment: The proposal to exempt certain species from CBW 
registration requirements elicited 142 comments, of which 101 
recommended either complete deregulation of captive-bred wildlife or at 
least of interstate commerce in such animals. The proposal was 
supported by 26 commenters and opposed by 2. Thirteen other commenters 
favored or opposed some, but not all of the taxa proposed for 
exemption. The majority of the latter were concerned about exempting 
generic tigers because it might encourage uncontrolled breeding and 
further hybridization for commercial sales and exploitation. A related 
concern was that purebred tigers might be ``laundered'' as generic in 
order to avoid regulation, thus losing potentially valuable breeders 
from the SSP's for the various subspecies.
    Response: The Service believes that the breeding of generic tigers 
has not been affected by the CBW system. Those who hold CBW 
registrations can legally purchase and sell generic tigers in 
interstate commerce. Non-commercial interstate transfers (e.g., 
breeding loans, donations) are not prohibited. As pointed out in the 
notice of intent to propose rule (57 FR 548), generic tigers can be 
found in most of the 50 states, and intrastate commerce is not 
regulated. The Service does not believe that ``laundering'' of purebred 
tigers as generic animals in order to avoid regulation would be 
widespread, since so doing would decrease the value of the animals in 
most cases. Further, those who would do this would probably not be 
likely participants in SSP's for purebred tiger subspecies.
    Comment: Two commenters who generally supported the exemption for 
pheasants argued that several species are not present in the United 
States in large numbers (if at all), and therefore those species should 
continue to be regulated under the CBW system. These species are: 
Edwards, cheer, Swinhoe's, Mikado, imperial, and white eared pheasants; 
Sclater's and Chinese monals; and Blyth's, Cabot's, and western 
tragopans.
    Response: Based on the 1993 survey conducted by the American 
Pheasant and Waterfowl Society (482 respondents, or the equivalent of 
nearly 25% of APWS membership), several of these species do have low 
captive populations: Imperial pheasant--0; Sclater's monal--0; western 
tragopan--25; Blyth's tragopan--32; and Cabot's tragopan--75. 
Therefore, these species will not be exempted from the CBW registration 
requirements at this time. Of the other 10 species to be exempted, the 
sample shows numbers of 222 or more. As stated in the proposed rule, it 
is impossible to project total pheasant populations in the United 
States with any certainty due to possible sampling bias, plus the fact 
that there is probably a significant number of pheasant breeders who do 
not belong to the APWS.
    Comment: One objection to exemption was received for each of the 
following: Laysan duck, white-winged wood duck, and Neophema.
    Response: The APWS survey indicates healthy captive populations of 
the Laysan duck (445) and the white-winged wood duck (278); therefore, 
they will be exempted from CBW registration requirements.
    The 1991 Psittacine Captive Breeding Survey, done by World Wildlife 
Fund in collaboration with the American Federation of Aviculture, 
concludes that serious thought should be given to downlisting or 
delisting the captive stocks of Neophema splendida and N.

[[Page 48638]]

pulchella because the survival of these species in captivity appears 
assured if inbreeding can be minimized. Both 1990 and 1991 censuses 
showed that these species are well represented and are breeding well in 
captivity. In 1991, 114 pairs of N. splendida hatched 337 eggs, and 61 
pairs of N. pulchella hatched 266 eggs. Thus, these species are 
exempted by this final rule.
    Comment: No criteria were provided for the addition or deletion of 
taxa from the list exempted from the CBW registration requirement.
    Response: The Service believes that a case-by-case determination of 
eligibility, consistent with the provisions of the Act and the public 
notice and comment procedure, is adequate for the small number of 
species that will be considered for exemptions. In the near future, the 
Service will propose a new rule that sets criteria for adding or 
deleting taxa from the list exempted from the CBW registration 
requirements. The Service will solicit comments from the public on the 
proposed rule to ensure that the proposal is as accurate and effective 
as possible.
    Comment: The proposed exemptions from registration requirements 
violate the notice, comment, and finding provisions of sections 10(c) 
and (d) of the Act.
    Response: The proposed exemptions make no change in existing CBW 
procedures concerning notice and review. Section 17.21(g)(1) contains a 
general permit issued to ``any person''. The question involved here is 
whether entities (permittees) holding the exempted taxa would be 
required to register with the Service. Thus, the new exemptions 
represent changes to the terms of the existing general permit, and 
public notice and comment procedures have been observed in developing 
those changes.
    Comment: The proposed exemptions improperly do away with the Act's 
requirement that listed species be held for scientific purposes or to 
enhance the propagation or survival of the species.
    Response: The proposed rule did not specify that the purpose of 
activities with species from taxa where the holder is exempted from 
registrating must be for the enhancement of propagation or survival of 
the species. This final rule now includes such language in the 
regulation at Sec. 17.21(g)(6)(i). Captive U.S. stocks of taxa to be 
exempted from the CBW registration requirement are characterized by 
large numbers of specimens and successful breeding efforts; therefore, 
their survival in captivity appears assured. The fact that these stocks 
are sufficient to satisfy demand is evidenced by little or no demand 
for additional specimens from the wild. Computerized permit records 
show that in the 3-year period 1991 to 1993, there were no imports of 
wild specimens of any of these taxa (for the pheasants, there have been 
no requests for such imports since 1986). Importation of wild-caught 
specimens of these taxa for breeding purposes could be approved only in 
unusual circumstances, including a definitive showing of need for new 
bloodlines that could only be satisfied by wild animals. A 
determination would have to be made that the status of the wild 
population would safely allow limited taking. Preference would be given 
to imports of captive-born specimens of the exempted taxa. The 
importation of either wild-caught specimens or specimens born in 
captivity outside the United States would continue to require permits 
under section 10 of the Act as well as the Convention on International 
Trade in Endangered Species.
    Comment: In the final rule published on December 27, 1993 (58 FR 
68323), Sec. 17.21(g)(1) was amended to state that the principal 
purpose of activities with animals regulated under the CBW system must 
be to facilitate captive breeding. Section 17.21(g)(1)(ii) requires 
that the purpose be to enhance the propagation or survival of the 
species. This double requirement is confusing and apparently redundant.
    Response: The Service agrees. The purpose of the wording added to 
Sec. 17.21(g)(1) was to indicate that public education could not be 
used as the sole basis for justifying issuance of a CBW registration 
for species that do not qualify for the exempted taxa list. The text of 
this final rule has been revised to clarify this issue.
    Comment: An objection was made that the proposed rule would require 
entities such as circuses to show that permanent exports of generic 
tigers would be for the purpose of enhancement of propagation or 
survival of the species in accordance with Sec. 17.21(g)(4). This does 
not make sense, since the Service has concluded that inter-subspecific 
crossed or generic tigers have no value in terms of preserving the 
species through propagation because they no longer have the same 
genetic makeup as wild populations.
    Response: The Service agrees that generic or inter-subspecific 
crossed tigers cannot be used for enhancement of propagation of the 
species. However, they can be used in a manner that should enhance 
survival of the species in the wild. Examples include exhibition in a 
manner designed to educate the public about the ecological role and 
conservation needs of the species and satisfaction of demand for tigers 
so that wild specimens or captive purebred subspecies are not used.
    Export of any of the exempted taxa will continue to require 
appropriate CITES documentation under 50 CFR part 23. The information 
required by Sec. 17.21(g)(4) can be submitted with the CITES 
application, as is current practice.

Discussion of Final Rule

    This final rule revises existing Secs. 17.3 and 17.21(g). These 
revisions and their effects are discussed below:
    1. ``Harass'' under the definition of ``take in Sec. 17.3 is an act 
or omission that creates the likelihood of injury by annoying wildlife 
to such an extent as to significantly disrupt normal behavior patterns. 
The applicability of this concept to captive-held animals has been 
unclear, since human activities, including normal husbandry practices, 
provided in caring for captive-held wildlife in all probability disrupt 
behavior patterns.
    In light of this, the definition of ``harass'' in 50 CFR 17.3 is 
modified to exclude normal animal husbandry practices that are not 
likely to result in injury such as humane and healthful care when 
applied to captive wildlife. While no permit is required to possess 
lawfully acquired listed wildlife, a person cannot possess wildlife 
without doing something to it that might be construed as harassment 
under a literal interpretation of the definition in use since 1979, 
e.g., keep it in confinement, provide veterinary care, etc. Under this 
scenario, a person who legally possessed wildlife without a permit 
could be considered in violation of the prohibition against harassment 
unless they obtained a specific permit that authorized them to conduct 
normal animal husbandry activities. Had Congress intended this result, 
the prohibition on possession in section 9 of the Act would not have 
been limited to endangered species taken in violation of the Act.
    However, maintaining animals in inadequate, unsafe or unsanitary 
conditions, physical mistreatment, and the like constitute harassment 
because such conditions might create the likelihood of injury or 
sickness. The Act continues to afford protection to listed species that 
are not being treated in a humane manner.
    2. Ten species of pheasants (family Phasianidae), parakeets of the 
species Neophema splendida and N. pulchella, the Laysan duck, the 
white-winged wood duck, and the ``generic'' tiger are exempted from the 
CBW registration

[[Page 48639]]

requirements of Sec. 17.21(g)(2), because their survival in captivity 
appears assured. All of these taxa are present in the United States in 
large numbers and/or are genetically unsuitable for scientifically-
based breeding programs (as is the case with the generic tiger). The 
four purebred subspecies of tiger in captivity in the United States are 
the subject of breeding programs under SSP's and will continue to 
require CBW registrations.
    Current holders of CBW registrations for the above taxa (listed in 
Sec. 17.21(g)(6)) will no longer need them. Applications for new or 
renewed registrations for these taxa that are pending before the 
Service on the effective date of this rule will not be processed.
    No written annual reports will be required of holders of these 
exempted taxa. However, record keeping and inspection requirements of 
50 CFR 13.46 and 13.47 are still in place for persons holding the 
exempted taxa or other captive-bred species requiring a CBW 
registration. It is estimated that the paperwork burden of the CBW 
system on the Service and the public will be reduced.
    The Service believes that this relaxation of the registration 
requirement in Sec. 17.21(g) will not operate to the disadvantage of 
the species in the wild; further, it will be consistent with the 
conservation of the species because domestic demand has been, and will 
continue to be, satisfied by captive-born wildlife. The import of live 
wild-caught specimens, including those belonging to the exempted taxa, 
would not be authorized unless evidence showed a need for new 
bloodlines that could not be satisfied by internal exchange or that 
foreign-bred specimens were unavailable. Furthermore, the Service would 
have to determine that the wild populations could sustain limited 
taking.

Regulatory Analysis

    This rulemaking has been reviewed by the Office of Management and 
Budget review under Executive Order 12866. Furthermore, the Department 
of the Interior certifies that this document will not have a 
significant economic effect on a substantial number of small entities 
(zoos, circuses, independent breeders) under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). This rule will beneficially affect about 
400 small entities currently registered under the CBW system. The 
economic effects are minor since they represent less than $20,000 and 
thus, the total effect on such small entities will be minimal. There 
will be a regulatory reduction for those entities holding species to be 
exempted from registration by this rule. This rule may also provide a 
reduction of risk to holders of captive wildlife because of the amended 
definition of ``harass''.
    This final rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act and will not 
negatively effect the economy, consumer costs, or U.S. based-
enterprises. The Service recognizes that the rule will effect a 
substantial number of small entities, such as zoo, circuses, or 
independent breeders, but in a beneficial manner.
    The Service has determined and certified pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will 
not impose a cost of $100 million or more in any given year on private 
entities, or local or State governments.
    The Department has determined that these final regulations meet the 
applicable standards provided in Section 3(a) and 3(b)(2) of Executive 
Order 12988.
    This rule will not have substantial direct effects on the States, 
in their relationship between the Federal Government and the States or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
12612 the Service has determined that the rule does not have 
significant Federalism implications to warrant the preparation of a 
Federalism Assessment.
    The Service has determined that the rule has no potential takings 
of private property implications as defined in Executive Order 12630.
    Persons registering with the Service for a captive-bred wildlife 
registration requires the collection of information, and the Office of 
Management and Budget has approved the collection of information 
contained in this rule under 44 U.S.C. 3501 et seq. and assigned 
clearance number 1018-0093 with an expiration date of February 28, 
20001. The application information submitted by a person for a captive-
bred wildlife registration is used by the Service to make decisions in 
accordance with wildlife regulations on the issuance, suspension, 
revocation or denial of permits. The Service has reviewed all permit 
information collection requirements and ensured the burden imposed on 
the public is the lowest possible. It should be noted that the main 
intent of this rule is to lower the number of persons needing a 
registration.
    The Service has reviewed this rule under Executive Order 12372 and 
determined that intergovernmental consultation is unnessary.
    The Service has determined that these regulations are categorically 
excluded from further National Environmental Policy Act (NEPA) 
requirements. Part 516 of the Departmental Manual, Chapter 6, Appendix 
I, section 1.4(A)(1) categorically excludes changes or amendments to an 
approved action when such changes have no potential for causing 
substantial environmental impact.
    The Service has evaluated possible effects on Federally recognized 
Tribes and determined that there will be no adverse effects to any 
Tribe. Any individual tribal member possessing a CBW registration will 
receive the same beneficial regulatory and economic relief as other 
registrants who hold wildlife species that will be exempted by this 
rule.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    For the reasons set forth in the preamble, title 50, chapter I, 
subchapter B, part 17, subpart C is amended as set forth below.

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500.

Subpart A--Introduction and General Provisions

    2. The definition of ``Harass'' in Sec. 17.3 is revised to read as 
follows:


Sec. 17.3  Definitions.

* * * * *
    Harass in the definition of ``take'' in the Act means an 
intentional or negligent act or omission which creates the likelihood 
of injury to wildlife by annoying it to such an extent as to 
significantly disrupt normal behavioral patterns which include, but are 
not limited to, breeding, feeding, or sheltering. This definition, when 
applied to captive wildlife, does not include generally accepted:
    (1) Animal husbandry practices that meet or exceed the minimum 
standards for facilities and care under the Animal Welfare Act,
    (2) Breeding procedures, or
    (3) Provisions of veterinary care for confining, tranquilizing, or

[[Page 48640]]

anesthetizing, when such practices, procedures, or provisions are not 
likely to to result in injury to the wildlife.
* * * * *

Subpart C--Endangered Wildlife

    3. Section 17.21(g) is revised to read as follows:


Sec. 17.21  Prohibitions.

* * * * *
    (g) Captive-bred wildlife. (1) Notwithstanding paragraphs (b), (c), 
(e) and (f) of this section, any person may take; export or re-import; 
deliver, receive, carry, transport or ship in interstate or foreign 
commerce, in the course of a commercial activity; or sell or offer for 
sale in interstate or foreign commerce any endangered wildlife that is 
bred in captivity in the United States provided either that the 
wildlife is of a taxon listed in paragraph (g)(6) of this section, or 
that the following conditions are met:
    (i) The wildlife is of a species having a natural geographic 
distribution not including any part of the United States, or the 
wildlife is of a species that the Director has determined to be 
eligible in accordance with paragraph (g)(5) of this section;
    (ii) The purpose of such activity is to enhance the propagation or 
survival of the affected species;
    (iii) Such activity does not involve interstate or foreign 
commerce, in the course of a commercial activity, with respect to non-
living wildlife;
    (iv) Each specimen of wildlife to be re-imported is uniquely 
identified by a band, tattoo or other means that was reported in 
writing to an official of the Service at a port of export prior to 
export from the United States; and
    (v) Any person subject to the jurisdiction of the United States who 
engages in any of the activities authorized by this paragraph does so 
in accordance with paragraphs (g) (2), (3) and (4) of this section, and 
with all other applicable regulations in this Subchapter B.
    (2) Any person subject to the jurisdiction of the United States 
seeking to engage in any of the activities authorized by this paragraph 
must first register with the Service (Office of Management Authority, 
U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Arlington, 
Virginia 22203). Requests for registration must be submitted on an 
official application form (Form 3-200-41) provided by the Service, and 
must include the following information:
    (i) The types of wildlife sought to be covered by the registration, 
identified by common and scientific name to the taxonomic level of 
family, genus or species;
    (ii) A description of the applicant's experience in maintaining and 
propagating the types of wildlife sought to be covered by the 
registration, and when appropriate, in conducting research directly 
related to maintaining and propagating such wildlife;
    (iii) Photograph(s) or other evidence clearly depicting the 
facilities where such wildlife will be maintained; and
    (iv) a copy of the applicant's license or registration, if any, 
under the animal welfare regulations of the U.S. Department of 
Agriculture (9 CFR part 2).
    (3) Upon receiving a complete application, the Director will decide 
whether or not the registration will be approved. In making this 
decision, the Director will consider, in addition to the general 
criteria in Sec. 13.21(b) of this subchapter, whether the expertise, 
facilities or other resources available to the applicant appear 
adequate to enhance the propagation or survival of the affected 
wildlife. Public education activities may not be the sole basis to 
justify issuance of a registration or to otherwise establish 
eligibility for the exception granted in paragraph (g)(1) of this 
section. Each person so registered must maintain accurate written 
records of activities conducted under the registration, and allow 
reasonable access to Service agents for inspection purposes as set 
forth in Secs. 13.46 and 13.47. Each person registered must submit to 
the Director an individual written annual report of activities, 
including all births, deaths and transfers of any type.
    (4) Any person subject to the jurisdiction of the United States 
seeking to export or conduct foreign commerce in captive-bred 
endangered wildlife that will not remain under the care of that person 
must first obtain approval by providing written evidence to satisfy the 
Director that the proposed recipient of the wildlife has expertise, 
facilities or other resources adequate to enhance the propagation or 
survival of such wildlife and that the proposed recipient will use such 
wildlife for purposes of enhancing the propagation or survival of the 
affected species.
    (5)(i) The Director will use the following criteria to determine if 
wildlife of any species having a natural geographic distribution that 
includes any part of the United States is eligible for the provisions 
of this paragraph:
    (A) Whether there is a low demand for taking of the species from 
wild populations, either because of the success of captive breeding or 
because of other reasons, and
    (B) Whether the wild populations of the species are effectively 
protected from unauthorized taking as a result of the inaccessibility 
of their habitat to humans or as a result of the effectiveness of law 
enforcement.
    (ii) The Director will follow the procedures set forth in the Act 
and in the regulations thereunder with respect to petitions and 
notification of the public and governors of affected States when 
determining the eligibility of species for purposes of this paragraph.
    (iii) In accordance with the criteria in paragraph (g)(5)(i) of 
this section, the Director has determined the following species to be 
eligible for the provisions of this paragraph:

Laysan duck (Anas laysanensis).

    (6) Any person subject to the jurisdiction of the United States 
seeking to engage in any of the activities authorized by paragraph 
(g)(1) of this section may do so without first registering with the 
Service with respect to the bar-tailed pheasant (Syrmaticus humiae), 
Elliot's pheasant (S. ellioti), Mikado pheasant (S. mikado), brown 
eared pheasant (Crossoptilon mantchuricum), white eared pheasant (C. 
crossoptilon), cheer pheasant (Catreus wallichii), Edward's pheasant 
(Lophura edwardsi), Swinhoe's pheasant (L. swinhoii), Chinese monal 
(Lophophorus lhuysii), and Palawan peacock pheasant (Polyplectron 
emphanum); parakeets of the species Neophema pulchella and N. 
splendida; the Laysan duck (Anas laysanensis); the white-winged wood 
duck (Cairina scutulata); and the inter-subspecific crossed or 
``generic'' tiger (Panthera tigris) (i e., specimens not identified or 
identifiable as members of the Bengal, Sumatran, Siberian or 
Indochinese subspecies (Panthera tigris tigris, P.t. sumatrae, P.t. 
altaica and P.t. corbetti, respectively) provided:
    (i) The purpose of such activity is to enhance the propagation or 
survival of the affected exempted species;
    (ii) Such activity does not involve interstate or foreign commerce, 
in the course of a commercial activity, with respect to non-living 
wildlife;
    (iii) Each specimen to be re-imported is uniquely identified by a 
band, tattoo or other means that was reported in writing to an official 
of the Service at a port of export prior to export of the specimen from 
the United States;
    (iv) No specimens of the taxa in this paragraph (g)(6) of this 
section that were taken from the wild may be imported for breeding 
purposes absent a definitive showing that the need for new bloodlines 
can only be met by wild specimens, that suitable foreign-bred,

[[Page 48641]]

captive individuals are unavailable, and that wild populations can 
sustain limited taking, and an import permit is issued under 
Sec. 17.22;
    (v) Any permanent exports of such specimens meet the requirements 
of paragraph (g)(4) of this section; and
    (vi) Each person claiming the benefit of the exception in paragraph 
(g)(1) of this section must maintain accurate written records of 
activities, including births, deaths and transfers of specimens, and 
make those records accessible to Service agents for inspection at 
reasonable hours as set forth in Secs. 13.46 and 13.47.

    Dated: May 26, 1998.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-24384 Filed 9-10-98; 8:45 am]
BILLING CODE 4310-55-P