[Federal Register Volume 67, Number 112 (Tuesday, June 11, 2002)]
[Rules and Regulations]
[Pages 39865-39868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14608]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 16

RIN 1018-AE34


Injurious Wildlife Species; Brushtail (Trichosurus vulpecula)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service adds the brushtail possum 
(Trichosurus vulpecula) to the list of injurious live mammals. By this 
action, the Service prohibits the importation into or transportation 
between the continental United States, the District of Columbia, 
Hawaii, the Commonwealth of Puerto Rico, or any territory or possession 
of the United States of any live brushtail possum. The best available 
information indicates that this action is necessary to protect the 
interests of forestry, human health and safety, and wildlife and 
wildlife resources from adverse effects that may result from purposeful 
or accidental introduction and subsequent establishment of the 
brushtail possum populations in the ecosystems of the United States. 
Live brushtail possums can only be imported by permit for scientific, 
medical, educational, or zoological purposes, or without a permit by 
Federal agencies solely for their own use; permits will also be 
required for the interstate transportation of live brushtail possums 
currently held in the United States for scientific, medical, 
educational, or zoological purposes. However, this action prohibits 
interstate transportation of live brushtail possums currently held in 
the United States for purposes not listed above.

DATES: This rule is effective July 11, 2002.

FOR FURTHER INFORMATION CONTACT: Kari Duncan, Division of Environmental 
Quality, Branch of Invasive Species at (703) 358-2464 or [email protected].

SUPPLEMENTARY INFORMATION:

Background

Summary of Actions Taken and Comments

    The Service published a request for information in the January 24, 
1996 (61 FR 1893), Federal Register as the result of a letter that we 
received from the Texas Animal Health Commission requesting that the 
Service prohibit the importation of T. vulpecula into the United 
States. The request for information included the entire Trichosurus 
genus, to ensure that all members of the genus that might pose a threat 
were covered. We received 11 responses, all indicating the extreme 
injurious nature of T. vulpecula. However, due to limited data on the 
injurious nature of the other species in the genus, we developed a 
proposed rule for the brushtail possum only. The proposed rule (64 FR 
59149, November 2, 1999) invited comments for 60 days ending January 3, 
2000. The Humane Society of the United States (HSUS) submitted the only 
comment received during this period. The HSUS supported the proposed 
rule but did not submit additional information as to why brushtail 
possums should be listed as injurious. Consequently, our decision to 
develop this final rule is based on the scientific information that we 
used for the proposed rule.

Description of the Final Rule

    The regulations contained in 50 CFR part 16 implement the Lacey Act 
(18 U.S.C. 42) as amended. Under the terms of that law, the Secretary 
of the Interior is authorized to prescribe by regulation those 
nonindigenous wild animals or viable eggs thereof, that are deemed to 
be injurious or potentially injurious to the health and welfare of 
human beings, the interests of agriculture, forestry, and horticulture, 
or the welfare of and survival of wildlife or wildlife resources of the 
United States. The lists of injurious wildlife species are at 50 CFR 
16.11-15. By adding brushtail possums to the list of injurious wild 
mammals, their importation into and transportation between, States, the 
District of Columbia, the Commonwealth of Puerto Rico, or any territory 
or possession of the United States by any means whatsoever is 
prohibited, except by permit for zoological, educational, medical, or 
scientific purposes, or by Federal agencies without a permit solely for 
their own use upon filing a written declaration with the District 
Director of Customs and the U.S. Fish and Wildlife Service Inspector at 
the port of entry. No live brushtail possums or progeny thereof, 
imported or transported under a permit may be sold, donated, traded, 
loaned, or transferred to any person or institution unless such person 
or institution has a permit issued by the Director of the Service. The 
interstate transportation of any live brushtail possum or viable 
gametes thereof currently held in the United States for any purpose not 
permitted is prohibited.

Biology

    Brushtail possums (Trichosurus vulpecula) belong to the Order 
Diprotodonta, superfamily Phalangeroidea, and family Phalangeridae. 
They are also known as the common brushtail possum, silver-grey possum, 
and phalanger. Native to Australia, the brushtail possum is the most 
familiar and abundant of the Australian possums, frequently cohabiting 
with humans. Head and body length range from 350 to 550 mm; tail length 
ranges from 250 to 400 mm. Females weigh between 1,500 and 3,500 grams, 
and males between 2,000 and 4,500 grams. They are generally silver-grey 
above, white to pale grey below. They have long, oval ears (50-60 mm); 
the tail is bushy with a naked area under the tip.
    The brushtail possum occurs in most areas of Australia where there 
are trees, especially open forests and woodlands. A nocturnal animal, 
it spends the day in a den in a hollow dead branch, tree trunk, fallen 
log, or even on the ground. In urban areas, almost any dark recess may 
be utilized, the space between a ceiling and a roof being commonly 
favored. Although it travels extensively on the ground, it is an 
arboreal (tree-dwelling) animal, climbing by means of its sharp claws, 
the opposable first toe of the hindfoot, and a moderately prehensile 
(grasping) tail. Although their diet consists mainly of vegetation such 
as leaves, bark, fruits, buds, flowers, fungi, and tree sprouts, 
brushtail possums may eat some insects, eggs, and small animals 
(Grzimek's Animal Encyclopedia).
    Communication is by sound and scent. Deep guttural coughs and sharp

[[Page 39866]]

hisses are frequent, particularly in the breeding season, and extensive 
use is made of glands under the chin, on the chest and near the anus, 
to mark areas and define occupancy. Brushtail possums usually live less 
than 11 years, but a record exists of an individual that lived for 11 
years.
    Most populations have a major autumn and a minor spring breeding 
season, but births have been recorded in all months of the year. 
Females usually begin to reproduce when about 1 year old. Over 90 
percent of females breed annually, and in some populations 50 percent 
may breed in both seasons. A single young is born 17-18 days after 
copulation, spends 4-5 months in the well-developed pouch attached to 
one of the two teats and develops rapidly. A further 1-2 months are 
spent suckling and riding on the mother's back before weaning is 
completed.
    According to the Australian Nature Conservation Agency, brushtail 
possum meat and fur has been used as a food and clothing source by 
Australian Aboriginals and more recently, the products have been in 
high demand in Asian countries (China, Hong Kong, Japan, etc.). Because 
of their pleasant disposition, brushtail possums have been imported 
into the United States as pets.
    On June 6, 1994, the U.S. Department of Agriculture's Animal and 
Plant Health Inspection Service (APHIS) published an interim rule (59 
FR 29186) prohibiting the importation of brushtail possums and 
hedgehogs from New Zealand to prevent the introduction of tuberculous 
infected animals into the United States. The intended effect was to 
protect domestic livestock from tuberculosis. APHIS published a final 
rule affirming the interim rule on January 23, 1995 (60 FR 4372). The 
tuberculosis issue is discussed in more detail below.
    This rule adds to the restrictions found in the APHIS regulations 
(found at 9 CFR 93.701) by expanding the prohibition on the importation 
of brushtail possums from all countries. It also prohibits interstate 
movement of these animals.

Factors That Contribute to Injuriousness

    Although few cases of brushtail possum ownership in the United 
States are known, the likelihood of escape, survival, establishment, 
and spread after escape is high. Between 1837 and 1930, about 200 
brushtail possums were released in New Zealand to establish a fur 
industry. Since that time, they have spread across 95% of New Zealand 
and the population is around 70 million (Department of Conservation 
National Possum Plan). Brushtail possums have become ubiquitous, 
adapting to numerous habitats and elevations, including tree lines, 
pastures, orchards, and cities, and can be found from sea level to 
above the snow line in mountains (The Ecological Effects of Possums on 
the New Zealand Environment). According to PawPrintOnline.com, a 
breeder of brushtail possums, ``In most areas of the United States, 
brushies can be housed outdoors year-round.'' Brushtail possums have 
few natural enemies, and although their reproductive rate is low, their 
populations increase rapidly because they become sexually mature at a 
young age (Grzimek's Animal Encyclopedia).
    Although the diet of brushtail possums consists mostly of leaves 
from trees and shrubs, they also eat buds, flowers, fruit, ferns, bark, 
fungi, some insects, eggs, and small mammals (Department of 
Conservation National Possum Control Plan). Brushtail possums compete 
with native New Zealand birds for foliage and fruit. By eating the 
flowers of at least 20 species of forest plants, they rob nectar and 
berries from several species of birds and other pollinators (bats, 
insects, etc.). Where den sites are available, they compete with hole-
nesting birds for cover. Diet requirements and feeding habits are 
expected to be the same in the United States indicating a high 
likelihood that brushtail possums will compete with native wildlife for 
food and habitats.
    The likelihood that brushtail possums would have adverse impacts on 
native wildlife, wildlife resources, and ecosystem balance through 
habitat degradation and/or destruction is high. They have dramatically 
altered native plant communities in New Zealand by eating native 
forests. Tall forests can be turned into scrub and bare ground. 
Brushtail possums attack the canopy, subcanopy, shrub layer, and 
ground. They weaken canopies and make them more susceptible to climate 
extremes, and infection from bacteria, fungi, and insects. Beneath the 
canopy and along the forest edge, they kill or suppress smaller trees 
and shrubs (Department of Conservation National Possum Control Plan).
    According to P.E. Cowan, possums have colonized virtually all of 
New Zealand's indigenous forests. Brushtail possums have caused 
modification and threatened major mortality to broadleaved hardwood 
forests and have severely damaged pine forests. ``Possums cause four 
major kinds of damage to pine trees: browsing of terminal shoots of 
newly planted seedlings, barkstripping and chewing of cambial tissue, 
breakage of the leader and top whorl of laterals, and cone loss from 
seed stands after trees mature.'' In New Zealand, damage has been 
reported on at least eight species of Pinus that are native to the 
United States: P. ponderosa, P. palustris, P. muricata, P. taeda, P. 
echinata, P. contorta, P. radiata, and P. elliottii (The Ecological 
Effects of Possums on the New Zealand Environment).
    The likelihood that brushtail possums will have adverse impacts on 
native wildlife through predation is high. Brushtail possums threaten 
animal species by preying on them, competing for food, or interfering 
with nesting sites (Department of Conservation National Possum Control 
Plan). In New Zealand, brushtail possums have been found to prey on the 
eggs and chicks of several rare native birds, such as kiwis, kokakos, 
parakeets, saddlebacks, and pigeons. Ground-dwelling birds in the 
United States would be particularly vulnerable to predation by 
brushtail possums.
    The likelihood that brushtail possums will have adverse impacts on 
native wildlife, wildlife resources, and ecosystem balance through the 
transfer of pathogens is high. Bovine tuberculosis (Mycobacterium 
bovis) is one of New Zealand's more serious health problems (70 Million 
Reasons for Concerted Action Against Possums). Brushtail possums are 
vectors for bovine tuberculosis and play a major role in keeping it in 
the environment. M. bovis can survive in open fields for days, in 
protected areas such as possum dens for 3 weeks, and in possum 
carcasses for 6 weeks (Annual Report from the Possum/Bovine 
Tuberculosis Control National Science Strategy Committee). Bovine 
tuberculosis usually concentrates in the lungs, thus making disease 
transmission through respiration a concern. M. bovis can also spread 
through urine, feces, mucus, and sinus drainage, making areas 
containing diseased possums highly contaminated (New Zealand 
Brushtailed Possums May Spread Bovine Tuberculosis, U.S. Department of 
Agriculture News, Report No. 0344.94). Bovine tuberculosis can be 
contracted through breathing respiratory excretions from infected 
animals or eating or drinking contaminated items. Animals susceptible 
to bovine tuberculosis include cattle, deer, elk, pigs, goats, sheep, 
cats, dogs, rabbits, ferrets, stoats, and hedgehogs (National Tb 
Strategy, Animal Health Board, and National Pest Management Strategy 
for Bovine Tb). The consequences of bovine tuberculosis in the United 
States would probably be more devastating than in

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New Zealand because of the richer mammalian fauna thus resulting in a 
wider distribution of the pathogen (Director, Madison Wildlife Health 
Lab, USGS-BRD).
    The likelihood of impacts on human beings, agriculture, and 
forestry is high. Historically bovine tuberculosis has been a 
significant human health problem. Humans are able to contract the 
disease by consumption of unpasteurized milk or by direct contact with 
infected animals or carcasses (National Pest Management Strategy for 
Bovine TB). In New Zealand, bovine tuberculosis spread by brushtail 
possums threatens the agricultural trade, especially exports of meat 
and dairy products (Attacking the Possum Plague). In the United States, 
cattle and deer farmers and industries based on beef, dairy, or venison 
products would be affected. Brushtail possums also pose a risk to the 
forestry resources of the United States. As stated earlier, brushtail 
possums have dramatically altered forests in New Zealand. Eight species 
of pine trees native to the United States are particularly vulnerable 
to damage from brushtail possums.

Factors That Reduce or Remove Injuriousness

    Few options are currently available for controlling brushtail 
possum populations. Eradication efforts in New Zealand have failed, so 
efforts have focused on managing established populations and 
controlling the spread to new locations. Several control methods are 
available in New Zealand: aerially sown compound 1080 poison (sodium 
monofluoroacetate), ground hunting (commercial hunters, bounties paid 
for skins, baiting), and trapping. The main advantages of aerially 
spread 1080 poison baits are that the method can be used over very 
large areas, its costs are little affected by the terrain, and all 
possums are put at risk simultaneously over a short period. Its main 
disadvantages are that wet weather may put the program at risk, and 
that 1080 poses a high risk of secondary poisoning to canids and may 
kill other non-target animals such as small birds, insects, and 
invertebrates (Department of Conservation National Possum Control 
Plan). Additionally, although 95% of the possums that eat the bait die, 
their sense of smell allows them to detect the poison and shy away from 
it. The use of compound 1080 in the United States is restricted to very 
controlled conditions. Biological control methods (sterility, possum-
specific viruses) are being investigated, but to date, none have proven 
to be effective (Attacking the Possum Plague).
    According to APHIS Wildlife Services, shooting and trapping are the 
only methods available for controlling Didelphis virginiana, the 
Virginia opossum (Jackson, 1994). There are no registered repellants, 
toxicants, or fumigants available in the United States. Since the 
brushtail possum has been compared to the Virginia opossum, trapping 
and shooting would likely be the only methods available for controlling 
the brushtail possum.
    The ability to prevent and control the spread of pathogens is 
dependent upon controlling the spread of the vectors. In New Zealand, 
endemic M. bovis infection in feral populations of Australian brushtail 
possums is considered an important reservoir for repeated episodes of 
tuberculosis infection in cattle. As mentioned above, efforts to 
eradicate brushtail possums in New Zealand have failed. It has 
gradually been accepted by New Zealand disease control authorities that 
in areas where possum tuberculosis is endemic, eradication of 
tuberculosis is not possible. The consequences of bovine tuberculosis 
in this country would probably be more devastating than in New Zealand 
because of the richer mammalian fauna.
    Because brushtail possums may transmit pathogens to humans, 
livestock, and wildlife; damage or destroy native forests; prey upon, 
compete for food, or displace native wildlife; and because control 
methods are limited, the Service has determined that the brushtail 
possum is potentially injurious to human beings, forestry and 
agriculture interests, and the wildlife and wildlife resources of the 
United States.

Regulatory Planning and Review

    In accordance with Executive Order 12866, the Office of Management 
and Budget has determined that this rule is not a significant 
regulatory action.
    (a) It will not have an annual economic effect of $100 million or 
adversely affect an economic sector, productivity, jobs, the 
environment, or other units of the government. A cost-benefit and 
economic analysis is not required. The Animal and Plant Health 
Inspection Service (APHIS) of the Department of Agriculture has 
developed and implemented regulations prohibiting the importation of 
brushtail possums from New Zealand because they carry bovine 
tuberculosis. This rule increases restrictions over and above the 
Department of Agriculture regulations (9 CFR 93.701) by expanding this 
prohibition to all countries. Consequently, economic analysis is 
restricted to the effect that these additional importation restrictions 
will have on the American economy.
    The brushtail possum is abundant in Australia, including Tasmania. 
They have been hunted in Tasmania since the 1920's for fur. The fur 
market has declined in recent years, and the possum industry has been 
selling skins and meat to Taiwan and China. World trade in brushtail 
possums mainly focuses on meat mostly going to Asian markets. Between 
January 1, 1999, and December 31, 2001, only two live brushtail possums 
were imported into the United States at a declared value of $972 and 
one live brushtail possum was exported at a declared value of $200. 
Therefore, this rule should have little, if any, measurable economic 
effect on the U.S. economy and will not have an annual effect equaling 
$100 million or more for a significant rulemaking action.
    A major, though not quantified, effect of this rule is the reduced 
risk of substantial agricultural and environmental damage in the United 
States including the spread of M. bovis, that could occur if brushtail 
possums escape from captivity. Risk reduction is a benefit of this rule 
that cannot be quantified with existing data. However, the damage 
caused by brushtail possums in New Zealand is well documented.
    (b) This rule does not create inconsistencies with other agencies' 
actions. It will expand the prohibition established by APHIS for 
importation from New Zealand to importation from all countries because 
of the potential of brushtail possums carrying M. bovis and the damage 
they could inflict on native ecosystems.
    (c) This rule does not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients 
and does not affect entitlement programs.
    (d) It does not raise novel legal or policy issues. No previous 
listings of wildlife as injurious in the past have raised legal or 
policy concerns. Because only two live brushtail possums were imported 
and only one live brushtail possum was exported between 1996 and 2001, 
this rule is not expected to raise legal, policy, or any other issues.
    This rule does not have a significant economic effect on a 
substantial number of small entities as defined in the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) Neither a Regulatory Flexibility 
Analysis nor a Small Entity Compliance Guide is required. Only two live 
animals were imported and only one live animal was exported over a 
five-year period; therefore, no small industry within the United States 
will be significantly affected if importation and

[[Page 39868]]

interstate movement of brushtail possum is not allowed.
    This is not a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. It does not have an annual effect 
on the economy of $100 million or more. Two brushtail possum breeders 
advertise on the Internet. USDA-APHIS records indicate that there may 
be as many as 20 breeders in the United States. Only two live brushtail 
possums were imported into the United States between 1996 and 2001 at a 
declared value of $972 and only one live brushtail possum was exported 
during that same period. The Service believes that a market for live 
brushtail possums has not been established in the United States. 
Consequently, there are no measurable economic effects on small 
businesses.
    This rule will not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, or local government 
agencies; or geographic regions. It does not have significant adverse 
effects on competition, employment, investment productivity, 
innovation, or the ability of United States-based enterprises to 
compete with foreign-based enterprises. The low number of brushtail 
possums imported into the United States indicates that listing the 
brushtail possum as injurious would not have significant adverse 
effects.
    The rule does not significantly or uniquely affect small 
governments, and a Small Government Agency Plan is not required. The 
rule will not impose a cost of $100 million or more in any given year 
on local or State government or private entities.
    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. This rule will impose few requirements or limitations on 
private property use. While interstate transport of brushtail possums 
already within the United States will be prohibited, continued 
possession of these animals is not restricted.
    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. This rule will not have substantial direct effects on States, 
in the relationship between the Federal Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. In accordance with Executive Order 13132, this 
rule does not have sufficient Federalism implications to warrant the 
preparation of a Federal Assessment.
    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Executive Order. This rule has been reviewed to eliminate 
drafting errors and ambiguity, was written to minimize litigation, 
provides a clear legal standard for affected conduct rather than a 
general standard, and promotes simplification and burden reduction.
    This rule contains information collection activity for special use 
permits. The Fish and Wildlife Service has OMB approval for the 
collection under OMB Control Number 1018-0012. The Service may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.
    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. An environmental impact 
statement is not required. The action is categorically excluded under 
the Departmental NEPA procedures (516 DM 2, Appendix 1.10), which apply 
to policies, directives, regulations, and guidelines of an 
administrative, legal, technical, or procedural nature; or the 
environmental effects of which are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis and will be 
subject later to the NEPA process, either collectively or case-by-case.
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), Executive Order 13175, and 512 DM 2, we have 
evaluated potential effects on Federally recognized Indian tribes and 
have determined that there are no potential effects.
    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. Because this rule is 
intended to prevent the accidental or intentional introduction of 
brushtail possums and the possible subsequent establishment of 
populations of these animals in the wild, it is not a significant 
regulatory action under Executive Order 12866 and is not expected to 
significantly affect energy supplies, distribution, and use. Therefore, 
this action is not a significant energy action and no Statement of 
Energy Effects is required.

References Cited

    A complete list of all references cited in this rule is available 
upon request from the Division of Environmental Quality (see FOR 
FURTHER INFORMATION CONTACT section).

Authority

    The Service is issuing this final rule under the authority of the 
Lacey Act (18 U.S.C. 42).

List of Subjects in 50 CFR Part 16

    Fish, Imports, Reporting and recordkeeping requirements, 
Transportation, Wildlife.
    For the reasons discussed in the preamble, we amend Part 16 
Subchapter B of Chapter I, Title 50 of the Code of Federal Regulations 
as set forth below.

PART 16--[AMENDED]

    1. The authority citation continues to read as follows:

    Authority: 18 U.S.C. 42.


    2. Amend Sec. 16.11 by revising paragraph (a) to read as follows:


Sec. 16.11  Importation of live wild mammals.

    (a) The importation, transportation, or acquisition is prohibited 
of live specimens of: (1) Any species of so-called ``flying fox'' or 
fruit bat of the genus Pteropus; (2) any species of mongoose or meerkat 
of the genera Atilax, Cynictis, Helogale, Herpestes, Ichneumia, Mungos, 
and Suricata; (3) any species of European rabbit of the genus 
Oryctolagus; (4) any species of Indian wild dog, red dog, or dhole of 
the genus Cuon; (5) any species of multimammate rat or mouse of the 
genus Mastomys; (6) any raccoon dog, Nyctereutes procyonoides; and (7) 
any brushtail possum, Trichosurus vulpecula: Provided, that the 
Director shall issue permits authorizing the importation, 
transportation, and possession of such mammals under the terms and 
conditions set forth in Sec. 16.22.
* * * * *

    Dated: May 22, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-14608 Filed 6-10-02; 8:45 am]
BILLING CODE 4310-55-P