Fish and Wildlife Service, Interior.
We, the U.S. Fish and Wildlife Service (Service), propose to amend the regulations that implement the Endangered Species Act (Act) by removing inter-subspecific crossed or generic tiger (Panthera tigris) (i.e., specimens not identified or identifiable as members of Bengal, Sumatran, Siberian, or Indochinese subspecies from the list of species that are exempt from registration under the Captive-bred Wildlife (CBW) regulations. The exemption currently allows those individuals or breeding operations who want to conduct otherwise prohibited activities, such as take, interstate commerce, and export, under the Act with U.S. captive-bred, live inter-subspecific crossed or generic tigers to do so without becoming registered. We are proposing this change to the regulations to strengthen control over captive breeding of tigers in the United States to ensure that such breeding supports the conservation of the species in the wild consistent with the purposes of the Act. The inter-subspecific crossed or generic tigers remain listed as endangered under the Act, and a person would need to obtain authorization under the current statutory and regulatory requirements to conduct any otherwise prohibited activities with them.
We will consider comments received or postmarked on or before September 21, 2011.
You may submit comments by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Enter Keyword or ID box, enter FWS-R9-IA-2011-0027, which is the docket number for this rulemaking. Then, in the Search panel at the top of the screen, under the Document Type heading, check the box next to Proposed Rules to locate this document. You may submit a comment by clicking on “Send a Comment.”
By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R9-IA-2011-0027; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
We will not accept e-mails or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section at the end of SUPPLEMENTARY INFORMATION for further information about submitting comments).Start Further Info
FOR FURTHER INFORMATION CONTACT:
Timothy J. Van Norman, Chief, Branch of Permits, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 212, Arlington, VA 22203; telephone 703-358-21040; fax 703-358-2281. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.End Further Info End Preamble Start Supplemental Information
To prevent the extinction of wildlife and plants, the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), and its implementing regulations, prohibit any person subject to the jurisdiction of the United States from conducting certain activities unless authorized by a permit. These activities include import, export, take, and interstate or foreign commerce. The Department of the Interior may permit these activities for endangered species for scientific research or enhancement of the propagation or survival of the species, provided the activities are consistent with the purposes of the Act. Start Printed Page 52298In addition, for threatened species, permits may be issued for the above-listed activities, as well as zoological, horticultural, or botanical exhibition; education; and special purposes consistent with the Act. The Secretary of the Interior has delegated the authority to administer endangered and threatened species permit matters to the Director of the Fish and Wildlife Service. The Service's Division of Management Authority administers the permit program for the import or export of listed species; the sale or offer for sale in interstate and foreign commerce for nonnative listed species; and the take of nonnative listed wildlife within the United States.
Previous Federal Action
In 1979, the Service published the Captive-bred Wildlife (CBW) regulations (44 FR 54002, September 17, 1979) to reduce Federal permitting requirements and facilitate captive breeding of endangered and threatened species under certain conditions. These conditions include:
(1) A person may become registered with the Service to conduct otherwise prohibited activities when the activities can be shown to enhance the propagation or survival of the species;
(2) Interstate commerce is authorized only when both the buyer and seller are registered for the same species;
(3) The registration is only for live, mainly non-native endangered or threatened wildlife that was born in captivity in the United States (although the Service may determine that a native species is eligible for the registration; to date, the only native species granted eligibility under the registration is the Laysan duck (Anas laysanensis));
(4) Registration does not authorize activities with non-living wildlife, a provision that is intended to discourage the propagation of endangered or threatened wildlife for consumptive markets; and
(5) The registrants are required to maintain written records of authorized activities and report them annually to the Service. The CBW registration has provided zoological institutions and breeding operations the ability to quickly move animals between registered institutions for breeding purposes.
In 1993, the Service amended the CBW regulations at 50 CFR 17.21(g) (58 FR 68323, December 27, 1993) to eliminate public education through exhibition of living wildlife as the sole justification for the issuance of a CBW registration. “This 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” (63 FR 48636).
In 1998, the Service amended the CBW regulations (63 FR 48634, September 11, 1998) to delete the requirement to obtain a CBW registration for holders of inter-subspecific crossed or generic tigers (Panthera tigris) (i.e., specimens not identified or identifiable as members of Bengal, Sumatran, Siberian, or Indochinese subspecies (Panthera tigris tigris, P. t. sumatrae, P. t. altaica, and P. t. corbetti, respectively)). Any otherwise prohibited activities with these specimens are authorized only when the activities can be shown to enhance the propagation or survival of the species, provided the principal purpose is to facilitate captive breeding. Although no written annual reports are required, holders of these specimens must maintain accurate written records of activities, including births, deaths, and transfers of specimens, and make the records accessible to Service agents for inspection at reasonable hours as provided in 50 CFR 13.46 and 13.47. The exemption for inter-subspecific crossed or generic tigers was based on the alleged lack of conservation value of these specimens due to their mixed or unknown genetic composition. The intention behind the exemption was for the Service to focus its oversight on populations of “purebred” animals of the various tiger subspecies to further their conservation in the wild. Despite this exemption, inter-subspecific crossed or generic tigers are still protected under the Act.
The wild tiger was once abundant throughout Asia. By the end of the 19th Century, an estimated 100,000 tigers occurred in the wild (Nowak 1999, p. 828), but by the late 1990s, the estimated population declined to 5,000-7,000 animals (Seidensticker et al. 1999, p. xvii). Today's population is thought to be 3,000-5,000 individuals, according to the IUCN (International Union for Conservation of Nature) Red List estimate (Chundawat et al. 2010, unpaginated), with no more than 2,500 mature breeding adults (Williamson and Henry 2008, pp. 7, 43). The once-abundant tiger now lives in small, fragmented groups, mostly in protected forest, refuges, and national parks (FWS 2010a, p. 1). The species occupies only about 7 percent of its original range, and in the past decade, the species' range has decreased by as much as 41 percent (Dinerstein et al. 2007, p. 508).
For many years, the international community has expressed concern about the status of tigers in the wild and the risk that captive tigers may sustain the demand for tiger parts, which would ultimately have a detrimental effect on the survival of the species in the wild. In 2005, Werner (p. 24) estimated there were 4,692 tigers held in captivity in the United States. Approximately 264 tigers were held in institutions registered with the Association of Zoos and Aquariums (AZA), 1,179 in wildlife sanctuaries, 2,120 in institutions registered by the U.S. Department of Agriculture (USDA), and 1,120 in private hands. In 2008, Williamson and Henry stated that as many as 5,000 tigers are in captivity in the United States, but cautioned that, given the current State and Federal legal framework that regulates U.S. captive tigers, the exact size of the population is unknown (Williamson and Henry 2008). An estimated 5,000 captive tigers occur on China's commercial tiger farms, where tigers are being bred intensively and produce more than 800 animals each year (Williamson and Henry 2008, p. 40). Tiger body parts, such as organs, bones, and pelts, are in demand not only in China, but also on the global black market. Organs and bones are used in traditional Asian medicines, which are purchased by consumers who believe the parts convey strength, health, and virility.
The tiger is a species of global concern, is classified as endangered in the IUCN Red List (IUCN 2010), and is protected by a number of U.S. laws and treaties. It is listed as endangered under the Act. Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.” The listing is at the species level and, thus, includes all subspecies of tiger (including those that are of unknown subspecies, referred to as “generic” tigers) and inter-subspecific crosses.
The species is also protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Under this treaty, 175 member countries (Parties) work together to ensure that international trade in protected species is not detrimental to the survival of wild populations. The United States and all the tiger range countries are Parties to CITES. The tiger is listed in Appendix I, which includes species threatened with extinction whose trade is permitted only under exceptional circumstances, and which generally precludes commercial trade. The United Start Printed Page 52299States has a long history of working within CITES to promote tiger conservation and has been a leader in supporting strong actions within CITES for tigers, including strict controls on captive-bred animals. In 2007 at the 14th meeting of the Conference of the Parties to CITES (CoP14), we were closely involved in drafting Decision 14.69, which calls on countries with intensive commercial breeding operations of tigers to implement measures to restrict the captive population to a level supportive only to conserving wild tigers, and for tigers not to be bred for trade in their parts and products. Although the decision was primarily directed at large commercial breeding operations such as those found in China, we are aware of the large number of captive tigers in the United States and the need to be vigilant in monitoring these tigers as well.
The tiger is afforded additional protection under the Captive Wildlife Safety Act (CWSA) and the Rhinoceros and Tiger Conservation Act (RTCA). The CWSA amended the Lacey Act to address concerns about public safety and the growing number of big cats, including tigers, in private hands in the United States. The law and its regulations make it illegal to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any live big cats except by certain exempt entities. Entities exempt from the CWSA include a person, facility, or other entity licensed by the USDA Animal and Plant Health Inspection Service under the Animal Welfare Act to possess big cats (typically zoos, circuses, and researchers) or registered to transport big cats; State colleges, universities, and agencies; State-licensed wildlife rehabilitators and veterinarians; and wildlife sanctuaries that meet certain criteria.
The RTCA is another powerful tool in combating the international trade in products containing tiger parts. It prohibits the sale, import, and export of products intended for human use and containing, or labeled or advertised as containing, any substance derived from tiger and provides for substantial criminal and civil penalties for violators. The RTCA also establishes a fund that allows the Service to grant money in support of on-the-ground tiger conservation efforts, such as anti-poaching programs, habitat and ecosystem management, development of nature reserves, wildlife surveys and monitoring, management of human-wildlife conflict, and public awareness campaigns (FWS 2010b. p. 1).
Concerns Raised and Recommendations
The World Wildlife Fund, TRAFFIC North America, other nongovernmental organizations (NGOs), and the public have expressed concerns about the potential role U.S. captive tigers may play in the trade in tiger parts. In July 2008, TRAFFIC published a report entitled, Paper Tigers? The Role of the U.S. Captive Tiger Population in the Trade in Tiger Parts (Williamson and Henry 2008). The report found no indication that U.S. tigers currently are entering domestic or international trade as live animals or as parts and products. However, given the precarious status of tigers in the wild and the potential that U.S. captive tigers could enter trade and undermine conservation efforts, TRAFFIC made several recommendations to close potential loopholes in current Federal and State regulations to address the potential use of captive U.S. tigers in trade. One of those recommendations was for the Service to rescind the exemption under 50 CFR 17.21(g)(6) for holders of inter-subspecific crossed or generic tigers to register and submit annual reports under the CBW regulations.
Proposed Removal of Inter-Subspecific Crossed or Generic Tigers From 50 CFR 17.21(g)(6)
Based on an analysis of current information on factors posing a threat to tigers and their status in the wild, we propose to amend the CBW regulations that implement the Act by removing inter-subspecific crossed or generic tiger (Panthera tigris) (i.e., specimens not identified or identifiable as members of Bengal, Sumatran, Siberian, or Indochinese subspecies (Panthera tigris tigris, P. t. sumatrae, P. t. altaica, and P. t. corbetti, respectively) from paragraph (g)(6) of 50 CFR 17.21. This action would eliminate the exemption from registering and reporting under the CBW regulations by persons who want to conduct otherwise-prohibited activities under the Act with live inter-subspecific crossed or generic tigers born in the United States. Inter-subspecific crossed or generic tigers remain listed as endangered under the Act, and a person would need to qualify for an exemption or obtain an authorization under the remaining statutory and regulatory requirements to conduct any prohibited activities.
We are proposing this change to the regulations to ensure that we maintain strict control of captive tigers in the United States. We do not believe that breeding inter-subspecific crossed or generic tigers provides a conservation benefit for the long-term survival of the species. Inter-subspecific tiger crosses and animals of unknown subspecies cannot be used for maintaining genetic viability and distinctness of specific tiger subspecies. Generic tigers are of unknown genetic origin and are typically not maintained in a manner to ensure that inbreeding or other inappropriate matings of animals do not occur. By exempting inter-subspecific crossed or generic tigers from the CBW registration process in 1998, we may have inadvertently suggested that the breeding of these tigers qualifies as conservation. By removing the exemption, we can reinforce the value of conservation breeding of individual tiger subspecies and discourage the breeding of tigers of unknown or mixed lineage.
Although we are unaware of any evidence that tiger parts are entering into trade from the captive U.S. population of tigers, we recognize that the use of tiger parts and products, including in traditional medicine, poses a significant threat to wild tiger populations. The United States has worked vigorously with other CITES countries to encourage not only the adoption of measures to protect wild tiger populations from poaching and illegal trade, but also the implementation of measures to ensure that breeding of tigers in captivity supports conservation goals and that tigers are not bred for trade in parts and products. Despite a lack of evidence that parts from captive-bred tigers in the United States are entering international trade, we are taking this action out of an abundance of caution given the precarious status of tigers in the wild.
The CBW exemption also has created enforcement difficulties. Specifically, law enforcement cases have hinged on whether activities the Service has identified as illegal were actually exempted under the current regulations. By removing the exemption, persons engaged in otherwise-prohibited activities will need to obtain a permit or other authorization, giving the Service greater ability to make enforcement cases involving tigers.
It should be noted, however, that removing the exemption for inter-subspecific crossed or generic tigers will not result in control of ownership, intrastate commerce, or noncommercial movement of these tigers across State lines. These activities are not prohibited by the Act, and we have no authority to prohibit them.
Finally, we are also proposing to reorganize paragraph (g)(6) to make the section clearer and more user-friendly. The proposed text reorganizes the list of species that are exempted from the Start Printed Page 52300registration process by grouping like species together. This reorganization consists primarily of redesignating subparagraphs. With the exception of removing inter-subspecific crossed or generic tigers, the text is the same as currently appears in 50 CFR 17.21(g)(6).
Regulatory Planning and Review—Executive Order 12866: The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria.
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act: Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions) (5 U.S.C. 601 et seq.). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.
The U.S. Small Business Administration (SBA) defines a small business as one with annual revenue or employment that meets or is below an established size standard. We expect that the majority of the entities involved in taking, exporting, re-importing, and selling in interstate or foreign commerce of inter-subspecific crossed or generic tigers would be considered small as defined by the SBA.
This proposed rule would require individuals conducting otherwise prohibited activities with the inter-subspecific crossed or generic tiger to apply for authorization under the Act and pay an application fee of $100-$200. The regulatory change is not major in scope and would create only a modest financial or paperwork burden on the affected members of the general public.
We, therefore, certify that this rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.
Small Business Regulatory Enforcement Fairness Act: This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:
a. Would not have an annual effect on the economy of $100 million or more. This rule proposes to remove the inter-subspecific crossed or generic tigers from the exemption to register under the CBW regulations. If finalized, individuals and captive-breeding operations would need to obtain endangered species permits or other authorization to engage in certain otherwise prohibited activities. This proposed rule would not have a negative effect on this part of the economy. It will affect all businesses, whether large or small, the same. There is not a disproportionate share of benefits for small or large businesses.
b. Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, Tribal, or local government agencies; or geographic regions. This rule would result in a small increase in the number of applications for permits or other authorizations to conduct otherwise-prohibited activities with inter-subspecific crossed or generic tigers.
c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act: Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):
a. This proposed rule would not significantly or uniquely affect small governments. A Small Government Agency Plan is not required.
b. This proposed rule would not produce a Federal requirement of $100 million or greater in any year and is not a “significant regulatory action” under the Unfunded Mandates Reform Act.
Takings: Under Executive Order 12630, this rule would not have significant takings implications. A takings implication assessment is not required. This proposed rule is not considered to have takings implications because it allows individuals to obtain authorization for otherwise prohibited activities with the inter-subspecific crossed or generic tigers when issuance criteria are met.
Federalism: This proposed revision to part 17 does not contain significant Federalism implications. A Federalism Assessment under Executive Order 13132 is not required.
Civil Justice Reform: Under Executive Order 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of subsections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act: The Office of Management and Budget approved the information collection in part 17 and assigned OMB Control Number 1018-0093, which expires February 28, 2014. This proposed rule does not contain any new information collections or recordkeeping requirements for which OMB approval is required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We 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.
National Environmental Policy Act (NEPA): The Service has determined that this proposed action is a regulatory change that is administrative and procedural in nature. As such, the proposed amendment is categorically excluded from further NEPA review as provided by 43 CFR 46.210(i), of the Department of the Interior Implementation of the National Environmental Policy Act of 1969; final rule (73 FR 6129269 (October 15, 2008)). No further documentation will be made.
Government-to-Government Relationship with Tribes: Under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated possible effects on Federally recognized Indian Tribes and have determined that there are no effects.
Energy Supply, Distribution or Use: Executive Order 13211 pertains to regulations that significantly affect Start Printed Page 52301energy supply, distribution, and use. This proposed rule would not significantly affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.
Clarity of this Regulation: We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.
You may submit your comments and materials concerning this rule by one of the methods listed in the ADDRESSES section. We will not accept comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.
We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your written comments, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service; Division of Management Authority; 4401 N. Fairfax Drive, Suite 212; Arlington, VA 22203; telephone, (703) 358-2093.Start List of Subjects
List of Subjects in 50 CFR Part 17
- Endangered and threatened species
- Reporting and recordkeeping requirements
Proposed Regulation Promulgation
For the reasons given in the preamble, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:Start Part
1. The authority citation for part 17 continues to read as follows:
2. Amend § 17.21 by revising paragraph (g)(6) to read as set forth below:
(g) * * *
(6) Exemption from registration requirement.
(i) If the conditions in paragraph (g)(6)(ii) of this section are met, then 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 following species:
(A) 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);
(B) Parakeets of the species Neophema pulchella and N. splendida;
(C) The Laysan duck (Anas laysanensis); and
(D) The white-winged wood duck (Cairina scutulata).
(ii) Conditions for exemption to register. The following conditions must exist for persons dealing with the species listed in paragraph (g)(6)(i) of this section to be eligible for exemption from the requirement to register with the Service:
(A) The purpose of the activity is to enhance the propagation or survival of the affected exempted species.
(B) Such activity does not involve interstate or foreign commerce, in the course of a commercial activity, with respect to nonliving wildlife.
(C) Each specimen to be reimported 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.
(D) No specimens of the taxa in 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 be met only by wild specimens, that suitable foreign-bred, captive individuals are unavailable, and that wild populations can sustain limited taking. In addition, an import permit must be issued under § 17.22.
(E) Any permanent exports of such specimens meet the requirements of paragraph (g)(4) of this section.
(F) 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 §§ 13.46 and 13.47.
Dated: August 4, 2011.
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-21303 Filed 8-19-11; 8:45 am]
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