[Federal Register Volume 71, Number 20 (Tuesday, January 31, 2006)]
[Proposed Rules]
[Pages 5041-5048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-1191]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 14
RIN 1018-AT69
Regulations To Implement the Captive Wildlife Safety Act
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to implement
the Captive Wildlife Safety Act (CWSA). The CWSA amends the Lacey Act
by making it illegal to import, export, buy, sell, transport, receive,
or acquire, in interstate or foreign commerce, live lions, tigers,
leopards, snow leopards, clouded leopards, cheetahs, jaguars, or
cougars, or any hybrid combination of any of these species, unless
certain exceptions are met.
DATES: Submit comments on this proposed rule or on the proposed
information collection in this proposed rule by March 2, 2006.
ADDRESSES: Comments and materials concerning this proposed rule should
be sent to: Special Agent in Charge, Branch of Investigations, U.S.
Fish and Wildlife Service, Office of Law Enforcement (OLE), 4401 North
Fairfax Drive, MS: LE-3000, Arlington, Virginia 22203, or via fax to:
(703) 358-2271. Comments and materials may be hand-delivered to the
U.S. Fish and Wildlife Service, OLE, 4501 North Fairfax Drive, Suite
3000, Arlington, VA, between the hours of 8 a.m. and 4 p.m., Monday
through Friday. You may also submit comments, identified by RIN 1018-
AT69, to the Federal eRulemaking portal at: http://www.regulations.gov.
Follow the instructions for submitting comments.
Send any comments on the information collection contained in this
proposed rule to the Office of Management and Budget's (OMB) Desk
Officer for the Department of the Interior at OMB-OIRA at (202) 395-
6566 (fax) or [email protected] (e-mail). Please provide a copy
of your comments to Hope Grey, Information Collection Clearance
Officer, U.S. Fish and Wildlife Service, MS 222-ARLSQ, 4401 North
Fairfax Drive, Arlington, VA 22203 (mail); (703) 358-2269 (fax); or
[email protected] (e-mail).
FOR FURTHER INFORMATION CONTACT: Kevin Garlick, Special Agent in
Charge, Branch of Investigations, U.S. Fish and Wildlife Service, OLE,
at (703) 358-1949.
SUPPLEMENTARY INFORMATION:
Background
The CWSA was signed into law on December 19, 2003 (Pub. L. 108-
191). The purpose of the CWSA is to amend the Lacey Act Amendments of
1981 to further the conservation of certain wildlife species and to
protect the public from dangerous animals.
In the early 1900s, Congress recognized the need to support States
in protecting their game animals and birds by prohibiting the
interstate shipment of wildlife killed in violation of State or
territorial laws. Today this legislation is known as the Lacey Act,
named for its principal sponsor, U.S. Representative John Fletcher
Lacey, R-Iowa. Most significantly amended in 1981, the Lacey Act makes
it unlawful to import, export, transport, sell, purchase, receive, or
acquire fish, wildlife, or plants taken, possessed, transported, or
sold in violation of any Federal, State, foreign, or Native American
tribal law, treaty, or
[[Page 5042]]
regulation. The Lacey Act applies to all fish and wildlife (including
their parts or products), and wild plants (including plant parts) that
are indigenous to the United States and are included in the appendices
to the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) or are listed under a State conservation law.
However, the Lacey Act did not explicitly address the problem of
the increasing trade in large cat species. The large cat species, which
include the lion, tiger, leopard, snow leopard, clouded leopard,
cheetah, jaguar, and cougar, are extremely effective predators, capable
in the wild of taking down prey twice their own size. Severe damage to
the prey's nervous system caused by damage to the vertebral column,
along with massive blood loss and nearly instant suffocation, all
contribute to the prey's certain, and nearly immediate death. The large
cats are hunters by nature and, regardless of whether they were raised
in captivity, it is impossible to predict when they will revert to
instinct. Contemporary experts on large cat behavior and physiology
note that humans are not part of the large cats' natural diet, largely
because the large cats have learned to treat humans as another predator
and to be wary of the dangers of human activity; for example, hunting
and habitat encroachment. When large cats and humans do share territory
or interact, usually because of human activity, any number of reasons,
including hunger, can cause large cats to attack and inflict serious
injuries. They are wild creatures that are never completely tamed, nor
are they totally predictable, even if they have lived their entire
lives with humans.
The ownership of large cat species has dramatically increased in
popularity. It is estimated that thousands of individual large cats of
various species are kept as pets in the United States. This increase is
due, in part, to internet sales and auctions. This increase in
popularity has raised concerns for public safety as well as for the
welfare of the big cats. As the cats are often purchased when young,
many owners are unable to cope with the high maintenance needs of the
mature cats. Too often, the owners lack the resources and veterinary
knowledge these grown cats require. In the hands of untrained exotic-
pet fanciers, large cats are not only a potential danger to people, but
are often victims themselves. Additionally, the burden of care often
lands on already financially strained sanctuaries or humane societies
after the cats are abandoned because they are too dangerous to keep or
too expensive to care for properly.
Over the past 10 years, there have been thousands of incidents of
human injury and death documented, involving many different species of
wild animals, many of which were large cats. According to the Captive
Wild Animal Protection Coalition, in the past 5 years there have been
123 incidents involving large cats, including 87 injuries or deaths to
adults and children and 38 animal escapes. Nineteen States (Alabama,
Alaska, California, Colorado, Connecticut, Florida, Georgia, Hawaii,
Illinois, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire,
New Mexico, Tennessee, Utah, Vermont, and Wyoming) prohibit the private
possession of large cats. Sixteen States (Arizona, Delaware, Indiana,
Maine, Mississippi, Montana, New Jersey, New York, North Dakota,
Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, and
Virginia) have a partial ban on possession of large cats or require
permits for their possession. Fifteen States (Arkansas, Idaho, Iowa,
Kansas, Kentucky, Louisiana, Minnesota, Missouri, Nevada, North
Carolina, Ohio, South Carolina, Washington, West Virginia and
Wisconsin) do not address the issue of private ownership of large cats.
In consideration of the above information, Congress has recognized
the need to address the issue of ownership of large cat species on a
nationwide basis. Therefore, with the passage of the CWSA, Congress
amended the Lacey Act to address this issue. The CWSA amends the Lacey
Act by adding prohibitions that make it illegal to import, export, buy,
sell, transport, receive, or acquire, in interstate or foreign
commerce, live lions, tigers, leopards, snow leopards, clouded
leopards, cheetahs, jaguars or cougars, or any hybrid combination of
any of these species, unless certain listed exceptions apply.
We have reviewed the intent of Congress with regard to the actual
species to be included in the definition of prohibited wildlife species
under the CWSA, since scientific names were not included in the CWSA.
However, scientific names for prohibited wildlife species were included
in the report accompanying S. 269, the Senate version of the CWSA.
Based upon this report, we conclude that Congress intended to include
the lion (Panthera leo), tiger (Panthera tigris), leopard (Panthera
pardus), snow leopard (Uncia uncia), clouded leopard (Neofelis
nebulosa), jaguar (Panthera onca), cheetah (Acinonyx jubatus), and
cougar (Puma concolor), including all subspecies of each of these
species. Also based upon the statutory language and this report,
hybrids of any combination of these species, for example, a liger (a
male lion and a female tiger) or a tiglon (a male tiger and a female
lion), whether naturally or artificially induced, were also intended by
Congress to be included in the definition of prohibited wildlife
species.
It is important to note that there are not any pre-Act exemptions
to the prohibitions contained in the CWSA. This means that even if you
legally acquire any of the prohibited wildlife species in interstate or
foreign commerce before we finalize the regulations to carry out the
CWSA, you will not be allowed to engage in any of the prohibited
activities after we finalize the regulations to carry out the CWSA,
unless you qualify under the exceptions.
It is also important to note that the transport prohibition
contained in the CWSA applies to any transportation of the prohibited
wildlife species in interstate or foreign commerce, not only to
transportation that involves commercial activity. This means that any
person who owns a live specimen of a prohibited wildlife species and
who wants to transport the animal in interstate or foreign commerce as
a pet, or even as part of a household move, would not be allowed to do
so under the prohibitions contained in the CWSA.
In common usage with regard to animals, ``hybrid'' is defined as
offspring produced by propagation between different varieties, breeds,
species, or other types of unlike animals. The most common example is
breeding a horse with a donkey to produce a mule. In the case of the
CWSA, only specimens produced from the breeding of any combination of
the prohibited wildlife species are considered hybrids. Common examples
include the liger or the tiglon.
There are several exceptions to the prohibitions of the CWSA
including: persons licensed or registered by the United States
Department of Agriculture, Animal and Plant Health Inspection Service
(APHIS) under the Animal Welfare Act (AWA); State colleges,
universities, or agencies; State-licensed rehabilitators; State-
licensed veterinarians; and accredited wildlife sanctuaries.
Wildlife sanctuaries must meet all of the following criteria to
qualify as an ``accredited wildlife sanctuary'' under the CWSA:
(1) Approval by the Internal Revenue Service (IRS) as a corporation
that is exempt from taxation under section 501(a) of the Internal
Revenue Code of
[[Page 5043]]
1986, which is described in sections 501(c)(3) and 170(b)(1)(A)(vi) of
that code.
(2) No commercial trade in the prohibited wildlife species
including offspring, parts, and products;
(3) No propagation of the prohibited wildlife species; and
(4) No direct contact between the public and the prohibited
wildlife species.
We are proposing to require that accredited wildlife sanctuaries
maintain complete and accurate records of any possession,
transportation, sale, acquisition, purchase, barter, disposition,
importation, or exportation of the prohibited wildlife species. These
records must be kept up to date and include the names and addresses of
persons to or from whom any prohibited wildlife species has been
purchased, sold, bartered, imported, exported or otherwise transferred;
and the dates of these transactions. Accredited wildlife sanctuaries
must maintain these records for 5 years, must make these records
accessible to Service officials for inspection at reasonable hours, and
must copy these records for Service officials, if requested.
We are proposing that accredited wildlife sanctuaries must make
these records, their facilities, and their prohibited wildlife
specimens accessible to Service officials for inspection at reasonable
hours to be consistent with the conditions of permit issuance and
acceptance in the Service's general permit procedures contained in 50
CFR 13.21(e)(2). Since many of the wildlife sanctuaries subject to this
proposed recordkeeping requirement may have applied for and been issued
permits under the general permit procedures contained in 50 CFR 13, we
felt it would be in the public interest to be consistent with those
procedures.
If met, the above criteria will enable a wildlife sanctuary to
determine if they qualify for the ``accredited wildlife sanctuary''
exemption provided in the CWSA.
Propagating or breeding with the prohibited wildlife species is
specifically prohibited for any wildlife sanctuary in order for that
sanctuary to qualify for the ``accredited wildlife sanctuary''
exemption provided in the CWSA. ``Propagation'' or ``breeding'' is
generally understood to mean the exchange of gametes between sexually
reproducing organisms. However, for the purpose of the CWSA, it means
the production of offspring or the attempt to produce, or the
possibility of the production of offspring of the prohibited wildlife
species, by any means. Placing a male and female large cat in the same
cage for any period of time may result in breeding and is considered
propagation, whether actual production of offspring is intended or not.
Since offspring can also be produced by artificial means, such as
artificial insemination or cloning, these activities are also
considered propagation.
One of the main purposes of the CWSA is to prevent possible
injuries resulting from the direct contact of the prohibited wildlife
species with any member of the public. For any wildlife sanctuary to
qualify for the ``accredited wildlife sanctuary'' exemption provided in
the CWSA, the sanctuary must prevent the possibility of these injuries.
While we understand that the keepers and caregivers for these species
might, as part of their job, have limited contact with the animals, the
possibility of any contact between the animals and any other member of
the public must be eliminated. Activities that might result in contact
between the prohibited wildlife species and any member of the public,
such as photography, play sessions, or offsite programs, are prohibited
for any accredited wildlife sanctuary that would qualify for the
exemption to the prohibitions. ``Direct contact,'' therefore, is
defined in this proposed rule as any situation in which any member of
the public may potentially touch or otherwise come into physical
contact with any live specimen of any of the prohibited wildlife
species; direct contact is specifically prohibited for accredited
wildlife sanctuaries.
Individuals and entities that are licensed or registered, and
inspected, by the Animal and Plant Health Inspection Service or any
other Federal agency with respect to the species regulated are also
exempt from the prohibitions of the CWSA. APHIS is currently the only
Federal agency that licenses or registers and inspects individuals and
entities with respect to the prohibited wildlife species; therefore,
only individuals and entities licensed or registered by APHIS under the
AWA qualify under this exemption. In addition, for clarity, we have
included definitions of ``licensed person'' and ``registered person''
to indicate who would qualify under this exemption.
We propose to establish these definitions for the CWSA in Title 50
of the Code of Federal Regulations, part 14, Importation, Exportation,
and Transportation of Wildlife, in newly added Subpart K.
Public Comments Requested
We intend that any final action resulting from this proposed rule
will be as accurate and effective as possible. Therefore, we request
comments or suggestions from the public, other concerned government
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule.
Our practice is to make all comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home addresses from the rulemaking record, which we will honor to
the extent allowable by law. In some circumstances, we would withhold
from the rulemaking record a respondent's identity, as allowable by
law. If you wish for us to withhold your name and/or address, you must
state this prominently at the beginning of your comments. However, we
will not consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
This proposed rule has a 30-day comment period. In the interest of
public safety, and when considering that both the CWSA and this
proposed rule are very short, we believe that 30 days is sufficient
time for interested parties to submit comments.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this proposed rule easier to understand, including answers to questions
such as the following: (1) Are the requirements in the proposed rule
clearly stated? (2) Does the proposed rule contain technical language
or jargon that interferes with the clarity? (3) Does the format of the
proposed rule (grouping and order of sections, use of headings,
paragraphing, etc.) aid or reduce its clarity? (4) Is the description
of the proposed rule in the SUPPLEMENTARY INFORMATION section of the
preamble helpful in understanding the proposed rule? (5) What else
could we do to make the proposed rule easier to understand? Send a copy
of any comments that concern how we could make this proposed rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may e-mail your comments to this address: [email protected].
[[Page 5044]]
Required Determinations
Executive Order 12866 (Regulatory Planning and Review)
This proposed rule has been reviewed by OMB under Executive Order
12866. Under the criteria in Executive Order 12866, this proposed rule
is not a significant regulatory action.
a. This proposed rule will not have an annual economic effect of
$100 million or adversely affect an economic sector, productivity,
jobs, the environment, or other units of government. A cost-benefit and
economic analysis is not required.
The purpose of this proposed rule is to regulate the movement of
large cat species and to provide improved safety for the public by
prohibiting direct contact with the prohibited wildlife species at
accredited wildlife sanctuaries. The Endangered Species Act (ESA)
already regulates the interstate sale or movement and international
trade of tigers, leopards, snow leopards, clouded leopards, jaguars,
and cheetahs. The CWSA would, therefore, have no substantial additional
impact on the interstate sale and international trade in these species.
Our records indicate that in the period from 2001 through 2003, 164
tigers were imported and 123 were exported, 53 leopards were imported
and 39 were exported, 2 snow leopards were imported and 4 were
exported, 9 jaguars were imported and 5 were exported, and 43 cheetahs
were imported. These specimens were imported or exported by
organizations who qualified for exemptions under the ESA and who would
also likely qualify for one of the exemptions contained in the CWSA.
Therefore, the CWSA would not have any substantial economic effect by
restricting importations or exportations of these species. The African
lion and the cougar are not protected under the ESA.
Under the ESA, individuals may apply to obtain a captive-bred
wildlife (CBW) registration, which authorizes, among other things, the
interstate sale, with another CBW holder, and export of live specimens
of species listed under the ESA that are not native to the United
States. Species that are eligible for a CBW include tigers, leopards,
snow leopards, clouded leopards, jaguars, and cheetahs. There are
currently 378 approved CBWs, of which fewer than 10 authorize
activities with the prohibited wildlife species in the CWSA. Therefore,
the CWSA would not have any substantial economic effect on this segment
of the live animal industry by restricting activities currently
authorized through a CBW registration.
CITES regulates, but does not prohibit, the international trade of
African lions and cougars. The CWSA could, therefore, have some impact
on limiting imports or exports of African lions and cougars. Our
records indicate that in the period from 2001 through 2003, 22 African
lions were imported and 15 were exported, and 14 cougars were imported
and 19 were exported. Some of these importations or exportations may
have been for commercial purposes; however, most, if not all, of the
individuals who would be importing or exporting live African lions and
cougars would probably qualify for one of the exemptions contained in
the CWSA. Therefore, the CWSA would not have any substantial economic
effect by restricting importations or exportations of these species.
The CWSA will prohibit the import, export, transport, sale,
receipt, acquisition or purchase in interstate or foreign commerce, of
African lions and cougars by individuals or businesses that would not
qualify for one of the exemptions contained in the CWSA. These
restrictions are not expected to have a substantial economic effect on
this segment of the live animal industry. However, we ask the public
for data on these individuals or small businesses to enable us to
determine the impact of this proposed rule on those individuals or
small businesses.
The CWSA will have its greatest potential impact on the import,
export, transport, sale, receipt, acquisition, or purchase in
interstate or foreign commerce, of hybrids produced from the breeding
of any combination of the prohibited wildlife species, by individuals
who would not qualify for one of the exemptions contained in the CWSA.
Hybrids produced from the breeding of any combination of tigers,
leopards, snow leopards, clouded leopards, jaguars, or cheetahs would
be exempt from the provisions of the ESA but not from the provisions of
the CWSA. Generally speaking, the most common hybrids resulting from
the breeding of any combination of the prohibited wildlife species
would be the liger or the tiglon. Numerous websites promote the
existence of these hybrids, suggesting that there may be some demand
for these animals for use as pets or for display purposes. We do not
maintain domestic trade data on these hybrids; therefore, it is
difficult to estimate the impact the CWSA will have on this segment of
the live animal industry. However, we ask the public for data on these
small businesses to enable us to determine the impact of this proposed
rule on those small businesses.
In addition to amending the Lacey Act by adding prohibitions that
make it illegal to import, export, buy, sell, transport, receive, or
acquire, in interstate or foreign commerce, the prohibited wildlife
species, the CWSA provides exemptions to these prohibitions for certain
persons. Becoming eligible for these exemptions should not have any
substantial economic effect on this segment of the live animal
industry.
The only direct costs to be assumed by individuals who seek an
exemption to the prohibitions of the CWSA would be the costs associated
with the application process and meeting compliance requirements in
order to become licensed or registered under the AWA with APHIS and the
costs associated with meeting compliance requirements in order to
become a State-licensed wildlife rehabilitator.
The costs for meeting APHIS compliance requirements under the AWA
are difficult to quantify because these costs are extremely variable,
depending on the nature of the business of the individual who seeks to
become licensed or registered. Application costs will vary, depending
on the nature of the business of the individual. Licenses issued by
APHIS under the AWA must be renewed every year with a standard
application fee of $10.00. Additional application costs are based upon
the nature of the business of the individual and the size of that
business. Additional application costs for animal exhibitors can range
from $30.00 to $300.00 per year, depending on the number of animals on
exhibit. Additional application costs for animal dealers can range from
$30.00 to $500.00 per year, depending on the anticipated annual income
of the business.
In addition to application fees, the costs for meeting APHIS
compliance requirements can vary, depending on the current facilities
maintained by the individual and to what degree those facilities meet
those requirements. Construction costs for new facilities may also need
to be increased in order to achieve compliance.
The costs for meeting compliance requirements in order to become a
State-licensed wildlife rehabilitator are difficult to quantify because
these costs are extremely variable, depending on the State where the
applicant resides and the current facilities maintained by the
individual and to what degree those facilities meet those requirements.
We ask the public for data to further define the costs to be
assumed by
[[Page 5045]]
individuals who seek an exemption to the prohibitions of the CWSA.
Each wildlife sanctuary that intends to qualify under the exemption
to the prohibitions of the CWSA is prohibited from commercially trading
in the prohibited wildlife species or the species' offspring, parts, or
byproducts, and from propagating any of the prohibited wildlife
species. Though this requirement may result in lost revenue for the
sanctuary, it is not expected to result in a substantial negative
economic effect for sanctuaries as a whole. In addition, if the owner
of a sanctuary chooses to commercially trade in the prohibited wildlife
species, he or she should become licensed or registered with APHIS
under the AWA, and would thus qualify for the exemption in the CWSA.
The CWSA provides an exemption, for individuals transporting live
specimens of the prohibited wildlife species, to individuals who
qualify for one of the other exemptions provided in the CWSA. This
proposed rule requires that the transporting individuals produce
evidence to prove that they are transporting specimens between other
exempted individuals. However, these requirements would not increase
costs for the transporting individuals because APHIS already requires
these individuals to be registered by meeting similar requirements.
In addition to amending the Lacey Act by adding prohibitions that
make it illegal to import, export, buy, sell, transport, receive, or
acquire, in interstate or foreign commerce, the prohibited wildlife
species, the CWSA provides improved safety for the public by
prohibiting direct contact with the prohibited wildlife species at
accredited wildlife sanctuaries. Activities that might result in direct
contact between the prohibited wildlife species and any member of the
public, such as photography, play sessions, or offsite programs, have
been prohibited for accredited wildlife sanctuaries. Though this
requirement may result in lost revenue for sanctuaries, it is not
expected to result in a substantial negative economic effect for
wildlife sanctuaries as a whole.
b. This proposed rule will not create inconsistencies with other
agencies' actions. We are the lead agency regulating international
wildlife trade, the issuance of permits to conduct activities affecting
federally protected wildlife and their habitats, and carrying out the
United States' obligations under CITES. Therefore, this proposed rule
has no effect on other agencies' responsibilities and will not create
inconsistencies with other agencies' actions.
In addition, 19 States prohibit the private possession of large
cats, and 16 States have a partial ban on possession of large cats or
require permits for their possession. Therefore, the CWSA does not
create inconsistencies with these State's restrictions, but rather
supports them.
c. This proposed rule will not materially affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients. This proposed rule will not change the fee schedule
for any permits issued by us or any licenses or registrations issued by
APHIS.
d. This proposed rule will not raise novel legal or policy issues.
This proposed rule will not raise novel legal or policy issues because
it is based upon Congress's passage of the CWSA, which reflects a
heightened concern for public safety resulting from the increased trade
in the prohibited wildlife species for use as pets and the increased
risk of danger to members of the public when given opportunities for
direct contact with the prohibited wildlife species.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
The Department of the Interior has determined that this proposed
rule will not have a significant economic effect on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). An initial regulatory flexibility analysis is not
required. In addition, a Small Entity Compliance Guide is not required.
This proposed rule regulates businesses that commercially trade in
the prohibited wildlife species in interstate or foreign commerce. The
purpose of this proposed rule is to regulate the movement of large cat
species and to provide improved safety for the public by prohibiting
direct contact with the prohibited wildlife species at accredited
wildlife sanctuaries.
Most of the businesses that commercially trade in the prohibited
wildlife species, in interstate or foreign commerce, would be
considered small businesses as defined under the Regulatory Flexibility
Act. These businesses are most logically placed in three primary
industries: Zoos and Botanical Gardens; Nature Parks and Other Similar
Institutions; and All Other Animal Production. The SBA size standard
for the first two industries is $6 million in average annual receipts,
and the SBA size standard for the third industry is $.75 million in
average annual receipts. However, it should be noted that the nature of
these businesses would require that most, if not all, of them must be
licensed or registered under the AWA by APHIS, making them eligible for
one of the exemptions provided in the CWSA. However, we recognize that
there may be small businesses that do not fit into any of the above
categories and are not eligible for one of the exemptions provided in
the CWSA. We ask the public for data on these small businesses to
enable us to determine the impact of this proposed rule on those small
businesses.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
This proposed rule is not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act.
a. This proposed rule does not have an annual effect on the economy
of $100 million or more. For the reasons described above, we have
determined that this proposed rule will not have an annual effect on
the economy of $100 million or more. It is not anticipated that the
restrictions imposed by the CWSA and the costs to become eligible for
the exemptions contained in the CWSA will amount to an annual effect on
the economy of $100 million or more.
b. This proposed rule will not cause a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions. The CWSA provides
exemptions to its prohibitions for certain persons. Becoming eligible
for these exemptions will increase costs for the live animal industry;
however, as described above, we do not expect these increased costs to
be major. The only direct costs to be assumed by individuals who seek
an exemption to the prohibitions of the CWSA would be the costs
associated with the application process and meeting compliance
requirements in order to become licensed or registered under the AWA
with APHIS and the costs associated with meeting compliance
requirements in order to become a State-licensed wildlife
rehabilitator. We ask the public for data to further define the costs
to be assumed by individuals who seek an exemption to the prohibitions
of the CWSA.
c. Does 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. The
CWSA will not have significant adverse effects on the ability of U.S.-
based enterprises to compete with foreign-based enterprises because
[[Page 5046]]
foreign-based enterprises that are subject to U.S. jurisdiction must
comply with the same regulatory requirements as U.S.-based enterprises
who buy or sell the prohibited wildlife species in interstate or
foreign commerce.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.),
this proposed rule will have no effects.
a. This proposed rule will not significantly or uniquely affect
small governments. A Small Government Agency Plan is not required. We
are the lead agency regulating international wildlife trade, the
issuance of permits to conduct activities affecting federally protected
wildlife and their habitats, and carrying out the United States'
obligations under CITES. No small government assistance or impact is
expected as a result of this proposed rule.
b. This proposed rule will not produce a Federal requirement that
may result in the combined expenditure by State, local, or tribal
governments of $100 million or greater in any year, so it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. This proposed rule will not result in any combined expenditure by
State, local, or tribal governments.
Executive Order 12630 (Takings)
Under Executive Order 12630, this proposed rule does not have
significant takings implications. Under Executive Order 12630, this
proposed rule does not affect any constitutionally protected property
rights. The purpose of this proposed rule is to regulate the movement
of large cat species and to provide improved safety for the public by
prohibiting direct contact with the prohibited wildlife species at
accredited wildlife sanctuaries. This proposed rule will not result in
the physical occupancy of property, the physical invasion of property,
or the regulatory taking of any property. Though interstate sale of
large cat specimens is prohibited, the impact of this prohibition
should be minimal because intrastate sales are not prohibited. A
takings implication assessment is not required. Therefore, this
proposed rule does not have significant takings implications.
Executive Order 13132 (Federalism)
Under Executive Order 13132, this proposed rule does not have
significant Federalism effects. A Federalism assessment is not
required. This proposed rule will not have a substantial direct effect
on the States, on the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government.
Executive Order 12988 (Civil Justice Reform)
Under Executive Order 12988, the Office of the Solicitor has
determined that this proposed rule does not overly burden the judicial
system and that it meets the requirements of sections 3(a) and 3(b)(2)
of the Order. Specifically, this proposed rule has been reviewed to
eliminate errors and ensure clarity, has been written to minimize
lawsuits, provides a clear legal standard for affected actions, and
specifies in clear language the effect on existing Federal law or
regulation.
Paperwork Reduction Act
This proposed rule contains new information collection requirements
for which OMB approval is required under the Paperwork Reduction Act of
1995, 44 U.S.C. 3501 et seq.
We are proposing to require that wildlife sanctuaries that seek to
qualify as an ``accredited wildlife sanctuary'' under the CWSA must
maintain complete and accurate records of any possession,
transportation, sale, acquisition, purchase, barter, disposition,
importation, or exportation of the prohibited wildlife species. These
records must be up to date, and include: (1) The names and addresses of
persons to or from whom any prohibited wildlife species has been
purchased, sold, bartered, imported, exported or otherwise transferred;
and (2) the dates of these transactions. Accredited wildlife
sanctuaries must maintain these records for 5 years, must make these
records accessible to Service officials for inspection at reasonable
hours, and must copy these records for Service officials, if requested.
This proposed rule does not contain any requirement that wildlife
sanctuaries must submit an application to qualify as an ``accredited
wildlife sanctuary.''
The requirement to make records available will only be initiated on
an as-needed basis. We estimate that there are no more than 750
wildlife sanctuaries that could qualify for the ``accredited wildlife
sanctuary'' exemption.
We do not anticipate that this proposed recordkeeping requirement
will impose any significant burden because the maintenance of these
records is typically a normal business practice. Most wildlife
sanctuaries will likely only have custody of a limited number of
specimens of the prohibited wildlife species. Therefore, complying with
the requirement to make records available can likely be met by making
available and copying, if needed, a small number of documents
pertaining to the possession, transportation, sale, acquisition,
purchase, barter, disposition, importation, or exportation of the
prohibited wildlife species, which we estimate can be completed in an
hour or less. The total estimated annual burden for complying with this
proposed recordkeeping requirement should be 750 hours or less. We
estimate that the average wage of individuals likely to be providing
these documents is $20.00 per hour. Therefore, the total estimated
annual dollar value of this proposed recordkeeping requirement is
$15,000.00.
OMB regulations at 5 CFR part 1320 require that interested members
of the public and affected agencies have an opportunity to comment on
information collection and recordkeeping activities. You should send
comments that you may have on the information collection contained in
this proposed rule to the Desk Officer for the Interior Department at
OMB-OIRA at (202) 395-6566 (fax) or [email protected] (e-mail).
Please provide a copy of your comments to Hope Grey, Information
Collection Clearance Officer, Fish and Wildlife Service, MS 222-ARLSQ,
4401 North Fairfax Drive, Arlington, VA 22203 (mail); (703) 358-2269
(fax); or [email protected] (e-mail). OMB has 60 days to approve or
disapprove the information collection contained in this proposed rule
but may respond in 30 days. You should submit your comments to OMB by
the date specified above in DATES to assure their consideration.
We are specifically seeking public comments as to: (a) Whether or
not this collection of information is necessary for the proper
performance of the functions of the Service, including whether or not
the information will have practical utility; (b) the accuracy of the
Service's estimate of the burden of the collection of information,
including the validity of the methodology and assumptions used; (c) the
quality, utility, and clarity of the information to be collected; and
(d) how to minimize the burden of the collection of information on
those who are to respond, including the use of appropriate automated
electronic, mechanical, or other forms of information technology.
National Environmental Policy Act
This proposed rule has been analyzed under the criteria of the
National Environmental Policy Act and 318 DM
[[Page 5047]]
2.2 (g) and 6.3 (D). This proposed rule does not amount to a major
Federal action significantly affecting the quality of the human
environment. An environmental impact statement/evaluation is not
required. This proposed rule is categorically excluded from further
National Environmental Policy Act requirements, under part 516 of the
Departmental Manual, Chapter 2, Appendix 1.10.
Executive Order 13175 (Tribal Consultation) and 512 DM 2 (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), Executive Order 13175, and 512 DM 2, we have evaluated
possible effects on federally recognized Indian tribes and have
determined that there are no adverse effects. Individual tribal members
must meet the same regulatory requirements as other individuals who
import, export, buy, sell, transport, receive, or acquire the
prohibited wildlife species in interstate or foreign commerce.
Executive Order 13211 (Energy Supply, Distribution, or Use)
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. The purpose of this
proposed rule is to regulate the movement of large cat species and to
provide improved safety for the public by prohibiting direct contact
with the prohibited wildlife species at accredited wildlife
sanctuaries. This proposed rule is not a significant regulatory action
under Executive Order 12866 and it is not expected to significantly
affect energy supplies, distribution, or use. Therefore, this action is
a not a significant energy action and no Statement of Energy Effects is
required.
Author
The originator of this proposed rule is Mark Phillips, OLE, U.S.
Fish and Wildlife Service, Washington, DC.
List of Subjects in 50 CFR Part 14
Animal welfare, Exports, Fish, Imports, Labeling, Reporting and
recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
For the reasons described above, we propose to amend part 14,
subchapter B of Chapter I, title 50 of the Code of Federal Regulations
as set forth below.
PART 14--IMPORTATION, EXPORTATION, AND TRANSPORTATION OF WILDLIFE
1. The authority citation for part 14 continues to read as follows:
Authority: 16 U.S.C. 668, 704, 712, 1382, 1538(d)-(f), 1540(f),
3371-3378, 4223-4244, and 4901-4916; 18 U.S.C. 42; 31 U.S.C. 9701.
2. Revise Sec. 14.3 to read as follows:
Sec. 14.3 Information collection requirements.
The Office of Management and Budget approved the information
collection requirements contained in this part 14 under 44 U.S.C. 3507
and assigned OMB Control Numbers 1018-0092 and 1018-0XXX. The Service
may not conduct or sponsor and you are not required to respond to a
collection of information unless it displays a currently valid OMB
control number. We are collecting information about wildlife imports or
exports, including products and parts, to facilitate enforcement of the
Endangered Species Act of 1973 as amended (16 U.S.C. 1531 et seq.) and
the Captive Wildlife Safety Act (117 Stat. 2871), and to carry out the
provisions of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora. We estimate the burden for the
reporting requirements associated with OMB Control Number 1018-0092 to
vary from 10 to 15 minutes per response, and for the recordkeeping
requirements associated with OMB Control Number 1018-0XXX to be 1 hour
or less. Direct comments regarding the burden estimate or any other
aspect of these requirements to the Service Information Collection
Control Officer, MS-222 ARLSQ, U.S. Fish and Wildlife Service,
Washington, DC 20240.
3. Add a new subpart K to read as follows:
Subpart K--Captive Wildlife Safety Act
Sec.
14.250 What is the purpose of these regulations?
14.251 What other regulations may apply?
14.252 What definitions do I need to know?
14.253 What are the restrictions contained in these regulations?
14.254 What are the requirements contained in these regulations?
14.255 Are there any exemptions to the restrictions contained in
these regulations?
Subpart K--Captive Wildlife Safety Act
Sec. 14.250 What is the purpose of these regulations?
The regulations in this subpart carry out the Captive Wildlife
Safety Act (CWSA), 117 Stat 2871, which amended the Lacey Act
Amendments of 1981, 16 U.S.C. 3371-3378, by adding paragraphs 2(g),
3(a)(2)(C), and 3(e) (16 U.S.C. 3371, 3372).
Sec. 14.251 What other regulations may apply?
The provisions of this subpart are in addition to, and are not in
place of, other regulations of this subchapter B which may require a
permit or describe additional restrictions or conditions for the
importation, exportation, acquisition, sale, receipt, purchase, or
transportation of wildlife in interstate or foreign commerce.
Sec. 14.252 What definitions do I need to know?
In addition to the definitions contained in part 10 of this
subchapter, and unless the context otherwise requires, in this subpart:
Accredited wildlife sanctuary means a facility that cares for live
specimens of one or more of the prohibited wildlife species and:
(1) Is approved by the United States Internal Revenue Service as a
corporation that is exempt from taxation under Sec. 501(a) of the
Internal Revenue Code of 1986, which is described in Sec. Sec.
501(c)(3) and 170(b)(1)(A)(vi) of that code;
(2) Does not commercially trade in prohibited wildlife species,
including offspring, parts and products;
(3) Does not propagate any of prohibited wildlife species; and
(4) Does not allow any direct contact between the public and the
prohibited wildlife species.
Direct contact means any situation in which any individual other
than an authorized keeper or caregiver may potentially touch or
otherwise come into physical contact with any live specimen of the
prohibited wildlife species.
Licensed person means any individual, facility, agency, or other
entity that holds a valid license from and is inspected by the U.S.
Department of Agriculture's Animal and Plant Health Inspection Service
(APHIS) under the Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.) (See
definition of ``licensee'' in 9 CFR 1.1.).
Prohibited wildlife species means a specimen of any of the
following eight species: lion (Panthera leo), tiger (Panthera tigris),
leopard (Panthera
[[Page 5048]]
pardus), snow leopard (Uncia uncia), clouded leopard (Neofelis
nebulosa), jaguar (Panthera onca), cheetah (Acinonyx jubatus), and
cougar (Puma concolor) or any hybrids resulting from the breeding of
any combination of these species, for example, a liger (a male lion and
a female tiger) or a tiglon (a male tiger and a female lion), whether
naturally or artificially produced.
Propagate means to allow or facilitate the production of offspring
of any of the prohibited wildlife species, by any means.
Registered person means any individual, facility, agency, or other
entity that is registered with and inspected by APHIS under the AWA
(See definition of ``registrant'' in 9 CFR 1.1.).
Sec. 14.253 What are the restrictions contained in these regulations?
Except as provided in Sec. 14.255, you may not import, export,
transport, sell, receive, acquire, or purchase, in interstate or
foreign commerce, any live prohibited wildlife species.
Sec. 14.254 What are the requirements contained in these regulations?
Accredited wildlife sanctuaries must maintain complete and accurate
records of any possession, transportation, sale, acquisition, purchase,
barter, disposition, importation, or exportation of the prohibited
wildlife species. These records must be up to date, and must include
the names and addresses of persons to or from whom any prohibited
wildlife species has been purchased, sold, bartered, imported, exported
or otherwise transferred; and the dates of these transactions.
Accredited wildlife sanctuaries must maintain these records for 5
years, must make these records accessible to Service officials for
inspection at reasonable hours, and must copy these records for Service
officials, if requested. In addition, by declaring itself to be
accredited, a wildlife sanctuary agrees to allow access to its
facilities and its prohibited wildlife specimens by Service officials
at reasonable hours.
Sec. 14.255 Are there any exemptions to the restrictions contained in
these regulations?
Yes. The prohibitions of Sec. 14.253 do not apply to:
(a) A licensed person or registered person;
(b) A State college, university, or agency;
(c) A State-licensed wildlife rehabilitator;
(d) A State-licensed veterinarian;
(e) An accredited wildlife sanctuary; or
(f) A person who:
(1) Can produce documentation showing that he or she is
transporting live prohibited wildlife species between persons who are
exempt from the prohibitions in Sec. 14.253; and
(2) Has no financial interest in the prohibited wildlife species
other than payment received for transporting them.
Dated: December 19, 2005.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-1191 Filed 1-30-06; 8:45 am]
BILLING CODE 4310-55-P