[Federal Register Volume 81, Number 66 (Wednesday, April 6, 2016)]
[Rules and Regulations]
[Pages 19923-19931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07762]
[[Page 19923]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R9-IA-2011-0027; FF09A30000 123 FXIA16710900000R4]
RIN 1018-AW81
Endangered and Threatened Wildlife and Plants; U.S. Captive-Bred
Inter-subspecific Crossed or Generic Tigers
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are amending
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 (Panthera tigris tigris,
P. t. sumatrae, P. t. altaica, and P. t. corbetti, respectively)) 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 make this
change to the regulations to strengthen control over commercial
movement and sale of tigers in the United States and to ensure that
activities involving inter-subspecific crossed or generic tigers are
consistent with the purposes of the Act. Inter-subspecific crossed or
generic tigers are listed as endangered under the Act, and a person
will need to obtain authorization under the current statutory and
regulatory requirements to conduct any otherwise prohibited activities
with them.
DATES: This rule becomes effective on May 6, 2016.
ADDRESSES: The supplementary materials for this rule, including the
public comments received, are available at http://www.regulations.gov
at Docket No. FWS-R9-IA-2011-0027. You may obtain information about
permits or other authorizations to carry out otherwise prohibited
activities by contacting the U.S. Fish and Wildlife Service, Division
of Management Authority, Branch of Permits, 5275 Leesburg Pike, MS-IA,
Falls Church, VA 22041-3803; telephone: 703-358-2104 or (toll free)
800-358-2104; facsimile: 703-358-2281; email:
managementauthority@fws.gov; Web site: http://www.fws.gov/international.
FOR FURTHER INFORMATION CONTACT: Timothy J. Van Norman, Chief, Branch
of Permits, Division of Management Authority, U.S. Fish and Wildlife
Service, 5275 Leesburg Pike, MS-IA, Falls Church, VA 22041-3803;
telephone 703-358-2104; fax 703-358-2281. If you use a
telecommunications devise for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
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 in title 50 of the Code of Federal Regulations
(CFR), prohibit any person subject to the jurisdiction of the United
States from conducting certain activities with species listed under the
Act unless first authorized by a permit, except as a rule issued under
section 4(d) of the Act applies to the species. These activities
include import, export, take, and sale or offer for sale in interstate
or foreign commerce. The Secretary of the Interior may permit these
activities for endangered species for scientific purposes or
enhancement of the propagation or survival of the species, provided the
activities are consistent with the purposes of the Act. In 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
U.S. 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 nonnative 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 move animals quickly 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. That decision was based on the
Service's belief that the scope of the CBW system should be revised to
relate more closely to its original intent, i.e., the encouragement of
responsible breeding that is specifically designed to help conserve the
species involved (63 FR 48635; September 11, 1998).
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
(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)).
Certain otherwise prohibited activities with these specimens were
authorized only when the activities were shown to enhance the
propagation or survival of the species, provided the principal purpose
was to facilitate captive breeding. Although the submission of a
written annual report was not required, holders of these specimens had
to maintain
[[Page 19924]]
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 for in 50 CFR
13.46 and 13.47. The exemption for inter-subspecific crossed or generic
tigers was based on the 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, while recognizing that generic tigers
that were currently held by zoological facilities could be used to
educate the public about the ecological role and conservation needs of
the species. Even with this exemption, inter-subspecific crossed or
generic tigers were still protected under the Act and those activities
that did not constitute authorized activities under the CBW program,
such as the interstate sale of generic tigers solely for education
purposes or display purposes, would require prior authorization of an
ESA permit.
On August 22, 2011, the Service proposed to amend the CBW
regulations that implement the Act by removing inter-subspecific
crossed or generic tigers from paragraph (g)(6) of 50 CFR 17.21 (76 FR
52297). The public was provided with a 30-day comment period to submit
their views and comments on the proposed rule. However, due to the
large volume of comments, the Service published a notice on September
21, 2011 (76 FR 58455), extending the comment period for an additional
30 days. This comment period ended on October 21, 2011. Since that
time, the Service has received no new substantive information that
would affect this rule.
Species Status
The wild tiger was once abundant throughout Asia. At 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 had
declined to 5,000-7,000 animals (Seidensticker et al. 1999, p. xvii).
Today's population in the wild 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 forests,
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, if used for consumptive purposes, may sustain the demand for
tiger parts, which would ultimately have a detrimental effect on the
survival of the species in the wild. 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 medicines, which are purchased
by consumers who believe the parts convey strength, health, and
virility.
Current regulations under the ESA prohibit the taking of any tiger,
including generic tigers, and there is no clear evidence that the U.S.
captive tiger population has played a role in illegal international
trade. However, in 2005, Werner (p. 24) estimated that 4,692 tigers
were 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).
Conservation Status
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, 178 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 States 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, 16 U.S.C. 5301 et seq.). The CWSA amended the Lacey Act (16
U.S.C. 3371 et seq.) 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's 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
[[Page 19925]]
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, or
could potentially play, in the trade in tiger parts. In July 2008,
TRAFFIC published a report titled, 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 avoid the use of captive U.S. tigers in trade. One
of those recommendations was for the Service to eliminate the exemption
under 50 CFR 17.21(g)(6) for holders of inter-subspecific crossed or
generic tigers from the requirements to register and submit annual
reports under the CBW regulations.
Summary of Comments and Our Responses
In our proposed rule (August 22, 2011; 76 FR 52297), we asked
interested parties to submit comments or suggestions regarding the
proposal to eliminate inter-subspecific crossed or generic tigers from
the regulation at 50 CFR 17.21(g). The original comment period for the
proposed rule lasted for 30 days, ending September 21, 2011. The
comment period was extended, however, on September 21, 2011 (76 FR
58455), to allow for an additional 30 days to accommodate the large
number of commenters. The extended comment period ended on October 21,
2011. We received 15,199 individual comments during the two comment
periods. The vast majority of the comments (approximately 15,000)
either supported the proposed rule as written or stated that it was not
strong enough to address captive breeding of inter-subspecific crossed
or generic tigers. We received 109 comments from individuals or
organizations that opposed the proposed rule. The remaining 79 comments
were either irrelevant to the proposed rule or indecipherable.
Issue 1: Approximately 14,300 comments supported the proposed rule
as written, stated that this change in the regulations would reduce the
level of illegal trade in both captive and wild tigers, decrease the
possibility of captive tigers being held in inhumane conditions, and
reduce ``rampant'' breeding of captive tigers within the United States.
However, many of these commenters were also concerned that the change
in the regulation would result in the possible overcrowding of
sanctuaries or unaccredited institutions that would receive unwanted
adult tigers.
Our response: The change in regulations would provide for greater
control over captive tigers within the United States. As the CBW
regulations are currently written, individuals or institutions that
have been housing inter-subspecific crossed or generic tigers could
move tigers across State lines for commercial activities without
registering under the CBW regulations. While these activities are
required to be undertaken in association with a managed breeding
program to ensure that deleterious breeding (i.e., inbreeding or
inappropriate crosses) does not occur, we have evidence that these
requirements may have been violated in some number of cases. Therefore,
based on this conclusion, we are acting consistently with the purposes
of the Act to limit the authorization of interstate commerce and
commercial movement of tigers under the CBW regulations to situations
where the end-use of the tiger is to enhance the propagation or
survival of the species in the wild by contributing to the conservation
of the species.
However, this change in regulations would not directly result in
the control of breeding of inter-specific crossed or generic tigers.
The Act does not regulate intrastate activities that do not result in a
take or the noncommercial interstate movement of a listed species. The
only intrastate activity that the Act regulates is the take (e.g.,
harming, harassing, or killing) of a listed species. Individuals or
facilities that maintain such tigers can continue to breed tigers, sell
them within their State, or move tigers across State lines for
noncommercial purposes without obtaining authorization from us, as long
as such activities do not result in a take of the species. However, it
is possible that stricter regulation of the interstate commerce of
these specimens may result in a reduction in breeding due to a smaller
(i.e., intrastate only) market for generic tigers.
It is also possible that, with this change in the CBW regulations
and the potentially lower demand for tigers within the United States,
individuals or facilities that currently hold inter-subspecific crossed
or generic tigers will move their animals to sanctuaries or other zoo
facilities, causing these facilities to become overcrowded. We do not
believe that such movement will become a significant problem at most
zoos and sanctuaries, which generally maintain a high standard of care
and, in any case, are required by the Animal Welfare Act and other
Federal and State laws and regulations to provide humane treatment for
animals. A need may arise, however, for greater coordination between
nongovernmental organizations, zoos, and sanctuaries to ensure that all
inter-subspecific crossed or generic tigers that end up in sanctuaries
or zoos receive adequate housing and care.
Issue 2: Of the nearly 15,000 comments that supported the rule in
some form, 527 commenters were opposed to maintaining tigers in
captivity at all. These commenters expressed a general belief that
tigers should be left in the wild and that captive tigers should be
released. While many of these comments supported the change in
regulations as necessary, they also expressed the belief that this
change should be only the first step that would eventually result in
captive tigers being released into the wild and/or no longer bred in
captivity.
Our response: As stated above, the Act does not prohibit the
ownership of listed species, if the activities being carried out with
these specimens do not violate any of the prohibitions of the Act.
Therefore, if the animals were legally purchased and moved, the Act
does not prohibit an individual or institution from maintaining or even
breeding tigers. While we recognize that some people are opposed to
maintaining exotic animals in captivity, we do not have the regulatory
authority to prohibit such activities. Further, we do not believe that
inter-subspecific crossed or generic tigers are suitable for release in
the wild, both because they may not be genetically compatible with wild
populations, and because, in most cases, they are not suitably
conditioned for survival in the wild. Such animals either might starve
or could become a menace to livestock and humans. However, we believe
that, under the correct circumstances, maintaining
[[Page 19926]]
listed species in captivity--including tigers--can provide a
conservation benefit to the species through education, research, and
scientifically based breeding programs.
Issue 3: Many commenters (160) requested that we establish stricter
regulations for tigers than what was proposed. Suggestions included
establishing regulations that would prohibit anyone from holding or
breeding tigers and allow only accredited zoos or sanctuaries to hold
tigers. Many of these commenters expressed the desire to eliminate the
use of tigers in circuses and animal exhibitions. The comments included
suggestions to increase control over breeding programs and to have more
frequent inspections of facilities to monitor for abuse or substandard
facilities. Some commenters suggested microchipping all captive tigers.
Some comments recommended stiffer penalties for poachers within the
tiger native range.
Our response: As stated previously, the Act prohibits certain
activities with listed species, but does not prohibit every activity
that could involve such species. The Act does not regulate ownership or
what an owner may do with a tiger as long as the owner obtained the
tiger legally and does not harm or kill the tiger or engage in
interstate commerce with the animal. We cannot establish regulations
that go beyond the prohibitions of the Act, such as limiting ownership
or breeding of tigers only to certain institutions or individuals.
Anyone may engage in these activities if he or she otherwise complies
with all other provisions of the Act, and as long as the actions are
legal under other applicable laws (e.g., those of the State in which
the activities take place).
When we issue a permit or other authorization under the Act for
otherwise prohibited activities, we do have the authority to conduct
periodic inspections or otherwise have oversight of permitted
activities. This authority, however, does not extend to activities
outside the scope of the Act or for activities that are not regulated
by the Act. Therefore, we do not have the ability to conduct regular
inspections of breeding operations that do not require authorization
from us. This type of inspection may be possible in some cases under
the Animal Welfare Act, which is implemented by the USDA, but is
outside the scope of this regulation. However, if we have evidence of
illegal activity, we have the authority to carry out criminal
investigations of any facility, whether or not it is permitted.
While we could require microchipping of tigers at a facility that
has obtained a permit or other authorization from the Service, we
cannot require the microchipping of all tigers within the United
States. Microchipping some tigers may give us the ability to track the
movement of live animals that are involved in interstate commerce (an
otherwise prohibited activity), but we would not be able to track live
tigers that do not fall under our jurisdiction. Further, microchipping
is unlikely to assist us in investigating the illegal movement of tiger
parts within the United States. We also do not have the authority or
the resources to monitor and record the birth, death, or transfer of
all tigers in the United States. Microchipping a portion of the captive
tigers in the United States for tracking purposes might give us a
limited picture of the movement and ownership of these animals in the
United States, but we do not believe that any limited benefits would
outweigh the cost and administrative burden of microchipping and
tracking these animals.
We strongly encourage and support programs established by tiger
range countries to control and ultimately eliminate poaching of wild
tigers. We have been able to fund a variety of anti-poaching programs
through various grant programs, including grants under the RTCA. We
have also been actively involved in efforts through CITES to assist
range countries in monitoring and controlling illegal trade in tigers.
We do not have any authority, however, to establish stricter
regulations regarding poaching in other countries.
Issue 4: One commenter was of the opinion that the exemption from
the CBW registration process violated section 10(c) of the Act since it
did not allow the public an opportunity to comment on the merits of
activities involving inter-specific crossed or generic tigers.
Our response: By removing the exemption and requiring the
submission of an application to either request a permit or register
under the CBW regulations, the public will now have an opportunity to
comment on the merits of any application to conduct otherwise
prohibited activities with tigers.
Issue 5: Many commenters (109) were opposed to removing the
exemption. In general, they believe that inter-subspecific crossed or
generic tigers contribute to conservation primarily through education,
but also by acting as a source of tigers within the United States. Many
of these commenters felt that requiring registration under the CBW
regulations or requiring a permit to conduct otherwise prohibited
activities would ultimately lead to the demise of captive tigers in the
United States. Many of these commenters expressed their concern that
wild tigers will go extinct in the near future due to habitat loss and
poaching, and, therefore, captive-bred tigers are needed to ensure that
the species does not go extinct.
Our response: The CBW regulations facilitate the captive breeding
of species listed under the Act for conservation purposes by allowing
registrants to conduct interstate commerce and move specimens across
State lines. The Service recognizes that well-managed breeding programs
focusing on specific subspecies and that maintain good genetic
diversity among the specimens within the breeding program can provide a
long-term benefit to listed species by producing a pool of viable
candidates for future reintroduction. We have also stated in the 1998
final rule exempting inter-subspecific crossed or generic tigers from
the CBW registration process (63 FR 48638) that inter-subspecific
crossed or generic tigers should not be used for conservation-oriented
breeding, but could be used for exhibition in a manner designed to
educate the public about the ecological role and conservation needs of
the species.
The Act does not regulate intrastate activities other than take,
such as ownership and breeding, nor does it regulate noncommercial
interstate transfers of listed species (e.g., gifts, loans, and
exchanges of animals of the same species for genetic management
purposes). Removing the exemption for inter-subspecific crossed or
generic tigers from the CBW regulations will require anyone who is
selling an inter-subspecific crossed or generic tiger across State
lines to either register under the CBW regulations or obtain an
interstate commerce permit. The Service does not believe that the
action taken in this final rule will adversely affect the conservation
breeding of tigers within the United States, nor lead to the demise of
captive tigers within the United States.
Issue 6: Several commenters expressed the opinion that enough laws
or restrictions are already in place to ensure that the legality of
activities carried out with tigers. Two commenters pointed directly to
the RTCA as a powerful tool to combat illegal trade of tiger parts
within the United States. These commenters stated that, since there is
no proof of the use of U.S. captive tigers in traditional medicines,
the Service does not need to impose additional regulations on tiger
breeders in the United States. Five commenters
[[Page 19927]]
felt that, because there is no proof of such illegal trade within the
United States, such trade is not a threat, and, therefore, this rule is
arbitrary and capricious under the Administrative Procedure Act.
Our response: While we agree with the commenters on the benefits of
the RTCA in combating illegal trade in tiger parts, we do not agree
that the existing regulations adequately provide for the conservation
of tigers. With the exemption for inter-subspecific crossed or generic
tigers, it was difficult to determine whether activities involving
tigers were legal because there was no requirement for a permit or
other authorization. Monitoring of activities was also hampered by our
inability to determine if tigers bred and sold under the exemption were
actually inter-subspecific crossed or generic animals. By removing the
exemption, we are reinstating regulations that already cover most other
endangered and threatened species, thus ensuring better oversight and
monitoring. This requirement will be another tool that can be used, in
conjunction with the RTCA and other laws, to curb potentially illegal
activities within the United States. While we have no evidence
indicating that captive tigers are currently being illegally killed for
their parts within the United States, we believe that, if wild tiger
populations continue to decline, demand for captive tigers and their
parts may increase. The final rule is reasonable in light of this
potential threat and evidence of continuing declines in tiger
population and range, and we have fully explained our reasons for
removing the exemption.
Issue 7: Two commenters felt that we made contradictory statements
in the proposed rule when we said that individuals who wished to carry
out otherwise prohibited activities with inter-subspecific crossed or
generic tigers would need to register under the CBW regulations, but
then also stated that we did not believe the breeding of inter-
subspecific crossed or generic tigers provided a conservation benefit.
In other words, they concluded that we would not actually register
anyone with inter-subspecific crossed or generic tigers because of our
perceived lack of conservation value of such animals.
Our response: The commenters are correct that we do not believe
that breeding inter-subspecific crossed or generic tigers, in and of
itself, provides a conservation benefit, since the tigers are of
unknown or mixed genetic origin. As such, inter-subspecific crossed or
generic tigers would not be good candidates for a well-managed
conservation-oriented breeding program. In addition, it is unlikely
that we would register an operation for the sole purpose of selling
tigers across State lines, since a CBW registration is for the purpose
of exchanging stock with other breeders or to hold surplus animals not
needed for a breeding program. This does not mean, however, that we
could not authorize individual permits if the activity being conducted
enhanced the propagation or survival of the species in the wild. Under
our regulations, it is possible to authorize interstate commerce for an
inter-subspecific crossed or generic tiger if the parties involved in
the transaction are carrying out activities that enhance the
propagation or survival of the species. While it is unlikely that such
a commercial transaction would provide a direct benefit to the species,
such as reintroduction, there may be indirect benefits that could be
obtained from the transaction.
It should also be noted that the requirement to show that
authorizing an otherwise prohibited activity, such as interstate
commerce, could be met through an individual or institution, or a group
of individuals or institutions together, working to provide a benefit
to the species in the wild. For example, if one or more zoological
institutions were purchasing inter-subspecific crossed or generic
tigers for educational and display purposes, they could provide support
(e.g., via the solicitation of donations from visitors) to carry out
in-situ conservation efforts in the tiger's native range. The Service
prefers a clear, ongoing commitment of several years on the part of the
applicant to provide in-situ conservation or research support. This
ongoing commitment could be fulfilled by a group of institutions
working together to maximize their resources for the benefit of tigers
in the wild.
Issue 8: Several commenters stated that inter-subspecific crossed
or generic tigers have an educational value and, therefore, should
still be exempt from the CBW registration to ensure that this benefit
could continue. Many of these commenters felt that inter-subspecific
crossed or generic tigers are ``ambassadors'' for the wild tiger and
its conservation. One commenter stated that availability of such tigers
within the United States removed pressure on wild populations to supply
animals for exhibition purposes. One commenter, noting that the Service
previously excluded education as a sole justification for registration
under the CBW regulations, questioned the basis of this exclusion.
Our response: This rule does not address whether the display of
inter-subspecific crossed or generic tigers has an educational value.
It is possible that a professionally developed education program using
inter-subspecific crossed or generic tigers could indirectly benefit
the wild populations of tigers by raising public awareness of the
plight of the tiger. Furthermore, no permit or other authorization,
including a CBW registration, is necessary to conduct educational
programs with such tigers, including crossing State lines to make
presentations involving the animals. Given the number of inter-
subspecific crossed or generic tigers within the United States, the
commenter is correct that wild-caught tigers are not in demand for
educational purposes. The purpose of this rule, however, is to
reestablish the monitoring and oversight benefits of the CBW
regulations to all specimens of tigers, not just purebred specimens.
On December 27, 1993, the Service published a final rule (58 FR
68323) that eliminated public education through exhibition of living
wildlife as the sole justification for issuing a CBW registration under
Sec. 17.21(g). As one commenter correctly pointed out, the Service
made the statement in the 1998 final rule exempting inter-subspecific
crossed or generic tigers from the CBW registration process (63 FR
48638) that inter-subspecific crossed or generic tigers should not be
used to enhance the propagation of the species, but could be used for
exhibition in a manner designed to educate the public about the
ecological role and conservation needs of the species. While
individuals are not precluded from continuing to provide educational
opportunities to the public through the display of inter-subspecific
crossed or generic tigers, an educational purpose alone is not enough
to support CBW registration per the 1993 rule. The basis for excluding
education as the sole justification for a CBW registration was
discussed in the final rule on that issue (58 FR 68323) and is outside
the scope of this rulemaking.
Issue 9: Two commenters raised questions about the listing status
of the inter-subspecific crossed or generic tiger. One commenter
questioned whether inter-subspecific crossed or generic tigers meet the
standard of listing under the Act and, therefore, whether they are
properly subject to regulation by the Service. Another commenter
proposed that inter-subspecific crossed or generic tigers within the
United States are a new subspecies, the ``American tiger.'' This
commenter provided a description of six ``varieties'' of ``American
tigers'' that should be, as a group, a new subspecies.
[[Page 19928]]
Our response: Whether these animals meet the listing criteria under
section 4 of the Act is an issue outside the scope of this rulemaking
process. Whether inter-subspecific crossed or generic tigers within the
United States would constitute a separate subspecies is a matter that
should be addressed by taxonomists and is, therefore, outside the scope
of this rulemaking process as well. However, currently the tiger is
listed at the species level, not at the subspecies level, so all tiger
specimens are covered by the listing.
Issue 10: One commenter noted a study by the National Cancer
Institute that found that one ``generic'' tiger in seven is actually a
purebred member of a recognized subspecies, raising the question of how
individuals can determine if their tiger is pure or an inter-
subspecific crossed or generic tiger. Another commenter raised the
question of whether this rule would require genetic testing of tigers
and how the cost of that testing would be covered.
Our response: The first commenter was probably referring to a study
published in 2008 in Current Biology \1\ that found 14-23 percent
(approximately 1 in 7 or more) of the ``generic'' tigers tested were
shown to have a verifiable subspecies ancestry (i.e., they are a pure
subspecies). The tigers tested in this study came from locations in the
United States and abroad. We note that our definition of ``generic
tiger'' includes animals of unknown lineage. It is entirely possible
that some animals of unknown lineage actually have a pure subspecies
lineage, but the lack of information on their origin requires that they
be treated as unknown for the purposes of conservation breeding.
---------------------------------------------------------------------------
\1\ Shu-Jin Luo, Warren E. Johnson, Janice Martenson, Agostinho
Antunes, Paolo Martelli, Olga Uphyrkina, Kathy Traylor-Holzer, James
L.D. Smith and Stephen J. O'Brien. 2008. ``Subspecies Genetic
Assignments of Worldwide Captive Tigers Increase Conservation Value
of Captive Populations''. Current Biology, 18, 592-596.
---------------------------------------------------------------------------
Since pure and generic tigers would be treated the same in regards
to permits issued under 50 CFR 17.22 (i.e., interstate and foreign
commerce, take, import, or export), there would be no requirement to
test tigers within the United States. However, if the owner of a
breeding operation wished to become a CBW registrant, that person would
need to show how the tigers he or she holds would contribute to the
genetic management of the species within the United States. If the
owner is unable to document the source and, therefore, subspecies of
their tigers, it may be necessary to conduct genetic testing on his/her
tigers to prove that they are not inter-specific crossed animals. The
cost of such testing would be his/her responsibility.
Issue 11: One commenter questioned the value of maintaining pure
subspecies in captivity as a potential pool for reintroduction purposes
if the plight of the wild tiger is so dire. The commenter's presumption
was that zoos and private breeders do not have the capacity to maintain
sufficient numbers of pure subspecies to provide enough specimens if
reintroduction is needed. It is unclear whether the commenter meant
that a need might develop to use tigers of mixed or unknown genetic
ancestry for reintroduction purposes and that the survival of the
species may rely on such tigers. However, the commenter expressed the
view that efforts by the Service to limit the breeding of inter-
subspecific crossed or generic tigers are counterintuitive to the
conservation of the species.
Our response: The generally accepted approach to the captive
breeding of tigers--or of any species--for conservation purposes is to
maintain separate viable populations of each subspecies and to avoid,
where possible, breeding tigers of unknown or questionable genetic
heritage. Adequacy of founder representation and minimum viable
population sizes are issues to be determined by conservation biologists
and vary depending on the biological characteristics of the species,
and are outside the scope of this rulemaking. The purpose of this rule
is to establish a single approach to monitoring the otherwise
prohibited activities involving any tiger within the United States.
Issue 12: One commenter felt that the display of inter-subspecific
crossed or generic tigers could generate funds for in-situ conservation
efforts and should, therefore, be encouraged.
Our response: We agree that the display of tigers, whether purebred
subspecies or tigers of unknown genetic ancestry, could generate funds
and resources for in-situ conservation efforts. This rule does not
limit nor is it intended to discourage in-situ conservation efforts.
The rule only provides the same level of monitoring and oversight for
all tigers within the United States to ensure that activities carried
out with this species are legal and consistent with the purposes of the
Act.
Removal of Inter-subspecific Crossed or Generic Tigers from 50 CFR
17.21(g)(6)
We are amending 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 eliminates 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. This action does not alter the current listing of tigers.
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 changing the regulations to ensure that we maintain stricter
control over the commercial movement and sale of captive tigers in the
United States. As stated in the comment section, we do not believe that
breeding inter-subspecific crossed or generic tigers, in and of itself,
provides a conservation benefit for the long-term survival of the
species. Inter-subspecific tiger crosses and animals of unknown genetic
ancestry could not be used for maintaining genetic viability and
distinctness of specific tiger subspecies. Tigers of unknown or mixed
genetic origin 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 had inadvertently suggested that the
breeding of these tigers, in and of itself, qualifies as conservation.
By removing the exemption, we reinforce the value of conservation
breeding of individual tiger subspecies through the CBW program.
As stated in the proposed rule, we are unaware of any evidence that
tiger parts are entering into trade from the captive U.S. population of
tigers. However, 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. While we do not have
[[Page 19929]]
evidence that parts from captive-bred tigers in the United States are
currently entering into international trade, we believe that demand for
tiger parts could increase in the future. This threat, combined with
the precarious status of tigers in the wild, lead us to conclude that
the oversight provided by this final rule will benefit the species.
The previous CBW exemption also 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
register under the CBW program, giving the Service greater ability to
bring enforcement cases for violations involving tigers.
It should be stressed, however, that removing the exemption for
inter-subspecific crossed or generic tigers would not result in
regulations by the Service of ownership, intrastate commerce, or
noncommercial movement of these tigers across State lines, as long as
they are not killed or harmed. These activities are not prohibited by
the Act, and we have no authority to prohibit or otherwise regulate
them.
Finally, we reorganized paragraph (g)(6), redesignating
subparagraphs to make the section clearer. With the exception of
removing inter-subspecific crossed or generic tigers, the text is
essentially the same as it previously appeared in 50 CFR 17.21(g)(6).
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563):
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is
significant because it may create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
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.
Currently, businesses conducting activities with inter-subspecific
crossed or generic tigers are exempt from registration under the CBW
regulations, if the activities are consistent with the purposes of the
ESA and CBW program. This rule would require businesses that are
otherwise carrying out these activities to apply for authorization
under the Act and pay an application fee of $100 for a one-time
interstate commerce permit or $200 to register under the CBW program
(valid for 5 years).
Currently, there is no Federal or State mechanism in place that
tracks or monitors the extent of business activities involving generic
tigers. With the exemption from registration by facilities that are
conducting activities in compliance with the current CBW regulations,
FWS does not have data on how many businesses are involved in the
interstate commerce of generic tigers, the number of businesses for
which an interstate commerce permit or registration in the CBW program
will be a viable option, and the economic impacts if prospective
applicants are unable to either secure an interstate commerce permit or
registration in the CBW program. While the U.S. Department of
Agriculture regulates some aspects of holding large cats like tigers,
their authority does not extend to all facilities that maintain tigers.
As such, there is not a centralized database or collection of data that
would identify the number of facilities within the United States. While
some State governments may monitor or even regulate some aspects of
holding tigers, either pure-bred or generic, there is not a universal
approach that would render any significant data on those facilities
that hold tigers throughout the United States. Nonetheless, based on
the comments received during the public comment period, FWS anticipates
that the number of affected small businesses is small and either
registration in the CBW program or an interstate commerce permit will
be a viable option at a modest expense. Therefore, the regulatory
change is not major in scope and will create only a modest financial or
paperwork burden on the affected members of the 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 rule is
not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory
Enforcement Fairness Act. This rule:
a. Would not have an annual effect on the economy of $100 million
or more. This rule removes the inter-subspecific crossed or generic
tigers from the exemption to register under the CBW regulations.
Individuals and captive-breeding operations would need to obtain
endangered species permits or other authorization to engage in certain
otherwise prohibited activities. This rule would not have a negative
effect on 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;
[[Page 19930]]
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 rule would not significantly or uniquely affect small
governments. A Small Government Agency Plan is not required.
b. This 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 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 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 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: This rule does not contain any new
information collections or recordkeeping requirements for which Office
of Management and Budget (OMB) approval is required under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has reviewed and
approved the information collection requirements for the Division of
Management Authority's permit program and assigned OMB Control Number
1018-0093, which expires May 31, 2017. 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 action is a regulatory change that is
administrative and procedural in nature. This rule requires that
persons engaging in otherwise prohibited activities with inter-
subspecific crossed or generic tigers register under the CBW
regulations at 50 CFR 17.21(g), but does not change the standards in
regard to prohibited activities or exemptions from these prohibitions
in any way. Previously, any otherwise prohibited activity with an
inter-subspecific crossed or generic tiger had to be for the purpose of
enhancing the propagation or survival of the species, and that standard
has not changed. Other requirements such as limitations with respect to
nonliving wildlife, identification of animals to be re-imported,
requirements for animals to be permanently exported, and recordkeeping
requirements have not changed. The difference is that persons
conducting these activities with inter-subspecific crossed or generic
tigers that previously did not have to register will now have to
register with the Service. As such, the 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 61292; 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 energy supply, distribution,
and use. This 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.
Data Quality Act: In developing this rule, we did not conduct or
use a study, experiment, or survey requiring peer review under the Data
Quality Act (Pub. L. 106-554).
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov at Docket No. FWS-R9-IA-
2011-0027 and upon request from the person listed in FOR FURTHER
INFORMATION CONTACT.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting, and
recordkeeping requirements, Transportation.
Regulation Promulgation
For the reasons given in the preamble, we are amending part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as follows:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.
0
2. Amend Sec. 17.21 by revising paragraph (g)(6) to read as set forth
below:
Sec. 17.21 Prohibitions.
* * * * *
(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
[[Page 19931]]
port of export prior to export of the specimen from the United States.
(D) No specimens of the taxa in paragraph (g)(6)(i) 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 Sec. 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 Sec. Sec. 13.46 and 13.47 of this
chapter.
* * * * *
Dated: March 24, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-07762 Filed 4-5-16; 8:45 am]
BILLING CODE 4333-15-P