[Federal Register: November 2, 1999 (Volume 64, Number 211)] [Proposed Rules] [Page 59149-59152] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr02no99-31] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 16 [1018-AE34] Listing of the Brush-tailed Possum as Injurious AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Fish and Wildlife Service (Service or we) published a notice on January 24, 1996, soliciting information relative to the threat that Trichosurus [[Page 59150]] spp. poses to agriculture, human health, and fish and wildlife resources. Analysis of the available information warrants the listing of only one species, T. vulpecula, as injurious. We received little information about the other two species in the genus, T. arnhemensis and T. caninus. Consequently, we will not propose their listing at this time. Listing T. vulpecula would prohibit its importation into, or transportation between, the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any territory or possession of the United States with limited exceptions. DATES: Comments must be submitted on or before January 3, 2000. ADDRESSES: Comments may be mailed or sent by fax to the Chief, Division of Fish and Wildlife Management Assistance, 1849 C Street, NW, Mail Stop 840 ARLSQ, Washington, DC 20240, or FAX (703) 358-2044. FOR FURTHER INFORMATION CONTACT: Susan Mangin, Division of Fish and Wildlife Management Assistance at (703) 358-1718. SUPPLEMENTARY INFORMATION: We received a letter from the Texas Animal Health Commission requesting that we prohibit the importation of T. vulpecula into the United States. Because other members of the genus Trichosurus could possibly pose a threat, the Service placed a notice in the Federal Register January 24, 1996, (61 FR 1893) requesting information about the injurious nature of the entire genus. We received 11 responses to our request for information. Review of the information received through the request and additional information indicates the extreme injurious nature of T. vulpecula. For this reason, the Service is proposing to list it as injurious. Limited data were available relative to the injurious nature of T. arnhemensis and T. caninus. Review of these data did not support listing these two species at this time. T. vulpecula, introduced to New Zealand from Australia between 1873 and 1930, is now found throughout much of New Zealand with a population of approximately 70 million (Department of Conservation National Possum Control Plan, 1993-2002, February 1994). They can adapt to a wide variety of habitats and elevations (P.E. Cowan, The Ecological Effects of Possums on the New Zealand Environment). They are vectors for the bovine tuberculosis pathogen (M. bovis) and have played a major role in keeping it in the environment. This pathogen is found in cattle, deer, pigs, cats, ferrets, rabbits, hedgehogs, and stoats (National Tb Strategy, Animal Health Board, November 1995). The impact of exposure to M. bovis in the U.S. would probably be even more devastating due to the presence of a more diverse mammal population (Milton Friend, National Biological Service memorandum, March 12, 1996). No evidence exists that T. vulpecula achieves an ecological balance once introduced into an area. They have altered native plant communities causing forests to degrade to scrub or even to bare ground. They damage erosion control plants like willows and poplars. They eat bark, leaves, buds, flowers, and fruit of trees. They threaten other animals by preying on them, competing for their food, or interfering with nesting sites (P.E. Cowan, The Ecological Effects of Possums on the New Zealand Environment). Management practices used to control them, such as trapping or poisoning, can negatively impact other species. 1. Regulatory Planning and Review (E.O. 12866) In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. OMB makes the final determination under Executive Order 12866. (1) This 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 the government. A cost-benefit and economic analysis is not required. This rule adds additional restrictions over and above the regulations issued by the Department of Agriculture, which has banned the importation of brush-tailed possums from New Zealand. As a result, discussion is limited to the effect that these additional importation restrictions will have on the American economy. The brush-tailed possum is abundant in south eastern Australia and Tasmania. Possums have been hunted in Tasmania since the 1920's for the fur trade. However, the fur market has declined in recent years, and the possum industry has been selling skins and meat to Taiwan and China. In 1996, about 3,000 possum skins and meat were exported to Taiwan and 1,000 to China from Australia. The number of permit holders and royalties paid in Australia for brush-tailed possums has been declining steadily. In 1990, there were 493 permit holders receiving $18,800 in royalties for brush-tailed possums. In 1995, there were 40 permit holders receiving $1,996 in royalties. Since 1995, royalties have been paid for skins and carcasses. No live brush-tailed possums have been imported in the U.S. since 1995. World trade in brush-tailed possums has focused primarily on meat and most of it is going to Asian markets. Consequently, this rule should have little, if any, measurable economic affect on the U.S. economy and will not have an annual effect of $100 million or more for a significant rule making action. A major, though not quantified, effect of this rule is the reduced risk of substantial environmental damage in the U.S. including the spread of M. bovis, that could be caused by having brush-tailed possums escape from captivity. The risk reduction is a benefit of this rule that cannot be quantified with existing data. However, the damage in New Zealand caused by the introduction of the brush-tailed possum in 1840 is well documented. There is no way of knowing where the brush- tailed possums would enter the natural environment in the U.S. and consequently, the economic effect avoided by not having the introduction cannot be estimated. (2) This rule will not create inconsistencies with other agencies' actions. The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture has developed and implemented regulations to prohibit the importation of brush-tailed possums from New Zealand because they carry bovine tuberculosis. This rule will further expand this prohibition to include all countries because of the potential of brush-tailed possums carrying M. bovis and the damage that they could inflict on native ecosystems. (3) This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This rule does not affect entitlement programs. (4) This rule will not raise novel legal or policy issues. There is no indiction that listing wildlife as injurious in the past has caused legal or policy problems. As no live brush-tailed possums have been imported since 1995, this rule should not raise legal, policy, or any other issues. 2. Regulatory Flexibility Act I certify that this rule will 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.) Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required. For the reasons described in section 3 below, no individual small industry within the United States will be significantly affected if brush-tailed possum importation is prohibited. [[Page 59151]] 3. Small Business Regulatory Enforcement Fairness Act (SBREFA) The rule is not a major rule under 5 U.S.C. 804(2), the Small business Regulatory Enforcement Fairness Act. This rule: a. Does not have an annual effect on the economy of $100 million or more. Live brush-tailed possums have not been imported into the United States since 1995. U.S. Fish and Wildlife Service records from 1994 and 1995 indicate that 1,030 brush-tailed possums have been imported for a total value of $11,900. Since only four importers were involved and no additional trade has occurred, the Service believes that a market for live brush-tailed possums has not been established in the U.S. Consequently, there is no measurable economic effects on small businesses. b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. U.S. Fish and Wildlife Service records indicate that only four importers brought in a total of 1,030 brush- tailed possums in 1994 and 1995. None have been imported since 1995. 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 low number of brush-tailed possums imported into the U.S. indicates that listing the brush-tailed possum as injurious would not have significant adverse effects. 4. Unfunded Mandates Reform Act In accordance with the unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) a. The rule will not ``significantly or uniquely'' affect small governments. A Small Government Agency Plan is not required. The Service has determined and certifies pursuant to the Unfunded Mandates Act that this rule making will not impose a cost of $100 million or more in any given year on local or State governments or private entities. b. This rule will not produce a Federal mandate of $100 million or greater in any year, i.e., it is not a ``significant regulatory action'' under the Unfunded Mandates Reform Act. The Service has determined and certifies pursuant to the Unfunded Mandates Act that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. 5. Takings (E.O. 12630) In accordance with Executive Order 12630, the rule does not have significant takings implications. Although once listed as injurious, all brush-tailed possum in this country would be exported or destroyed, the takings would not be significant. 6. Federalism (E.O. 12612) In accordance with Executive Order 12612, the rule does not have significant Federalism effects. A Federalism assessment is not required. This rule will not have substantial direct effects on the States, in their relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. 7. Civil Justice Reform (E.O.12988) In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order. The proposed rule has been reviewed to eliminate drafting errors and ambiguity, written to minimize litigation, and provides a clear legal standard for affected conduct rather than a general standard, and promotes simplification and burden reduction. 8. Paperwork Reduction Act This regulation does not contain any information collection requirements under the Paperwork Reduction Act. 9. National Environmental Policy Act We have analyzed this policy in accordance with the criteria of the National Environmental Policy Act. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required. The action is categorically excluded under Department NEPA procedures (516 DM 2, Appendix 1.10), which applies to policies, directives, regulations, and guidelines of an administrative, legal, technical, or procedural nature; or the environmental effects of which are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will be subject later to the NEPA process, either collectively or case-by-case. 10. Public Comment Solicitation Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A ``section'' appears in bold type and is preceded by the symbol ``Sec. '' and a numbered heading; for example Sec. 16.11 Importation of live wild animals. (5) Is the description of the rule in the Supplementary Information section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand? If you wish to comment, you may submit your comments by any one of several methods. You may mail comments to U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Suite 840, Arlington, VA 22030. Finally, you may hand-deliver comments to the U.S. Fish and Wildlife Service, Division of Fish and Wildlife Management Assistance, 4401 North Fairfax Drive, Suite 840, Arlington, VA 22203. Our practice is to make 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 address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondents's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. 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 business, available for public inspection in their entirety. The Service is issuing this proposed rule under the authority of the Lacey Act (18 U.S.C. 42). Accordingly, the Service proposes to amend 50 CFR part 16 as follows: [[Page 59152]] List of Subjects in 50 CFR Part 16 Fish, Import, Reporting and recordkeeping, Transportation, Wildlife. PART 16--INJURIOUS WILDLIFE 1. The authority citation continues to read as follows: Authority: 18 U.S.C. 42. 2. We amend Sec. 16.11 by adding paragraph (a)(7) to read as follows: Sec. 16.11 Importation of live wild mammals. (a) * * * (7) Any rush-tailed possum (Trichosurus vulpecula). * * * * * Dated: November 3, 1999. Donald J. Barry, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 99-28490 Filed 11-1-99; 8:45 am] BILLING CODE 4310-55-M