[Federal Register Volume 59, Number 99 (Tuesday, May 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12453]
[[Page Unknown]]
[Federal Register: May 24, 1994]
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DEPARTMENT OF INTERIOR
Fish and Wildlife Service
Importation of Exotic Wild Birds to the United States;
Implementation of the Wild Bird Conservation Act of 1992
AGENCY: Fish and Wildlife Service, Interior.
Action: Notice.
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Summary: A recent district court order has declared invalid certain
portions of the Fish and Wildlife Service's regulations implementing
the Wild Bird Conservation Act of 1992 (WBCA). On March 29, 1994,
District Judge Oberdorfer ruled that 50 CFR 15.11(b)(2) and the final
sentence of Sec. 15.11(c) [which were promulgated by the Service as
part of the final rule published on November 16, 1993, 58 FR 60524],
violate the language of the WBCA because those regulatory sanctions
purported to exclude from the coverage of the automatic import
moratorium those exotic birds listed on appendix III of the Convention
on International Trade in Endangered Species (CITES) that did not
originate in the country or countries that listed them in appendix III.
Therefore, in keeping with the district court order, the Service
announces that all exotic birds listed on CITES appendix III are
covered by the automatic import moratorium of the WBCA, regardless of
their country of origin. Future rule-making notices will delete the
regulatory provisions that were invalidated by the court order.
FOR FURTHER INFORMATION CONTACT: Dr. Susan S. Lieberman, U.S. Fish and
Wildlife Service, Office of Management Authority, 4401 N. Fairfax
Drive, room 420C, Arlington, VA 22203, telephone (703) 358-2093.
DATES: The court order announced in this notice was issued on March 29,
1994. This notice is effective immediately.
SUPPLEMENTARY INFORMATION: On October 23, 1992 the Wild Bird
Conservation Act (WBCA) was signed into law, the purposes of which
include promoting the conservation of exotic birds by: Ensuring that
all imports into the United States of species of exotic birds are
biologically sustainable and not detrimental to the species; ensuring
that imported birds are not subject to inhumane treatment during
capture and transport; and assisting wild bird conservation and
management programs in countries of origin. On November 16, 1993 the
Service published a final rule in the Federal Register (58 FR 60524)
which implemented the prohibitions stipulated in the WBCA and provided
permit requirements and procedures for some allowed exemptions. This
final rule finalized the proposed rule published in the Federal
Register of August 12, 1993 (58 FR 42926) with some modifications based
on comments received and further analysis by the Service. This notice
serves to announce that the Service will propose to amend 50 CFR 15.11
(b) and (c)--Prohibitions, of the final rule published in the Federal
Register on November 16, 1993.
In the final rule of November 16, 1993, the Service interpreted
that appendix III species are considered CITES-listed species for the
purposes of these regulations only if they originate in the country
that listed them in appendix III. The Service noted that the listing of
a species in appendix III is a unilateral action by a particular CITES
Party, thereby requiring CITES permits and implementation of CITES
permits issuance requirements for that country only; when the species
is found in other countries that did not list it in appendix III, only
a certificate of origin is required, stating that it did not originate
in the country that listed the species in appendix III. Therefore, when
the species is found in countries other than where listed in appendix
III, it is not subject to the same level of CITES controls, and indeed
is only listed in the appendices to assist the listing state in
implementing its domestic legislation. Based on its understanding of
the intent of Congress, the Service implemented a final rule whereby
appendix III species were subject to the automatic import prohibitions
of the law, if they originated in the listing country. Otherwise, they
would be subject to the discretionary prohibitions of the law.
The Humane Society of the United States and Defenders of Wildlife
brought a civil action against the Secretary of the Interior in the
United States District Court for the District of Columbia challenging
that part of Sec. 15.11 which restricts the importation of certain
appendix III exotic birds. Humane Society of the United States v.
Babbitt, Civ. No. 94-0296 (D.D.C., Mar. 29, 1994). A hearing in
District Court took place on March 7, 1994. Plaintiffs argued that this
provision, which was adopted through notice and comment procedures,
violates the language of the Wild Bird Conservation Act of 1992. They
sought relief to suspend or invalidate the following exception,
contained in the final rule, to the prohibition on importation of birds
listed in the Convention's appendices: ``This paragraph (b) does not
apply to an exotic bird species listed in appendix III to the
Convention that originated in a country that has not listed the species
in appendix III'' (50 CFR 15.11 (b) (2)). Plaintiffs argued that this
provision violates the plain language of the Act, which bars the
importation of ``any'' species listed in ``any'' appendix to the
Convention.
On March 29, 1994 U.S. District Judge Louis F. Oberdorfer found the
contested regulation to be invalid. Therefore, effective immediately,
no birds listed in CITES appendix III can be imported into the United
States unless they are accompanied by an import permit or are on an
approved list, pursuant to 50 CFR part 15.
In a future notice, the Service will propose to amend 50 CFR 15.11
(b) and (c) consistent with the declaration in the Court Order. The
Service will propose that all exotic bird species listed in CITES
appendix III (in addition to those in I or II), wherever found, cannot
be imported into the U.S. unless accompanied by an import permit issued
pursuant to subpart C of 50 CFR part 15 or are included in an approved
list. On March 17, 1994 the Service published in the Federal Register
(59 FR 12784) a proposed rule establishing those approved lists.
Dated May 4, 1994.
Authority: 16 U.S.C. 4901-4916.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-12453 Filed 5-23-94; 8:45 am]
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