[Federal Register Volume 77, Number 34 (Tuesday, February 21, 2012)]
[Proposed Rules]
[Pages 9884-9887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3878]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R9-IA-2011-0093; 96300-1671-0000-P5]
RIN 1018-AX96

Endangered and Threatened Wildlife and Plants; Publishing Notice 
of Receipt of Captive-Bred Wildlife Registration Applications

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
amend the regulations that implement the Endangered Species Act (Act) 
by establishing public notice and comment procedures for applications 
to conduct certain otherwise prohibited activities under the Act that 
are authorized under the Captive Bred Wildlife (CBW) regulations. This 
action would add procedural requirements to the processing of 
applications for registration under the CBW regulations. Notices of 
receipt of each application would be published in the Federal Register, 
and the Service would accept public comment on each application for 30 
days. If the registration were granted, the Service would publish 
certain findings in the Federal Register. In addition, for persons 
meeting the criteria for registering under the CBW Program, each 
registration could remain effective for 5 years.

DATES: We will accept comments received or postmarked on or before 
March 22, 2012.

ADDRESSES: You may submit comments by one of the following methods:
    Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Enter Keyword or ID box, enter FWS-R9-IA-
2011-0093, which is the docket number for this rulemaking. You may 
submit a comment by clicking on ``Send a Comment''.
    By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R9-IA-2011-0093; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will not accept emails or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section at 
the end of SUPPLEMENTARY INFORMATION for further information about 
submitting comments).

FOR FURTHER INFORMATION CONTACT: Timothy J. Van Norman, Chief, Branch 
of Permits, Division of Management Authority, U.S. Fish and Wildlife 
Service, 4401 N. Fairfax Drive, Suite 212, Arlington, VA 22203; 
telephone 703-358-2104; fax 703-358-2281. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.



    The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.) (Act), and its implementing regulations prohibit any person 
subject to the jurisdiction of the United States from conducting 
certain activities unless authorized by a permit. These activities 
include take, import, export, and interstate or foreign commerce of 
fish or wildlife species listed as threatened or endangered under the 
Act. In the case of endangered species, the Service may permit 
otherwise prohibited activities for scientific research or enhancement 
of the propagation or survival of the species. In the case of 
threatened species, regulations allow permits to be issued for the 
above-mentioned purposes, as well as zoological, horticultural, or 
botanical exhibition; education; and special purposes consistent with 
the Act.
    In 1979, the Service published the Captive-Bred Wildlife (CBW) 
regulations at 50 CFR 17.21(g) (44 FR 54002, September 17, 1979) to 
reduce Federal permitting requirements and facilitate captive breeding 
of endangered and threatened species under certain prescribed 
conditions. Specifically, under these regulations, the Service 
promulgated a general permit to authorize persons to take; export or 
reimport; deliver, receive, carry, transport, or ship in interstate or 
foreign commerce, in the course of a commercial activity; or sell or 
offer for sale in interstate or foreign commerce endangered or 
threatened wildlife bred in captivity in the United States. Qualifying 
persons and facilities seeking such authorization under the regulations 
are required to register with the Service. By establishing a more 
flexible management scheme to regulate routine activities related to 
captive propagation, these regulations have benefited wild populations 
by, for example, increasing sources of genetic stock that can be used 
to bolster or reestablish wild populations, decreasing the need to take 
stock from the wild, and providing for research opportunities.
    The authorization granted under the CBW regulations is limited by 
several conditions. These conditions include:
    (1) The wildlife is of a species having a natural geographic 
distribution not including any part of the United States or the 
wildlife is of a species that the Director has determined to be 
eligible in accordance with 50 CFR 17.21(g)(5);
    (2) The purpose of authorized activities is to enhance the 
propagation or survival of the affected species;
    (3) Activities do not involve interstate or foreign commerce, in 
the course of commercial activity, with respect to nonliving wildlife;
    (4) That each specimen of wildlife to be reimported is uniquely 
identified by

[[Page 9885]]

a band, tattoo, or other means that was reported in writing to an 
official of the Service at a port of export prior to the export from 
the United States; and
    (5) Any person subject to the jurisdiction of the United States who 
engages in any of the authorized activities does so in accordance with 
50 CFR 17.21(g) and with all other applicable regulations.
    The regulations also specify application requirements for 
registration that are designed to provide the Service with information 
needed to determine whether the applicant has the means of enhancing 
the propagation or survival of the affected species. For example, the 
application must include a description of the applicant's experience in 
maintaining and propagating the types of wildlife sought to be covered 
under the registration and documentation depicting the facilities in 
which the subject wildlife will be maintained.
    Under this proposed rule, the Service would amend the CBW 
regulations to provide the public with notice of receipt of 
applications for CBW registration and an opportunity to comment on an 
applicant's eligibility to register under the regulations. If we 
determine that the registration should be granted, we will notify the 
public by publishing our findings in the Federal Register that each 
registration was applied for in good faith, will not operate to the 
disadvantage of the affected species, and is consistent with the 
purposes and policy set forth in section 2 of the Act. These procedures 
will apply to both original and renewal applications for registration, 
as well as applications for amendment of the registration. In addition, 
we will make information received as part of each application available 
to the public upon request, including, but not limited to, information 
needed to assess the eligibility of the applicant such as the original 
application materials, any intervening renewal applications documenting 
a change in location or personnel, and the most recent annual report.
    By incorporating these procedural amendments to the CBW 
regulations, the Service intends to increase transparency and openness 
in the CBW registration process, consistent with Executive Order 13576, 
``Delivering an Efficient, Effective, and Accountable Government,'' and 
the Presidential Memorandum of January 21, 2009, which encourage 
government agencies to establish a system of transparency, public 
participation, and collaboration by disclosing information to the 
public. In addition, with these amendments, we believe that increased 
public participation in the CBW registration process will lead to 
better decisions by assisting the Service in assessing whether the 
applicants are capable of enhancing the propagation or survival of the 
species. By incorporating these procedures to increase transparency and 
openness in the registration process, interested persons' perceptions 
of the fairness of the registration process will improve, as well as 
their acceptance of our ultimate determination as to whether the 
registration should be granted.

Effects of the Proposed Rule

    One of the factors that led to the Service establishing the CBW 
program was the desire to avoid permitting delays that might hinder the 
propagation of endangered and threatened species for conservation 
purposes. The Service receives an annual average of 26 applications to 
establish new CBW registrations and 80 applications to renew already 
approved CBW registrations. Because the ESA prohibitions remain in 
place during the initial application process, new applicants are unable 
to carry out activities under a CBW registration until it is issued. 
While the publication of the receipt of an application under the CBW 
program would increase the processing time for the application by 
approximately 35 or 40 days, we do not believe that this increase in 
processing time would adversely affect the potential CBW registrant's 
conservation work. In addition, in the event of an emergency situation 
where the health or life of a protected species is threatened and no 
reasonable alternative is available to the applicant, the Service shall 
waive this 30-day public comment period.
    Regulations are already in place (50 CFR 13.22(c)) that allow for 
the continuation of authorized activities if a CBW registrant submits a 
renewal application at least 30 days before the expiration of the 
current CBW authorization and the registration is in good standing 
(i.e., annual reports have been submitted and the registration is not 
suspended). Provided that the current CBW holders submit their renewal 
request at least 30 days before the expiration date, the comment period 
would have no impact on their ability to carry out previously approved 
activities. The current registration would continue to be valid until 
the renewal process, including the 30-day comment period, ends and we 
make a final determination.
    The Service will also extend the registration period associated 
with approved CBW registrations up to 5 years, provided that the 
registrant remains in good standing. This increase in the registration 
period from 3 years to 5 years will both reduce the application renewal 
burden on CBW registrants and reduce the workload on the Service to 
process renewal requests. Furthermore, the annual reporting requirement 
will remain in place, and because the Service uses these reports to 
monitor CBW registrants, the Service does not believe that extending 
the registration period would adversely affect the oversight of the CBW 

Required Determinations

    Regulatory Planning and Review--Executive Order 12866: The Office 
of Management and Budget (OMB) has determined that this rule is not 
significant under Executive Order 12866 (E.O. 12866). OMB bases its 
determination upon the following four criteria.
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
    (d) Whether the rule raises novel legal or policy issues.
    Regulatory Flexibility Act: Under the Regulatory Flexibility Act 
(as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever a Federal agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions) (5 
U.S.C. 601 et seq.). However, no regulatory flexibility analysis is 
required if the head of an agency certifies that the rule would not 
have a significant economic impact on a substantial number of small 
entities. Thus, for a regulatory flexibility analysis to be required, 
impacts must exceed a threshold for ``significant impact'' and a 
threshold for a ``substantial number of small entities''. See 5 U.S.C. 
605(b). SBREFA amended the Regulatory Flexibility Act to require 
Federal agencies to provide a statement of the factual basis for 
certifying that a rule would not have a significant economic

[[Page 9886]]

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 activities authorized under the CBW program would 
be considered small as defined by the SBA.
    This rule would require the Service to publish notices in the 
Federal Register announcing the receipt of all CBW applications and 
provide the public with a 30-day comment period to provide the Service 
with any relevant information about the applicant or their operation. 
In addition, the rule would require the Service to publish a notice in 
the Federal Register of specified findings for approved registrations. 
The regulatory change is not major in scope and would create no 
financial or paperwork burden on the affected members of the general 
public. In fact, the extension of the effective period of a CBW 
registration from 3 to 5 years will result in a reduction of the 
paperwork burden on the public because of the reduced frequency of 
completing a renewal application.
    We, therefore, certify that this proposed 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 proposed rule:
    a. Would not have an annual effect on the economy of $100 million 
or more. This rule would codify a public notice-and-comment process for 
the receipt of CBW applications and require the publication of certain 
findings for registrations granted under the CBW regulations. The 
Service would publish no more than two notices in the Federal Register, 
and would require nothing from the applicant as far as additional cost 
or paperwork. This rule would not have a negative effect on this part 
of the economy. It will affect all businesses, whether large or small, 
the same. There is not a disproportionate share of benefits for small 
or large businesses.
    b. Would not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, tribal, or local 
government agencies; or geographic regions. This rule would not result 
in an increase in the number of applications for registration to 
conduct otherwise-prohibited activities with endangered and threatened 
    c. Would not have any 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 register under the CBW Registration 
program 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: The Office of Management and Budget 
approved the information collection in part 17 and assigned OMB Control 
Number 1018-0093, which expires February 28, 2014. This rule does not 
contain any new information collections or recordkeeping requirements 
for which OMB approval is required under the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.). We may not conduct or sponsor and a 
person is not required to respond to a collection of information unless 
it displays a currently valid OMB control number.
    National Environmental Policy Act (NEPA): The Service has 
determined that this action is a regulatory change that is 
administrative and procedural in nature. 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; May 
4, 1994) 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.
    Clarity of this Regulation: We are required by Executive Orders 
12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to 
write all rules in plain language. This means that each rule we publish 
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Public Comments

    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We will not accept 
comments sent by email or fax or to an address not listed in ADDRESSES.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in your written comments, you may 
request at the top of your document that we withhold this information 
from public review. However, we cannot guarantee that we will be able 
to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business

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hours, at the U.S. Fish and Wildlife Service; Division of Management 
Authority; 4401 N. Fairfax Drive, Suite 212; Arlington, VA 22203; 
telephone, (703) 358-2093.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    For the reasons given in the preamble, we propose to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as follows:


    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec.  17.21 by revising paragraph (g)(3) to read as 

Sec.  17.21  Prohibitions.

* * * * *
    (g) * * *
    (3) Upon receipt of a complete application for registration, or the 
renewal or amendment of an existing registration, under this section, 
the Service will publish notice of the application in the Federal 
Register. Each notice will invite the submission from interested 
parties, within 30 days after the date of the notice, of written data, 
views, or arguments with respect to the application. All information 
received as part of each application will be made available to the 
public, upon request, as a matter of public record at every stage of 
the proceeding, including, but not limited to, information needed to 
assess the eligibility of the applicant such as the original 
application, materials, any intervening renewal applications 
documenting a change in location or personnel, and the most recent 
annual report.
    (i) At the completion of this comment period, the Director will 
decide whether to approve the registration. In making this decision, 
the Director will consider, in addition to the general criteria in 
Sec.  13.21(b) of this subchapter, whether the expertise, facilities, 
or other resources available to the applicant appear adequate to 
enhance the propagation or survival of the affected wildlife. Public 
education activities may not be the sole basis to justify issuance of a 
registration or to otherwise establish eligibility for the exception 
granted in paragraph (g)(1) of this section.
    (ii) If the Director approves the registration, the Service will 
publish notice of the decision in the Federal Register that the 
registration was applied for in good faith, that issuing the 
registration will not operate to the disadvantage of the species for 
which registration was sought, and that issuing the registration will 
be consistent with the purposes and policy set forth in section 2 of 
the Act.
    (iii) Each person so registered must maintain accurate written 
records of activities conducted under the registration, and allow 
reasonable access to Service agents for inspection purposes as set 
forth in Sec. Sec.  13.46 and 13.47 of this chapter. Each person so 
registered must also submit to the Director an individual written 
annual report of activities, including all births, deaths, and 
transfers of any type.
* * * * *

    Dated: February 10, 2012.
Rachel Jacobsen,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-3878 Filed 2-17-12; 8:45 am]