[Federal Register Volume 86, Number 11 (Tuesday, January 19, 2021)]
[Proposed Rules]
[Pages 5112-5120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01012]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-IA-2021-0004; FF09A30000-212-FXIA16710900000]
RIN 1018-BF60
Endangered and Threatened Wildlife and Plants; Regulations
Pertaining to the American Alligator (Alligator mississippiensis)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS or Service), are
proposing to amend regulations concerning American alligators
(Alligator mississippiensis) by revising provisions pertaining to
interstate and foreign commerce. We are proposing these changes to
increase clarity and eliminate unnecessary regulation while at the same
time maintaining what is necessary and advisable for the conservation
of this and other endangered or threatened crocodilian species under
section 4(d) of the Endangered Species Act of 1973, as amended.
DATES: You may comment on this proposed rule until March 22, 2021.
ADDRESSES: You may submit written comments by one of the following
methods:
Electronically Using the Federal eRulemaking Portal:
http://www.regulations.gov in Docket No. FWS-HQ-IA-2021-0004 (the
docket number for this rulemaking).
U.S. Mail: Public Comments Processing, Attn: FWS-HQ-IA-
2020-XXXX; U.S. Fish and Wildlife Service Headquarters, MS: PRB (JAO/
3W), 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We will not accept email or faxes. Comments and materials we
receive, as well as supporting documentation, will be available for
public inspection on http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Pamela Hall Scruggs, Chief, Division
of Management Authority, U.S. Fish and Wildlife Service, 5275 Leesburg
Pike, MS: IA, Falls Church, VA 22041-3803; telephone 703-358-2095 or
email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The American alligator (Alligator mississippiensis) is an iconic
U.S. animal with a history of both drastic decline and complete
recovery. As a result of State and Federal cooperation, its recovery is
one of the most prominent successes of the Nation's endangered species
program.
The American alligator is a large, semi-aquatic, armored reptile
that is related to crocodiles. Alligators can be distinguished from
crocodiles by head shape and color. Adult alligators, which are almost
black in color, have a broad, large, long head with visible upper teeth
along the edge of the jaws. Crocodiles, which are brownish in color,
have a narrower snout and have lower jaw teeth that are visible even
when its mouth is shut. The American alligator has a large, slightly
rounded body,
[[Page 5113]]
which ranges for adult alligators from 6 to 14 feet long, as well as
thick limbs and a very powerful tail that it uses to propel itself
through water. The tail accounts for half the alligator's length. Its
front feet have five toes, while the rear feet have four toes that are
webbed. In the wild, the American alligator often lives to 50 years of
age and possibly over 70 years of age (Wilkinson et al. 2016, p. 843).
The breeding range of the American alligator is distributed in the
southeastern United States in Arkansas, North Carolina, South Carolina,
Georgia, Florida, Louisiana, Alabama, Mississippi, Oklahoma, and Texas.
Within this range, American alligators inhabit freshwater swamps,
lakes, marshes, and streams (Elsey et al. 2019, p. 1). They also
inhabit brackish water habitats and, although they have a low tolerance
for salt water, will occasionally use marine environments for feeding
(Rosenblatt and Heithaus 2011, p. 786).
In the late 1860s, the leather industry's demand for exotic hides
led to widespread commercial hunting of the American alligator. The
demand in Europe and the United States for luxury leather products was
so rapacious that, within a few years, large American alligators became
extremely rare. This situation created a market for exported crocodile
hides from Mexico and Central America. Tens of thousands of alligator
and crocodile skins entered world markets, making their way from swamps
to tanneries to exclusive department stores and boutiques. The
precipitous decrease in size and numbers of American alligators taken
for trade reflected a species in decline.
Today, American alligator populations thrive, as a result of
creative partnerships between Federal and State governments. The States
led the way in providing legal protection. Alabama adopted protective
legislation for its American alligator population in 1941, followed by
Florida (1961), Louisiana (1962), and Texas (1970). The wild American
alligator population trend is increasing and is estimated to be 3-4
million non-hatchling individuals, of which approximately 750,000-
1,060,000 are mature individuals (Elsey et al. 2019, p. 3).
Alligator farming and ranching played a role in the conservation
success. American alligator ``farming'' involves captive breeding of
American alligators. American alligator ``ranching'' involves gathering
eggs from the wild, returning some juveniles to the wild, and raising
the remainder to market size. For example, to ensure wild alligators
are not depleted as a result of egg collections, and to ensure future
recruitment of subadult alligators to the breeding population, the
Louisiana Department of Wildlife and Fisheries currently requires a
quantity of juvenile alligators equal to 10 percent of the eggs hatched
by the rancher be returned to the wild within 2 years of hatching
(Louisiana's Alligator Management Program 2017-2018 Annual Report, page
5). Alligator ranching has minimal adverse effects on the environment,
and it has direct positive effects on alligator conservation. It may
reduce demand for poached wild alligator skins and likely creates an
incentive for ranchers to contribute to maintenance of wild populations
and their habitats (Nickum et al. 2018, p. 87). Practiced primarily in
Louisiana, Florida, Georgia, and Texas, American alligator farming and
ranching is an aquaculture industry worth tens of millions of dollars
(Nickum et al. 2018, p. 88). Particularly in Louisiana and Florida,
farming and ranching are now being carried out on a large scale; stocks
in over 100 commercial farms and ranches throughout the country are
high, with more than 923,000 American alligators on farms in Louisiana
alone in 2016 (Elsey et al. 2019, p. 3).
The American alligator first received protection under Federal law
in 1967 when it was listed as endangered throughout its range under the
Endangered Species Preservation Act of 1966 (32 FR 4001, March 11,
1967), a predecessor to the Endangered Species Act of 1973, as amended
(16 U.S.C. 1531 et seq. (Act, ESA)). Its endangered classification was
transferred to the Act effective December 28, 1973, (Pub. L. 93-205, 1,
Dec. 28, 1973, 87 Stat. 884).
Under the ESA, species may be listed either as ``threatened'' or as
``endangered'' (16 U.S.C. 1532(6) (defining ``endangered''); 16 U.S.C.
1532(20) (defining ``threatened'')). ESA regulations are set forth in
title 50 of the Code of Federal Regulations in parts 17 and 424.
Section 4(e) of the Act (16 U.S.C. 1533(e); 50 CFR 17.50-17.51) gives
the Secretary of the Interior authority to list a species, subspecies,
or distinct population segment as endangered or threatened by reason of
similarity of appearance if: (A) Such species so closely resembles in
appearance, at the point in question, an ESA-listed endangered or
threatened species that enforcement personnel would have substantial
difficulty in attempting to differentiate between the listed and
unlisted species; (B) the effect of this substantial difficulty is an
additional threat to an endangered or threatened species; and (C) such
treatment of an unlisted species will substantially facilitate the
enforcement and further the policy of the Act. All applicable
prohibitions and exceptions for species treated as threatened under
section 4(e) of the Act due to similarity of appearance to a threatened
or endangered species are provided in a rule issued under section 4(d)
of the Act (16 U.S.C. 1533(d)), as discussed further below.
When a fish or wildlife species is listed as endangered under the
ESA, certain actions are prohibited under section 9 (16 U.S.C.
1538(a)(1)), as specified at 50 CFR 17.21. These include prohibitions
on ``take'' (16 U.S.C. 1532(19) (defining ``take'' to mean ``harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in any such conduct''); 50 CFR 17.3 (defining
``harm'' and ``harass'')) within the United States, within the
territorial seas of the United States, or upon the high seas;
possession, sale, delivery, carrying, transport, or shipment of
unlawfully taken specimens; import; export; sale and offer for sale in
interstate or foreign commerce; and delivery, receipt, carrying,
transport, or shipment in interstate or foreign commerce in the course
of a commercial activity. It is also unlawful to attempt to commit,
solicit another to commit, or cause to be committed, any of these
offenses (16 U.S.C. 1538(g)).
The ESA does not specify particular prohibitions and exceptions to
those prohibitions for threatened species. Instead, under section 4(d)
of the ESA (16 U.S.C. 1533(d)), the Secretary of the Interior is given
the discretion to issue such regulations as deemed necessary and
advisable to provide for the conservation of the species. The Secretary
also has the discretion to prohibit by regulation, with respect to any
threatened species, any act prohibited under section 9(a)(1) of the ESA
for endangered species of fish or wildlife. Accordingly, under section
4(d) of the ESA, the Service may develop specific prohibitions and
exceptions tailored to the particular conservation needs of a
threatened species (50 CFR 17.31(c)).
We have gained considerable experience in developing species-
specific rules over the years. Where we have developed species-specific
4(d) rules, we have seen many benefits, including removing redundant
permitting requirements, facilitating implementation of beneficial
conservation actions, and making better use of our limited personnel
and fiscal resources by focusing prohibitions on the stressors
contributing to the threatened status of the species. This
[[Page 5114]]
proposed rule will allow us to capitalize on these benefits in
tailoring the regulations to species conservation needs by eliminating
unnecessary regulation while at the same time maintaining what is
necessary and advisable for the conservation of this and other
crocodilian species under section 4(d) of the ESA.
Section 4(d) of the Act states that the Secretary shall issue such
regulations as he deems necessary and advisable to provide for the
conservation of species listed as threatened. The U.S. Supreme Court
has noted that statutory language very similar to ``necessary and
advisable'' demonstrates a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592 (1988)). ``Conservation'' is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary (16 U.S.C. 1532(3)). Additionally, section 4(d) states that
the Secretary may by regulation prohibit with respect to any threatened
species any act prohibited under section 9(a)(1), in the case of fish
or wildlife, or 9(a)(2), in the case of plants. Thus, regulations
promulgated under section 4(d) of the Act provide the Secretary with
broad discretion to select appropriate provisions tailored to the
specific conservation needs of the threatened species. The statute
grants particularly broad discretion to the Service when adopting the
prohibitions under section 9. The Service also has discretion to revise
or promulgate species-specific rules at any time after the final
listing or reclassification determination.
The section 4(d) rule at 50 CFR 17.42(a), which currently pertains
to any specimen of the American alligator, first became effective in
1975 (40 FR 44412, September 26, 1975). In 1975, American alligators in
certain parts of Louisiana were reclassified from endangered to
threatened because of recovery of these populations of the species and
their similarity of appearance with endangered American alligators in
Louisiana and elsewhere in the American alligator range (40 FR 44412,
September 26, 1975). The preamble to the 1975 rule explained that the
primary threat to American alligators in certain areas was the absence
of adequate regulatory and enforcement mechanisms ``to prevent
malicious and illicit commercially oriented killing'' and ``to control
illegal commerce in products.'' To address concerns that once a legal
market was established it could provide a ``screen'' for American
alligator products from endangered populations, the 1975 rule
established a marking and tagging regime for American alligator hides
and included permitting requirements for fabricators, buyers, and
tanners to allow identification throughout the marketing and processing
chain. The 1975 rule allowed take of American alligators from
threatened populations and captive alligators provided the take was in
accordance with State of Louisiana laws and regulations, including
marking and tagging requirements, and allowed sale of hides only to
persons holding a valid Federal license as buyers. Sale of meat and
other parts was prohibited under the 1975 section 4(d) rule. In the
years that followed, the species continued to improve. See the
following rulemaking documents:
42 FR 2071 (January 10, 1977) (reclassifying the American
alligator from ``endangered'' to ``threatened'' in all of Florida and
certain coastal areas of Georgia, Louisiana, South Carolina, and
Texas);
44 FR 37130 (June 25, 1979) (expanding ``threatened due to
similarity of appearance'' classification from 3 to 12 Louisiana
parishes);
46 FR 40664 (Aug. 10, 1981) (expanding ``threatened due to
similarity of appearance'' classification to all of Louisiana);
48 FR 46332 (Oct. 12, 1983) (all of Texas); and
50 FR 25672 (June 20, 1985) (all of Florida).
The American alligator 4(d) rule was also amended several times
during these years:
42 FR 2071, January 10, 1977;
44 FR 51980, September 6, 1979;
44 FR 59080, October 12, 1979;
45 FR 78153, November 25, 1980;
46 FR 40664, August 10, 1981;
48 FR 46332, October 12, 1983;
50 FR 25672, June 20, 1985;
50 FR 45407, October 31, 1985;
52 FR 21059, June 4, 1987;
72 FR 48402, August 23, 2007.
For example, in 1979 (44 FR 51980, September 6, 1979), a final rule
amending the 4(d) rule noted that the ``consistent intent'' throughout
these rulemakings has been to authorize controlled harvest of American
alligators in specified areas, subject to State and Federal law. The
final rule reclassified the American alligator populations in nine
additional parishes in Louisiana from endangered to threatened due to
similarity of appearance to endangered American alligators in the
remainder of the species' range and, among other things, authorized
sale of meat and other parts, except hides, only within the State of
Louisiana and subject to the laws and regulations of the State of
Louisiana. Although some commenters had recommended also allowing sale
of meat and parts in other States, the Service did not adopt that
recommendation and explained that licensing and recordkeeping
requirements imposed by the State of Louisiana had facilitated
effective enforcement with respect to sale of meat and other parts in
Louisiana but that no regulatory scheme existed to provide effective
enforcement outside of Louisiana. On October 12, 1979 (44 FR 59080),
another rulemaking revised the section 4(d) rule to allow limited
commercial export and import of lawfully taken American alligator hides
and products manufactured from those hides in accordance with the
requirements of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES), after the transfer of American
alligator from CITES Appendix I to CITES Appendix II, effective June
28, 1979, allowed for international trade in American alligator for
commercial purposes.
Revisions to the section 4(d) rule in 1980 (45 FR 78153, November
25, 1980) removed the requirement for fabricators to obtain Federal
permits, but to ensure that fabricators only received lawfully taken
hides, maintained the requirement limiting sale of raw (untanned) hides
to a person holding a valid Federal permit to buy hides. The 1980
revisions also allowed interstate commerce of fully tanned hides that
had been tagged by the State where the taking occurred and allowed sale
or transfer of meat and other parts except hides, provided these parts
were sold or otherwise transferred only in accordance with the laws and
regulations of the State in which the taking occurred and the State in
which the sale or transfer occurred. The 1980 section 4(d) rule also
allowed interstate commerce in manufactured products.
By 1987, the American alligator had recovered enough so that it did
not qualify as endangered or threatened based on its own conservation
status. However, it was reclassified under the Act as ``threatened due
to similarity of appearance'' throughout its range (52 FR 21063, June
4, 1987) based on its resemblance to the American crocodile and other
threatened crocodilian species. As noted above, populations in Florida,
Louisiana, and Texas and portions of other States had already been
reclassified. This rule reclassified the remaining endangered
populations in Alabama, Arkansas, Georgia, Mississippi, North Carolina,
and South Carolina. The preamble to the final rule
[[Page 5115]]
explained that the rule ``supports a need for continued Federal
controls on taking and commerce to ensure against excessive taking and
to continue necessary protections for the American crocodile
(Crocodylus acutus) in the U.S. and foreign countries, and other
endangered crocodilians in foreign countries'' (52 FR 21060, June 4,
1987).
The classification of the American alligator as threatened due to
similarity of appearance is intended to protect other listed species
that bear a resemblance to the American alligator. Take of American
alligators is regulated by States and Tribes and section 4(d)
regulations at 50 CFR 17.42, Special rules--reptiles. Under 50 CFR
17.42(a), the Service regulates the harvest of American alligators, and
subsequent interstate commerce and international trade in the legally
harvested animals, their skins, and products made from them, as part of
efforts to prevent the illegal take and trafficking of threatened and
endangered reptiles that are similar in appearance to American
alligators. Illegally harvested alligators cannot legally be entered
into commerce or trade under the 4(d) rule.
As noted above, currently, the American alligator is listed under
the Act as threatened due to similarity of appearance to the American
crocodile (Crocodylus acutus) in the United States and foreign
countries, and other ESA-listed crocodilians (50 CFR 17.11). The
Service recognizes that some populations of crocodilians that are
managed as a sustainable resource can be utilized for commercial
purposes without adversely affecting the survival of those populations,
when scientifically based management plans are implemented. When
certain positive conservation conditions have been met, the Service has
allowed utilization and trade from managed populations of the American
alligator, and other crocodilians. For example, we have allowed the
importation of commercial shipments of Nile crocodile (Crocodylus
niloticus) from several southern and eastern African countries, and
allowed for similar shipments of saltwater crocodile (Crocodylus
porosus) specimens from Australia (61 FR 32356, June 24, 1996). In each
of these examples, the species or population is not an ESA-listed
endangered species, and also is not included in CITES Appendix I.
We are aware that there have been questions raised regarding
proposed or recently enacted State laws that would prohibit commercial
activities involving American alligator and concerns that such laws may
result in a reduction in proceeds from lawful interstate commerce in
alligators that is used to fund important conservation efforts for
alligators and their habitat. See Section II below regarding Petition
to Amend Endangered Species Act Section 4(d) Rule Actions Concerning
the American Alligator. This proposed rule would amend the 4(d) rule to
remove the requirement at 50 CFR 17.42(a)(2)(ii)(B) that ``[a]ny
American alligator specimen may be sold or otherwise transferred only
in accordance with the laws and regulations of . . . the State or Tribe
in which the sale or transfer occurs.'' This amendment clarifies that
any State law regulating commercial sale or transfer that effectively
prohibits interstate commerce or foreign commerce authorized by the
4(d) rule would be preempted by section 6(f) of the ESA and would be
void to the extent of the conflict (16 U.S.C. 1535(f)(2); the Supremacy
Clause of the U.S. Constitution). We also explained the preemptive
effect of 4(d) rules and section 6(f) in the most recent prior
rulemaking amending the American alligator 4(d) rule. See 72 FR 48402,
48406 (Aug. 23, 2007) (relying on Man Hing Ivory & Imports, Inc. v.
Deukmejian, 702 F.2d 760 (9th Cir. 1983)). By amending the 4(d) rule to
remove the provision relating to the State or Tribe in which a sale or
transfer occurs, we intend to eliminate the potential tension between
those State laws and the well-regulated American alligator management
regime that has been established through decades of cooperation between
the Service, States in the alligator's range, and the alligator
industry, and which is facilitated by the regulation of interstate
commerce and international trade through the 4(d) rule.
Although it can be difficult to identify the species in products
manufactured from crocodilian species, and this situation can pose a
problem for law enforcement, over the more than 30 years that the
provision in question has been in place, we have no reason to believe
that this provision at 50 CFR 17.42(a)(2)(ii)(B) has added to the
conservation benefits provided by other provisions in the current
American alligator 4(d) rule. Further, the first phrase in the sentence
at 50 CFR 17.42(a)(2)(ii)(B) pertaining to ``the laws and regulations
of the State or Tribe in which the taking occurs'' is largely
redundant, as it restates what is already stated earlier in 50 CFR
17.42(a)(2)(ii).
The conditional language in 50 CFR 17.42 (a)(2)(ii)(B) may be
inhibiting interstate commerce that has developed since the American
alligator was first reclassified under the Act and which provides
funding to support crocodilian conservation and helps States and Tribes
address threats to these populations. Confusion caused by this
provision concerning the interaction between Federal, State, and Tribal
rules and regulations could deter protection of American alligator
habitat, upsetting regulatory protocols that have been in place for
decades, and thereby undermining the conservation of this and other
crocodilian species under section 4(d) of the Act.
Quotas for controlled hunting of adults, and collection of eggs and
hatchlings on both private and public lands are based on annual
monitoring of nests and local population densities and occur in
accordance with the laws and regulations of the State or Tribe in which
the taking of American alligators occurs. Commercial production of
skins and meat is highly regulated by State agencies through a system
of permits, licenses, periodic stock inventories, ranch inspections,
and tagging requirements, which occur in accordance with the laws and
regulations of the State or Tribe in which the taking of American
alligators occurs. Fees collected through State and Tribal regulatory
systems (also in accordance with the laws and regulations of the State
or Tribe in which the taking of American alligators occurs) provide
funding for management, regulation, enforcement, and research programs
for the American alligator. Conservation of American alligators has
succeeded by sustainable regulated harvests, protecting important
alligator habitat, and providing economic incentives for private
landowners to maintain alligator habitat (Elsey et al. 2019, p. 5). For
these reasons, we reaffirm the need to ensure that take of, and
interstate commerce in, American alligators may only be in accordance
with the laws and regulations of the State or Tribe of taking but
propose to remove as unnecessary and confusing the provision that sale
or transfer may only be in accordance with the laws and regulations of
the State or Tribe where the sale or transfer occurs.
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES)
Separate from its listing and conservation status under the ESA,
the American alligator is protected under the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES), a treaty that regulates international trade in species
included in one of three Appendices. In 1975, the American alligator
was included in Appendix I of CITES. CITES Appendix I includes species
threatened with
[[Page 5116]]
extinction that are or may be affected by trade.
In 1979, the American alligator was transferred from CITES Appendix
I to Appendix II. Appendix II includes species that are not presently
threatened with extinction, but may become so if their trade is not
regulated. It also includes species that need to be regulated so that
trade in certain other Appendix-I or -II species may be effectively
controlled (due to similarity of appearance to other CITES species).
Commercial international trade of Appendix-II species is allowed under
CITES export permits issued by the Management Authority of the
exporting country, provided specific determinations have been made,
including that the Management Authority of the exporting country has
determined that the specimens involved have been legally acquired and
the Scientific Authority of the exporting country has determined that
the trade will not be detrimental to the survival of the species. In
the United States, the ESA (16 U.S.C. 1537a) designates the Secretary
of the Interior as the CITES Management Authority and Scientific
Authority and requires the functions of each shall be carried out by
the Service.
The Parties to CITES reviewed management activities prior to
transferring the American alligator from CITES Appendix I to Appendix
II (thereby allowing commercial trade), reviewed assessments of
population status, reviewed determinations of sustainable harvest
quotas (or approval of ranching programs), and reviewed the control of
the illegal harvest. Management regulations imposed after harvest
included the tagging of skins and issuance of permits to satisfy the
requirements for CITES Appendix-II species. As a Party to CITES, in
addition to ESA requirements, the United States implements CITES
requirements for trade in American alligators. The United States
implements CITES through the ESA (16 U.S.C. 1537a; 16 U.S.C.
1538(c)(1)) and the Service's CITES implementing regulations (50 CFR
part 23). CITES requirements for international trade specific to
American alligator are found at 50 CFR 23.70.
II. Petition To Amend Endangered Species Act Section 4(d) Rule Actions
Concerning the American Alligator
Petition
The Secretary of the Interior received a petition in the form of a
letter dated December 9, 2019, from the State of Louisiana, titled,
Petition for Rulemaking to Correct the American Alligator Regulations
at 50 CFR 17.42(a) Pertaining to the Sale of Hides. The petition
requests ``the repeal of those regulations which limit the sale or
transfer of alligator hides to compliance with the State in which the
sale or transfer occurs.'' The petition asserts that the language in
the regulation imposing this requirement may have been included or
retained as the result of administrative error or confusion. The
petition asserts that, as the result of a series of proposed rules and
final rules issued between 1980 and 1987, the Service inadvertently
added alligator hides to the list of products required to be sold or
transferred in interstate commerce only in accordance with the law of
the State in which the sale or transfer occurs.
The petition requests a new rulemaking to amend 50 CFR
17.42(a)(2)(ii)(B) to eliminate the change that included alligator
hides in the group of parts and products that may only be sold or
transferred in interstate commerce in accordance with the law of the
State or Tribe in which the sale or transfer occurs. The petition
requests that the Service amend the rule to revert back to the regime
set out in the 1980 alligator section 4(d) regulations, which allowed
for take of American alligators wherever listed as threatened due to
similarity of appearance, in accordance with the laws in the State of
taking subject to certain conditions including that ``any meat or other
part except the hide is sold or otherwise transferred only in
accordance with the laws and regulations of the State in which the
taking occurs and the State in which the sale or transfer occurs;'' (45
FR 78153, November 25, 1980).
It is true that earlier versions of the section 4(d) rule did not,
in the phrase in question, include hides in the group of parts and
products that could only be sold in accordance with the laws of the
State or Tribe in which the sale or transfer occurred. However, those
earlier versions also strictly regulated the sale and transfer of
hides, including by requiring that hides could only be sold or
transferred to a person holding a valid buyer permit (issued under the
section 4(d) rule) and that the hides must be tagged by the State where
they were taken. Tanners and, for a time, fabricators also had to
obtain permits under the section 4(d) rule, and buyer, tanner, and
fabricator permittees were prohibited from violating any State,
Federal, or foreign laws concerning hides and other parts and products.
Tagging of alligator hides by the State or Tribe of taking is still
required under the current section 4(d) rule and forms the basis of the
traceability regime that allows us to ensure that hides in trade
(including those to be exported) have been legally acquired under an
approved State or Tribal program. The current section 4(d) rule for the
American alligator does not require hide buyers, tanners, or
fabricators to obtain permits.
Service Response to the Petition
The ESA section 4(d) rule concerning the American alligator became
effective over 45 years ago. More than 33 years have passed since
publication of the 1987 revision to the rule that included the
provision that the petition seeks to amend. In reviewing the
conservation success story related to the alligator, we find that the
requirement for interstate commerce in American alligator to adhere to
laws of the States and Tribes where the sale or transfer occurs is not
necessary. Under the Administrative Procedure Act (APA), any person may
petition for the issuance, amendment, or repeal of a rule (5 U.S.C.
553(e)). In considering the petition, we follow Department of the
Interior regulations concerning petitions for APA rulemakings, found at
43 CFR part 14 (43 CFR 14.2, Filing of petitions.). To that end,
interested persons may obtain a copy of the petition on the internet at
http://www.regulations.gov, in the docket supporting materials section
provided above in ADDRESSES. This proposed rule addresses the petition.
III. This Proposed Rule
As a result of the petition received from the State of Louisiana,
we conducted a review of our regulations at 50 CFR 17.42(a) and have
determined that this proposed rulemaking action is necessary and
advisable for the conservation of this and other crocodilian species
under section 4(d) of the Act. The Service has the responsibility to
periodically update and clarify our implementing regulations when it is
necessary to do so. With this proposed rule, we reflect the outcome of
our review.
We have evaluated the petition received from the State of Louisiana
concerning the requested amendment to our regulations at 50 CFR
17.42(a). We have also conducted our own evaluation of our regulations
at 50 CFR 17.42(a), and have concluded that there is sufficient reason
for a new rulemaking that removes the requirement in the 4(d) rule's
authorization of interstate or foreign commerce that American
alligators, including hides and other parts and products, may only be
sold or transferred in accordance with the law of the State or Tribe in
which the sale or transfer occurs. As noted above, the section 4(d)
rule for the American
[[Page 5117]]
alligator has been revised a number of times since it was first
promulgated in 1975. Changes to the section 4(d) rule were adopted in
response to changes in the conservation status of various populations
of the species (and the reclassification of those populations) and to
the related and evolving need for Federal control of taking and
commerce in American alligators and American alligator parts and
products, as well as for the effective protection and enforcement of
requirements for other ESA-listed crocodilians.
We believe the requirement at 50 CFR 17.42(a)(2)(ii)(B) that any
American alligator specimen may be sold or otherwise transferred only
in accordance with the laws and regulations of the State or Tribe in
which the sale or transfer occurs is unnecessary and can be removed as
a condition of the 4(d) rule's authorization of interstate and foreign
commerce. Through this amendment, any State law regulating commercial
sale or transfer that effectively prohibits interstate or foreign
commerce authorized by the 4(d) rule would be preempted by section 6(f)
of the ESA and would be void to the extent of the conflict (16 U.S.C.
1535(f)(2); the Supremacy Clause of the U.S. Constitution). Further,
the first phrase in the sentence at 50 CFR 17.42(a)(2)(ii)(B) is
largely redundant, as it restates what is already stated in 50 CFR
17.42(a)(2)(ii), and therefore can also be removed along with
conforming amendments. We believe that this proposed amendment could
reduce confusion concerning the interaction between Federal, State, and
Tribal rules and regulations and clarify the activities that are
authorized by Federal regulation. We believe that the requirement at 50
CFR 17.42(a)(2)(ii)(B) that any American alligator specimen may be sold
or otherwise transferred only in accordance with the laws and
regulations of the State or Tribe in which the sale or transfer occurs,
is not necessary for the conservation of the American alligator and for
other crocodilian species to which the American alligator bears
similarity of appearance.
IV. Public Comments Solicited
We invite interested organizations and the public to comment on
this proposed rule. We analyzed the 4(d) rule in response to the
petition from Louisiana and have drafted this proposed amendment to 50
CFR 17.42(a)(2)(ii)(B) following our review and analysis. We are
seeking comments related to any proposed revisions to the ESA section
4(d) rule concerning the American alligator at 50 CFR 17.42(a). We will
not consider comments regarding this proposed rule sent by email or fax
or to an address not listed in ADDRESSES. If you submit a comment via
http://www.regulations.gov, your entire comment, including any personal
identifying information, will be posted on the website. If you submit a
hardcopy comment that includes personal identifying information, 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. We will post all hardcopy comments on http://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final 4(d) rule may differ from this
proposal. Based on the new information we receive (and any comments on
that new information), we may change the parameters of the prohibitions
or the exceptions to those prohibitions if we conclude it is
appropriate in light of comments and new information received. For
example, we may expand the prohibitions to include prohibiting
additional activities if we conclude that those additional activities
are not compatible with conservation of the listed crocodilians that
are similar in appearance to the American alligator. Conversely, we may
establish additional exceptions to the prohibitions in the final rule
if we conclude that the activities would facilitate or are compatible
with the conservation and recovery of the listed crocodilians that are
similar in appearance to the American alligator.
V. Required Determinations
Clarity of the Proposed Rule
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 must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) 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.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We are required under the National Environmental Policy Act (NEPA;
42 U.S.C. 4321 et seq.) to assess the impact of any Federal action
significantly affecting the quality of the human environment, health,
and safety. This proposed rule is being analyzed under the criteria of
NEPA, the Department of the Interior procedures for compliance with
NEPA (Departmental Manual (DM) and 43 CFR part 46), and Council on
Environmental Quality regulations for implementing the procedural
provisions of NEPA (40 CFR parts 1500-1508). We are preparing a draft
environmental assessment to determine whether this proposed rule will
have a significant impact on the quality of the human environment under
NEPA. We will announce the availability of the draft environmental
assessment as soon as it is completed. When completed, the draft
environmental assessment will be available on the internet at http://www.regulations.gov in the docket provided above in ADDRESSES.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Under the Regulatory Flexibility Act (RFA) (as amended by the Small
Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5
U.S.C. 601 et seq.), 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).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will 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.''
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA; 5 U.S.C. 801 et seq.) amended the RFA to require Federal
agencies to provide a certification statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. According to the Small Business
Administration (SBA), small
[[Page 5118]]
entities include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201).
The SBA has developed size standards to carry out the purposes of
the Small Business Act. These standards can be found in 13 CFR 121.201.
For a specific industry identified by the North American Industry
Classification System (NAICS), small entities are defined by the SBA as
an individual, limited partnership, or small company considered at
``arm's length'' from the control of any parent company, which meet
certain size standards. The size standards are expressed either in
number of employees or annual receipts. This proposed rule is most
likely to affect entities nationwide that sell alligator products such
as hides, eggs, and meat. The industries most likely to be directly
affected are listed in the table below along with the relevant SBA size
standards.
Table 1--Industries Potentially Affected by the Proposed Rule
------------------------------------------------------------------------
Size standards in
Industry NAICS code millions of dollars or
employees
------------------------------------------------------------------------
Full-Service Restaurants....... 722511 $8.0
Limited-Service Restaurants.... 722513 12.0
Supermarkets and Other Grocery 445110 35.0
(except Convenience) Stores...
Other Aquaculture.............. 112519 1.0
Leather and Hide Tanning and 316110 * 500
Finishing.....................
------------------------------------------------------------------------
* Employees.
Based on these thresholds, the proposed rule may affect small
entities. In addition to determining whether a substantial number of
small entities are likely to be affected by this proposed rule, the
Service must also determine whether the proposed rule is anticipated to
have a significant economic impact on those small entities. This rule
would not significantly impact interstate commerce, as the proposed
changes would not change the fact that interstate commerce is allowed
under the provisions of this 4(d) rule. Therefore, we do not expect any
significant impacts to these businesses because interstate commerce
would continue as provisioned by the Endangered Species Act and the
4(d) regulations, and any potential positive economic impact from the
preemption of any conflicting State or Tribal law is too speculative to
estimate. The rule would not have a significant economic effect on a
substantial number of small entities in any region or nationally.
Therefore, based on the information available to us at this time,
we certify that this proposed rule would not have a significant
economic effect on a substantial number of small entities as defined
under the RFA. An initial regulatory flexibility analysis is not
required. Accordingly, a small entity compliance guide is not required.
Small Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C.
801 et seq.)
This proposed 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.
(b) Would not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, or local government
agencies; or geographic regions.
(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.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA has
determined that this rule is not significant.
E.O. 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 proposed rule in a manner
consistent with these requirements.
This proposed rule would provide clarity regarding interstate
commerce in alligators, whether alive or dead, including any skin,
part, product, egg, or offspring thereof held in captivity or from the
wild. It would reaffirm current, longstanding provisions that allow
interstate commerce in lawfully harvested American alligators but would
remove text conditioning sale or transfer in accordance with the law of
the State or Tribe in which sale or transfer occurs. Therefore, we do
not anticipate significant economic impacts because interstate commerce
would continue as provisioned by the Endangered Species Act and the
section 4(d) regulations and any potential economic impact from the
preemption of any conflicting State or Tribal law is too speculative to
estimate.
Executive Order 13771
This rule is not an Executive Order (E.O.) 13771 (``Reducing
Regulation and Controlling Regulatory Costs'') (82 FR 9339, February 3,
2017) regulatory action because this rule is not significant under E.O.
12866.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects when undertaking
certain actions. This rule is not a significant energy action under the
definition in Executive Order 13211. A statement of Energy Effects is
not required. This proposed rule would revise the current regulations
in 50 CFR part 17 that pertain to the harvest of American alligators
and regulate legal trade in the animals, their skins, and products made
from them, as part of efforts to prevent the illegal take and
[[Page 5119]]
trafficking of endangered reptiles that are similar in appearance to
American alligators. This proposed rule will not significantly affect
energy supplies, distribution, and use.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both Federal
intergovernmental mandates and Federal private sector mandates. These
terms are defined in 2 U.S.C. 658(5)-(7).
``Federal intergovernmental mandate'' includes a regulation that
would impose an enforceable duty upon State, local, or Tribal
governments with two exceptions. It excludes a condition of Federal
assistance. It also excludes a duty arising from participation in a
voluntary Federal program, unless the regulation relates to a then-
existing Federal program under which $500,000,000 or more is provided
annually to State, local, and Tribal governments under entitlement
authority, if the provision would increase the stringency of conditions
of assistance or place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding, and the State, local,
or Tribal governments lack authority to adjust accordingly. At the time
of enactment, these entitlement programs were: Medicaid; Aid to
Families with Dependent Children work programs; Child Nutrition; Food
Stamps; Social Services Block Grants; Vocational Rehabilitation State
Grants; Foster Care, Adoption Assistance, and Independent Living;
Family Support Welfare Services; and Child Support Enforcement.
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance or (ii) a duty arising from
participation in a voluntary Federal program.''
(2) This proposed rule will not impose an unfunded mandate on
State, local, or Tribal governments or the private sector of more than
$100 million per year. The rule will not have a significant or unique
effect on State, local, or Tribal governments or the private sector. A
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of this proposed rule.
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630. This proposed
rule would update and clarify the regulations concerning the harvest of
American alligators and regulate legal trade in the animals, their
skins, and products made from them, as part of efforts to prevent the
illegal take and trafficking of endangered reptiles that are similar in
appearance to American alligators. A takings implication assessment is
not required.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant federalism effects. A federalism summary impact
statement is not required. These proposed revisions to 50 CFR part 17
do not contain significant federalism implications.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
this rule does not unduly burden the judicial system and meets the
requirements of sections 3(a) and 3(b)(2) of the Order. Specifically,
this proposed rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.). An agency 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.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2 (Department of the Interior Manual,
Series 30, Part 512, Chapter 2: Departmental Responsibilities for
Indian Trust Resources), we readily acknowledge our responsibility to
communicate meaningfully with recognized Federal Tribes on a
government-to-government basis. In accordance with Secretarial Order
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We have evaluated this proposed rule under the criteria in
Executive Order 13175 under the Department's consultation policy and
are not aware of any substantial effects to federally recognized Indian
Tribes but will consider comments from Tribes on this proposed rule. We
will consult and solicit comments from Tribes. Individual Tribal
members must meet the same regulatory requirements as other individuals
under our regulations at 50 CFR 17.42 (Special rules--reptiles).
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov in the docket provided
above in ADDRESSES.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Therefore, for the reasons discussed in the preamble, we hereby
propose to amend part 17 of title 50, Code of Federal Regulations, as
set forth below.
[[Page 5120]]
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Section 17.42 is amended by revising paragraph (a)(2)(ii) to read as
follows:
Sec. 17.42 Special rules--reptiles.
* * * * *
(a) * * *
(2) * * *
(ii) Any person may take an American alligator in the wild, or one
which was born in captivity or lawfully placed in captivity, and may
deliver, receive, carry, transport, ship, sell, offer to sell,
purchase, or offer to purchase such alligator in interstate or foreign
commerce, by any means whatsoever and in the course of a commercial
activity, if such activities are in accordance with the laws and
regulations of the State or Tribe in which taking occurs, and subject
to the following condition: Any skin of an American alligator may be
sold or otherwise transferred only if the State or Tribe of taking
requires skins to be tagged by State or Tribal officials or under State
or Tribal supervision with a Service-approved tag in accordance with
the requirements in part 23 of this subchapter.
* * * * *
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-01012 Filed 1-15-21; 11:15 am]
BILLING CODE 4333-15-P