§ 17.1 Purpose of regulations.
§ 17.2 Scope of regulations.
§ 17.3 Definitions.
§ 17.4 Pre-Act wildlife.
§ 17.5 Alaska natives.
§ 17.6 State cooperative agreements. [Reserved]
§ 17.7 Raptor exemption.
§ 17.8 Import exemption for threatened, CITES Appendix–II wildlife.
§ 17.9 Permit applications and information collection requirements.
§ 17.1 Purpose of regulations.
(a) The regulations in this part implement the Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C. 1531–1543, except for those provisions in the Act concerning the Convention on International Trade in Endangered Species of Wild Fauna and Flora, for which regulations are provided in part 23 of this subchapter.
(b) The regulations identify those species of wildlife and plants determined by the Director to be endangered or threatened with extinction under section 4(a) of the Act and also carry over the species and subspecies of wildlife designated as endangered under the Endangered Species Conservation Act of 1969 (83 Stat. 275, 16 U.S.C. 668cc–1 to 6) which are deemed endangered species under section 4(c)(3) of the Act.
Credits
[40 FR 44415, Sept. 26, 1975, as amended at 42 FR 10465, Feb. 22, 1977]
SOURCE: 40 FR 44415, Sept. 26, 1975; 52 FR 29780, Aug. 11, 1987; 54 FR 5938, Feb. 7, 1989; 54 FR 38946, Sept. 21, 1989; 55 FR 39416, Sept. 27, 1990; 77 FR 75297, Dec. 19, 2012; 86 FR 4844, Jan. 15, 2021; 86 FR 62606, 62659, Nov. 10, 2021, unless otherwise noted.
AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
§ 17.2 Scope of regulations.
(a) The regulations of this part apply only to endangered and threatened wildlife and plants.
(b) By agreement between the Service and the National Marine Fisheries Service, the jurisdiction of the Department of Commerce has been specifically defined to include certain species, while jurisdiction is shared in regard to certain other species. Such species are footnoted in subpart B of this part, and reference is given to special rules of the National Marine Fisheries Service for those species.
(c) The provisions in this part are in addition to, and are not in lieu of, other regulations of this subchapter B which may require a permit or prescribe additional restrictions or conditions for the importation, exportation, and interstate transportation of wildlife.
(d) The examples used in this part are provided solely for the convenience of the public, and to explain the intent and meaning of the regulation to which they refer. They have no legal significance.
(e) Certain of the wildlife and plants listed in §§ 17.11 and 17.12 as endangered or threatened are included in Appendix I, II or III to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The importation, exportation and reexportation of such species are subject to additional regulations provided in part 23 of this subchapter.
Credits
[40 FR 44415, Sept. 26, 1975, as amended at 42 FR 10465, Feb. 22, 1977]
SOURCE: 40 FR 44415, Sept. 26, 1975; 52 FR 29780, Aug. 11, 1987; 54 FR 5938, Feb. 7, 1989; 54 FR 38946, Sept. 21, 1989; 55 FR 39416, Sept. 27, 1990; 77 FR 75297, Dec. 19, 2012; 86 FR 4844, Jan. 15, 2021; 86 FR 62606, 62659, Nov. 10, 2021, unless otherwise noted.
AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
§ 17.3 Definitions.
In addition to the definitions contained in part 10 of this subchapter, and unless the context otherwise requires, in this part 17:
Act means the Endangered Species Act of 1973 (16 U.S.C. 1531–1543; 87 Stat. 884);
Adequately covered means, with respect to species listed pursuant to section 4 of the ESA, that a proposed conservation plan has satisfied the permit issuance criteria under section 10(a)(2)(B) of the ESA for the species covered by the plan, and, with respect to unlisted species, that a proposed conservation plan has satisfied the permit issuance criteria under section 10(a)(2)(B) of the ESA that would otherwise apply if the unlisted species covered by the plan were actually listed. For the Services to cover a species under a conservation plan, it must be listed on the section 10(a)(1)(B) permit.
Alaskan Native means a person defined in the Alaska Native Claims Settlement Act (43 U.S.C. § 1603(b) (85 Stat. 588)) as a citizen of the United States who is of one-fourth degree or more Alaska Indian (including Tsimshian Indians enrolled or not enrolled in the Metlaktla Indian Community), Eskimo, or Aleut blood, or combination thereof. The term includes any Native, as so defined, either or both of whose adoptive parents are not Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or town of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any Native village or Native town. Any citizen enrolled by the Secretary pursuant to section 5 of the Alaska Native Claims Settlement Act shall be conclusively presumed to be an Alaskan Native for purposes of this part;
Authentic native articles of handicrafts and clothing means items made by an Indian, Aleut, or Eskimo that are composed wholly or in some significant respect of natural materials and are significantly altered from their natural form and are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or similar mass-copying devices. Improved methods of production utilizing modern implements such as sewing machines or modern techniques at a tannery registered pursuant to § 18.23(c) of this subchapter (in the case of marine mammals) may be used as long as no large-scale mass production industry results. Traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. The formation of traditional native groups, such as cooperatives, is permitted as long as no large-scale mass production results;
Bred in captivity or captive-bred refers to wildlife, including eggs, born or otherwise produced in captivity from parents that mated or otherwise transferred gametes in captivity, if reproduction is sexual, or from parents that were in captivity when development of the progeny began, if development is asexual.
Captivity means that living wildlife is held in a controlled environment that is intensively manipulated by man for the purpose of producing wildlife of the selected species, and that has boundaries designed to prevent animal, eggs or gametes of the selected species from entering or leaving the controlled environment. General characteristics of captivity may include but are not limited to artificial housing, waste removal, health care, protection from predators, and artificially supplied food.
Changed circumstances means changes in circumstances affecting a species or geographic area covered by a conservation plan or agreement that can reasonably be anticipated by plan or agreement developers and the Service and that can be planned for (e.g., the listing of new species, or a fire or other natural catastrophic event in areas prone to such events).
Conservation plan means the plan required by section 10(a)(2)(A) of the ESA that an applicant must submit when applying for an incidental take permit. Conservation plans also are known as “habitat conservation plans” or “HCPs.”
Conserved habitat areas means areas explicitly designated for habitat restoration, acquisition, protection, or other conservation purposes under a conservation plan.
Convention means the Convention on International Trade in Endangered Species of Wild Fauna and Flora, TIAS 8249.
Enhance the propagation or survival, when used in reference to wildlife in captivity, includes but is not limited to the following activities when it can be shown that such activities would not be detrimental to the survival of wild or captive populations of the affected species:
(a) Provision of health care, management of populations by culling, contraception, euthanasia, grouping or handling of wildlife to control survivorship and reproduction, and similar normal practices of animal husbandry needed to maintain captive populations that are self-sustaining and that possess as much genetic vitality as possible;
(b) Accumulation and holding of living wildlife that is not immediately needed or suitable for propagative or scientific purposes, and the transfer of such wildlife between persons in order to relieve crowding or other problems hindering the propagation or survival of the captive population at the location from which the wildlife would be removed; and
(c) Exhibition of living wildlife in a manner designed to educate the public about the ecological role and conservation needs of the affected species.
Endangered means a species of wildlife listed in § 17.11 or a species of plant listed in § 17.12 and designated as endangered.
Harass in the definition of “take” in the Act means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. This definition, when applied to captive wildlife, does not include generally accepted:
(1) Animal husbandry practices that meet or exceed the minimum standards for facilities and care under the Animal Welfare Act,
(2) Breeding procedures, or
(3) Provisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not likely to result in injury to the wildlife.
Harm in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.
Incidental taking means any taking otherwise prohibited, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.
Industry or trade in the definition of “commercial activity” in the Act means the actual or intended transfer of wildlife or plants from one person to another person in the pursuit of gain or profit;
Native village or town means any community, association, tribe, clan or group;
Operating conservation program means those conservation management activities which are expressly agreed upon and described in a conservation plan or its Implementing Agreement, if any, and which are to be undertaken for the affected species when implementing an approved conservation plan, including measures to respond to changed circumstances.
Population means a group of fish or wildlife in the same taxon below the subspecific level, in common spatial arrangement that interbreed when mature;
Properly implemented conservation plan means any conservation plan, Implementing Agreement and permit whose commitments and provisions have been or are being fully implemented by the permittee.
Property owner with respect to agreements outlined under §§ 17.22(c), 17.22(d), 17.32(c), and 17.32(d) means a person with a fee simple, leasehold, or other property interest (including owners of water or other natural resources), or any other entity that may have a property interest, sufficient to carry out the proposed management activities, subject to applicable State law, on non–Federal land.
Specimen means any animal or plant, or any part, product, egg, seed or root of any animal or plant;
Subsistence means the use of endangered or threatened wildlife for food, clothing, shelter, heating, transportation and other uses necessary to maintain the life of the taker of the wildlife, or those who depend upon the taker to provide them with such subsistence, and includes selling any edible portions of such wildlife in native villages and towns in Alaska for native consumption within native villages and towns;
Threatened means a species of wildlife listed in § 17.11 or plant listed in § 17.12 and designated as threatened.
Unforeseen circumstances means changes in circumstances affecting a species or geographic area covered by a conservation plan or agreement that could not reasonably have been anticipated by plan or agreement developers and the Service at the time of the conservation plan's or agreement's negotiation and development, and that result in a substantial and adverse change in the status of the covered species.
Wasteful manner means any taking or method of taking which is likely to result in the killing or injury of endangered or threatened wildlife beyond those needed for subsistence purposes, or which results in the waste of a substantial portion of the wildlife, and includes without limitation the employment of a method of taking which is not likely to assure the capture or killing of the wildlife, or which is not immediately followed by a reasonable effort to retrieve the wildlife.
Credits
[40 FR 44415, Sept. 26, 1975, as amended at 42 FR 28056, June 1, 1977; 44 FR 54006, Sept. 17, 1979; 46 FR 54750, Nov. 4, 1981; 47 FR 31387, July 20, 1982; 50 FR 39687, Sept. 30, 1985; 63 FR 8870, Feb. 23, 1998; 63 FR 48639, Sept. 11, 1998; 69 FR 24092, May 3, 2004; 71 FR 46870, Aug. 15, 2006]
SOURCE: 40 FR 44415, Sept. 26, 1975; 52 FR 29780, Aug. 11, 1987; 54 FR 5938, Feb. 7, 1989; 54 FR 38946, Sept. 21, 1989; 55 FR 39416, Sept. 27, 1990; 77 FR 75297, Dec. 19, 2012; 86 FR 4844, Jan. 15, 2021; 86 FR 62606, 62659, Nov. 10, 2021, unless otherwise noted.
AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
§ 17.4 Pre-Act wildlife.
(a) The prohibitions defined in subparts C and D of this part 17 shall not apply to any activity involving endangered or threatened wildlife which was held in captivity or in a controlled environment on December 28, 1973: Provided,
(1) That the purposes of such holding were not contrary to the purposes of the Act; and
(2) That the wildlife was not held in the course of a commercial activity.
Example 1. On January 25, 1974, a tourist buys a stuffed hawksbill turtle (an endangered species listed since June, 1970), in a foreign country. On December 28, 1973, the stuffed turtle had been on display for sale. The tourist imports the stuffed turtle into the United States on January 26, 1974. This is a violation of the Act since the stuffed turtle was held for commercial purposes on December 28, 1973.
Example 2. On December 27, 1973 (or earlier), a tourist buys a leopard skin coat (the leopard has been listed as endangered since March 1972) for his wife in a foreign country. On January 5, he imports it into the United States. He has not committed a violation since on December 28, 1973, he was the owner of the coat, for personal purposes, and the chain of commerce had ended with the sale on the 27th. Even if he did not finish paying for the coat for another year, as long as he had possession of it, and he was not going to resell it, but was using it for personal purposes, the Act does not apply to that coat.
Example 3. On or before December 28, 1973, a hunter kills a leopard legally in Africa. He has the leopard mounted and imports it into the United States in March 1974. The importation is not subject to the Act. The hunter has not engaged in a commercial activity, even though he bought the services of a guide, outfitters, and a taxidermist to help him take, preserve, and import the leopard. This applies even if the trophy was in the possession of the taxidermist on December 28, 1973.
Example 4. On January 15, 1974, a hunter kills a leopard legally in Africa. He has the leopard mounted and imports it into the United States in June 1974. This importation is a violation of the Act since the leopard was not in captivity or a controlled environment on December 28, 1973.
(b) Service officers or Customs officers may refuse to clear endangered or threatened wildlife for importation into or exportation from the United States, pursuant to § 14.53 of this subchapter, until the importer or exporter can demonstrate that the exemption referred to in this section applies. Exempt status may be established by any sufficient evidence, including an affidavit containing the following:
(1) The affiant's name and address;
(2) Identification of the affiant;
(3) Identification of the endangered or threatened wildlife which is the subject of the affidavit;
(4) A statement by the affiant that to the best of his knowledge and belief, the endangered or threatened wildlife which is the subject of the affidavit was in captivity or in a controlled environment on December 28, 1973, and was not being held for purposes contrary to the Act or in the course of a commercial activity;
(5) A statement by the affiant in the following language:
The foregoing is principally based on the attached exhibits which, to the best of my knowledge and belief, are complete, true and correct. I understand that this affidavit is being submitted for the purpose of inducing the Federal Government to recognize an exempt status regarding (insert description of wildlife), under the Endangered Species Act of 1973 (16 U.S.C. 1531–1543), and regulations promulgated thereunder, and that any false statements may subject me to the criminal penalties of 18 U.S.C. 1001.
(6) As an attachment, records or other available evidence to show:
(i) That the wildlife in question was being held in captivity or in a controlled environment on December 28, 1973;
(ii) The purpose for which the wildlife was being held; and
(iii) The nature of such holding (to establish that no commercial activity was involved).
(c) This section applies only to wildlife born on or prior to December 28, 1973. It does not apply to the progeny of any such wildlife born after December 28, 1973.
SOURCE: 40 FR 44415, Sept. 26, 1975; 52 FR 29780, Aug. 11, 1987; 54 FR 5938, Feb. 7, 1989; 54 FR 38946, Sept. 21, 1989; 55 FR 39416, Sept. 27, 1990; 77 FR 75297, Dec. 19, 2012; 86 FR 4844, Jan. 15, 2021; 86 FR 62606, 62659, Nov. 10, 2021, unless otherwise noted.
AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
§ 17.5 Alaska natives.
(a) The provisions of subpart C of this part relating to the importation or the taking of endangered wildlife, and any provision of subpart D of this part relating to the importation or the taking of threatened wildlife, shall not apply to:
(1) Any Indian, Aleut, or Eskimo who is an Alaskan native and who resides in Alaska; or
(2) Any non-native permanent resident of an Alaskan native village who is primarily dependent upon the taking of wildlife for consumption or for the creation and sale of authentic native articles of handicrafts and clothing:
If the taking is primarily for subsistence purposes, and is not accomplished in a wasteful manner.
(b) Edible portions of endangered or threatened wildlife taken or imported pursuant to paragraph (a) of this section may be sold in native villages or towns in Alaska for native consumption within native villages and towns in Alaska.
(c) Non-edible by-products of endangered or threatened wildlife taken or imported pursuant to paragraph (a) of this section may be sold in interstate commerce when made into authentic native articles of handicrafts and clothing.
SOURCE: 40 FR 44415, Sept. 26, 1975; 52 FR 29780, Aug. 11, 1987; 54 FR 5938, Feb. 7, 1989; 54 FR 38946, Sept. 21, 1989; 55 FR 39416, Sept. 27, 1990; 77 FR 75297, Dec. 19, 2012;
86 FR 4844, Jan. 15, 2021; 86 FR 62606, 62659, Nov. 10, 2021, unless otherwise noted.
AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
§ 17.6 State cooperative agreements. [Reserved]
SOURCE: 40 FR 44415, Sept. 26, 1975; 52 FR 29780, Aug. 11, 1987; 54 FR 5938, Feb. 7, 1989; 54 FR 38946, Sept. 21, 1989; 55 FR 39416, Sept. 27, 1990; 77 FR 75297, Dec. 19, 2012; 86 FR 4844, Jan. 15, 2021; 86 FR 62606, 62659, Nov. 10, 2021, unless otherwise noted.
AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
§ 17.7 Raptor exemption.
(a) The prohibitions found in §§ 17.21 and 17.31 do not apply to any raptor [a live migratory bird of the Order Falconiformes or the Order Strigiformes, other than a bald eagle (Haliaeetus leucocephalus) or a golden eagle (Aquila chrysaetos) ] legally held in captivity or in a controlled environment on November 10, 1978, or to any of its progeny, which is:
(1) Possessed and banded in compliance with the terms of a valid permit issued under part 21 of this chapter; and
(2) Identified in the earliest applicable annual report required to be filed by a permittee under part 21 of this chapter as in a permittee's possession on November 10, 1978, or as the progeny of such a raptor.
(b) This section does not apply to any raptor intentionally returned to the wild.
Credits
[48 FR 31607, July 8, 1983]
SOURCE: 40 FR 44415, Sept. 26, 1975; 52 FR 29780, Aug. 11, 1987; 54 FR 5938, Feb. 7, 1989; 54 FR 38946, Sept. 21, 1989; 55 FR 39416, Sept. 27, 1990; 77 FR 75297, Dec. 19, 2012; 86 FR 4844, Jan. 15, 2021; 86 FR 62606, 62659, Nov. 10, 2021, unless otherwise noted.
AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
§ 17.8 Import exemption for threatened, CITES Appendix–II wildlife.
(a) Except as provided in a special rule in §§ 17.40 through 17.48 or in paragraph (b) of this section, all provisions of §§ 17.31 and 17.32 apply to any specimen of a threatened species of wildlife that is listed in Appendix II of the Convention.
(b) Import. Except as provided in a special rule in §§ 17.40 through 17.48, any live or dead specimen of a fish and wildlife species listed as threatened under this part may be imported without a threatened species permit under § 17.32 provided all of the following conditions are met:
(1) The specimen was not acquired in foreign commerce or imported in the course of a commercial activity;
(2) The species is listed in Appendix II of the Convention.
(3) The specimen is imported and subsequently used in accordance with the requirements of part 23 of this subchapter, except as provided in paragraph (b)(4) of this section.
(4) Personal and household effects (see § 23.5) must be accompanied by a CITES document.
(5) At the time of import, the importer must provide to the FWS documentation that shows the specimen was not acquired in foreign commerce in the course of a commercial activity.
(6) All applicable requirements of part 14 of this subchapter are satisfied.
Credits
[72 FR 48446, Aug. 23, 2007]
SOURCE: 40 FR 44415, Sept. 26, 1975; 52 FR 29780, Aug. 11, 1987; 54 FR 5938, Feb. 7, 1989; 54 FR 38946, Sept. 21, 1989; 55 FR 39416, Sept. 27, 1990; 77 FR 75297, Dec. 19, 2012; 86 FR 4844, Jan. 15, 2021; 86 FR 62606, 62659, Nov. 10, 2021, unless otherwise noted.
AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
§ 17.9 Permit applications and information collection requirements
(a) Address permit applications for activities affecting species listed under the Endangered Species Act, as amended, as follows:
(1) Address activities affecting endangered and threatened species that are native to the United States to the Regional Director for the Region in which the activity is to take place. You can find addresses for the Regional Directors in 50 CFR 2.2. Send applications for interstate commerce in native endangered and threatened species to the Regional Director with lead responsibility for the species. To determine the appropriate region, call the nearest Regional Office:
Region 1 (Portland, OR): 503–231–6241
Region 2 (Albuquerque, NM): 505–248–6920
Region 3 (Twin Cities, MN): 612–713–5343
Region 4 (Atlanta, GA): 404–679–7313
Region 5 (Hadley, MA): 413–253–8628
Region 6 (Denver, CO): 303–236–8155, ext 263
Region 7 (Anchorage, AK): 907–786–3620
Headquarters (Washington, DC): 703–358–2106
(2) Submit permit applications for activities affecting native endangered and threatened species in international movement or commerce, and all activities affecting nonnative endangered and threatened species, to the attention of the Director, U.S. Fish and Wildlife Service, at the address listed for the Division of Management Authority at 50 CFR 2.1(b).
(b) The Office of Management and Budget approved the information collection requirements contained in this part 17 under 44 U.S.C. 3507 and assigned OMB Control Numbers 1018–0093 and 1018–0094. The Service may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. We are collecting this information to provide information necessary to evaluate permit applications. We will use this information to review permit applications and make decisions, according to criteria established in various Federal wildlife conservation statutes and regulations, on the issuance, suspension, revocation, or denial of permits. You must respond to obtain or retain a permit. We estimate the public reporting burden for these reporting requirements to vary from 2 to 2 ½ hours per response, including time for reviewing instructions, gathering and maintaining data, and completing and reviewing the forms. Direct comments regarding the burden estimate or any other aspect of these reporting requirements to the Service's Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).
Credits
[63 FR 52635, Oct. 1, 1998; 72 FR 48446, Aug. 23, 2007; 79 FR 30417, May 27, 2014; 79 FR 43964, July 29, 2014]
SOURCE: 40 FR 44415, Sept. 26, 1975; 52 FR 29780, Aug. 11, 1987; 54 FR 5938, Feb. 7, 1989; 54 FR 38946, Sept. 21, 1989; 55 FR 39416, Sept. 27, 1990; 77 FR 75297, Dec. 19, 2012; 86 FR 4844, Jan. 15, 2021; 86 FR 62606, 62659, Nov. 10, 2021, unless otherwise noted.
AUTHORITY: 16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.