[Federal Register: November 2, 1999 (Volume 64, Number 211)]
[Proposed Rules]               
[Page 59149-59152]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 16


Listing of the Brush-tailed Possum as Injurious

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: The Fish and Wildlife Service (Service or we) published a 
notice on January 24, 1996, soliciting information relative to the 
threat that Trichosurus

[[Page 59150]]

spp. poses to agriculture, human health, and fish and wildlife 
resources. Analysis of the available information warrants the listing 
of only one species, T. vulpecula, as injurious. We received little 
information about the other two species in the genus, T. arnhemensis 
and T. caninus. Consequently, we will not propose their listing at this 
time. Listing T. vulpecula would prohibit its importation into, or 
transportation between, the continental United States, the District of 
Columbia, Hawaii, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States with limited exceptions.

DATES: Comments must be submitted on or before January 3, 2000.

ADDRESSES: Comments may be mailed or sent by fax to the Chief, Division 
of Fish and Wildlife Management Assistance, 1849 C Street, NW, Mail 
Stop 840 ARLSQ, Washington, DC 20240, or FAX (703) 358-2044.

FOR FURTHER INFORMATION CONTACT: Susan Mangin, Division of Fish and 
Wildlife Management Assistance at (703) 358-1718.

SUPPLEMENTARY INFORMATION: We received a letter from the Texas Animal 
Health Commission requesting that we prohibit the importation of T. 
vulpecula into the United States. Because other members of the genus 
Trichosurus could possibly pose a threat, the Service placed a notice 
in the Federal Register January 24, 1996, (61 FR 1893) requesting 
information about the injurious nature of the entire genus.

    We received 11 responses to our request for information. Review of 
the information received through the request and additional information 
indicates the extreme injurious nature of T. vulpecula. For this 
reason, the Service is proposing to list it as injurious. Limited data 
were available relative to the injurious nature of T. arnhemensis and 
T. caninus. Review of these data did not support listing these two 
species at this time.
    T. vulpecula, introduced to New Zealand from Australia between 1873 
and 1930, is now found throughout much of New Zealand with a population 
of approximately 70 million (Department of Conservation National Possum 
Control Plan, 1993-2002, February 1994). They can adapt to a wide 
variety of habitats and elevations (P.E. Cowan, The Ecological Effects 
of Possums on the New Zealand Environment). They are vectors for the 
bovine tuberculosis pathogen (M. bovis) and have played a major role in 
keeping it in the environment. This pathogen is found in cattle, deer, 
pigs, cats, ferrets, rabbits, hedgehogs, and stoats (National Tb 
Strategy, Animal Health Board, November 1995). The impact of exposure 
to M. bovis in the U.S. would probably be even more devastating due to 
the presence of a more diverse mammal population (Milton Friend, 
National Biological Service memorandum, March 12, 1996).
    No evidence exists that T. vulpecula achieves an ecological balance 
once introduced into an area. They have altered native plant 
communities causing forests to degrade to scrub or even to bare ground. 
They damage erosion control plants like willows and poplars. They eat 
bark, leaves, buds, flowers, and fruit of trees. They threaten other 
animals by preying on them, competing for their food, or interfering 
with nesting sites (P.E. Cowan, The Ecological Effects of Possums on 
the New Zealand Environment). Management practices used to control 
them, such as trapping or poisoning, can negatively impact other 

1. Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action. OMB makes the final 
determination under Executive Order 12866.
    (1) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of the government. A cost-benefit and 
economic analysis is not required. This rule adds additional 
restrictions over and above the regulations issued by the Department of 
Agriculture, which has banned the importation of brush-tailed possums 
from New Zealand. As a result, discussion is limited to the effect that 
these additional importation restrictions will have on the American 
    The brush-tailed possum is abundant in south eastern Australia and 
Tasmania. Possums have been hunted in Tasmania since the 1920's for the 
fur trade. However, the fur market has declined in recent years, and 
the possum industry has been selling skins and meat to Taiwan and 
China. In 1996, about 3,000 possum skins and meat were exported to 
Taiwan and 1,000 to China from Australia. The number of permit holders 
and royalties paid in Australia for brush-tailed possums has been 
declining steadily. In 1990, there were 493 permit holders receiving 
$18,800 in royalties for brush-tailed possums. In 1995, there were 40 
permit holders receiving $1,996 in royalties. Since 1995, royalties 
have been paid for skins and carcasses. No live brush-tailed possums 
have been imported in the U.S. since 1995. World trade in brush-tailed 
possums has focused primarily on meat and most of it is going to Asian 
markets. Consequently, this rule should have little, if any, measurable 
economic affect on the U.S. economy and will not have an annual effect 
of $100 million or more for a significant rule making action.
    A major, though not quantified, effect of this rule is the reduced 
risk of substantial environmental damage in the U.S. including the 
spread of M. bovis, that could be caused by having brush-tailed possums 
escape from captivity. The risk reduction is a benefit of this rule 
that cannot be quantified with existing data. However, the damage in 
New Zealand caused by the introduction of the brush-tailed possum in 
1840 is well documented. There is no way of knowing where the brush-
tailed possums would enter the natural environment in the U.S. and 
consequently, the economic effect avoided by not having the 
introduction cannot be estimated.
    (2) This rule will not create inconsistencies with other agencies' 
actions. The Animal and Plant Health Inspection Service (APHIS) of the 
U.S. Department of Agriculture has developed and implemented 
regulations to prohibit the importation of brush-tailed possums from 
New Zealand because they carry bovine tuberculosis. This rule will 
further expand this prohibition to include all countries because of the 
potential of brush-tailed possums carrying M. bovis and the damage that 
they could inflict on native ecosystems.
    (3) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
This rule does not affect entitlement programs.
    (4) This rule will not raise novel legal or policy issues. There is 
no indiction that listing wildlife as injurious in the past has caused 
legal or policy problems. As no live brush-tailed possums have been 
imported since 1995, this rule should not raise legal, policy, or any 
other issues.

2. Regulatory Flexibility Act

    I certify that this rule will not have a significant economic 
effect on a substantial number of small entities as defined under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Regulatory 
Flexibility Analysis is not required. Accordingly, a Small Entity 
Compliance Guide is not required. For the reasons described in section 
3 below, no individual small industry within the United States will be 
significantly affected if brush-tailed possum importation is 

[[Page 59151]]

3. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    The rule is not a major rule under 5 U.S.C. 804(2), the Small 
business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. Live brush-tailed possums have not been imported into the United 
States since 1995. U.S. Fish and Wildlife Service records from 1994 and 
1995 indicate that 1,030 brush-tailed possums have been imported for a 
total value of $11,900. Since only four importers were involved and no 
additional trade has occurred, the Service believes that a market for 
live brush-tailed possums has not been established in the U.S. 
Consequently, there is no measurable economic effects on small 
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. U.S. Fish and Wildlife Service records 
indicate that only four importers brought in a total of 1,030 brush-
tailed possums in 1994 and 1995. None have been imported since 1995.
    c. Does not have significant adverse effects on competition, 
employment, investment productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. The 
low number of brush-tailed possums imported into the U.S. indicates 
that listing the brush-tailed possum as injurious would not have 
significant adverse effects.

4. Unfunded Mandates Reform Act

    In accordance with the unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.)
    a. The rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. The 
Service has determined and certifies pursuant to the Unfunded Mandates 
Act that this rule making will not impose a cost of $100 million or 
more in any given year on local or State governments or private 
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The Service has 
determined and certifies pursuant to the Unfunded Mandates Act that 
this rulemaking will not impose a cost of $100 million or more in any 
given year on local or State governments or private entities.

5. Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. Although once listed as injurious, 
all brush-tailed possum in this country would be exported or destroyed, 
the takings would not be significant.

6. Federalism (E.O. 12612)

    In accordance with Executive Order 12612, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. This rule will not have substantial direct effects on the 
States, in their relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
Federalism implications to warrant the preparation of a Federalism 

7. Civil Justice Reform (E.O.12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Executive Order. The proposed rule has been reviewed to 
eliminate drafting errors and ambiguity, written to minimize 
litigation, and provides a clear legal standard for affected conduct 
rather than a general standard, and promotes simplification and burden 

8. Paperwork Reduction Act

    This regulation does not contain any information collection 
requirements under the Paperwork Reduction Act.

9. National Environmental Policy Act

    We have analyzed this policy in accordance with the criteria of the 
National Environmental Policy Act. This rule does not constitute a 
major Federal action significantly affecting the quality of the human 
environment. An environmental impact statement/assessment is not 
required. The action is categorically excluded under Department NEPA 
procedures (516 DM 2, Appendix 1.10), which applies to policies, 
directives, regulations, and guidelines of an administrative, legal, 
technical, or procedural nature; or the environmental effects of which 
are too broad, speculative, or conjectural to lend themselves to 
meaningful analysis and will be subject later to the NEPA process, 
either collectively or case-by-case.

10. Public Comment Solicitation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (A ``section'' appears in bold type 
and is preceded by the symbol ``Sec. '' and a numbered heading; for 
example Sec. 16.11 Importation of live wild animals. (5) Is the 
description of the rule in the Supplementary Information section of the 
preamble helpful in understanding the proposed rule? What else could we 
do to make the rule easier to understand?
    If you wish to comment, you may submit your comments by any one of 
several methods. You may mail comments to U.S. Fish and Wildlife 
Service, 4401 North Fairfax Drive, Suite 840, Arlington, VA 22030. 
Finally, you may hand-deliver comments to the U.S. Fish and Wildlife 
Service, Division of Fish and Wildlife Management Assistance, 4401 
North Fairfax Drive, Suite 840, Arlington, VA 22203. Our practice is to 
make comments, including names and home addresses of respondents, 
available for public review during regular business hours. Individual 
respondents may request that we withhold their home address from the 
rulemaking record, which we will honor to the extent allowable by law. 
There also may be circumstances in which we would withhold from the 
rulemaking record a respondents's identity, as allowable by law. If you 
wish us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses and from individuals identifying themselves 
as representatives or officials of organizations or business, available 
for public inspection in their entirety.
    The Service is issuing this proposed rule under the authority of 
the Lacey Act (18 U.S.C. 42). Accordingly, the Service proposes to 
amend 50 CFR part 16 as follows:

[[Page 59152]]

List of Subjects in 50 CFR Part 16

    Fish, Import, Reporting and recordkeeping, Transportation, 


    1. The authority citation continues to read as follows:

    Authority: 18 U.S.C. 42.

    2. We amend Sec. 16.11 by adding paragraph (a)(7) to read as 

Sec. 16.11  Importation of live wild mammals.

    (a) * * *
    (7) Any rush-tailed possum (Trichosurus vulpecula).
* * * * *
    Dated: November 3, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-28490 Filed 11-1-99; 8:45 am]