Breaking Down the FWS’s Interim Rule Implementing the Big Cat Public Safety Act

by Michelle C. Pardo

On June 12, 2023, the U.S. Fish and Wildlife Service (FWS) published an Interim Rule that amends the implementing regulations for the Captive Wildlife Safety Act (CWSA) by “incorporating the requirements” of the Big Cat Public Safety Act (BCPSA). See 88 Fed. Reg. 38358 (6/12/2023).  The amended regulations — which are now in effect as of June 12, 2023 — can be found within the Federal Register publication and at 50 CFR Part 14.

FWS also shared public comments that it received in connection with its notice of intent to request emergency clearance of information collections associated with BCPSA.  Some of those comments did not address “information collection” but rather, substantive questions and issues regarding the BCPSA and its implementing regulations.  FWS responses, included on pages 38365-38368 provide additional information that is not contained in the new regulations but suggests how FWS may interpret or enforce the BCPSA.

The following highlights some of the information contained in the Federal Register and regulations in a Q & A below.

Why were the BCPSA regulations issued without notice and comment?

The FWS proceeded under the “emergency provision” of Executive Order 12866, section 6(a)(3)(D) based on its perceived “need to move expeditiously to implement the new prohibitions and exceptions enacted under the BCPSA.” The FWS determined that “for good cause” that general notice and opportunity for public comment is “impracticable, unnecessary, and contrary to the public interest.”  FWS characterizes the interim rule as merely implementing the statute, such that it is “self-executing” and therefore FWS has “minimal regulatory discretion.”

It seems like these regulations aren’t just parroting the statute — what do the regulations add or clarify with respect to the BCPSA requirements?

Expanding the definition of “Prohibited Wildlife Species.”  The BCPSA did not amend the definition of “prohibited wildlife species” which means “any live species of lion, tiger, leopard, cheetah, jaguar, or cougar or any hybrid of such species.”   16 U.S.C. § 3371(h). (Definitions). The new regulation, however, defines “prohibited wildlife species” to include eight species and now identifies them by their common and scientific names:  lion (Panthera leo), tiger (Panthera tigris), leopard (Panthera pardus), snow leopard (Uncia uncia), clouded leopard (Neofelis nebulosi), jaguar (Panthera onca), cheetah (Acinonyx jabatus), and cougar (Puma concolor) or any hybrids resulting from the breeding of any of these species, for example a liger (a male lion and a female tiger) or a tiglon (a male tiger and a female lion) whether naturally or artificially produced.  50 C.F.R. § 14.252.

Adding a definition of “Direct Contact” or “Direct Physical Contact.”  50 C.F.R. § 14.252 also adds a definition of “direct contact” or “direct physical contact” which appears in the exception provided to federally licensed or registered facilities or entities, such as USDA Class C licensees.  That exception to certain prohibited acts contained in the BCPSA is found in  §3372(e)(2)(A)(i)(III).  Under the new definition, “direct contact” or “direct physical contact” is defined as: “any situation in which any individual may potentially touch or otherwise come into physical contact with any live specimen of the prohibited wildlife species.”  “Public contact” means the same as “direct contact.”  50 C.F.R. § 14.252.

Adding Recordkeeping Requirements and Retention Period.  Licensed entities and registered Federal facilities “must maintain complete and accurate records of any possession, breeding, transportation, acquisition, receipt, purchase, sale, disposition, importation, or exportation of prohibited wildlife species.”  50 C.F.R. § 14.254(c)(1-3).  These records must be kept for “the lifespan of each prohibited wildlife species” and “for 5 years after its death or disposition.”  These records must be copied and provided to FWS officials, if requested.  § 14.254(c)(2).  Note: these recordkeeping requirements are more extensive than what is required of USDA Class C licensed exhibitors. 

Adding Inspection Requirements.  Licensed entities and registered Federal facilities must make the records required by Section 14.254(c) available and “allow access to its facilities and its prohibited wildlife specimens for inspection by Service officials at reasonable hours.”

Snow leopards and clouded leopards are not considered to be leopard species; why is FWS including them as a leopard species in the regulations?

It is unclear why they are included as a species of “leopard.”  The Smithsonian’s National Zoo instructs that: “clouded leopards are not a ‘type’ of leopard as their name implies.  They are a separate species of wild cat, as are snow leopards and leopards.”  (accessed 6/21/2023).  If clouded leopards and snow leopards only share the common name of “leopard” without actually being a leopard species, then the regulation appears to stray from the statutory authority.  Absent an amended regulation (brought about by a legal challenge or otherwise) owners of snow leopards and clouded leopards should follow the regulation, which went into effect on June 12, 2023.

What species must be exhibited at least 15 feet from members of the public unless there is a permanent barrier sufficient to prevent public contact?

Lions (Panthera leo), tigers (Panthera tigris), leopards (Panthera pardus), snow leopards (Uncia uncia), jaguars (Panthera onca), and cougars (Puma concolor) and any hybrid resulting from breeding any of these species.  Clouded leopards and cheetahs are not included in this requirement.  See 88 Fed. Reg. at 38368 (“This specific provision does not apply to clouded leopard, cheetah, or hybrids of only those two species”). 

Did USDA Class C Licensees in good standing have to register its prohibited species by submitting FWS Form 3-200-11 by June 18, 2023?

No.  That requirement only applied to pre-BCPSA owners.  88 Fed. Reg. at 38362 (“Exhibitors with valid USDA Class C licenses and Federal Facilities registered with USDA are excepted from the BCPSA registration requirement”).

For those persons or facilities that no longer wish to exhibit big cats or maintain an active Class C USDA license, is there an option to register with FWS at a later date so that the covered animals can still be maintained by the person/facility?

According to the Service’s Federal Register publication, that is not possible.  “The Service does not have discretion to extend the statutory deadline” that required pre-BCPSA holders of big cats to register by June 18, 2023.  As such, if no longer possessing a USDA Class C license, it would be illegal to continue to possess covered big cats.  “For any individual or entity that does not qualify for another BCPSA exception, does not qualify for the pre-BCPSA owner exception, [did] not register, or otherwise no longer wishes to possess their big cat” such persons “may make arrangements to donate their big cats to another person or entity that qualifies to possess big cats under one of the other exceptions of the BCPSA outlined in 16 U.S.C. § 3372(e)(2)(A)-(C).”

Is it possible to send in public comments to the Interim Rule (that is now in effect as of June 12, 2023) such that they may influence changes to the Final Rule?

FWS will accept “comments, suggestions or recommendations” regarding the interim rule.  Specifically, FWS also invites comments on: (1) whether the final regulations should include comity agreements with foreign wildlife sanctuaries; (2) whether there should be uniform record-keeping requirements for state colleges and universities and state veterinarians; (3) elements that should be included in the population management and care plans; (4) scenarios under which individuals who are not trained professional employees or contractors would need to come in direct physical contact with prohibited wildlife to support conservation; and whether the terms in the 3372(e)(2)(A)(i)(III) require further regulatory definition to ensure the “successful implementation of population management and care plans.”  Comments are due by August 11, 2023.  To file comments electronically, In the Search box, enter FWS–HQ–IA–2023–0068, which is the docket number for this rulemaking.

Does the Federal Register publication provide any other information as to how FWS will interpret or enforce the BCPSA and its regulations?

Yes, several issues related to the BCPSA are covered in the Federal Register that may not have been previously known to exhibitors and owners.  For example:

FWS is further narrowing the exception to the prohibition on direct contact for activities that are “directly supporting conservation programs of the entity or facility.”

Section 3372(e)(2)(A)(i)(III) allows direct physical contact where the activity: “directly support[s] conservation programs of the entity or facility;” the contact is “not in the course of a commercial activity” and the contact is “incidental to humane husbandry conducted pursuant to a species-specific, publicly available, peer-edited population management and care plan.”  In the Federal Register publication, FWS now states that this exception is contemplated for third parties conducting “bona fide scientific research on the conservation of big cat species” or contact by a “trained professional employee or contractor of another excepted entity or facility operating in accordance with the approved plan.”  88 Fed. Reg. at 38362.  This interpretation would appear to eliminate the type of direct contact events that donors have participated in at facilities that conduct activities pursuant to the requisite population management and care plan, even where these monetary contributions are used to fund conservation.

The BCPSA is likely to prevent all exports of covered big cats to zoos – and potentially sanctuaries – outside of the United States.

In sum, because a foreign zoological facility could not have a USDA license, would not be a state college, university or agency, and if a sanctuary, could not be subject to FWS oversight and enforcement, FWS takes the position that any export would violate the BCPSA.

FWS states: “under the BCPSA a prohibited wildlife species may not be exported from the United States to a foreign entity except for purposes of reintroduction to the wild in coordination with and under the authority of a foreign government. The BCPSA, and the CWSA it amends, are intended to regulate activities with big cats in captivity; they are not intended to foreclose the possibility of reintroduction to the wild, if the need and opportunity arise in the future for such conservation activities. The only foreign entity that might qualify for a BCPSA exception to possess the wildlife in captivity would be a wildlife sanctuary under 16 U.S.C. 3372(e)(2)(C), and at this time we have no ability to verify and enforce compliance with the requirements of the BCPSA for a potential foreign wildlife sanctuary. Thus, at this time we would be unable to issue a permit to authorize export to a foreign entity for holding in captivity, even if all of the other requirements of subchapter B of chapter I of title 50 CFR are met.”  FWS will consider comments on whether the final regulations should include provisions that allow for foreign transfers of big cats, either to sanctuaries or facilities that meet the provisions of 16 U.S.C. § 3372(e)(2)(A)-(C) and the other requirements of subchapter B of chapter I, Title 50 of the C.F.R.

FWS provided more detail on the 15-foot distance rule applicable to certain species. 

If a facility or owner ensures that at all times that any big cat is at least 15 feet in every direction from any member of the public or if there is a permanent barrier sufficient to prevent public contact, then this requirement would be met.  FWS notes that a licensee or registrant “may be able to provide evidence of other ways to prevent direct contact.”  88 Fed. Reg. at 38367

If a person or entity cancels or loses its USDA Class C license, it cannot subsequently register and therefore cannot continue to lawfully possess its big cats.

The BCPSA provided a “one-time 180-day period from December 20, 2022 to June 18, 2023, to current private owns in which to register their big cats under the BCPSA.”  88 Fed. Reg. at 38366.  FWS states that it cannot extend the statutory deadline.  Having not registered, if a person or facility cancels or loses their license, “they are prohibited from possessing prohibited wildlife species.”  A commenter asked if it was possible for a USDA licensed exhibitor to also register to secure a secondary exemption status that would become primary should the big cat owner end their exhibition license.  FWS noted that registrants, however, are prohibited from breeding, acquiring or selling any big cats.  Thus, the “dual” registration would effectively prohibit USDA Class C licensees from being able to take advantage of the USDA licensee exceptions to the BCPSA.

Class B licensee holders will not be permitted to register pre-BCPSA species. 

FWS responded to a commenter and indicated that it does not have discretion to extend the BCPSA’s exhibitor exception for qualifying holders of Class C licensed to holders of Class B licenses.  Class B license holders who did not register as pre-BCPSA holders are now prohibited from possessing prohibited species.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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