par cyanopsitta 30/1/2014, 15:58
Lolita Petition
Along with support for the petition or as a stand-alone comment, many commenters suggested that Lolita be freed from her captivity and returned to her native waters of the Pacific Northwest. Commenters also expressed concern over Lolita's current care at the Miami Seaquarium, which is regulated by the United States Department of Agriculture's Animal and Plant Health Inspection Service under the Animal Welfare Act (AWA) and beyond the scope of our determination regarding the petition. Because the AWA captive care requirements are not under NMFS jurisdiction and are beyond the scope of our determination, those comments are not addressed in this proposed rule
Take Prohibitions and Identification of Those Activities That Would Constitute a Violation of Section 9 of the ESA
On July 1, 1994, NMFS and USFWS published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA. The ESA does not prohibit possession of animals lawfully taken, so a permit is required only if the person possessing the animal intends to engage in an otherwise prohibited act. Prohibited activities for ESA-listed endangered species include, but are not limited to: (1) “Take” of such species, as defined in the ESA (including to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct); (2) delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce, in the course of a commercial activity, any such species; or (3) selling or offering for sale in interstate or foreign commerce any such species.
Activities that we believe may result in violation of section 9 prohibitions against “take” under section 9, depending on the circumstances, include, but are not limited to, releasing a captive animal into the wild. For example, in the recent proposed listing of five species of sturgeon, we noted that release of a captive animal into the wild has the potential to injure or kill not only the particular animal, but also the wild populations of that same species through introduction of diseases or inappropriate genetic mixing (78 FR 65249; October 31, 2013). Additionally, we consider the following activities, depending on the circumstances, as likely not resulting in a violation of ESA section 9 (and therefore do not require a section 10 permit): (1) Continued possession of captives, and (2) continued provision of Animal Welfare Act-compliant care and maintenance of captives, including handling and manipulation as necessary for care and maintenance, as long as such practices or procedures are not likely to result in injury. We are seeking public comment on these issues as part of this proposed rulemaking.
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http://www.regulations.gov/#!documentDetail;D=NOAA-NMFS-2013-0056-1841