duced, 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 so 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 so long as no large scale mass production results;

"Endangered" means a species of wildlife listed in § 17.11 or a species of plant listed in § 17.12 and designated as endangered.

"Enhance the survival," Enhancing the survival," or "Enhancement of survival" includes, among other things, the following activities, when it can be shown that such activities would not be detrimental to the continued survival of either the wild or captive populations of the species in question, and only when the animals involved are already in captivity at the time an application is submitted.

(a) Conservation exhibition. The live exhibition of animals in a manner designed to educate the public to the ecological role and conservation needs of the species, when such animals are not then needed in any known scientific or propagative program due to surpluses of certain age or sex groups, lack of compatible mates, immaturity or other reasons, and when such exhibition does not impair the future use of the exhibited animals for scientific or propagative purposes;

(b) Euthanasia. When applied to an animal that is terminally ill, critically injured or infirm due to old age or genetic defects and when carried out under the order and supervision of a qualified veterinarian; and

(c) Surplus pools. The accumulation and holding for future propagation or scientific purposes of animals that are either not immediately needed or suitable for propagation or scientific pur

poses, and that should be relocated to relieve crowding or other problems hindering the scientific or propagative program at the location from which the animal would be removed.

"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.

"Harm" in the definition of "take" in the Act means an act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of “harm”;

"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;

"Population" means a group of fish or wildlife in the same taxon below the subspecific level, in common spatial arrangement that interbreed when mature;

"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.

"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.

[40 FR 44415, Sept. 26, 1975, as amended at 42 FR 28056, June 1, 1977]

§ 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.

§ 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 resiIdent 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.

§ 17.6 State cooperative agreements. [Reserved]

§ 17.7 Captive, self-sustaining populations.

(a) Whenever the Director determines that a captive, self-sustaining population of otherwise endangered wildlife exists within the United States, such population may be treated as threatened and may be listed in § 17.11. Each such listing shall bear the notation "(C/P)" following the designation of status, to indicate that the reason for treating it as threat

ened rather than endangered was the attainment of a captive, self-sustaining population within the United States.

(b) The listing of species as threatened because they are captive, self-sustaining populations within the United States shall follow the same procedures as required in section 4(f) of the Act for the listing of endangered or threatened species, except that captive wildlife shall not be considered to be "resident" wildlife within the meaning of section 4(b)(1) of the Act.

(c) In determining whether to list a species as threatened because it is a captive, self-sustaining population, the Director shall consider the following factors:

(1) The approximate number of specimens of that species that exist in captivity in the United States;

(2) The age and sex ratios of such captive specimens;

(3) The number of persons who have successfully propagated the species in captivity;

(4) The number of generations of the species that have been successfully propagated in captivity;

(5) The likelihood that persons owning or controlling such captive specimens will cooperate in insuring the continued existence of and reproduction among such captive specimens;

(6) The number of requests to take or import wild specimens of the same species received during the 24 months immediately prior to the date consideration of the species was undertaken; (7) The ratio of wild born versus captive born specimens of the species in captivity in the United States; and

(8) Such other factors as he deems appropriate.

(d) Permits shall be available only pursuant to § 17.33 for persons who wish to engage in otherwise prohibited activities with specimens of wildlife listed as threatened under this section.

Example. Although the XY pheasant is endangered in the wild and has been determined to be an endangered species, the Director determines that there exists in the United States a captive, self-sustaining population of the pheasant which constitutes no drain on the wildlife population. After following the proper procedures, the pheasant would be listed in § 17.11 as follows:

Subpart B-Lists

§ 17.11 Endangered and threatened wildlife.

(a) The list in this section contains all the species of wildlife which are determined by the Director or by the Secretary of Commerce to be endangered or threatened. It also contains species of wildlife treated as endangered or threatened because they are similar in appearance to an endangered or threatened species (see Subpart E) or because they constitute a captive, self-sustaining population (see § 17.7).

(b) The columns entitled "Common name", "Scientific name" and "Population" define the "species" of wildlife within the meaning of the Act. Thus, two different geographic populations of the same subspecies or species will be identified by their differing geographic boundaries, even though the common and scientific names are identical for both entries. The same is true for two different color phases, identified by their unique colors. The prohibitions in the Act and in this Part 17 apply to all specimens of the "species" listed, wherever they are found, and to their progeny. Although common names are included, they cannot be relied upon for identification of any specimen, since they vary greatly in local usage.

(c) If the "status" column has an “E”, that species is thereby designated as endangered. If the "status" column has a "T", that species is thereby designated as threatened. The addition of the letters "S/A" in parentheses indicates that the reason for designating

the species as endangered or threatened is its similarity in appearance. The addition of the letters "C/P" in parentheses indicates that the reason for designating the species as threatened is that it constitutes a captive, self-sustaining population.

(d) For information purposes only, the "known distribution" column will indicate the normal, known distribution of a species, subspecies, or a smaller taxon. This column does not imply any limitation on the application of the prohibitions in the Act and in this Part 17. Such prohibitions apply to all specimens of the species, wherever found.

(e) The column entitled "Portion of the range where endangered or threatened" designates that portion of the range of the species over which it is endangered or threatened. The Act requires that the species must be endangered or threatened over all or a significant portion of its range in order to be listed. When a species is listed because it is similar in appearance to an endangered or threatened species, this requirement does not apply. Therefore, the notation "N/A" (not applicable) will appear in this column.

(f) For information purposes only, the "When listed" column provides a footnote reference to the date and location of the FEDERAL REGISTER publication actually listing the species. That publication will include a statement indicating the basis for the current status.

(g) The "special rules" column is a reference to any special rules. The letters "N/A" (not applicable) appearing in this column indicate that there are

no such special rules which apply to that species. However, all other appropriate rules in this Part 17 still apply to that species. In addition, there may be other rules in this Subchapter B (Parts 10-22) that also relate to such wildlife, such as port-of-entry requirements, etc. It is not intended that the references in the "Special rules" column list all the regulations of the Service which might apply to the wild

life in question, or the regulations of other Federal, State or local agencies.

(h) The listing of a particular taxonomic group includes all lower taxonomic groups. Example: If the genus Felis was listed, all species, subspecies, races, and populations of that genus are considered to be listed. If the species Felis concolor was listed, all subspecies, races, and populations of that species are considered to be listed.