321 CMR, § 2.12

Current through Register 1536, December 6, 2024

Section 2.12 - Artificial Propagation of Birds, Mammals, Reptiles, and Amphibians

(1)Purpose and Scope. The purpose of 321 CMR 2.12 is to establish the procedural and substantive requirements for the licensing, possession, propagation, maintenance, and disposition of wild birds, mammals, reptiles and amphibians. 321 CMR 2.12 is designed to protect wild animals from unnecessary or undesirable interference and from improper treatment. 321 CMR 2.12 is also necessary for the protection of the public health, welfare and safety when wild animals are possessed, maintained or propagated in Massachusetts.

Wild animals, regardless of whether or not they are born in captivity, often revert to their wild nature when sexually mature and can do considerable harm to persons. Furthermore, wild animals retained in captivity and dependent on humans for care may not be capable of surviving in the wild if problems arise and they are ejected by those who had attempted to care for them. The result is an animal that may suffer a lingering fate prior to death and may be a potential danger to the public. The purpose of 321 CMR 2.12 is to prevent not only the potential public menace, disease, personal injury and property damage which result when the animals are ejected, but to protect the animals from the potential for needless or unnecessary suffering as well. Thus, the scope of 321 CMR 2.12 is to regulate:

(a) the importation, taking from the wild, possession, propagation, purchasing or receipt of protected animals intended to be kept by any person in Massachusetts;

(b) to define specific categories for which licenses may be issued for the possession, maintenance, propagation or cultivation of protected wildlife;

(c) to establish minimum requirements for the possession, maintenance and artificial propagation of protected animals;

(d) to establish administrative procedures for the initial issuance and subsequent renewal of licenses; and

(e) to otherwise implement the licensing provisions of M.G.L. c. 131, § 23.

321 CMR 2.12 is promulgated and effective in addition to and in conjunction with 7 U.S.C. § 2132 et seq. as amended, commonly known as the federal Animal Welfare Act and the licensing program of the United States Department of Agriculture. Compliance with the requirements of the United States Department of Agriculture does not exempt an applicant from compliance with 321 CMR 2.12 or other laws of Massachusetts. Thus, the issuance of the so-called federal exhibitor's permit to any person other than a zoo, as defined in 321 CMR 2.12(2), does not exempt that person from compliance with 321 CMR 2.12 and its licensing provisions.

(2)Definitions. For the purposes of 321 CMR 2.12, the following words have the following meanings:

Animals means any undomesticated bird, mammal, reptile or amphibian, that is not the product of hybridization with a domestic form and not otherwise contained in the exemption list found at 321 CMR 9.01: Exemption List.

Class 4 - Class 8 Licenses means respectively licenses issued under authority of clauses 4 through 8, M.G.L. c. 131, § 23.

Director means the Director of the Division of Fisheries and Wildlife, or his or her agents.

Educational Use means a use or uses as contained in a course of training, of any extent or duration, and which pertains to the acquisition, development, or maintenance of a person's moral, intellectual, vocational, and physical faculties, insofar as such course of training shall relate to fisheries or wildlife, and the habitats, ecological relationships, or the environment thereof.

Environmental Police Officer means the Director of the Office of Law Enforcement, deputy directors of enforcement, chiefs of enforcement, deputy chiefs of enforcement, environmental police officers, and such other enforcement officers of the Office of Law Enforcement as may be appointed pursuant to M.G.L. c. 21, § 6.

Person means an individual, corporation, partnership, trust, association or other private entity or any officer, agent, department or instrumentality of the federal government or any state or its political subdivisions, including but not limited to any agency, department, board, commission or authority thereof.

Scientific Use means a use or uses concerned with the classification, formulation, verification, and documentation of various natural laws, principles, and events by induction, deduction, hypothesis, and experimentation, including, but not limited to, the collection, analysis, propounding, and display of data, whether written, recorded or otherwise, and of artifacts, specimens, and similar physical samples, and shall further relate generally to the physical world and its associated phenomena, and specifically to those branches of systematized knowledge categorized as zoology, botany, ecology, wildlife management, fisheries management, medicine, and veterinary medicine, or such other skills and disciplines which shall require such use or uses.

Wild Animal Farm means a person licensed pursuant to 321 CMR 2.12(10)(d).

Zoo means a permanent site or a permanent location where a collection of living nondomesticated animals are maintained for regular exhibition to the public.

(3)Licenses. Unless otherwise provided by law, it is unlawful for any person to possess, maintain, propagate or cultivate, sell or offer to sell any animal without having a valid license issued to them by the Director in one of five classes.

(a) A class 4 propagator's license authorizes a person to possess, maintain, propagate, buy, sell or otherwise lawfully dispose of specified birds, mammals, reptiles or amphibians. A Class 4 license may, in addition and as a condition of the license, allow the liberation and recapture of bobwhite quail or ring-necked pheasant for the sole purpose of training dogs.

(b) A class 5 public stocking license (including a Class 5 special propagator's license) authorizes any individual, club or association to possess, maintain and propagate birds or mammals for the sole purpose of liberation into covers open for public hunting. A Class 5 public stocking license may be issued as a Letter Permit in accordance with M.G.L. c. 131, § 4(2) and 321 CMR 2.02 but shall otherwise conform to the requirements of 321 CMR 2.12.

(c) A class 6 dealer's license authorizes a person to possess or maintain for food purposes, and to purchase, sell, offer to sell, barter, offer to barter, or conduct commercial transactions of any nature, fish, birds, or mammals which have been lawfully imported into Massachusetts or lawfully propagated within Massachusetts, provided that dealing in fish shall be in accordance with 321 CMR 4.09: Propagation, Culture, Maintenance and Sale of Protected Freshwater Fish. A class 6 dealer's license issued for purposes other than human food shall be issued at the discretion of the director, and the director shall not issue such permit unless, in his discretion, such permit is in the public interest and is not detrimental to the fish and wildlife resources of Massachusetts or the populations of the fish and wildlife proposed for the license, wherever found. When a fish, bird, or mammal proposed for licensing closely resembles a fish, bird, or mammal not so proposed, or for which a license may not be issued, or which derives from a source not authorized pursuant to 321 CMR 2.12(16)(a), the director may consider such similarity of appearance as constituting an adverse or detrimental effect on such protected or non-licensed fish, birds, and mammals, or on the enforcement of laws relating to the conservation and management of the same, and may deny the license on such basis.

(d) A class 7 possessor's license authorizes a person to possess and maintain, but not to propagate, sell or barter, a non-exempt bird or mammal in accordance with 321 CMR 2.12(10)(1); or a non-exempt mammal for the sole purpose of training dogs, when such mammal was lawfully possessed and held under a Class 7 license prior to December 31, 1994; or for the possession of a non-exempt reptile or amphibian. After December 31,1994, no initial Class 7 license may be issued for the purpose of possessing a non- exempt mammal for the purpose of training dogs. A Class 7 license may be issued as a Letter Permit in accordance with M.G.L. c. 131, § 4(2) and 321 CMR 2.02 but shall otherwise conform to the requirements of 321 CMR 2.12.

(e) A dog training license (including a Class 8 quail license) authorizes a person to possess no more than 25 quail, six ring-necked pheasant, and two chukar partridge to liberate and recapture for the sole purpose of training dogs.

(4)Application. A person seeking a license provided for in 321 CMR 2.12(3) shall complete a written application on forms supplied by the Director. Completed applications shall include a self- addressed stamped envelope and be addressed to the Permit Section, Division of Fisheries and Wildlife, 251 Causeway Street, Suite 400, Boston, MA 02114.

(5)Information and Requirements. All initial license applications shall contain the following information. Renewal license applications shall include but not be limited to 321 CMR 2.12(5)(a), (c), (f), and (g):

(a) the applicant's name, address and telephone number where he or she can be reached between the hours of 9:00 A.M. to 5:00 P.M.;

(b) the applicant's date of birth;

(c) in the event the applicant is a corporation, firm, partnership, institution or agency, either public or private, the name, address and telephone number of the president, director, head or principal officer;

(d) the location or locations where the licensed activity will be conducted;

(e) the specific source or sources from which the animals are to be obtained;

(f) the date of the application;

(g) the applicant's signature executed under the pains an penalties of perjury;

(h) for a class 4 license, accurate diagrams, models or drawings in scale or pictures depicting the precise physical conditions under which the animals will be maintained;

(i) for a commercial license requested pursuant to 321 CMR 2.12(10)(c) or (d), a signed affidavit certifying that the applicant has to the best of his or her knowledge paid all state taxes as required by the Massachusetts Department of Revenue; and

(j) a written plan detailing the intended activity for which the animals are to be maintained, the disposition of the animals if relevant, and other information pertinent to a full explanation and justification for the possession of the animals.

(k) for a license requested pursuant to 321 CMR2.12(10)(a), (b), (c), (d), (f), or (g), a copy of the applicant's resume, letters of recommendation, diplomas or certificates, and such other documentary items as shall provide evidence of the applicant's qualifications, training, and experience in the activity which has been applied for.

(6)Fees. All applications and renewals shall be accompanied by the appropriate fee indicated on the application in the form of a check or money order payable to the Division of Fisheries and Wildlife. Cash may be used only when the application is made in person.

(7)Exception. Payment of fees shall not be required of any federal, state, or municipal agency or official, nor of any person under contract to the Division of Fisheries and Wildlife or otherwise involved in projects conducted or directly supervised by the Division of Fisheries and Wildlife.

(8)Abandoned Applications. Upon receipt of an incomplete application, an improperly executed application, or an insufficient fee, the applicant shall be notified of the deficiency. If the applicant fails to supply the requested information, pay the required fee or otherwise fails to correct the deficiency within 60 days following the date of notification, the application shall be considered abandoned and shall be returned to the applicant.

(9)Denials. Applications for a license provided for in 321 CMR 2.12(3), including both initial applications and renewals, shall, unless otherwise provided, be denied when:

(a) the application is for a license to possess, maintain, propagate or cultivate animals as pets except as otherwise provided for in 321 CMR 2.12(10)(h) and (i);

(b) the application is for a class 4 license to possess, maintain, or propagate animals for purposes or intentions based purely on curiosity, impulse or novelty, or to provide for personal amusement or entertainment;

(c) the applicant has within one year preceding the date of application been criminally convicted of a violation of any provision of M.G.L. c. 131, c. 131 A, any provision of 321 CMR, or any federal statute or federal regulation which is related to the activity for which the license is sought;

(d) the applicant has failed to disclose material information or has made false statements as to any fact in connection with the application;

(e) a prior inspection of the facilities where the animal will be possessed, maintained, propagated or cultivated by a duly authorized state or federal official has disclosed that the facilities do not meet the requirements found in 321 CMR 2.12(11) and (15) and such deficiencies have not been corrected within 30 days;

(f) the application is for a license to possess an animal in a commercial venture involving amusement or sport;

(g) the applicant for a Class 4 license has imported into or received in Massachusetts any animal without a valid importation license as required by M.G.L. c. 131, § § 19 and 19A, and 321 CMR 2.15;

(h) the applicant has failed to satisfy the director that his or her qualifications, training, and experience are sufficient to properly maintain, propagate or care for the animals in question, or to adequately provide for the safety and well-being of the public and the environment;

(i) the applicant has failed to satisfy the director that the applicant is actively engaged in the activity granted by the permit;

(j) the application is for a class 6 dealer's license other than for purposes of human food and the applicant has failed to satisfy the director that the application is in the public interest and is non-detrimental to fish and wildlife resources pursuant to 321 CMR 2.12(3)(c);

(k) the application is for the commercial farming of more than 100 turtles for the purposes of sale.

(10)Issuance. A Class 4 license may be issued only to applicants who substantially document that the intended possession, maintenance or propagation is for:

(a) an authentic and legitimate scientific use certified by officials of a generally recognized scientific institution such as museums of a zoological or biological nature, zoological or biological departments of an accredited college or university, or a public or private research institute for wildlife population or management studies;

(b) an authentic and legitimate educational use certified by zoological or biological officials of a generally recognized educational institution such as an accredited college or university or a public or private school;

(c) a commercial use in conjunction with an applicant's primary existing occupation or livelihood in Massachusetts and for which the animal is an inherently necessary and an essential element;

(d) commercial propagation of protected animals for sale other than sale as pets, which shall be issued only for those species listed in 321 CMR 2.12(11);

(e) an authentic use in conjunction with legitimate sporting events involving the training of dogs;

(f) animals held or propagated under holding agreements or in conjunction with breeding programs of established zoos licensed by the United States Department of Agriculture;

(g) captive propagation of threatened or endangered animals under the auspices of a written captive propagation program approved by both the Director and the Fisheries and Wildlife Board, when such captive propagation is in accordance with the recovery or action plans or recommendations of the International Union for the Conservation of Nature and Natural Resources, the American Association of Zoological Parks and Aquariums, or of the United States or of Massachusetts, and, in the opinion of the director will make a meaningful contribution to the ultimate survival and recovery of the animal. Such captive propagation shall be restricted to genetically pure animals of known lineage unless otherwise specified in the recovery or action plans or recommendations;

(h) the aviculture of non-exempt birds, including federally threatened and endangered species as authorized by the United States Fish and Wildlife Service, that are documented to be the product of captive propagation or that were legally held prior to the approval of 321 CMR 2.12 and are members of the following taxonomic groups: Ciconiiformes (e.g., flamingo), Anseriformes (e.g., ducks, geese, swans), Galliformes (e.g., pheasant, quail, grouse), Gruiformes (e.g., cranes, coots), Columbiformes (e.g., pigeons, doves), Psittaciformes (e.g., parrots), Piciformes (e.g., toucans), Passeriformes (e.g., songbirds). The foregoing shall not include the Wild Turkey (Meleagris gallopavo) or the following potential pest species: Pink Starling (Sturnus roseus), Red-billed Dioch including the Black-fronted and Sudan Diochs (Quelea quelea), and Red-whiskered Bulbul (Pycnonotus jocosus);

(i) the propagation of non-exempt reptiles, including federally endangered and threatened species as authorized by the United States Fish and Wildlife Service, that are documented to be the product of captive propagation or that were lawfully held prior to the approval of 321 CMR 2.12 on May 8, 1986, and are members of the taxonomic groups which include turtles and lizards, except venomous lizards in the genus Heloderma;

(j) the training of animals to aid the handicapped; or

(k) any protected animal lawfully possessed prior to July 1, 1980.

(11)Commercial Propagation-- Allowable Species. Only the following species or groups of species may be commercially propagated:

(a) fallow deer (Cervus dama);

(b) red deer (Cervus elaphus);

(c) sika deer (Cervus nippon);

(d) aoudad (Barbary sheep)(Ammotragus lervia);

(e) mouflon (Ovis musimon);

(f) red fox (Vulpes vulpes), including silver fox, cross fox, and color variants thereof;

(g) Arctic fox (Alopex lagopus);

(h) pheasants, quail, partridges (Phasianidae);

(i) waterfowl (Anseriformes); and

(j) federally endangered and threatened species of birds listed in 321 CMR 9.01(11): List of Birds, when approved by the U.S. Fish and Wildlife Service if required, and the Director.

(12)Exemption. Licensed veterinarians temporarily treating sick and injured animals are exempt from the licensing requirements provided that:

(a) accurate records are kept on forms provided by the Director and submitted annually st not later than January 31^st; and

(b) the Director is notified immediately of the presence of any endangered, threatened or special concern species listed pursuant to the U.S. Endangered Species Act or to 321 CMR 10.60.

(13)Temporary Possession Permit. Persons may temporarily possess animals in Massachusetts provided a temporary possession permit is obtained from the Division. The applicant shall supply the Division with the dates, times and locations where the animals will be possessed, the purposes of the temporary possession, a list of the animals being temporarily possessed and the dates of their removal. For the purposes of 321 CMR 2.12, a temporary possession permit may also be issued to a wild animal farm or a zoo for exhibiting animals off the premises of such farm or zoo.

(14)Grace Period. Persons presently possessing, maintaining, propagating or cultivating animals other than as pets, without a valid license or otherwise unlawfully, will be allowed a 30 day grace period from 6/30/95 in which applications for a license may, if submitted in accordance and in compliance with 321 CMR 2.12 and within the 30 day period, be approved and issued by the Director.

(15)Inspections. Upon submission of a properly completed application for a Class 4 license to be issued pursuant to 321 CMR 2.12(3) or for a wildlife rehabilitation permit issued under authority of M.G.L. c. 131, § 4, clause 2, and all required supporting documentation, an Environmental Police Officer or an official of the Division of Fisheries and Wildlife, or both, shall inspect the facilities to be used by the applicant for the maintenance of the following animals: any mammal in the order Carnivora (wild cats, wolves, bears, raccoons, weasels, and others); any mammal in the order Proboscidea; any mammal in the families Cervidae (deer, elk, and others) and any venomous reptiles. If, upon receiving a properly completed application for a Class 4 license for any other species, the Director determines that an inspection of the applicant's facilities is in the public interest, he may cause such inspection to be made by an official of the Division or an Environmental Police Officer or both. An applicant's facilities, whether or not inspected as provided in 321 CMR 2.12(15), shall meet the following minimum requirements:

(a) animals shall be kept in approved enclosures under conditions that give the licensee exclusive control over them at all times and at the location(s) to be designated in the license, except as otherwise provided by law or the Director;

(b) approved enclosures shall be designed so as to provide adequate physical comfort to the animal and shall:

1. keep the animal clean and dry, except for those species requiring a moist environment;

2. maintain an ambient temperature compatible with the animal's needs;

3. keep the animal in complete and continuous captivity;

4. restrict the entry of unauthorized persons or predatory animals;

5. provide access to clean food and fresh water in clean containers; and

6. sufficient fresh food and water fulfilling the animal's dietary requirements shall be made available and shall be presented in a manner compatible with the animal's particular eating habits;

(c) maintain all enclosures in a sanitary condition and in good repair;

(d) have equipment available for proper storage and disposal of waste material to control vermin, insects and obnoxious odors;

(e) take effective measures to prevent and control infection and infestation of the animal and premises with disease, parasites and vermin;

(f) provide adequate shelter for the comfort of the animal and adequate facilities, when necessary, for isolation of diseased animals;

(g) if animals are group housed, maintain animals in compatible groups without overcrowding;

(h) ensure the enclosures are adequately designed to minimize any potential danger to the public, or to the licensee;

(i) in the case of venomous reptiles, arrange for antivenin to be readily available through a local hospital, the name, address and telephone number of which shall be affixed to the enclosure; and

(j) provide for the maintenance or disposition of all animals in case of the licensee's absence, illness, or death.

(k) comply with any special conditions or restrictions as stipulated by the Director, pursuant to 321 CMR 2.12(16).

(16)Restrictions. Applications for a license issued pursuant to 321 CMR 2.12(3) shall comply with the following restrictions.

(a) Animals may be procured in the following manner only:

1. lawfully propagated, harvested, or taken outside of Massachusetts; or

2. lawfully propagated within Massachusetts; and

3. unless otherwise provided for by the Director, animals taken from the wild within Massachusetts may not be propagated, cultivated or maintained for purposes of sale pursuant to M.G.L. c. 131, § 23.

(b) Birds and mammals possessed and maintained under authority of a class 5 license shall be liberated into the wild within one year under the supervision of and in covers approved by the Director.

(c) Birds and mammals sold for food purposes must first be killed and to each carcass or part thereof shall be attached a tag furnished by the Director at a cost to the licensee established by the Executive Office of Administration and Finance. This tag shall remain on the carcass or any portion thereof until the bird or mammal is prepared for consumption.

(17)Conditions. The Director may at any time, in writing, establish conditions or restrictions to a license issued pursuant to 321 CMR 2.12(3) if, in his or her opinion, the conditions or restrictions are necessary for the preservation and protection of the health, welfare or safety of the citizens of Massachusetts or of the animal.

(18)Agreement. All licenses issued pursuant to 321 CMR 2.12(3) shall be signed by the licensee and such signature shall constitute:

(a) an agreement by the licensee to fully comply with all relevant provisions of law including but not limited to M.G.L. c. 131, c. 131A, 321 CMR, and all applicable conditions and restrictions of the license;

(b) an agreement by the licensee to allow inspections at reasonable times of the premises where the animals are kept by the Director or by an Environmental Police Officer of the Office of Law Enforcement; and

(c) liability agreement.

(19)Amendments. Class 4 license holders shall submit to the Director in writing any change in protected animal stock covered by a pending application or a current license. No change in protected animals, except in the instance of animals giving birth, held under authority of a class 4 license may be made until an appropriate amendment covering such change in stock is approved by the Director. All such requested amendments and modifications shall be subject to the provisions of 321 CMR 2.12.

(20)Records. Licensees shall keep and maintain for no less than two years accurate records on forms supplied by the Division of all animals possessed and maintained under authority of a license. Said records shall be made available to the Director or to an Environmental Police Officer upon request.

(21)Renewal. Applications for renewal of any license authorized to be renewed:

(a) shall be filed with the Division no later than December 31 of each year;

(b) shall contain any change in protected animals to be maintained;

(c) shall be subject to the provisions of 321 CMR 2.12 and relevant provisions of M.G.L. c. 131; and

(d) are subject to M.G.L. c. 30A, § 13, and 801 CMR 1.00 in the event a renewal is denied.

(22)Suspension or Revocation. Licenses issued pursuant to 321 CMR 2.12 may be suspended or revoked in accordance with the relevant provisions of M.G.L. c. 30A and 801 CMR 1.00 for:

(a) a violation of any provision of M.G.L. c. 131 ore. 131 A;

(b) a violation of any provision of 321 CMR;

(c) a violation of any federal statute or regulation which is related to the activity for which the license has been obtained;

(d) a violation of any condition or restriction of the license; or

(e) upon the request of any Environmental Police Officer if it is determined that the licensee's operation causes an unnecessary threat to the public health, welfare or safety or is not in the best interest to the animal.

(23)Effect of Suspension, Revocation, or Non-Renewal. In the event a license is suspended, revoked or not renewed, the licensee shall dispose of the animals within 60 days in a manner required by the Director or in a manner provided for by the licensee with the approval of the Director.

(24)Prohibitions. It is unlawful for any person:

(a) to import, possess, maintain, propagate or have custody of in Massachusetts any animal without a valid license issued pursuant to 321 CMR 2.12 or 2.15;

(b) to falsify any license application or renewal, provide false documentation in support of a license application or renewal or fail to provide relevant and material information regarding a license application or renewal;

(c) to refuse to allow reasonable inspections of the premises where the animals are kept at reasonable times by any Environmental Police Officer or by the Director;

(d) who is a veterinarian to fail to keep accurate records of the treatment of an animal or to falsify such records;

(e) who is a veterinarian to fail to notify the Director immediately of the presence of any endangered, threatened or special concern species;

(f) to keep and maintain any animal in a condition or under conditions which do not comply with provisions of 321 CMR 2.12(15)(a) through (k);

(g) to import, possess or purchase any animal which was propagated unlawfully in or out of Massachusetts;

(h) not to liberate into the wild within one year birds and mammals possessed and maintained under authority of a class 5 license;

(i) to liberate into the wild birds and mammals possessed and maintained under authority of a class 5 license without the Director or his agent being present or provided such opportunity, or into covers not otherwise approved by the Director;

(j) to sell a bird or mammal for food purposes which has not been killed first and affixed with a tag furnished by the Director;

(k) to remove any tag which has been affixed to the carcass of a bird or mammal sold for food purposes at any time other than immediately prior to preparation for consumption;

(l) to violate any condition or restriction of a license issued prior to 321 CMR 2.12;

(m) not to provide the Director with written notification of a change in protected animal stock which is covered by a pending application or a current license;

(n) not to maintain for at least two years accurate records of all animals maintained and possessed or to falsify any such record or to refuse to provide such records upon request to any Environmental Police Officer or the Director;

(o) to refuse or fail to comply with a disposal order of the Director issued pursuant to 321 CMR 2.12(23).

(25)Grandfather Clause. A person licensed as a Class 4 propagator on May 1, 1995 who is commercially propagating animals pursuant to 321 CMR 2.12(10)(d) and, in addition, who is propagating animals not listed in 321 CMR 2.12(11), shall be allowed to continue propagation of such animals at the same site and of the same numbers of animals as on May 1, 1995, provided that a person so propagating white-tailed deer shall be allowed to propagate only the individual deer in possession on May 1, 1995, and such deer shall not be replaced when dead. Permittees shall comply with all other provisions of 321 CMR 2.12.

321 CMR, § 2.12

Amended by Mass Register Issue 1268, eff. 8/29/2014.

Amended by Mass Register Issue 1320, eff. 8/26/2016.