[Federal Register: August 23, 2007 (Volume 72, Number 163)]
[Rules and Regulations]
[Page 48401-48494]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23au07-15]
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Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Parts 10, 13, 17, and 23
Revision of Regulations for the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES); Final Rule
[[Page 48402]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 10, 13, 17, and 23
RIN 1018-AD87
Revision of Regulations Implementing the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: In this final rule, we, the Fish and Wildlife Service (FWS),
revise the regulations that implement the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES), a treaty
that regulates international trade in certain protected species. CITES
uses a system of permits and certificates to help ensure that
international trade is legal and does not threaten the survival of
wildlife or plant species in the wild. In this final rule, we have
retained most of the general information in the current 50 CFR part 23,
but reorganized the sections and added provisions from certain
applicable resolutions and decisions adopted by the CITES Conference of
the Parties (CoP) at its second through thirteenth meetings (CoP2 -
CoP13). The revised regulations will help us more effectively promote
species conservation, continue to fulfill our responsibilities under
the Treaty, and help those affected by CITES to understand how to
conduct lawful international trade in CITES species.
DATES: This regulation is effective September 24, 2007. Incorporation
by reference of CITES's Guidelines for transport and preparation for
shipment of live wild animals and plants and the International Air
Transport Association Live Animals Regulations listed in this rule is
approved by the Director of the Federal Register as of September 24,
2007.
FOR FURTHER INFORMATION CONTACT: Chief, Division of Management
Authority, Fish and Wildlife Service, 4401 North Fairfax Drive, Room
700, Arlington, Virginia 22203; telephone, (703) 358-2093; fax, (703)
358-2280; or email, managementauthority@fws.gov.
SUPPLEMENTARY INFORMATION:
What Acronyms and Abbreviations Are Used in This Rule?
AECA African Elephant Conservation Act (16 U.S.C. 4201-4245)
APHIS U.S. Department of Agriculture, Animal and Plant Health
Inspection Service
ATA A combination of the French and English words ``Admission
temporaire/Temporary Admission'' used in the name of a type of
international customs document, the ATA carnet
CITES Convention on International Trade in Endangered Species of
Wild Fauna and Flora, also referred to as the Convention or Treaty
CBP Department of Homeland Security, U.S. Customs and Border
Protection
CFR Code of Federal Regulations
CoP Conference of the Parties or a meeting of the Conference of the
Parties
ESA Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.)
FOIA Freedom of Information Act (5 U.S.C. 552)
FWS U.S. Fish and Wildlife Service
IATA LAR International Air Transport Association Live Animals
Regulations
ISO International Organization for Standardization
USDA U.S. Department of Agriculture
WBCA Wild Bird Conservation Act (16 U.S.C. 4901 et seq.)
Background
CITES was negotiated in 1973 in Washington, DC, at a conference
attended by delegations from 80 countries. The United States ratified
the Treaty on September 13, 1973, and it entered into force on July 1,
1975, after the required 10 countries had ratified it. Section 8A of
the ESA, as amended in 1982, designates the Secretary of the Interior
as the U.S. Management Authority and U.S. Scientific Authority for
CITES. These authorities have been delegated to the FWS. The U.S.
regulations implementing CITES took effect on May 23, 1977 (42 FR
10465, February 22, 1977), after the first CoP was held. The CoP meets
every 2 to 3 years to vote on proposed resolutions and decisions that
interpret and implement the text of the Treaty and on amendments to the
listing of species in the CITES Appendices. Currently 171 countries
have ratified, accepted, approved, or acceded to CITES; these countries
are known as Parties.
Proposed rule and comments received: We published a proposed rule
on April 19, 2006 (71 FR 20167), to revise the regulations that
implement CITES. We accepted public comments on the proposed rule for
60 days, until June 19, 2006. In response to several requests from the
public, we reopened the public comment period for an additional 30 days
on June 28, 2006 (71 FR 36742). The 2006 proposed rule was a reproposal
of revisions proposed on May 8, 2000 (65 FR 26664), which were not
finalized. We summarized and addressed comments received on the 2000
proposal in the 2006 proposed rule. Please refer to the preamble to the
April 19, 2006, proposed rule for a discussion of those comments.
We received 344 letters in response to the 2006 proposed rule (71
FR 20167). We received comments from individuals, organizations, and
State natural resource agencies. Of the comments we received, 240
letters were from Bengal cat enthusiasts and breeders, 33 were from
State natural resource agencies and regional associations, 21 were from
falconers and falconer organizations, and 13 were from fur trapper
organizations.
Resolution consolidation and incorporation: Since 1976, the Parties
have adopted 256 resolutions or revisions to resolutions. In 1994, the
Parties began an effort to consolidate some of these resolutions. Some
resolutions were no longer relevant, and others needed to be combined
because several resolutions were adopted at different CoPs on the same
or similar subjects. As a result of this process, there are currently
78 resolutions in effect. This rule incorporates certain of these
consolidated resolutions, as appropriate and relevant to U.S.
implementation of the Treaty. We cite the current numbers of
resolutions since previous resolutions have been renumbered. This
allows the reader to easily access the documents currently in effect on
the CITES website (http://www.cites.org).
Stricter national measures: Article XIV of the Treaty explicitly
recognizes the rights of Parties to adopt stricter national measures to
restrict or prohibit trade, taking, possession, or transport of any
wildlife or plant species. Resolution Conf. 11.3 (Rev. CoP13)
recommends that Parties make use of stricter national measures if they
have determined ``that an Appendix-II or -III species is being traded
in a manner detrimental to the survival of that species'' or is being
``traded in contravention of the laws of any country involved in the
transaction.'' The United States has adopted stricter national
measures, such as the ESA, Marine Mammal Protection Act (16 U.S.C.
1361-1407), and Lacey Act Amendments of 1981 (16 U.S.C. 3371-3378).
As outlined in the preamble to CITES, ``peoples and States are and
should be the best protectors of their own wild fauna and flora.''
CITES recognizes the sovereign right of a country to regulate trade by
passing stricter national measures to help in the conservation of
species. Under CITES, an exporting country does not have a sovereign
right to override an importing country's laws. When a Party sends
information to the Secretariat on how its stricter national measures
will affect trade in CITES
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species, the Secretariat provides that information to other Parties
through a notification. These notifications are available to the public
on the CITES website (see Sec. 23.7).
Plain language: We used plain language in writing these regulations
to make them clearer and easier to use. We believe the regulations use
an appropriate level of language to lay out the technical requirements
of a multilateral treaty.
General comments: A number of commenters commended us for revising
the U.S. CITES implementing regulations and also provided comments on
specific sections of the 2006 proposed rule (71 FR 20167). We have
addressed comments specific to a particular section in the appropriate
section of this preamble. One State agricultural agency noted that, for
the aquaculture industry in that State, our changes will help simplify
and clarify the documentation process for dealing with CITES species.
One commenter expressed general opposition to international trade
in wildlife. We appreciate the comment, but we will not address it here
as it is outside the scope of this rulemaking.
Another commenter suggested changes to specific clearance
procedures at a port of entry. Those comments were outside the scope of
this rule, and we encourage the commenter to provide input when the FWS
proposes changes to 50 CFR part 14, which includes the specific
clearance procedures pertaining to the import, export, and transport of
wildlife.
One commenter asked that we establish a ``compliance service''
where individuals could receive assistance in filling out and filing
the required forms and documents. The commenter noted that the IRS
provides such a service and that we should do the same. We believe that
such assistance already exists on our website, where we provide
information to guide applicants through the required agency permits,
answer frequently asked questions, and direct them to the relevant
offices for specific information. In addition, applicants can request
information and permit application forms from the U.S. Management
Authority and wildlife inspection offices. See Sec. 23.7 for contact
information.
One commenter argued that all applications for trade in Appendix-I
and -II species should be subject to public notice and review. We
disagree. Most of the applications we receive involve commonly traded
Appendix-II species. As outlined in this rule, the FWS has established
specific procedures for making the required determinations under CITES.
We do not believe that requesting public comments on all applications
involving CITES species would provide a greater level of insight or
provide information that is not already available to us.
One commenter recommended adding a provision that would allow for
disclosures to be made without penalty and offered the example of
identifying merchandise that should have been declared but was not
discovered until after the shipment was imported. We did not accept
this recommendation because we believe such a provision would undermine
our enforcement efforts and our obligations under CITES. We treat
specimens traded contrary to CITES the same as other forms of illegally
acquired goods. A specimen that has been traded contrary to CITES
becomes contraband at the time it enters the jurisdiction of the United
States.
One commenter argued that the regulations should allow for
electronic submission of CITES information and payment of permitting
fees. We recognize the need to keep pace with technology and are
actively pursuing an electronic interface in partnership with other
Federal agencies to streamline CITES procedures for the trade
community. We are also working on an electronic permitting system that
would allow submission of applications for CITES documents and
applicable fees. Nothing in these regulations would prevent us from
allowing electronic submission when we have the technology in place.
Section-by-Section Analysis
The following parts of the preamble explain the final rule, discuss
the substantive issues of sections for which we received comments,
outline significant changes from the 2006 proposed rule (71 FR 20167),
and provide responses to public comments.
What Are the Changes to 50 CFR Parts 10, 13, and 17?
Definitions (Sec. 10.12): We provide a definition of the United
States to correctly reflect areas under U.S. jurisdiction. One
commenter suggested that the term United States be replaced with
regulated territory because of potential confusion due to more common
meanings of the term. United States is the term consistently used in
conservation statutes administered by the FWS to define the
jurisdictional scope of the statute. We believe that consistency
between the term used in these regulations and the term used by
Congress will reduce, not increase, confusion.
Application procedures (Sec. 13.11): As noted in our final rule on
FWS permit fees (70 FR 18311), we will not charge a fee to any Federal,
tribal, State, or local government agency. Therefore, we will not
charge a fee to a State or Tribe seeking to gain approval of a CITES
export program. We also will not charge a fee to add an institution to
the Plant Rescue Center Program because this is a voluntary program
designed to place live plant specimens that have been confiscated upon
import or export, and thereby helps the United States fulfill its CITES
implementing responsibilities.
Thirty-five commenters, representing individual State natural
resource agencies, State natural resource agency organizations, and
trapper organizations, supported not requiring application fees to
establish a CITES export program. One commenter opposed our decision
not to charge a fee to government agencies seeking approval of a CITES
export program. It is our longstanding policy not to charge a fee to
Federal, tribal, State, or local governments. Another commenter stated
that fees should be raised to reflect the actual value of the wildlife
specimen in trade and that no applicant should be exempt from paying an
application fee. Thirteen trapper organizations did not agree that
small-scale trappers should be charged permit application fees. In
addition, one commenter argued that publicly supported, nonprofit
conservation organizations should be exempt from any application fees.
The FWS fee structure is based on the nature of the activities being
permitted, as well as the level of complexity and the time required to
process applications and maintain active permit files. For further
discussion of our application fees see 70 FR 18311, April 11, 2005.
U.S. address for permit applicants (Sec. 13.12): This section
requires an applicant to provide an address within the United States
when applying for a permit. In a number of situations, a business or an
individual in a foreign country may request a CITES document from us
for a shipment the entity owns but is shipping out of the United
States. We cannot issue the CITES document showing the exporter's
foreign address for items that are leaving the United States. Foreign
visitors who are requesting a CITES document may provide a temporary
address, such as a hotel, since they do not permanently reside within
the United States.
For commercial activities conducted by applicants who reside or are
located outside of the United States, the name and address of the
commercial entity's agent in the United States must be included. We
consider any transaction
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involving a seller and a buyer, or any retail or wholesale transaction
that provides a valuable consideration in exchange for the transfer of
a wildlife or plant specimen as a commercial activity. However, we do
not consider a hunter who exports his or her personal sport-hunted
trophy to be involved in a commercial activity under this section.
Two commenters agreed with these requirements, but one of them
suggested that, for non-resident applicants who could only provide a
temporary address, we should also require their permanent address in
their country of residence, as well as a permanent U.S. address of an
agent or attorney. We require a permanent U.S. address for the
applicant's agent for commercial transactions. We do not require a
foreign address for noncommercial transactions. However, most
noncommercial transactions carried out by non-U.S. residents consist of
personal effects or personally hunted trophies that are being sent to
the individual's home, and the applicant's foreign address is typically
included on the application.
One commenter asked that we clarify that the U.S. address does not
need to be a domiciliary address or residence. For U.S. residents who
are applying as individual applicants, the address they provide must be
the physical address of their residence. In some cases, however, for
permits for personal or household effects being held in the United
States pending issuance of a permit, the U.S. address may be a
relative, the storage facility, or the agent. For organizations or
companies applying for a permit, we require the company's physical
address where the records regarding the application are maintained.
One commenter recommended that the requirements of 50 CFR 13.12 be
brought into compliance with CBP's Filing Identification Number (FIN)
(19 CFR 24.5). We did not accept this suggestion. The CBP Filing
Identification Number is associated with account-based import
activities specific to the importing requirements of CBP. The
application process carried out by the FWS is a transactional-based
activity that requires the identification of both companies and
individuals. In addition, we do not have access to CBP's database that
contains the FIN data, and therefore we could not utilize the system on
a daily basis, as would be required to carry out our permitting
process.
Continuation of permitted activity during renewal (Sec. 13.22(c)):
This paragraph sets out the general permit procedures that allow
continuation of the permitted activity after the submission of an
application for renewal. The regulations in 50 CFR part 13 follow the
Administrative Procedure Act (5 U.S.C. 558(c)). We received one comment
suggesting that all businesses should be required to renew permits
before they expire. For an activity of a continuing nature, when a
permittee has made timely and sufficient application for renewal of a
permit, the permit does not expire until the agency has made a final
determination on the application.
CITES documents, however, do not cover an activity of a continuing
nature and are considered void upon expiration. This section clarifies
that a permittee may not use a CITES document once it has expired. For
other permits of a continuing nature, however, we have retained the
process that allows the permittee to conduct permitted activities
during renewal if the conditions outlined in 50 CFR part 13 are met.
One commenter supported this approach. Another commenter thought we
should allow an extension of the period of validity of CITES documents
after they have expired, while the renewal process is underway. The
commenter did not believe that the Treaty or current resolutions
support our policy not to allow extensions. We disagree. Article VI of
the Treaty and Resolution Conf. 12.3 (Rev. CoP13) provide specific
periods of validity for most permits and certificates. In addition,
Resolution Conf. 12.3 (Rev. CoP13) states that, once a CITES document
has expired, the permit or certificate is void. While the resolution
does not address a period of validity for all of the certificates
discussed, for consistency, we have established specific periods of
validity for each type of CITES document (see Sec. 23.54). CITES
documents that have not been used may be reissued. However, permittees
must contact us prior to the expiration date, return the unused permit,
and give us sufficient time to review the reissuance request and issue
a new permit or certificate.
Maintenance of records (Sec. 13.46): Permittees are required to
maintain records. However, our authority to inspect records is limited
to areas within the United States. Therefore, to ensure that we are
able to carry out our responsibility to inspect records when necessary,
Sec. 13.46 outlines the requirement that permittees who reside or are
located in the United States, as well as permittees who reside or are
located outside the United States but are conducting commercial
activities within the United States, maintain records in this country.
We received 31 comments in support of this change. One of these
commenters also recommended that we establish a timeframe during which
permittees must maintain records. A timeframe of 5 years is already
codified in Sec. 13.46. However, as discussed under Sec. 23.34, since
we must make specific findings based on information provided primarily
by an applicant, it may be advisable to maintain records for longer
than 5 years in some cases (see discussion on Sec. 23.34).
Import exemption for threatened, Appendix-II wildlife (Sec. 17.8):
This section puts into regulation the exemption under the ESA, section
9(c)(2), for import of CITES Appendix-II wildlife that is also
classified as threatened under the ESA, when the taking and export meet
the provisions of CITES and the import is not made in the course of a
commercial activity. This ESA provision only exempts the import
prohibitions; it does not exempt acquisition in foreign commerce in the
course of a commercial activity. Therefore, we require both the
acquisition and import to be noncommercial because we consider any
transfer of a specimen in pursuit of gain or profit to be a commercial
activity. Thus, a person who is importing a specimen under this
provision must provide documentation to the FWS at the time of import
that shows the specimen was not acquired in foreign commerce in the
course of a commercial activity. This exemption does not apply to
species that have a special rule in 50 CFR part 17.
Two commenters voiced their support for this section. Another
commenter argued that the exemption for certain threatened species that
are also listed in Appendix II is inconsistent with the ESA. As we
discussed in the 2006 proposed rule (71 FR 20167), Congress provided
this exemption, and we believe that this section accurately implements
it.
One commenter suggested that we add a definition of ``in the course
of a commercial activity.'' As noted by the commenter, commercial
activity is defined in section 3 of the ESA. Therefore, we do not
believe it is necessary to define the full term ``in the course of a
commercial activity.''
This same commenter suggested that a purchase for scientific use,
such as an acquisition by a museum, should be covered by the exemption
under 17.8(b) and that the exemption should apply to any specimen used
for science as long as the collection and sale are legal in the country
of origin. We disagree. The exemption under section 9(c)(2) of the ESA
applies only if the importation is not made in the course of a
commercial activity, regardless of who is commercializing the specimen.
Many imports for scientific use are likely to meet the exemption, but
the purchase of
[[Page 48405]]
a specimen for scientific use is likely to qualify as commercial and
thus require issuance of an ESA permit prior to importation.
Two commenters asserted that the requirement for documentation is
overly broad and suggested that the FWS describe the type of
documentation that would be acceptable. Because of the wide variety of
imports that may qualify, and to provide flexibility to the importer,
we did not list what form of documentation would be required. We will
accept any documentation from the importer regarding the acquisition of
the specimen that shows that it was not acquired in foreign commerce in
the course of commercial activity. Such documentation may include, for
example: proof of a personal sport hunt, documents related to museum or
zoological exchange, inheritance documents, or scientific collecting
permits.
One commenter stated that requiring such documentation violates the
exemption under section 9(c)(2) of the ESA. We agree that the exemption
allows a qualifying specimen to be imported into the United States
without first having obtained an ESA import permit, but it remains the
burden of the importers to show that they qualify for the exemption,
including by obtaining and presenting all required CITES documentation,
fulfilling all document requirements under section 9(d), (e), and (f),
and showing that the importation is not being made in the course of a
commercial activity.
One commenter argued that the exemption should only apply when the
importer can prove that both the acquisition of the specimen and the
importation are noncommercial. We agree, and we require the importer to
meet both criteria in Sec. 17.8(b)(1). In Sec. 17.8(b)(5), we
specifically require documentation showing that the specimen was not
acquired in foreign commerce in the course of a commercial activity.
Importers of any wildlife specimens, whether CITES specimens or not,
must show the purpose of import under general government importation
requirements. We are able to determine from this documentation whether
the import is in the course of a commercial activity. However,
documentation showing the specimen was not acquired in foreign commerce
does not typically accompany a shipment. Therefore, we specifically
require that such documentation be provided to us.
Special rule for threatened crocodilians (Sec. 17.42(c)): In
accordance with this special rule, we allow meat of saltwater
crocodiles (Crocodylus porosus) originating in Australia and of
Appendix-II Nile crocodiles (C. niloticus) to be traded without tags,
and we clarify that this includes all forms of meat. We do not believe
that international trade in crocodilian meat poses a significant
conservation risk, but we note that CITES documents still would be
required for any meat shipments. The special rule prohibits import into
the United States of live specimens and viable eggs of any threatened
crocodilians without an ESA import permit.
One commenter disagreed with our assertion that international trade
in meat of saltwater crocodiles originating in Australia and Appendix-
II Nile crocodiles poses no significant conservation risk and could
therefore be traded without tags. We note that the crocodilian product
most common in international trade is skin and U.S. import data for
2002 - 2005 show no imports of saltwater or Nile crocodile meat.
Therefore, we continue to believe that this type of trade does not pose
a significant conservation threat. In addition, there is no CITES
requirement for tagging of crocodilian meat.
The special rule includes reporting requirements for range
countries. In our final yacare caiman (Caiman yacare) rule published on
May 4, 2000 (65 FR 25867), we noted that the FWS depends primarily on
range countries to monitor yacare caiman. To assist us in monitoring
the status of yacare caiman, we require that the governments of range
countries wishing to export specimens to the United States for
commercial purposes provide a report every 2 years that includes the
most recent information available on the status of the species. This
information assists us in determining the current conservation status
of the species and is used to determine if the species is recovering
and may warrant delisting. We also have a section describing conditions
under which trade restrictions can be applied to the import of yacare
caiman from range countries, including the failure to submit the
reports or failure to respond to requests for additional information.
Three commenters supported amendments to the special rule regarding
reporting requirements for range countries of the yacare caiman in
Sec. 17.42(c). They urged us to include similar reporting requirements
if additional crocodilian species are reclassified as threatened under
the ESA and are included in the special rule. We will consider
monitoring and reporting requirements for other crocodilians on a case-
by-case basis, because the conservation needs may vary by species or
population.
One commenter argued that we should require yacare caiman
monitoring data to be submitted annually instead of biennially and
should expand the list of the types of monitoring data required. We
believe that the final rule to reclassify the yacare caiman (65 FR
25867, May 4, 2000) adequately justifies reporting requirements for
range countries of the species.
What Are the Changes to Subpart A of 50 CFR Part 23--Introduction?
This subpart describes our responsibilities under CITES.
Scope (Sec. 23.2): This section consists of a table with a series
of questions and answers to help people determine if CITES regulations
apply to their proposed activities. Decisions involve whether a
specimen is listed under CITES, is exempt from CITES, is involved in a
type of international trade regulated by CITES, and was illegally
acquired or traded in contravention of CITES.
The possession and domestic trade of legal specimens are not
regulated by CITES unless the specimens had been traded internationally
under specific conditions of a CITES document and the conditions still
apply. The possession and domestic or international trade of illegally
imported specimens, however, are prohibited. Further, any possession of
offspring of illegal specimens is also considered illegal. A specimen
that has been traded contrary to CITES becomes contraband at the time
it enters the jurisdiction of the United States. If such a specimen
makes its way into the United States, the individual or business
holding or having control of the specimen has no custodial or property
rights to the specimen and, therefore, no right to possess, transfer,
breed, or propagate such specimens. Further, we clarify that intrastate
or interstate movement of specimens traded contrary to CITES involves
possession of unlawfully traded specimens and is, therefore,
prohibited. We note that these prohibitions are not new with this final
rule. The regulatory requirements for CITES specimens, including
possession, have been in place since 1977, and the statutory
prohibition has been in effect since July 1975.
More than 25 State fish and wildlife resource management agencies
and regional fish and wildlife agency associations endorsed our
inclusion of a series of questions to assist the regulated community in
determining when CITES applies to a proposed activity and our
clarification regarding intrastate and
[[Page 48406]]
interstate movement of specimens traded contrary to CITES.
One commenter expressed support for the provision making the
possession of and trade in illegally acquired specimens and their
offspring illegal and encouraged us to specify that requirement in more
detail in the regulation. However, another commenter expressed concern
regarding our position on the possession of and trade in offspring of
illegally imported specimens. The commenter also was concerned about
the possible harm to offspring caused by shipping them back to the
country of origin. We continue to maintain that any possession of
offspring of illegal specimens is considered illegal, and we will take
appropriate action when we become aware of such situations. However, we
consider the health and well being of a live specimen that has been
confiscated or forfeited to us in determining whether to place it in a
facility in the United States or return it to the country of origin.
Other applicable regulations (Sec. 23.3): In this section we
reference applicable regulations in other parts of subchapter B and
title 50, since many CITES species are covered by one or more other
laws. We also notify the public about the possible application of
State, tribal, and local regulations. More than 25 State fish and
wildlife resource management agencies and regional fish and wildlife
agency associations endorsed the addition of a new paragraph notifying
the regulated community of the additional requirement for complying
with State, tribal, and local requirements when engaging in activities
with CITES species.
Under Article XIV(1)(a) of the Treaty, each Party retains the right
to adopt stricter national measures that regulate or prohibit the
import, export, taking, possession, or transport of CITES species. More
restrictive State or local laws that regulate or prohibit the import,
export, or re-export of such species, or their parts, products, or
derivatives, must be observed for CITES species that are not listed
under the ESA. See H.J. Justin & Sons, Inc. v. Deukmejian, 702 F.2d 758
(9th Cir. 1983), cert denied, 464 U.S. 823. However, in instances where
a CITES species is also listed as endangered or threatened under the
ESA, any State or local law that would effectively prohibit the import
or export of, or interstate or foreign commerce in, specimens of such
species is void to the extent that such trade is authorized under the
ESA, its implementing regulations, or any ESA permit or exemption. See
16 U.S.C. 1535(f); Man Hing Ivory & Imports, Inc. v. Deukmejian, 702
F.2d 760 (9th Cir. 1983). One commenter disagreed with this assertion
and stated that it is contrary to the standard rules regarding the
relationship between State and Federal laws. Our statement reflects the
decision of the United States Court of Appeals for the Ninth Circuit in
the referenced case, which held that section 6(f) of the ESA, together
with an FWS regulation on African elephants (Loxodonta africana),
preempted a State prohibition on trade in African elephant products by
a trader who had secured all necessary Federal permits.
Definitions (Sec. 23.5): Whenever possible we define terms using
the wording of the Treaty and the resolutions. Most defined terms are
included in this section, but some less frequently used terms are
defined in the section in which they are used.
Definition of ``applicant'': Although one commenter believed that
we should define the term applicant here to be only a person who owns
the specimen(s) subject to trade, we have not defined applicant in this
part because the general permit regulations in 50 CFR 13.1 provide
sufficient guidance. An applicant must have a valid connection to the
transaction and be the person who is responsible for meeting the terms
and conditions of the permit. When a broker, attorney, taxidermist, or
other person applies for a permit on behalf of the owner of the
specimen, he or she must establish a connection to the transaction
through a contract or power of attorney and, along with the person
represented, becomes the party responsible for meeting the terms and
conditions of the permit.
Definitions of ``bred for commercial purposes'' and ``bred for
noncommercial purposes'': We defined these two terms as they relate to
the export and re-export of Appendix-I wildlife specimens. These
definitions are the result of in-depth discussions by the Parties over
the registration of commercial breeding facilities, which resulted in
the adoption of Resolution Conf. 12.10 (Rev. CoP13). The Treaty
provides in Article VII(4) that specimens of Appendix-I species bred in
captivity for commercial purposes shall be deemed to be specimens of
species included in Appendix II (see Sec. 23.46). It also provides in
Article VII(5) that specimens that are bred in captivity may be issued
an exemption certificate (see Sec. 23.41). Although the Treaty does
not use the term ``bred for noncommercial purposes'' in paragraph 5,
the Parties have agreed to use this term as the intended meaning of
Article VII(5) because Article VII(4) addresses bred for commercial
purposes. In Resolution Conf. 12.10 (Rev. CoP13), the Parties agreed to
strict definitions for these two terms. Facilities that are breeding
for commercial purposes must be registered to export specimens.
Facilities that are breeding for noncommercial purposes must be
participating in a cooperative conservation program with one or more of
the range countries for the species.
One commenter sought clarification on whether an Appendix-I animal
bred and raised on a U.S. game ranch, where efforts are being made to
conserve the species, would constitute a specimen bred for commercial
purposes. If the game ranch was conducting activities that would
categorize the facility as commercial (e.g., sale, purchase, or
exchange of animals resulting in an economic gain), then the animals
bred on the ranch would be considered bred for commercial purposes.
This would apply even if the game ranch were carrying out activities
that benefited the species within its natural range, such as
participation in a cooperative conservation program.
One commenter did not understand how any facility breeding
Appendix-I species could engage in noncommercial breeding activities.
The commenter believed that, due to the difficulty of distinguishing
between commercial breeding and noncommercial breeding, the FWS should
combine the two activities under a single bred-in-captivity definition
and require that all facilities breeding Appendix-I or -II species
become registered. We disagree. Since the Treaty does not prohibit or
control the commercial breeding of Appendix-II species, there is no
reason to establish a registration process for facilities breeding
Appendix-II species. We are confident that the application review
process established for the export of Appendix-II specimens is adequate
to provide the necessary oversight and control of commercial breeding
facilities for Appendix-II species. For Appendix-I species, the Treaty
makes a distinction between commercial and noncommercial breeding, and
the Parties have enacted resolutions to implement this distinction.
Consequently, these regulations outline the criteria for determining
when a breeding activity is commercial versus noncommercial, and
provide a mechanism to register commercial breeding operations with the
Secretariat. To eliminate any confusion and underscore the distinction
between commercial and noncommercial breeding, we have added a sentence
to the definition of ``bred for commercial purposes'' to clarify that
any captive-bred Appendix-
[[Page 48407]]
I specimen that does not meet the definition of ``bred for
noncommercial purposes'' is considered to be bred for commercial
purposes. For the same reason, we have made a minor amendment to the
definition of ``bred for noncommercial purposes'' to make it clear that
to qualify as noncommercial each donation, exchange, or loan of the
specimen must be noncommercial.
Definition of ``commercial'': Three commenters argued that the
definition of commercial is too broad and that it is inconsistent with
the definition of commercial activity in the ESA, which implements the
Convention. We disagree. The new regulatory definition is consistent
with the term defined in the ESA. The Convention regulates trade in
listed species, and commercial activity under the ESA relates to ``all
activities of industry and trade, including, but not limited to, the
buying or selling of commodities and activities conducted for the
purpose of facilitating such buying and selling.'' The definition of
commercial in Sec. 23.5 is also consistent with CITES Resolution Conf.
5.10, which explains that an activity should be considered commercial
if its purpose is to obtain an economic benefit, including profit, and
is directed toward resale, exchange, provision of a service, or other
form of economic use or benefit. The definition is also consistent with
the use of the term in Resolution Conf. 12.10. All CITES resolutions
that address commercializing a specimen focus on use of the specimen in
a manner that results in economic benefit.
A number of commenters provided specific examples of transactions
that they thought should qualify as noncommercial, such as purchase of
a specimen for scientific purposes at a yard sale or estate sale;
purchase from a person who is not a collector; or sale by a museum.
Determination of whether a specific use qualifies as commercial or
noncommercial must be made on a case-by-case basis taking into
consideration all of the facts and circumstances. However, we note
that, consistent with Resolution Conf. 5.10, the determination is
focused on the use of the specimen, not the nature of the transaction.
Trade may involve the exchange of some funds to compensate a party for
costs such as care and maintenance of a specimen, storage costs, or
taxidermy work, which themselves do not necessarily make the trade
commercial.
One commenter argued that for trade to be commercial, both parties
must have commercial interests. We disagree. Economic enrichment can
result when just the importer or just the exporter is obtaining an
economic gain or benefit from the trade. The definitions of commercial
and noncommercial in this part are used to distinguish trade and uses
of specimens for which commercial uses must be limited from those for
which commercial uses are not limited. The FWS cannot fulfill its
treaty responsibilities unless it examines all ways in which a specimen
can be commercialized.
One commenter argued that including a donation that is used as a
tax deduction as commercial in essence amends the Internal Revenue Code
and asserted that whether something is eligible for a tax deduction is
not a matter for the FWS to decide. We are not interpreting or amending
the Internal Revenue Code. We are not describing what may or may not be
eligible as a charitable contribution, but rather, we are fulfilling
our responsibility not to authorize uses of certain CITES specimens
that are primarily commercial in nature. Although we believe that in
some cases a tax deduction may qualify as an economic gain or benefit,
we have removed the phrase, ``or tax benefits'' from this definition,
to eliminate confusion. See also our responses to comments received on
Sec. 23.55.
One commenter also challenged that part of the definition that
applies to the intended, as well as the actual, use of the specimen.
Determinations under CITES cannot be limited to the current, immediate
action being taken with the specimen, but may also require
consideration of subsequent actions that the person intends to take at
the time of the determination. For example, a person may be personally
importing a specimen in a manner that at first appears to be
noncommercial, but if there is evidence to show that the person intends
to sell the specimen and obtain a profit once the specimen is located
within the United States,then the purpose is commercial. The definition
is written to make clear that the FWS looks at all actions that the
person intends to take involving the specimen, not simply the current,
most immediate action.
Definitions of ``household effects'' and ``personal effects'': One
commenter supported our definitions of household effect and personal
effect to mean only dead wildlife or plant specimens.
Definition of ``introduction from the sea'': We define this term
with the language in Article I(e) of the Treaty. Over the last few
years, a number of important events have occurred related to
introduction from the sea. At CoP11 and CoP13, the Parties considered
proposed resolutions on introduction from the sea and were unable to
reach consensus on a definition. At CoP12, the Parties agreed to look
at marine issues, including introduction from the sea, in consultation
with the Food and Agriculture Organization of the United Nations (FAO).
In May and June of 2004, FAO convened two Expert Consultations to
consider introduction from the sea and other issues related to marine
species covered by CITES. At CoP13, the Parties agreed to convene a
workshop on introduction from the sea, taking into account the work
done through FAO and the relevant documents and discussions from
previous CoPs. The workshop was held in November - December 2005. The
CITES Secretariat has prepared a document on introduction from the sea,
based on discussions at the workshop, for consideration by the Parties
at CoP14, to be held in June 2007. We recognize that the Parties may
decide on an interpretation of introduction from the sea in the future,
but in the meantime the regulations clarify when the prohibition
applies, and when and what types of CITES documents are needed for
international trade.
One commenter suggested that we adopt the definition of ``the
marine environment not under the jurisdiction of any State'' agreed by
the 2005 workshop. This definition, although agreed by the workshop, is
still under discussion in CITES and will be considered by the Parties
at CoP14. We believe it is likely that changes will be made to the
definition at the CoP and that it would be premature for us to adopt a
definition before it has been accepted by the Parties.
Definition of ``parental stock'': Based on the language in
Resolution Conf. 9.19 (Rev. CoP13) on nursery registration and
Resolution Conf. 12.10 (Rev. CoP13) on registration of operations that
breed Appendix-I wildlife for commercial purposes, we use the term
``parental stock'' to mean the original breeding or propagating
specimens that produced subsequent generations of captive or cultivated
specimens. Two commenters supported our definition.
Definition of ``precautionary measures'': When there is uncertainty
regarding the status of a species or the impact of trade on the
conservation of a species we are cautious and act in the best interest
of the conservation of the species in making decisions on CITES
listings and permit findings. We define and use the term
``precautionary measures'' to describe this approach. While the
definition is taken from the concept described in Annex 4 of Resolution
Conf. 9.24 (Rev. CoP13), we use it in these regulations because it
describes the way we have always
[[Page 48408]]
approached non-detriment findings and species listing decisions when
there is uncertainty regarding the status of a species or the impact of
trade on the conservation of a species. The use of precautionary
measures in these instances is consistent with the intent of the
Treaty, which is to protect species against over-exploitation. Several
commenters supported our definition of precautionary measures. One
asked that we provide additional clarification on what information we
will use to determine whether or not to issue a permit. Section 23.33
addresses the process we use when evaluating an application. In
addition, Sec. Sec. 23.60, 23.61, and 23.62 address the processes for
making the required findings under CITES. We direct the commenters to
those sections for more detailed discussion on how we implement the use
of precautionary measures.
Definition of ``ranching'': We have not defined this term. At
CoP13, the Animals and Plants Committees (committees established by the
Parties to provide technical support to the Parties and to the
Secretariat) were tasked with looking at production systems, including
the consideration of source codes, which include ``R'' for ranching.
This work is still ongoing. One commenter suggested that we develop a
working definition of ranching until the Parties come to an agreed
definition. We believe that it would be premature, and result in
additional confusion, to adopt a definition before the production
systems discussions are concluded.
Definition of ``readily recognizable'': We base our definition of
readily recognizable on Resolution Conf. 9.6 (Rev.). Two commenters
supported our definition.
Definition of ``sustainable use'': We define this term as the use
of a species in a manner and at a level that maintains wild populations
at biologically viable levels for the long term. It is essentially the
same definition used in 50 CFR part 15 to implement the WBCA. The
wording has been slightly edited to be consistent with language used in
these regulations.
We believe that sustainable use is the essence of a CITES non-
detriment finding, and these regulations provide a clear,
scientifically based definition of the term. An exporting country can
make a finding of non-detriment only if it can show that a given level
of harvest is consistent with the long-term viability of the species.
This finding must be based on professionally recognized management
practices and the best available biological information. The Parties
adopted Resolution Conf. 12.8 (Rev. CoP13), which provides for review
of significantly traded species, to ensure that countries exporting
those species have made the appropriate findings and the export levels
are sustainable. Countries with species subject to this review must
demonstrate the scientific basis for the quantity of exports they are
allowing. (See preamble discussion on non-detriment findings (Sec.
23.61)). Three commenters supported our definition of sustainable use.
One commenter believed that it was unnecessary for us to state in
the preamble to the 2006 proposed rule (71 FR 20167) that sustainable
use can include adaptive management but that, ``adaptive management
does not...imply that when there are gaps in information the assumption
would be that trade would be sustainable.'' Our intent is not to
minimize the value of adaptive management. However, adaptive management
is not the only information considered when determining if trade would
be sustainable. When making non-detriment findings, we will consider
all relevant biological and trade information (see Sec. 23.61).
One commenter agreed with us that sustainable use is the essence of
a CITES non-detriment finding. However, the commenter noted that not
all permit applications are for activities that have an impact on wild
populations. We agree and take this into consideration when making non-
detriment findings. Even if a specimen is considered captive bred under
the Treaty, certain conditions must be met, including that the founder
stock was acquired legally and in a manner non-detrimental to the
survival of the species (see Sec. Sec. 23.46, 23.63).
One commenter stated that certain phrases in our definition could
be interpreted in multiple ways, and asked us to provide additional
discussion of several phrases, including ``biologically viable,''
``long term,'' and ``role or function in its ecosystem.'' We do not
believe that these phrases require additional clarification because
they are concepts that are inherent to conservation and wildlife
management. Furthermore, they are not defined in the Treaty or in
resolutions agreed by the Parties. We use these concepts for guidance
in making non-detriment findings.
Definition of ``traveling exhibition'': We revised the definition
of traveling exhibition for clarity, in response to comments received
(see preamble discussion for Sec. 23.49).
Management and Scientific Authorities (Sec. 23.6): Under Article
IX of the Treaty, each Party must designate at least one Management
Authority and one Scientific Authority. In the United States, the
Secretary of the Interior is designated as the CITES Management
Authority and Scientific Authority, and these authorities have been
delegated by the Secretary and the Director of the FWS to different
offices within the FWS. This section summarizes the major roles of
these authorities in the United States. The roles include a wide range
of activities, such as the issuance and denial of permits; making
scientific and management findings; monitoring of trade and trade
impacts; communication with the Secretariat and other countries on
scientific, administrative, and enforcement issues; and evaluation of
species' status and trade. Another role is to provide training and
technical assistance to countries when possible (Resolution Conf. 3.4).
Although other Federal agencies, as part of a larger federal
involvement in international affairs, also play a role in CITES
efforts, for example in communicating with the Secretariat and
representing the United States at CITES meetings, they are not part of
the Management Authority or the Scientific Authority for the United
States.
A number of State fish and wildlife resource management agencies
noted that the inclusion of this section summarizing the major roles of
the Management and Scientific Authorities was very useful to the
regulated community. Additionally, some of these commenters remarked on
the need to clarify the process by which a non-Party designates
competent authorities to fulfill the role of a Management and
Scientific Authority to engage in international trade in CITES species.
We decline to make a change in response to this comment because this
section is intended to outline the roles of a Management Authority and
a Scientific Authority rather than outline the process by which they
are designated.
Contact information (Sec. 23.7): The table in this section
outlines the type of information available from the U.S. Management
Authority, U.S. Scientific Authority, the FWS Office of Law
Enforcement, APHIS, CBP, and the Secretariat, and the different ways
you can contact each office. APHIS is the contact office for
information on plant clearance procedures even though the formation of
CBP split CITES responsibilities for import and export of plants. CBP
inspects and clears shipments of dead CITES plant materials being
imported into the United States and live plants being imported from
Canada at a designated border port. CBP also identifies and regulates
CITES materials in passenger baggage, including live plants. APHIS
[[Page 48409]]
continues to inspect and clear shipments for the export and re-export
of live and dead plants, and the import of live plants, except for live
plants being imported from Canada at a designated border port.
One commenter noted the absence in this section of the contact
information for the appropriate office in the U.S. Department of
Agriculture for live animal clearance procedures. Another commenter
suggested that we include contact information in this section for APHIS
Veterinary Services, National Center for Import and Export (NCIE), and
the Centers for Disease Control (CDC) because imports of live wildlife
and wildlife products may also be regulated by these offices. The
commenter pointed out that this information would be useful to the
large number of pet bird owners who travel into and out of the United
States with their pet birds. Since neither NCIE nor the CDC has direct
responsibility for the inspection or clearance of shipments of live
CITES specimens, we have declined to include their contact information
in this section.
Information collection (Sec. 23.8): Each information collection,
including each application form, that we use must be reviewed and
approved by the Office of Management and Budget under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.). These information collections
undergo review every 3 years. This process gives the public an
opportunity to provide input concerning the amount of time it takes to
complete the forms and reports and to prepare the information
requested. One commenter mistakenly thought that our estimate for the
amount of time it takes to complete an application was an estimate of
the length of time it takes to obtain a permit.
What Are the Changes to Subpart B of 50 CFR Part 23--Prohibitions,
Exemptions, and Requirements?
In this subpart, we detail the activities that are prohibited,
circumstances when exemptions may apply, and requirements for
international movement of specimens. CITES uses a system of documents
to ensure that trade in protected species is legal and does not
threaten the survival of wildlife or plant species in the wild. The
Treaty outlines standardized information that must be included on these
documents, and based on experience in inspecting shipments and
enforcing CITES, the Parties have adopted a number of resolutions to
refine the types of information that need to be included on documents
for Parties and non-Parties.
Prohibitions (Sec. 23.13): This section implements the
international trade prohibitions under CITES. We list introduction from
the sea separately from import to clarify that CITES treats these
activities differently. We include the phrase ``engage in international
trade'' in the list of prohibitions to clarify that international trade
in specimens in violation of these regulations by any person subject to
U.S. jurisdiction is prohibited even if specimens are not actually
imported into or exported from the United States.
The regulatory language is derived from the language in section
9(c)(1) of the ESA, which makes it unlawful for any person subject to
the jurisdiction of the United States to engage in trade contrary to
the provisions of CITES. The ESA does not limit this prohibition to
import into or export from the United States, but further requires U.S.
citizens, and others subject to U.S. jurisdiction, engaging in trade
outside of the United States to abide by CITES requirements as a matter
of U.S. law. Although this activity may be difficult to detect, we will
take enforcement action when appropriate.
Three commenters expressed their support for the clarification in
Sec. 23.13 that trade in violation of the regulations by a person
subject to U.S. jurisdiction is prohibited even if the specimen is not
imported into or exported from the United States. They noted that this
will ensure that actions by U.S. citizens do not undermine the purposes
of CITES outside the United States. One commenter opposed this part of
the section, stating that it was contrary to elemental principles of
national jurisdiction to hold a U.S. citizen legally responsible for
conducting an activity outside the United States that is a violation of
U.S. law when the activity is consistent with the law of the foreign
country.
As long as a U.S. citizen engages in trade in a CITES specimen
outside the United States consistent with all the requirements of CITES
and the foreign countries' domestic laws implementing CITES, it would
not be a violation of U.S. law. Section 9 of the ESA makes clear that
citizens of the United States have a responsibility to comply with all
applicable CITES procedures when they engage in trade in CITES
specimens outside the United States. Given that 171 countries are
parties to CITES, a U.S. citizen trading a CITES specimen between two
foreign countries is likely to need CITES documentation from one or
both of those countries. Failure to obtain and present the required
CITES documentation would be a violation of the ESA.
One commenter was concerned with our response in the 2006 proposed
rule (71 FR 20167) to a previous comment that an applicant's failure to
provide adequate documentation showing legality of a specimen, while
not necessarily evidence that the specimen was traded contrary to
CITES, might prevent us from making the required findings or being able
to issue the necessary CITES documents for subsequent import, export,
or re-export. The commenter suggested that the FWS establish procedures
or describe the kinds of evidence we will accept in lieu of positive
documentation.
We have not specified the type of documentation that an applicant
must present in order for us to make necessary findings and issue the
required documents because it is not possible to describe the full
variety of information that could be used to show that a proposed
activity is consistent with CITES requirements. In each case, the
applicant must present enough information to allow the FWS to make the
required determination, but the source of this information and the
level of detail needed to make the finding will vary. See Sec. 23.34
for more detail.
Personal and household effects (Sec. 23.15): Article VII(3) of the
Treaty provides for the import, export, or re-export of specimens that
are personal or household effects without CITES documents under certain
circumstances. We clarified the current regulations (Sec. 23.13(d))
based on our experience in administering the Convention and Resolution
Conf. 13.7. This section details the circumstances under which a person
may travel with personal items of CITES wildlife and plants worn as
clothing or accessories, or contained in accompanying luggage without
CITES documents. It also details how a person may move personal items
of CITES wildlife and plants from one country to another as part of a
change of residence. We defined personal effect and household effect in
Sec. 23.5. We clarified that we consider qualifying tourist souvenirs
to be personal effects.
Six commenters supported, in general, the clarification regarding
personal and household effects, and several of those commenters
supported specific provisions regarding Appendix-I and live specimens.
They believed the clarification would help prevent abuses of the
personal and household effects exemption. Three commenters, however,
urged us to ease restrictions on individuals traveling with legally
acquired CITES species. Although the commenters did not provide
specific suggestions, we note that these regulations already provide an
[[Page 48410]]
exemption from CITES documentation for many individuals traveling with
legally acquired CITES specimens. Another commenter believed that the
trade in specimens under the exemption for personal and household
effects creates a loophole that may adversely impact imperiled species.
We disagree that this exemption has an adverse effect on listed taxa.
As noted above, Article VII(3) provides for this exemption under
certain circumstances, and the Parties have adopted additional
guidelines through resolution.
In Resolution Conf. 13.7, the Parties agreed not to require CITES
documents for personal or household effects of dead specimens, parts,
products, or derivatives of Appendix-II species unless a Party requires
a CITES document. Parties are to notify the Secretariat if they require
CITES documents for personal and household effects, and the Secretariat
will maintain a list on the CITES website (see Sec. 23.7). Importing
countries would generally assume that an export permit is not required
if the exporting country had not notified the Secretariat otherwise.
For species covered by the Lacey Act Amendments of 1981, however, the
United States requires an export permit if such a permit is required by
the other Party involved in the trade, even if the Party had not
notified the Secretariat of the requirement. It is the responsibility
of the importer to consult with the exporting country to determine
whether an export permit is needed in such instances. One commenter
believed the United States should impose stricter measures and require
CITES documents for all personal and household effects. Such a
requirement would be burdensome and provide little conservation value
in most cases. Therefore, we declined to make a change based on this
suggestion. However, these regulations allow for stricter measures
under other U.S. laws (e.g., the ESA) for those species that warrant
greater scrutiny. We believe this will allow for greater oversight when
there appears to be a conservation value in doing so.
One commenter requested that we provide clarification regarding the
restrictions imposed by the Lacey Act Amendments of 1981 and notify
other CITES Parties of this requirement. The commenter also argued that
the Lacey Act covered all foreign CITES species. We state in Sec.
23.15(b) that the personal and household effects exemption does not
apply if the country prohibits or restricts the import, export, or re-
export of the item. In addition, we state that a personal or household
effects shipment must be accompanied by any document required by a
country under its stricter national measures. Both ofthese restrictions
are imposed upon shipments because of our obligations under the Lacey
Act Amendments of 1981 to provide support for other countries' stricter
measures, and actions may be taken based upon information received from
those countries about such restrictions.
For certain species, the Parties also agreed to numerical limits of
specific types of specimens that qualify as personal and household
effects. These specimens include sturgeon caviar, seahorses,
crocodilian products, giant clam and queen conch shells, and cactus
rainsticks. We note that if someone wants to import, export, or re-
export more than the quantity designated in the regulations, the
specimens no longer qualify for the personal effects exemption, and
they must be accompanied by a valid CITES document for the entire
quantity.
One commenter supported our efforts to enforce the quantity
limitations and agreed that when the quantities exceed the limit, a
CITES document is required for the entire quantity.
We exclude live wildlife and plants (including eggs and non-exempt
seeds) and most Appendix-I specimens from the exemption. The drafting
history of CITES, as well as significant debate that occurred at CoP4,
clearly supports the view that this exemption applies only to dead
items, such as clothing or jewelry, that are for personal use and are
not for resale. In addition, few countries allow the import or export
of Appendix-I specimens, including personal pets, without CITES
documents. In the United States, many Appendix-I species are also
listed under the ESA and other laws that do not provide an exemption
for personal or household effects. Therefore, to assist in the
enforcement of the Convention and to reduce the risk to Appendix-I
species in the wild, and so not to create conflicts with U.S. laws, we
require CITES documents for all Appendix-I specimens, except for
certain worked items made from African elephant ivory (see Sec.
23.15(f)). One commenter requested clarification as to whether
Appendix-I species could qualify for the personal or household effects
exemption, and if so, indicated that they should only be pre-
Convention. Section 23.15(d)(2) states that no specimens from an
Appendix-I species are included except for certain worked African
elephant ivory. Section 23.15(f) on worked African elephant ivory
states that the ivory must be pre-Convention.
We clarify that personal effects must be personally owned by the
traveler for exclusively noncommercial purposes, the quantity and
nature be reasonably appropriate for the purpose of the trip or stay,
and either be worn as clothing or accessories or be part of
accompanying personal baggage. We believe this requirement provides
additional assistance to inspectors at the port when determining
whether items are personal effects or are commercial items that a
person is attempting to import without CITES documents under the
exemption.
We have encountered a number of instances, both in the United
States as well as abroad, when individuals have had souvenirs or other
items seized when these items were mailed or shipped to them. Although
these could be considered items for personal use, the CITES exemption
does not apply unless the specimens accompany the individuals.
We clarify that household effects must be personally owned items
that are part of a noncommercial household move. A shipment may contain
only items acquired before the individual moves. It may not include
items purchased, inherited, or otherwise acquired after the person has
moved, even though the household goods have not yet been shipped.
We understand that sometimes it is not possible to ship household
goods all at one time. Thus, we allow a person to make as many
shipments as needed to accomplish the move as long as they occur within
1 year of the person's change in residence. A person is not precluded
from shipping his or her household effects after 1 year, although such
a shipment would require the appropriate CITES documents.
Two commenters believed that allowing 1 year after a move from one
country to another to import or export household effects was too long,
and allowed for potential abuse of the system. Based upon years of
experience with CITES household moves, which have previously had no
timeframe under U.S. regulations, we believe the 1-year timeframe is
reasonably appropriate for completing the shipment of household goods
to a new residence while preventing abuse of the exemption.
The AECA and ESA include stricter U.S. legislation concerning
international trade in African elephant ivory. We allow U.S. residents
to travel out of and return to the United States with pre-Convention
worked African elephant ivory as personal or household effects under
certain conditions, including that the items are registered.
Registration consists of obtaining a U.S. CITES pre-Convention
certificate, FWS Wildlife
[[Page 48411]]
Declaration (Form 3-177), or CBP Certificate of Registration for
Personal Effects Taken Abroad (Form 4457). This exemption is limited to
ivory already owned in the United States and is not a special
opportunity for trade. Upon re-import, travelers must show records that
the ivory is pre-Convention and that they registered it before leaving
the United States. The exemption does not include items that are
purchased while abroad or intended as gifts. We adopted the same
definition of raw ivory as found in the special rule concerning African
elephants in 50 CFR 17.40(e), which is similar to the definition found
in Resolution Conf. 10.10 (Rev. CoP12). Individuals should contact the
Management Authority in the country of their destination to find out
about its requirements for African elephant ivory.
One commenter did not support this exemption because of concerns
regarding the illegal trade in ivory. The commenter believed the
exemption sets a bad precedent and should be deleted. We believe that
the measures we have put in place, including registration of personally
owned pre-Convention worked African elephant ivory before leaving the
United States, provide sufficient safeguards.
Urine, feces, and synthetically derived DNA (Sec. 23.16):
International trade in these specimens is exempt from CITES
requirements under certain circumstances. We consider samples of urine
and feces to be wildlife byproducts, rather than parts, products, or
derivatives. We differentiate between DNA extracted directly from blood
or tissue samples and synthetically derived DNA. DNA extracted directly
from blood and tissue samples must comply with all CITES permitting
requirements. We do not believe that trade in urine, feces, and
synthetically derived DNA samples will adversely affect the
conservation of, or effective regulation of trade in, CITES species and
their parts, products, or derivatives.
At CoP12 and CoP13, there were proposals to annotate the Appendices
to exempt these types of samples. The proposals were withdrawn. It
should be noted, however, that some Parties do not agree that these
specimens should be exempt from CITES controls. If a country requires
CITES documents, we will process an application for these specimens.
Three commenters generally supported and two commenters generally
opposed the exemption for urine, feces, and synthetically derived DNA
in Sec. 23.16. One commenter agreed that urine and feces should be
exempt, but wanted to see a statement to ensure that collection methods
for urine or feces posed no harm to listed species. Two commenters
expressed concern about the exemption because of the potential need to
capture and restrain listed species to collect samples. We have
exempted urine and feces from CITES requirements and will therefore not
require a statement on collection method. However, as noted in the 2006
proposed rule (71 FR 20167), we believe that it is important that
researchers collect samples in a manner that does not harm the wildlife
and complies with the laws of the country where the collection occurs.
Researchers should contact the foreign Management Authority or other
relevant wildlife authorities to obtain information on collection and
export requirements prior to collection of urine or feces. Another
commenter endorsed the exemption and described non-CITES restrictions
placed on U.S. researchers regarding collection of these samples. The
commenter added that such research oversight is also prevalent in other
countries, often through legislation.
One commenter said that the United States should resist
promulgating regulations that are more lenient than those agreed to by
the Parties and noted that there is no resolution that provides for
this exemption. In the 2006 proposed rule (71 FR 20167), we noted that
the Parties have not agreed on whether urine, feces, or synthetically
derived DNA are regulated by CITES. Where there is a lack of clarity or
no agreement, the United States is left to make its own interpretation
of the provisions of the Treaty. In our view, these are byproducts and
are not recognizable parts or derivatives as defined in Article I of
the Treaty. The commenter was also concerned that this exemption could
lead to illegal trade in non-synthetic DNA labeled as synthetically
derived DNA. We note that this exemption reflects a practice of the FWS
that has been in effect since 1994. We have received no information to
indicate that this practice has led to an increase in illegal trade in
falsely declared DNA, nor do we expect this to occur in the future.
One commenter asked whether ambergris was covered under the
provisions of either CITES or the MMPA. Because it is a byproduct, we
do not consider ambergris to be covered by CITES provisions. The
applicability of MMPA provisions to trade in ambergris is outside the
scope of this rule.
Diplomats and other customs-exempt persons (Sec. 23.17): CITES
Decision 9.15 urges the Parties to remind their diplomatic missions,
their delegates in foreign countries, and their troops serving under
the flag of the United Nations that they are not exempt from the
provisions of the Convention. In these regulations we remind all
persons who receive duty-free or inspection exemption privileges that
CITES specimens traded internationally must meet the requirements of
CITES and these regulations. One commenter strongly supported the
requirement for CITES documentation even if a person receives duty-free
or inspection waiver privileges. The commenter further emphasized that
U.S. officials have the legal authority to confiscate specimens of
CITES species if a diplomat attempts to import or export them, or
transit through the United States with them, without appropriate
documentation.
Required CITES documents (Sec. Sec. 23.18-23.20): Articles III,
IV, and V of the Treaty outline the types of documents that must
accompany Appendix-I, -II, or -III specimens in international trade.
Article VII and Article XIV of the Treaty recognize exemptions for
certain specimens, such as those that qualify as pre-Convention, bred
in captivity, or artificially propagated. Generally, these specimens
must be accompanied by CITES exemption documents. The regulations
remind people who trade in wildlife and plants to check with the
Management Authorities of all countries concerned to determine their
requirements before importing, introducing from the sea, exporting, or
re-exporting CITES specimens.
We organized the information on what types of CITES documents are
required into two decision trees and two tables. The decision trees and
tables should make it easier for importers and exporters to understand
what type of document is needed for a shipment. They refer the user to
the section in the regulations that explains the application
procedures, general provisions, issuance and acceptance criteria, and
conditions for each type of document. One commenter agreed with this
approach and stated that the decision trees and tables in these
sections were extremely useful.
One commenter supported the statement in Sec. 23.20(f) that an
introduction-from-the-sea certificate must be obtained before
conducting the proposed activity and the clarification that
international trade following introduction from the sea is considered
an export, not a re-export.
Another commenter expressed concern that the document requirements
for Appendix-III specimens that originate in a country other than the
listing country are not clear. We have addressed this comment under the
preamble discussion pertaining to certificates of origin (Sec. 23.38).
[[Page 48412]]
Export of Appendix-I wildlife (Sec. 23.18): The decision tree
clarifies that international trade in Appendix-I wildlife may not be
for commercial purposes when permits are issued under Article III of
the Treaty. Article II of the Treaty states that Appendix-I specimens
``...must be subject to particularly strict regulation in order not to
endanger further their survival and must only be authorized in
exceptional circumstances.'' The Parties have agreed that Appendix-I
wildlife specimens should not be traded for commercial purposes unless
the specimens originated from a CITES-registered commercial breeding
operation. In the past, the FWS has allowed commercial breeders of
Appendix-I wildlife to export specimens that have been sold to
individuals outside the United States provided that the Management
Authority of the importing country can make a not-for-primarily-
commercial-purposes finding and issues an import permit. After review
of this type of trade, we do not believe that Article III of the Treaty
was intended to allow such commercial trade. Thus, we no longer allow
the use of Article III of the Treaty to export Appendix-I wildlife
unless the export is for noncommercial purposes. We also allow the
export of Appendix-I wildlife that qualifies for an exemption under
Article VII(4) and (5) as bred in captivity only if the specimen was
bred at a CITES-registered breeding operation or was bred for
noncommercial purposes, respectively. Other captive-bred Appendix-I
wildlife will be given a source code ``F,'' rather than a ``C,'' and
the export will be allowed only if the export is for noncommercial
purposes and an import permit has been granted.
One commenter thought that the use of the double negative in the
decision tree for export of Appendix-I wildlife in Sec. 23.18 leads
the casual reader to assume that noncommercial trade is not allowed.
The purpose of the decision tree is to walk the reader through the
requirements for trading in Appendix-I specimens under different
scenarios, and it is important to read it through in full.
Two commenters strongly supported the requirement that to qualify
for an exemption under Article VII(4) and (5) as bred in captivity, the
specimen must have been bred at a CITES-registered facility or bred for
noncommercial purposes. However, one of these commenters questioned how
the terms ``not primarily commercial'' and ``noncommercial purposes''
were used. See the discussion regarding the definition of
``commercial'' in Sec. 23.5.
Reservations (Sec. 23.21): Articles XV, XVI, and XXIII of the
Treaty allow a Party to take a reservation on a species listing in
Appendix I, II, or III. Generally, a reserving Party is treated as a
non-Party with respect to trade in the reserved species. Countries that
choose not to recognize a listing and take a reservation may continue
trading in the species without CITES documents with other Parties that
have taken the same reservation or with non-Parties, provided such
shipments do not transit a Party country. Trade with Parties that have
not taken the same reservation requires CITES documents.
This section emphasizes what types of documents are required from
Parties that have taken a reservation on a species listing. We
incorporated Resolution Conf. 4.25, which recommends that, when a
species is newly listed in Appendix I or is transferred from Appendix
II to Appendix I, Parties that take a reservation issue a CITES
document and treat the species as if it were listed in Appendix II,
rather than not listed, when trading with other reserving Parties or
non-Parties. This provision should promote the conservation of species
listed in Appendix I because the reserving Party would continue to
issue CITES documents based on legal acquisition and non-detriment
findings, and report such trade in its annual report. We also
incorporated Resolution Conf. 9.7 (Rev. CoP13), which clarifies the
requirements in the Treaty that a shipment containing specimens of
CITES species traded between non-Parties or reserving Parties or
between a non-Party and a reserving Party must be accompanied by CITES
documents if it transits a Party country before reaching its final
destination.
We explain how a person can provide relevant information and
request that the United States consider taking a reservation.
Additionally, we note that if the United States entered a reservation
to the listing of a species in Appendix I, we will require a CITES
document that meets Appendix-II permit criteria for international trade
in specimens of that species. To date, the United States has not taken
a reservation. Entering a reservation would do very little to relieve
importers in the United States from the need for foreign export permits
because the Lacey Act Amendments of 1981 make it a Federal offense to
import into the United States any animal taken, possessed, transported,
or sold in violation of foreign conservation laws. If the foreign
country has implemented CITES through its domestic legislation and has
not taken a reservation with regard to the species, the United States
would continue to require CITES documents as a condition of import. A
reservation by the United States also would provide exporters in this
county with little relief from the need for U.S. export documents.
Unless the receiving country had entered the same reservation or was a
non-Party, U.S. exporters would continue to be required to obtain
CITES-comparable documents because the Parties have agreed to trade
with non-Parties and reserving Parties only if they issue permits and
certificates that substantially conform with CITES requirements and
contain the required information outlined in Resolution Conf. 9.5 (Rev.
CoP13).
One commenter argued that the United States should prohibit all
trade in Appendix-I species involving non-Parties or Parties with a
reservation if that trade involves a U.S. citizen or if the specimen is
to be imported into, exported from, or otherwise transit a U.S. port.
We believe that this comment is adequately addressed in the 2006
proposed rule (71 FR 20167), and refer the commenter to that document
for further clarification.
In-transit (Sec. 23.22): Due to limited transportation routes and
schedules, exporters and re-exporters may not always be able to ship
specimens from one country directly to another without transshipping
them through intermediary countries. Shipments of sample collections
may transit a number of countries before returning to the originating
country. Article VII(1) of the Treaty provides an exemption for
specimens that are in transit through a country while the specimens
remain under customs control. We define an in-transit shipment as the
transshipment of any wildlife or plant through an intermediary country
when the specimen remains under customs control and meets either the
requirements of this section or the requirements in Sec. 23.50 for
sample collections covered by an ATA carnet. In-transit shipments,
other than sample collections (Sec. 23.50), may stay in an
intermediary country, including storage in a duty-free, bonded, or
other kind of warehouse or a free-trade zone, only for the time
necessary to transfer the specimens to the mode of transport used to
continue to the final destination.
In 1983, the CoP recognized the potential for abuse of the in-
transit provision, such as when importers claimed the exemption and
delayed shipment of the transiting specimen while they found a buyer in
a foreign country. In 1989, the CoP noted that, if valid CITES export
documents were required to accompany shipments
[[Page 48413]]
through intermediary countries, Parties could discover illegal trade by
drawing attention to undocumented shipments. The inspection of in-
transit shipments was recommended in 1992. Resolution Conf. 9.7 (Rev.
CoP13) consolidates the earlier resolutions concerning in-transit
shipments.
These regulations reflect the recommendations of the CoP to prevent
misuse of the in-transit exemption. A copy of the valid original
document may be used for in-transit shipments. However, transshippers
should be aware that, if shipments are not accompanied by an original
CITES document, intermediary countries could delay movement of the
shipment while they determine whether a copy is an accurate copy of the
original valid document. If we have reason to question an accompanying
copy, we will contact the Management Authorities in the countries of
export or re-export and final destination.
The CITES document must designate the name of the importer in the
country of final destination. The shipment must also be accompanied by
a copy of a valid import permit for Appendix-I specimens, where
required, and transportation routing documents that show that the
shipment has been consigned to the importer listed on the CITES
documents.
A shipment that contains specimens of CITES species protected under
other U.S. regulations, such as migratory birds, bald and golden
eagles, injurious wildlife, endangered or threatened species, or marine
mammals, and arrives in the United States before continuing on to
another country is considered an import and must meet all import
requirements.
One commenter stated that the regulations should require a ``firmer
control of original CITES documents by carriers.'' The commenter
suggested that the carrier should permit the shipment to be held at the
destination for no additional charge when the documents are lost by the
carrier. The scope of these regulations does not address how carriers
control shipping documents or the charges that are assessed by carriers
for storage of shipments pending clearance. One commenter suggested
that we include a statement that all in-transit wildlife shipments of
CITES species must comply with IATA regulations. As stated in Sec.
23.26, all shipments, including in-transit shipments, must meet the
IATA requirements. Therefore, we believe it is unnecessary to restate
that in-transit shipments must comply with the humane transport
requirements.
Required information on CITES documents (Sec. 23.23): This section
details what information must be included on CITES documents. It
applies not only to documents issued by the United States, but also to
those issued by other Parties and non-Parties. Article VI of the Treaty
provides basic requirements for CITES documents for import,
introduction from the sea, export, and re-export. At the first CoP, the
Parties recognized the importance of having standardized documents.
They also recognized that the process of developing the standards would
be a continuous one. The resolution on permits and certificates has
been revised at CoPs 2, 3, 7, 9, 10, 11, 12, and 13. The resulting
comprehensive resolution (Resolution Conf. 12.3 (Rev. CoP13)) provides
guidance on all aspects of CITES documents.
Two commenters had concerns regarding our response in the preamble
to a comment stating that ``documents that do not contain the required
information may be considered invalid and rejected by any Party.'' One
commenter requested clarification of specifically what would trigger a
rejection by the FWS, and the other commenter indicated that the
statement was too ambiguous and left too much discretion to the port
official. Section 23.23 of the rule details the information required on
a permit, and Sec. 23.26 provides guidance on when we consider a U.S.
or foreign CITES document to be valid.
Most of the information in this section is presented in a series of
tables, organized alphabetically by required information, code, or type
of document. This format should help those shipping and receiving
specimens to understand what information is needed on CITES documents.
A number of commenters appreciated the inclusion of this section, and
stated that it would provide a ``valuable addition to the regulated
community.''
CITES forms (Sec. 23.23(b)): This section states that CITES
documents issued by a Party must be on a form printed in one or more of
the three working languages of CITES (English, French, or Spanish). One
commenter stated that, to ensure that our customs and wildlife
inspectors are able to understand all statements made on the face of a
CITES document, we should require that all CITES documents for
shipments coming into the United States be printed in English only.
Similarly, the commenter stated that each Party should designate one of
the three working languages in which all CITES documents accompanying
shipments into that Party's country should be printed. While we agree
that having English as the only language appearing on incoming
documents would be easier for our inspectors, CITES allows for
documents to be printed in any of the three working languages and we
cannot regulate the activities of foreign countries through our
domestic regulations.
Required information (Sec. 23.23(c)): One commenter raised a
concern that, while the customs declaration label that is required on
the outside of a container of CITES specimens moving from one
registered scientific institution to another registered scientific
institution (Sec. 23.48(e)(5)) may constitute a CITES document, it is
unlike other CITES documents with regard to the information it must
contain. We agree with the commenter that, like phytosanitary
certificates, the customs declaration label must contain specific
language and information that is not the same as what is required on
other CITES documents. We have amended the language in Sec. 23.23(c)
to exclude these labels.
Bill of lading or air waybill (Sec. 23.23(c)(3)): Although a
suggestion was made after we first proposed these regulations in 2000
to require that the air waybill or bill of lading information appear on
the face of CITES documents, we declined to make this mandatory because
the specific information is not always known at the time the CITES
document is validated. One commenter on the 2006 proposed rule (71 FR
20167) supported this approach, agreeing that such information is not
always available.
Dates (Sec. 23.23(c)(4)): Over the years, we have received many
questions about the ``valid until'' date. In this final rule, we
clarify that the validity of a document expires at midnight (local time
at the place of presentation) on the date indicated on the document.
All activities, including but not limited to transport and presentation
for import, must be completed before that time. One commenter expressed
a concern that, due to situations beyond an importer's control, such as
delayed transport or prolonged customs procedures, shipments may not
arrive prior to the expiration date of a document. The commenter argued
that, if an importer allows a reasonable period of time for the
shipment to arrive in the United States, the documents should be
accepted regardless of the expiration date. We cannot accept this
suggestion. The Treaty establishes the period of validity for some
documents, and the Parties, through resolution, have established a
specific time period for which other documents are valid. We strongly
urge importers and exporters to
[[Page 48414]]
be aware of the expiration date of their documents and to request
replacement documents if they do not believe that the shipment can be
completed before the document expires.
Humane transport (Sec. 23.23(c)(7)): We require that CITES export
and re-export documents for live wildlife contain a specific condition
that the document is only valid if the transport complies with certain
humane transport standards. One commenter indicated that three sections
(Sec. Sec. 23.23, 23.26, 23.36) do not contain the same language with
respect to humane transport. The commenter suggested the language used
in Sec. 23.36 should be used in all sections because it reiterates
CITES language. We declined to make a change based on this suggestion
because each section has a different purpose and requires different
language. Section 23.23 provides the wording that must be included on a
CITES document, Sec. 23.26 lays out the condition for acceptance of a
shipment, and Sec. 23.36 provides the criteria for issuance of a
permit.
We do, however, make a change to Sec. 23.23(c)(7) to incorporate by
reference CITES's Guidelines for transport and preparation for shipment
of live wild animals and plants. We inadvertently omitted this
necessary incorporation by reference in our proposed rule, and we are
correcting that omission in this final rule.
Identification of specimen (Sec. 23.23(c)(8)): We require that the
CITES document accompanying a shipment contain information on any
unique number or mark that is used to identify a specimen in that
shipment. If the specimen has a microchip, the specific information
concerning the code, trademark of the transponder manufacturer, and
location of the chip must be on the CITES document, and if necessary,
we may ask the importer, exporter, or re-exporter to have the equipment
on hand to read the microchip at the time of import, export, or re-
export. One commenter supported the provision that an importer or
exporter must provide equipment to read a microchip, if requested.
Another commenter did not support this approach and argued that the FWS
should provide any required equipment. This commenter also did not
believe that we should require that unique markings or microchip
numbers be identified on the face of the CITES documents. The commenter
thought this requirement would be burdensome to exporters that use
microchips, whereas those exporters who do not use microchips would not
have the same documentation burden. On an application for a CITES
document, the applicant is asked to identify the specimens to be
imported or exported. If the applicant uses a unique mark or microchip
as a form of identification, we will use that as a means of identifying
the specimen. Because a CITES document is issued for specific
specimens, the use of identification marks or microchips ensures that
the specimens identified in the application are the specimens presented
at the time of import or export. Requiring that the unique marks or
microchips be identified on the face of the CITES document allows for
such identification. With regard to the FWS purchasing microchip
readers, there currently is no industry standard for microchip readers
and the cost to purchase every type for each wildlife inspection
station would be prohibitive.
Purpose of transaction (Sec. 23.23(c)(11)): Resolution Conf. 12.3
(Rev. CoP13) lists standard transaction codes that are to be used on
documents. These are the same codes used by Parties in their CITES
annual reports. One commenter expressed confusion over the fact that
the regulatory language at Sec. 23.23(c)(11) uses the words ``if
possible'' and therefore allows for the possibility that the purpose of
the transaction may not appear on the face of a CITES document. We have
amended the text to remove the ambiguity and to clarify that the
purpose of the transaction must be identified on the face of the CITES
document, either through use of one of the purpose of transaction codes
in Sec. 23.23(d) or through a written description.
Quantity (Sec. 23.23(c)(12)): We require that standardized units
are used on all documents. The unit of measurement should be
appropriate for the type of specimen and agree with the preferred or
alternative unit to be used in the CITES annual report, if possible.
The unit should be in metric measurement. If weight is given, it is
important to provide the weight of the specimen, not the packing
material. To monitor trade effectively, we need records on quantities
that accurately reflect the volume of that trade.
One commenter agreed with the requirement that appropriate units be
used on documents. However, the commenter believed that we should
include a table of all of the units accepted by the Parties. We decline
to accept this comment since the accepted units, which are identified
by species or commodity, are too numerous to list. The accepted units
are identified in the annual report format guidelines that are
available on the CITES website or from us (see Sec. 23.7).
Signature (Sec. 23.23(c)(16)): We require that the signatures of
individuals authorized to sign CITES documents for a Management
Authority be on file with the Secretariat. This requirement will help
us determine if a document is valid and avoid delays in the clearance
of shipments. One commenter believed that this requirement would be
impractical. We disagree and note that this is not a new requirement.
Resolution Conf. 12.3 (Rev. CoP13) recommends that Parties communicate
to the Secretariat the names of the persons empowered to sign CITES
documents and submit examples of their signatures. The FWS provides
this information to the Secretariat for documents issued by the United
States and verifies signatures with the Secretariat when questions
arise about the validity of foreign documents.
Validation (Sec. 23.23(c)(21)): We require CITES documents to
indicate the actual quantity exported or re-exported, whether the
shipment is physically inspected upon export or not. One commenter
expressed concerns that this section requires a CITES permit to be
validated prior to leaving the country; otherwise it is not considered
a valid permit. The commenter stated that the majority of countries do
not validate their export permits and that this will become an
enforcement burden to the wildlife inspection program to either re-
export the shipment for lack of validation or seize the item(s). The
commenter questioned if there is a plan to notify all CITES Parties of
this new requirement to lessen the burden. We are aware of the lack of
implementation of this CITES requirement by some countries, and plan to
focus outreach efforts on this issue before the rule enters into
effect. However, we are also aware that receipt of a CITES document
without validation is not necessarily due to an exporting or re-
exporting country having chosen not to validate, but may be because
these shipments have evaded export controls. The lack of validation is
quite often a violation of the exporting or re-exporting country's
CITES laws, and we are committed to ensuring that shipments of CITES
species are legally traded.
One commenter had concerns that the FWS would seize specimens if
the authorized quantity had been changed without the validation stamp.
The commenter suggested that, if a mark-out occurs and a new quantity
is written by the Management Authority of the exporting country, the
quantity should be verified through a physical inspection by the FWS
without action taken against the importer. We disagree with this
comment. If any alteration of
[[Page 48415]]
the CITES document occurs, this must be identified by the stamp and
signature of a person authorized to sign CITES documents for the
issuing Management Authority or the document is considered invalid.
Without the stamp and signature verifying the originator of the
changes, we can only assume such changes were not authorized, and we
must take appropriate action.
One commenter raised a concern about requiring validation or
certification of a customs declaration label used to identify specimens
being moved between registered scientific institutions. We have revised
this section to exclude these labels from the validation requirement.
Additional information (Sec. 23.23(e)): The table in paragraph (e)
provides details on additional information that is required for
specific types of documents, such as an annex or certificate of origin.
Some documents require additional information because of the type of
transaction, the specimen involved, or special provisions, such as
quotas. One commenter expressed concern over how quotas are handled by
the Parties and believed that this section should include additional
language that would provide greater control over quotas. Although we
recognize that the Parties are currently evaluating the uses of quotas,
this section was not intended to address those concerns. This section
provides the additional language required on CITES documents when the
specimens identified on the document fall under an established quota.
Therefore, we have not made the changes to this section requested by
the commenter.
Phytosanitary certificates (Sec. 23.23(f)): CITES allows
phytosanitary certificates to be used in lieu of CITES certificates to
export certain artificially propagated plants under specific
circumstances. At this time, we do not allow the use of phytosanitary
certificates in lieu of CITES certificates for export of plants
artificially propagated in the United States. One commenter believed
there was a contradiction in this last statement. To clarify, although
the United States does not issue phytosanitary certificates in lieu of
CITES certificates, we will accept them from other Parties that have
issued such documents, provided the phytosanitary certificate was
properly issued and meets the requirements set out in this section.
Source of the specimen (Sec. 23.24): The source of a specimen is
needed by Management and Scientific Authorities to make the findings
required to issue CITES documents and is an important component in
analyzing data and monitoring trade. We provide a list of standardized
codes that Management Authorities use on CITES documents to identify
the source of the specimen. In addition, we provide the definition for
each code, and explain that the source code ``O'' for pre-Convention
specimens should be used in conjunction with another source code. The
U.S. Management Authority will determine the appropriate code to use
when issuing a document, based on information provided in an
application.
We often receive questions about the difference between the source
codes ``C'' and ``F.'' Wildlife bred in captivity can be given the
source code ``C'' and traded under an Article-VII exemption certificate
only if the specimen meets the requirements adopted by the CoP for bred
in captivity (see Sec. 23.63). In addition, for Appendix-I wildlife,
the specimen must have been bred for noncommercial purposes. If a
specimen does not meet these criteria, it is assigned the source code
``F'' and requires CITES documents under Articles III, IV, or V of the
Treaty. For export of Appendix-I wildlife, see the discussion in the
preamble for Sec. 23.18.
Two commenters expressed concern that use of the source code ``F''
for Appendix-I specimens that were commercially bred at a facility that
was not registered with the CITES Secretariat would negatively impact
their commercial operations. As discussed further in Sec. 23.46,
specimens that are produced for commercial purposes at a registered
commercial breeding operation are afforded a specific exemption under
Article VII(4) of the Treaty. These specimens are given the source code
``D'' on CITES documents. If a commercial breeding operation for
Appendix-I species does not meet the requirements set out in Sec.
23.46 to be registered with the CITES Secretariat, its specimens would
not be eligible for the exemption under Article VII(4), and therefore
any international trade of such specimens would be subject to the
provisions of Article III of the Treaty.
Additional information required on non-Party documents (Sec.
23.25): This section provides the additional information that is
required on non-Party documents. Article X of the Treaty allows a Party
to accept documentation from a non-Party if it is issued by a competent
authority and substantially conforms to the requirements of CITES.
Because the Parties were concerned that the trade of CITES specimens
through non-Parties might jeopardize the effectiveness of the
Convention, they adopted Resolution Conf. 9.5 (Rev. CoP13). This
resolution recommends that Parties accept documents from non-Parties
only if they contain certain basic information, including
certifications that a competent authority has made the findings
required under Articles III, IV, or V of the Treaty. Therefore, we have
incorporated the requirements of Resolution Conf. 9.5 (Rev. CoP13) on
trade with non-Parties and Resolution Conf. 12.3 (Rev. CoP13) on
permits and certificates. One commenter expressed concern that a
certification from a non-Party that findings have been made in
accordance with the Convention did not guarantee that findings were
accurate or scientifically sound. We believe that the requirements in
Resolution Conf. 9.5 (Rev. CoP13) and Resolution Conf. 12.3 (Rev.
CoP13) are sufficient to ensure that trade with non-Parties is
conducted in accordance with CITES. As noted elsewhere in this rule, if
we have concerns regarding a CITES document issued by another country,
we will investigate the situation further.
Valid CITES documents (Sec. 23.26): Article VIII of the Treaty
outlines measures that Parties shall take to enforce the provisions of
the Convention. Resolutions Conf. 9.9, 11.3 (Rev.CoP13), and 12.3 (Rev.
CoP13) further detail these measures. For CITES to be effective,
shipments must be accompanied by valid CITES documents issued by the
appropriate authority and must meet all conditions of those documents.
Each Party must have border controls for the inspection and validation
of CITES documents. To ensure that specimens traded in violation of
CITES do not re-enter illegal trade, Parties are urged to consider
seizure of specimens, rather than refusal of entry of the shipment.
Parties are encouraged to cooperate with other Parties, the
Secretariat, and international enforcement organizations to further
effective enforcement of the Treaty and provide protection to CITES
species.
One commenter stated that the FWS should impose rules that make it
clear that a CITES shipment not accompanied by the required CITES
documents would be deemed illegal and disposed of pursuant to the FWS
laws and policies with all costs borne by the importer, exporter, or
re-exporter. We believe the rule clearly identifies the CITES
prohibitions. The commenter further stated that if such a rule is not
imposed, the FWS should require that countries issuing permits for
shipments to the United States should submit electronic copies of the
documents to ensure that a record of all trade is available. We
disagree with this suggestion because such a requirement has not been
agreed upon by the CoP
[[Page 48416]]
and would be overly burdensome for both the United States and other
CITES Parties.
We included this section in the regulations to outline what
requirements must be met for CITES documents to be considered valid.
Several commenters objected to our reviewing the legal and scientific
bases for a CITES document issued by another country, noting that we
should accept a document if it is not procured by fraud and meets
Article VI of the Treaty. One commenter argued that if we had a dispute
with a country about a permit we should address our concerns to that
country, and that the Convention does not give us the authority to
refuse entry of shipments or reject permits in the absence of fraud or
falsification of the permit.
We have the authority to question any shipment and its accompanying
documents if the surrounding facts indicate a potential violation or
create a reasonable suspicion of a violation. Section 10(g) of the ESA
places the burden on a permittee to prove that the document was valid
and in force at the time of entry into the United States. Foreign
countries have the same discretion to inquire about documents we have
issued. In addition, violations of CITES consist of more than fraud or
falsified documents, and the Treaty requires Parties to penalize trade
in, and possession of, specimens traded contrary to the Convention. As
decided by the United States District Court for the District of
Columbia in Castlewood Products v. Norton (Apr. 16, 2003), and affirmed
by the Court of Appeals for the District of Columbia Circuit (Apr. 30,
2004), the role of all CITES Parties is to ensure that international
trade in CITES specimens meets the provisions of the Convention, and
the Government has the authority to decline to accept export permits at
face value when reason is shown to doubt their validity. We note that
the United States receives thousands of CITES shipments annually for
which CITES documents are accepted as issued. We focus our verification
efforts on those shipments and CITES documents for which the available
information indicates a problem may exist.
One commenter believed that the FWS relies too heavily on the
assumption that an exporting or re-exporting country is issuing
accurate and scientifically defensible non-detriment findings. The
commenter argued that the FWS must mandate import permits for all
Appendix-I and Appendix-II wildlife or mandate internal reviewof export
permits to make concurrence determinations, with no exceptions. The
commenter also stated that the regulations should set specific
requirements with which foreign Scientific and Management Authorities
must comply when completing and issuing their findings. The imposition
of a CITES import permit requirement for Appendix-II wildlife and of
specific criteria for other countries to use in making their non-
detriment findings goes beyond what is required under the Treaty. We
have full authority to question a non-detriment finding when we have
reason for concern. Requiring import permits for Appendix-II specimens
would add significantly to our workload, but would not provide
significant benefit.
Acceptance of CITES documents (Sec. 23.26(c)): We present the
information on valid documents in a table arranged alphabetically by
key phrase to assist importers and exporters. Most of the requirements
are self-explanatory. However, we believe it would be helpful to
discuss some in more detail.
Annual reports (Sec. 23.26(c)(2)), Convention implementation
(Sec. 23.26(c)(5)), Legal acquisition (Sec. 23.26(c)(9)), and Non-
detriment (Sec. 23.26(c)(12)): Three commenters urged us to include
regulatory provisions to implement recommended trade suspensions. When
the Standing Committee or the CoP recommends a temporary trade
suspension, based on the results of the Review of Significant Trade,
non-submission of annual reports, the status of adequate national
legislation, or ongoing enforcement or implementation problems, Parties
are informed of the decision through a Notification to the Parties
issued by the Secretariat. All three commenters indicated that
temporary suspensions are a valuable tool for ensuring compliance by
CITES countries. Two commenters stated that implementation of CITES
trade suspensions is a responsibility of the United States in its role
as a major importer of CITES species, and one commenter urged
regulatory language requiring immediate implementation of CITES trade
suspensions. One commenter also suggested that we add a specific key
phrase to Sec. 23.26(c) for CITES trade suspensions.
While we believe the regulations as proposed allow us to implement
any temporary suspensions of trade, we agree that adding language to
Sec. 23.26(c) will provide useful clarification for the public. CITES
trade suspensions are based on failure to comply with basic Treaty
requirements, and we realize that the basic Treaty requirements are
scattered throughout many sections of the regulations. Therefore, to
provide clarity, we have added four additional key phrases to Sec.
23.26(c), annual reports, Convention implementation, legal acquisition,
and non-detriment, as conditions that must be met before we consider a
CITES document valid. The addition of these key phrases also ensures
continuity with Sec. 23.26(d) which outlines when we might verify a
CITES document with the Secretariat or a foreign Management Authority.
Although we indicate that these key phrases form the basis for
acceptance of CITES documents, in addition to requirements in other
sections, we will not generally question findings made by a Party for
each individual shipment. We seek additional information where there is
reason to question a shipment or a pattern of trade.
Management Authority and Scientific Authority (Sec. 23.26(c)(10)):
One commenter supported the requirement that non-Parties designate
Management and Scientific Authorities.
Quotas (Sec. 23.26(c)(14)): Quotas may be established voluntarily
by Parties, adopted by the CoP through a resolution or proposal to
amend Appendix I or II, or put into place through the Review of
Significant Trade in Appendix-II species (Resolution Conf. 12.8 (Rev.
CoP13). The Secretariat notifies the Parties of quotas each year, and
we require that, for a given species, the quantity exported not exceed
the quota. One commenter agreed with this requirement.
Ranched specimen: We received one comment related to a provision
that appeared in the 2000 proposed rule (65 FR 26664) regarding not
allowing international trade in ranched specimens involving non-Parties
or Parties with a reservation on a species downlisted from Appendix I
to Appendix II subject to ranching. Resolution Conf. 10.18 included
language addressing this potential trade restriction. However,
Resolution Conf. 11.16, which replaced Resolution Conf. 10.18, does not
include this provision. Since the Parties excluded this provision when
revising the ranching resolution, we did not include the restriction in
this rule.
Shipment contents (Sec. 23.26(c)(18)): This paragraph specifies
that the contents of the shipment must match the description of
specimens on the CITES document and that the shipper may not substitute
a new specimen to replace the one authorized. One commenter believed it
was reasonable to allow a scientist who had obtained a permit for
several specimens of a particular species to substitute different
specimens of the same species without having to amend the permit. We
[[Page 48417]]
disagree. Findings are made based on information provided by the
applicant for specific specimens, and therefore the specimens in a
shipment must correspond to what was authorized.
Verification of CITES documents (Sec. 23.26(d)): This paragraph
outlines the situations when we may request verification of documents
from the Secretariat or the Management Authority of any country
involved in the shipment. They include instances when we have
reasonable grounds to believe a document is not valid or authentic.
Verification of CITES documents can be a lengthy process and
depends on the issue, the means of communication, and the cooperation
of the countries involved. Failure by a country to respond through
normal channels of communication or failure to provide sufficient
information to determine validity of documents may result in refusal of
a shipment.
We rely on Parties and non-Parties to make appropriate findings,
and we seek additional information only when we have a specific reason
to do so. The Plants and Animals Committees, through the Review of
Significant Trade process, regularly evaluate whether Parties are
properly making non-detriment findings. Four commenters questioned why
we both rely on Parties and non-Parties to make appropriate findings
and also allow the Animals and Plants Committees to regularly evaluate
whether Parties are properly making non-detriment findings. The
commenters suggested that we delegate the process to the Committees. We
wish to clarify that Parties and non-Parties are required under CITES
to make legal acquisition and non-detriment findings for the CITES
documents they issue. Although the Plants and Animals Committees
regularly evaluate whether Parties are properly making non-detriment
findings, this is only done for selected species determined to be
subject to significant levels of trade. Such evaluations are done at
the species level, usually range-wide, not for individual permits, and
not at the specific request of a country. Individual permit findings
cannot possibly be made by the Plants and Animals Committees, which
generally meet only annually. We may request information on non-
detriment findings made by other countries, including the underlying
basis for quotas established by Parties, when we have a question
regarding a shipment or a pattern of trade.
Several commenters indicated that if the United States questions a
non-detriment finding there should be official notice to the public and
the regulated community before a contrary determination is made.
Although we encourage the public to provide relevant information if
they have concerns about a finding made for a particular shipment, we
decline to add a requirement that we solicit public comment whenever we
have reason to question a non-detriment finding. We believe it is
unnecessary and would undermine any timely and appropriate enforcement
action that may be warranted.
One commenter strongly supported the regulations regarding
verification of documents and noted that the issuance of a permit
without making the relevant findings is inconsistent with Articles III
and IV of the Treaty and therefore constitutes noncompliance. Another
commenter recognized that the FWS has the authority to respond to
violations, but believed that where a document is apparently valid, and
not procured fraudulently, importers should have a reasonable
expectation of a procedural standard for ``looking behind'' the
document to determine its validity. We agree and have provided detailed
information about when we would question the validity of a permit and
seek verification. The commenter further stated that the failure to
make adequate findings by ignoring, omitting, or failing to review
relevant information is no different. The commenter argued that the
regulation confirms the FWS' authority to look behind a facially valid
permit. The commenter urged us to retain the proposed language in the
final rule because it facilitates proper implementation of the
Convention and the holding of the United States District Court for the
District of Columbia in Castlewood Products v. Norton (Apr. 16, 2003).
One commenter argued that a CITES export permit must be regarded as
the only authorization necessary to trade in CITES species. We agree
that as signatories to CITES, the Parties have an obligation to issue
export permits in accordance with the requirements of the Convention.
However, we have the authority to question any shipment and its
accompanying documents if the surrounding facts indicate a potential
violation or create a reasonable suspicion of a violation. This
position was affirmed by the United States District Court for the
District of Columbia in Castlewood v. Norton and the Court of Appeals
for the District of Columbia.
One commenter suggested we include in Sec. 23.26(d)(5) a statement
allowing us to request verification of a CITES document when we have
reasonable grounds to believe that the specimen was produced from
illegally acquired parental stock. We agree and have revised the
regulations accordingly.
One commenter stated that the verification process outlined in the
2006 proposed rule (71 FR 20167) would be grossly unfair to importers.
We disagree. These regulations provide a greatly expanded explanation
of what CITES documents are required for trade, the information that
must be contained on a CITES document, when we consider a document
valid, and what importers should present at the port of entry. We
believe that this section will assist the regulated public in
determining what they must do to comply with CITES if they wish to
import or export CITES species.
Presentation of CITES documents at the port (Sec. 23.27):
Inspecting officials at the ports of exit and entry must verify that
shipments are accompanied by valid CITES documents and take enforcement
action when shipments do not comply with CITES. To help importers and
exporters, we provide a table outlining the type of U.S. and foreign
documents they must present for validation or certification, or that
they must surrender, when importing, introducing from the sea,
exporting, or re-exporting CITES species.
One commenter made a general statement that we should modify these
regulations to reflect reality and allow uniform application of the
rules, in particular with respect to the validation and clearance
process. We believe the regulations governing the CITES approval and
validation process are appropriate as written. Article VIII of the
Treaty requires the Parties to establish an inspection process that
takes place at the ports of exit and entry to ensure that wildlife
shipments are in compliance with CITES. The validation process is an
important component of CITES that enables U.S. inspection authorities
to confirm the authenticity of permits and ensure that wildlife
shipments were legally shipped from the exporting country. Such
determinations are needed to ensure the proper enforcement of U.S. laws
and regulations. Specific problems with clearance procedures in a
foreign country should be addressed to the appropriate Management
Authority. One commenter supported our clarification in the 2006
proposed rule (71 FR 20167) that CITES documents for wildlife in
personal accompanying baggage should be submitted as soon as possible
to the FWS if Customs or Agriculture officials fail to collect the
documents at the time of arrival of the passenger.
[[Page 48418]]
One commenter correctly noted that the documentation that
accompanies shipments of CITES specimens moving between registered
scientific institutions is not processed at the port in the same manner
as other CITES documents. We have removed the registered scientific
institution CITES label from the table in Sec. 23.27(b) and added a
new paragraph (Sec. 23.27(d)) to describe the port requirements for
such shipments. In addition, we inadvertently omitted the process for
presenting phytosanitary certificates for shipments of artificially
propagated plants and have corrected that by adding the necessary
language to the table in Sec. 23.27(c).
What Are the Changes to Subpart C of 50 CFR Part 23--Application
Procedures, Criteria, and Conditions?
This subpart provides information on how to apply for a U.S. CITES
document. It also contains general provisions and criteria that apply
to both U.S. and foreign CITES documents.
Application procedures (Sec. 23.32): This section gives a general
overview of the application process for U.S. CITES documents. Much of
the information that appears in this section also appears in 50 CFR 13,
General Permit Procedures, and is repeated here for the convenience of
the regulated public. One commenter appreciated this reiteration of the
application process for CITES documents. A number of CITES species are
protected under other laws or treaties that we implement. If
appropriate, we will accept one application if the applicant provides
the information needed under all relevant regulations. An applicant
should review the issuance criteria for all relevant regulations when
preparing an application to ensure he or she understands the kinds of
information we need. This review will help the applicant submit a more
complete application and prevent delays in processing.
When we review an application, we decide whether the requirements
of an exemption document under Article VII of the Treaty can be met or
whether we need to process the application under the standard CITES
requirements of Articles III, IV, or V (see Sec. Sec. 23.35-23.39). If
we find that the application is incomplete, we will contact the
applicant for additional information. If the applicant does not respond
to our request within 45 days, we will abandon the file. We will not
re-open the application if the applicant sends the additional
information at a later date. The applicant may, however, submit a new
application, including any relevant application fees, if he or she
still wants to pursue obtaining a permit.
One commenter disapproved of our intent in Sec. 23.32(f)(2) to
abandon any application after 45 days when the applicant has not
responded to our request for additional information and of the fact
that we will not re-open an application file once it has been
abandoned. This procedure is not new. Part 13 of this subchapter
identifies the process for abandoned application files, and it is
repeated in this section for emphasis. We receive over 6,000 permit
applications annually, and we work closely with applicants to avoid the
need to abandon any application file. In the past, we have received
requests to re-open files months, and even years, after a file has been
abandoned. Such requests are burdensome, and we have found that it is
more efficient to create a new file. As a result, once abandoned we
will not re-open an application file.
Decisions on applications (Sec. 23.33): This section explains the
procedures we follow in making a decision on an application. When an
application is complete, we review the information under all applicable
issuance criteria, including 50 CFR part 13, regulations under other
wildlife and plant laws, and the CITES regulations. We may consult with
outside experts, scientists, and staff within the Federal Government,
State and tribal agencies, the Secretariat, or foreign Management or
Scientific Authorities before we make our findings. The burden of proof
in establishing that the issuance criteria are met lies with the
applicant. We can issue a CITES document only if we are satisfied that
all criteria specific to the proposed activity are met.
One commenter believed that we were inconsistent when we stated in
the 2006 proposed rule (71 FR 20167) that we may consult with outside
experts and others before making required findings, yet we also stated
that we rely on Parties or non-Parties to make appropriate findings and
would seek additional information only when we have a specific reason
to do so (Sec. 23.26(d)). We believe that the commenter misunderstood
our point in this section with regard to consultation with outside
experts. We may consult with outside experts to assist us in making our
required findings. This is separate from the issue of whether or not we
will accept the findings made by a foreign CITES authority.
One commenter was concerned that the burden of proof is on the
applicant to establish that the issuance criteria are met. The
commenter noted that the FWS is more likely to have access to certain
information than the applicant (e.g., biological status of the
species). While it is true that in some cases we may have access to
more information than many applicants, we do not believe that it is the
burden of the government to obtain the information necessary to prove
that the issuance criteria have been met. We inform the applicant of
the basis of any denial decision and indicate what information is
lacking. If the missing information is difficult for an individual
applicant to obtain (e.g., foreign government management plans), we
will do our best to obtain such data during the course of reviewing an
application. However, it is the applicant's responsibility to prove
that he or she meets the issuance criteria.
We received several comments on the process for appeal when an
application has been denied. We refer the commenters to the 2006
proposed rule (71 FR 20167), where we addressed this issue, and note
that the general permit procedures in part 13 of this subchapter
provide the process for review if an application is denied. The
procedures in part 13 cover all applications processed by the FWS,
including applications for activities under CITES.
Records (Sec. 23.34): This section provides examples of the kinds
of records individuals and businesses may want to keep if they intend
to trade in CITES species internationally. Although the applicant for a
CITES document needs to provide sufficient information for us to make
the legal acquisition finding, we base the amount of information we
need on the risk that the specimen was illegally acquired. For example,
we consider whether the specimen is a hybrid; is common in captivity in
the United States; breeds or propagates readily; has little illegal
trade; or is commonly imported. We give less scrutiny and require less
information when there is a low risk that a specimen was illegally
acquired and give more scrutiny and require more detailed information
when the risk is greater.
One commenter was concerned with our response in the 2006 proposed
rule (71 FR 20167) to a previous comment that an applicant's failure to
provide adequate documentation showing legality of a specimen, while
not necessarily evidence that the specimen was traded contrary to
CITES, might prevent us from making the required findings or being able
to issue the necessary CITES documents for subsequent import, export,
or re-export. The commenter suggested that the FWS establish procedures
or describe the kinds of evidence we will accept in lieu of positive
documentation.
[[Page 48419]]
We have not specified the type of documentation that an applicant
must present in order for us to make necessary findings because it is
not possible to describe the full range of information an applicant
could use to show that their activity is consistent with CITES
requirements. In each case, the applicant must present enough
information to allow the FWS to make the required determinations, but
the source of this information and the level of detail needed to make
the findings will vary.
One commenter was concerned that an importer might be unable to
show proof of legal import because the documents were retained by CBP
and not forwarded to the FWS. The retention of copies by the importer
at the time of import is separate from whether CBP transfers paperwork
for follow-up investigation or storage by the FWS. Commercial importers
must retain copies of documents for their files. Noncommercial
importers are encouraged to retain copies of any documents submitted to
the government for clearance as an ordinary part of the process whether
or not they intend to submit applications in the future. All importers
should also be aware that there are recordkeeping obligations under
customs laws (19 U.S.C. 1508 and 1509) and customs regulations (19 CFR
part 163).
General requirements for standard CITES documents (Sec. Sec.
23.35-23.39): The basic requirements for U.S. and foreign CITES
documents have not changed since the Treaty took effect in 1975. We
have designed U.S. application forms for specific activities and
protection levels to make applications easier to complete and to
clarify what information is needed. Each of these sections provides
information to help an applicant determine which application form to
use. The forms can be obtained from our website or requested by phone,
mail, or e-mail (see Sec. 23.7).
These sections list the issuance criteria for each type of document
and reference the appropriate section for factors we consider in making
a decision on certain criteria. The issuance criteria are based on the
provisions of the Convention (Articles III, IV, V, and XIV) and
resolutions, including Resolution Conf. 12.3 (Rev. CoP13) on permits
and certificates.
Prior issuance of an import permit (Sec. 23.35(e)): Under Article
III of the Treaty, before a Management Authority can issue an export
permit for an Appendix-I specimen, it must be satisfied that an import
permit has been issued for the specimen. However, some countries have
stricter national measures that require the export permit to be issued
before they can issue an import permit. Resolutions Conf. 10.14 (Rev.
CoP13) and 10.15 (Rev. CoP12) recommend that this requirement may be
satisfied when the Management Authority of the importing country has
provided written assurance that an import permit will be issued. Thus,
for the export of live and dead Appendix-I specimens and re-export of
live Appendix-I specimens (as required by Article III of the Treaty),
the issuance criteria can be met either by showing that the import
permit has been issued or by providing confirmation from the Management
Authority of the importing country that the import permit will be
issued. For re-export of dead specimens, the Management Authority does
not need to see the import permit before issuing a re-export
certificate, but the shipment still must be accompanied by an import
permit.
One commenter stated that we should require the Management
Authority of the exporting country to acquire a copy of the import
permit before issuing an export permit or re-export certificate. The
commenter was concerned that, due either to limited resources or lack
of interest, a country will not make the required findings if they know
in advance that the importing country will allow the import. We believe
that countries strive to fulfill the requirements of the Treaty to the
best of their abilities and that it is unlikely that an importing
country would issue an import permit based solely on the fact that the
exporting country issued an export permit. The commenter also contended
that allowing the importing country to provide a ``letter of intent''
or written assurance that an import permit will be issued will lead to
situations where the import permit will not be issued by the time the
import actually occurs, placing border officials in a difficult
situation. It is the responsibility of the exporter to obtain all the
necessary documents before engaging in international trade. We concur
with Resolutions Conf. 10.14 (Rev. CoP13) and 10.15 (Rev. CoP12) that
allowing importing countries to provide written assurance that an
import permit will be issued provides a workable solution that allows
the administrative needs of both the importing and exporting countries
to be met. If the U.S. Management Authority receives a written
confirmation that appears unusual or inappropriate, we will investigate
the situation further.
Export permits (Sec. 23.36): To comply with Article II of the
Treaty, the export of Appendix-I wildlife that qualifies for source
code ``W'' or ``F'' must be for noncommercial purposes (see discussion
in the preamble for Sec. 23.18). This provision means that facilities
that are commercially breeding Appendix-I wildlife must become
registered under Sec. 23.46 before they can export Appendix-I
specimens. This does not affect the sale of specimens within the United
States, nor does it preclude the export of specimens where the purpose
is noncommercial, such as for science, conservation, or personal use.
Two commenters expressed their support for registering breeding
facilities for Appendix-I wildlife and allowing the export of wildlife
from these registered facilities for commercial purposes. However, one
commenter thought that measures such as registering breeding facilities
create loopholes and do not provide benefit to Appendix-I species in
the wild. CITES allows for commercial trade in Appendix-I specimens
from registered breeding operations, and we do not believe that this
requirement creates a loophole. The commenter also wanted assurances
that an Appendix-I specimen bred for noncommercial purposes (i.e., not
from a registered breeding facility) would only be traded
internationally for noncommercial purposes over its lifetime. We will
not authorize commercial trade of an Appendix-I specimen that does not
qualify for an exemption under which such trade would be allowed.
Additionally, we expect that countries that are party to CITES will
abide by the provisions of the Convention, however we do not have
control over trade that does not involve the United States.
We address the exemption in Article XIV(4) and (5) for certain
Appendix-II marine species protected under another treaty, convention,
or international agreement that was in force on July 1, 1975 (the date
of entry into force of CITES). Export of a marine specimen exempted
under Article XIV requires a CITES certificate indicating that the
specimen was taken in accordance with the provisions of the other
treaty, convention, or international agreement. One commenter
appreciated the clarification in Sec. 23.36(d) of the requirements for
CITES documents for certain marine specimens exempted under Article
XIV(4) and (5).
We added a new application form to the table in (b) for export of
caviar or meat from wild-caught sturgeon and paddlefish (Form 3-200-
76). This form was developed after the 2006 proposed rule (71 FR 20167)
was published.
Certificate of origin (Sec. 23.38): A certificate of origin allows
the export of a specimen of a species listed in Appendix III when the
specimen originated in a non-listing country. This
[[Page 48420]]
section provides specific information on the application form and
issuance criteria for a certificate of origin.
One commenter expressed concern regarding documentation
requirements for trade in Appendix-III specimens. While he believed
that the requirements were clear for specimens originating in the
listing country, he stated that there is no uniform format for
certificates of origin, which results in considerable variation in
these documents, with some countries no longer issuing any documents
for the export of Appendix-III specimens. He also noted that acceptance
of these documents by the United States varies at different ports of
entry and asked that we ``formulate clear rules which reflect the
ongoing customs and regulations of other countries.''
Sections 23.23 to 23.27 provide clear descriptions of the
information requirements for CITES documents, including certificates of
origin. These requirements implement the current resolution on permits
and certificates, and therefore reflect what has been agreed by the
CITES Parties. Some countries have taken reservations for certain
Appendix-III species, and we refer the commenter to Sec. 23.21 for an
explanation of document requirements when a country has elected to take
a reservation on an Appendix-III listing.
Introduction from the sea (Sec. 23.39): Article XIV(4) and (5) of
the Treaty provide a limited exemption for certain Appendix-II species
when a country is a party to another treaty, convention, or
international agreement that protects the listed marine species and was
in force on July 1, 1975 (the date of entry into force of CITES). For
introductions from the sea, this exemption applies only to specimens
that were harvested by a ship registered in the country of introduction
that is also a party to the pre-existing treaty. This is in keeping
with Article XIV(4) and with the intent of the provisions of Article IV
of the Treaty. It also supports the CITES goal of exempting only those
introductions from the sea that are certified as being in compliance
with a pre-existing treaty by a party to that treaty who is competent
to make such a certification. Should a commercially exploited marine
species that is exempt under Article XIV be listed in the future,
implementation details may need to be addressed at the time of listing.
One commenter was concerned that allowing the use of other
treaties, conventions, or international agreements to exempt specimens
from CITES requirements may reduce their overall protection by allowing
trade that may not be permissible under CITES. He stated that the FWS
should identify all such agreements in force on July 1, 1975, and
provide an analysis comparing and contrasting requirements imposed by
these other agreements in relationship to CITES requirements. We
disagree. The exemption in Article XIV(4) and (5) for certain Appendix-
II marine species is limited in scope and was purposely written into
the Treaty to avoid conflicts with pre-existing treaties, conventions,
and agreements. Changing or eliminating this exemption would require
amending the Treaty, which we do not believe is practicable or
warranted.
Another commenter believed that guidance was lacking on when an
introduction-from-the- sea certificate is required. Introduction from
the sea is defined in Sec. 23.5, and Sec. 23.20(f) and Sec. 23.39
explain clearly that unless the specimen qualifies for an exemption
under Article XIV(4) and (5), the introduction from the sea of an
Appendix-I or -II specimen requires an introduction- from-the-sea
certificate. Criteria for issuance and acceptance of introduction-from-
the-sea certificates are provided in Sec. 23.39.
Bred-in-captivity certificates (Sec. 23.41): This section
implements Article VII(5) and allows us to issue a bred-in-captivity
certificate for specimens of Appendix-I species bred for noncommercial
purposes (see Sec. 23.5) or traveling as part of an exhibition, and
specimens of Appendix-II or -III species bred for any purpose. At
CoP12, the Parties agreed that facilities that are breeding Appendix-I
species for noncommercial purposes must be participating in a
cooperative conservation program with one or more of the range
countries for that species. We adopted this provision. If the breeding
facility is not participating in a cooperative conservation program,
specimens will be assigned the source code ``F'' and are not eligible
for a bred-in-captivity certificate. Export of such Appendix-I
specimens will be allowed only when the export is for noncommercial
purposes (see the discussion in the preamble for Sec. 23.18). We also
adopted the recommendations of Resolution Conf. 10.16 (Rev.) for
specimens bred in captivity (see Sec. 23.63). Appendix-I wildlife that
qualifies for a bred-in-captivity certificate does not need a CITES
import permit.
One commenter asked if we could issue bred-in-captivity
certificates for Appendix-II and -III specimens that are part of a
traveling exhibition, or for Appendix-I specimens in foreign-based
traveling exhibitions performing in the U.S. As stated above, such
certificates may be issued for any purpose, including traveling
exhibitions, for Appendix-II or -III specimens. However, we generally
do not issue bred-in-captivity certificates for specimens in a
traveling exhibition. Traveling exhibitions are addressed by Article
VII(7) of the Treaty and we refer the commenter to the procedures for
traveling exhibitions described in Sec. 23.49. The same commenter
asked whether we could issue a bred-in-captivity certificate to
facilitate import of an Appendix-I specimen that had been bred for
noncommercial purposes in a foreign country. A Party cannot issue a
bred-in-captivity certificate for a specimen outside of its national
jurisdiction.
The commenter also expressed concern that issuance of a bred-in-
captivity certificate bypasses the requirements in Article III, IV, and
V to make a legal acquisition finding and the requirements in Article
III and IV to make a finding that the export would not be detrimental
to the survival of the species. These findings are made through our
adoption of the standard interpretation of the term ``bred in
captivity'' in Resolution Conf. 10.16 (Rev.). We refer the commenter to
Sec. 23.63 on the procedures for evaluating the breeding stock from
which the specimen was derived.
The Parties have agreed that facilities that are breeding Appendix-
I species for noncommercial purposes must be participating in a
cooperative conservation program with one or more range countries for
the species. The commenter noted that we have not provided a specific
definition of what constitutes a cooperative conservation program. We
amended the definition in Sec. 23.5 slightly to make it clear that the
program must be conducted in cooperation with one or more of the range
countries for the species. However, we defined ``cooperative
conservation program'' in general terms because we did not want to
limit what might be considered under such a program. These programs may
include a wide variety of activities, and we cannot adequately address
every variation in this rule. Instead, using our professional judgment
and through communication with range countries and species experts, we
will evaluate each breeding situation to determine if the activities
being conducted constitute active participation in a cooperative
conservation program.
The commenter also expressed concern that the issuance of bred-in-
captivity certificates would facilitate fraudulent activities by
providing a loophole for the international movement
[[Page 48421]]
of wild-caught specimens. We disagree. We believe that the procedures
we use to review applications for bred-in-captivity certificates and
our close coordination with law enforcement, both domestically and
internationally, are a strong deterrent to such fraudulent activities.
General information on hybrids (Sec. Sec. 23.42 and 23.43): At
CoP2, the Parties recognized that it can be difficult to distinguish
between purebred and hybrid specimens in trade. If hybrids were not
subject to CITES controls, persons wishing to avoid the controls of
CITES could falsely claim that the specimens in question were hybrids.
Resolution Conf. 2.13 recommended that hybrids, even though not
specifically listed in any of the Appendices, are subject to CITES if
one or both parents are listed. The Parties agreed at CoP10 to treat
plant hybrids differently from wildlife hybrids. Resolution Conf. 2.13
was repealed, and provisions for hybrids were placed in other
resolutions.
Plant hybrids (Sec. 23.42): Resolution Conf. 11.11 (Rev. CoP13)
contains provisions on trade in plant hybrids. Trade in plant hybrids
must meet the requirements of CITES unless the Parties agree to exempt
an Appendix-II or -III hybrid by a specific annotation to the
Appendices (see Sec. 23.92). Plant hybrids are subject to CITES
controls if one or both parents are listed in the Appendices. If the
hybrid includes two CITES species in its lineage, it is listed in the
more restrictive Appendix of either parent, with Appendix I being the
most restrictive.
Two commenters stated that plant hybrids should be exempt from
CITES document requirements. See the general discussion of hybrids
above for the basis of applying CITES requirements to hybrids of CITES
species. The same commenters believed that the exemption for certain
hybrids when the specimens are traded in shipments containing 20 or
more plants of the same hybrid is unfair to small growers. This
exemption was adopted by the Parties as a listing annotation for
certain orchid species. The appropriateness of specific species
listings and listing annotations is addressed by the CoP and is beyond
the scope of these regulations.
Wildlife hybrids (Sec. 23.43): In Resolution Conf. 10.17 (Rev.),
the Parties agreed that wildlife hybrids with one or more Appendix-I or
-II specimens in their recent lineage are controlled under CITES.
Therefore, in general, wildlife hybrids of CITES species must be
accompanied by a CITES document, issued by the Management Authority of
the country of export or re-export.
The Parties agreed to a limited exception for certain wildlife
hybrids under specific conditions. When the hybrid specimen is a cross
between a CITES species and a non-CITES species, and no purebred CITES
specimen appears in the previous four generations of its ancestry, it
is exempt from CITES requirements. A hybrid of species included in a
higher-taxon listing, such as parrots, falcons, or sturgeons, would not
be exempted under this provision because the crosses are generally
between two CITES species within that higher-taxon listing. We expect
that the wildlife hybrid exemption will apply only rarely.
A specimen that qualifies as an exempt wildlife hybrid does not
require CITES documents. However, at the time of import, export, or re-
export you must provide sufficient information to demonstrate to CITES
border officials that your wildlife specimen contains no purebred CITES
species in the previous four generations of its lineage, and you must
follow the clearance requirements for wildlife in part 14 of this
subchapter.
Initially, we had proposed that either a CITES document or an
``excluded hybrid letter,'' issued by a Management Authority, must
accompany any exempt wildlife hybrid being imported into or exported
from the United States. One commenter questioned how the United States
could require that a CITES document or a letter accompany an exempt
hybrid when other CITES Parties do not require such documentation.
After further review, we have decided to eliminate this document
requirement. However, as previously stated, individuals traveling with
or shipping exempt wildlife hybrids should be aware that they must
provide information to clearly demonstrate to border officials that the
specimen qualifies as an exempt wildlife hybrid.
We received over 200 comments in support of this section as
proposed. While not specifically stated in most of these comments, it
was clear that the commenters were under the impression that Bengal
cats, a hybrid cross between domestic cats and Asian leopard cats
(Prionailurus bengalensis), would be automatically exempt from CITES
document requirements. Although some Bengal cat specimens may qualify
as exempt hybrids, if you cannot clearly demonstrate that your specimen
meets the qualifications for the exemption, you must obtain a CITES
document for international trade.
One commenter expressed a need for a clear definition of when an
exotic specimen becomes domesticated. While we recognize the possible
value of this comment, this rule is not intended to address that issue.
Some commenters stated that hybrid falcons should be exempt from
CITES controls because international trade in such specimens has no
impact on the conservation of wild raptor populations. Trade in hybrids
is controlled by CITES because of the difficulty in distinguishing
purebred and hybrid specimens. See the general discussion of hybrids
above for the basis of applying CITES requirements to hybrids of CITES
species.
Personally owned live wildlife (Sec. 23.44): Article VII(3) of the
Treaty provides that, in some circumstances, the provisions of Articles
III, IV, and V of the Treaty do not apply to specimens that are
personal or household effects. As discussed previously, Parties have
generally excluded live wildlife from this exception. However, in
Resolution Conf. 10.20, the Parties agreed that personally owned, live
wildlife that is registered by the Management Authority in the country
where the owner usually resides may be moved internationally using a
certificate of ownership, under specific conditions.
We have implemented this resolution, which should simplify the
procedure for people who frequently travel internationally with
companion animals or wildlife used in noncommercial competitions, such
as falconry. The certificate of ownership acts like a passport, but can
be issued only after agreement between the Management Authorities of
the Parties concerned. The owner must accompany the specimen when
crossing international borders, and the wildlife cannot be sold or
otherwise transferred when traveling abroad.
Five commenters supported the idea of issuing certificates of
ownership, or ``passports.'' One commenter, while supporting the
concept, stated that the certificates should be called ``certificates
of stewardship'' since wildlife should not be ``owned,'' but should
only be held in ``trust.'' We decline to make a change based on this
suggestion since the title of this CITES document was agreed upon by
the Parties.
Seven other commenters also supported the issuance of certificates
of ownership, but did not believe that the owners of birds covered
under the MBTA should be required to notify us when their birds have
died or been sold since they must report such events to their Regional
Migratory Bird Management office via Form 3-186A. While we are working
with the regional migratory bird offices to ensure quick and accurate
exchange of information, we have not developed a reliable means
[[Page 48422]]
to share data that are submitted by permittees on Form 3-186A. As a
result, and because of the different records management systems for
handling information submitted by permittees and different uses of the
data, it is necessary that both the Division of Migratory Bird
Management and the U.S. Management Authority are notified of deaths or
transfers. Many CITES ``passports'' are issued for bird species that
are not covered by the MBTA, and therefore would not require the
submission of information to a Regional Migratory Bird Management
office. We require that all ``passport'' holders notify us of any
change in the status of their personally owned live wildlife.
Two additional commenters supported the issuance of ``passports,''
but questioned the length of validity of such documents. Both
commenters believed that certificates of ownership should be valid
until the animal dies or has been transferred. They stated that a 3-
year period of validity would create a burden on the permittee. The 3-
year period of validity was agreed upon by the Parties and is specified
in Resolution Conf. 12.3 (Rev.CoP13). We therefore cannot issue these
certificates for longer than 3 years.
Two commenters believed that the process for obtaining certificates
of ownership and for moving animals across international borders should
be simplified. In particular, the commenters stated that the movement
of CITES pets across the U.S.-Canadian border should not require
clearance by an FWS Wildlife Inspector, but should be handled solely by
CBP officials. While we strive to minimize any inconvenience at the
port, this particular comment cannot be addressed by these regulations.
The clearance process is addressed in 50 CFR 14, which is not being
revised as part of this rulemaking.
Two commenters believed that the issuance of certificates of
ownership, particularly for raptors, would facilitate the illegal
movement of specimens that were not obtained legally. They did not
think that the process under which these certificates are issued would
allow for adequate control of specimens, particularly of Appendix-I
species, since only the exporting country needs to issue a certificate.
The applicant must provide adequate documentation to show that the
specimen was legally obtained before a certificate of ownership can be
issued. In addition, when applying for a certificate of ownership, the
applicant must confirm that he or she does not intend to sell or
transfer the specimen while outside of the United States. Finally,
since border officials of both the exporting/re-exporting and the
importing countries must inspect the wildlife and the accompanying
certificate, fraudulent activity would be detected. We believe that
this provides sufficient control of the trade in these specimens to
minimize illegal activities.
One commenter stated that live specimens should not be considered
personal or household effects. We agree and refer the commenter to the
definitions of these terms in Sec. 23.5. The commenter also suggested
that Sec. 23.44(d)(5) be amended to state that the applicant ``will
not sell, donate, or transfer the wildlife while traveling
internationally'' instead of ``does not intend to sell, donate, or
transfer the wildlife while traveling internationally'' and that this
restriction should also be expanded to limit sale, donation, or
transfer within the applicant's usual country of residence. Section
23.44(d) lists criteria for the issuance and acceptance of certificates
of ownership and indicates that an applicant must provide sufficient
information for us to determine that he or she does not intend to sell
or otherwise transfer the wildlife while traveling internationally
(Sec. 23.44(d)(5)). Section 23.44(e) lists U.S. standard conditions
for certificates of ownership, including Sec. 23.44(e)(3), which
states that the certificate holder ``must not sell, donate, or transfer
the specimen while traveling internationally.'' Expansion of this
restriction to cover activities within an applicant's country of
residence is beyond the scope of CITES and these regulations.
Pre-Convention specimen (Sec. 23.45): Under Article VII(2) of the
Treaty, a specimen acquired before the provisions of CITES applied to
the species is exempt from Articles III, IV, and V of the Treaty when a
Management Authority issues a certificate. Resolution Conf. 13.6
provides guidance on determining when a specimen is considered pre-
Convention. One commenter supported the use of the date on which the
species was first listed in the Appendices to determine the pre-
Convention status of a specimen, as recommended in the resolution. We
define the term ``pre-Convention'' in Sec. 23.5 and clarify in this
section the general provisions that apply to the acceptance and
issuance of pre-Convention documents.
The pre-Convention status applies to the specimen, not to when it
was possessed by the current owner. Before we can issue a pre-
Convention certificate, the applicant must provide sufficient
information for us to determine that the wildlife or plant (including
parts, products, and derivatives) was removed from the wild or born or
propagated in a controlled environment before the first date that CITES
applied to the specimen. This information also is needed for products
(such as manufactured items) or derivatives subsequently made from such
specimens. If the specific acquisition date is unknown or cannot be
proved, then the applicant should provide any subsequent and provable
date on which the item was first possessed by a person.
Even antiques that are at least 100 years old that clearly qualify
as pre-Convention must be accompanied by pre-Convention documents. The
general import regulations for antiques under the ESA are found in 50
CFR part 14. Except in rare situations, we do not require a person to
show the sequential ownership of pre-Convention specimens, including
antiques. If a CITES species is also listed under the ESA and does not
qualify under the ESA as an antique, we will ask for information on
whether the specimen has been sold or offered for sale because an ESA
species loses its pre-Act status when placed in commerce.
We no longer apply the definition of pre-Convention to cell lines
whose originating line was established prior to the listing date of the
species. These cell lines are continually growing and cells are
harvested from growing cultures. Applicants who wish to export cell
lines must comply with CITES requirements, and provide sufficient
documentation of legal acquisition and the date when the cell line was
established. Although most cell lines do not qualify as pre-Convention,
they may qualify for other types of CITES exemption certificates.
One commenter expressed concern that international trade will be
restricted if cell lines are not traded as pre-Convention specimens.
The commenter also argued that our suggestion in the 2006 proposed rule
(71 FR 20167) that these specimens may qualify for trade under another
CITES exemption document, such as a bred-in-captivity certificate,
would be confusing because it differs from the interpretation of other
authorities. As discussed previously, the pre-Convention status applies
to a specimen that was removed from the wild or born or propagated in a
controlled environment before the first date that CITES applied to the
specimen. Cell lines that are continually growing and being harvested
would therefore not qualify for a pre-Convention certificate. We
believe that this is an accurate interpretation of the Treaty
requirements and disagree that it will result in a restriction of
trade.
[[Page 48423]]
Based on our experience with this trade, we do not believe that
shipping cell lines under another type of CITES document, other than a
pre-Convention certificate, will be problematic for foreign CITES
authorities or that it will create difficulties for the industry.
Registration of commercial breeding operations for Appendix-I
species (Sec. 23.46): Article VII(4) of the Treaty provides that
specimens of Appendix-I species bred for commercial purposes will be
deemed to be specimens of species included in Appendix II for CITES
document requirements. A Management Authority may grant an export
permit or a re-export certificate without requiring the prior issuance
of an import permit, thus allowing specimens that originate in a CITES-
registered breeding operation to be traded commercially. The specimens
are still listed in Appendix I and are not eligible for any exemption
granted to an Appendix-II species or taxon, such as less restrictive
provisions for personal and household effects.
The Parties recognize the potential abuse inherent in this
exemption because it is difficult for inspectors to distinguish between
specimens bred in captivity and those removed from the wild. They also
recognize that captive breeding for both commercial and conservation
purposes is increasing. These regulations implement Resolution Conf.
12.10 (Rev. CoP13) and establish application procedures to allow an
operation to become registered for each Appendix-I species maintained
at the operation. The registration criteria include whether the species
qualifies as bred in captivity (see Sec. 23.63).
Appendix-I wildlife from a registered breeding operation can be
exported with an export permit under Article IV of the Treaty. An
import permit is not required, and specimens can be used for primarily
commercial purposes. To date, very few U.S. operations have chosen to
complete the process of registering. Most U.S. commercial breeders are
applying for permits under Article III of the Treaty. We will issue
permits under Article III only in exceptional circumstances. This
reflects the intent of CITES to prohibit trade in Appendix-I specimens
for primarily commercial purposes when they do not qualify for an
exemption to allow it. Thus, we encourage breeders to register their
operations if they plan to trade in Appendix-I specimens
internationally (see discussion in the preamble for Sec. 23.18).
One commenter opposed the registration requirement for commercial
captive-breeding operations for Appendix-I species because of the
ongoing discussion among CITES Parties about which facilities should be
registered, the conservation value of registration, and obstacles to
registration. In addition, the commenter noted the refusal of the
European Union to implement the registration requirement. Another
commenter opposed our implementation of Resolution Conf. 12.10 (Rev.
CoP13) because it would weaken the protection of Appendix-I species.
The United States has always supported the registration system and
worked with other Parties to craft the current language in the
resolution. We recognize that certain Appendix-I species are widely
bred in captivity to the second generation without the addition of wild
stock. The registration system encourages the captive breeding of
Appendix-I species, discourages take of specimens from the wild, may
provide conservation benefits, and is the only mechanism by which such
species can be traded commercially.
Several commenters argued that small falcon breeders should not be
required to register. The Parties agreed, in Resolution Conf. 12.10
(Rev. CoP13), that the exemption in Article VII(4) should be
implemented through the registration of operations breeding Appendix-I
species for commercial purposes. Therefore, any breeding operation,
regardless of size, that wishes to qualify for the exemption and engage
in commercial international trade of Appendix-I species, must be
registered.
One commenter suggested that Sec. 23.46(d)(7) should include ``in
the wild'' or ``in situ'' at the end of the sentence to clarify that
any breeding operation for Appendix-I species should benefit in situ
conservation. We decline to adopt this suggestion because we believe
that both in situ and ex situ activities can contribute to improving
the conservation status of wild populations. The commenter also
requested that we list guidelines or provide examples of appropriate
conservation activities. We have not included a list because meaningful
conservation activities will vary by taxon.
Several commenters urged us to amend Sec. 23.46(b)(12) to permit
the take of wild breeding stock of Appendix-I birds by registered
facilities to augment the captive population, as provided for in Sec.
23.63 for noncommercial breeders. These birds would be used for
maintaining genetic diversity and providing birds for conservation
efforts, such as State reintroduction programs for peregrine falcons
(Falco peregrinus). In the United States, take of wild specimens may be
authorized with appropriate permits (e.g., State permits, Migratory
Bird Treaty Act permits). However, under Article III(3)(c), wild stock
may not be imported to augment the captive population of a registered
commercial breeding operation, and we therefore decline to make a
change based on this suggestion. We have amended Sec. 23.46(d)(4) to
clarify that, where the establishment of a commercial breeding
operation for Appendix-I wildlife involves the removal of animals from
the wild, it may only be allowed under exceptional circumstances and
only for native species.
Three commenters opposed our decision not to publish the receipt of
an application to register commercial breeding operations for Appendix-
I species in the Federal Register, which would allow the public to
comment. Another commenter suggested we publish the first application
received for a species. As described in the 2006 proposed rule (71 FR
20167), there is no legal requirement to obtain public comments on
CITES applications, we make determinations on whether specimens qualify
as bred in captivity for other CITES documents without obtaining public
comments, and further review is conducted by the CITES Secretariat and
the CITES Parties. Publication in the Federal Register would result in
delays in the registration process. Once the Secretariat makes the
application available, the Parties have 90 days in which to comment.
Thus, even without a public comment period within the United States,
registration of an operation may take a minimum of several months. We
acknowledge that members of the public will not have an opportunity to
comment on the applications. However, we will consult outside experts
if necessary, and we believe that the evaluation by the FWS, the
Secretariat, and the Parties is sufficient to make a determination as
to whether an operation qualifies to be registered.
One commenter expressed concern that registered captive-breeding
operations could be used to launder illegal specimens and that the
Service should develop strict regulations for identifying specimens
bred at a registered operation. We believe that the criteria and
oversight provided in Sec. 23.46 and the marking requirements in Sec.
23.56(a)(4) minimize the potential for laundering and appropriately
implement Resolution Conf. 12.10 (Rev. CoP13).
Exporting Appendix-I plants commercially (Sec. 23.47): The Parties
recognize that the artificial propagation of plants is essentially
different from
[[Page 48424]]
captive breeding of wildlife and requires a different approach.
Artificial propagation of native plants can provide an economic
alternative to traditional agriculture in countries of origin. By
making specimens readily available, artificial propagation may have a
positive effect on the conservation of wild populations by reducing
pressure from collection, provided the parental stock was legally
obtained in a non-detrimental manner.
Article VII(4) of the Treaty provides that specimens of Appendix-I
plants artificially propagated for commercial purposes will be deemed
to be specimens of species included in Appendix II for CITES document
requirements. Just as for wildlife in the previous section, this means
that a Management Authority may grant an export permit without
requiring the prior issuance of an import permit. The specimens are
still listed in Appendix I, and they are not eligible for any exemption
granted to an Appendix-II species or taxon.
Two commenters thought that a registration system should be
provided for facilities that propagate Appendix-I plants, similar to
the registration system for wildlife. This issue was addressed in the
2006 proposed rule (71 FR 20167). Although we recognize that there may
be some advantages to developing a registration process, we have not
incorporated such a process into the regulations due to the complex
issues resulting from the decentralized system of regulating nurseries
in the United States. Instead, we have reserved Sec. 23.47(e) for
nursery registration, because we will need to work with nurseries,
other State and Federal regulators, and the interested public to
develop regulations.
We continue to implement Article VII(4) of the Convention by
reviewing a nursery's facilities during the application process and
issuing CITES export permits with a source code ``D.'' This type of
export permit indicates to other Parties that we have treated the
nurseries as propagating Appendix-I plants for commercial purposes. No
import permit is required under CITES for the trade of these specimens.
Registered scientific institutions (Sec. 23.48): Article VII(6) of
the Treaty provides an exemption from strict CITES controls for
preserved, dried, or embedded museum specimens, herbarium specimens,
and live plant materials that carry an approved label. The exemption
covers the noncommercial loan, donation, or exchange of these items
between scientific institutions registered by each country's Management
Authority. Resolution Conf. 11.15 (Rev. CoP12) recommends that Parties
encourage their natural history museums and herbaria to inventory their
holdings of rare and endangered species. This recommendation allows
researchers to efficiently borrow specimens for study and reduce any
potential adverse impacts that museum needs for research specimens can
have on small populations of rare wildlife and plants.
This section incorporates the standards in the resolution for
registration of scientific institutions. A scientist who wishes to use
this exemption must be affiliated with a registered scientific
institution. Specimens are to be acquired primarily for research that
is to be reported in scientific publications, and no CITES specimens
obtained through the use of this exemption may be used for commercial
purposes. We clarify that offspring (i.e., cuttings, seeds, or
propagules) may not be commercialized, including sale through a catalog
or as a fund-raising effort, because the registration is for scientific
purposes only.
Biological samples, including blood and tissue samples of
preserved, frozen, dried, or embedded museum samples, herbarium
specimens, or live plant material, that will be destroyed during
analysis will be eligible for this exemption provided a portion of the
sample is maintained and permanently recorded at a registered
institution for future scientific reference. Because not all countries
recognize these types of samples as being eligible to be traded under
this exemption, registered scientific institutions should check with
the foreign Management Authority before shipping such specimens under a
scientific exchange certificate.
All specimens for which the exemption is being claimed must have
been legally acquired. The specimens must have been permanently
recorded by the sending registered institution before being shipped for
exchange, donation, or loan for scientific research purposes. The
Parties were concerned about possible abuse of the exemption by
scientists who might collect specimens and directly export them without
the permission of a registered institution in the exporting country.
Thus, the registration criteria require the orderly handling and
permanent recording of specimens, including the maintenance of
permanent records for loans and transfers of specimens to other
institutions. In addition, scientists may still need permits under
other parts of this subchapter (see Sec. 23.3).
We received two comments on this section. One commenter was
philosophically opposed to the use of CITES species by a scientific
institution for research, but supported the statement that CITES
specimens obtained by scientific institutions cannot be used for
commercial purposes. Both commenters supported the requirement that
specimens be permanently recorded as being part of an institution's
collection but not necessarily formally acquisitioned by the sending
institution. However, the commenters expressed concern that the
requirement that Appendix-I specimens be centrally and permanently
housed means that the specimens must be kept segregated from other
specimens in the institution's collection and would preclude the
donation of such specimens to other institutions. We interpret this
requirement to mean that Appendix-I specimens are to be maintained in a
way that they will not be used in a manner incompatible with the
principles of CITES. Appendix-I specimens do not need to be separated
from the rest of the collection provided that they are incorporated
into the institution's record system. They may reside anywhere that is
under the control of the registered scientific institution. This may
include field stations, offsite storage facilities, or other facilities
managed by the institution. As noted in the 2006 proposed rule (71 FR
20167), a specimen could be donated to another registered institution
provided a record of the transaction is maintained.
Both commenters supported allowing the use of samples or subsamples
from specimens that are maintained by registered institutions. One
commenter was concerned that exchange of such samples could be
inhibited by other countries' Management Authorities. We agree that
this is a possibility and recommend that foreign Management Authorities
be consulted prior to shipment. The other commenter suggested that we
add a definition of ``sample.'' We do not think such a definition is
necessary as the meaning of this term is commonly understood.
Traveling exhibitions (Sec. 23.49): Article VII(7) of the Treaty
allows for the international movement without CITES certificates of
pre-Convention, bred in captivity, or artificially propagated specimens
that are part of a traveling zoo, circus, menagerie, plant exhibition,
or other traveling exhibition. The exhibition must register each
specimen with its Management Authority, and live specimens must be
transported and cared for humanely. In Resolution Conf. 8.16, the
Parties agreed to require traveling live-animal exhibitions to be
accompanied by CITES
[[Page 48425]]
certificates to verify such registration, address technical problems,
and prevent potential fraud. At CoP12, the Parties agreed to extend
these provisions to all traveling exhibitions, not just traveling live-
animal exhibitions. We describe provisions for traveling exhibitions in
this section and define the term ``traveling exhibition'' in Sec.
23.5.
A traveling-exhibition certificate acts like a passport. The
exhibitor (i.e., the entity responsible for the specimens in a
traveling exhibition) must obtain a separate certificate for each live
animal. In the 2006 proposed rule (71 FR 20167), we specified that the
certificate could only be issued to an exhibitor who owns the
specimens. Based on comments received, we have revised our definition
and the language in this section to indicate that the entity
responsible for the specimens in a traveling exhibition may obtain the
certificate. The exhibitor of live plants or dead parts, products, or
derivatives may be issued a certificate with an inventory for all the
specimens in the exhibition. The exhibitor retains the original
certificate, which must be validated at each border crossing. We
include a number of conditions to ensure that these certificates are
used only for temporary cross-border movement by the exhibitor. A
certificate may not be transferred to another exhibitor, and specimens
cannot be sold or otherwise transferred when traveling abroad.
Specimens can be transported internationally only for temporary display
activities, not for breeding, propagating, or other purposes, and the
specimens must return to the country in which the exhibition is based
before the exhibition certificate expires.
Many specimens covered by this exemption are listed in Appendix I.
We require under the general conditions (see Sec. 23.56(a)(4)) that
all live Appendix-I specimens must be securely marked or uniquely
identified in a way that border officials can verify that the specimen
and CITES document correspond. To ensure that each specimen exported or
imported is the specimen indicated on the certificate, we recommend
that Appendix-II and -III specimens also be clearly identified and, if
appropriate, uniquely marked. Tattoos, microchips, tags, or other marks
may be used. If a microchip is used, we may, if necessary, ask the
importer, exporter, or re-exporter to have equipment on hand to read
the microchip at the time of import, export, or re-export.
We received four comments on this section. One commenter welcomed
the incorporation of the traveling-exhibition certificate into the
regulations, stating that it will streamline the permitting process and
result in smoother border crossings and more reliable recordkeeping.
Another commenter strongly supported the requirement that the cross-
border movement authorized under a traveling-exhibition certificate may
not be for any purpose other than exhibition and the requirements in
Sec. 23.49(d)(6) regarding marking.
Another commenter requested that this section be amended to allow
the use of traveling- exhibition certificates for activities other than
exhibition, including research and conservation of museum specimens. We
decline to make a change based on this suggestion. Article VII(7)
provides an exemption for traveling exhibitions and the Parties agreed
in Resolution Conf. 12.3 (Rev. CoP13) that traveling-exhibition
certificates should be issued ``for exhibition purposes only.'' Article
VII providesother exemptions and special provisions that may be
appropriately used for other purposes, including international
transport of museum specimens and specimens for research.
The same commenter stated that it was not always clear who should
obtain the traveling- exhibition certificate, particularly when a
specimen is loaned for an exhibition hosted by one or more
institutions, rather than by the owner of the specimen, and suggested
that the certificate should be issued to the owner of the specimen
rather than to the traveling exhibition. The resolution specifies that
the certificate be issued for specimens that are part of a traveling
exhibition; it does not specify that the owners of the specimens must
receive the certificates. Since there must be an entity responsible for
the traveling exhibition and its specimens, a certificate is issued to
that entity, which we refer to as the ``exhibitor.'' We have amended
Sec. 23.49 to clarify that it is the exhibitor who must obtain the
certificate and to ensure that the terms ``exhibitor,'' ``traveling
exhibition,'' and ``exhibition'' are used consistently. We likewise
revised the definition of ``traveling exhibition'' in Sec. 23.5 so
that it corresponds more precisely to use of the term in this section.
The same commenter believed the word ``frequent'' should be deleted
from the criteria for issuance and acceptance of traveling-exhibition
certificates as it is not required by Resolution Conf. 12.3 (Rev.
CoP13). We agree and have amended Sec. 23.49(d)(1) accordingly.
Another commenter suggested that we strengthen the requirement for
humane transport by including a reference to IATA LAR and the CITES'
Guidelines for transport and preparation for shipment of live wild
animals and plants in this section and requiring that any animal
covered by a traveling-exhibition certificate also have a health
certificate issued by a licensed veterinarian. Section 23.23(c)(7)
requires that transport conditions for live animals comply with the
CITES'Guidelines for transport and preparation for shipment of live
wild animals and plants or, for air transport, with IATA LAR. We do not
believe it is necessary to repeat those requirements here. The issuance
of health certificates is beyond the scope of these regulations, but we
note that Sec. 23.3 informs the public that in addition to the
requirements in part 23, they may also need to comply with other
Federal, State, tribal, or local requirements.
The same commenter suggested that we ``explicitly require'' the
exhibitor to return with the same number of specimens as originally
exported, that the specimens be microchipped, and that the exhibitor
provide the necessary equipment to read the chips. Section 23.49(e)
requires that an entity may not sell or otherwise transfer a specimen
covered by a traveling-exhibition certificate while traveling
internationally. We do not believe that we need to require that all
specimens be microchipped because the regulations as written provide
sufficient means for border officials to ensure that each specimen
exported or imported is the specimen indicated on the certificate.
Sample collections Sec. 23.50: At CoP13, in an effort to address
the international movement of display samples, such as sets of shoes or
reptile skin samples, the Parties defined such shipments as sample
collections and agreed to allow the in-transit shipment of these
collections under specific conditions. Management Authorities could
issue a CITES document that would allow the shipment to move from one
country to another before returning to the originating country, rather
than requiring the issuance of a re-export certificate from each
country visited. Such a CITES document must be accompanied by a valid
ATA carnet. The ATA carnet is an international customs document that
allows the temporary introduction of goods destined for fairs, shows,
exhibitions, and other events. One commenter supported the provisions
allowing the movement of merchandise subject to CITES regulations on an
ATA carnet.
The CITES document must list the same specimens that the
accompanying ATA carnet lists and must include the number of the ATA
carnet on its face. The CITES document can only be valid for the same
length of time as the ATA carnet or 6 months, whichever is
[[Page 48426]]
shorter, and the shipment must return to the originating country prior
to the expiration of the CITES document. None of the specimens within
the sample collection may be sold, donated, or transferred while
outside the originating country. The CITES document must be presented
at border crossings, but only the ATA carnet must be stamped and signed
at each intermediary border crossing by customs officials. At the time
of first export or re-export and at re-import, the originating Party is
to check the CITES document and sample collection closely to ensure
that the collection was not changed. For import into and export or re-
export from the United States, the shipment must comply with the FWS
requirements for wildlife in part 14 of this subchapter and APHIS/CBP
requirements for plants in part 24 of this subchapter and 7 CFR parts
319, 355, and 356.
Partially completed CITES documents (Sec. 23.51): Under Article
VIII(3) of the Treaty, Parties are to ensure that CITES specimens are
traded with a minimum of delay. At CoP12, the Parties agreed to issue
partially completed documents when the permitted trade would have a
negligible impact or no impact on the conservation of the species (see
Resolution Conf. 12.3 (Rev. CoP13)). The permittee would be authorized
to complete specifically identified boxes on the document and would be
required to sign the document to certify that the information entered
is true and correct.
We implement these procedures and issue single-use documents that
are partially completed under specific circumstances for exports that
are repetitive in nature (i.e., when the same types of specimens or the
same specimens are exported shipment after shipment).
An applicant should submit the appropriate application form for the
proposed activity (see Sec. Sec. 23.18-23.20) and show that the use of
this type of document is beneficial and appropriate. Upon review of the
application, if appropriate, we will create a master file or annual
program file for native species that contains all of the relevant
information about the proposed activity. We will issue single-use
partially completed documents based on the master file or annual
program file when we find that the issuance criteria for the proposed
activity and the issuance criteria for a partially completed document
are met.
We received two comments on this section. While both commenters
generally supported the concept of partially completed documents, one
suggested limiting the use of such documents to pre-Convention
specimens due to concern that wild-caught live animals could be
mislabeled and shipped fraudulently as captive-bred animals. Further,
the commenter suggested that such documents should not be used for
animals in traveling exhibitions. We did not adopt these suggestions.
Partially completed documents are issued for specific taxa and specific
types of specimens. The permittee is authorized to fill in the
destination and, in the case of specimens from an approved-taxa list,
the quantity of specimens in the shipment and an inventory page.
The other commenter requested that we consider the use of partially
completed documents for import of scientific specimens that were
removed from the wild under the authority of the exporting government's
wildlife management offices. The regulations as written allow us to
issue and accept documents issued under the provisions of this section
for wild-collected scientific specimens in limited situations.
Replacement documents (Sec. 23.52): We adopted the provisions of
Resolution Conf. 12.3 (Rev. CoP13) on replacing documents that are
lost, damaged, stolen, or accidentally destroyed. We clarify when
replacement documents may be available and how to request them. One of
the issuance criteria requires a full and reasonable explanation of the
circumstances under which the CITES document was lost, damaged, stolen,
or accidentally destroyed. We will also check to see if the exporter
has requested a replacement document before and review the
circumstances surrounding any previous request.
A replacement document must indicate on its face the reason the
document was replaced. Since we sometimes receive a replacement
document that does not provide this information, we may verify the
validity of such a document with the issuing Management Authority
before deciding if we will accept the document as a valid replacement.
It is important that we issue and accept replacement documents only
when the circumstances warrant doing so and that issuance of such
documents prevents the use of the original CITES document for a
different shipment.
When a replacement document is requested after a commercial
shipment has left the United States, we will consult with the
Management Authority of the importing country. When a replacement
document is needed for a shipment that arrives in the United States,
the importer should contact the exporter or re-exporter in the foreign
country to assess the circumstances surrounding a lost, damaged,
stolen, or accidentally destroyed CITES document. Then, the exporter or
re-exporter should contact the Management Authority in that country
concerning replacement documents, and the Management Authority will
contact us directly.
Although the U.S. CITES document states in block 15 that it is
``valid only with inspecting official's ORIGINAL stamp, signature and
date in this block,'' we will not validate U.S. replacement documents
for shipments that have already left the United States because we
cannot compare the actual shipment contents to the document. Instead,
we will issue a replacement document only for the quantity that was
originally exported as shown on a cleared copy of the FWS Wildlife
Declaration (Form 3-177) or a copy of the validated CITES document for
plants, and include a condition on the document describing this policy
so the importing country can accept it as valid.
One commenter requested that we allow copies of the stamped
original CITES document and the FWS Wildlife Declaration (Form 3-177)
to be used for clearance purposes when documents are misplaced at the
port after declarations have been submitted to the FWS. We decline to
address this request since the provision proposed by the commenter is
outside the scope of these regulations and has already been addressed
through changes in port procedures.
Retrospective documents (Sec. 23.53): A retrospective document
authorizes an export or re-export after that activity has occurred, but
before the shipment is cleared for import. A shipment must be cleared
when it first arrives at the port of import. At that time, we, APHIS,
or CBP inspect the paperwork to see that it meets the requirements of
CITES. The request for a retrospective document needs to be made at the
time the specimens arrive at the port and are available for inspection.
Resolution Conf. 12.3 (Rev. CoP13) recommends that a Party neither
issue nor accept retrospective documents, but recognizes that there may
be some limited exceptions. This section allows for the issuance and
acceptance of retrospective documents based on the resolution. We
generally limit issuance of retrospective documents to noncommercial
items and, even then, only in certain prescribed circumstances, which
are clarified in this section. Management Authorities of both the
exporting or re-exporting and the importing countries must be satisfied
either that any irregularities that have occurred are not attributable
[[Page 48427]]
to the exporter or re-exporter or the importer, or, in the case of
items for personal use, that evidence indicates a genuine error was
made and there was no attempt to deceive. Thus, before a retrospective
document can be issued, the exporter or re-exporter or importer must
demonstrate either that he or she was misinformed by an official who
should have known the CITES requirements (in the United States, an
employee of the FWS for any species, or APHIS or CBP for plants; or in
a foreign country, an employee of the Management Authority or CITES
inspection authorities), or that the issuing Management Authority made
a technical error on the CITES document that was not prompted by the
applicant. An additional provision limited to individuals exporting or
re-exporting certain specimens for personal use allows them to
demonstrate that they made a genuine error and did not attempt to
deceive.
The Parties intended for this provision to be used rarely and only
under very narrow circumstances. The exporter is responsible for
obtaining CITES documents before making a shipment and for inspecting
the CITES documents to ensure the key information on the face of the
permit, such as quantity and species, match what was requested and what
is in the shipment. The provisions for retrospective documents are not
to help resolve an enforcement issue, but to resolve a mistake by the
government or a genuine error made by a person exporting or re-
exporting specimens for their personal use.
We recognize that in some countries customs officials inspect and
clear CITES shipments on behalf of the Management Authority, and we
will consider that in making a decision. In the United States, however,
although CBP officials have the authority under the ESA to enforce
CITES, they are not generally responsible for the clearance of CITES
wildlife or live plant shipments except for live plants being imported
from Canada (see Sec. 23.7(e)).
We will issue a retrospective document only if the Management
Authority of the importing country agrees to accept it. The provision
applies not only to the issuance of retrospective documents, but to the
acceptance of such documents. We note that a number of CITES countries
interpret this provision more strictly than the United States, and
travelers may not qualify for a retrospective document for specimens,
especially live wildlife or plants, taken with them to these countries.
Several commenters supported the general concept and appreciated
the recognition that there are circumstances when issuance of
retrospective documents is warranted. Two other commenters were opposed
to the issuance of retrospective documents except to ensure humane
treatment of live specimens. While we agree that issuance of
retrospective documents should be very limited, we believe it is
warranted under the specific circumstances described in Sec. 23.53.
Two commenters asked howshipments are treated pending review of the
circumstances to determine whether a retrospective permit can be
issued. These determinations are made by our enforcement officials on a
case-by-case basis. We refer the commenters to the general import/
export requirements for wildlife in part 14 of this subchapter and the
requirements for plants in part 24 of this subchapter and 7 CFR parts
319, 355, and 356.
One commenter asked why we limited the issuance of retrospective
permits for Appendix-I specimens to certain shipments for personal use.
The Parties have agreed that Appendix-I specimens must be subject to
particularly strict regulation and that trade in these specimens should
be authorized only in ``exceptional circumstances.'' As stated in the
2006 proposed rule (71 FR 20167), we expect commercial traders to know
the laws that apply to their business, including CITES requirements,
and to carefully inspect their documents for technical errors.
Consequently, we limit the issuance of retrospective permits for
Appendix-I specimens to certain pre-Convention Appendix-I specimens for
personal use that meet the requirements in Sec. 23.53(d)(7). Another
commenter suggested that we add to the rule the language from the
preamble stating that we expect commercial importers and exporters to
know the law. We decline to adopt this suggestion because we believe
that Sec. 23.53(b)(7) adequately describes that expectation.
Another commenter suggested that we clarify that the provision
restricting sale of specimens within 6 months following import under a
retrospective document (Sec. 23.53(b)(5)(iii)) applies only to
Appendix-II and -III species. We decline to adopt this suggestion. The
restriction on sale applies only to specimens imported for personal use
and therefore may apply to a pre-Convention Appendix-I specimen under
certain circumstances (see Sec. 23.53(d)(7)).
Two commenters requested clarification and additional details
regarding the issuance process and what kind of information an
applicant would need to provide to obtain a retrospective document. We
refer the commenters to the discussion on this section in the 2006
proposed rule (71 FR 20167).
One commenter incorrectly stated that the provisions in this
section would ``absolutely eliminate'' any possibility for a hunter to
receive a retrospective permit if he or she had ever received a CITES
permit before. While we generally will not issue a retrospective
document to an individual who has received CITES documents in the past,
we recognize that there may be situations where the importer or
exporter was not responsible for whatever irregularity occurred and may
therefore qualify for a retrospective document (see Sec. 23.53(b)(7)).
Period of document validity (Sec. 23.54): Article VI(2) of the
Treaty states that an export permit can be valid only for a period of 6
months from the date of issuance. Resolution Conf. 12.3 (Rev. CoP13)
specifies the period of validity for re-export certificates (6 months),
import permits (12 months), certificates of origin (12 months), and
traveling exhibitions (3 years). Resolution Conf. 10.20 recommends that
certificates of ownership be valid for no more than 3 years.
This section incorporates the recommended periods of validity
established in the Treaty and the resolutions. We also set the term for
an introduction-from-the-sea certificate at 12 months since the
activity is similar to import. All CITES documents must specify the
period of validity. All import and introduction-from-the-sea activities
must be completed by midnight (local time at the point of import) of
the expiration date indicated on the document. The only situation where
an extension of the period of validity is authorized is for certain
timber species under limited circumstances (see Sec. 23.73).
Several commenters suggested that the periods of validity specified
in this section for permits and certificates are too short. Another
stated that the period of validity for traveling-exhibition
certificates is too long. One commenter acknowledged that the periods
of validity for CITES documents are set out in the Treaty and in
Resolution Conf. 12.3 (Rev. CoP13), but urged us to ask the Parties to
revisit this issue. We believe the established timeframes are
reasonable for the activities permitted, and we do not believe it is
appropriate to amend the Treaty or necessary to amend the resolutions
in this regard.
Another commenter believed that the use of the phrase ``no longer
than...'' in
[[Page 48428]]
Sec. 23.54(b) to describe the period of validity of CITES documents
creates uncertainty for the regulated public. The commenter requested
that the section be amended to state that a document is valid for 6
months, 3 years, etc., as appropriate, unless the FWS places a special
condition on the document to address some unusual circumstance. In
general, we issue CITES documents for the maximum period of validity
allowed for the activity. We did not adopt the commenter's suggestion
because Sec. 23.54 provides the maximum period of validity for a CITES
document, but a document may be issued for a shorter period of time.
Use of CITES specimens after import (Sec. 23.55): Unless an
Appendix-I wildlife or plant specimen qualifies for an exemption under
Article VII of the Treaty, it can be imported only when the intended
use is not for primarily commercial purposes. In addition, the Parties
addressed subsequent use of certain Appendix-I sport-hunted trophies by
recommending that the trophies be ``imported as personal items that
will not be sold in the country of import'' (Resolution Conf. 10.14
(Rev. CoP13) for leopard, Resolution Conf. 10.15 (Rev. CoP12) for
markhor, and Resolution Conf. 13.5 for black rhinoceros).
This section provides conditions for the import and subsequent use
of certain CITES specimens. The import and subsequent use of Appendix-I
specimens and certain Appendix-II specimens, including transfer,
donation, or exchange, may be only for noncommercial purposes. Such
imports are conditioned that the specimen and all its parts, products,
and derivatives may not be imported and subsequently used for any
commercial purpose. Other Appendix-II specimens and any Appendix-III
specimen may be used for any purpose after import, unless the trade
allowed under CITES is only for noncommercial purposes.
Section 9(c)(1) of the ESA, which contains a prohibition on
illegally traded specimens, confirms that the FWS's regulatory
responsibility does not end at import. The commercialization of
Appendix-I specimens can result in further demand, which is contrary to
the intent of allowing limited import of Appendix-I specimens. We note
that the condition does not apply to specimens, such as artificially
propagated orchids, that are traded under a CITES Article VII
exemption.
Two commenters supported the restriction on subsequent use of most
imported Appendix-I species and Appendix-II species with an annotation
prohibiting commercial trade as an important means of conserving these
species. One of these commenters was concerned, however, that there is
no mechanism, such as a reporting requirement, by which the FWS will
track use of specimens over time. We have decided against adding any
type of periodic reporting requirement on subsequent use of imported
specimens. The regulations are clear, however, that such specimens may
be used only for noncommercial purposes, and any use inconsistent with
this standard would be a violation of the regulations. As noted in the
2006 proposed rule (71 FR 20167), the FWS will investigate any
situation for which we receive information that such an imported
specimen is being commercialized.
The same commenter expressed confusion over statements in the 2006
proposed rule (71 FR 20167) that certain specimens may only be imported
when they are not to be used for primarily commercial purposes and that
such specimens may be used only for noncommercial purposes. This
commenter asked for clarification for what appeared to be two different
standards.
Prior to importation of an Appendix-I specimen, the Management
Authority must be satisfied that the specimen is not to be used for
primarily commercial purposes. We cannot make a finding of not for
primarily commercial purposes if the specimen could be commercialized
following import. Therefore, this section is clear that any subsequent
use of such specimens must be noncommercial.
One commenter argued that provisions in this section would prevent
future donations of specimens for educational purposes. As explained in
the 2006 proposed rule (71 FR 20167), certain specimens may only be
imported when the use is not for primarily commercial purposes. Thus,
any subsequent use may be only for noncommercial purposes. Nothing in
the section prevents a person from donating or transferring an
Appendix-I specimen or a specimen of a species listed in Appendix-II
with an annotation prohibiting commercial trade. These specimens can
still be donated, consistent with any other requirements of law, as
long as there is no economic use, gain, or benefit by either the person
or institution receiving the donation or the person making the
donation. (See also the discussion in the preamble under Sec. 23.5 on
the definition of ``commercial.'')
Another commenter argued that it is only the purpose of the import
at the time of import that is regulated by CITES and any later use is
irrelevant. Nothing in the language of the Convention requiring the
finding that the specimen ``is not to be used for primarily commercial
purposes'' indicates that this examination is limited to the immediate
use by the importer. As we indicated in the 2006 proposed rule (71 FR
20167), the commercialization of Appendix-I specimens following import
can result in further demand, which is contrary to the intent of
allowing trade in Appendix-I specimens only under ``exceptional
circumstances.'' Appendix-II species that are annotated to allow trade
only for noncommercial purposes face similar commercial pressures. We
can only determine that the use will not be for ``primarily commercial
purposes'' when we know that the specimen will not be subsequently used
for economic gain or benefit.
One commenter disagreed with the provisions in paragraph (d) of the
table that allow for any use with certain types of Appendix-I specimens
and questioned how concerns regarding commercialization of Appendix-I
species will not be realized if commercial use of such specimens is not
prohibited. All of the situations listed under Sec. 23.55(d) represent
provisions under Article VII of the Convention that provide exemptions
from the requirements otherwise imposed for Appendix-I species under
Article III. These exemptions represent situations in which the Parties
have found that commercialization, or the potential for
commercialization, of certain types of specimens does not pose a threat
to species whose trade must otherwise be limited to noncommercial uses.
CITES document conditions (Sec. 23.56): General conditions apply
to all CITES documents, standard conditions apply to specific types of
documents, and special conditions may be placed on a CITES document
when the authorized activity warrants it. All CITES document conditions
must be met for a shipment to be lawful.
Resolution Conf. 8.13 (Rev.) recommends that Parties, where
possible and appropriate, adopt the use of microchip transponders for
the secure identification of live Appendix-I wildlife. Because the
Parties have identified a number of technical issues that need to be
addressed, we are not requiring that all Appendix-I wildlife be marked
with microchips. We do require, however, that all live Appendix-I
wildlife be securely marked or uniquely identified. If a microchip is
used, we may, if necessary, ask the importer, exporter, or re-exporter
to have
[[Page 48429]]
equipment on hand to read the microchip at the time of import, export,
or re-export. One commenter supported the requirement that Appendix-I
specimens be securely marked or uniquely identified.
What Are the Changes to Subpart D of 50 CFR Part 23--Factors Considered
in Making Certain Findings?
Legal acquisition (Sec. 23.60): Under Articles III, IV, and V of
the Treaty, we must make a legal acquisition finding before issuing
export permits and re-export certificates for Appendix-I, -II, and -III
wildlife and plants. The Parties have also agreed through a number of
resolutions to make this finding before issuing certain exemption
documents under Article VII of the Treaty. These include Resolutions
Conf. 10.16 (Rev.) and 12.10 (Rev. CoP13) on wildlife bred in
captivity; Conf. 9.19 (Rev. CoP13) and 11.11 (Rev. CoP13) on
artificially propagated plants; Conf. 10.20 on personally owned live
wildlife; and Conf. 11.15 (Rev. CoP12) on scientific exchange.
There are two types of legal acquisition determinations: (a)
whether a specimen and its parental stock were traded internationally
under the provisions of CITES and (b) whether they were acquired
consistent with relevant laws for the protection of wildlife and
plants. In the United States, these laws include all applicable local,
State, Federal, tribal, and foreign laws.
We make the legal acquisition finding on a case-by-case basis
considering a number of general and specific factors (see the preamble
to Subpart E for a discussion of legal acquisition for State or tribal
programs). General factors include the status of the species; whether
the specimen was cultivated from exempt plant material, is a hybrid, or
was bred in captivity or artificially propagated; whether the species
is common in a captivity or cultivation in the United States and has
been documented to breed or propagate readily in a controlled
environment; and whether significant illegal trade in the species
occurs, specimens have been legally imported into the United States,
and the range countries allow commercial export of the species. We also
consider a number of specific factors, such as whether the specimen was
confiscated, a donation of unknown origin, or imported previously.
Thus, while it is the responsibility of the applicant to provide
sufficient information for us to make this finding, we consider not
only information provided by the applicant but other relevant trade
information, scientific literature, and advice of experts. In making a
legal acquisition finding, we may also consult with foreign Management
and Scientific Authorities, the CITES Secretariat, other U.S.
governmental agencies, and nongovernmental experts.
We hold persons who conduct commercial activities involving
protected wildlife and plants to a high standard in understanding and
complying with the requirements of the laws that affect their
activities. We apply a lower information requirement, in most
instances, for a person who acquires a specimen in the United States
and wants to travel internationally with it for personal use. One
commenter disagreed with this approach and stated that all trade,
whether commercial or noncommercial, should be subject to the same
level of scrutiny. We believe this system for individuals traveling
internationally with their personal items or personally owned live
wildlife is appropriate for the limited number of specimens involved,
for the low conservation risk posed. We will, however, request
additional information when noncommercial trade in a particular species
raises greater conservation concern.
For the export of specimens that are bred in captivity or
artificially propagated in the United States, we consider whether the
breeding stock or cultivated parental stock was established under the
provisions of CITES and relevant national laws according to Resolutions
Conf. 10.16 (Rev.) and 11.11 (Rev. CoP13). In addition, for the
registration of Appendix-I commercial breeding operations or nurseries,
Resolutions Conf. 12.10 (Rev. CoP13) and 9.19 (Rev. CoP13) require that
a Management Authority demonstrate that the parental stock was legally
acquired. We defined the terms ``parental stock,'' ``breeding stock,''
and ``cultivated parental stock'' (see Sec. Sec. 23.5, 23.63, and
23.64,respectively).
We also allow the export of donated CITES specimens of unknown
origin by public institutions on a case-by-case basis under limited
circumstances. In some instances, public institutions, primarily zoos,
aquariums, and botanical gardens, receive unsolicited donations of
wildlife and plants. When this occurs, the institution may not be able
to obtain reliable information concerning the origin of the specimen.
It is extremely difficult to issue a permit when no data exist on the
origin of the specimen, especially when the donor remains anonymous.
The underlying purpose of CITES is to protect, conserve, and benefit
the listed species. We believe that these regulations, rather than
opening a loophole for laundering illegally obtained specimens, will
assist in the suitable placement of specimens without leading to
illegal or unjustified removal of wildlife and plants from the wild. We
emphasize that this provision is only for limited, noncommercial
international trade in CITES species.
We received over 40 comments on this section, all of which were
supportive. One commenter was concerned about how we would obtain data
on the volume of illegal trade since there is no centralized source of
data on all illegal trade. It is true that there is not a single,
central source of illegal trade data, but we do have the ability,
through consultation with other Parties, the CITES Secretariat,
nongovernmental organizations, and law enforcement agencies to obtain
data on illegal trade. It is through the review of these data that we
are able to make a determination on the presumed level of illegal trade
in CITES species.
We removed ``volume of legal trade'' from the list of factors in
Sec. 23.60(d)(5) because the risk associated with the volume of legal
trade is not a continuum but rather must be considered on a case-by-
case basis when making a legal acquisition finding.
Non-detriment findings (Sec. 23.61): Under Articles III and IV of
the Treaty and Resolution Conf. 10.3 we must make a non-detriment
finding before issuing export permits and introduction- from-the-sea
certificates for Appendix-I and-II wildlife and plants and import
permits for Appendix-I wildlife and plants. This section explains how
the U.S. Scientific Authority makes its non-detriment findings.
We identify several factors that we consider in making a non-
detriment finding. These factors include whether the activity
represents sustainable use or would result in net harm to the status of
the species in the wild. We believe that ``no net harm'' is appropriate
because the finding required by CITES is whether a proposed activity
will be detrimental to the survival of the species, not individual
animals. For both Appendix-I and -II species, this generally involves a
determination of whether there is any effect, either adverse or
beneficial, on the species in the wild, and if so, an assessment of the
productivity of the species to determine whether the removal of
specimens from the wild will adversely affect the species' long-term
viability. However, Appendix-I species require consideration of
additional factors, such as the effect of the import or export on
recovery efforts for the species, including long-range strategies to
ensure the survival of the species. All the
[[Page 48430]]
effects of the proposed trade, whether direct, indirect, or cumulative,
must be assessed to determine the aggregate ``net'' effect on the
survival of the species before making the finding. We amended
23.61(g)(5) so that it reads ``from high to low occurrence of legal
trade'' because high volumes of trade, either legal or illegal, create
potential for detriment. Species subject to high volumes of trade may
be selected as candidates for the Review of Significant Trade to assess
whether non-detriment findings are being made appropriately.
One commenter asked us to further clarify our statement that a non-
detriment finding must take into account ``no net harm'' to the species
rather than ``no harm'' to individuals within a species. Two commenters
strongly supported our view. One supporter noted that it has become
increasingly necessary to engage in conservation activities that result
in a net benefit to the species, but which at the same time may result
in some negative impact on a limited number of individuals. Our
approach follows the requirement of the Treaty, which focuses on
species rather than individual specimens with regard to non-detriment
findings.
We consider a number of factors in making the non-detriment
finding, including biological, trade, and management information on the
species. The information must include not only what is known about the
current status of the species, but the potential biological impact that
the proposed import or export will have. For example, we consider
whether the biological impact is to reduce the population of the
species (by direct removal of animals) or to interfere with
reproduction or recruitment (such as by targeting breeding animals or a
specific age-class for removal or sampling). The type and magnitude of
the biological impact are weighed against the status and needs of the
species to determine whether issuance of the permit will be detrimental
to the survival of the species.
This section describes how we use both risk assessment and
precautionary measures to make a non-detriment finding. There is a
continuum of how stringent the documentation requirements may be for us
to make a non-detriment finding. The higher-risk, rarer species will
generally require a more complete documentation trail to show that they
were obtained in a manner that was not detrimental to the survival of
the species. Documentation requirements will be strictest for species
that have been recently discovered, are not established in cultivation
or breeding programs, are difficult to propagate or breed, and, most
importantly, could be adversely impacted by trade in wild-collected
specimens due to a restricted range or other factors. We use
precautionary measures when a review of the available information
reveals an absence of essential data as to the intensity of the effect
of the proposed trade on the status of the species in the wild. The
lack of information may cause the Scientific Authority to be unable to
findthat the import or export will not be detrimental to the survival
of the species. This process was upheld by the Federal District Court
in Prima v. DOI, (E.D. La. Feb. 19, 1998) when we denied a CITES
document based on a lack of sufficient information to make a non-
detriment finding.
We only question the finding of the exporting country if our
analysis of the best available biological information shows a problem.
We can neither accept the finding of the exporting country nor
ascertain the potential for detriment derived from the purpose of the
import without knowledge of the exporting country's management program
for the species (including whether one exists or is being implemented)
or what scientific information exists on the species itself. We must
also determine whether the effect of allowing imports for a particular
purpose can be separated from other potentially detrimental impacts on
the species, including trade for other purposes.
We are bound to base our non-detriment finding on the best
available biological and management information, and Resolution Conf.
9.21 (Rev. CoP13) contains sufficient latitude to allow this. The
resolution does not require us to accept imports of Appendix-I species
blindly if the Parties have approved a quota for the species for the
country of export. Rather, the resolution contains a provision that
preserves the independent authority of the Scientific Authority of an
importing country to make its own non-detriment finding if the quota
has been exceeded or if ``new scientific or management data have
emerged to indicate that the species' population in the range State
concerned can no longer sustain the agreed quota.'' Similar to our
rationale for obtaining information from range countries for making our
non-detriment findings on the import of trophies, we rely on the best
available scientific and management information on the species for the
exporting country to determine if the basis for the quota is still
valid. We use the best available biological information, not just the
information used as the basis for the quota.
Most commenters agreed with our description of how we make non-
detriment findings. We received many comments endorsing our statement
that controlled trade may create incentives for conservation and our
consideration of adaptive management in making non-detriment findings.
Several commenters supported our recognition of the potential
ecological harm caused by importation of invasive species under CITES
permits. One supporter asked why disease transmission is a factor
considered in making the findings when invasive potential is not. We
consider disease transmission because we are examining the potential
effects disease could have on other members of the imported or exported
species, whether in the wild or in captivity. Invasive potential
describes the effects the imported or exported species could have on
other species, so it is not relevant to whether or not the trade is
detrimental to the survival of the species being imported or exported.
One commenter said that the FWS should not collect information to
make a non-detriment finding for imports of sport-hunted trophies of
Appendix-I species if the trophy is covered by an export quota reported
by the range country to the Secretariat and the exporting country has
issued its own non-detriment determination. We and several commenters
disagree. This was also discussed in the 2006 proposed rule (71 FR
20167). Resolution Conf. 2.11 (Rev.), on trade in hunting trophies of
species listed in Appendix I, recommends that the Scientific Authority
of the importing country make an independent non-detriment finding in
accordance with Article III of the Convention. Resolution Conf. 9.21
(Rev. CoP13) regarding interpretation and application of quotas for
species included in Appendix I also gives Parties the flexibility to
evaluate scientific and management data to determine whether the quota
adequately ensures the sustainability of the species. The commenter
objected to Sec. 23.61(f)(4) because we indicate that, where
insufficient information is available to make the non-detriment
finding, we take a precautionary approach and state that we are unable
to find non-detriment. He suggests that, in such situations, we use
Resolution Conf. 8.3 (Rev. CoP13), which recognizes the socioeconomic
and conservation benefits of trade in wildlife. We note that Resolution
Conf. 8.3 (Rev. CoP13) indicates that there are benefits of wildlife
trade only ``when carried out at levels that are not detrimental to the
survival of the species in question.''
[[Page 48431]]
Three commenters stated that we should not treat non-detriment
determinations for imports and exports of Appendix-I species in the
same manner. We addressed this comment in the 2006 proposed rule (71 FR
20167) and refer the commenters there for additional clarification. One
commenter suggested we add language to the regulations to consider the
cumulative effects of past and likely future imports of specimens on
the survival of the species. This is generally considered in Sec.
23.61(e)(3).
A few commenters recommended adding a provision that would
accommodate a streamlined process for making non-detriment findings
under circumstances where a range-wide population assessment for a
particular Appendix-II species has been completed. We agree that a
range-wide population assessment would be very useful in making non-
detriment findings. It may even expedite the process by providing much
of the information needed to make the finding; however, such an
assessment would still need to be reviewed as part of our independent
process of determining non-detriment.
One commenter suggested that we modify Sec. 23.61(e)(1) to allow
consideration of the risk of extinction for both the species as a whole
and the population from which the specimen was obtained when making a
non-detriment finding. Another commenter asked that the FWS only
consider the species as a whole in making the finding. We maintained
the text ``species as a whole or the population from which the specimen
was obtained'' because, if during the course of our review of the
species throughout its range we determine that there is cause for
focusing on a specific region or population from which the specimen was
removed, we may consider the more local threats. There may be instances
where the species is abundant throughout parts of its range, yet may be
threatened in other parts. In addition, Article IV of the Treaty states
that the Scientific Authority should ensure that the export of
specimens listed in Appendix II is controlled in order to maintain the
species throughout its range at a level consistent with its role in the
ecosystems in which it occurs.
One commenter provided a list of additional biological factors to
consider when making non-detriment findings. Many of these suggested
factors are already considered under the more general factors in Sec.
23.61; others are not relevant. The commenter also requested regulatory
changes that are not consistent with the Treaty, such as requiring
countries exporting specimens to the United States to provide copies of
their non-detriment findings to the U.S. Scientific Authority for
review prior to export. As we explained previously, our determination
of non-detriment for Appendix-I species is independent of the finding
made by the exporting country. Although the exporting country is not
required to send copies of its non-detriment finding on Appendix-II
species to the importing country, if there is reason to suspect that
appropriate and valid findings are not being made, a country or species
can be considered for the Review of Significant Trade by the CITES
Animals or Plants Committee. The commenter also suggested that non-
detriment findings should not be limited to the survival of the
species, but should require that there is a conservation benefit to the
species from the import or export. We disagree because the requirement
for a conservation benefit would be beyond the requirements of the
Treaty.
Two commenters requested that the public be able to comment on
Appendix-I and Appendix-II applications. We responded to similar
comments in the 2006 proposed rule (71 FR 20167).
Not for primarily commercial purposes (Sec. 23.62): Under Article
III of the Treaty, import permits or introduction-from-the-sea
certificates for Appendix-I species can be issued only when a
Management Authority is satisfied that the specimen will not be used
for primarily commercial purposes. The Parties interpreted ``primarily
commercial purposes'' in Resolution Conf. 5.10. We incorporated the
provisions of this resolution in this section and defined
``commercial'' and ``primarily commercial purposes'' in Sec. 23.5.
For an import or introduction from the sea of an Appendix-I
specimen to qualify for a CITES document, the noncommercial aspects of
the import or introduction must clearly predominate. We evaluate each
application on a case-by-case basis and take all factors involved into
account. The applicant needs to provide core information on the
purposes for carrying out the proposed activity and the intended use of
the specimen after import or introduction from the sea for us to
consider in making our finding. If the noncommercial aspects do not
clearly predominate, we will consider the import or introduction from
the sea to be primarily commercial.
Instead of a specific list of information that each applicant must
provide, we describe how we make our finding, provide examples of types
of transactions in which noncommercial aspects may predominate, and
outline factors we will consider in assessing the level of information
we will need to make a finding. As with legal acquisition (Sec. 23.60)
and non-detriment (Sec. 23.61) findings, we use a risk assessment
approach in evaluating the level of information needed to make our
finding. We require less detailed information when the import or
introduction from the sea has a low risk of being primarily commercial,
and require more detailed information when the proposed activity poses
greater risk. For activities with a high risk of being primarily
commercial, we will analyze anticipated measurable increases in revenue
and other economic value associated with the proposed import or
introduction from the sea. Based on our experience, we anticipate that
we will rarely receive an application that involves activities with
anticipated high net profits. We expect that only in rare instances
will we need to ask the applicant for the detailed analysis described
in Sec. 23.62(e)(4).
Two commenters indicated that we had not provided a clear enough
explanation of what we consider a ``high-risk activity.'' Although we
do not specifically define this term, we provide a list of the factors
we consider (see Sec. 23.62(d)) in making our finding and the risk,
from high to low, associated with each factor. We ask applicants to
describe their proposed activity and intended use. If information
raises a reasonable question of whether commercial motivation may have
influenced the proposed import, we will ask for more detailed
information.
One commenter disagreed with the use of a risk assessment process
under this section. Another commenter stated that the risk assessment
approach penalizes public display facilities that are interested in
obtaining specimens that have high public appeal or are not common in
the United States, thus raising the ``risk'' that the import is
commercial in nature. The risk assessment approach is a tool to
facilitate review of applications. By using such an approach, we are
able to lower the documentation burden on some applicants, without
eliminating the possibility that for other applications we need more
documentation than normally requested. We consider the type of entity
as a factor in deciding the level of information we need to make a
finding. In general, the nature of for-profit organizations makes it
more difficult for us to find that specimens involved in a proposed
import or introduction from the sea will not be
[[Page 48432]]
used for primarily commercial purposes. In all cases, however, we make
the required findings on a case-by-case basis taking intoaccount all
available information.
One commenter disagreed with the statement in Sec. 23.62(b)(5)
that we will consider the purpose of the export in making a not-for-
primarily-commercial-purposes finding and asserted that conservation
benefits to range States should not be considered as part of this
finding. The same commenter argued that commercial enterprises, such as
public display facilities, should never be allowed to import an
Appendix-I specimen by claiming that the purpose is for conservation or
education. We disagree. It is possible that an import or introduction
from the sea, although superficially commercial, may qualify as not for
primarily commercial purposes because anticipated profit will be offset
by conservation benefits provided through assistance to range
countries, research, or other considerations that result from the
import or introduction from the sea.
In the 2006 proposed rule (71 FR 20167), we stated that all net
profits generated from activities associated with the import or
introduction from the sea of an Appendix-I species must be used for
conservation of the species in a range country. Two commenters strongly
supported this requirement. Two other commenters voiced strong
opposition, citing a belief that there is no legal basis for such a
requirement and that it would be more appropriate as part of an
enhancement finding under the ESA. The same issue was raised earlier
and addressed in our 2006 proposed rule (71 FR 20167). One of these
commenters also stated that requiring a permittee to give up profits is
a disincentive to participation in conservation activities, amounts to
an illegal tax or fee, and violates the ``takings clause'' of the Fifth
Amendment.
Before we can issue a CITES document, we need sufficient
information to make the required findings. We have determined that for
activities with a high risk of being primarily commercial (i.e.,
activities that are anticipated to generate revenue above the operating
cost of maintaining the specimen), the purpose of the import would be
considered primarily commercial if the institution or individual that
imported the specimen utilized the profits for any purpose other than
for the conservation of the species. We do not agree with the commenter
that this requirement is a violation of the U.S. Constitution.
However, after additional analysis, we believe that requiring all
net profits generated in the United States from such activities be used
for the conservation of the Appendix-I species in a range country may
not be reasonable, or even desirable, in some cases. We are aware that
there are situations where ex situ conservation efforts, such as
research or captive breeding, may provide greater benefit to a species
than attempting to carry out in situ conservation in a country where
the logistical or political situation would make such activities
unworkable. As a result, we have modified Sec. 23.62(b)(7). We will
still require that net profits be used for conservation of the species,
but will not specifically require that these funds be used in a range
country. We will continue to request information on how revenue
generated by the import of the Appendix-I specimen would be utilized,
including a description of any funded conservation project and its
monitoring plan, for consideration when making our finding.
One commenter argued against the economic analysis described in
Sec. 23.62(e). Another commenter supported an extensive review of all
profits associated with the import and use of an Appendix-I specimen,
but requested an explanation of how we intend to conduct such
comprehensive reviews and how we intend to monitor a facility to ensure
that it continues to use any profits generated from the import in the
manner required by the regulations.
As stated previously, we do not anticipate that there will be many
cases in which the importer would need to provide in-depth, ongoing
financial reporting. As both commenters correctly noted, the
onlycurrent reporting of this type is for giant pandas. We believe that
the reporting requirements are being successfully implemented by the
four U.S. zoos that currently hold pandas. To date, the reporting has
provided clear documentation to support our finding that the import was
not for primarily commercial purposes and has allowed us to monitor the
activities to ensure that our initial findings remain valid.
One commenter suggested that this section should be revised to make
it consistent with our definition of commercial and argued that, if we
interpreted the concept correctly, we could not consider the import of
sport-hunted trophies to be not for primarily commercial purposes. We
allow the import of Appendix-I sport-hunted trophies only for personal
use, which is not a primarily commercial purpose. The Parties have
recognized that trade in certain Appendix-I specimens and annotated
Appendix-II specimens is allowable provided that the specimen is a
personally hunted trophy that will not be used for commercial purposes.
We believe our definition of sport-hunted trophies, as written, is in
line with the intent of the Parties (see discussion in the preamble for
Sec. 23.74).
Bred in captivity (Sec. 23.63): Article VII(4) and (5) of the
Treaty provide exemptions for wildlife bred in captivity. To establish
a standard interpretation of the term ``bred in captivity,'' the
Parties adopted Resolution Conf. 10.16 (Rev.). We incorporated
provisions of the resolution in this section.
In making this finding, we consider the conditions under which an
individual specimen is bred, whether the breeding stock was established
legally and in a non-detrimental manner, and whether it is maintained
with limited introduction of wild specimens. We also consider whether
the breeding stock has reliably produced offspring to at least the
second generation (F2), or whether it is managed in a way that has been
demonstrated to result in the reliable production of F2 offspring and
has produced some F1 offspring.
We may consider whether specimens of a species qualify as bred in
captivity for the breeding population of an individual operation or any
larger conglomerate of breeding operations, up to and including the
entire U.S. captive population. The breeding stock of an individual
operation may independently meet the bred-in-captivity criteria based
on its own history and production data, including the reliable
production of F2 offspring. Few operations, however, have sufficient
stock to meet the criteria. Also, we may limit bred-in-captivity
findings to individual operations when information on a broader captive
population is lacking, when there is ongoing import of wild-caught
specimens into the United States, or if there is significant illegal
trade in the species. Alternatively, by evaluating a larger population,
we have more extensive information with which to make our finding. If
we can demonstrate that the entire U.S. population or any conglomerate
of breeding operations meets the criteria, then all specimens within
that breeding population can be considered to meet the criteria without
requiring a review of each individual breeding facility.
Typically, we consider the entire U.S. captive population of an
exotic species to meet the bred-in-captivity criteria if, among other
things, the U.S. population is a ``closed'' population that is not
augmented through imports of wild-
[[Page 48433]]
caught specimens. These often are populations that can be tracked to a
limited parental population that qualifies as pre-Convention or was
otherwise legally established, and for which there is both a lack of
evidence of current illegal trade into the United States and reliable
breeding of the species within the United States to F2 or beyond. Thus,
we have determined that a number of species commonly held in the United
States (such as lions, tigers, and brown-eared pheasants) qualify as
bred in captivity. We may find, however, that only part of the U.S.
population qualifies as bred in captivity, such as a population managed
cooperatively by zoos, if only that part of the population can be shown
to meet the criteria.
One commenter requested clarification of whether animals bred and
raised on a U.S. game ranch would qualify as bred in captivity under
these regulations. To meet the definition of bred in captivity, a
specimen must be bred in a controlled environment that is actively
manipulated to produce specimens, enclosed to prevent the movement of
specimens out of the environment, and have characteristics such as
artificial housing, waste removal, provision of veterinary care,
protection from predators, and artificially supplied food. In general,
we would consider a controlled environment as being a small enclosure
(less than a few acres) where an animal could not survive without
direct human assistance. While it may be possible that animals could be
held in a controlled environment, as defined by the regulations, on a
game ranch, we would not normally consider a large (over a few acres)
area surrounded by a game fence to be such a controlled environment.
Typically, game ranches in the United States consist of hundreds of
acres of open area where there is limitedhuman interaction, and the
animals can survive without direct human assistance. However, if you
believe specimens on your game ranch meet the requirements, we will
evaluate your request to designate animals bred at your facility as
bred in captivity.
One commenter suggested that there should be an allowance for
noncommercial breeders of Appendix-I species to periodically augment
their programs with wild stock. The commenter noted that this is
particularly important for rare species, so that best-suited
individuals are maintained in captivity and for re-introduction, if
required. This section of the rule allows the occasional introduction
of wild specimens and lists conditions that are similar to those
required by Resolution Conf. 10.16 (Rev.). The purpose of the
augmentation must be to prevent or alleviate deleterious inbreeding or
to dispose of confiscated animals. However, wild Appendix-I specimens
may not be imported for the purpose of augmenting a commercial captive-
breeding operation because this would be a violation of Article III. We
added a reference to Sec. 23.46(b)(12) in Sec. 23.63(d) to highlight
this restriction.
Two commenters were critical of Sec. 23.63(c)(3)(iv) because they
thought it appeared to be stricter, and thus more difficult to meet,
than Resolution Conf. 10.16 (Rev.). They believed our addition of
``consistently'' and ``has produced first-generation offspring'' to the
criteria in Sec. 23.63(c)(3)(iv) went beyond the intent of the
resolution. We addressed this in the 2006 proposed rule (71 FR 20167)
and believe that this section as written is consistent with Article
VII(4) and (5) of the Treaty and the intent of Resolution Conf. 10.16
(Rev.). We will base our determination of whether a breeding operation
has achieved consistent production or second or subsequent generations
on the life-history characteristics of the taxon involved. Some species
mature quickly, have short gestation periods, and produce many
offspring, whereas other species take many years to mature, have long
gestation periods, and produce few offspring. Thus, fewer offspring
could indicate consistent production in species that take many years to
reproduce when compared to species that would be expected to reproduce
earlier and more frequently. If an operation has not consistently
produced specimens to the second or subsequent generations, we require
that it has produced first-generation offspring and is using husbandry
methods demonstrated to result in the production of second and
subsequent generations. We cannot determine that a breeding operation
is able to implement methods for producing second-generation offspring
if it has not demonstrated its ability to reproduce the species at all.
One commenter was concerned that the bred-in-captivity provisions
could allow for fraudulent labeling of wildlife as captive-bred. To
show that specimens qualify as bred in captivity, applicants must
demonstrate that they meet the criteria in Sec. 23.63. Past applicants
have included breeding records, photographs of the breeding facility,
and documentation of the origin of the founder stock. If we receive
reports of fraudulent documentation or other illegal activity, we will
work with our Office of Law Enforcement to take appropriate action. The
commenter also mentioned that we do not include a marking requirement
for captive-bred specimens. However, the regulation is consistent with
Resolution Conf. 10.16 (Rev.), which recommends that trade in a
specimen bred in captivity be permitted only if it is marked in
accordance with resolutions adopted by the Parties. We have
incorporated those resolutions in the appropriate sections of these
regulations.
Artificially propagated (Sec. 23.64): Article VII(4) and (5) of
the Treaty provide exemptions for artificially propagated plants.
Modern developments in plant propagation, such as the use of
micropropagation and growth of seedlings in sterile flasks, have
allowed large quantities of artificially propagated plants to be
produced. Resolution Conf. 11.11 (Rev. CoP13) addresses ways to reduce
the paperwork required to trade plants internationally while
maintaining protection of wild plants.
This section is based on Resolution Conf. 11.11 (Rev. CoP13), and
incorporates criteria we use to decide whether plants, including
cuttings or divisions, grafted plants, and timber, qualify as
artificially propagated. To qualify as artificially propagated, a plant
must have been grown under controlled conditions. We also consider
whether the cultivated parental stock was established legally and in a
non-detrimental manner, and whether it is managed in a way to ensure
its long-term maintenance. Plants grown from exempt plant material,
including exempt seeds that may have been collected from the wild, are
considered artificially propagated when grown under controlled
conditions.
At CoP13, the Parties agreed to amend the definition of
``artificially propagated'' to allow, in exceptional circumstances, for
some plants grown from wild-collected seeds or spores to be treated as
artificially propagated if certain conditions are met. The basis for
the exception is the practical limitations that arise for long-lived,
late-maturing species, such as certain trees (e.g., the monkey-puzzle
tree, Araucaria araucana). The exception is allowed only when the seeds
or spores are legally collected and propagated in a range country and
the Scientific Authority of that country has determined that the
collection of the seeds or spores was not detrimental to the survival
of the species in the wild, and further that allowing trade in such
specimens has a positive effect on the conservation of wild
populations. A portion of the plants produced must be used for
replanting in the wild, to enhance recovery of existing
[[Page 48434]]
populations, or to re-establish populations that have been extirpated.
Some plants produced under such circumstances must also be used to
establish a cultivated parental stock for future production so that
removal of seeds or spores from the wild can eventually be reduced or
eliminated.
One commenter noted that the definition and application of the term
``artificially propagated'' was too restrictive for wild seeds. The
commenter suggested that growers of woodsgrown American ginseng should
have the option of using locally harvested seeds from wild plants. As
described in the 2006 proposed rule (71 FR 20167), we are applying the
criteria of CITES Resolution Conf. 11.11 (Rev. CoP13) to determine
whether plants qualify as artificially propagated. If seeds from CITES
plant species are exempt from CITES control, as is the case for
American ginseng, then plants grown from exempt seed in controlled
conditions are considered artificially propagated according to the
criteria of Resolution Conf. 11.11 (Rev. CoP13). However, this is a
separate issue from whether States allow ginseng seed to be harvested
from the wild for such purposes or whether we consider collection of
wild seed for the production of artificially propagated ginseng to be
undermining the conservation of the species.
Suitably equipped to house and care for (Sec. 23.65): Under
Article III(3)(b) and (5)(b) of the Treaty, we must determine that any
individual or institution receiving a live Appendix-I specimen being
imported or introduced from the sea is suitably equipped to house and
care for that specimen. These requirements are to ensure that rare
specimens will survive following import.
This section outlines the factors we consider in making this
finding. All individuals or institutions that will be receiving
specimens must be identified in an application, whether or not they are
the actual importers of the specimens, and their facilities approved by
us, including individuals or institutions that are likely to receive
specimens within 1 year of the specimens' arrival in the country. We
consider all identified uses of the imported specimens that could be
reasonably expected to occur, and the housing and care requirements for
those uses.
We base our finding on the best available information on the
requirements of the species and information provided by the applicant.
We give closer scrutiny to applications for species with more demanding
biological and husbandry or horticultural needs. We would give less
scrutiny for a captive-born, commonly held species, like a scarlet
macaw (Ara macao), due to the ease with which such a species can be
held in captivity and the availability of veterinary care and
commercially prepared diets. For a species such as the Chinese giant
salamander (Andrias davidianus), which is not commonly held in
captivity and has very restrictive husbandry and housing requirements,
we will require a greater level of detail regarding the facilities and
personnel where the specimen would be held.
We also provide the general and specific factors that we consider
in making this finding. We consider whether a facility supplies
adequate space, appropriate living conditions (temperature, light,
etc.), adequate veterinary or horticultural care, sufficient security,
and properly trained staff to care for the specimen being imported. We
also assess whether a facility has had a reasonable survival rate of
specimens of the same or similar species previously in its care. We
believe 3 years of data on numbers of animals or plants maintained at
the facility, mortalities, and occurrence of significant disease
generally provides sufficient information for us to consider. The 2006
proposed rule (71 FR 20167) included language that suggested that we
would consider a facility's ability to reproduce or propagate specimens
in making a finding under this section. We have deleted those
references in paragraphs (d)(1) and (e)(3) because the purpose of the
finding is to determine if a facility is able to house and care for a
specimen, not whether a facility is capable of breeding or propagating
it.
An applicant may apply for a CITES document to import or introduce
from the sea a specimen before the facility is completed or the staff
who will maintain the specimen has been identified or properly trained.
In such a case, we review the information, including construction plans
or intended staffing, and make the finding based on that information.
We would, however, condition any resulting permit to require that the
import could not occur until the facility has been completed, or the
staff hired and trained, and approved by us.
Three commenters supported the provisions in this section. One
commenter encouraged us to maintain an open dialogue with experts
experienced with individual taxa because the ``state of the art'' in
animal and plant care is constantly changing. These regulations are
designed to allow such flexibility. We welcome the input of experts to
keep us informed about the most recent advances in animal and plant
care and husbandry.
Two commenters noted that many imported animal specimens are
covered by the Animal Welfare Act (AWA), which is administered by the
USDA. One commenter argued that this makes our regulations duplicative,
and another asked whether the FWS or the USDA regulations would take
precedence in determining whether or not a facility is suitably
equipped to house a particular species. The AWA is limited to warm-
blooded vertebrates and does not cover all instances in which we would
be required to make a finding under this provision. We consider whether
or not the applicant is USDA-licensed and consult with the USDA about
recent inspection reports. In cases where it is applicable, we will use
information from the USDA to inform our decision about a particular
facility.
The commenter also requested that we develop stringent species-
specific animal care regulations and include regular inspections of
facilities that receive imported specimens. We believe that this is
unnecessary. Our regulations allow for the evaluation of the housing
and care of the specimens of any taxon under a variety of conditions.
The FWS staff may visit facilities, and if there is reason to suspect
that animal care and housing is not what was reported, we can notify
USDA inspectors or our Office of Law Enforcement. The commenter
encouraged us to consider making the finding for all imported specimens
regardless of how the species is listed and whether or not the specimen
is captive bred. We have limited the regulations in this section to
implementing Article III (3)(b) and (5)(b) of the Treaty. There is no
basis for making such a finding for Appendix-II or -III species.
What Are the Changes to Subpart E of 50 CFR Part 23--International
Trade in Certain Specimens?
This subpart deals with situations that are either covered by
specific resolutions or by procedures we have developed to deal with
certain native CITES species from States or Tribes with appropriate
conservation management programs and legal controls. One commenter
suggested that we add a section in this subpart to address
international trade in raptors and another commenter requested the
addition of a section on trade in live animals to address humane
transport issues in greater detail. We believe that requirements for
trade in raptors and other live specimens are sufficiently described in
this rule as written, and
[[Page 48435]]
that separate sections covering such specimens are not necessary.
Export of heavily traded native species (Sec. Sec. 23.68-23.70):
Certain native species (American ginseng (Panax quinquefolius), bobcat
(Lynx rufus), river otter (Lontra canadensis), Canada lynx (Lynx
canadensis), gray wolf (Canis lupus), brown bear (Ursus arctos), and
American alligator (Alligator mississippiensis) that are managed by a
State or tribal conservation program are traded internationally,
sometimes in high volumes. As for all CITES Appendix-I and -II species,
before we can issue a CITES document to allow export, we must find that
the specimens were legally acquired and that the export will not be
detrimental to the survival of the species in the wild. Over the past
25 years, we have worked with State and tribal governments to develop
procedures that allow us to make the necessary findings
programmatically rather than permit by permit. When States and Tribes
provide information showing that they have established a management
program that ensures a sustainable harvest, and that they have the
means to identify or mark specimens that have been legally taken under
their system, we are able to make findings for specimens harvested
within their jurisdiction and thereby approve their program. A tag or
certificate issued by the State or Tribe demonstrates that a particular
specimen was harvested under an approved program and that the
appropriate findings have been made. This alternative to making the
legal acquisition and non-detriment findings on a permit-by-permit
basis reduces a potentially large workload for exporters as well as for
our offices.
States and Tribes for which programmatic findings have been made
submit annual reports to us containing information on the previous
harvest season. In some cases, such as for some furbearer species, we
make multi-year findings. Regular reporting from States and Tribes
allows us to determine whether our findings remain valid. In these
sections, we include the types of information we request from the
States and Tribes on an annual basis to maintain approval of their
export programs. A list of States and Tribes with approved CITES export
programs, copies of recent findings on which the approvals are based,
and conditions that must be met for lawful export will be posted on our
website or will be available from us (see Sec. 23.7).
Many commenters supported the provisions for approval of State and
tribal export programs, but would like the FWS to make range-wide non-
detriment findings, rather than State-by-State or Tribe-by-Tribe
assessments. We approve programs for the export of American ginseng,
furbearers, and crocodilians on a State-by-State or Tribe-by-Tribe
basis because they are managed by individual States or Tribes. We
require specific information about the population status and management
of the species on those specific State and tribal lands. As discussed
in Sec. 23.61, a range-wide population assessment would be useful in
making non-detriment findings because it would place the State or
tribal programs in the context of species management and population
status throughout its range. However, in making a non-detriment
finding, we must determine whether there are effects from the export,
including locally, that will impact the survival of the species.
Generally, the information provided to the FWS by a State or Tribe is
limited to the species' status in that State or tribal management area.
If, however, sufficient information is provided by States and Tribes
within the range of a particular species, we may review the
information, in conjunction with other available information, on a
range-wide basis. We have, for example, made a range-wide non-detriment
finding for bobcat. We added provisions in Sec. 23.69(b) to
accommodate situations where the Scientific Authority has made a range-
wide non-detriment finding.
The same commenters suggested that re-evaluation periods for range-
wide findings should be no less than every 5 years. As discussed in the
2006 proposed rule (71 FR 20167), subsequent to programmatic approval
for a State or Tribe, exports are approved as long as the periodic
submission of information by the State or Tribe shows that there is no
significant change in status or management of the species that might
lead to different treatment of the species.
One commenter requested stronger language to mandate that States
and Tribes provide relevant reports, and that the FWS disclose whether
it has detected tag fraud for furbearers and alligators issued to the
States and Tribes. We review the CITES furbearer and alligator activity
reports received from each approved State or Tribe to determine if our
programmatic findings remain correct or if the species needs closer
monitoring. If an assessment of the information indicates that the
population may be declining, we may request additional information from
the States or Tribes to conduct a more comprehensive review to ensure
that our findings are still valid. Violations in the use of tags are
monitored by the Office of Law Enforcement and disclosure is subject to
the rules and regulations governing release of investigative
information.
American ginseng roots (Sec. 23.68): Most American ginseng, both
collected from the wild and artificially propagated, is exported as
roots. Ginseng root is exported in a much larger volume than any other
native CITES plant species. Ginseng that has been legally harvested
under State or tribal requirements is certified by the appropriate
State or tribal authority prior to export. To document the legal origin
of the material, State or tribal certificates must accompany the
ginseng until the time of export from the United States.
We use two categories for ginseng, wild and artificially
propagated, because CITES only recognizes these two categories. The
permits we issue and our annual report to the CITES Secretariat use
only these two classifications.
If an applicant wishes to export ginseng as artificially propagated
even though it visually resembles wild ginseng, he or she must
demonstrate that the ginseng indeed meets the criteria for artificially
propagated plants. We note that the classification of ginseng as either
wild or artificially propagated on export permits is only for CITES
purposes and is not intended to indicate marketing categories or value
of the roots. Furthermore, it does not preclude the use of additional
categories by States and Tribes. We continue to monitor the use of
additional categories by States and Tribes, and we may use such
information in future decision making on ginseng exports as we evaluate
the impact of trade on the viability of the wild populations.
States or Tribes no longer provide us in their annual reports an
estimate of the average age of wild-harvested plants. Instead, the U.S.
Scientific Authority uses roots-per-pound information provided by the
States as an index to indicate shifts in age structure of harvested
roots.
One commenter suggested that we modify Sec. 23.68 (b)(1)(iii) so
that State or tribal personnel would only inspect and certify wild-
collected ginseng for export and not all wild-collected ginseng
harvested on State or tribal lands. Since the majority of wild-
collected ginseng is exported, having State or tribal officials inspect
all ginseng harvested in a particular State will minimize the
likelihood of under-aged or illegally obtained wild-collected roots
being exported. Additionally, some States do not require inspection of
wild-collected
[[Page 48436]]
ginseng for personal use, and ginseng that does not enter international
commerce is not subject to CITES requirements.
One commenter asked us to provide the list of States and Tribes
with approved ginseng programs in the regulations as well as on the FWS
website (see Sec. 23.7). It is easier to update the FWS website
quickly, and therefore, we will provide the list of approved States and
Tribes there. We do not believe it is necessary to provide the list in
the regulations as well.
In the 2006 proposed rule (71 FR 20167), we proposed changing the
annual report date from May 31 to May 1, to ensure that we receive
information in time for us to make required CITES findings before the
beginning of the next harvest season. Three commenters suggested that
we not change the annual reporting date from May 31 to May 1, because
it would require States to revise their existing ginseng laws and would
decrease the amount of time ginseng dealers, States, and Tribes have to
prepare the requested information. One of the commenters strongly
supported our intention to complete the required CITES findings early.
However, the commenter noted that the annual reports are one of many
references the FWS considers in making the findings. The commenter is
correct in that we consider additional information as well as
information provided in the annual reports when making our non-
detriment findings. However, under CITES we must also make a legal
acquisition finding, which is largely based on information contained in
the State reports. Based on further review of our requirements, and in
consultation with the State program coordinators, we have decided to
maintain the current May 31 reporting date.
CITES furbearers (Sec. 23.69): We define ``CITES furbearers'' to
include bobcat, river otter, Canada lynx, and the Alaskan populations
of gray wolf and brown bear. These species are included in Appendix II
under the provisions of Article II(2)(b) of the Treaty because their
parts, products, and derivatives are difficult to distinguish from
certain similar CITES Appendix-I and -II species.
To streamline the export process for CITES furbearers, we review
the programs that States and Tribes have set up for management and
harvest. We approve programs for States and Tribes when they have
provided information that allows us to make the required non-detriment
and legal acquisition findings. Our non-detriment finding takes into
account that the CITES furbearers are listed in Appendix II because of
their similarity of appearance to species listed under Article II(2)(a)
of the Treaty. These species are listed to ensure that trade in the
species to which they are similar is effectively controlled. We are
obligated, however, by the Treaty to ensure that such a species does
not decline to the point that it qualifies to be treated as an
Appendix-II species under Article II(2)(a) of the Treaty.
Under the current regulations, States and Tribes with approved
programs must have procedures for placement of CITES export tags on fur
skins. When a fur skin with a CITES tag is presented for export, the
tag provides assurance that the fur was harvested under an approved
CITES export program and that the necessary findings have been made.
This allows the exporter to more quickly obtain CITES documents from
either the U.S. Management Authority or certain FWS Law Enforcement
offices (see Sec. 23.7). However, there may be flexibility in whether
furbearer skins must be tagged. The utility and effectiveness of the
current U.S. CITES tagging regime has been the subject of ongoing
discussions between the FWS and the States and Tribes. Through this
process we are exploring other ways to demonstrate legal acquisition,
for example, the possible use of a documentation system in lieu of
tags, or issuance of a national legal acquisition finding based on
State and tribal legal and enforcement systems. Any alternative system
of determining legal acquisition must be as reliable as the current
system. Many State fish and wildlife agencies and fur trapper
associations endorsed efforts to develop an alternative to tags. We
will continue to work with States and Tribes to explore other ways to
provide evidence of legal acquisition.
We review the information we receive annually from each State or
Tribe to determine if our programmatic findings remain correct or if
the species needs closer monitoring. Article IV(3) of the Convention
requires the Scientific Authority to monitor trade in any Appendix-II
species, regardless of whether it is listed under the provisions of
Article II(2)(a) or II(2)(b). Species listed in Appendix II are not
designated as being listed for similarity of appearance (i.e., they are
not designated as being listed under Article II(2)(a) or II(2)(b)), and
the Convention lacks a mechanism for review of Appendix-II species to
determine if they should continue to be listed under the provisions of
Article II(2)(b). It is the responsibility of each range country to
monitor its species listed under Article II(2)(b) and determine whether
they subsequently qualify under Article II(2)(a).
Crocodilians (including American alligator) (Sec. 23.70): This
section incorporates Resolution Conf. 11.12 and extends the tagging
requirements to all crocodilian skins entering international trade,
which assists Parties in identifying legal skins. Raw, tanned, or
finished crocodilian skins may be imported, exported, or re-exported
only if tagged with a non-reusable tag containing specific information.
The requirements of the special rules in 50 CFR part 17 concerning the
American alligator and other threatened crocodilians must be met in
addition to the requirements of this section.
Like American ginseng and native CITES furbearers, we have
developed specific CITES procedures for States and Tribes with an
approved conservation program for the American alligator. As part of
the reporting required under the program, participating States and
Tribes provide us with information on how many alligators were taken
during the wild harvest and how many alligators were harvested from
farming facilities.
One commenter questioned why the requirements for marking of
American alligator meat and skulls are different from those for other
crocodilians. When we incorporated the marking requirements from the
special rules in part 17 into this section, we did not change those
requirements. The marking requirements for American alligator meat and
skulls were developed to accommodate different State marking
requirements.
Two commenters asked us to develop a system to expedite issuance of
export permits for American alligator skins, similar to the process in
place for Appendix-III turtles. The system in place for Appendix-III
wildlife is not appropriate for Appendix-II wildlife. Export of
specimens listed in Appendix III, including certain turtle taxa native
to the United States, requires only a legal acquisition finding. By
contrast, American alligators are listed in Appendix II, and therefore,
we must make a non-detriment finding in addition to a legal acquisition
finding before issuing an export permit.
Sturgeon caviar (Sec. 23.71): At CoP10, all sturgeons that were
not already included in the CITES Appendices were added to Appendix II.
This section implements Resolution Conf. 12.7 (Rev. CoP13), including
requirements for labeling of caviar containers, provisions for shared
populations subject to annual export quotas, and re-export timeframes
for caviar.
To assist Parties in identifying legal caviar in trade, the
resolution
[[Page 48437]]
recommends a universal labeling system. Sturgeon caviar may be
imported, exported, or re-exported only if non-reusable labels
containing specific information are affixed to primary and secondary
containers. If caviar is repackaged before export or re-export, the
containers must be re-labeled to reflect the change.
To improve monitoring of re-exports in relation to the original
export permits, the Parties agreed to establish time limits for re-
exporting caviar. We require that any re-export of caviar take place
within 18 months from the issuance date of the original export permit.
We also clarify that caviar and caviar products that contain the roe of
more than one species may only be imported into or exported from the
United States if each species is identified and the quantity of each
species is specified on the CITES document. In the final rule, we
amended Sec. 23.71(g) to more clearly describe this requirement and to
underscore that we include products made with caviar under this
paragraph.
To assist in monitoring the level of exports in relation to annual
export quotas and to address certain unscrupulous trade practices, the
Parties agreed to place a time limit on export of caviar from shared
stocks subject to quotas. We allow import of sturgeon caviar from
shared stocks subject to quotas only during the calendar year in which
it was harvested.
Personal sport-hunted trophies (Sec. 23.74): This section defines
``sport-hunted trophy'' and outlines the requirements for trade in
sport-hunted trophies, including the use of a sport-hunted trophy after
import (see Sec. 23.55). Some countries allow limited take of
Appendix-I species as part of an overall management plan. The Parties
have agreed to allow international movement of such trophies provided
they are for the hunter's personal use. The export of Appendix-I
hunting trophies requires both export and import permits under Article
III of the Treaty (see Sec. 23.35). This practice is re-affirmed in
Resolution Conf. 2.11 (Rev.).
We defined ``sport-hunted trophy'' to provide the public with a
clear understanding of what we consider to be included in the term. The
definition does not include handicraft items or items manufactured from
the trophy used as clothing, curios, ornamentation, jewelry, or other
utilitarian items. We based this definition on our experience with
international trade in these items and the commonly understood meaning
of the term from the dictionary and other wildlife regulations. The
definition is similar to one used in 50 CFR part 18 (marine mammals)
for sport-hunted polar bear trophies, which was developed to ensure
that the trade in trophies was consistent with CITES. We considered
language from a House Committee Report (H.R. Rep. No. 439, 103rd Cong.,
2nd Sess. (1994)) that states ``trophies normally constitute the hide,
hair, skull, teeth, and claws of an animal that can be used by a
taxidermist to create a mount of an animal for display or tanned for
use as a rug.''
Two commenters supported our definition, but one did not agree that
sport-hunted trophies should be considered personal effects. This
commenter suggested that we remove the phrase ``for personal use'' from
the definition. As stated above, the Parties have recognized that trade
in certain Appendix-I specimens and annotated Appendix-II specimens is
allowable provided that the specimen is a personally hunted trophy that
will not be used for commercial purposes. We believe our definition, as
written, supports the intent of the Parties. The same commenter
encouraged us to add this definition to the general definition section
(Sec. 23.5) as well. We defined some terms that apply to a specific
type of trade, such as ``sport-hunted trophy,'' in the sections where
they are used rather than in the general definition section (Sec.
23.5) for efficiency. We do not believe it is appropriate to restate
the definition in two places.
Two commenters believed that items manufactured from a trophy
should be included in the definition. They expressed concern that our
definition would preclude hunters from bringing such items into the
United States because they would be considered commercial. We do not
agree that utilitarian items manufactured from a trophy should be
considered a trophy. In a number of instances, large quantities of
fully manufactured products, such as briefcases, handbags, and golf
bags, have been imported as parts of a ``hunting trophy.'' Since we
accord a noncommercial status to personal sport-hunted trophies, we
must be able to distinguish between a noncommercial trophy and
commercial products derived from an animal that may or may not have
been taken by the hunter as a sport-hunted trophy.
This does not mean that the import or export of utilitarian items
made from a trophy is not allowed. Provided that the items are not
identified as a sport-hunted trophy, manufactured items of Appendix-II
and -III species may be imported into the United States or exported
from the United States with CITES export or re-export documents that
indicate an appropriate purpose code (e.g., ``P'' for personal or ``T''
for commercial). The purpose code ``H'' (sport-hunted) may not be used.
However, the Parties have established greater controls over the
international movement of Appendix-I specimens. As with Appendix-II or
-III species, manufactured items produced from an Appendix-I species
outside the United States could be imported provided that all of the
required findings have been made and the items are not identified as a
sport-hunted trophy.
We also included specific conditions for import, export, or re-
export of leopard, markhor, and black rhinoceros hunting trophies as
provided in Resolutions Conf. 10.14 (Rev. CoP13), Conf. 10.15 (Rev.
CoP12), and Conf. 13.5, respectively. In any calendar year, a hunter
may import no more than two leopard trophies, one markhor trophy, and
one black rhinoceros trophy. Any tagging or marking requirements for
skins, horns, or other parts of trophies, mounted or loose, must also
be met. We added a description of tag locking requirements and tagging
requirements for mounted sport-hunted trophies to Sec. 23.74(d)(i).
These requirements are in addition to any requirements in 50 CFR part
17. One commenter requested that we clarify that the limits on the
number of certain sport-hunted trophies that may be imported in a given
year apply to an individual hunter. We amended Sec. 23.74(d)
accordingly.
Two commenters were opposed to all trophy hunting and recommended
that we prohibit the import of all sport-hunted trophies listed in the
CITES Appendices. This issue was addressed in the 2006 proposed rule
(71 FR 20167). CITES did not intend to ban the trade in sport-hunted
trophies, and we do not have the authority to impose a ban on the
import of any CITES species without legal or scientific justification.
What Are the Changes to Subpart F of 50 CFR Part 23--Disposal of
Confiscated Wildlife and Plants?
Confiscated specimens (Sec. 23.78): Article VIII(4) and (5) of the
Treaty outline the requirements for disposal of confiscated live
specimens, and the Parties adopted Resolution Conf. 10.7, which set out
detailed guidance. Our general procedures for disposal of forfeited or
abandoned property, under CITES as well as other U.S. laws, are
contained in 50 CFR part 12, 7 CFR part 356, and 19 CFR part 162.
Section 23.78 outlines the process we use in making a decision on how
to dispose of confiscated live CITES wildlife and plants that have been
forfeited or abandoned to FWS Law Enforcement, APHIS, or CBP.
[[Page 48438]]
We consider a number of factors, and consult the guidance in
Resolution Conf. 10.7, when determining how to dispose of confiscated
live specimens. The most important factor we consider is the welfare of
the wildlife or plants. Generally, the disposal options are maintenance
in captivity or cultivation, return to the wild, and euthanasia or
destruction. In the absence of other options, euthanasia or destruction
may be the most humane or appropriate option. Although under Article
VIII of the Treaty, returning confiscated live specimens to the country
of export is one available option, we cannot always return them. For
example, when criminal charges are brought in connection with
confiscated specimens, litigation may require us to hold the specimens
as evidence for an extended period of time, and the court may decide
how we are to dispose of them.
Return to the wild of confiscated specimens is rarely possible. It
can carry risks for existing wild populations, such as introduction of
disease, and can result in the death of the specimens released due to
starvation, disease, or predation. Before considering return to the
wild, a country must decide if that action would make a significant
contribution to the conservation of the species or might be harmful to
the conservation of the species in the wild. In many countries,
including the United States, some confiscated specimens are donated to
zoos, aquariums, or botanical gardens. This option may not be available
when a seizure involves a large number of common species. Both the
botanical and zoological communities recognize that placing specimens
of low conservation value in limited space may benefit those
individuals, but may detract from conservation efforts as a whole.
To comply with the intent of Resolution Conf. 9.10 (Rev. CoP13)
and, in limited circumstances, to return confiscated live Appendix-I
specimens to the country of export, we included an issuance criterion
for re-export of confiscated specimens in Sec. 23.37(c)(5). It
requires us, before issuing a re-export certificate, to find that the
proposed re-export of confiscated specimens would not be detrimental to
the survival of the species. Regulations in 50 CFR part 12 allow for
the sale of confiscated Appendix-II and -III wildlife and plants. When
specimens have been confiscated and subsequently sold or transferred by
the U.S. Government, we consider them legally acquired when the
applicant provides the appropriate documentation to show the origin of
the specimens. However, because the specimens were imported without the
proper CITES documents, we must make the biological finding, which
normally would have been made prior to export, before issuing a re-
export certificate.
Two commenters urged us to develop an action plan for the disposal
of confiscated live specimens, as is recommended in Resolution Conf.
10.7. As noted in the 2006 proposed rule (71 FR 20167), due to the
complexity of issues involved in placing seized specimens, the FWS
makes disposition decisions on a case-by-case basis.
One commenter asserted that we should strictly control the breeding
and disposition of any progeny for any wildlife specimen placed with a
zoo, sanctuary, or care facility. All live wildlife placed with a zoo,
sanctuary, or similar care facility is accompanied by a loan or
donation document as described in 50 CFR part 12 that may include
restrictions on use or disposition of the animal. We may also place
restrictions on breeding of the animal or disposition of the animal and
any progeny, as appropriate.
One commenter urged us to place confiscated specimens in scientific
collections with restrictions on their transfer rather than re-export
them back to the country of export. Another commenter expressed concern
regarding the option of selling confiscated Appendix-II and -III
specimens. Under these regulations, as well as under 50 CFR part 12,
the FWS disposes of confiscated specimens on a case-by-case basis after
considering the most appropriate option. See 50 CFR part 12, subpart D,
for the criteria we use when considering the appropriate disposition of
abandoned and forfeited wildlife and plants, including the order of
preferred disposal methods.
One commenter remarked on the impracticality of re-exporting seized
specimens to the country of export. The commenter cited an instance
where seized specimens were re-exported to the country of origin, but
despite efforts to maintain the specimens, they could not be salvaged
once they arrived in the country of export and had to be discarded. The
commenter recommended that the FWS place seized specimens in scientific
collections in the United States and restrict the use of the specimens
to prevent them from being transferred to the intended importer.
We believe that the re-export of confiscated specimens to the
country of origin or re-export is an appropriate option for certain
specimens. Although the commenter cited an instance where specimens
could not be salvaged, we have successfully re-exported many
confiscated specimens to the country of export. We decline to
incorporate a mandate for the placement of confiscated specimens only
with scientific institutions. We must retain the ability to determine
the most appropriate disposition of confiscated specimens based on
specific facts of the case.
Two commenters argued against returning confiscated live specimens
to the wild. One maintained that returning raptors is only successful
in the context of a well-organized and carefully implemented
translocation program. The other commenter noted that reintroduction
programs require careful organization and implementation. That
commenter also noted that returning confiscated live wildlife to the
country of origin was often not realistic, noting that adequate
facilities for caring for the live specimens may not exist. We have
clarified under what limited circumstances we would return confiscated
specimens to the wild. With regard to the return of confiscated live
specimens to the country of origin, Resolution Conf. 9.10 (Rev. CoP13)
recommends that confiscated specimens be returned to the country of
origin or re-export when the Scientific Authority of the confiscating
State deems it in the interest of the specimens to do so, and the
country of origin or re-export requests that the specimens be returned.
The United States follows this recommendation in determining if it is
appropriate to return confiscated specimens to the country of origin or
re-export.
One commenter argued that we should not allow confiscated live
wildlife specimens to be given to scientific institutions unless the
institution does not intend to use the specimen for invasive scientific
research. The commenter further argued that we should not place such
specimens with any organization that operates a traveling exhibition.
The commenter noted particular concern regarding the regulations in 50
CFR part 12 that allow for the sale of confiscated Appendix-II and -III
wildlife and plants. The commenter believed that this option might
cause the FWS to overlook other disposal options such as return to the
country of origin. As previously discussed, the options available in 50
CFR part 12 are ordinarily exercised in the order in which the methods
are outlined. Sale and destruction are the final options to be
exercised, and any sale must be in accordance with Federal Property
Management Regulations and Interior Property Management regulations.
[[Page 48439]]
What Are the Changes to Subpart G of 50 CFR Part 23--CITES
Administration?
Development of U.S. documents and negotiating positions for a CoP
(Sec. 23.87): This section outlines the process we follow in
developing documents for submission to the CoP and our negotiating
positions, including how the public can participate in this process. We
will outline what the United States is considering and our proposed
negotiating positions on agenda items and proposals from other
countries either through Federal Register notices or postings on our
website (see Sec. 23.7). We will also hold one or more public meetings
to discuss these issues. However, we will not publish final negotiating
positions because some issues are extremely complex and require
extensive coordination, and our final negotiating positions may not be
available prior to the CoP. We hold daily briefings at the CoP for U.S.
observers, where we often discuss our tentative negotiating positions
and any changes to them. We no longer publish an official report after
each CoP because information on the results of a CoP is available from
a number of sources, such as the CITES website (see Sec. 23.7).
Consequently, the production of a separate report has become
duplicative and unnecessary.
One commenter noted that we did not indicate a timeframe for
providing a summary of our proposed negotiating positions in
preparation for a CoP. The commenter suggested that we provide our
proposed negotiating positions at least 2 weeks prior to the start of a
CoP to allow sufficient time for public input and comment. Although we
make every effort to provide our proposed negotiating positions
sufficiently in advance of a CoP, it is not always possible, and we
have declined to adopt this suggestion.
Another commenter opposed our proposal not to make our final
negotiating positions available prior to a CoP. We believe that this
comment is adequately addressed in the 2006 proposed rule (71 FR 20167)
and refer the commenter to that document for further clarification.
Resolutions and decisions (Sec. 23.88): This section provides the
legal basis and purpose of resolutions and decisions. We have
implemented Resolution Conf. 4.6 (Rev. CoP13), which establishes that a
resolution or decision becomes effective 90 days after the meeting at
which it is adopted, unless the resolution or decision specifies a
different date.
One commenter recommended that we clarify that the effective date
of resolutions and decisions adopted at a CoP is 90 days after the last
day of the meeting at which they were adopted. We agree with the
commenter and have revised the final rule accordingly.
What Are the Changes to Subpart H of 50 CFR Part 23--List of Species?
Listing criteria for Appendix I or II (Sec. 23.89): We intend that
the listing criteria identified in this section will faithfully track
the criteria and principles set out in Resolution Conf. 9.24 (Rev.
CoP13). If that resolution is substantially modified at a future CoP,
then we may propose amendments to this section to maintain our science-
based interpretation of criteria for the addition or removal of species
from Appendices I and II.
A number of falconers argued that not all Falconiformes should be
included under CITES, but only those species that are endangered or
threatened. These regulations do not address specific listings in the
Appendices. However, through a series of Federal Register notices and
public meetings, individuals and organizations have an opportunity to
participate in U.S. preparations for a CoP and should provide
information on potential listing proposals through those means.
One commenter questioned our statement regarding the use of
precautionary measures to ensure that scientific uncertainty is not a
reason for failing to act in the best interest of the conservation of
the species when considering a listing proposal. The commenter argued
that if adequate information to evaluate conservation needs is lacking,
it is difficult to determine those needs. The commenter asked how
proposals under these circumstances should be evaluated. The statement
to which the commeter refers is taken from the concept described in
Annex 4 to Resolution Conf. 9.24 (Rev. CoP13). In evaluating the need
to list a species in the Appendices, we use the best available
information. However, in applying precautionary measures, we may still
take a listing action when the best available information suggests the
action is warranted despite incomplete information.
Exemptions (Sec. 23.92): This section provides details on what
materials are exempt. Upon import, export, or re-export, you may be
required to demonstrate that your specimens qualify as exempt under
this section. One commenter stated that tissue, blood, and serum
collected at the time of necropsy for diagnostic testing should not
require permits under CITES. Although Parties have proposed exempting
such specimens in the past, no consensus has been reached on such an
exemption. Consequently, tissue, blood, and serum are not exempt from
CITES requirements.
Another commenter indicated that our text regarding annotated
Appendix-III wildlife (Sec. 23.92 (b)(1)) and Appendix-II or -III
plant species (Sec. 23.92 (b)(2)) was confusing. Upon review of this
section we realized these paragraphs did not accurately reflect our
current practice. As a result, we combined (b)(1) and (b)(2) from the
2006 proposed rule (71 FR 20167) into one paragraph so that it is clear
that for Appendix-III wildlife and Appendix-II or -III plant listings
we consider all parts, products, or derivatives to be covered (and thus
to require CITES documents) unless they are annotated to indicate
otherwise. We also added references in (b)(2) and (b)(3) to the section
on artificially propagated plants to underscore the fact that these
specimens must qualify as artificially propagated under Sec. 23.64.
Required Determinations
Regulatory Planning and Review: The Office of Management and Budget
(OMB) has determined that this is a significant regulatory action under
Executive Order 12866 because it may raise novel legal or policy
issues. Therefore this rule has been reviewed by OMB.
a. This rule will not have an annual economic effect of $100
million or negatively affect a part of the economy, productivity, jobs,
the environment, or other units of government. An assessment to clarify
the costs and benefits associated with this rule follows. The purpose
of this rule is to clarify and update the regulations that implement
CITES. It is designed to assist individuals and businesses who import
and export specimens of CITES species by clearly outlining the
requirements that the United States, as well as the other 170 Parties,
must follow under the Convention. As of February 1, 2007, our records
show there are approximately 9,800 active U.S. CITES documents (the
period of validity for documents ranges from 6 months to 3 years). In
the United States, the percentage of CITES documents issued for various
uses is generally as follows: 34 percent hunting trophies; 19 percent
commercial wildlife; 18 percent personal use; 8 percent scientific
research; 6 percent commercial plants; 6 percent zoological parks; 5
percent breeding; 3 percent circuses; and 1 percent miscellaneous.
The overwhelming majority of countries that trade internationally
in
[[Page 48440]]
wildlife and plants are CITES Parties. Because most of these Parties
are currently implementing the Convention and the current CITES
resolutions and decisions, this rule should cause little or no impact
for importers or exporters. The foreign suppliers are, in most cases,
already required by their own country's laws to follow the Convention
as well as the current CITES resolutions and decisions. In addition, if
a U.S. importer were to receive a shipment that did not comply with all
of the requirements of the country of export, the import may violate
the Lacey Act Amendments of 1981. Exporters need to comply with the
requirements of the importing country in addition to U.S. requirements.
If a shipment is not in compliance with all applicable laws, it may be
seized, detained, or refused clearance at its destination. These
revisions include clarifications of the Convention's provisions that
have not previously been published. Thus, U.S. businesses are already
complying with most of the revisions. Revisions that would impact
current business practices are addressed below.
We do not expect that this rule will have a significant effect on
the volume or dollar value of wildlife and plants imported, exported,
or re-exported to and from the United States. There is no indication
that this rule will result in changes in levels of trade, permit
applications, or permit issuance or denial that are statistically
significant.
Many of the costs incurred by industry would be associated with
changes to required information collections. These are annual,
periodic, or one-time collections. The costs presented represent the
estimated yearly costs for all types of collections. Refer to the
``Paperwork Reduction Act'' section for more details. The yearly cost
associated with new information collections described in the rule is
$34,063 ($2,813 in value of burden hours + $31,250 in application
fees). The 10-year quantitative cost is $340,630 ($299,281 discounted
at 3 percent or $255,991 discounted at 7 percent). We do not anticipate
that this rulemaking will have a significant effect on permit
application processing time for CITES documents issued under 50 CFR
part 23. We do not expect administrative costs to increase.
Costs not associated with information collections are more
difficult to quantify. These costs include (1) the need for operations
that are breeding Appendix-I wildlife for commercial purposes to become
registered, (2) the need for facilities that are breeding Appendix-I
wildlife for noncommercial purposes to participate in a
cooperativeconservation program, (3) conditioned noncommercial use of
Appendix-I and certain Appendix-II and -III specimens after import into
the United States, and (4) the need to label sturgeon caviar and re-
export caviar within 18 months from the date of the issuance of the
original export permit.
To comply with Article II of the Treaty, which states that
Appendix-I specimens ``...must be subject to particularly strict
regulation in order not to endanger further their survival and must
only be authorized in exceptional circumstances,'' we no longer allow
the use of Article III of the Treaty for commercial export of Appendix-
I wildlife. This new provision means that operations that are breeding
Appendix-I wildlife for commercial purposes under Article VII(4) of the
Treaty need to become registered. This does not affect the sale of
specimens within the United States, only the commercial export of such
specimens; it also does not preclude the export of specimens when the
export is not commercial, such as for scientific, conservation, or
personal use.
Wildlife may be exported with a certificate under the bred-in-
captivity exemption of Article VII(5). However, at CoP12, the Parties
agreed that for facilities to qualify as breeding Appendix-I species
for noncommercial purposes, they must be participating in a cooperative
conservation program with one or more of the range countries for that
species. Otherwise, if a facility is not cooperating with a range
country, they are considered to be breeding for commercial purposes. We
adopted this new provision to ensure that trade in Appendix-I species
will not be detrimental to the survival of the species in the wild.
Many Appendix-I species also are listed under the ESA, and an export
permit may be issued only when the activity will provide for the
conservation of the species. Thus, we do not expect administrative
costs to increase for facilities that want to export Appendix-I species
bred for noncommercial purposes.
Unless an Appendix-I wildlife or plant specimen qualifies for an
exemption under Article VII of the Treaty, it may be imported only when
the intended use is not for primarily commercial purposes. In addition,
the Parties agreed that Appendix-I trophies may be ``imported as
personal items that will not be sold in the country of import''
(Resolution Conf. 10.14 (Rev. CoP13) for leopards, Resolution Conf.
10.15 (Rev. CoP12) for markhor, and Resolution Conf. 13.5 for black
rhinoceros). We incorporated into 50 CFR part 23 a provision that
Appendix-I specimens and certain Appendix-II and -III specimens may not
be imported and subsequently used for a commercial purpose. This
provision is to prevent commercial use after import when the trade
allowed under CITES is only for a noncommercial purpose. The provision
applies to Appendix-II specimens that are subject to an annotation that
allows noncommercial trade of sport-hunted trophies, such as the
African elephant populations of Botswana, Namibia, South Africa, and
Zimbabwe. Under this rule, these types of trophies may be imported for
personal use only and may not be sold or otherwise transferred for
economic use, gain, or benefit after import into the United States.
From 2001 to 2005, the number of African elephant trophies imported
into the United States annually ranged from 265 to 352. During the same
time period, annual imports of leopard trophies ranged from 413 to 507.
We implemented changes in requirements for trade in sturgeon caviar
agreed at CoP12 and CoP13. We require that all caviar be labeled in
accordance with Resolution Conf. 12.7 (Rev. CoP13) and any re-exports
of caviar take place within 18 months from the date of issuance of the
original export permit. We believe these procedures are consistent with
current industry practices and will not cause any additional burden to
applicants.
The publication of this final rule will assist U.S. businesses in
complying with CITES requirements when engaging in international
wildlife trade. Many of the benefits associated with the rule are due
to clarified regulations. Benefits include (1) streamlining procedures
for traveling exhibitions, (2) establishing application procedures for
registration of operations breeding Appendix-I wildlife species for
commercial purposes, (3) issuing a bred-in-captivity certificate that
eliminates the need to obtain an import permit, (4) using standardized
coral nomenclature to simplify procedures and therefore provide relief
to entities that trade in coral internationally, (5) informing the
public about proper CITES documents and procedures for international
travel with personally owned live wildlife (e.g., pets), (6)
streamlining procedures to issue permits for trade that would have a
negligible impact or no impact on the conservation of the permitted
species and that is repetitive in nature, (7) simplifying procedures
for shipment of sample collections under an ATA carnet, and (8)
exempting certain wildlife hybrids and urine, feces, and synthetically
derived DNA from CITES requirements. These benefits are presented
qualitatively below.
[[Page 48441]]
We expect the regulations to provide relief by streamlining the
CITES document procedures for traveling exhibitions. At CoP8, the
Parties agreed to issue CITES documents for live animals that qualify
as pre-Convention or bred in captivity and that travel internationally
as part of an exhibition. The document is to be treated like a passport
and allows the exhibitor to use the same CITES document to cross
multiple borders, rather than having to obtain a new document for each
border crossing. This CITES document is valid for 3 years rather than 6
months like a standard export permit. At CoP12, the Parties agreed to
extend these provisions to all traveling exhibitions, not just
traveling live-animal exhibitions. We incorporated provisions for
traveling exhibitions into these regulations and defined the term
traveling exhibition to include live animals and plants and dead items
(e.g., herbarium specimens and museum specimens). We estimate that 50
permittees would be affected by this procedure, although we do not
categorize permittees as traveling exhibitors in our records and,
therefore, are not able to quantify the precise effect of this relief.
We have also implemented Resolution Conf. 12.10 (Rev. CoP13) and
established application procedures for an operation breeding Appendix-I
wildlife species for commercial purposes to become registered for each
Appendix-I species. Specimens that originate from registered facilities
may be granted export permits or re-export certificates without the
issuance of an import permit. This provides some economic relief by
allowing specimens from registered facilities to be imported for
commercial purposes, trade which is otherwise prohibited by the Treaty
for Appendix-I specimens. The registration fee in 50 CFR part 13 is set
at $100. To date, the United States has registered four operations
breeding Appendix-I species for commercial purposes. During 2005 and
2006, these four facilities combined exported a total of 18 shipments
per year. We anticipate that 15-20 operations would seek to be
registered initially.
We adopted the definition of ``bred for noncommercial purposes'' in
Resolution Conf. 12.10 (Rev. CoP13) for Appendix-I wildlife. Facilities
that are breeding for noncommercial purposes must participate in a
cooperative conservation program with one or more of the range
countries for that species. Qualifying applicants are issued a bred-in-
captivity certificate that eliminates the need to obtain an import
permit. The number of facilities exporting Appendix-I wildlife is
relatively small. In 2006, we issued about 200 CITES documents to
export Appendix-I specimens.
We exempted coral sand and coral fragments from CITES requirements,
because the Parties have recognized the difficulty in identifying these
coral specimens. The Parties also agreed to the use of higher-taxon
names (broader classification) for coral rock and live and dead coral
under certain conditions. We willaccept a CITES document that uses a
higher-taxon name for coral when the CoP has agreed to its use. A
current list of acceptable higher-taxon names for coral is available on
the CITES website or from us (see Sec. 23.7). We anticipate that the
use of this standardized nomenclature and the exemption of coral sand
and coral fragments from CITES requirements will simplify procedures
and therefore provide relief to entities that trade in coral
internationally. Because we are uncertain how much of the trade would
be affected by these changes, we are unable to quantify their impact.
Resolution Conf. 10.20 provides for the issuance of certificates
for personally owned live wildlife that would be valid for a period of
3 years and allow for multiple imports, exports, and re-exports of the
covered specimens. The final rule advises travelers that they must have
a CITES document to travel with their CITES-listed personally owned
live wildlife, and it provides procedures for the issuance of these
CITES documents. Individuals importing live CITES wildlife for personal
use are required under this rule to obtain a CITES document prior to
arriving in the United States. Since most Parties require CITES
documents for international trade of all live specimens, this
requirement will ensure that pet owners are not inadvertently violating
the Lacey Act Amendments of 1981 by exporting a CITES species without
having obtained the required CITES permits. Although we can issue and
accept retrospective documents under limited circumstances for
activities that have already occurred, the practice is discouraged. On
average, we issue about 20 retrospective documents for personal
shipments, including live wildlife, annually. These revised regulations
will not impose an additional paperwork or financial burden on pet
owners or falconers, but may actually save time and money by clearly
informing travelers of CITES requirements.
This rule will provide relief to permit applicants by streamlining
procedures to issue permits for trade that would have a negligible
impact or no impact on the conservation of the permitted species and
that is repetitive in nature (i.e., the same type of specimens or the
same actual specimens are exported shipment after shipment). Examples
include biomedical companies shipping biological samples derived from
cell lines they maintain and production facilities exporting certain
native Appendix-II and Appendix-III species. In the past, in an effort
to facilitate the timely movement of such specimens, we have issued
multiple-use export documents that could be photocopied for use with
multiple shipments. However, many countries no longer accept
photocopied documents. Thus, we have implemented streamlined procedures
adopted at CoP12 and issue partially completed documents under specific
circumstances. We do this by establishing a master file for a permittee
and then issue multiple documents based on information in the master
file. The permittee is authorized to complete specifically identified
boxes on the document and is required to sign the document to certify
that the information entered is true and correct. For U.S. documents,
an applicant must submit the appropriate application form for the
proposed activity and show that the use of this type of document is
beneficial to both the applicant and to the Service. We can issue
multiple partially completed documents when we find that the issuance
criteria for the proposed activity and the issuance criteria for a
partially completed document are met. In 2005, we issued approximately
3,200 partially completed documents. In 2006, the number increased to
around 9,300 documents. Although the creation of a master file has
somewhat increased the initial burden for applicants, the subsequent
issuance of documents under a master file is streamlined. In addition,
this process has brought our procedures into line with most other CITES
Parties, which will no longer accept multiple-use export documents.
This final rule will provide relief to applicants whotravel
internationally with collections of display samples, such as sets of
shoes or reptile skin samples. At CoP13, the Parties agreed to allow
the in-transit shipment of such collections under specific conditions.
We can issue a CITES document that will allow these sample collections
to move from one country to another before returning to the originating
country, rather than requiring the issuance of a re-export certificate
from each country visited. Such a CITES document must be accompanied by
a valid ATA carnet. An ATA carnet is an
[[Page 48442]]
international customs document that allows the temporary introduction
of goods destined for fairs, shows, exhibitions, and other events. We
estimate that approximately 50 applicants will benefit from this
simplified procedure.
Under this rule, we require CITES documents to accompany most
wildlife hybrids that are imported, exported, or re-exported. Certain
wildlife hybrids will no longer require CITES documents if they meet a
limited exemption. We generally receive fewer than 50 inquiries
concerning exempt hybrids annually.
We have exempted urine, feces, and synthetically derived DNA of
CITES species from CITES requirements under certain circumstances. We
consider samples of urine and feces to be wildlife byproducts, rather
than parts, products, or derivatives, and therefore do not require
CITES permits for the international movement of these specimens unless
a permit is required by the other country involved in the trade. This
exemption applies only to synthetically derived DNA. DNA extracted
directly from blood and tissue samples must comply with all CITES
permitting requirements. Because we do not maintain records on the
trade in these specimens, we are unable to estimate the impact of this
exemption.
b. This rule will not create inconsistencies with other agencies'
actions. As the lead agency for implementing CITES in the United
States, we are responsible for monitoring imports and exports of CITES
wildlife and plants, including their parts, products, and derivatives,
and issuing import and export documents under CITES.
c. This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
d. OMB has determined that this rule raises novel legal or policy
issues. As a Party to CITES, the United States is committed to fully
and effectively implementing the Convention. This rule clarifies the
requirements for the import, export, and re-export of CITES specimens
and informs individuals and businesses of the current requirements.
Regulatory Flexibility Act: Under the Regulatory Flexibility Act
(as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever a Federal agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions) (5
U.S.C. 601 et seq.). However, no regulatory flexibility analysis is
required if the head of an agency certifies that the rule would not
have a significant economic impact on a substantial number of small
entities. Thus, for a regulatory flexibility analysis to be required,
impacts must exceed a threshold for ``significant impact'' and a
threshold for a ``substantial number of small entities.'' See 5 U.S.C.
605(b). SBREFA amended the Regulatory Flexibility Act to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule would not have a significant economic impact on
a substantial number of small entities.
The U.S. Small Business Administration (SBA) defines a small
business as one with annual revenue or employment that meets or is
below an established size standard. To assess the effects of the rule
on small entities, we focus on industries that may have businesses that
import, export, or re-export CITES specimens. Many of these businesses
can be placed in the following categories: Zoos and Botanical Gardens
with an SBA size standard of $6.0 million in average annual receipts;
Merchant wholesalers, nondurable goods, with an SBA size standard of
100 employees; Leather and allied product manufacturers, with an SBA
size standard of 500 employees; and Clothing and Clothing Accessories
Stores, with an SBA size standard ranging from $6.0 million to $7.5
million in average annual receipts. The U.S. Economic Census does not
capture the detail necessary to determine the number of small
businesses that are engaged in international commerce in CITES species.
However, we expect that the overwhelming majority of the entities
involved with this type of commerce would be considered small as
defined by the SBA. The declared value for U.S. trade in CITES wildlife
(not including plants) was $345 million in 2002, $394 million in 2003,
$1.5 billion in 2004 (including one export of a single panda to China
with a declared value of $1 billion), and $737 million in 2005.
These new regulations create no substantial fee or paperwork
changes in the permitting process. Any increase in costs due to
information collections is expected to be minimal. Response time for
new information collections will vary from 6 minutes to 30 minutes per
response, and new application fees range from free to $100. The
regulatory changes are not major in scope and would create only a
modest financial or paperwork burden on the affected members of the
general public.
This rule also benefits these businesses by providing updated and
more clearly written regulations for the international trade of CITES
specimens. We do not expect these benefits to be significant under the
Regulatory Flexibility Act. The authority to enforce CITES requirements
already exists under the ESA and is carried out by regulations
contained in 50 CFR part 23. The requirements that must be met to
import, export, and re-export CITES species are based on the text of
the Convention, which has been in effect in the United States since
1975.
Therefore, we have determined 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.).
A Regulatory Flexibility Analysis is not required. Accordingly, a Small
Entity Compliance Guide is not required.
Small Business Regulatory Enforcement Fairness Act: This rule is
not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory
Enforcement Fairness Act. As discussed above, this rule:
a. Does not have an annual effect on the economy of $100 million or
more. This rule provides the importing and exporting community within
the United States updated and more clearly written regulations that
implement CITES in the United States. This rule will not have a
negative effect on this part of the economy.
This final rule will affect all importers, exporters, and re-
exporters equally, and the benefits of having updated guidance on
complying with CITES requirements will be evenly spread among all
businesses, whether small or large. There is not a disproportionate
share of benefits for small or large businesses.
b. Will not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, tribal, or local
government agencies; or geographic regions. This rule clarifies and
updates the regulations that implement CITES and, therefore, will
provide benefits to all permit applicants in terms of time savings.
However, this rule may result in a small increase in the number of
applications and processing fees for circuses, pet owners trading in
CITES animal species, commercial breeding operations for appendix-I
species, and entities currently exporting under multiple-use permits.
This rule also proposes to establish processing fees for the following
application types:
[[Page 48443]]
introduction from the sea ($100) and registration of commercial
breeding operations for Appendix-I species ($100). We anticipate fewer
than 30 applicants will be affected annually by these new fees.
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. This
rule will enable U.S. importers and exporters of CITES species to
better understand and comply with the regulations covering
international trade in CITES wildlife and plants. Without these
revisions to the regulations, the U.S. importing and exporting
community may not be able to compete effectively with foreign-based
companies in the international trade of CITES specimens. This rule will
assist U.S. businesses in ensuring that they are meeting all current
CITES requirements, thereby decreasing the possibility that shipments
may be delayed or even seized in another country that has implemented
CITES resolutions not yet incorporated into U.S. regulations.
Unfunded Mandates Reform Act: Under the Unfunded Mandates Reform
Act (2 U.S.C. 1501, et seq.):
a. This final rule will not significantly or uniquely affect small
governments. A Small Government Agency Plan is not required. As the
lead agency for implementing CITES in the United States, we are
responsible for monitoring import and export of CITES wildlife and
plants, including their parts, products, and derivatives, and issuing
import and export documents under CITES. The structure of the program
imposes no unfunded mandates. Therefore, this rule has no effect on
small governments' responsibilities. This rule affects States only as
described below, concerning export programs for certain native species
listed under CITES.
Some rural communities rely on the added income produced by
harvesting and selling certain CITES species that occur in the United
States, such as the American alligator, American ginseng, bobcat, river
otter, Canada lynx, brown bear, and gray wolf. The majority of consumer
products made from these species are processed and manufactured
overseas. During 2001-2005, annual exports of animal skins under the
CITES export programs ranged from approximately $29 to $61 million.
Annual exports of American ginseng during the same timeframe ranged
from approximately $41 to $111 million. We have not changed the
existing regulations for export from these programs (although, in the
future, we may eliminate the need for export tags on skins of certain
native furbearers) and, therefore, do not anticipate any change in
economic effects or current activities.
States have the right and responsibility to manage their wildlife
and plants. Many States have monitored the harvest of CITES species
since before the Convention came into effect. We have worked with
States and Indian Tribes to use the information they collect to make
CITES findings on a State or tribal basis where export program approval
is requested. This allows us to make findings for all specimens of a
particular species from a State or Tribe rather than requiring each
individual applicant to supply the information we need to make legal
acquisition and non-detriment findings. We supply States and Tribes
that have approved programs for the export of skins with CITES export
tags at no charge. These tags are placed on each skin under State- or
Tribe-monitored conditions or regulations. The presence of a tag on a
skin indicates that the skin was taken under an approved program and
that the necessary findings have been made. By making programmatic
findings, we reduce the amount of paperwork required considerably and,
thus, allow exporters of these species to benefit from streamlined
export procedures. Export from a State or from tribal lands where there
is not an approved program is also allowed. However, where there is no
approved program, each applicant must complete the standard application
for export (rather than the streamlined application for export from
approved programs) and must provide all information necessary to
determine that the specimens were legally acquired and that their
export would not be detrimental to the survival of the species.
In this rule, we provide the criteria we use in making decisions to
approve a program. These criteria are consistent with those that we
currently employ in making such findings, and program approval will
continue to function as it does now. This final rule provides the
public with information on how the Service makes findings regarding
State and tribal programs.
These updated CITES regulations will assist those who rely on
income from the export of certain native CITES species by providing
clear, updated requirements for international trade, thus allowing them
to remain competitive when conducting business in international
markets. This final rule provides the importing and exporting community
a better opportunity for obtaining economic gain from international
business in CITES specimens.
b. This rule will not produce a Federalrequirement of $100 million
or greater in any year and is not a ``significant regulatory action''
under the Unfunded Mandates Reform Act.
Takings: Under Executive Order 12630, this rule does not have
significant takings implications. A takings implication assessment is
not required. This rule is not considered to have takings implications
because it does not further restrict the import, export, or re-export
of CITES specimens. Rather, the rule updates the regulations for the
import, export, and re-export of CITES specimens, which will assist the
importing and exporting community in conducting international trade in
CITES specimens.
Federalism: The revisions to part 23 do not contain provisions that
have Federalism implications significant enough to warrant preparation
of a Federalism Assessment under Executive Order 13132.
Civil Justice Reform: Under Executive Order 12988, the Office of
the Solicitor has determined that this final rule does not unduly
burden the judicial system and meets the requirements of sections 3(a)
and 3(b)(2) of the Order. Specifically, this rule has been reviewed to
eliminate errors and ensure clarity, has been written to minimize
potential disagreements, provides a clear legal standard for affected
actions, and specifies in clear language the effect on existing Federal
law or regulation.
Paperwork Reduction Act: This final rule contains information
collections for which OMB approval is required under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct or
sponsor and a person is not required to respond to a collection of
information unless it displays a currently valid OMB control number.
The information collections associated with this rule will be used to
evaluate applications for CITES documents and registrations. We will
use the information to make decisions on the issuance, suspension,
revocation, or denial of CITES documents and registrations.
The majority of the information collection associated with this
rule has been approved under OMB control number 1018-0093. Forms
approved under 1018-0093 include 3-200-19, 3-200-20, 3-200-23 through
3-200-37, 3-200-39, 3-200-43, 3-200-46 through 3-200-48, 3-200-52, and
3-200-53, 3-200-58, 3-200-61, 3-200-64 through 3-200-66, 3-200-69, 3-
200-70, 3-200-73, and 3-200-76.
[[Page 48444]]
We developed new application forms for single-use permits under a
master file or an annual program file and registration of production
facilities for export of certain native species. We requested approval
of the new information collections, including forms 3-200-74 and 3-200-
75, from OMB for a 3-year period. The OMB control number for the new
information collections is 1018-0137. The new information collections
and the estimated reporting burdens are indicated in the following
table.
New Information Collections Associated with the Final Rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Total
Total Total Completion Total $ Value of Application AnnualNon-
Form Number Activity Number of Number of Time AnnualBurden Burden Processing Hour $ Cost Regulation
Respondents Responses (Hours) Hours Hours Fee Burden
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
3-200-74 Single-Use Permits Under a 350 1,000 0.1 100 $2,500 $5 * $30,000 50 CFR 23.51
Master File or an Annual
Program File
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
3-200-75 Registration of a 25 25 0.5 12.5 $313 $50 * $1,250 50 CFR 23.36, 23.20, 13.11
Production Facility for
Export of Native CITES
Species
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Totals 375 1,025 112.5 $2,813 $31,250 .............................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
*These fees have been approved (see 70 FR 18311, April 11, 2005).
We have made changes to the requirements for trade in sturgeon
caviar (which includes paddlefish caviar). The majority of these
requirements are already implemented by other CITES Parties that are
either exporting caviar to the United States or receiving imports of
caviar from the United States. Therefore, our codification of these
existing requirements will not impose a new burden on traders. We
require the labeling of containers of caviar being imported into or
exported or re-exported from the United States. Resolution Conf. 12.7
(Rev. CoP13) recommends guidelines for a universal labeling system to
assist Parties in identifying legal caviar in trade. Sturgeon caviar
may be traded internationally only if non-reusable labels containing
specific information are affixed to primary and secondary containers.
In 2005 and 2006, we issued approximately 200 CITES documents annually
to export and re-export caviar from the United States.
CITES Resolution Conf. 12.3 (Rev. CoP13) also requires each live
animal in a traveling exhibition (such as a circus) that is pre-
Convention or bred in captivity to be covered by a CITES document
specific to that specimen. Currently, circuses are allowed to have one
document that covers several animals. Under these new regulations, when
a document covering multiple specimens qualifying as pre-Convention or
bred in captivity specimens expires, the permittee will need to obtain
one document for each specimen. As a result, this rule may result in
increased permit application processing fees ($100 per application) for
a small number of importers and exporters. This requirement will be
phased in as current documents expire. We estimate that approximately
40 circuses import and export CITES wildlife to and from the United
States on a regular basis. If exhibitors do not obtain individual
documents for each specimen, they may encounter difficulties at border
crossings. During the comment period on the 2000 proposal, one circus
stated that they would not wait for their documents to expire, but
would obtain the new documents as soon as possible since the new type
of documents should expedite border crossings.
The system for providing multiple single-use CITES documents, in
lieu of a single multiple-use document, will result in increased permit
fees ($5 per document) for those entities that were utilizing
photocopied multiple-use CITES documents. We are eliminating multiple-
use documents because many CITES Parties will no longer accept
photocopied documents. We estimate 350 exporters will be impacted by
this change..
We estimate the public burden for all the information collections
associated with this rule, including those already approved under OMB
control numbers 1018-0093 and 1018-0130, will vary from 6 minutes to 85
hours per response, with the vast majority requiring 1 hour per
response. This estimate includes time for reviewing instructions,
gathering and maintaining data, and completing and reviewing the forms
and reports.
During the proposed rule stage, we solicited comments on the new
information collections (FWS Forms 3-200-74 and 3-200-75). While we did
not receive any comments specifically for the new collection
requirements, we did receive several comments pertaining to other
information collection requirements in the rule (recordkeeping,
reporting, fees, etc.), which we summarize and discuss in this
preamble. We did not make any changes to our burden estimates as a
result of these comments.
At any time, interested members of the public and affected agencies
may comment on the information collection requirements contained in
this rule. Please send such comments to Hope Grey, Information
Collection Clearance Officer, Fish and Wildlife Service, MS 222-ARLSQ,
4401 North Fairfax Drive, Arlington, VA 22203 (mail); (703) 358-2269
(fax); or hope_grey@fws.gov (e-mail).
We particularly invite your comments on: (1) whether or not the
collection of information is necessary for the proper performance of
the functions of the Service, including whether or not the information
will have practical utility; (2) the accuracy of our estimate of the
burden for this collection; (3) ways to enhance the quality, utility,
and clarity of the information to be collected; and (4) ways to
minimize the burden of the collection of information on applicants..
National Environmental Policy Act (NEPA): The FWS has determined
that this final rule is categorically excluded from further NEPA review
as provided by 516 DM 2, Appendix 1.9, of the Department of the
Interior National Environmental Policy Act Revised Implementing
Procedures (FR Volume 69, No. 45, March 8, 2004). No further
documentation will be made.
Government-to-Government Relationship with Tribes: Under the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951) and
512
[[Page 48445]]
DM 2, we have evaluated possible effects on Federally recognized Indian
Tribes and have determined that there are no effects. Individual tribal
members must meet the same regulatory requirements as other individuals
who trade internationally in CITES species.
Energy Supply, Distribution, or Use: On May 18, 2001, the President
issued Executive Order 13211 on regulations that significantly affect
energy supply, distribution, and use. Executive Order 13211 requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. This rule revises the current regulations in 50 CFR
part 23 that implement CITES. The regulations provide procedures to
assist individuals and businesses that import, export, and re-export
CITES wildlife and plants, and their parts, products, and derivatives,
to meet international requirements. Although this final rule is
considered a significant regulatory action under Executive Order 12866,
it will not significantly affect energy supplies, distribution, and
use. Therefore, this action is a not a significant energy action and no
Statement of Energy Effects is required.
List of Subjects
50 CFR Part 10
Exports, Fish, Imports, Law enforcement, Plants, Transportation,
Wildlife.
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
50 CFR Part 23
Animals, Endangered and threatened species, Exports, Fish, Foreign
officials, Foreign trade, Forest and forest products, Imports,
Incorporation by reference, Marine mammals, Plants, Reporting and
recordkeeping requirements, Transportation, Treaties, Wildlife.
Regulation Promulgation
0
For the reasons given in the preamble, we amend title 50, chapter I,
subchapter B of the CFR as follows:
PART 10 - [AMENDED]
0
1. The authority citation for part 10 continues to read as follows:
Authority: 18 U.S.C. 42; 16 U.S.C. 703-712; 16 U.S.C. 668a-d; 19
U.S.C. 1202; 16 U.S.C. 1531-1543; 16 U.S.C. 1361-1384, 1401-1407; 16
U.S.C. 742a-742j-l; 16 U.S.C. 3371-3378.
0
2. In Sec. 10.12, the definition of United States is revised to read
as follows:
Sec. 10.12 Definitions.
* * * * *
United States means the several States of the United States of
America, District of Columbia, Commonwealth of Puerto Rico, American
Samoa, U.S. Virgin Islands, Guam, Commonwealth of the Northern Mariana
Islands, Baker Island, Howland Island, Jarvis Island, Johnston Atoll,
Kingman Reef, Midway Atoll, Navassa Island, Palmyra Atoll, and Wake
Atoll, and any other territory or possession under the jurisdiction of
the United States.
* * * * *
PART 13 - [AMENDED]
0
3. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1374(g), 1382,
1538(d), 1539, 1540(f), 3374; 4901-4916; 18 U.S.C. 42; 19 U.S.C.
1202; 31 U.S.C. 9701.
0
4. Section 13.1 is revised to read as follows:
Sec. 13.1 General.
(a) A person must obtain a valid permit before commencing an
activity for which a permit is required by this subchapter, except as
provided in Sec. 23.53 of this subchapter for retrospective permits
for certain CITES shipments under very specific situations.
(b) A person must apply for such a permit under the general permit
procedures of this part and any other regulations in this subchapter
that apply to the proposed activity.
(1) The requirements of all applicable parts of this subchapter
must be met.
(2) A person may submit one application that includes the
information required in each part of this subchapter, and a single
permit will be issued if appropriate.
0
5. Section 13.11(d) is amended, as set forth below, by:
a. Removing the first two sentences in paragraph (d)(1) and adding
in their place the three new sentences set forth below; and
b. Adding to the table in paragraph (d)(4) the following four
entries in the section ``Endangered Species Act/CITES/Lacey Act''
immediately before the last four entries in that section so that all
entries that begin with the word ``CITES'' are listed together:
Sec. 13.11 Application procedures.
* * * * *
(d) Fees. (1) Unless otherwise exempted under this paragraph (d),
you must pay the required permit processing fee at the time that you
apply for issuance or amendment of a permit. You must pay in U.S.
dollars. If you submit a check or money order, it must be made payable
to the ``U.S. Fish and Wildlife Service.'' * * *
* * * * *
(4) User fees. * * *
------------------------------------------------------------------------
Amendment
Type of permit CFR Citation Fee fee
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
Endangered Species Act/CITES/Lacey Act
------------------------------------------------------------------------
* * * * * * *
CITES Introduction from the Sea 50 CFR 23 100 50
------------------------------------------------------------------------
CITES Participation in the Plant 50 CFR 23 (\1\) (\1\)
Rescue Center Program
------------------------------------------------------------------------
CITES Registration of Commercial 50 CFR 23 100 ...........
Breeding Operations for
Appendix-I wildlife
------------------------------------------------------------------------
CITES Request for Approval of an 50 CFR 23 (\1\) (\1\)
Export Program for a State or
Tribe (American Ginseng,
Certain Furbearers, and
American Alligator)
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
[[Page 48446]]
* * * * *
0
6. Section 13.12(a)(1) is revised to read as follows:
Sec. 13.12 General information requirements on applications for
permits.
(a) * * *
(1) Applicant's full name and address (street address, city,
county, state, and zip code; and mailing address if different from
street address); home and work telephone numbers; and, if available, a
fax number and e-mail address, and:
(i) If the applicant resides or is located outside the United
States, an address in the United States, and, if conducting commercial
activities, the name and address of his or her agent that is located in
the United States; and
(ii) If the applicant is an individual, the date of birth, social
security number, if available, occupation, and any business, agency,
organizational, or institutional affiliation associated with the
wildlife or plants to be covered by the license or permit; or
(iii) If the applicant is a business, corporation, public agency,
or institution, the tax identification number; description of the type
of business, corporation, agency, or institution; and the name and
title of the person responsible for the permit (such as president,
principal officer, or director);
* * * * *
0
7. Section 13.22(c) is revised to read as follows:
Sec. 13.22 Renewal of permits.
* * * * *
(c) Continuation of permitted activity. Any person holding a valid,
renewable permit may continue the activities authorized by the expired
permit until the Service acts on the application for renewal if all of
the following conditions are met:
(1) The permit is currently in force and not suspended or revoked;
(2) The person has complied with this section; and
(3) The permit is not a CITES document that was issued under part
23 of this subchapter (because the CITES document is void upon
expiration).
* * * * *
0
8. Section 13.46 is amended by adding a sentence at the end of the
section to read as follows:
Sec. 13.46 Maintenance of records.
* * * Permittees who reside or are located in the United States and
permittees conducting commercial activities in the United States who
reside or are located outside the United States must maintain records
at a location in the United States where the records are available for
inspection.
PART 17 - [AMENDED]
0
9. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
Sec. 17.8 [Redesignated as Sec. 17.9]
0
10. Part 17 is amended by redesignating Sec. 17.8 as Sec. 17.9.
0
11. New Sec. 17.8 is added to read as follows:
Sec. 17.8 Import exemption for threatened, CITES Appendix-II
wildlife.
(a) Except as provided in a special rule in Sec. Sec. 17.40
through 17.48 or in paragraph (b) of this section, all provisions of
Sec. Sec. 17.31 and 17.32 apply to any specimen of a threatened
species of wildlife that is listed in Appendix II of the Convention.
(b) Import. Except as provided in a special rule in Sec. Sec.
17.40 through 17.48, any live or dead specimen of a fish and wildlife
species listed as threatened under this part may be imported without a
threatened species permit under Sec. 17.32 provided all of the
following conditions are met:
(1) The specimen was not acquired in foreign commerce or imported
in the course of a commercial activity;
(2) The species is listed in Appendix II of the Convention.
(3) The specimen is imported and subsequently used in accordance
with the requirements of part 23 of this subchapter, except as provided
in paragraph (b)(4) of this section.
(4) Personal and household effects (see Sec. 23.5) must be
accompanied by a CITES document.
(5) At the time of import, the importer must provide to the FWS
documentation that shows the specimen was not acquired in foreign
commerce in the course of a commercial activity.
(6) All applicable requirements of part 14 of this subchapter are
satisfied.
0
12. Section 17.42 is amended as set forth below by:
a. Republishing the heading for paragraph (a);
b. Revising paragraphs (a)(1), (a)(2)(ii)(A), and (a)(2)(ii)(B) to
read as set forth below;
c. Removing (a)(2)(ii)(C), (a)(2)(iii), and (a)(2)(iv);
d. Adding paragraphs (a)(3) and (a)(4) to read as set forth below;
e. Revising paragraph (c) to read as set forth below; and
f. Removing and reserving paragraph (g).
Sec. 17.42 Special rules--reptiles.
(a) American alligator (Alligator mississippiensis)--(1)
Definitions. For purposes of this paragraph (a) the following
definitions apply:
(i) American alligator means any specimen of the species Alligator
mississippiensis, whether alive or dead, including any skin, part,
product, egg, or offspring thereof held in captivity or from the wild.
(ii) The definitions of crocodilian skins and crocodilian parts in
Sec. 23.70(b) of this subchapter apply to this paragraph (a).
(2) * * *
(ii) * * *
(A) Any skin of an American alligator may be sold or otherwise
transferred only if the State or Tribe of taking requires skins to be
tagged by State or tribal officials or under State or tribal
supervision with a Service-approved tag in accordance with the
requirements in part 23 of this subchapter; and
(B) Any American alligator specimen may be sold or otherwise
transferred only in accordance with the laws and regulations of the
State or Tribe in which the taking occurs and the State or Tribe in
which the sale or transfer occurs.
(3) Import and export. Any person may import or export an American
alligator specimen provided that it is in accordance with part 23 of
this subchapter.
(4) Recordkeeping.
(i) Any person not holding an import/export license issued by the
Service under part 14 of this subchapter and who imports, exports, or
obtains permits under part 23 of this subchapter for the import or
export of American alligator shall keep such records as are otherwise
required to be maintained by all import/export licensees under part 14
of this subchapter. Such records shall be maintained as in the normal
course of business, reproducible in the English language, and retained
for 5 years from the date of each transaction.
(ii) Subject to applicable limitations of law, duly authorized
officers at all reasonable times shall, upon notice, be afforded access
to examine such records required to be kept under paragraph (a)(4)(i)
of this section, and an opportunity to copy such records.
* * * * *
(c) Threatened crocodilians--(1) What are the definitions of terms
used in this paragraph (c)?
(i) Threatened crocodilian means any live or dead specimen of the
following species: yacare caiman (Caiman yacare), common caiman (Caiman
crocodilus crocodilus), brown caiman (Caiman
[[Page 48447]]
crocodilus fuscus, including Caiman crocodilus chiapasius), saltwater
crocodile (Crocodylus porosus) originating in Australia (also referred
to as Australian saltwater crocodile), and Nile crocodile (Crocodylus
niloticus).
(ii) The definitions of crocodilian skins and crocodilian parts in
Sec. 23.70(b) and re-export in Sec. 23.5 of this subchapter apply to
this paragraph (c).
(2) What activities involving threatened crocodilians are
prohibited by this rule?
(i) All provisions of Sec. Sec. 17.31 and 17.32 apply to live
specimens, including viable eggs, of all threatened crocodilians and to
any specimen of the Appendix-I Nile crocodile.
(ii) Except as provided in paragraph (c)(2)(i) of this section, the
following prohibitions apply to threatened crocodilians.
(A) Import, export, and re-export. Except as provided in paragraph
(c)(3) of this section, it is unlawful to import, export, or re-export,
or attempt to import, export, or re-export without valid permits as
required under parts 17 and 23 of this subchapter any threatened
crocodilians, including their skins, parts, and products.
(B) Commercial activity. Except as provided in paragraph (c)(3) of
this section, it is unlawful, in the course of a commercial activity,
to sell or offer for sale, deliver, receive, carry, transport, or ship
in interstate or foreign commerce any threatened crocodilians,
including their skins, parts, and products.
(C) It is unlawful for any person subject to the jurisdiction of
the United States to commit, attempt to commit, solicit to commit, or
cause to be committed any acts described in paragraphs (c)(2)(i) and
(c)(2)(ii)(A) and (B) of this section.
(3) What activities involving threatened crocodilians are allowed
by this rule? Except as provided in (c)(2)(i), you may import, export,
or re-export, or sell or offer for sale, deliver, receive, carry,
transport, or ship in interstate or foreign commerce and in the course
of a commercial activity, threatened crocodilian skins, parts, and
products without a threatened species permit otherwise required under
Sec. 17.32 provided the requirements of parts 13, 14, and 23 of this
subchapter and the requirements of paragraphs (c)(3) and (4) of this
section have been met.
(i) Skins and parts. Except as provided in (c)(3)(ii) of this
section, the import, export, or re-export of threatened crocodilian
skins and crocodilian parts is allowed provided the following
conditions are met:
(A) Each crocodilian skin and crocodilian part imported, exported,
or re-exported must be tagged or labeled in accordance with Sec. 23.70
of this subchapter.
(B) Any countries re-exporting crocodilian skins or parts must have
implemented an administrative system for the effective matching of
imports and re-exports.
(C) If a shipment contains more than 25 percent replacement tags,
the U.S. Management Authority will consult with the Management
Authority of the re-exporting country before clearing the shipment.
Such shipments may be seized if we determine that the requirements of
the Convention have not been met.
(D) The country of origin and any intermediary country(s) must be
effectively implementing the Convention. If we receive persuasive
information from the CITES Secretariat or other reliable sources that a
specific country is not effectively implementing the Convention, we
will prohibit or restrict imports from such country(s) as appropriate
for the conservation of the species.
(ii) Meat, skulls, scientific specimens, products, and
noncommercial personal or household effects. The tagging requirements
in paragraph (c)(3)(i) of this section for skins and parts do not apply
to the import, export, or re-export of threatened crocodilian meat,
skulls, scientific specimens, or products or to the noncommercial
import, export, or re-export of personal effects in accompanying
baggage or household effects.
(4) When and how will the Service inform the public of additional
restrictions in trade of threatened crocodilians? Except in rare cases
involving extenuating circumstances that do not adversely affect the
conservation of the species, the Service will issue an information
bulletin (posted on our websites, http://www.fws.gov/le and http://www.fws.gov/international
) announcing additional restrictions on trade
of specimens of threatened crocodilians if any ofthe following criteria
are met:
(i) The country is listed in a Notification to the Parties by the
CITES Secretariat as not having designated Management and Scientific
Authorities.
(ii) The country is identified in any action adopted by the
Conference of the Parties to the Convention, the Standing Committee, or
in a Notification issued by the CITES Secretariat, whereby Parties are
asked not to accept shipments of specimens of any CITES species from
the country in question or of any crocodilian species listed in the
CITES Appendices.
(iii) We determine, based on information from the CITES Secretariat
or other reliable sources, that the country is not effectively
implementing the provisions of the Convention.
(5) Reporting requirements for yacare caiman range countries.
(i) Biennial reports. Range countries (Argentina, Bolivia, Brazil,
and Paraguay) wishing to export specimens of yacare caiman to the
United States for commercial purposes must provide a biennial report
containing the most recent information available on the status of the
species. The first submission of a status report will be required as of
December 31, 2001, and every 2 years thereafter on the anniversary of
that date. For each range country, all of the following information
must be included in the report.
(A) Recent distribution and population data, and a description of
the methodology used to obtain such estimates.
(B) Description of research projects currently being conducted
related to the biology of the species in the wild, particularly
reproductive biology (for example, age or size when animals become
sexually mature, number of clutches per season, number of eggs per
clutch, survival of eggs, survival of hatchlings).
(C) Description of laws and programs regulating harvest, including
approximate acreage of land set aside as natural reserves or national
parks that provide protected habitat for yacare caiman.
(D) Description of current sustainable harvest programs, including
ranching (captive rearing of specimens collected from the wild as eggs
or juveniles) and farming (captive-breeding) programs.
(E) Current harvest quotas for wild populations.
(F) Export data for the last 2 years. Information should be
organized according to the source of specimens such as wild-caught,
captive-reared, or captive-bred.
(ii) Review and restrictions. The U.S. Scientific Authority will
conduct a review every 2 years, using information in the biennial
reports and other available information, to determine whether range
country management programs are effectively achieving conservation
benefits for the yacare caiman. Based on the best available
information, we may restrict trade from a range country if we determine
that the conservation or management status of threatened yacare caiman
populations has changed, such that continued recovery of the population
in that country may be compromised. Trade restrictions, as addressed in
paragraph
[[Page 48448]]
(c)(4) of this section, may be implemented based on one or more of the
following factors:
(A) Failure to submit the reports described above, or failure to
respond to requests for additional information.
(B) A change in range country laws or regulations that lessens
protection for yacare caiman.
(C) A change in range country management programs that lessens
protection for the species.
(D) A documented decline in wild population numbers.
(E) A documented increase in poaching.
(F) A documented decline in habitat quality or quantity.
(G) Other natural or manmade factors affecting the species'
recovery.
* * * * *
0
13. Part 23 is revised to read as follows:
PART 23--CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF
WILD FAUNA AND FLORA (CITES)
Subpart A--Introduction
Sec.
23.1 What are the purposes of these regulations and CITES?
23.2 How do I decide if these regulations apply to my shipment or
me?
23.3 What other wildlife and plant regulations may apply?
23.4 What are Appendices I, II, and III?
23.5 How are the terms used in these regulations defined?
23.6 What are the roles of the Management and Scientific
Authorities?
23.7 What office do I contact for CITES information?
23.8 What are the information collection requirements?
Subpart B--Prohibitions, Exemptions, and Requirements
23.13 What is prohibited?
23.14 [Reserved]
23.15 How may I travel internationally with my personal or household
effects, including tourist souvenirs?
23.16 What are the U.S. CITES requirements for urine, feces, and
synthetically derived DNA?
23.17 What are the requirements for CITES specimens traded
internationally by diplomatic, consular, military, and other persons
exempt from customs duties or inspections?
23.18 What CITES documents are required to export Appendix-I
wildlife?
23.19 What CITES documents are required to export Appendix-I plants?
23.20 What CITES documents are required for international trade?
23.21 What happens if a country enters a reservation for a species?
23.22 What are the requirements for in-transit shipments?
23.23 What information is required on U.S. and foreign CITES
documents?
23.24 What code is used to show the source of the specimen?
23.25 What additional information is required on a non-Party CITES
document?
23.26 When is a U.S. or foreign CITES document valid?
23.27 What CITES documents do I present at the port?
Subpart C--Application Procedures, Criteria, and Conditions
23.32 How do I apply for a U.S. CITES document?
23.33 How is the decision made to issue or deny a request for a U.S.
CITES document?
23.34 What kinds of records may I use to show the origin of a
specimen when I apply for a U.S. CITES document?
23.35 What are the requirements for an import permit?
23.36 What are the requirements for an export permit?
23.37 What are the requirements for a re-export certificate?
23.38 What are the requirements for a certificate of origin?
23.39 What are the requirements for an introduction-from-the-sea
certificate?
23.40 What are the requirements for a certificate for artificially
propagated plants?
23.41 What are the requirements for a bred-in-captivity certificate?
23.42 What are the requirements for a plant hybrid?
23.43 What are the requirements for a wildlife hybrid?
23.44 What are the requirements to travel internationally with my
personally owned live wildlife?
23.45 What are the requirements for a pre-Convention specimen?
23.46 What are the requirements for registering a commercial
breeding operation for Appendix-I wildlife and commercially
exporting specimens?
23.47 What are the requirements for export of an Appendix-I plant
artificially propagated for commercial purposes?
23.48 What are the requirements for a registered scientific
institution?
23.49 What are the requirements for an exhibition traveling
internationally?
23.50 What are the requirements for a sample collection covered by
an ATA carnet?
23.51 What are the requirements for issuing a partially completed
CITES document?
23.52 What are the requirements for replacing a lost, damaged,
stolen, or accidentally destroyed CITES document?
23.53 What are the requirements for obtaining a retrospective CITES
document?
23.54 How long is a U.S. or foreign CITES document valid?
23.55 How may I use a CITES specimen after import into the United
States?
23.56 What U.S. CITES document conditions do I need to follow?
Subpart D--Factors Considered in Making Certain Findings
23.60 What factors are considered in making a legal acquisition
finding?
23.61 What factors are considered in making a non-detriment finding?
23.62 What factors are considered in making a finding of not for
primarily commercial purposes?
23.63 What factors are considered in making a finding that an animal
is bred in captivity?
23.64 What factors are considered in making a finding that a plant
is artificially propagated?
23.65 What factors are considered in making a finding that an
applicant is suitably equipped to house and care for a live
specimen?
Subpart E--International Trade in Certain Specimens
23.68 How can I trade internationally in roots of American ginseng?
23.69 How can I trade internationally in fur skins and fur skin
products of bobcat, river otter, Canada lynx, gray wolf, and brown
bear?
23.70 How can I trade internationally in American alligator and
other crocodilian skins, parts, and products?
23.71 How can I trade internationally in sturgeon caviar?
23.72 How can I trade internationally in plants?
23.73 How can I trade internationally in timber?
23.74 How can I trade internationally in personal sport-hunted
trophies?
Subpart F--Disposal of Confiscated Wildlife and Plants
23.78 What happens to confiscated wildlife and plants?
23.79 How may I participate in the Plant Rescue Center Program?
Subpart G--CITES Administration
23.84 What are the roles of the Secretariat and the committees?
23.85 What is a meeting of the Conference of the Parties (CoP)?
23.86 How can I obtain information on a CoP?
23.87 How does the United States develop documents and negotiating
positions for a CoP?
23.88 What are the resolutions and decisions of the CoP?
Subpart H--Lists of Species
23.89 What are the criteria for listing species in Appendix I or II?
23.90 What are the criteria for listing species in Appendix III?
23.91 How do I find out if a species is listed?
23.92 Are any wildlife or plants, and their parts, products, or
derivatives, exempt?
Authority: Convention on International Trade in Endangered
Species of Wild Fauna and Flora (March 3, 1973), 27 U.S.T. 1087; and
Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.
Subpart A--Introduction
Sec. 23.1 What are the purposes of these regulations and CITES?
(a) Treaty. The regulations in this part implement the Convention
on
[[Page 48449]]
International Trade in Endangered Species of Wild Fauna and Flora, also
known as CITES, the Convention, the Treaty, or the Washington
Convention, TIAS (Treaties and Other International Acts Series) 8249.
(b) Purpose. The aim of CITES is to regulate international trade in
wildlife and plants, including parts, products, and derivatives, to
ensure it is legal and does not threaten the survival of species in the
wild. Parties, recognize that:
(1) Wildlife and plants are an irreplaceable part of the natural
systems of the earth and must be protected for this and future
generations.
(2) The value of wildlife and plants is ever-growing from the
viewpoints of aesthetics, science, culture, recreation, and economics.
(3) Although countries should be the best protectors of their own
wildlife and plants, international cooperation is essential to protect
wildlife and plant species from over-exploitation through international
trade.
(4) It is urgent that countries take appropriate measures to
prevent illegal trade and ensure that any use of wildlife and plants is
sustainable.
(c) National legislation. We, the U.S. Fish and Wildlife Service
(FWS), implement CITES through the Endangered Species Act (ESA).
Sec. 23.2 How do I decide if these regulations apply to my shipment
or me?
Answer the following questions to decide if the regulations in this
part apply to your proposed activity:
------------------------------------------------------------------------
Question on proposed activity Answer and action
------------------------------------------------------------------------
(a) Is the wildlife or plant species (1) YES. Continue to paragraph
(including parts, products, (b) of this section.
derivatives, whether wild-collected, (2) NO. The regulations in this
or born or propagated in a part do not apply.
controlled environment) listed in
Appendix I, II, or III of CITES (see
Sec. 23.91)?
------------------------------------------------------------------------
(b) Is the wildlife or plant specimen (1) YES. The regulations in this
exempted from CITES (see Sec. part do not apply.
23.92)? (2) NO. Continue to paragraph (c)
of this section.
------------------------------------------------------------------------
(c) Do you want to import, export, re- (1) YES. The regulations in this
export, engage in international part apply.
trade, or introduce from the sea? (2) NO. Continue to paragraph (d)
of this section.
------------------------------------------------------------------------
(d) Was the specimen that you possess (1) YES. The regulations in this
or want to enter into intrastate or part apply. See Sec. 23.13(c)
interstate commerce unlawfully and (d) and sections 9(c)(1) and
acquired, illegally traded, or 11(a) and (b) of the ESA (16
otherwise subject to conditions set U.S.C. 1538(c)(1) and 1540(a)
out on a CITES document that and (b)).
authorized import? (2) NO. The regulations in this
part do not apply.
------------------------------------------------------------------------
Sec. 23.3 What other wildlife and plant regulations may apply?
(a) You may need to comply with other regulations in this
subchapter that require a permit or have additional restrictions. Many
CITES species are also covered by one or more parts of this subchapter
or title and have additional requirements:
(1) Part 15 (exotic birds).
(2) Part 16 (injurious wildlife).
(3) Parts 17 of this subchapter and 222, 223, and 224 of this title
(endangered and threatened species).
(4) Parts 18 of this subchapter and 216 of this title (marine
mammals).
(5) Part 20 (migratory bird hunting).
(6) Part 21 (migratory birds).
(7) Part 22 (bald and golden eagles).
(b) If you are applying for a permit, you must comply with the
general permit procedures in part 13 of this subchapter. Definitions
and a list of birds protected under the Migratory Bird Treaty Act can
be found in part 10 of this subchapter.
(c) If you are importing (including introduction from the sea),
exporting, or re-exporting wildlife or plants, you must comply with the
regulations in part 14 of this subchapter for wildlife or part 24 of
this subchapter for plants. Activities with plants are also regulated
by the U.S. Department of Agriculture, Animal and Plant Health
Inspection Service (APHIS) and Department of Homeland Security, U.S.
Customs and Border Protection (CBP), in 7 CFR parts 319, 355, and 356.
(d) You may also need to comply with other Federal, State, tribal,
or local requirements.
Sec. 23.4 What are Appendices I, II, and III?
Species are listed by the Parties in one of three Appendices to the
Treaty (see subpart H of this part), each of which provides a different
level of protection and is subject to different requirements. Parties
regulate trade in specimens of Appendix-I, -II, and -III species and
their parts, products, and derivatives through a system of permits and
certificates (CITES documents). Such documents enable Parties to
monitor the effects of the volume and type of trade to ensure trade is
legal and not detrimental to the survival of the species.
(a) Appendix I includes species threatened with extinction that are
or may be affected by trade. Trade in Appendix-I specimens may take
place only in exceptional circumstances.
(b) Appendix II includes species that are not presently threatened
with extinction, but may become so if their trade is not regulated. It
also includes species that need to be regulated so that trade in
certain other Appendix-I or -II species may be effectively controlled;
these species are most commonly listed due to their similarity of
appearance to other related CITES species.
(c) Appendix III includes species listed unilaterally by a range
country to obtain international cooperation in controlling trade.
Sec. 23.5 How are the terms used in these regulations defined?
In addition to the definitions contained in part 10 of this
subchapter, and unless the context otherwise requires, in this part:
Affected by trade means that either a species is known to be in
trade and the trade has or may have a detrimental impact on the status
of the species, or a species is suspected to be in trade or there is
demonstrable potential international demand for the species that may be
detrimental to the survival of the species in the wild.
Annotation means an official footnote to the listing of a species
in the CITES Appendices. A reference annotation provides information
that further explains the listing (such as ``p.e.'' for possibly
extinct). A substantive annotation is an integral part of a species
listing. It designates whether the listing includes or excludes a
geographically separate population, subspecies, species, group of
species, or higher taxon, and the types of specimens included in or
excluded from the listing, such as certain parts, products, or
derivatives. A substantive annotation may designate export quotas
adopted by the CoP. For species
[[Page 48450]]
transferred from Appendix I to II subject to an annotation relating to
specified types of specimens, other types of specimens that are not
specifically included in the annotation are treated as if they are
Appendix-I specimens.
Appropriate and acceptable destination, when used in an Appendix-II
listing annotation for the export of, or international trade in, live
animals, means that the Management Authority of the importing country
has certified, based on advice from the Scientific Authority of that
country, that the proposed recipient is suitably equipped to house and
care for the animal (see criteria in Sec. 23.65). Such certification
must be provided before a CITES document is issued by the Management
Authority of the exporting or re-exporting country.
Artificially propagated means a cultivated plant that meets the
criteria in Sec. 23.64.
ATA carnet means a type of international customs document (see
Sec. 23.50). ATA is a combination of the French and English words
``Admission Temporaire/Temporary Admission.''
Bred for commercial purposes means any specimen of an Appendix-I
wildlife species bred in captivity for commercial purposes. Any
Appendix-I specimen that does not meet the definition of ``bred for
noncommercial purposes'' is considered to be bred for commercial
purposes.
Bred for noncommercial purposes means any specimen of an Appendix-I
wildlife species bred in captivity for noncommercial purposes, where
each donation, exchange, or loan of the specimen is noncommercial and
is conducted between facilities that are involved in a cooperative
conservation program.
Bred in captivity means wildlife that is captive-bred and meets the
criteria in Sec. 23.63.
Captive-bred means wildlife that is the offspring (first (F1) or
subsequent generations) of parents that either mated or otherwise
transferred egg and sperm under controlled conditions if reproduction
is sexual, or of a parent that was maintained under controlled
conditions when development of the offspring began if reproduction is
asexual, but does not meet the bred-in-captivity criteria (see Sec.
23.63).
Certificate means a CITES document or CITES exemption document that
identifies on its face the type of certificate it is, including re-
export certificate, introduction-from-the-sea certificate, and
certificate of origin.
CITES document or CITES exemption document means any certificate,
permit, or other document issued by a Management Authority of a Party
or a competent authority of a non-Party whose name and address is on
file with the Secretariat to authorize the international movement of
CITES specimens.
Commercial means related to an activity, including actual or
intended import, export, re-export, sale, offer for sale, purchase,
transfer, donation, exchange, or provision of a service, that is
reasonably likely to result in economic use, gain, or benefit,
including, but not limited to, profit (whether in cash or in kind).
Cooperative conservation program means a program in which
participating captive- breeding facilities produce Appendix-I specimens
bred for noncommercial purposes and participate in or support a
recovery activity for that species in cooperation with one or more of
the species' range countries.
Coral (dead) means pieces of coral in which the skeletons of the
individual polyps are still intact, but which contain no living coral
tissue.
Coral fragments, including coral gravel and coral rubble, means
loose pieces of broken finger-like coral between 2 and 30 mm in
diameter that contain no living coral tissue (see Sec. 23.92 for
exemptions).
Coral (live) means pieces of coral that are alive.
Coral rock means hard consolidated material greater than 30 mm in
diameter that consists of pieces of coral and possibly also cemented
sand, coralline algae, or other sedimentary rocks that contain no
living coral tissue. Coral rock includes live rock and substrate, which
are terms for pieces of coral rock to which are attached live specimens
of other invertebrate species or coralline algae that are not listed in
the CITES Appendices.
Coral sand means material that consists entirely, or in part, of
finely crushed coral no larger than 2 mm in diameter and that contains
no living coral tissue (see Sec. 23.92 for exemptions).
Country of origin means the country where the wildlife or plant was
taken from the wild or was born or propagated in a controlled
environment, except in the case of a plant specimen that qualified for
an exemption under the provisions of CITES, the country of origin is
the country in which the specimen ceased to qualify for the exemption.
Cultivar means a horticulturally derived plant variety that has
been selected for specific morphological, physiological, or other
characteristics, such as color, a large flower, or disease resistance.
Cultivated means a plant grown or tended by humans for human use. A
cultivated plant can be treated as artificially propagated under CITES
only if it meets the criteria in Sec. 23.64.
Export means to send, ship, or carry a specimen out of a country
(for export from the United States, see part 14 of this subchapter).
Flasked means plant material obtained in vitro, in solid or liquid
media, transported in sterile containers.
Household effect means a dead wildlife or plant specimen that is
part of a household move and meets the criteria in Sec. 23.15.
Hybrid means any wildlife or plant that results from a cross of
genetic material between two separate taxa when one or both are listed
in Appendix I, II, or III. See Sec. 23.42 for plant hybrids and Sec.
23.43 for wildlife hybrids.
Import means to bring, ship, or carry a specimen into a country
(for import into the United States, see part 14 of this subchapter).
International trade means the import, introduction from the sea,
export, or re-export across jurisdictional or international boundaries
for any purpose whether commercial or noncommercial.
In-transit shipment means the transshipment of any wildlife or
plant through an intermediary country when the specimen remains under
customs control and either the shipment meets the requirements of Sec.
23.22 or the sample collection covered by an ATA carnet meets the
requirements of Sec. 23.50.
Introduction from the sea means transportation into a country of
specimens of any species that were taken in the marine environment not
under the jurisdiction of any country.
ISO country code means the two-letter country code developed by the
International Organization for Standardization (ISO) to represent the
name of a country and its subdivisions.
Live rock see the definition for coral rock.
Management Authority means a governmental agency officially
designated by, and under the supervision of, either a Party to
implement CITES, or a non-Party to serve in the role of a Management
Authority, including the issuance of CITES documents on behalf of that
country.
Noncommercial means related to an activity that is not commercial.
Noncommercial includes, but is not limited to, personal use.
Non-Party means a country that has not deposited an instrument of
ratification, acceptance, approval, or
[[Page 48451]]
accession to CITES with the Depositary Government (Switzerland), or a
country that was a Party but subsequently notified the Depositary
Government of its denunciation of CITES and the denunciation is in
effect.
Offspring of first generation (F1) means a wildlife specimen
produced in a controlled environment from parents at least one of which
was conceived in or taken from the wild.
Offspring of second generation (F2) or subsequent generations means
a wildlife specimen produced in a controlled environment from parents
that were also produced in a controlled environment.
Parental stock means the original breeding or propagating specimens
that produced the subsequent generations of captive or cultivated
specimens.
Party means a country that has given its consent to be bound by the
provisions of CITES by depositing an instrument of ratification,
acceptance, approval, or accession with the Depositary Government
(Switzerland), and for which such consent is in effect.
Permit means a CITES document that identifies on its face import
permit or export permit.
Personal effect means a dead wildlife or plant specimen, including
a tourist souvenir, that is worn as clothing or accessories or is
contained in accompanying baggage and meets the criteria in Sec.
23.15.
Personal use means use that is not commercial and is for an
individual's own consumption or enjoyment.
Precautionary measures means the actions taken that will be in the
best interest of the conservation of the species when there is
uncertainty about the status of a species or the impact of trade on the
conservation of a species.
Pre-Convention means a specimen that was acquired (removed from the
wild or born or propagated in a controlled environment) before the date
the provisions of the Convention first applied to the species and that
meets the criteria in Sec. 23.45, and any product (including a
manufactured item) or derivative made from such specimen.
Primarily commercial purposes means an activity whose noncommercial
aspects do not clearly predominate (see Sec. 23.62).
Propagule means a structure, such as a cutting, seed, or spore,
which is capable of propagating a plant.
Readily recognizable means any specimen that appears from a visual,
physical, scientific, or forensic examination or test; an accompanying
document, packaging, mark, or label; or any other circumstances to be a
part, product, or derivative of any CITES wildlife or plant, unless
such part, product, or derivative is specifically exempt from the
provisions of CITES or this part.
Re-export means to send, ship, or carry out of a country any
specimen previously imported into that country, whether or not the
specimen has been altered since import.
Reservation means the action taken by a Party to inform the
Secretariat that it is not bound by the effect of a specific listing
(see Sec. 23.21).
Scientific Authority means a governmental or independent scientific
institution or entity officially designated by either a Party to
implement CITES, or a non-Party to serve the role of a Scientific
Authority, including making scientific findings.
Secretariat means the entity designated by the Treaty to perform
certain administrative functions (see Sec. 23.84).
Shipment means any CITES specimen in international trade whether
for commercial or noncommercial use, including any personal item.
Species means any species, subspecies, hybrid, variety, cultivar,
color or morphological variant, or geographically separate population
of that species.
Specimen means any wildlife or plant, whether live or dead. This
term includes any readily recognizable part, product, or derivative
unless otherwise annotated in the Appendices.
Sustainable use means the use of a species in a manner and at a
level that maintains wild populations at biologically viable levels for
the long term. Such use involves a determination of the productive
capacity of the species and its ecosystem to ensure that utilization
does not exceed those capacities or the ability of the population to
reproduce, maintain itself, and perform its role or function in its
ecosystem.
Trade means the same as international trade.
Transit see the definition for in-transit shipment.
Traveling exhibition means a display of live or dead wildlife or
plants for entertainment, educational, cultural, or other display
purposes that is temporarily moving internationally.
Sec. 23.6 What are the roles of the Management and Scientific
Authorities?
Under Article IX of the Treaty, each Party must designate a
Management and Scientific Authority to implement CITES for that
country. If a non-Party wants to trade with a Party, it must also
designate such Authorities. The names and addresses of these offices
must be sent to the Secretariat to be included in the Directory. In the
United States, different offices within the FWS have been designated
the Scientific Authority and Management Authority, which for purposes
of this section includes FWS Law Enforcement. When offices share
activities, the Management Authority is responsible for dealing
primarily with management and regulatory issues and the Scientific
Authority is responsible for dealing primarily with scientific issues.
The offices do the following:
----------------------------------------------------------------------------------------------------------------
U.S. Scientific U.S. Management
Roles Authority Authority
----------------------------------------------------------------------------------------------------------------
(a) Provide scientific advice and recommendations, including advice on x .................
biological findings for applications for certain CITES documents,
registrations, and export program approvals. Evaluate the conservation
status of species to determine if a species listing or change in a
listing is warranted. Interpret listings and review nomenclatural issues.
----------------------------------------------------------------------------------------------------------------
(b) Review applications for CITES documents and issue or deny them based x
on findings required by CITES.
----------------------------------------------------------------------------------------------------------------
(c) Communicate with the Secretariat and other countries on scientific, x x
administrative, and enforcement issues.
----------------------------------------------------------------------------------------------------------------
(d) Ensure that export of Appendix-II specimens is at a level that x .................
maintains a species throughout its range at a level consistent with its
role in the ecosystems in which it occurs and well above the level at
which it might become eligible for inclusion in Appendix I.
----------------------------------------------------------------------------------------------------------------
(e) Monitor trade in all CITES species and produce annual reports on CITES x
trade.
----------------------------------------------------------------------------------------------------------------
[[Page 48452]]
(f) Collect the cancelled foreign export permit or re-export certificate x
and any corresponding import permit presented for import of any CITES
specimen. Collect a copy of the validated U.S. export permit or re-export
certificate presented for export or re-export of any CITES specimen.
----------------------------------------------------------------------------------------------------------------
(g) Produce biennial reports on legislative, regulatory, and x
administrative measures taken by the United States to enforce the
provisions of CITES.
----------------------------------------------------------------------------------------------------------------
(h) Coordinate with State and tribal governments and other Federal x x
agencies on CITES issues, such as the status of native species,
development of policies, negotiating positions, and law enforcement
activities.
----------------------------------------------------------------------------------------------------------------
(i) Communicate with the scientific community, the public, and media about x x
CITES issues. Conduct public meetings and publish notices to gather input
from the public on the administration of CITES and the conservation and
trade status of domestic and foreign species traded internationally.
----------------------------------------------------------------------------------------------------------------
(j) Represent the United States at the meetings of the CoP, on committees x x
(see subpart G of this part), and on CITES working groups. Consult with
other countries on CITES issues and the conservation status of species.
Prepare discussion papers and proposals for new or amended resolutions
and species listings for consideration at the CoP.
----------------------------------------------------------------------------------------------------------------
(k) Provide assistance to APHIS and CBP for the enforcement of CITES. x x
Cooperate with enforcement officials to facilitate the exchange of
information between enforcement bodies and for training purposes.
----------------------------------------------------------------------------------------------------------------
(l) Provide financial and technical assistance to other governmental x x
agencies and CITES officials of other countries.
----------------------------------------------------------------------------------------------------------------
Sec. 23.7 What office do I contact for CITES information?
Contact the following offices to receive information about CITES:
------------------------------------------------------------------------
Type of information Office to contact
------------------------------------------------------------------------
(a) CITES administrative and U.S. Management Authority
management issues: U.S. Fish and Wildlife Service
(1) CITES documents, including 4401 North Fairfax Drive, Room 700
application forms and procedures; Arlington, Virginia 22203
lists of registered scientific Toll Free: (800) 358-2104/permit
institutions and operations questions
breeding Appendix-I wildlife for Tel: (703) 358-2095/other questions
commercial purposes; and Fax: (703) 358-2281/permits
reservations Fax: (703) 358-2298/other issues
(2) Information on the CoP E-mail: managementauthority@fws.gov
(3) List of CITES species Website: http://www.fws.gov/(4) Names and addresses of other international and http://
countries' Management and http://www.fws.gov/permits
Scientific Authority offices
(5) Notifications, resolutions, and
decisions
(6) Standing Committee documents
and issues
(7) State and tribal export
programs
------------------------------------------------------------------------
(b) Scientific issues: ...................................
(1) Animals and Plants Committees U.S. Scientific Authority
documents and issues U.S. Fish and Wildlife Service
(2) Findings of non-detriment and 4401 North Fairfax Drive, Room 750
suitability of facilities, and Arlington, Virginia 22203
other scientific findings Tel: (703) 358-1708
(3) Listing of species in the Fax: (703) 358-2276
Appendices and relevant E-mail: scientificauthority@fws.gov
resolutions Website: http://www.fws.gov/(4
) Names and addresses of other international
countries' Scientific Authority
offices and scientists involved
with CITES-related issues
(5) Nomenclatural issues
------------------------------------------------------------------------
(c) Wildlife clearance procedures: ...................................
(1) CITES replacement tags Law Enforcement
(2) Information about wildlife port U.S. Fish and Wildlife Service
office locations 4401 North Fairfax Drive, Mail Stop
(3) Information bulletins LE-3000
(4) Inspection and clearance of Arlington, Virginia 22203
wildlife shipments involving Tel: (703) 358-1949
import, introduction from the sea, Fax: (703) 358-2271
export, and re-export, and filing Website: http://www.fws.gov/le
a Declaration of Importation or
Exportation of Fish or Wildlife
(Form 3-177)
(5) Validation, certification, or
cancellation of CITES wildlife
documents
------------------------------------------------------------------------
[[Page 48453]]
(d) APHIS plant clearance U.S. Department of Agriculture
procedures: APHIS/PPQ
(1) Information about plant port 4700 River Road
office locations Riverdale, Maryland 20737-1236
(2) Inspection and clearance of Toll Free: (877) 770-5990/permit
plant shipments involving: questions
(i) Import and introduction from Tel: (301) 734-8891/other CITES
the sea of living plants issues
(ii) Export and re-export of living Fax: (301) 734-5786/permit
and nonliving plants questions
(3) Validation or cancellation of Fax: (301) 734-5276/other CITES
CITES plant documents for the type issues
of shipments listed in paragraph Website: http://www.aphis.usda.gov/
(d)(2) of this section plant--health
------------------------------------------------------------------------
(e) CBP plant clearance procedures: Department of Homeland Security
(1) Inspection and clearance of U.S. Customs and Border Protection
plant shipments involving: Office of Field Operations
(i) Import and introduction from Agriculture Programs and Liaison
the sea of nonliving plants 1300 Pennsylvania Avenue, NW, Room
(ii) Import of living plants from 2.5 B
Canada at designated border ports Washington, DC 20229
(7 CFR 319.37-14(b) and 50 CFR Tel: (202) 344-3298
24.12(d)) Fax: (202) 344-1442
(2) Cancellation of CITES plant
documents for the type of
shipments listed in paragraph
(e)(1) of this section
------------------------------------------------------------------------
(f) General information on CITES: CITES Secretariat
(1) CITES export quota information Website: http://www.cites.org(2
) CITES'Guidelines for transport
and preparation for shipment of
live wild animals and plants
(3) Information about the
Secretariat
(4) Names and addresses of other
countries' Management and
Scientific Authority offices
(5) Official documents, including
resolutions, decisions,
notifications, CoP documents, and
committee documents
(6) Official list of CITES species
and species database
(7) Text of the Convention
------------------------------------------------------------------------
Sec. 23.8 What are the information collection requirements?
The Office of Management and Budget approved the information
collection requirements for application forms and reports contained in
this part and assigned OMB Control Numbers 1018-0093 and 1018-0137. We
cannot collect or sponsor a collection of information and you are not
required to provide information unless it displays a currently valid
OMB control number.
Subpart B--Prohibitions, Exemptions, and Requirements
Sec. 23.13 What is prohibited?
Except as provided in Sec. 23.92, it is unlawful for any person
subject to the jurisdiction of the United States to conduct any of the
following activities unless they meet the requirements of this part:
(a) Import, export, re-export, or engage in international trade
with any specimen of a species listed in Appendix I, II, or III of
CITES.
(b) Introduce from the sea any specimen of a species listed in
Appendix I or II of CITES.
(c) Possess any specimen of a species listed in Appendix I, II, or
III of CITES imported, exported, re-exported, introduced from the sea,
or traded contrary to the provisions of CITES, the ESA, or this part.
(d) Attempt to commit, solicit another to commit, or cause to be
committed any of the activities described in paragraphs (a) through (c)
of this section.
Sec. 23.14 [Reserved]
Sec. 23.15 How may I travel internationally with my personal or
household effects, including tourist souvenirs?
(a) Purpose. Article VII(3) of the Treaty recognizes a limited
exemption for the international movement of personal and household
effects.
(b) Stricter national measures. The exemption for personal and
household effects does not apply if a country prohibits or restricts
the import, export, or re-export of the item.
(1) You or your shipment must be accompanied by any document
required by a country under its stricter national measures.
(2) In the United States, you must obtain any permission needed
under other regulations in this subchapter (see Sec. 23.3).
(c) Required CITES documents. You must obtain a CITES document for
personal or household effects and meet the requirements of this part if
one of the following applies:
(1) The Management Authority of the importing, exporting, or re-
exporting country requires a CITES document.
(2) You or your shipment does not meet all of the conditions for an
exemption as provided in paragraphs (d) through (f) of this section.
(3) The personal or household effect for the following species
exceeds the quantity indicated in paragraphs (c)(3)(i) through (vi) in
the table below:
------------------------------------------------------------------------
Species (Appendix
Major group II only) Type of specimen Quantity\1\
------------------------------------------------------------------------
Fishes (i) Sturgeon caviar 250 gm
Acipenseriformes (see Sec.
(sturgeon, 23.71)
including
paddlefish)
------------------------------------------------------------------------
Fishes (ii) Hippocampus Dead specimens, 4
spp. (seahorses) parts, products
(including
manufactured
items), and
derivatives
------------------------------------------------------------------------
[[Page 48454]]
Reptiles (iii) Crocodylia Dead specimens, 4
(alligators, parts, products
caimans, (including
crocodiles, manufactured
gavial) items), and
derivatives
------------------------------------------------------------------------
Molluscs (iv) Strombus gigas Shells 3
(queen conch)
------------------------------------------------------------------------
Molluscs (v) Tridacnidae Shells, each of 3 shells, total
(giant clams) which may be one not exceeding 3
intact shell or kg
two matching
halves
------------------------------------------------------------------------
Plants (vi) Cactaceae Rainsticks 3
(cacti)
------------------------------------------------------------------------
\1\ To import, export, or re-export more than the quantity listed in the
table, you must have a valid CITES document for the entire quantity.
(d) Personal effects. You do not need a CITES document to import,
export, or re-export any legally acquired specimen of a CITES species
to or from the United States if all of the following conditions are
met:
(1) No live wildlife or plant (including eggs or non-exempt seeds)
is included.
(2) No specimen from an Appendix-I species is included, except for
certain worked African elephant ivory as provided in paragraph (f) of
this section.
(3) The specimen and quantity of specimens are reasonably necessary
or appropriate for the nature of your trip or stay and, if the type of
specimen is one listed in paragraph (c)(3) of this section, the
quantity does not exceed the quantity given in the table.
(4) You own and possess the specimen for personal use, including
any specimen intended as a personal gift.
(5) You are either wearing the specimen as clothing or an accessory
or taking it as part of your personal baggage, which is being carried
by you or checked as baggage on the same plane, boat, vehicle, or train
as you.
(6) The specimen was not mailed or shipped separately.
(e) Household effects. You do not need a CITES document to import,
export, or re-export any legally acquired specimen of a CITES species
that is part of a shipment of your household effects when moving your
residence to or from the United States, if all of the following
conditions are met:
(1) The provisions of paragraphs (d)(1) through (3) of this section
are met.
(2) You own the specimen and are moving it for personal use.
(3) You import or export your household effects within 1 year of
changing your residence from one country to another.
(4) The shipment, or shipments if you cannot move all of your
household effects at one time, contains only specimens purchased,
inherited, or otherwise acquired before you changed your residence.
(f) African elephant worked ivory. You may export or re-export from
the United States worked African elephant (Loxodonta africana) ivory
and then re-import it without a CITES document if all of the following
conditions are met:
(1) The worked ivory is a personal or household effect that meets
the requirements of paragraphs (c) through (e) of this section and you
are a U.S. resident who owned the worked ivory before leaving the
United States and intend to bring the item back to the United States.
(2) The ivory is pre-Convention (see Sec. 23.45). (The African
elephant was first listed in CITES on February 26, 1976.)
(3) You may not sell or transfer the ivory while outside the United
States.
(4) The ivory is substantially worked and is not raw. Raw ivory
means an African elephant tusk, or any piece of tusk, the surface of
which, polished or unpolished, is unaltered or minimally carved,
including ivory mounted on a stand or part of a trophy.
(5) When you return, you are able to provide records, receipts, or
other documents to show that the ivory is pre-Convention and that you
owned and registered it before you left the United States. To register
such an item you must obtain one of the following documents:
(i) U.S. CITES pre-Convention certificate.
(ii) FWS Declaration of Importation or Exportation of Fish or
Wildlife (Form 3-177).
(iii) Customs and Border Protection Certificate of Registration for
Personal Effects Taken Abroad (Form 4457).
Sec. 23.16 What are the U.S. CITES requirements for urine, feces, and
synthetically derived DNA?
(a) CITES documents. We do not require CITES documents to trade in
urine, feces, or synthetically derived DNA.
(1) You must obtain any collection permit and CITES document
required by the foreign country.
(2) If the foreign country requires you to have a U.S. CITES
document for these kinds of samples, you must apply for a CITES
document and meet the requirements of this part.
(b) Urine and feces. Except as provided in paragraph (a) of this
section, we consider urine and feces to be wildlife byproducts, rather
than parts, products, or derivatives, and exempt them from the
requirements of CITES and this part.
(c) DNA. We differentiate between DNA directly extracted from blood
and tissue and DNA synthetically derived as follows:
(1) A DNA sample directly derived from wildlife or plant tissue is
regulated by CITES and this part.
(2) A DNA sample synthetically derived that does not contain any
part of the original template is exempt from the requirements of CITES
and this part.
Sec. 23.17 What are the requirements for CITES specimens traded
internationally by diplomatic, consular, military, and other persons
exempt from customs duties or inspections?
A specimen of a CITES species imported, introduced from the sea,
exported, or re-exported by a person receiving duty-free or inspection
exemption privileges under customs laws must meet the requirements of
CITES and the regulations in this part.
Sec. 23.18 What CITES documents are required to export Appendix-I
wildlife?
Answer the questions in the following decision tree to find the
section in this part that applies to the type of CITES document you
need to export Appendix-I wildlife. See Sec. 23.20(d) for CITES
exemption documents or Sec. 23.92 for specimens that are exempt from
the requirements of CITES and do not need CITES documents.
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[[Page 48455]]
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[[Page 48456]]
Sec. 23.19 What CITES documents are required to export Appendix-I
plants?
Answer the questions in the following decision tree to find the
section in this part that applies to the type of CITES document you
need to export Appendix-I plants. See Sec. 23.20(d) for CITES
exemption documents or Sec. 23.92 for specimens that are exempt from
the requirements of CITES and do not need CITES documents.
[[Page 48457]]
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[[Page 48458]]
Sec. 23.20 What CITES documents are required for international trade?
(a) Purpose. Articles III, IV, and V of the Treaty give the types
of standard CITES documents that must accompany an Appendix-I, -II, or
-III specimen in international trade. Articles VII and XIV recognize
some exemptions and provide that a CITES document must accompany most
exempt specimens.
(b) Stricter national measures. Before importing, introducing from
the sea, exporting, or re-exporting a specimen, check with the
Management Authorities of all countries concerned to obtain any
documentation required under stricter national measures.
(c) CITES documents. Except as provided in the regulations in this
part, you must have a valid CITES document to engage in international
trade in any CITES specimen.
(d) CITES exemption documents. The following table lists the CITES
exemption document that you must obtain before conducting a proposed
activity with an exempt specimen (other than specimens exempted under
Sec. 23.92). If one of the exemptions does not apply to the specimen,
you must obtain a CITES document as provided in paragraph (e) of this
section. The first column in the following table alphabetically lists
the type of specimen or activity that may qualify for a CITES exemption
document. The last column indicates the section of this part that
contains information on the application procedures, provisions,
criteria, and conditions specific to each CITES exemption document, as
follows:
------------------------------------------------------------------------
Type of specimen or CITES exemption
activity Appendix document Section
------------------------------------------------------------------------
(1) Artificially I, II, or III CITES document with 23.40
propagated plant source code ``A''\1\
(see paragraph
(d)(4) of this
section for an
Appendix-I plant
propagated for
commercial purposes)
------------------------------------------------------------------------
(2) Artificially II or III Phytosanitary 23.23(f)
propagated plant certificate with
from a country that CITES statement\1\
has provided copies
of the certificates,
stamps, and seals to
the Secretariat
------------------------------------------------------------------------
(3) Bred-in-captivity I, II, or III CITES document with 23.41
wildlife (see source code ``C''\1\
paragraph (d)(5) of
this section for
Appendix-I wildlife
bred in captivity
for commercial
purposes)
------------------------------------------------------------------------
(4) Commercially I CITES document with 23.47
propagated Appendix- source code ``D''\1\
I plant
------------------------------------------------------------------------
(5) Commercially bred I CITES document with 23.46
Appendix-I wildlife source code ``D''\1\
from a breeding
operation registered
with the CITES
Secretariat
------------------------------------------------------------------------
(6) Export of certain II CITES document 23.36(e)
marine specimens indicating that the 23.39(e)
protected under a specimen was taken
pre-existing treaty, in accordance with
convention, or provisions of the
international applicable treaty,
agreement for that convention, or
species international
agreement
------------------------------------------------------------------------
(7) Hybrid plants I, II, or III CITES document unless 23.42
the specimen
qualifies as an
exempt plant hybrid
------------------------------------------------------------------------
(8) Hybrid wildlife I, II, or III CITES document unless 23.43
the specimen
qualifies as an
exempt wildlife
hybrid
------------------------------------------------------------------------
(9) In-transit I, II, or III CITES document 23.22
shipment (see designating importer
paragraph (d)(14) of and country of final
this section for destination
sample collections
covered by an ATA
carnet)
------------------------------------------------------------------------
(10) Introduction II Document required by 23.39(d)
from the sea under a applicable treaty,
pre-existing treaty, convention, or
convention, or international
international agreement, if
agreement for that appropriate
species
------------------------------------------------------------------------
(11) Noncommercial I, II, or III A label indicating 23.48
loan, donation, or CITES and the
exchange of registration codes
specimens between of both institutions
scientific and, in the United
institutions States, a CITES
registered with the certificate of
CITES Secretariat scientific exchange
that registers the
institution\3\
------------------------------------------------------------------------
(12) Personally owned I, II, or III CITES certificate of 23.44
live wildlife for ownership\2\
multiple cross-
border movements
------------------------------------------------------------------------
(13) Pre-Convention I, II, or III CITES document 23.45
specimen indicating pre-
Convention status\1\
------------------------------------------------------------------------
(14) Sample I\4\, II, or CITES document 23.50
collection covered III indicating sample
by an ATA carnet collection\2\
------------------------------------------------------------------------
(15) Traveling I, II, or III CITES document 23.49
exhibition indicating specimens
qualify as pre-
Convention, bred in
captivity, or
artificially
propagated\2\
------------------------------------------------------------------------
\1\ Issued by the Management Authority in the exporting or re-exporting
country.
\2\ Issued by the Management Authority in the owner's country of usual
residence.
\3\ Registration codes assigned by the Management Authorities in both
exporting and importing countries.
\4\ Appendix-I species bred in captivity or artificially propagated for
commercial purposes (see Sec. Sec. 23.46 and 23.47).
[[Page 48459]]
(e) Import permits, export permits, re-export certificates, and
certificates of origin. Unless one of the exemptions under paragraph
(d) of this section or Sec. 23.92 applies, you must obtain the
following CITES documents before conducting the proposed activity:
----------------------------------------------------------------------------------------------------------------
Appendix Type of CITES document(s) required
----------------------------------------------------------------------------------------------------------------
I Import permit (Sec. 23.35) and either an export permit (Sec.
23.36) or re-export certificate (Sec. 23.37)
----------------------------------------------------------------------------------------------------------------
II Export permit (Sec. 23.36) or re-export certificate (Sec.
23.37)
----------------------------------------------------------------------------------------------------------------
III Export permit (Sec. 23.36) if the specimen originated in a
country that listed the species; certificate of origin (Sec.
23.38) if the specimen originated in a country other than the
listing country, unless the listing annotation indicates
otherwise; or re-export certificate for all re-exports (Sec.
23.37)
----------------------------------------------------------------------------------------------------------------
(f) Introduction-from-the-sea certificates. For introduction from
the sea of Appendix-I or Appendix-II specimens, you must obtain an
introduction-from-the-sea certificate before conducting the proposed
activity, unless the exemption in paragraph (d)(10) of this section
applies (see Sec. 23.39). The export of a specimen that was previously
introduced from the sea will be treated as an export (see Sec. 23.36
for export, Sec. 23.36(e) and Sec. 23.39(e) for export of exempt
specimens, or Sec. 23.37 for re-export). Although an Appendix-III
specimen does not require a CITES document to be introduced from the
sea, the subsequent international trade of the specimen would be
considered an export. For export of an Appendix-III specimen that was
introduced from the sea you must obtain an export permit (Sec. 23.36)
if the export is from the country that listed the species in Appendix
III, a certificate of origin (Sec. 23.38) if the export is from a
country other than the listing country, or a re-export certificate for
all re-exports (Sec. 23.37).
Sec. 23.21 What happens if a country enters a reservation for a
species?
(a) Purpose. CITES is not subject to general reservations. Articles
XV, XVI, and XXIII of the Treaty allow a Party to enter a specific
reservation on a species listed in Appendix I, II, or III, or on parts,
products, or derivatives of a species listed in Appendix III.
(b) General provision. A Party can enter a reservation in one of
the following ways:
(1) A Party must provide written notification to the Depositary
Government (Switzerland) on a specific new or amended listing in the
Appendices within 90 days after the CoP that adopted the listing, or at
any time for Appendix-III species.
(2) A country must provide written notification on a specific
species listing when the country ratifies, accepts, approves, or
accedes to CITES.
(c) Requesting the United States take a reservation. You may submit
information relevant to the issue of whether the United States should
take a reservation on a species listing to the U.S. Management
Authority. The request must be submitted within 30 calendar days after
the last day of the CoP where a new or amended listing of a species in
Appendix I or II occurs, or at any time for a species (or its parts,
products, or derivatives) listed in Appendix III.
(d) Required CITES documents. Except as provided in paragraph
(d)(2) of this section, Parties treat a reserving Party as if it were a
non-Party for trade in the species concerned (including parts,
products, and derivatives, as appropriate). The following table
indicates when CITES documents must accompany a shipment and which
Appendix should appear on the face of the document:
------------------------------------------------------------------------
If Then
------------------------------------------------------------------------
(1) The shipment is between a Party and a The shipment must be
reserving Party, or the shipment is from accompanied by a valid
a non-Party to a reserving Party and is CITES document(s) (see Sec.
in transit through a Party 23.26) that indicates the
CITES Appendix in which the
species is listed.
------------------------------------------------------------------------
(2) The shipment is from a reserving Party The shipment must be
to another reserving Party\1\ or non- accompanied by a valid
Party and is in transit through a Party CITES document(s) (see Sec.
23.26) that indicates the
CITES Appendix in which the
species is listed.\2\
------------------------------------------------------------------------
(3) The shipment is between a reserving No CITES document is
Party and another reserving Party\1\ or required.\2\
non-Party and is not in transit through a
Party
------------------------------------------------------------------------
\1\ Both reserving Parties must have a reservation for the same species,
and if the species is listed in Appendix III, a reservation for the
same parts, products, and derivatives.
\2\ CITES recommends that reserving Parties treat Appendix-I species as
if listed in Appendix II and issue CITES documents based on Appendix-
II permit criteria (see Sec. 23.36). However, the CITES document
must show the specimen as listed in Appendix I. If the United States
entered a reservation, such a CITES document would be required.
(e) Reservations taken by countries. You may consult the CITES
website or contact us (see Sec. 23.7) for a list of countries that
have taken reservations and the species involved.
Sec. 23.22 What are the requirements for in-transit shipments?
(a) Purpose. Article VII(1) of the Treaty allows for a shipment to
transit an intermediary country that is a Party before reaching its
final destination without the need for the intermediary Party to issue
CITES documents. To control any illegal trade, Parties are to inspect,
to the extent possible under their national legislation, specimens in
transit through their territory to verify the presence of valid
documentation. See Sec. 23.50 for in-transit shipment of sample
collections covered by an ATA carnet.
(b) Document requirements. An in-transit shipment does not require
a CITES document from an intermediary country, but must be accompanied
by all of the following documents:
(1) Unless the specimen qualifies for an exemption under Sec.
23.92, a valid original CITES document, or a copy of
[[Page 48460]]
the valid original CITES document, that designates the name of the
importer in the country of final destination and is issued by the
Management Authority of the exporting or re-exporting country. A copy
of a CITES document is subject to verification.
(2) For shipment of an Appendix-I specimen, a copy of a valid
import permit that designates the name of the importer in the country
of final destination, unless the CITES document in paragraph (b)(1) of
this section is a CITES exemption document (see Sec. 23.20(d)).
(3) Transportation and routing documents that show the shipment has
been consigned to the same importer and country of final destination as
designated on the CITES document.
(c) Shipment requirements. An in-transit shipment, including items
in an on-board store, must meet the following:
(1) When in an intermediary country, an in-transit shipment must
stay only for the time needed to immediately transfer the specimen to
the mode of transport used to continue to the final destination and
remain under customs control. Other than during immediate transfer, the
specimen may not be stored in a duty-free, bonded, or other kind of
warehouse or a free trade zone.
(2) At any time during transit, an in-transit shipment must not be
sold, manipulated, or split unless authorized by the Management
Authority of the intermediary country for inspection or enforcement
purposes.
(d) Reserving Party or non-Party. All the requirements of this
section apply to shipments to or from a reserving Party or non-Party
that are being transshipped through a Party. The CITES document must
treat the specimen as listed in the Appendix as provided in Sec.
23.21(d).
(e) Specimen protected by other regulations. Shipment of a specimen
that is also listed as a migratory bird (part 10 of this subchapter),
injurious wildlife (part 16 of this subchapter), endangered or
threatened species (parts 17 of this subchapter and 222-224 of this
title), marine mammal (parts 18 of this subchapter and 216 of this
title), or bald or golden eagle (part 22 of this subchapter), and is
moving through the United States is considered an import, and cannot be
treated as an in-transit shipment (see Sec. 23.3).
Sec. 23.23 What information is required on U.S. and foreign CITES
documents?
(a) Purpose. Article VI of the Treaty provides standard information
that must be on a permit and certificate issued under Articles III, IV,
and V. To identify a false or invalid document, any CITES document,
including a CITES exemption document issued under Article VII, must
contain standardized information to allow a Party to verify that the
specimen being shipped is the one listed on the document and that the
trade is consistent with the provisions of the Treaty.
(b) CITES form. A CITES document issued by a Party must be on a
form printed in one or more of the three working languages of CITES
(English, Spanish, or French). A CITES document from a non-Party may be
in the form of a permit or certificate, letter, or any other form that
clearly indicates the nature of the document and includes the
information in paragraphs (c) through (e) of this section and the
additional information in Sec. 23.25.
(c) Required information. Except for a phytosanitary certificate
used as a CITES certificate for artificially propagated plants in
paragraph (f) of this section, or a customs declaration label used to
identify specimens being moved between registered scientific
institutions (Sec. 23.48(e)(5)), a CITES document issued by a Party or
non-Party must contain the information set out in this paragraph
(listed alphabetically). Specific types of CITES documents must also
contain the additional information identified in paragraph (e) of this
section. A CITES document is valid only when it contains the following
information:
------------------------------------------------------------------------
Required information Description
------------------------------------------------------------------------
(1) Appendix The CITES Appendix in which the species,
subspecies, or population is listed (see
Sec. 23.21 when a Party has taken a
reservation on a listing).
------------------------------------------------------------------------
(2) Applicant's signature The applicant's signature if the CITES
document includes a place for it.
------------------------------------------------------------------------
(3) Bill of lading, air As applicable for export or re-export: (i)
waybill, or flight number by ocean or air cargo, the bill of lading
or air waybill number or (ii) in
accompanying baggage, the flight number,
as recorded on the CITES document by the
inspecting official at the port, if known
at the time of validation or
certification.
------------------------------------------------------------------------
(4) Dates Date of issue and date of expiration
(``valid until'' date on the standardized
CITES form), which is midnight of the
date on the CITES document. See Sec.
23.54 for the length of validity for
different types of CITES documents.
------------------------------------------------------------------------
(5) Description of the A complete description of the specimen,
specimen including whether live or the type of
goods. The sex and age of a live specimen
should be recorded, if possible. Such
information must be in English, Spanish,
or French on a CITES document from a
Party. If a code is used to indicate the
type of specimen, it must agree with the
Guidelines for preparation and submission
of CITES annual reports available from
the CITES website or us (see Sec.
23.7).
------------------------------------------------------------------------
(6) Document number A unique control number. We use a unique
12-character number. The first two
characters are the last two digits of the
year of issuance, the next two are the
two-letter ISO country code, followed by
a six-digit serial number, and two digits
or letters used for national
informational purposes.
------------------------------------------------------------------------
[[Page 48461]]
(7) Humane transport of live If the CITES document authorizes the
wildlife export or re-export of live wildlife, a
statement that the document is valid only
if the transport conditions comply with
CITES' Guidelines for transport and
preparation for shipment of live wild
animals and plants, or in the case of air
transport of wildlife, with the
International Air Transport Association
Live Animals Regulations. The shipment
must comply with the requirements of
CITES'Guidelines for transport and
preparation for shipment of live wild
animals and plants, adopted by the
Parties in 1979 and revised in 1981, or,
in the case of air transport of wildlife,
the Live Animals Regulations (LAR),
33\rd\ edition, October 1, 2006, by the
International Air Transport Association
(IATA), Reference Number: 9105-33, ISBN
92-9195-818-2. The incorporation by
reference of these documents was approved
by the Director of the Office of the
Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies
of CITES' Guidelines for transport and
preparation for shipment of live wild
animals and plants may be obtained from
the CITES Secretariat, International
Environment House, Chemin des
An[eacute]mones, CH-1219,
Ch[acirc]telaine, Geneva, Switzerland, or
through the Internet at http://www.cites.org/eng/resources/transport/E-
Copies of the IATA LAR
may be obtained from IATA, 800 Place
Victoria, P.O. Box 113, Montreal, Quebec,
Canada H4Z 1M1, by calling 1-800-716-
6326, or ordering through the Internet at
http://www.iata.org. Copies of these
documents may be inspected at the U.S.
Management Authority, Fish and Wildlife
Service, 4401 N. Fairfax Dr., Arlington,
VA 22203 or at the National Archives and
Records Administration (NARA). For
information on the availability of this
material at NARA, call 202-741-6030, or
go to: http://www.archives.gov/federal_
register/code--of--federal--regulations/
ibr--locations.html.
------------------------------------------------------------------------
(8) Identification of the Any unique identification number or mark
specimen (such as a tag, band, ring, microchip,
label, or serial number), including any
mark required under these regulations or
a CITES listing annotation. For a
microchip, the microchip code, trademark
of the transponder manufacturer and,
where possible, the location of the
microchip in the specimen. If a microchip
is used, we may, if necessary, ask the
importer, exporter, or re-exporter to
have equipment on hand to read the
microchip at the time of import, export,
or re-export.
------------------------------------------------------------------------
(9) Management Authority The complete name and address of the
issuing Management Authority as included
in the CITES directory, which is
available from the CITES website or us
(see Sec. 23.7).
------------------------------------------------------------------------
(10) Name and address The complete name and address, including
country, of the exporter and importer.
------------------------------------------------------------------------
(11) Purpose of transaction The purpose of the transaction identified
either through a written description of
the purpose of the transaction or by
using one of the codes given in paragraph
(d) of this section. The code is
determined by the issuing Management
Authority through information submitted
with an application. This is not required
for a certificate of origin.
------------------------------------------------------------------------
(12) Quantity The quantity of specimens authorized in
the shipment and, if appropriate, the
unit of measurement using the metric
system:
(i) The unit of measurement should be
appropriate to the type of specimen and
agree with the Guidelines for the
preparation and submission of CITES
annual reports available from the CITES
website or us (see Sec. 23.7). General
descriptions such as ``one case'' or
``one batch'' are not acceptable.
(ii) Weight should be in kilograms. If
weight is used, net weight (weight of the
specimen alone) must be stated, not gross
weight that includes the weight of the
container or packaging.
(iii) Volume should be in cubic meters for
logs and sawn wood and either square
meters or cubic meters for veneer and
plywood.
(iv) For re-export, if the type of good
has not changed since being imported, the
same unit of measurement as on the export
permit must be used, except to change to
units that are to be used in the CITES
annual report.
------------------------------------------------------------------------
(13) Scientific name The scientific name of the species,
including the subspecies when needed to
determine the level of protection of the
specimen under CITES, using standard
nomenclature as it appears in the CITES
Appendices or the references adopted by
the CoP. A list of current references is
available from the CITES website or us
(see Sec. 23.7). A CITES document may
contain higher-taxon names in lieu of the
species name only under one of the
following circumstances:
(i) The CoP has agreed that the use of a
higher-taxon name is acceptable for use
on CITES documents.
(A) If the genus cannot be readily
determined for coral rock, the scientific
name to be used is the order
Scleractinia.
(B) Live and dead coral must be identified
to the level of species except where the
CoP has agreed that identification to
genus is acceptable. A current list of
coral taxa identifiable to genus is
available from the CITES website or us
(see Sec. 23.7).
(C) Re-export of worked skins or pieces of
Tupinambis species that were imported
before August 1, 2000, may indicate
Tupinambis spp.
(ii) The issuing Party can show the use of
a higher-taxon name is well justified and
has communicated the justification to the
Secretariat.
(iii) The item is a pre-Convention
manufactured product containing a
specimen that cannot be identified to the
species level.
------------------------------------------------------------------------
(14) Seal or stamp The embossed seal or ink stamp of the
issuing Management Authority.
------------------------------------------------------------------------
(15) Security stamp If a Party uses a security stamp, the
stamp must be canceled by an authorized
signature and a stamp or seal, preferably
embossed. The number of the stamp must
also be recorded on the CITES document.
------------------------------------------------------------------------
[[Page 48462]]
(16) Signature An original handwritten signature of a
person authorized to sign CITES documents
for the issuing Management Authority. The
signature must be on file with the
Secretariat.
------------------------------------------------------------------------
(17) Signature name The name of the person who signed the
CITES document.
------------------------------------------------------------------------
(18) Source The source of the specimen. For re-export,
unless there is information to indicate
otherwise, the source code on the CITES
document used for import of the specimen
must be used. See Sec. 23.24 for a list
of codes.
------------------------------------------------------------------------
(19) Treaty name Either the full name or acronym of the
Treaty, or the CITES logo.
------------------------------------------------------------------------
(20) Type of CITES document The type of CITES document (import,
export, re-export, or other):
(i) If marked ``other,'' the CITES
document must indicate the type of
document, such as certificate for
artificially propagated plants,
certificate for wildlife bred in
captivity, certificate of origin,
certificate of ownership, introduction-
from-the-sea certificate, pre-Convention
certificate, sample collection covered by
an ATA carnet, scientific exchange
certificate, or traveling-exhibition
certificate.
(ii) If multiple types are authorized on
one CITES document, the type that applies
to each specimen must be clearly
indicated.
------------------------------------------------------------------------
(21) Validation or The actual quantity of specimens exported
certification or re-exported:
(i) Using the same units of measurement as
those on the CITES document.
(ii) Validated or certified by the stamp
or seal and signature of the inspecting
authority at the time of export or re-
export.
------------------------------------------------------------------------
(d) Purpose of transaction. If the purpose is not identified by a
written description, the CITES document must contain one of the
following codes:
------------------------------------------------------------------------
Code Purpose of transaction
------------------------------------------------------------------------
B...................................... Breeding in captivity or
artificial propagation
E...................................... Education
G...................................... Botanical garden
H...................................... Hunting trophy
L...................................... Law enforcement/judicial/
forensic
M...................................... Medical research (including
biomedical research)
N...................................... Reintroduction or introduction
into the wild
P...................................... Personal
Q...................................... Circus and traveling exhibition
S...................................... Scientific
T...................................... Commercial
Z...................................... Zoo
------------------------------------------------------------------------
(e) Additional required information. The following describes the
additional information that is required for specific types of documents
(listed alphabetically):
------------------------------------------------------------------------
Type of document Additional required information
------------------------------------------------------------------------
(1) Annex (such as The page number, document number, and date of issue
an attached on each page of an annex that is attached as an
inventory, integral part of a CITES document. An authorized
conditions, or signature and ink stamp or seal, preferably
continuation embossed, of the Management Authority issuing the
pages of a CITES CITES document must also be included on each page
document) of the annex. The CITES document must indicate an
attached annex and the total number of pages.
------------------------------------------------------------------------
(2) Certificate of A statement that the specimen originated in the
origin (see Sec. country that issued the certificate.
23.38)
------------------------------------------------------------------------
(3) Copy when used (i) Information required in paragraph (e)(7) of this
in place of the section when the document authorizes export or re-
original CITES export.
document (ii) A statement by the Management Authority on the
face of the document authorizing the use of a copy
when the document authorizes import.
------------------------------------------------------------------------
(4) Export permit The registration number of the operation or nursery
for a registered assigned by the Secretariat, and if the exporter is
commercial not the registered operation or nursery, the name
breeding of the registered operation or nursery.
operation or
nursery for
Appendix-I
specimens (see
Sec. 23.46)
------------------------------------------------------------------------
(5) Export permit Number of specimens, such as 500/1,000, that were:
with a quota (i) Exported thus far in the current calendar year,
including those covered by the current permit (such
as 500), and
(ii) Included in the current annual quota (such as
1,000).
------------------------------------------------------------------------
(6) Import permit A certification that the specimen will not be used
(Appendix-I for primarily commercial purposes and, for a live
specimen) (see specimen, that the recipient has suitable
Sec. 23.35) facilities and expertise to house and care for it.
------------------------------------------------------------------------
[[Page 48463]]
(7) Replacement When a CITES document replaces an already issued
CITES document CITES document that was lost, damaged, stolen, or
(see Sec. accidentally destroyed:
23.52) (i) If a newly issued CITES document, indication it
is a ``replacement,'' the number and date of
issuance of the CITES document that was replaced,
and reason for replacement.
(ii) If a copy of the original CITES document,
indication it is a ``replacement'' and a ``true
copy of the original,'' a new original signature of
a person authorized to sign CITES documents for the
issuing Management Authority, the date signed, and
reason for replacement.
------------------------------------------------------------------------
(8) Partially (i) A list of the blocks that must be completed by
completed the permit holder.
documents (see (ii) If the list includes scientific names, an
Sec. 23.51) inventory of approved species must be included on
the face of the CITES document or in an attached
annex.
(iii) A signature of the permit holder, which acts
as a certification that the information entered is
true and accurate.
------------------------------------------------------------------------
(9) Pre-Convention (i) An indication on the face of the CITES document
document (see that the specimen is pre-Convention.
Sec. 23.45) (ii) A date that shows the specimen was acquired
before the date the Convention first applied to it.
------------------------------------------------------------------------
(10) Re-export (i) The country of origin, the export permit number,
certificate (see and the date of issue.
Sec. 23.37) (ii) If previously re-exported, the country of last
re-export, the re-export certificate number, and
the date of issue.
(iii) If all or part of this information is not
known, a justification must be given.
------------------------------------------------------------------------
(11) Retrospective A clear statement that the CITES document is issued
CITES document retrospectively and the reason for issuance.
(see Sec.
23.53)
------------------------------------------------------------------------
(12) Sample (i) A statement that the document covers a sample
collection collection and is invalid unless accompanied by a
covered by an ATA valid ATA carnet.
carnet (see Sec. (ii) The number of the accompanying ATA carnet
23.50) recorded by the Management Authority, customs, or
other responsible CITES inspecting official.
------------------------------------------------------------------------
(f) Phytosanitary certificate. A Party may use a phytosanitary
certificate as a CITES document under the following conditions:
(1) The Party has provided copies of the certificate, stamps, and
seals to the Secretariat.
(2) The certificate is used only when all the following conditions
are met:
(i) The plants are being exported, not re-exported.
(ii) The plants are Appendix-II species, or are hybrids of one or
more Appendix-I species or taxa that are not annotated to include
hybrids.
(iii) The plants were artificially propagated in the exporting
country.
(3) The certificate contains the following information:
(i) The scientific name of the species, including the subspecies
when needed to determine the level of protection of the specimen under
CITES, using standard nomenclature as it appears in the CITES
Appendices or the references adopted by the CoP.
(ii) The type (such as live plant or bulb) and quantity of the
specimens authorized in the shipment.
(iii) A stamp, seal, or other specific indication stating that the
specimen is artificially propagated (see Sec. 23.64).
Sec. 23.24 What code is used to show the source of the specimen?
The Management Authority must indicate on the CITES document the
source of the specimen using one of the following codes, except the
code ``O'' for pre-Convention, which should be used in conjunction with
another code:
------------------------------------------------------------------------
Source of specimen Code
------------------------------------------------------------------------
(a) Artificially propagated plant (see Sec. 23.40): A
(1) An Appendix-II or -III artificially propagated
specimen.
(2) An Appendix-I plant specimen artificially propagated
for noncommercial purposes or certain Appendix-I hybrids
(see Sec. 23.42) propagated for commercial purposes.
------------------------------------------------------------------------
(b) Bred-in-captivity wildlife (see Sec. 23.41): C
(1) An Appendix-II or -III specimen bred in captivity.
(See paragraph (d)(1) of this section for wildlife that
does not qualify as bred in captivity.)
(2) An Appendix-I specimen bred for noncommercial
purposes. (See paragraph (c)(1) of this section for an
Appendix-I specimen bred for commercial purposes.)
------------------------------------------------------------------------
(c) Bred in captivity or artificially propagated for D
commercial purposes (see Sec. Sec. 23.46 and 23.47):
(1) An Appendix-I wildlife specimen bred in captivity for
commercial purposes at an operation registered with the
Secretariat.
(2) An Appendix-I plant specimen artificially propagated
for commercial purposes at a nursery that is registered
with the Secretariat or a commercial propagating
operation that meets the requirements of Sec. 23.47.
------------------------------------------------------------------------
[[Page 48464]]
(d) Captive-bred wildlife (Sec. 23.36): F
(1) An Appendix-II or -III wildlife species that is
captive-bred.
(2) An Appendix-I wildlife species that is one of the
following:
(i) Captive-bred.
(ii) Bred for commercial purposes, but the commercial
breeding operation is not registered with the
Secretariat.
(iii) Bred for noncommercial purposes, but the facility
does not meet the definition in Sec. 23.5 because it is
not involved in a cooperative conservation program.
------------------------------------------------------------------------
(e) Confiscated or seized specimen (see Sec. 23.78). I
------------------------------------------------------------------------
(f) Pre-Convention specimen (see Sec. 23.45) (code to be O
used in conjunction with another code).
------------------------------------------------------------------------
(g) Ranched wildlife (wildlife that originated from a R
ranching operation).
------------------------------------------------------------------------
(h) Source unknown (must be justified on the face of the U
CITES document).
------------------------------------------------------------------------
(i) Specimen taken from the wild: W
(1) For wildlife, this includes a specimen born in
captivity from an egg collected from the wild or from
wildlife that mated or exchanged genetic material in the
wild.
(2) For a plant, it includes a specimen propagated from a
propagule collected from a wild plant, except as provided
in Sec. 23.64.
------------------------------------------------------------------------
Sec. 23.25 What additional information is required on a non-Party
CITES document?
(a) Purpose. Under Article X of the Treaty, a Party may accept a
CITES document issued by a competent authority of a non-Party only if
the document substantially conforms to the requirements of the Treaty.
(b) Additional certifications. In addition to the information in
Sec. 23.23(c) through (e), a CITES document issued by a non-Party must
contain the following certifications on the face of the document:
------------------------------------------------------------------------
Activity by a non-
Party Certification
------------------------------------------------------------------------
(1) Export (i) For Appendix-I and -II specimens, the Scientific
Authority has advised that the export will not be
detrimental to the survival of the species.
(ii) The Management Authority is satisfied that the
specimen was legally acquired.
------------------------------------------------------------------------
(2) Import For Appendix-I specimens, the import will be for
purposes that are not detrimental to the survival
of the species.
------------------------------------------------------------------------
Sec. 23.26 When is a U.S. or foreign CITES document valid?
(a) Purpose. Article VIII of the Treaty provides that Parties take
appropriate measures to enforce the Convention to prevent illegal
trafficking in wildlife and plants.
(b) Original CITES documents. A separate original or a true copy of
a CITES document must be issued before the import, introduction from
the sea, export, or re-export occurs, and the document must accompany
each shipment. No copy may be used in place of an original except as
provided in Sec. 23.23(e)(3) or when a shipment is in transit (see
Sec. 23.22). Fax or electronic copies are not acceptable.
(c) Acceptance of CITES documents. We will accept a CITES document
as valid for import, introduction from the sea, export, or re-export
only if the document meets the requirements of this section, Sec. Sec.
23.23 through 23.25, and the following conditions:
------------------------------------------------------------------------
Key phrase Conditions for an acceptable CITES document
------------------------------------------------------------------------
(1) Altered or The CITES document has not been altered (including
modified CITES by rubbing or scratching out), added to, or
document modified in any way unless the change is validated
on the document by the stamp and authorized
signature of the issuing Management Authority, or
if the document was issued as a partially completed
document, the Management Authority lists on the
face of the document which blocks must be completed
by the permit holder.
------------------------------------------------------------------------
(2) Annual reports The Party issuing the CITES document has submitted
annual reports and is not subject to any action
under Article VIII paragraph 7(a) that would not
allow trade in CITES species.
------------------------------------------------------------------------
(3) CITES document U.S. and foreign CITES documents must meet the
general provisions and criteria in subparts C and
E.
------------------------------------------------------------------------
(4) Conditions All conditions on the CITES document are met.
------------------------------------------------------------------------
(5) Convention The Party issuing the CITES document is not subject
implementation to any action under Article VIII or Article XIII
paragraph 3 that would not allow trade in the
species.
------------------------------------------------------------------------
(6) Extension of The validity of a CITES document may not be extended
validity except as provided in Sec. 23.73 for certain
timber species.
------------------------------------------------------------------------
[[Page 48465]]
(7) Fraudulent The CITES document is authentic and does not contain
CITES document or erroneous or misleading information.
CITES document
containing false
information
------------------------------------------------------------------------
(8) Humane Live wildlife or plants were transported in
transport compliance with CITES' Guidelines for transport and
preparation for shipment of live wild animals and
plantsor, in the case of air transport of wildlife,
the International Air Transport Association Live
Animals Regulations. (See Sec. 23.23(c)(7).)
------------------------------------------------------------------------
(9) Legal The Party or non-Party issuing the CITES document
acquisition has made the required legal acquisition finding.
------------------------------------------------------------------------
(10) Management The CITES document was issued by a Party or non-
Authority and Party that has designated a Management Authority
Scientific and Scientific Authority and has provided
Authority information on these authorities to the
Secretariat.
------------------------------------------------------------------------
(11) Name of A CITES document is specific to the name on the face
importer and of the document and may not be transferred or
exporter assigned to another person.
------------------------------------------------------------------------
(12) Non-detriment The Party or non-Party issuing the CITES document
has made the required non-detriment finding.
------------------------------------------------------------------------
(13) Phytosanitary A phytosanitary certificate may be used to export
certificate artificially propagated plants only if the issuing
Party has provided copies of the certificates,
stamps, and seals to the Secretariat.
------------------------------------------------------------------------
(14) Quota For species with a quota on file with the
Secretariat, the quantity exported from a country
does not exceed the quota.
------------------------------------------------------------------------
(15) Registered (i) The operation is included in the Secretariat's
commercial register.
breeding (ii) Each specimen is specifically marked, and the
operation for mark is described on the CITES document.
Appendix-I
wildlife
------------------------------------------------------------------------
(16) Registered The operation is included in the Secretariat's
commercial register.
nursery for
Appendix-I plants
------------------------------------------------------------------------
(17) Retrospective A CITES document was not issued retrospectively
CITES documents except as provided in Sec. 23.53.
------------------------------------------------------------------------
(18) Shipment The contents of the shipment match the description
contents of specimens provided on the CITES document,
including the units and species. A shipment cannot
contain more or different specimens or species than
certified or validated on the CITES document at the
time of export or re-export; the quantity of
specimens validated or certified may be less, but
not more, than the quantity stated at the time of
issuance.
------------------------------------------------------------------------
(19) Wild- A wild-collected specimen (indicated on the CITES
collected document with a source code of ``W'') is not coming
specimen from a country that is outside the range of the
species, unless we have information indicating that
the species has been established in the wild in
that country through accidental introduction or
other means.
------------------------------------------------------------------------
(d) Verification of a CITES document. We may request verification
of a CITES document from the Secretariat or a foreign Management
Authority before deciding whether to accept it under some
circumstances, including, but not limited to, the following:
(1) We receive reliable information that indicates the need for
CITES document verification.
(2) We have reasonable grounds to believe that a CITES document is
not valid or authentic because the species is being traded in a manner
detrimental to the survival of the species or in violation of foreign
wildlife or plant laws, or any applicable Management or Scientific
Authority finding has not been made.
(3) The re-export certificate refers to an export permit that does
not exist or is not valid.
(4) We have reasonable grounds to believe that the document is
fraudulent, contains false information, or has unauthorized changes.
(5) We have reasonable grounds to believe that the specimen
identified as bred in captivity or artificially propagated is a wild
specimen, was produced from illegally acquired parental stock, or
otherwise does not qualify for these exemptions.
(6) The import of a specimen designated as bred in captivity or
artificially propagated is from a non-Party. For an Appendix-I
specimen, we must consult with the Secretariat.
(7) For a retrospectively issued CITES document, both the importing
and exporting or re-exporting countries' Management Authorities have
not agreed to the issuance of the document.
(8) For a replacement CITES document, we need clarification of the
reason the document was issued.
Sec. 23.27 What CITES documents do I present at the port?
(a) Purpose. Article VIII of the Treaty provides that Parties
establish an inspection process that takes place at a port of exit and
entry. Inspecting officials must verify that valid CITES documents
accompany shipments and take enforcement action when shipments do not
comply with the Convention.
(b) U.S. port requirements. In the United States, you must follow
the clearance requirements for wildlife in part 14 of this subchapter
and for plants in part 24 of this subchapter and 7 CFR parts 319, 352,
and 355, and the specific requirement in paragraphs (c) and (d) of this
section.
(c) General validation or certification process. Officials in each
country inspect the shipment and validate or certify the CITES
document. The table in this paragraph (c) provides information on:
(1) The types of original CITES documents you must present to be
validated or certified by the inspecting official to export or re-
export from a country.
(2) When you need to surrender a copy of the original CITES
document to
[[Page 48466]]
the inspecting official at the time of export or re-export.
(3) When you need to surrender the original CITES document to the
inspecting official at the time of import or introduction from the sea.
----------------------------------------------------------------------------------------------------------------
Present original for Surrender original
export or re-export Surrender copy upon upon import or
Type of CITES document validation or export or re-export introductionfrom the
certification sea
----------------------------------------------------------------------------------------------------------------
Bred-in-captivity certificate Required Required Required
----------------------------------------------------------------------------------------------------------------
Certificate for artificially propagated Required Required Required
plants
----------------------------------------------------------------------------------------------------------------
Certificate of origin Required Required Required
----------------------------------------------------------------------------------------------------------------
Certificate of ownership Required Required Not required; submit
copy
----------------------------------------------------------------------------------------------------------------
Export permit Required Required Required
----------------------------------------------------------------------------------------------------------------
Import permit Not required Required Required
----------------------------------------------------------------------------------------------------------------
Introduction-from-the-sea certificate Not applicable Not applicable Required
----------------------------------------------------------------------------------------------------------------
Multiple-use document Required\1\ Required Not required; submit
copy
----------------------------------------------------------------------------------------------------------------
Phytosanitary certificate Required Required Not required; submit
copy
----------------------------------------------------------------------------------------------------------------
Pre-Convention document Required Required Required
----------------------------------------------------------------------------------------------------------------
Re-export certificate Required Required Required
----------------------------------------------------------------------------------------------------------------
Registered Appendix-I commercial Required Required Required
breeding operation, export permit
----------------------------------------------------------------------------------------------------------------
Registered Appendix-I nursery, export Required Required Required
permit
----------------------------------------------------------------------------------------------------------------
Replacement document where a shipment Not required Not required Required
has been made and is in a foreign
country
----------------------------------------------------------------------------------------------------------------
Replacement document where a shipment Required Required Required
has not left the United States
----------------------------------------------------------------------------------------------------------------
Retrospective document Not required Not required Required
----------------------------------------------------------------------------------------------------------------
Sample collection covered by an ATA Required Required Not required; submit
carnet, CITES document copy
----------------------------------------------------------------------------------------------------------------
Traveling-exhibition certificate Required Required Not required; submit
copy
----------------------------------------------------------------------------------------------------------------
\1\ Original must be available for inspection, but permit conditions will indicate whether an original or copy
is to be validated.
(d) Customs declaration labels. The customs declaration label used
to identify specimens being moved between registered scientific
institutions (Sec. 23.48) must be affixed to the shipping container.
The label does not require export or re-export validation or
certification at the port.
Subpart C--Application Procedures, Criteria, and Conditions
Sec. 23.32 How do I apply for a U.S. CITES document?
(a) To apply for a U.S. CITES document, you must complete a
standard application form and submit it to the appropriate office shown
on the top of the form.
(b) To determine the type of CITES document needed for your
shipment, go to Sec. Sec. 23.18 through 23.20 for further guidance.
(c) If a species is also regulated under another part of this
subchapter (such as endangered or threatened species, see Sec. 23.3),
the requirements of all parts must be met. You may submit a single
application that contains all the information needed to meet the
requirements of CITES and other applicable parts.
(d) You must also follow the general permit procedures in part 13
of this subchapter.
(e) You should review the criteria in all applicable regulations in
this subchapter that apply to the type of permit you are seeking before
completing the application form.
(f) We will review your application to assess whether it contains
the information needed to make the required findings.
(1) Based on available information, we will decide if any of the
exemptions apply and what type of CITES document you need.
(2) If we need additional information, we will contact you. If you
do not provide the information within 45 calendar days, we will abandon
your application. If your application is abandoned and you wish to
apply for a permit at a later time, you must submit a new application.
Sec. 23.33 How is the decision made to issue or deny a request for a
U.S. CITES document?
(a) Upon receiving a complete application, we will decide whether
to issue a CITES document by considering:
(1) The general criteria in Sec. 13.21(b) of this subchapter and,
if the species is protected under a separate law or treaty, criteria in
any other applicable parts.
(2) The CITES issuance criteria provided in this subpart (see
subpart D of this part for factors we consider in making certain
findings).
(b) As needed, the U.S. Management Authority, including FWS Law
Enforcement, will forward a copy of the application to the U.S.
Scientific
[[Page 48467]]
Authority; State, tribal, or other Federal government agencies; or
other applicable experts. We may also query the Secretariat and foreign
Management and Scientific Authorities for information to use in making
the required findings.
(c) You must provide sufficient information to satisfy us that all
criteria specific to the proposed activity are met before we can issue
a CITES document.
(d) We will base our decision on whether to issue or deny the
application on the best available information.
Sec. 23.34 What kinds of records may I use to show the origin of a
specimen when I apply for a U.S. CITES document?
(a) When you apply for a U.S. CITES document, you will be asked to
provide information on the origin of the specimen that will be covered
by the CITES document.
(1) You need to provide sufficient information for us to determine
if the issuance criteria in this part are met (see the sections in this
subpart for each type of CITES document).
(2) We require less detailed information when the import,
introduction from the sea, export, or re-export poses a low risk to a
species in the wild and more detailed information when the proposed
activity poses greater risk to a species in the wild (see Subpart D of
this part for factors we consider in making certain findings).
(b) Information you may want to provide in a permit application
includes, but is not limited to, the following:
----------------------------------------------------------------------------------------------------------------
Source of specimen Types of records
----------------------------------------------------------------------------------------------------------------
(1) Captive-bred or cultivated\1\ (i) Records that identify the breeder or propagator of
the specimens that have been identified by birth,
hatch, or propagation date and for wildlife by sex,
size, band number, or other mark, or for plants by
size or other identifying feature:
(A) Signed and dated statement by the breeder or
propagator that the specimen was bred or propagated
under controlled conditions.
(B) Name and address of the breeder or propagator as
shown by documents such as an International Species
Information System (ISIS) record, veterinary
certificate, or plant nursery license.
(ii) Records that document the breeding or propagating
of specimens at the facility:
(A) Number of wildlife (by sex and age- or size-class)
or plants at the facility.
(B) How long the facility has been breeding or
propagating the species.
(C) Annual production and mortalities.
(D) Number of specimens sold or transferred annually.
(E) Number of specimens added from other sources
annually.
(F) Transaction records with the date, species,
quantity of specimens, and name and address of seller.
(G) Marking system, if applicable.
(H) Photographs or video of facility, including for
wildlife any activities during nesting and production
and rearing of young, and for plants, different stages
of growth.
----------------------------------------------------------------------------------------------------------------
(2) Confiscated or seized Copy of remission decision, legal settlement, or
disposal action after forfeiture or abandonment, which
demonstrates the applicant's legal possession.
----------------------------------------------------------------------------------------------------------------
(3) Exempt plant material Records that document how you obtained the exempt plant
material, including the name and address of the person
from whom you received the plant material.
----------------------------------------------------------------------------------------------------------------
(4) Imported previously (i) A copy of the cancelled CITES document that
accompanied the shipment into the United States.
(ii) For wildlife, copies of cleared Declarations for
Importation or Exportation of Fish or Wildlife (Form 3-
177) associated with each specimen.
----------------------------------------------------------------------------------------------------------------
(5) Pre-Convention Records that show the specimen was acquired before the
date the provisions of the Convention first applied to
it, such as:
(i) Receipt or invoice.
(ii) Catalog, inventory list, photograph, or art book.
(iii) Statement from a qualified appraiser attesting to
the age of a manufactured product.
(iv) CBP (formerly U.S. Customs Service) import
documents.
(v) Phytosanitary certificate.
(vi) Veterinary document or breeding or propagation
logs.
----------------------------------------------------------------------------------------------------------------
(6) Sequential ownership or purchase (i) Records that specifically identify the specimen,
give the name and address of the owner, and show the
specimen's origin (pre-Convention, previously
imported, wild-collected, or born or propagated in a
controlled environment in the United States).
(ii) Records that document the history of all transfers
in ownership (generally not required for pre-
Convention specimens).
----------------------------------------------------------------------------------------------------------------
(7) Unknown origin, for noncommercial purposes A complete description of the circumstances under which
the specimen was acquired (where, when, and from whom
the specimen was acquired), including efforts made to
obtain information on the origin of the specimen.
----------------------------------------------------------------------------------------------------------------
[[Page 48468]]
(8) Wild-collected Records, such as permits, licenses, and tags, that
demonstrate the specimen or the parental stock was
legally removed from the wild under relevant foreign,
Federal, tribal, State, or local wildlife or plant
conservation laws or regulations:
(i) If taken on private or tribal land, permission of
the landowner if required under applicable law.
(ii) If taken in a national, State, or local park,
refuge, or other protected area, permission from the
applicable agency, if required.
----------------------------------------------------------------------------------------------------------------
\1\ If the wildlife was born in captivity from an egg collected from the wild or from parents that mated or
exchanged genetic material in the wild, or the plant was propagated from a non-exempt propagule collected from
a wild plant, see paragraph (b)(8) of this section.
(c) If you intend to engage in international trade with a CITES
specimen in the future, you should keep sufficient records to establish
your eligibility for a CITES document for as long as you possess the
specimen, and if you sell, donate, or transfer ownership of the
specimen, you should provide such records on the origin of the specimen
to the new owner.
Sec. 23.35 What are the requirements for an import permit?
(a) Purpose. Article III(3) of the Treaty sets out the conditions
under which a Management Authority can issue an import permit.
(b) U.S. application forms. Complete the appropriate form for the
proposed activity and submit it to the U.S. Management Authority:
------------------------------------------------------------------------
Type of application for an import permit for an Appendix-I
specimen Form no.
------------------------------------------------------------------------
(1) CITES: ............
Southern African Leopard, African Elephant, and Namibian 3-200-19
Southern White Rhinoceros Sport-hunted Trophies 3-200-35
Appendix-I Plants 3-200-37
Appendix-I Wildlife 3-200-29
Appendix-I Biological Samples
------------------------------------------------------------------------
(2) Endangered Species Act and CITES: ............
ESA Plants 3-200-36
ESA Sport-hunted Trophies 3-200-20
ESA Wildlife 3-200-37
------------------------------------------------------------------------
(3) Marine Mammal Protection Act and CITES: ............
Marine Mammals 3-200-43
------------------------------------------------------------------------
(4) Wild Bird Conservation Act and CITES: ............
Personal Pet Bird 3-200-46
Under an Approved Cooperative Breeding Program 3-200-48
Scientific Research or Zoological Breeding/Display 3-200-47
------------------------------------------------------------------------
(c) Criteria. The criteria in this paragraph (c) apply to the
issuance and acceptance of U.S. and foreign import permits. When
applying for a U.S. import permit, you must provide sufficient
information for us to find that your proposed activity meets all of the
following criteria:
------------------------------------------------------------------------
Criteria for an import permit for an Appendix-I specimen Section
------------------------------------------------------------------------
(1) The proposed import would be for purposes that are 23.61
not detrimental to the survival of the species.
------------------------------------------------------------------------
(2) The specimen will not be used for primarily 23.62
commercial purposes.
------------------------------------------------------------------------
(3) The recipients are suitably equipped to house and 23.65
care for any live wildlife or plant to be imported.
------------------------------------------------------------------------
(4) The scientific name of the species is the standard 23.23
nomenclature in the CITES Appendices or the references
adopted by the CoP.
------------------------------------------------------------------------
(d) U.S. standard conditions. You must meet all of the provisions
on use after import in Sec. 23.55 and the standard conditions in Sec.
23.56.
(e) Prior issuance of an import permit. For Appendix-I specimens,
the Management Authority of the exporting country may:
(1) Issue an export permit for live or dead specimens or a re-
export certificate for live specimens only after the Management
Authority of the importing country has either issued an import permit
or confirmed in writing that an import permit will be issued.
(2) Accept oral confirmation from the Management Authority of the
importing country that an import permit will be issued in an emergency
situation where the life or health of the specimen is threatened and no
means of written communication is possible.
(3) Issue a re-export certificate for a dead specimen without
confirmation that the import permit has been issued.
Sec. 23.36 What are the requirements for an export permit?
(a) Purposes. Articles III, IV, and V of the Treaty set out the
conditions under which a Management Authority may issue an export
permit for an Appendix-I, -II, or -III specimen. Article XIV sets out
the conditions under which a
[[Page 48469]]
Management Authority may issue a document for export of certain
Appendix-II marine specimens protected under a pre-existing treaty,
convention, or international agreement.
(b) U.S. application forms. Complete the appropriate form for the
proposed activity and submit it to the U.S. Management Authority. Form
3-200-26 may also be submitted to FWS Law Enforcement at certain ports
or regional offices:
------------------------------------------------------------------------
Type of application for an export permit Form no.
------------------------------------------------------------------------
(1) CITES: ............
American Ginseng 3-200-34
Appendix-I Plants Artificially Propagated for Commercial 3-200-33
Purposes 3-200-29
Biological Specimens 3-200-25
Captive-born Raptors 3-200-24
Captive-born Wildlife (except raptors) 3-200-76
Caviar/Meat of Paddlefish or Sturgeon, Removed from the 3-200-26
Wild ............
Export of Skins/Products of Bobcat, Canada Lynx, River 3-200-46
Otter, Brown Bear, Gray Wolf, and American Alligator 3-200-32
Taken under an Approved State or Tribal Program 3-200-75
Personal Pets, One-time Export 3-200-74
Plants 3-200-28
Registration of a Native Species Production Facility 3-200-27
Single-use Permits under a Master File or an Annual
Program File
Trophies by Taxidermists
Wildlife, Removed from the Wild
------------------------------------------------------------------------
(2) Endangered Species Act and CITES: ............
ESA Plants 3-200-36
ESA Wildlife 3-200-37
------------------------------------------------------------------------
(3) Marine Mammal Protection Act and CITES: ............
Biological Samples 3-200-29
Live Captive-held Marine Mammals 3-200-53
Take from the Wild for Export 3-200-43
------------------------------------------------------------------------
(c) Criteria. The criteria in this paragraph (c) apply to the
issuance and acceptance of U.S. and foreign export permits except as
provided for certain marine specimens in paragraph (d) of this section.
When applying for a U.S. permit or certificate, you must provide
sufficient information for us to find that your proposed activity meets
all of the following criteria:
----------------------------------------------------------------------------------------------------------------
Appendix of the specimen
Criteria for an export permit ------------------------------------------------------- Section
I II III
----------------------------------------------------------------------------------------------------------------
(1) The wildlife or plant was legally Yes Yes Yes 23.60
acquired.
----------------------------------------------------------------------------------------------------------------
(2) The proposed export would not be Yes Yes n/a 23.61
detrimental to the survival of the species.
----------------------------------------------------------------------------------------------------------------
(3) An import permit has already been issued Yes n/a n/a 23.35
or the Management Authority of the importing
country has confirmed that it will be
issued.
----------------------------------------------------------------------------------------------------------------
(4) The scientific name of the species is the Yes Yes Yes 23.23
standard nomenclature in the CITES
Appendices or the references adopted by the
CoP.
----------------------------------------------------------------------------------------------------------------
(5) Live wildlife or plants will be prepared Yes Yes Yes 23.23
and shipped so as to minimize risk of
injury, damage to health, or cruel treatment
of the specimen.
----------------------------------------------------------------------------------------------------------------
(6) The specimen originated in a country that n/a n/a Yes 23.20
listed the species.
----------------------------------------------------------------------------------------------------------------
(7) For wildlife with the source code ``W'' Yes n/a n/a -
or ``F,'' the export is for noncommercial
purposes. (See Sec. 23.46 for the export
of specimens that originated at a commercial
breeding operation for Appendix-I wildlife
that is registered with the Secretariat.)
----------------------------------------------------------------------------------------------------------------
(d) Export of certain exempt marine specimens. Article XIV(4) and
(5) of the Treaty provide a limited exemption for Appendix-II marine
species that are protected under another treaty, convention, or
international agreement that was in force at the time CITES entered
into force. When all of the following conditions are met, export of
exempt Appendix-II marine wildlife or plants requires only that the
shipment is accompanied by a document issued by the Management
Authority of the exporting country indicating that the specimens were
taken in accordance
[[Page 48470]]
with the provisions of the other international treaty, convention, or
agreement:
(1) The exporting country is a CITES Party and is a party to an
international treaty, convention, or agreement that affords protection
to the species and was in force on July 1, 1975.
(2) The ship that harvested the specimen is registered in the
exporting country.
(3) The specimen was taken within waters under the jurisdiction of
the exporting country or in the marine environment not under the
jurisdiction of any country.
(4) The specimen was taken in accordance with the other
international treaty, convention, or agreement, including any quotas.
(5) The shipment is accompanied by any official document required
under the other international treaty, convention, or agreement or
otherwise required by law.
(e) Export of exempt specimens from the United States. To export a
specimen exempted under paragraph (d) of this section, you must obtain
a CITES document from the U.S. Management Authority that indicates the
specimen was taken in accordance with the provisions of another
international treaty, convention, or agreement that was in force on
July 1, 1975.
(f) U.S. application for export of exempt specimens. To apply for a
CITES exemption document under paragraph (e) of this section, complete
the appropriate form for your activity and submit it to the U.S.
Management Authority.
(g) Criteria for certain exempt marine specimens. The criteria in
this paragraph (g) apply to the issuance and acceptance of U.S. and
foreign export documents. To obtain a U.S. CITES document for export of
specimens exempted under paragraph (d) of this section you must provide
sufficient information for us to find that your proposed export meets
all of the following issuance criteria:
(1) The specimen was taken in accordance with the provisions of an
applicable international treaty, convention, or agreement that was in
force on July 1, 1975.
(2) The scientific name of the CITES species is in the standard
nomenclature in the CITES Appendices or references adopted by the CoP
(see Sec. 23.23).
(3) The ship that harvested the specimen is registered in the
exporting country.
(4) The specimen was taken within waters under the jurisdiction of
the exporting country or in the marine environment not under the
jurisdiction of any country.
Sec. 23.37 What are the requirements for a re-export certificate?
(a) Purposes. Articles III, IV, and V of the Treaty set out the
conditions under which a Management Authority may issue a re-export
certificate for an Appendix-I, -II, or -III specimen.
(b) U.S. application forms. Complete the appropriate form for the
proposed activity and submit it to the U.S. Management Authority. Form
3-200-73 may also be submitted to Law Enforcement at certain ports or
regional offices:
------------------------------------------------------------------------
Type of application for a re-export certificate Form no.
------------------------------------------------------------------------
(1) CITES: ............
Biological Specimens 3-200-29
Plants 3-200-32
Single-use Permits under a Master File or an Annual 3-200-74
Program File 3-200-28
Trophies by Taxidermists 3-200-73
Wildlife
------------------------------------------------------------------------
(2) Endangered Species Act and CITES: ............
ESA Plants 3-200-36
ESA Wildlife 3-200-37
------------------------------------------------------------------------
(3) Marine Mammal Protection Act and CITES: ............
Biological Samples 3-200-29
Live Captive-held Marine Mammals 3-200-53
------------------------------------------------------------------------
(c) Criteria. The criteria in this paragraph (c) apply to the
issuance and acceptance of U.S. and foreign re-export certificates.
When applying for a U.S. certificate, you must provide sufficient
information for us to find that your proposed activity meets all of the
following criteria:
----------------------------------------------------------------------------------------------------------------
Appendix of the specimen
Criteria for a re-export certificate ------------------------------------------------------- Section
I II III
----------------------------------------------------------------------------------------------------------------
(1) The wildlife or plant was legally Yes Yes Yes 23.60
acquired.
----------------------------------------------------------------------------------------------------------------
(2) The scientific name of the species is the Yes Yes Yes 23.23
standard nomenclature in the CITES
Appendices or the references adopted by the
CoP.
----------------------------------------------------------------------------------------------------------------
(3) For a live specimen, an import permit has Yes n/a n/a 23.35
already been issued or the Management
Authority of the importing country has
confirmed that it will be issued. This
criterion does not apply to a specimen with
the source code ``D.''
----------------------------------------------------------------------------------------------------------------
(4) Live wildlife or plants will be prepared Yes Yes Yes 23.23
and shipped so as to minimize risk of
injury, damage to health, or cruel treatment
of the specimen.
----------------------------------------------------------------------------------------------------------------
[[Page 48471]]
(5) For re-export of a confiscated specimen, Yes Yes n/a 23.61
the proposed re-export would not be
detrimental to the survival of the species.
----------------------------------------------------------------------------------------------------------------
(6) For wildlife with the source code ``W'' Yes n/a n/a -
or ``F,'' the re-export is for noncommercial
purposes.
----------------------------------------------------------------------------------------------------------------
Sec. 23.38 What are the requirements for a certificate of origin?
(a) Purpose. Article V(3) of the Treaty requires that a shipment of
Appendix-III specimens be accompanied by a certificate of origin when
the shipment is not from a country that listed the species in Appendix
III and is not a re-export.
(b) U.S. application forms. For a certificate of origin, complete
one of the following forms and submit it to the U.S. Management
Authority:
(1) Form 3-200-27 for wildlife removed from the wild.
(2) Form 3-200-24 for captive-born wildlife.
(3) Form 3-200-32 for plants.
(c) Criteria. The criteria in this paragraph (c) apply to the
issuance and acceptance of U.S. and foreign certificates of origin.
When applying for a U.S. certificate, you must provide sufficient
information for us to find that your proposed activity meets all of the
following criteria:
(1) The specimen originated in the country of export, which is not
a country that listed the species in Appendix III. In the case of a
listing that is annotated to cover only a certain population, no CITES
document is required if the listed population does not occur in the
country of export. For U.S. applicants, the country of origin must be
the United States.
(2) The scientific name of the species is the standard nomenclature
in the CITES Appendices or the references adopted by the CoP (see Sec.
23.23).
(3) Live wildlife or plants will be prepared and shipped so as to
minimize risk of injury, damage to health, or cruel treatment of the
specimen (see Sec. 23.23).
Sec. 23.39 What are the requirements for an introduction-from-the-sea
certificate?
(a) Purpose. Articles III(5), IV(6), and IV(7) of the Treaty set
out the conditions under which a Management Authority may issue an
introduction-from-the-sea certificate.
(b) U.S. application form. Complete Form 3-200-31 and submit it to
the U.S. Management Authority.
(c) Criteria. The criteria in this paragraph (c) apply to the
issuance and acceptance of U.S. certificates. You must provide
sufficient information for us to find that your proposed activity meets
all of the following criteria:
----------------------------------------------------------------------------------------------------------------
Appendix of the specimen
Criteria for an introduction-from-the-sea ---------------------------------------------- Section
certificate I II
----------------------------------------------------------------------------------------------------------------
(1) The specimen was taken in the marine Yes Yes -
environment not under the jurisdiction of any
country.
----------------------------------------------------------------------------------------------------------------
(2) The proposed introduction from the sea would Yes Yes 23.61
not be detrimental to the survival of the
species.
----------------------------------------------------------------------------------------------------------------
(3) The specimen will not be used for primarily Yes n/a 23.62
commercial purposes.
----------------------------------------------------------------------------------------------------------------
(4) The recipients are suitably equipped to house Yes n/a 23.65
and care for live wildlife or plants.
----------------------------------------------------------------------------------------------------------------
(5) The scientific name of the species is the Yes Yes 23.23
standard nomenclature in the CITES Appendices or
the references adopted by the CoP.
----------------------------------------------------------------------------------------------------------------
(6) Live wildlife or plants will be prepared and Yes Yes 23.23
shipped so as to minimize risk of injury, damage
to health, or cruel treatment of the specimen.
----------------------------------------------------------------------------------------------------------------
(d) Exemption. As allowed under Article XIV(4) and (5) of the
Treaty, you may directly introduce into the United States any Appendix-
II wildlife or plant taken in the marine environment that is not under
the jurisdiction of any country without a CITES document when all of
the following conditions are met:
(1) The United States is a party to an international treaty,
convention, or agreement that affords protection to the species and was
in force on July 1, 1975.
(2) The ship that harvested the specimen is registered in the
United States.
(3) The specimen was taken in accordance with the other
international treaty, convention, or agreement, including any quotas.
(4) The shipment is accompanied by any official document required
under the other international treaty, convention, or agreement or
otherwise required by U.S. law.
(e) Export of exempt specimens. To export a specimen exempted under
paragraph (d) of this section, you must obtain a CITES document from
the U.S. Management Authority that indicates the specimen was taken in
accordance with the provisions of the other international treaty,
convention, or agreement that was in force on July 1, 1975. See
requirements in Sec. 23.36 (e) through (g).
(f) Appendix III. Appendix-III species introduced from the sea do
not require introduction-from-the-sea certificates. However, the
subsequent international trade of an Appendix-III specimen introduced
from the sea would be considered an export requiring a CITES document
(see Sec. 23.20(f)).
[[Page 48472]]
Sec. 23.40 What are the requirements for a certificate for
artificially propagated plants?
(a) Purpose. Article VII(5) of the Treaty grants an exemption to
plants that are artificially propagated when a Management Authority
issues a certificate.
(b) U.S. and foreign general provisions. The following provisions
apply to the issuance and acceptance of a certificate for artificially
propagated Appendix-I, -II, or -III plants:
(1) The certificate for artificially propagated plants and any
subsequent re-export certificate must show the source code as ``A'' for
artificially propagated.
(2) For an Appendix-I specimen that satisfies the requirements of
this section, no CITES import permit is required.
(c) U.S. application form. Complete Form 3-200-33 and submit it to
the U.S. Management Authority.
(d) Criteria. The criteria in this paragraph (d) apply to the
issuance and acceptance of U.S. and foreign certificates. When applying
for a U.S. certificate, you must provide sufficient information for us
to find that your proposed activity meets all of the following
criteria:
----------------------------------------------------------------------------------------------------------------
Appendix of the specimen
Criteria for a certificate for ------------------------------------------------------------ Section
artificially propagated plants I II III
----------------------------------------------------------------------------------------------------------------
(1) The plant was artificially Yes Yes Yes 23.64
propagated.
----------------------------------------------------------------------------------------------------------------
(2) The plant specimen is one of the Yes n/a n/a ............
following:
(i) Was propagated for noncommercial
purposes.
(ii) Is part of a traveling
exhibition.
(iii) Is a hybrid of one or more
Appendix-I species or taxa that is
not annotated to include hybrids in
the listing and was propagated for
commercial or noncommercial purposes.
----------------------------------------------------------------------------------------------------------------
(3) The scientific name of the species Yes Yes Yes 23.23
is the standard nomenclature in the
CITES Appendices or the references
adopted by the CoP.
----------------------------------------------------------------------------------------------------------------
(4) The live plant will be prepared Yes Yes Yes 23.23
and shipped so as to minimize risk of
injury, damage to health, or cruel
treatment of the specimen.
----------------------------------------------------------------------------------------------------------------
(e) U.S. standard conditions. In addition to the conditions in
Sec. 23.56, you must meet all of the following conditions:
(1) You may not export or re-export a plant (including its parts,
products, or derivatives) under this certificate if the plant was
removed from the wild or grown directly from a wild seed, except for
plants grown from exempt plant materials that qualify as artificially
propagated.
(2) You may not export an Appendix-I species that was propagated
for commercial purposes under this certificate, except for hybrids of
one or more Appendix-I species or taxa that are not annotated to
include hybrids in the listing.
(3) You may export a native plant under this certificate only when
specifically approved for export and listed on the certificate,
inventory sheet, or an approved species list.
(4) You may export a specimen under a higher-taxon name only if you
identified the taxon in your application and we approved it on this
certificate.
Sec. 23.41 What are the requirements for a bred-in-captivity
certificate?
(a) Purpose. Article VII(5) of the Treaty grants an exemption to
wildlife that is bred in captivity when a Management Authority issues a
certificate.
(b) U.S. and foreign general provisions. The following provisions
apply to the issuance and acceptance of a certificate for Appendix-I, -
II, or -III wildlife that was bred in captivity:
(1) The certificate and any subsequent re-export certificate must
show the source code as ``C'' for bred in captivity.
(2) For an Appendix-I specimen that satisfies the requirements of
this section, no CITES import permit is required.
(c) U.S. application form. Complete Form 3-200-24 and submit it to
the U.S. Management Authority.
(d) Criteria. The criteria in this paragraph (d) apply to the
issuance and acceptance of U.S. and foreign certificates. When applying
for a U.S. certificate, you must provide sufficient information for us
to find that your proposed activity meets all of the following
criteria:
----------------------------------------------------------------------------------------------------------------
Appendix of the specimen
Criteria for a bred-in-captivity ------------------------------------------------ Section
certificate I II III
----------------------------------------------------------------------------------------------------------------
(1) The wildlife was bred in Yes Yes Yes 23.63
captivity.
----------------------------------------------------------------------------------------------------------------
(2) The wildlife specimen was bred Yes n/a n/a 23.5
for noncommercial purposes or is
part of a traveling exhibition.
----------------------------------------------------------------------------------------------------------------
(3) The scientific name of the Yes Yes Yes 23.23
species is the standard
nomenclature in the CITES
Appendices or the references
adopted by the CoP.
----------------------------------------------------------------------------------------------------------------
(4) Live wildlife will be prepared Yes Yes Yes 23.23
and shipped so as to minimize
risk of injury, damage to health,
or cruel treatment of the
specimen.
----------------------------------------------------------------------------------------------------------------
[[Page 48473]]
Sec. 23.42 What are the requirements for a plant hybrid?
General provisions. Except as provided in Sec. 23.92, the export,
re-export, or import of a plant hybrid of a CITES species must be
accompanied by a valid CITES document that shows the Appendix of the
specimen as follows:
------------------------------------------------------------------------
Question on a plant hybrid Answer and status of specimen
------------------------------------------------------------------------
(a) Is the specimen an artificially (1) YES. Continue to paragraph (b)
propagated hybrid of one or more of this section.
Appendix-I species or taxa? (2) NO. Continue to paragraph (c)
of this section.
------------------------------------------------------------------------
(b) Is one or more of the Appendix- (1) YES. The hybrid is listed in
I species or taxa in paragraph (a) Appendix I.
of this section annotated to (2) NO. The hybrid is listed in
include hybrids? Appendix I, but may be granted a
certificate for artificially
propagated plants even if
propagated for commercial
purposes.
------------------------------------------------------------------------
(c) Is the specimen a hybrid that (1) YES. Consider the specimen to
includes two or more CITES species be listed in the more restrictive
or taxa in its lineage? Appendix, with Appendix I being
the most restrictive and Appendix
III the least.
(2) NO. Continue to paragraph (d)
of this section.
------------------------------------------------------------------------
(d) Is the specimen a hybrid that (1) YES. Consider the specimen to
includes one CITES species or be listed in the Appendix in which
taxon in its lineage? the species or taxon is listed in
the CITES Appendices.
(2) NO. The hybrid is not regulated
by CITES.
------------------------------------------------------------------------
Sec. 23.43 What are the requirements for a wildlife hybrid?
(a) Definition. For the purposes of this section, recent lineage
means the last four generations of a specimen's ancestry (direct line
of descent).
(b) U.S. and foreign general provisions. Except as provided in
paragraph (f) of this section, the import, export, or re-export of a
hybrid CITES wildlife specimen must be accompanied by a valid CITES
document.
(c) CITES documents. All CITES documents must show the wildlife
hybrid listed in the following Appendix:
----------------------------------------------------------------------------------------------------------------
Then the specimen is listed
If at least one specimen in the recent lineage is listed in: in:
----------------------------------------------------------------------------------------------------------------
(1) Appendix I Appendix I
----------------------------------------------------------------------------------------------------------------
(2) Appendix II, and an Appendix-I species is not included in the recent lineage Appendix II
----------------------------------------------------------------------------------------------------------------
(3) Appendix III, and an Appendix-I or -II species is not included in the recent Appendix III
lineage
----------------------------------------------------------------------------------------------------------------
(d) U.S. application for wildlife hybrid. To apply for a CITES
document, complete the appropriate form for the proposed activity (see
Sec. Sec. 23.18 through 23.20) and submit it to the U.S. Management
Authority.
(e) Criteria. For export of a hybrid that contains a CITES species
in its recent lineage, you must meet the requirements of Sec. 23.36.
(f) Exempt wildlife hybrids. The following provisions apply to
import, export, or re-export of exempt wildlife hybrids:
(1) A hybrid between a CITES species and a non-CITES species may be
exempt from CITES document requirements if there are no purebred CITES
species in the previous four generations of the specimen's ancestry
(direct line of descent). Under this section, a hybrid between two
CITES species is not exempt.
(2) F