[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 pr