Revision of Regulations for the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 10, 13, 17, and 23

RIN 1018-AD87

Revision of Regulations for the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule; reproposal.

SUMMARY:

We, the Fish and Wildlife Service, propose to 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. The United States was one of the original signatories to CITES, which has been in effect since July 1, 1975. 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. Since the existing regulations were finalized, the CITES Conference of the Parties (CoP) has held a number of meetings where resolutions have been adopted. The Parties adopt resolutions as a means of standardizing interpretation and implementation of the provisions of the Treaty. On May 8, 2000, we proposed a revision of the regulations to incorporate applicable resolutions, as appropriate, adopted through the tenth meeting of the Conference of the Parties to CITES (CoP10). This new proposal includes consideration of the comments received in response to the 2000 proposal and incorporates appropriate resolutions adopted at CoP11 through CoP13. 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:

In preparing the final decision on this proposed rule, we will consider all comments received by June 19, 2006.

Comments on the information collection aspects of this proposed rule will be considered if received by June 19, 2006. The Office of Management and Budget (OMB) has up to 60 days to approve or disapprove information collection, but may respond after 30 days. Therefore, to ensure maximum consideration, your comments should be received by OMB by May 19, 2006.

ADDRESSES:

You may send comments, identified by RIN 1018-AD87, by one of the following methods:

• Federal e-Rulemaking Portal:

http://www.regulations.gov.

Follow the instructions for submitting comments.

• E-mail:

part23@fws.gov.

• Fax: (703) 358-2280.

• Mail or hand delivery: Dr. Peter Thomas, Chief, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 700, Arlington, Virginia 22203.

See Public Comments Solicited at the end of

SUPPLEMENTARY INFORMATION

for further information about submitting comments. All comments received will be available for public inspection by appointment from 7:45 a.m. to 4:15 p.m., Monday through Friday, at the above address.

Comments specific to the information collection aspects of this proposed rule should be submitted to the Desk Officer for the Department of the Interior at OMB-OIRA via facsimile or e-mail using the following fax number or e-mail address: (202) 395-6566 (fax);

OIRA_DOCKET@omb.eop.gov

(e-mail). Please provide a copy of your comments to the U.S. Fish and Wildlife Service's Information Collection Officer, 4401 N. Fairfax Drive, MS 222 ARLSQ, Arlington, Virginia 22203; (703) 358-2269 (fax); or

hope_grey@fws.gov

(e-mail).

FOR FURTHER INFORMATION CONTACT:

Dr. Peter Thomas, at the above address (telephone, (703) 358-2093; fax, (703) 358-2280).

SUPPLEMENTARY INFORMATION:

What Acronyms and Abbreviations Are Used in This Rule?

AECA African Elephant Conservation Act

APHIS U.S. Department of Agriculture, Animal and Plant Health Inspection Service

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 CITES Conference of the Parties or meeting of the Conference of the Parties

ESA Endangered Species Act

FOIA Freedom of Information Act

FWS U.S. Fish and Wildlife Service

IATA LAR International Air Transport Association Live Animals Regulations

ISO International Organization for Standardization

WBCA Wild Bird Conservation Act

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 169 countries have ratified, accepted, approved, or acceded to CITES; these countries are known as Parties.

Previous proposed rule and comments received:

We published a proposed rule on May 8, 2000 (65 FR 26664) (2000 proposal), to incorporate changes from CoP2 through CoP10. The 2000 proposal was never finalized, and we are here proposing a new rule, which includes consideration of the 206 comments we received on the 2000 proposal. A little over half of the comments were general comments. Most of these were submitted by orchid hobbyists, commercial orchid growers, or taxidermists. We also received 88 letters with specific comments from 42 individuals, 35 organizations, and 11 governmental agencies. We reviewed all of the comments on the 2000 proposal and addressed them where appropriate in this current proposed rule. We received conflicting recommendations, and not all comments were incorporated into this new proposal.

Current proposed rule:

We propose to revise the current regulations contained in 50 CFR part 23 to incorporate, as appropriate, applicable resolutions adopted at CoP2 through CoP13 which continue to remain in effect. In this proposed rule, we retained most of the general information in the current 50 CFR part 23. We are reproposing the regulations to include certain resolutions adopted at CoP11 through CoP13, and to incorporate changes that resulted from public comment on the 2000 proposal. We retained the organizational structure set out in the 2000 proposal in this new proposed rule.

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 79 resolutions in effect. This proposed 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 Web site (

http://www.cites.org

).

One commenter thought we said in the 2000 proposal that we were incorporating the provisions of treaties other than CITES, such as the Convention on Biological Diversity, and questioned the legal basis for such inclusion. To clarify, these regulations are based on CITES and do not implement other treaties, including the Convention on Biological Diversity. Two commenters asked us to develop a plan to regularly review and update the regulations after each CoP. We plan to evaluate newly adopted decisions and resolutions after each CoP and will update the regulations when appropriate and necessary.

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, and Lacey Act.

One commenter pointed out that the adoption of a resolution endorsing stricter national measures does not in itself confer authority on a Party to undertake regulatory actions that are not otherwise provided for by national law. We acknowledge that it is the adoption of the stricter national measures by legislative or executive action that provides the legal basis for a country to take an action.

The same commenter considered this provision one of the major problems with CITES: Because each Party adopts its own set of requirements regarding imports and exports, the result is conflicting CITES requirements among Parties. The commenter also thought the imposition of more restrictive import requirements may be considered an intrusion on an exporting country's sovereignty. 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 species, the Secretariat provides that information to other Parties through a notification. These notifications are available to the public on the CITES Web site.

Plain language:

We revised the text of the previous regulations using plain language to make the regulations clearer and easier to use. One commenter considered them to be written at too high a reading level, and thought we should have several members of the general public read the regulations for clarity. Several commenters, however, found the overall approach to be user friendly and easy to understand, and thought the use of charts and tables was helpful. We believe the regulations use an appropriate level of language to lay out the technical requirements of a multilateral treaty.

Section-by-Section Analysis

The following parts of the preamble explain the proposed rule and present a discussion of the substantive issues of each section and responses to public comments on the 2000 proposal.

What Are the Proposed Changes to 50 CFR Parts 10, 13, and 17?

Definitions (section 10.12):

We propose to revise the definition of the “United States” to reflect changes in areas under U.S. jurisdiction.

General permit procedures (section 13.1):

We propose to revise section 13.1 to reflect that, under very limited circumstances, permits for certain CITES shipments may be issued after the activity has occurred (see proposed section 23.53 on retrospective documents).

Application procedures (section 13.11):

We propose to amend the paragraphs on permit processing fees (section 13.11(d)(1) and (4)) to clarify that the fee must be paid in U.S. dollars and to include requests to participate in the Plant Rescue Center Program and requests for approval of a CITES export program for American ginseng, certain furbearers, or American alligator by a State or Tribe as described in the proposed revision to 50 CFR part 23. We also propose to add Introduction from the Sea and Registration of Appendix-I Commercial Breeding Operations which were inadvertently left out of the fee schedule for all FWS permits published on April 11, 2005 (70 FR 18311). The proposed processing fees are to help defray the cost of administering the permit program. We based the fees on a number of factors, including the complexity of processing the permit type, whether the permittee stands to benefit commercially from the permit, and whether the permitted activity serves the public interest.

As noted in our final rule on FWS permit fees, we will not charge a fee to any Federal, tribal, State, or local government agency. Therefore, we propose not to charge a fee to a State or Tribe seeking to gain approval of a CITES export program. We also propose not to 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 U.S. fulfill its CITES implementing responsibilities.

U.S. address for permit applicants (section 13.12):

We propose to revise this section to require 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 has requested a CITES document from us for a shipment the entity owned, but that is being shipped 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.

For commercial activities conducted by applicants that 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. One commenter questioned whether the agent must formally agree to accept service for the foreign entity. We note that an applicant may select any agent as long as the agent is authorized to receive service. Another commenter suggested that we define what constitutes “conducting commercial activities” to clarify whether the import of a personal sport-hunted trophy would be considered conducting a commercial activity. We do not believe it is necessary to define “conducting commercial activities” because we have defined “commercial.” We consider any transaction 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 conducting a commercial activity. However, a hunter who exports his or her personal sport-hunted trophy would not be involved in a commercial activity that would require an agent under this section.

Two commenters questioned what U.S. address should be used for an individual staying at a hotel or for tourists visiting the United States. For these individuals, we would accept a U.S. address where the individual is temporarily residing, including a hotel. Another commenter was concerned that foreign individuals may not have a social security number and another that some applicants do not have fax or e-mail information. We clarify that this information is only required if available.

Continuation of permitted activity during renewal (section 13.22(c)):

We propose to revise this paragraph that sets out the general permit procedures that allow continuation of the permitted activity after application for renewal. One commenter suggested all businesses should be required to renew permits before they expire. The regulations in 50 CFR part 13 follow the Administrative Procedure Act (5 U.S.C. 558(c)). When a permittee has made timely and sufficient application for renewal of a permit for an activity of a continuing nature, the permit does not expire until the agency has made a final determination on the application.

CITES documents do not cover an activity of a continuing nature and are considered void upon expiration. Therefore, we propose to revise this section to clarify that a permittee may not use a CITES document once it has expired. For other permits of a continuing nature, however, we propose to retain the process that allows the permittee to conduct permitted activities during renewal if the conditions outlined in 50 CFR part 13 are met.

Another commenter suggested that the FWS include a 60-day time limit to respond to an applicant. We refer the commenter to the current regulations that already provide a general expectation of processing times in section 13.11(c). We process applications as quickly as possible taking into account the number and complexity of applications received and our resources.

Maintenance of records (section 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, we propose to revise section 13.46 to require permittees who reside or are located in the United States and permittees who reside or are located outside the United States and are conducting commercial activities within the United States to maintain records in this country.

Import exemption for threatened, Appendix-II wildlife (section 17.8):

We propose to add this new section to 50 CFR part 17. The ESA in Section 9(c)(2) sets out an exemption to the import prohibition for threatened, Appendix-II wildlife 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 import; 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, we are proposing that 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.

One commenter stated that this section violates the ESA and should be deleted because a regulation permitting import of sport-hunted trophies of threatened species is not consistent with the duty to conserve such species. We disagree with the commenter because we believe that this section faithfully implements section 9(c)(2) of the ESA, and the Congress has stated on frequent occasions that scientifically based hunting programs can be conducted for threatened species in foreign countries consistent with the conservation of those species.

Some commenters seemed to think that this section only applied to sport-hunted trophies, which is not the case. The proposed rule clarifies that section 17.8 applies to live and dead wildlife.

Two commenters suggested that the exemption for “personally taken trophies” should not allow trophies taken “for the importer,” but only allow trophies taken “by the importer.” We agree, but note that this proposed section no longer defines “sport-hunted trophy.” Instead, it requires that a specimen meet the provisions of 50 CFR part 23, which defines the term, including the requirement that the trophy must be taken by the importer, exporter, or re-exporter.

Two commenters stated that threatened wildlife species that have been transferred from Appendix-I to Appendix-II subject to a substantive annotation under CITES should qualify for the import exemption in section 9(c)(2) of the ESA, especially in the case of sport-hunted trophies of African elephants in Botswana, Namibia, South Africa, and Zimbabwe. They expressed concern that the apparent effect of proposed section 17.8 would be to require the issuance of threatened species import permits for personal sport-hunted trophies of Appendix-II African elephants, regardless of the statutory exemption in section 9(c)(2) of the ESA. We agree that no ESA import permits are required for trophies of Appendix-II species that are imported for personal use and that are properly declared in accordance with paragraphs (d), (e), and (f) of section 9 of the ESA. Appropriate corrections have been made in the new proposed rule. However, it is important to note that if a threatened species, such as the African elephant, has a special rule, proposed section 17.8 does not apply; the provisions of the special rule apply.

One commenter questioned the legality of proposed section 17.8 because any special rule promulgated by the FWS that imposes restrictions on the import of threatened, Appendix-II fish or wildlife specimens that are tighter than the requirements imposed by CITES is not authorized except in “very narrow and limited circumstances” under section 9(c)(2). The commenter argued further that existing import restrictions in special rules for threatened species “become inapplicable by operation of law” when such species are transferred from Appendix-I to Appendix-II. We disagree. Import restrictions adopted by special rule for threatened species are based upon an explicit determination that such measures are “necessary and advisable to provide for the conservation” of such species. See section 4(d) of the ESA. Once that determination is made, the protective regulations that set out those measures must be promulgated and enforced to carry out the conservation purposes of the ESA for threatened species. Any presumption of lawful import that otherwise would result from the operation of section 9(c)(2) of the ESA is rebutted on the basis of the rulemaking record and our administrative finding. As noted by the United States District Court for the Western District of Texas in

Safari Club International

v.

Babbitt

(Aug. 12, 1993), no provision of the ESA indicates that “the Secretary's duty and authority to issue protective regulations [special rules] is preempted, circumscribed, or modified by section 9(c)(2).” See slip

op. at 29-30. The exemption, therefore, would not apply to species that have a special rule in 50 CFR part 17, such as the argali in section 17.40(j).

Special rule for American alligator (section 17.42(a)):

We propose to revise the special rule for American alligator for clarity, to renumber the paragraphs, and to delete outdated information. We propose to change the term “hides” to “skins” to be consistent with the language in 50 CFR part 23 and in the special rule for threatened crocodilians. For consistency, we also propose to apply the definitions of “crocodilian skins” and “crocodilian parts” proposed in 50 CFR part 23 to the American alligator special rule. In addition, we clarify that marking and tagging requirements for American alligator meat and skulls are different from those for other threatened crocodilians. We also propose to remove specific tagging language and instead direct the public to the CITES tagging requirements in 50 CFR part 23.

Special rules for threatened crocodilians and caiman (sections 17.42(c) and (g)):

We propose to delete section 17.42(g) for threatened caiman, and add the requirements of that special rule into section 17.42(c) for threatened crocodilians. We propose to combine these special rules to bring them up-to-date and harmonize them with the proposed language in Subpart E of 50 CFR part 23 regarding crocodilian tagging and import and export requirements. This results in one special rule that covers all threatened crocodilians except the American alligator.

We propose to harmonize the definitions of “skins” and “parts” and clarify that skins of sport-hunted trophies are included in the definition of “skins.” The proposed revisions would move the definitions of “crocodilian skins” and “crocodilian parts” to 50 CFR part 23 and incorporate them by reference in the special rule to avoid redundancy. We propose to not define “caiman product” currently in section 17.42(g). We think the definition is unnecessary since the common usage of the term is clear,

i.e.,

products include processed or manufactured items, including curios and souvenirs. In addition, the use of the phrase “that are ready for retail sale” currently found in the definition of “caiman product” is misleading and appears to narrow the definition of what caiman products are regulated by the special rule. We propose to remove the specific CITES tagging language and instead direct the public to 50 CFR part 23 for CITES tagging requirements. We propose to make the following technical corrections: (a) Delete the definition of “country of export” because the rule references 50 CFR part 23, which defines “export;” (b) delete the phrase “or present for export or re-export” currently found in the threatened caiman special rule and instead use the phrase “to attempt to” found in the ESA regulations; and (c) delete the definition of and references to the CITES “tagging resolution” and instead refer simply to the Convention.

We also propose to allow meat of saltwater crocodiles originating in Australia and Appendix-II Nile crocodiles to be traded without tags as is currently allowed for threatened caiman. We clarify that this includes all forms of meat by not using the phrase “processed 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 proposed revisions to the special rule also would prohibit import into the United States of live specimens and viable eggs of any threatened crocodilians without an ESA import permit. Currently this provision applies only to threatened caiman. This revision is necessary and advisable for the conservation of all listed crocodilians which cannot withstand pressure from non-native crocodilians.

We are also proposing to amend this combined special rule to include yacare caiman status reporting requirements for range countries. In our final rule (65 FR 25867) published on May 4, 2000, we noted that the Service depends primarily on range countries to monitor yacare caiman. We also said that to monitor the status of yacare caiman, governments of the range countries (Argentina, Bolivia, Brazil, and Paraguay) wishing to export such specimens to the United States for commercial purposes must provide us every two years, for the following 10 years, with the most recent information available on the status of the species, gathered by the respective range countries to fulfill their CITES scientific and management requirements. The first submission of status reports was due December 31, 2001. We provided a list of information that must be included in the range country status report. However, we unintentionally excluded from the regulatory language the reporting requirements as discussed in the preamble. We propose to add these reporting requirements to correct that error. We also propose to not limit the submission of biannual status reports to 10 years beyond the publication of the final rule. The collection of this information is important in determining the most current conservation status of the species. Indeed, it would be used to consider whether the species is recovering and may warrant delisting. We have also added 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. These conditions are necessary and advisable for the conservation of the species, and are similar to conditions for other threatened species with special rules such as the

Vicugna vicugna

in section17.40(m)(4)(ii).

What Are the Proposed Changes to Subpart A of 50 CFR Part 23—Introduction?

We propose to expand this subpart to give a clearer picture of our responsibilities under CITES. We also propose to delete some information from the current regulations, such as the list of countries (section 23.4) that are Parties. To keep this list of Parties up to date, we would need to continually revise it when new countries join or when a Party's contact information changes. The list of Parties (including addresses and telephone and fax numbers) is available from us or on the CITES Web site (see proposed section 23.7). As changes occur, these sources can be more quickly and easily updated than issuing a revised rule.

Purposes (section 23.1):

This proposed section outlines the aim of CITES as stated in the preamble to the Treaty. The Parties acknowledge that wildlife and plants have aesthetic, scientific, cultural, recreational, and other nonconsumptive values as well as economic importance. One commenter stated that the ESA is different from CITES and did not understand the reference to the ESA in this section. We agree that CITES and the ESA are different. However, the ESA is the U.S. law that provides the authority for the United States to carry out its responsibilities under CITES.

Scope (section 23.2):

This proposed 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 by 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. Two commenters considered this statement concerning offspring to be unacceptable, with one of the commenters suggesting that we establish a grace period for illegal offspring. We do not agree with this suggestion since 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. 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.

One commenter expressed confusion as to why we had included intrastate and interstate trade if this regulation applies only to international trade. Although CITES regulates international trade, we wanted to ensure that the public knows that it is unlawful under section 9(c)(1) of the ESA to possess any CITES specimen that was traded contrary to CITES. We clarify that intrastate or interstate movement of specimens traded contrary to CITES involves possession of unlawfully traded specimens and is, therefore, prohibited.

We further note that these prohibitions are not new with this proposed 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.

Other applicable regulations (section 23.3):

We reference in this proposed section applicable regulations in other parts of subchapter B and title 50 since many CITES species are covered by one or more other laws. One commenter suggested that we include other Federal laws, such as the Marine Mammal Protection Act (MMPA) Amendments of 1994, the Rhinoceros and Tiger Conservation Act (RTCA), and the African Elephant Conservation Act (AECA). We did not adopt this suggestion. The MMPA regulations contained in 50 CFR part 18 are already referenced, and permit requirements are administered consistent with the 1994 Amendments to the MMPA. The AECA contains prohibitions that affect the trade in African elephant ivory, and the RTCA contains prohibitions regarding the import, export, and sale of products containing or labeled or advertised as containing products derived from rhinoceros and tiger, but these laws have no separate implementing regulations. This section refers readers to other regulations that might apply to CITES species and is not the appropriate place to cross-reference all laws that may have an impact on trade.

Another commenter suggested that we include a reference to State and local regulations. Since all CITES documents issued by us are conditioned such that all applicable State, tribal, and local requirements must be met, we propose to add a new paragraph (d) to notify the public about the possible application of these laws. 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. section 1535(f);

Man Hing Ivory & Imports, Inc.

v.

Deukmejian,

702 F.2d 760 (9th Cir. 1983).

Appendices I, II, and III (section 23.4):

Species are listed in one of three Appendices that provide for different levels of regulation and have different requirements for permits and certificates (CITES documents). This section briefly defines Appendices I, II, and III. One commenter stated that all exemptions should be included in this section. We revised this section to provide the basic definitions for the Appendices based on those in the Convention rather than discuss exemptions in this section. Exemptions that may apply are discussed in proposed section 23.20(d).

Definitions (section 23.5):

We propose to add a number of definitions. Whenever possible we have defined 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 that applies to a specific situation. For example, “caviar” is defined in section 23.71 on trade in sturgeon caviar, not in the general definition section.

Definition of applicant:

One commenter suggested that we define “applicant” to exclude any person acting solely as a freight broker, freight consolidator, customhouse broker, or carrier. The commenter suggested that we should not issue permits to these entities because they are not the owners of the specimen and are not required to have import/export licenses. Although in most instances the applicant is the owner of the specimen, we decline to make ownership a requirement for obtaining a permit. We believe that an entity, such as a broker, is not precluded from being an applicant just because he or she is not required to obtain an import/export license under 50 CFR part 14.

We are not proposing to define “applicant” in this part since the general permit regulations in 50 CFR 13.1 provide sufficient guidance concerning the applicant. 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 responsible party to meet the terms and conditions of the permit.

Definitions of bred for commercial purposes and bred for noncommercial purposes:

We propose to define 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 in Appendix II (see proposed section 23.46). It also provides in Article VII(5) that specimens that are bred-in-captivity may be issued an exemption certificate (see proposed section 23.41). Although the Treaty does not use the term “bred for noncommercial purposes” in this paragraph, 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 that species.

Definition of captive-bred:

We propose to define this term to help distinguish wildlife bred and born in captivity from the CITES definition of “bred-in-captivity.”

Definitions of coral (dead, fragments, live, coral rock, and coral sand):

The Parties agreed at CoP11 to a number of definitions of coral because of its unique nature, namely that coral skeletons are persistent and that coral forms the foundations of reefs. The definitions provide the basis of whether CITES regulates a specific form of coral and what scientific name must appear on CITES documents.

Definition of country of origin:

The term “country of origin” is defined in 50 CFR 10.12. We are proposing to define the term in section 23.5 for CITES purposes to include plants. At CoP13, the Parties agreed that, in the case of a plant specimen that ceases to qualify for an exemption under CITES (

e.g.

, plants grown from exempt seeds), the country of origin would be the country in which the specimen ceased to qualify for the exemption. One commenter opposed the inclusion of plants in the definition of “country of origin” because a person cannot determine country of origin for artificially propagated species or parental stock of orchid hybrids. We propose to adopt the definition to include plants since CITES requires us to obtain and report information on country of origin for specimens in international trade. The country of origin is an important piece of information used to evaluate the impact of trade and to track the legal movement of wildlife and plants. We note that the United States would be the country of origin for plants artificially propagated in the United States.

Definitions of import, export, re-export, international trade, and shipment:

We use these basic terms throughout the regulations and define them to reflect the way the terms are used by the Parties. These definitions refer to international movement of wildlife and plant specimens, whether the purpose is commercial or noncommercial. “Import” and “export” are further defined in 50 CFR part 14. We have also defined the term “shipment” to eliminate confusion.

Definition of introduction from the sea:

In 2000, we proposed to define this term. One commenter wanted us to re-examine the proposed definition since considerable discussion of the term occurred at CoP11. We believe, however, that it is important to define the term in the regulations at this time with the language in Article I(e) of the Treaty. We recognize that the Parties may decide on an interpretation of this term in the future, but in the meantime the regulations need to clarify when the prohibition applies and when and what types of CITES documents are needed for international trade. 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 will prepare a document on introduction from the sea, based on discussions at the workshop, for consideration by the Parties at CoP14.

Definitions of Management and Scientific Authorities:

The current regulations (section 23.3) define the Management Authority in terms of Parties only and do not define Scientific Authority. We propose to define both and to include non-Parties in the definitions. If non-Parties wish to trade with Parties, they must have entities officially designated that fulfill the roles of Management and Scientific Authorities to make the required findings and to issue comparable CITES documents. One commenter stated that including non-Parties in the definition of Management and Scientific Authorities is incorrect under the Convention, has no basis in current law, and would violate the Administrative Procedure Act. We do not agree, and we endorse the steps taken by the CITES Secretariat to ask non-Parties that wish to trade with Parties to provide information on what authority is competent to provide comparable findings and documentation. See the discussion in the preamble on non-Party documents (section 23.25).

Definition of parental stock:

In 2000, we proposed to define the terms “founder stock” and “parental stock.” However, we now propose no longer to use the term “founder stock” in these regulations because the term is not used in the resolutions adopted by the CITES Parties. Thus, based on the language in Conf. 9.19 (Rev. CoP13) on nursery registration and Conf. 12.10 (Rev. CoP13) on registration of operations that breed Appendix-I wildlife for commercial purposes, we are proposing to use the term “parental stock” to mean the original breeding or propagating specimens that produced subsequent generations of captive specimens.

Definitions of permit, certificate, CITES document, and CITES exemption document:

The text of the Treaty uses the terms “permits” (for import and export) and “certificates” (for re-export, exemptions, certificates of origin, and introduction from the sea) in referring to documents issued by a CITES Management Authority. However, some Parties refer to all CITES documents as “permits.” For this reason, we propose to define the term “CITES documents” to refer to all permits and certificates that are issued by a Management Authority. We also propose to expand the definition of “permit” in this section from the definition of “permits” in 50 CFR 10.12 to include documents issued by any Management Authority, not just documents “issued by the FWS.”

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. One commenter stated that the definition is ambiguous and appears to be a new policy. It is not a new policy. While the proposed 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 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. We disagree that the definition is ambiguous and we believe the proposed definition represents an important concept in the effective implementation of CITES.

Definition of ranching:

We are not proposing to define the term at this time. At CoP13, the Animals and Plants Committees (committees established by the Parties to provide administrative and 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.

Definition of readily recognizable:

Although this term is used in Article I of the Treaty, it is not specifically defined. However, Resolution Conf. 9.6 (Rev.) defines the term, and we have based our proposed definition on the text of the resolution. Several commenters supported the inclusion of this definition in the regulations. Another commenter suggested that we use the CITES term “derivatives” in the definition. Although the term “derivative” is not commonly used in the United States, we accepted the commenter's suggestion since the term is used in the Treaty.

Based on questions we routinely receive from the public, we wish to clarify here that venom is considered a readily recognizable product, and that antivenin, which is either produced from non-CITES listed species or produced synthetically, is not subject to CITES.

Definition of specimen:

We used the definition of “specimen” given in the Treaty to clarify that, under these regulations, the term refers only to species listed in any of the CITES Appendices.

Definition of sustainable use:

We propose to 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 under the WBCA. The wording has been slightly edited to be consistent with language used in these regulations. One commenter thought it was inappropriate to use the definition from the WBCA because the CITES non-detriment finding is narrower than the WBCA finding. We point out that the WBCA's primary purpose is to encourage and support effective implementation of CITES. The non-detriment finding is the same under both, and the concept of sustainable use remains the same, regardless of context.

Two commenters argued that the definition of “sustainable use” is excessive for meeting the non-detriment finding for the issuance of permits. We believe that sustainable use is the essence of a CITES non-detriment finding, and these proposed 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.

One commenter stated that the terms “ecosystem” and “role or function of a species in its ecosystem” do not appear in the Treaty. We note these terms are used in Article IV(3) of the Convention, which specifically requires the Scientific Authority of each Party to determine whether exports of specimens of a species “* * * should be limited in order to maintain the species throughout its range at a level consistent with its role in the ecosystems in which it occurs * * *” Although the phrase “or function” does not appear in the text, it is implicit since a species' function relates to its role. Another commenter thought it was too burdensome to require an applicant to provide information on a species' role and function in the ecosystem. See the discussion in the preamble on non-detriment findings (section 23.61).

One commenter stated that the proposed definition precluded the use of adaptive management. We believe the use of adaptive management could fit under this definition in certain circumstances. Under adaptive management, production rates are monitored and the amount of harvest allowed is commensurate with increases and decreases in productivity of the species. Thus, Parties could use adaptive management in terms of changing decisions if new information becomes available. Adaptive management, however, does not imply that when there are gaps in information the assumption would be that trade would be sustainable.

Two commenters contended that the proposed definition will require range countries to undertake costly studies to demonstrate the productive capacity of the species and its ecosystem. The proposed definition does not dictate the type of studies a country needs to conduct, only that the use of a species must allow for the maintenance of viable population levels for the long term. Exporting countries must conduct some level of monitoring of productivity and impact of harvest to determine whether exports are detrimental to the survival of the species. Resources are needed for a country to manage species sustainably, and only a range country can determine whether the expenditure of resources is cost effective relative to the benefits of trade.

Definition of trade:

One commenter stated that the definition of “trade” should not include both commercial and noncommercial shipments and should be based on economic value or intent since there is conservation value in a healthy public interest in natural history. The commenter believed that, by not discriminating between commercial trade and noncommercial activities, we are failing to adequately protect species and are promoting inconsistency and confusion in enforcement.

Our proposed definition of “trade” is based on Article I(c) of the Treaty, which explicitly states that “trade” means “export, re-export, import and introduction from the sea.” We propose to define “trade” to include both commercial and noncommercial transactions since there is no mention of intent in the Treaty definition. CITES and our proposed regulations, however, afford greater flexibility to noncommercial shipments, such as through the registration of scientific institutions and the limited exemption for personal and household effects. We believe this broad definition of “trade” and the flexibility recognized by CITES and our proposed regulations provide consistency, assist in enforcement, and offer a system that promotes species conservation.

Management and Scientific Authorities (section 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, these authorities have been delegated by the Secretary of the Interior and the Director of the FWS to different offices within the FWS. We propose to add a section to summarize 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 on Technical cooperation). Other Federal

agencies also play a role in CITES efforts, for example in communicating with the Secretariat and representing the United States at CITES meetings.

One commenter noted that there appears to be duplication in the roles of the Management and Scientific Authorities as shown in the chart. We note that, although there is some interrelationship in activities carried out by the Management and Scientific Authorities, the focus of these activities and the expertise of both offices are different. Within the broad categories, the Management Authority is responsible for dealing primarily with management and regulatory issues, and the Scientific Authority is responsible for dealing primarily with scientific issues. Text was added to the proposed rule to show this distinction.

Another commenter urged the addition of a clause in the regulations requiring Management and Scientific Authorities to fulfill their roles as required under the Treaty. We do not believe this is necessary. These offices are charged with the responsibility of fulfilling certain roles under the Treaty by their designation as Management and Scientific Authorities.

Contact information (section 23.7):

The table in this proposed section outlines the type of information available from the U.S. Management Authority, U.S. Scientific Authority, 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 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 stated that this section should also contain contact information for the National Marine Fisheries Service and information on import, export, possession, and sale of marine mammal parts and products under the MMPA. We disagree because the purpose of these regulations is to explain and implement CITES. To assist those dealing with such species, we provided information in proposed section 23.3 on where to find those requirements. Persons with questions about CITES compliance should contact the office identified in this section. Persons with questions about other laws that apply should contact the office that is responsible for administering those laws.

Information collection (section 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. 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 suggested that the term “amend” be added to paragraph (c). We made this revision to the new proposed rule to make the paragraph consistent with 50 CFR 13.23.

What Are the Proposed Changes to Subpart B of 50 CFR Part 23—Prohibitions, Exemptions, and Requirements?

In this proposed 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 needs to 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 (section 23.13):

We are proposing minor changes to the prohibitions section in the current regulations. This section implements the prohibitions on international trade under CITES. We listed “introduction from the sea” separately from “import” to clarify that CITES treats these activities differently. We added the phrase “engage in international trade” to 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.

One commenter supported the language “engaging in international trade,” whereas two commenters opposed it. Several commenters expressed confusion over how this activity could be regulated. 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. For example, a U.S. company engaging in illegal international trade of tiger products could be found in violation of this section even if the items never entered the United States.

One commenter suggested that the prohibition on engaging in trade should apply only to intentional acts. We disagree because the prohibitions in section 9(c)(1) of the ESA do not recognize an exception for unintentional conduct. Further, penalties and enforcement provisions that address CITES violations already distinguish between violations that are knowingly or intentionally committed and those that are not.

One commenter opposed the prohibition on possession and stated that simple possession should not be a violation. We agree that possession alone is not a violation. However, the regulations specifically implement the statutory language that prohibits possession of any specimen traded contrary to the provisions of CITES. If a specimen was traded in violation of CITES, any possession of that illegally traded specimen is prohibited.

Several commenters questioned whether “possession” and “traded contrary to CITES” were considered prohibitions just because there was no positive documentation provided in an application to the U.S. Management Authority. The lack of supporting documentation in a permit application does not necessarily mean a specimen is illegally possessed or has been traded contrary to CITES. However, we may not be able to make the required findings or issue CITES documents if there is a lack of documentation or other evidence showing legality (see the discussion in the preamble for proposed section 23.60).

Personal and household effects (section 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 propose to clarify the

current regulations (section 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. 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 propose to define “personal effects” and “household effects” in section 23.5. Based on one commenter's recommendation, we clarify that we consider qualifying tourist souvenirs to be personal effects.

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 Web site. 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, however, the United States would require an export permit if a Party requires such a permit 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.

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, seahorse and crocodilian products, giant clam and queen conch shells, and 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. For example, if a person is bringing in more than 250 grams of caviar, a CITES document is required that covers the entire amount, not just the amount over 250 grams. If a person arrives in the United States with 265 grams of sturgeon caviar without a CITES document for 265 grams, the whole amount would be subject to seizure. The importer would not be allowed to keep 250 grams as a personal effect.

We propose to 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 being used by an individual for personal needs 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, we propose to require CITES documents for all Appendix-I specimens, except for certain worked items made from African elephant ivory (see proposed section 23.15(f)).

Several commenters supported the limitations that were placed upon live and Appendix-I specimens, caviar, and African elephant ivory. Another commenter thought we should remove this section since some Parties do not recognize the personal and household effects exemption, and it allegedly undermines protection of species. We did not accept this suggestion. The exemption reflects the agreement of the Parties, yet allows us to further conserve species when we or other countries have stricter national measures in place. The proposed regulations inform the public that CITES documents for personal and household effects may be required by other Parties.

In 2000, the Canadian Management Authority commented that they allow the shipment of live plants and Appendix-I specimens as personal effects and, thus, require no CITES documents. We recognize that there are differences in how Parties implement this exemption, and we strongly encourage travelers to check with the Management Authority in the foreign country they intend to visit to find out that country's requirements for importing and exporting personal effects.

We clarify that personal effects must be personally owned by the traveler for exclusively noncommercial purposes, 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. Three commenters stated that the requirement for the effects to be reasonably appropriate was unenforceable or vague. 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.

One commenter recommended that we use the definition of commercial in 50 CFR part 14 that provides the presumption that eight or more similar unused items are for commercial use. We do not believe that this standard is appropriate for making CITES decisions under the terms of the Convention because the general standard in place in 50 CFR part 14 applies to all wildlife whether it is protected or not. In addition, as described above, the Parties have acknowledged that the quantity of items that qualify as personal or household effects can vary by species. A blanket statement regarding the number of items that might be considered commercial may be appropriate for determining licensing requirements under 50 CFR part 14, but CITES requires a different approach.

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 also 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 propose to 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. One commenter opposed the 1-year limitation on this exemption. We retained the timeframe because we believe it is reasonably appropriate for completing the shipment of household goods to a new 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.

The AECA and ESA include stricter U.S. legislation concerning international trade of African elephant ivory. We propose to 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 registering the items. Registration consists of obtaining a U.S. CITES pre-Convention certificate, FWS Wildlife 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 need to 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 propose to adopt 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.

Urine, feces, and synthetically derived DNA (section 23.16):

We propose that the international trade of these specimens be 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. At CoP8, the Parties rejected Denmark's draft resolution to exempt blood and tissue samples to be used for DNA studies. The Parties agreed that such tissues should not be exempt from CITES controls.

One commenter stated that all DNA should be exempt, not just synthetic DNA. We disagree since the Treaty contains strict language on the regulation of “readily recognizable parts or derivatives” of CITES species. Virtually all trade in DNA samples extracted from CITES species involves the use of packaging that identifies the specimen as a part, product, or derivative of that species. Under Resolution Conf. 9.6 (Rev.), any specimen or its packaging that is marked, labeled, or otherwise identified as a part or derivative of a CITES species is considered to be readily recognizable. Trade in all readily recognizable parts and derivatives of Appendix-I and Appendix-II wildlife and Appendix-I plants is regulated by CITES, and the Parties cannot create or assert exemptions for these specimens beyond those provided in Article VII of the Treaty. The Parties' discretion to limit the trade controls of CITES to a limited set of “readily recognizable parts or derivatives” is confined to Appendix-III wildlife and to Appendix-II and Appendix-III plants as provided by Article I(b) of CITES. Therefore, to implement the commenter's request for an exemption would require an amendment to the Treaty, an initiative that the United States has historically opposed.

On the other hand, another commenter recommended that urine, feces, and synthetic DNA should not be exempt from CITES permitting requirements because they could have been obtained in a manner that required capture and restraint of animals. We believe that trade in urine, feces, and synthetically derived DNA samples will not adversely affect the conservation of, or effective regulation of trade in, CITES species and their parts, products, or derivatives. While we will not regulate these specimens under CITES, we believe it is important that researchers collect samples in a manner that does not harm the wildlife and that complies with the laws of the country where the collection occurs. Before collecting samples, researchers should contact the foreign Management Authority or other relevant wildlife or plant authorities to obtain information on collecting and exporting requirements.

One commenter asked why, if the United States considers urine, feces, and synthetic DNA to be exempt, we require CITES permits for these specimens if another country requires them for import or export. Because the Parties have not agreed whether urine, feces, or synthetically derived DNA are regulated by CITES, some countries may require CITES documents for these types of samples. If a country requires CITES documents, we will honor that country's interpretation and process an application because we must facilitate compliance with foreign laws consistent with the Lacey Act Amendments of 1981. At CoP12 and CoP13, there were proposals to annotate the list of species 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.

Another commenter suggested that submission of a wildlife declaration Form 3-177 should suffice for trade in any tissue or blood for DNA research, especially from salvaged dead specimens. We disagree since no provision in the Treaty exempts such tissues from requirements for CITES documentation. Declaration of specimens using Form 3-177 does not meet CITES document requirements that ensure that the specimens were acquired legally and the export will not be detrimental to the survival of the species. There is also no declaration mechanism, like Form 3-177, for plants.

One commenter stated that the proposed regulation imposes new restrictions on import of blood and tissue taken from sport-hunted game animals for DNA analysis. We disagree, since blood and tissue for research have always required CITES permits. We refer you to proposed section 23.74 for the definition of “sport-hunted trophy.”

Diplomats and other customs-exempt persons (section 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 propose to 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.

Required CITES documents (sections 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 proposed 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 propose to organize the information on what types of CITES documents are required into two decision trees and three tables. We developed separate decision trees specifically to address the confusion expressed by the public on the different export requirements for Appendix-I wildlife and plants.

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 these proposed regulations that explains the application procedures, general provisions, issuance and acceptance criteria, and conditions.

One commenter suggested that we add information to detail what constitutes confirmation that the importing country has or will issue an import permit. We agree and have revised the proposed regulation by adding language to proposed section 23.35(e) on import permits (see the discussion in that section of the preamble).

Export of Appendix-I wildlife (section 23.18):

The decision tree reflects the changes we are proposing to ensure that international trade in Appendix-I wildlife is not 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 Appendix-I 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 primarily commercial” 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 propose no longer to allow the use of Article III of the Treaty to export Appendix-I wildlife unless the export is for noncommercial purposes. We also propose to 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 Appendix-I wildlife bred-in-captivity will be given a source code “F,” rather than a “C,” and the export would be allowed only if the export is for noncommercial purposes and an import permit was granted.

Reservations (section 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 the shipment does not transit a Party country. Trade with Parties that have not taken the same reservation requires CITES documents.

We propose to add this section to emphasize what types of documents are required from Parties that have taken a reservation on a species. We propose to incorporate 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 propose to incorporate Resolution Conf. 9.7 (Rev. CoP13) which clarifies the requirements of 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.

One commenter suggested that we add specific provisions in case the United States took a reservation. We did not incorporate this suggestion because if the United States entered a reservation to a listing the requirements in proposed section 23.21(d) would apply. We did, however, add a paragraph on how a person could provide relevant information and request that the United States consider taking a reservation. Additionally, we added text indicating that if the United States entered a reservation to the listing of a species in Appendix I, we would require a CITES document that met 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 nation has enacted CITES 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).

Another commenter did not understand the section and wondered if the intent was that a country could not take a reservation on all species. The Treaty does not restrict the number of species for which a Party may take a reservation, but Parties seldom take a reservation on large numbers of species. A reserving Party is still bound by the provisions of CITES as outlined in this section.

In-transit (section 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 transhipping them through intermediary countries. Shipments of marine specimens harvested from international waters may need to move through waters under the jurisdiction of intermediary countries before reaching their port of introduction. 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 propose to define an “in-transit shipment” as the transhipment 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 section 23.50 for sample collections covered by an ATA carnet. (ATA is an acronym of the French and English words “Admission Temporaire/Temporary Admission.”) In-transit shipments, other than sample collections in section 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 a valid CITES export document was required to accompany shipments 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 proposed regulations reflect the recommendations of the CoP to prevent misuse of the in-transit exemption. Based on comments received about the loss of documents during transit, we revised this section to allow the use of a copy of the valid original document for in-transit shipments. Transhippers should be aware, though, 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.

In 2000, we proposed that in-transit shipments may not be sold, manipulated, or split. One commenter stated that this requirement does not address what happens if there is a problem with part of a shipment. To clarify, we revised the proposed regulations to indicate that an inspecting official has the authority to order a shipment to be split or manipulated if problems are detected with part of the shipment. Another commenter suggested that we add the phrase “solicited for sale” to the requirement that shipments may not be sold. We did not accept this suggestion as it goes beyond the intent of the resolution. As long as the goods are not sold while in transit, we are not concerned about what kind of solicitations occur.

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, that arrives in the United States before continuing on to another country is considered an import and must meet all import requirements. One commenter thought that, if shipments are treated as an import, the possible ramifications were unclear. Shippers must meet the requirements of all applicable regulations. To clarify, we revised this proposed section to reference § 23.3 on other specific regulations that may affect the import of protected species, including 50 CFR part 14.

Required information on CITES documents (section 23.23):

We propose a new section to provide details on what information CITES documents must contain. 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 stated that we should not reject what they thought were otherwise valid documents just because they do not comply with U.S. standards. The document standards in these proposed regulations are not just U.S. standards, but are based on the Treaty and resolutions agreed to by the Parties. The use of standardized documents assists Parties in implementing CITES. Such standardization allows countries to verify that the specimen being shipped is the one listed on the document and helps identify false and invalid CITES documents. It facilitates the collection of information on the volume of trade in wildlife and plants, provides standard information for annual reports, and allows better monitoring of the levels of commercial trade on a species-specific basis. It also facilitates the clearance of shipments at ports of exit and entry by making all necessary information available to the inspector in a familiar format. Documents that do not contain the required information may be considered invalid documents and rejected by any CITES Party.

One commenter stated that there was no basis to require non-Parties to comply with document information requirements. Article X of the Treaty requires that documents issued by non-Parties must “substantially conform” with these requirements of the Convention. See discussion of proposed section 23.25 in the preamble.

Most of the information in this proposed 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. We discuss some of the requirements here to clarify issues raised in the past.

Bill of lading or air waybill (section 23.23(c)(3)):

APHIS suggested that we make the air waybill and bill of lading information mandatory on all documents to assist inspection officials. Although we agree that this information helps match a shipment to a document, we decline to make this mandatory since the specific information is not always known at the time the CITES document is validated.

Dates (section 23.23(c)(4)):

We have had many questions about the “valid until date.” 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.

Description of the specimen (section 23.23(c)(5)):

The use of standard descriptions for a specimen is needed to perform accurate global trade analyses, particularly for purposes of evaluating the impact of trade on the conservation of the species in the wild. We propose to require that descriptions on CITES documents from Parties be in English, Spanish, or French (the three working languages of the Treaty) to assist inspectors in determining if documents match the accompanying shipment.

One commenter believed that the form should not have to be in English, French, or Spanish. The Parties agreed that the form itself should be in one of the three working languages of the Treaty to ensure that inspecting officials could read the documents. The required information on the form itself does not have to be in one of the three languages, except for the description of the specimen, which is a critical piece of information for inspecting officials. The Parties recognized that it is unreasonable to expect inspecting officials globally to be conversant in all languages of CITES permit-issuing countries. We have experienced difficulties in processing CITES documents written in languages other than English, Spanish, or French, and clearance of some shipments has been delayed. Limiting descriptions to the three languages of the Treaty should

help prevent or reduce such delays, while assisting in enforcement efforts.

Humane transport (section 23.23(c)(7)):

One commenter requested that we add a reference to the IATA LAR and CITES guidelines for humane shipping in many other sections of the regulations. We do not believe it is necessary to repeat this reference throughout the regulations, since it is this proposed section that outlines all document requirements for the export or re-export of live specimens. Another commenter suggested that we not reference a specific IATA LAR volume because of continuous changes. We decline to adopt this recommendation and have kept the reference to a specific volume since we do not have the authority to automatically codify future editions of the IATA LAR.

Identification of specimen (section 23.23(c)(8)):

We propose to require that the CITES document contain information on any unique number or mark that is used to identify a specimen. If the specimen has a microchip, the specific information concerning the code, trademark of the transponder manufacturer, and location of the chip will need to 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 stated that we should not mandate marking that is required under a resolution unless that resolution is also codified. We revised the proposed regulations to clarify that specimens must be marked using any mark required under these regulations or a CITES listing annotation. To effectively implement CITES, we may require that specimens be marked if a mark is necessary to support findings of legal acquisition and non-detriment. We also require marking information for CITES documents that we issue to ensure that exports or re-exports are not seized abroad.

Purpose of transaction (section 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.

Quantity (section 23.23(c)(12)):

Shipments have been presented for clearance with quantities identified as “one box” or “one case.” These quantities lack clear information about the actual amount of wildlife or plants in the shipment. One box may contain one wildlife or plant specimen, or it may contain hundreds. 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. Some items are more accurately reported by volume, such as logs and sawn wood, which should be shown as cubic meters. Based upon comments from APHIS, and information from CBP, the timber industry, and other CITES Parties, we have clarified that veneer and plywood should be shown as either square meters or cubic meters. To monitor trade effectively, we need records on quantities that actually reflect the volume of that trade.

Scientific name (section 23.23(c)(13)):

We propose that a CITES document must contain the scientific name of the species, which must follow the standard nomenclature as it appears in the CITES Appendices or in the references adopted by the CoP. The CITES website contains the Appendices and a species database for easy query by common or scientific name. Resolution Conf. 12.11 (Rev. CoP13) provides guidelines on standard nomenclature and contains a list of taxonomic and nomenclatural references adopted by the CoP as the official standard references for species included in the Appendices. UNEP-World Conservation Monitoring Centre (WCMC) publishes the

Checklist of CITES Species,

which provides the official digest of scientific names contained in the standard references. The checklist contains an alphabetical list of CITES species, their scientific synonyms, their common names in English, French, and Spanish (to the extent that these were available to the compilers) and the Appendix in which they are listed. Taxonomy evolves, and different references may use different scientific names for the same organism. Having one standard that we can follow is important to ensure that documents are issued for the correct species.

One commenter stated that we should not require subspecies information on the CITES document. The scientific name of the species on the CITES document must include the subspecies when that information is needed to determine the level of protection of the specimen under CITES. For example, under CITES, three subspecies of cougar (

Puma

(=

Felis

)

concolor coryi, P. c. costaricensis,

and

P. c. cougar

) are listed in Appendix I, while all other subspecies are listed in Appendix II.

Resolution Conf. 12.3 (Rev. CoP13) recommends situations when a higher taxon name (such as genus or family) could be used on a CITES document. We propose to accept a CITES document that uses a higher taxon name only when the CoP has agreed to its use, the issuing Party can show it is well justified and has communicated the information to the Secretariat, or when the item is a pre-Convention manufactured product containing a specimen that cannot be identified to the species level. The Parties have agreed to the use of higher taxon names for coral rock and live and dead coral under certain conditions.

Signature (section 23.23(c)(16)):

We propose to require that the signatures of individuals authorized to sign CITES documents for a Management Authority must 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.

Validation (section 23.23(c)(21)):

We revised the paragraph to reflect one commenter's statement that validation is required whether the shipment is physically inspected or not.

Additional information (section 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 noted that quota information is not standardized so that this required section was premature. We did not change this section since the information that is required to appear on the face of a CITES document has been standardized by the Parties. We agree, however, that the system used internally in each country to account for quotas is not standardized. The Parties discussed export quotas at CoP12 and CoP13 and forwarded the issue to the Standing Committee for further consideration.

Phytosanitary certificates (section 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 CoP12, the Parties agreed in Resolution Conf. 12.3 (Rev. CoP13) that the phytosanitary certificate was valid only to export plants that were artificially propagated in the exporting country. The phytosanitary certificate should not be used for the subsequent re-export of such plants. Paragraph (f) lists information that is required on these certificates. At this time, the United States does not use phytosanitary certificates in lieu of CITES certificates.

Source of the specimen (section 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 are providing a list of standardized codes that Management Authorities use on documents. Each code is defined as to the source of the specimen under CITES. The U.S. Management Authority will determine the appropriate code based on information provided in an application. At CoP12, the Parties agreed to add source code “O” for pre-Convention specimens to conform with the

Guidelines for the preparation and submission of CITES annual reports.

Parties should assign the code “O” in conjunction with another code.

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 as “bred-in-captivity” (see proposed section 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 section 23.18.

Additional information required on non-Party documents (section 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 the 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, Resolution Conf. 9.5 (Rev. CoP13) was adopted. This resolution recommends that Parties accept documents from non-Parties only if they contain certain basic information, including certifications that they have made the findings required under Articles III, IV, and V of the Treaty. Therefore, we propose to incorporate 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. This means a non-Party CITES document would need to contain essentially the same information as a Party document plus the additional certifications in this section for us to consider it valid.

Valid CITES documents (section 23.26):

Article VIII of the Treaty outlines measures that Parties should 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 are not re-entered into illegal trade, Parties are 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.

We propose to include 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. They believe we should accept a document if it is not procured by fraud and meets Article VI of the Treaty. 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. As noted by the United States District Court for the District of Columbia in

Castlewood Products

v.

Norton

(Apr. 16, 2003), the role of all CITES Parties is to ensure that international trade in CITES specimens meets the provisions of the Convention, and that the Government has the authority to decline to accept export permits at face value when reason is shown to doubt their validity.

We present this 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.

Management Authority and Scientific Authority (section 23.26(c)(7)):

We propose to incorporate the recommendations of Resolutions Conf. 9.5 (Rev. CoP13), 10.3, and 11.3 (Rev. CoP13) that documents should be accepted only from Parties and non-Parties that have designated a Management Authority and Scientific Authority and have provided that information to the Secretariat.

One commenter objected to this requirement while two commenters supported it. To clear a shipment, we must be satisfied that the required findings have been made for documents issued by a Party or non-Party. Without these findings, CITES documents are not valid. When a country designates a Management Authority and Scientific Authority, those offices assume the responsibility to make the needed findings before issuing CITES documents. Information provided through the Secretariat on the designation of these offices allows the U.S. to ensure that the government office issuing the CITES document had the capability and legal authority to make the required findings and issue the document.

One commenter thought that this section implied that a nation must have its own authorities. Although most countries designate their own Management Authority and Scientific Authority, joint authorities could meet the criteria. For example, CITES has supported the concept of shared Management Authorities or shared Scientific Authorities for island developing nations.

Ranched specimen:

In 2000, we proposed not to allow trade in specimens from species that have been transferred from Appendix I to Appendix II based on ranching from a non-Party or a Party that has taken a reservation on the species based on a recommendation in Resolution Conf. 10.18. That resolution was repealed at CoP11. We agree that this provision is not necessary as we accept shipments from a non-Party or a reserving Party only when the document is issued by a competent authority and it substantially conforms to the requirements of the Treaty. Thus, we have not included any conditions for ranched specimens in the table in this new proposal.

Shipment contents (section 23.26(c)(13)):

The proposed language reflects current practice. CITES documents must be obtained before the shipment occurs; the specimen must be identified on the document; and the shipper may not substitute a new specimen to replace the one authorized. The inspecting official may inspect the shipment and verify that the contents match the specimens described on the document. The official will validate or certify on the CITES document the actual quantity being shipped. The

quantity may be less than the quantity shown on the document at the time it was issued, but cannot be more than that quantity.

Quotas (section 23.26(c)(14)):

Quotas may be established voluntarily by Parties, adopted by the CoP through a resolution or proposal to amend Appendices 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 these quotas each year, and we propose to require that the quantity exported may not exceed the quota.

Verification of CITES documents (section 23.26(d)):

This section 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.

Two commenters recommended that the United States request specific information to support the non-detriment findings made by other countries for each species they export to the United States. We did not incorporate this suggestion and believe it goes beyond the intent of the Treaty. Although we agree it is important that certain CITES documents only be used when a non-detriment finding has been made, 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. The Plants and Animals Committees regularly evaluate whether Parties are properly making non-detriment findings through the significant trade review process. In addition, we request information on non-detriment findings made by other countries, including quotas established by Parties, when we have a need to question a shipment or a pattern of trade. If the commenters are concerned about a non-detriment finding that is currently being accepted, they should provide us with any relevant information for our review.

Presentation of CITES documents at the port (section 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 propose this new section, which provides a table that outlines the type of U.S. and foreign documents they must present for validation or certification or surrender when importing, introducing from the sea, exporting, or re-exporting CITES species. Based on comments from APHIS, we updated the reference to the general requirements for import and export of plants.

One commenter believed that we should allow CITES documents to be submitted after the fact for CITES specimens that are part of accompanying baggage when Customs and Agriculture fail to collect the documents. We, or APHIS or CBP for plants, are the agency from which any importer or exporter must obtain release under CITES. Persons should contact the responsible agency prior to importing wildlife or plants as accompanying baggage. Importers unable to submit CITES documents to us, APHIS, or CBP for noncommercial shipments in accompanying baggage at the time of entry should contact the appropriate office as soon as possible after arrival.

Based upon suggestions from APHIS, we clarified sections of the table to indicate that we, APHIS, or CBP will validate a copy of a multiple-use document if the document is so conditioned. We also added a footnote indicating that the CITES mailing label for scientific institutions does not require validation, but the scientific institution must present the package, which has the CITES mailing label affixed to it, for inspection at the time of export, re-export, or import (see 50 CFR part 14).

What Are the Proposed Changes to Subpart C of 50 CFR Part 23—Application Procedures, Criteria, and Conditions?

This proposed subpart expands the current section 23.15(c) through (f) to provide information on how to apply for a U.S. CITES document. It also contains proposed general provisions and criteria that apply to both U.S. and foreign CITES documents.

Application procedures (section 23.32):

We propose a new section that gives a general overview of the application process for U.S. 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 proposed sections 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.

Decisions on applications (section 23.33):

This new proposed 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 suggested that we accept at face value biological non-detriment findings of the exporting range countries and the quotas set by the CoP. We decline to incorporate this suggestion (see discussion for proposed section 23.61 in the preamble). Another commenter asserted that the regulations do not provide a reasonable alternative to expensive court action when permits are denied. We note that the general permit procedures in 50 CFR part 13 set out a review process to be followed if an application, including a CITES application, is denied. If the applicant objects to the denial of an application, he or she may request reconsideration and then appeal the decision, if necessary. The reconsideration or appeal review will be based on the original application and any explanation of either how we have misinterpreted the information or made a procedural or technical error in our original review of the application.

Records (section 23.34):

We propose this new section to summarize the types of general records that potential applicants may want to keep for specimens that have been in or may

enter international trade. Many orchid hobbyists and commercial growers expressed great concern that the documentation requirements in the 2000 proposal were excessive and impractical. Concerns included comments that plants are traded, gifted, and otherwise exchanged freely within the United States without specific receipts; document requirements should be different for orchids since they are easy to propagate, produce a large number of offspring, and are easy to hybridize; recordkeeping requirements should not be the same for hobbyists and commercial nurseries; and hybrids should be exempt from regulation since they are artificially propagated.

After considering the comments, we recognize that our 2000 proposal on records and legal acquisition (see proposed section 23.60 in the current proposal) was not clear. Our intent was to reflect how we currently conduct business. Thus, we revised the proposed regulations. This section on records provides examples of the kinds of records potential applicants may want to keep if they intend to trade in CITES species internationally (see the discussion for proposed section 23.2 in the preamble concerning possession and domestic trade). Although the applicant for a CITES document needs to provide sufficient information for us to make the legal acquisition finding, we base the amount of information we need on the risk that the specimen was illegally acquired. These factors take into account many of the issues raised by commenters. For example, we consider whether the specimen is a hybrid; is common in captivity in the United States; breeds or propagates readily; has little illegal trade; and is commonly imported. We give less scrutiny and require less information when the trade poses a low risk and exert more scrutiny and require more detailed information when the proposed activity poses greater risk.

A few commenters believed that the recordkeeping provisions for exempt plant material, such as flasked orchid seedlings, went beyond the requirements of CITES. We disagree because the exemptions recognized by the Parties for a number of plants are narrowly applied to those particular specimens. Once those exempt plant materials take a different form (such as a seedling removed from a flask and entered into cultivation or a plant grown from an exempt seed), the new specimen requires CITES documents to be traded internationally. We have, however, revised the proposal to only ask for records that document the name and address of the source of the exempt plant material. We are no longer proposing to ask for information on the cultivated origin of exempt seeds because at CoP13 the Parties agreed that plants grown from exempt plant material under controlled conditions qualify as artificially propagated.

Some commenters contended that we should grandfather or grant amnesty to Appendix-II specimens known in cultivation for more than a set number of years. We did not adopt this suggestion. For specimens to be eligible for certain CITES documents, we have to be satisfied that the specimens were legally acquired. We cannot exempt specimens from this finding regardless of the length of time they have been in cultivation. We can, however, use a less rigorous paperwork requirement, as we have done through the risk assessment process described above.

A few commenters contended that documentation is all but useless in effectively monitoring whether the trade in orchids is legal. We disagree and believe that documents have effectively worked as the centerpiece of CITES trade controls. A CITES document indicates that a Party has made the findings to show that the specimen was legally acquired and the trade is not detrimental to the survival of the species. In addition, our use of risk assessment as described above allows us to consider all factors, not just documents.

One commenter thought it would be anti-competitive for a nursery to be required to disclose the source of plants. We note that each application form contains a notice under FOIA. Organizations, businesses, or individuals operating as a business must identify any information that should be considered privileged and confidential business information to allow us to meet our responsibilities under FOIA. Confidential business information must be clearly marked “Business Confidential” and be accompanied by a nonconfidential summary of the confidential information. The nonconfidential summary and remaining documents may be made available to the public under FOIA.

One commenter suggested we use “sequential ownership” rather than “multiple ownership” to clarify that we do not mean joint title. We agree and revised the text to reflect this change. Several commenters were concerned that importers were not provided copies of CITES documents at the port of entry and asked if we would provide free copies of prior documents if requested. We note that it is important for persons who plan to conduct international trade to keep copies of CITES documents. This is especially true if the specimen or its parts, products, or derivatives are to be re-exported. A re-export certificate can be issued only if we have the permit number and date of issuance of the foreign CITES document under which the specimen was imported. This is one instance when we will be looking for sequential ownership records. If a person did not get a copy of a CITES document at the time of entry into the United States, he or she should contact us to obtain copies as soon as possible. Copies of CITES documents may be requested from us through FOIA, but such documents may not be available after a few years. If the requester qualifies for the fee waiver under FOIA, there is no charge.

Two commenters questioned the legal basis for requiring records to show (a) that the cultivated parental stock was established in accordance with CITES and relevant national laws for a plant to qualify as artificially propagated or (b) the chain of custody. We have a responsibility under the Treaty to make a legal acquisition finding before issuing certain CITES documents. In the case of artificially propagated plants, the Parties agreed to an interpretation of “artificially propagated,” which includes whether the cultivated parental stock was legally established. In the case of sequential ownership, we may need to look further to be satisfied that there is no illegality in the chain of custody. The amount of information we need depends on the risk associated with the proposed activity as described in the application.

A few commenters thought we should change the recordkeeping for wild-collected specimens taken on public land where no permit is required. We agree and have revised the text. When applying for a permit, persons who collect on public land where no permit is required should provide information on when and where the specimen was collected and state that no permission was required. We will contact the appropriate State or Federal agency that has jurisdiction over collection of wildlife or plants on that land.

General requirements for standard CITES documents (sections 23.35-23.39):

The basic requirements for U.S. and foreign CITES documents have not changed since the Treaty took effect in 1975, and are the same as in the current regulations (section 23.15). We have designed U.S. application forms for specific activities and protection levels to make applications easier to complete and to clarify what information is needed. Each proposed section provides information to help an applicant determine which application form to

request. The forms can be obtained from our website or requested by phone, mail, or e-mail (see proposed section 23.7).

Each proposed section lists the issuance criteria for each type of document and references the appropriate section for factors we consider in making a decision on certain criteria. The issuance criteria are based on the provisions of the Convention (Articles III, IV, V, and XIV) and resolutions, including Resolution Conf. 12.3 (Rev. CoP13) on permits and certificates.

As discussed earlier, to comply with Resolution Conf. 12.3 (Rev. CoP13), CITES documents must show the scientific name of the species based on the standard nomenclature in the CITES Appendices or the references adopted by the CoP. We propose to add this requirement as an issuance criterion to conform to the resolution, expedite review of permit applications, and ensure that documents are issued for the correct species.

Prior issuance of an import permit (section 23.35(e)):

Under Article III of the Treaty, before a Management Authority can issue an export permit for an Appendix-I specimen, it must be satisfied that an import permit has been issued for the specimen. However, some countries have stricter national measures that require the export permit to be issued before they can issue an import permit. Resolutions Conf. 10.14 (Rev. CoP13) and 10.15 (Rev. CoP12) recommend that this requirement may be satisfied when the Management Authority of the importing country has provided written assurance that an import permit will be issued. Thus, for the export of live and dead Appendix-I specimens and re-export of live Appendix-I specimens (as required by Article III of the Treaty), we propose that the issuance criteria can be met either by showing that the import permit has been issued or by providing confirmation from the Management Authority of the importing country that the import permit will be issued. For re-export of dead specimens, the Management Authority does not need to see the import permit before issuing a re-export certificate, but the shipment still must be accompanied by an import permit.

One commenter suggested that a written confirmation from the appropriate authority in the form of a letter, fax, e-mail, or similar media should be acceptable, with allowance for oral confirmation in an urgent situation to be followed by written confirmation. We agree that these types of written communications could confirm that an import permit has been or will be issued. We also agree that oral confirmation may be acceptable, but only under exceptional circumstances since oral confirmation is open to misunderstanding. We revised the text to clarify that confirmation should be in writing except when the life or health of a specimen is threatened and no timely means of written communication is possible.

Export permits (section 23.36):

To comply with Article II of the Treaty, we propose that the export of Appendix-I wildlife that only qualifies as source code “W” or “F” must be for noncommercial purposes (see discussion in the preamble for proposed section 23.18). This proposed new provision means that facilities that are commercially breeding Appendix-I wildlife need to become registered under proposed section 23.46 before they can export Appendix-I specimens. This does not affect the sale of specimens within the United States, only the commercial export of such specimens, nor does it preclude the export of specimens where the export is noncommercial, such as for purposes of science, conservation, or personal use.

We propose to add language to address the exemption in Article XIV paragraphs 4 and 5 for certain Appendix-II marine species protected under another treaty, convention, or international agreement that was in force on July 1, 1975 (the date of entry into force of CITES). Export of a marine specimen exempted under Article XIV requires a CITES certificate indicating that the specimen was taken in accordance with the provisions of the other treaty, convention or international agreement.

Re-export certificate (section 23.37):

A re-export certificate is required for the export of Appendix-I, -II, and -III specimens that were previously imported, including items subsequently converted to manufactured goods. A certificate may be issued when evidence of legal import has been provided.

Certificate of origin (section 23.38):

This document allows the export of a specimen of species listed in Appendix III when the specimen originated in a non-listing country. Current regulations (section 23.12(b)(2)) provide only general information about a certificate of origin. We are proposing a new section to provide specific information on the application form and issuance criteria for a certificate of origin. One commenter was concerned about the inconvenience of obtaining a CITES certificate of origin from a country's Management Authority when often a certificate is issued on a local level, especially for hunting trophies. The commenter suggested that a certificate of origin from the local authorities should be acceptable for Appendix-III and some Appendix-II species. We note that a certificate of origin is acceptable under CITES only for Appendix-III species. Resolution Conf. 12.3 (Rev. CoP13) recommends that a certificate of origin be issued by a country's designated Management Authority and that Parties accept a document only if it is issued by such authorities. Although permission to hunt may be granted locally, export is often a function of a country's national government. However, a central national office that is the designated Management Authority may delegate issuance authority to field or local offices, such as provincial offices, for all CITES documents, not just certificates of origin.

Introduction from the sea (section 23.39):

Paragraphs 4 and 5 of Article XIV of the Treaty provide a limited exemption for certain Appendix-II species when a country is a party to another treaty, convention, or international agreement that protects the listed marine species and was in force on July 1, 1975 (the date of entry into force of CITES). For introductions from the sea, this exemption applies only to specimens that were harvested by a ship registered in the country of introduction that is also a party to the pre-existing treaty. This is in keeping with Article XIV paragraph 4 and with the intent of the provisions of Article IV of the Treaty. It also supports the CITES goal of exempting only those introductions from the sea that are certified as being in compliance with a pre-existing treaty by a party to that treaty who is competent to make such a certification. Should a commercially exploited marine species that is exempt under Article XIV be listed in the future, implementation details may need to be addressed at the time of listing.

Certificates for artificially propagated plants (section 23.40):

The Parties recognize that it is sometimes necessary to approach plants differently than wildlife because of the unique aspects of plant biology and trade. This proposed section implements Article VII(5) of the Treaty and allows us to issue a certificate for artificially propagated plants. This includes specimens of Appendix-I species propagated for noncommercial purposes or traveling as part of an exhibition, certain Appendix-I hybrids (see proposed section 23.42), and specimens of Appendix-II or -III species propagated for any purpose. (See proposed section 23.47 to export Appendix-I plants propagated for

commercial purposes under Article VII(4) of the Treaty.)

We propose to adopt the conditions of Resolution Conf. 11.11 (Rev. CoP13) to decide whether plants qualify as artificially propagated (see proposed section 23.64). This resolution clarifies that not all cultivated plants grown under controlled conditions qualify as artificially propagated, and a shipper may need a CITES export permit rather than a certificate for artificially propagated plants. An Appendix-I plant that qualifies for this exemption does not need a CITES import permit.

Some certificates for artificially propagated plants are issued with an inventory sheet as part of the CITES document. APHIS asked that we clarify whether a permittee is authorized to add native plants to the inventory sheet. Generally, propagators of native plant species are issued a CITES document on which we list the native plant species authorized for export. The permittee is not authorized to add species to the CITES document. All CITES documents are issued with specific conditions that contain language on how a permittee is to use the document. This language is found in block 5 of the CITES document and on the accompanying inventory sheet and, in some cases, on a separate sheet containing special conditions attached to the document. We emphasize how important it is that permittees and inspectors read all the conditions on the CITES document and call the U.S. Management Authority if questions arise or if the conditions are not clear.

Several commenters urged us to revise the CITES regulations to make artificially propagated Appendix-I specimens available for any purpose, including commercial purposes, since they believe that the widespread artificial propagation of orchid species serves as a major deterrent to the collection of orchid species from the wild. The proposed regulations in section 23.47 already provide procedures for the export of Appendix-I plants that were artificially propagated for commercial purposes.

Bred-in-captivity certificates (section 23.41):

Wildlife bred-in-captivity is also covered under Paragraphs 4 and 5 of Article VII of the Treaty. In adopting Resolutions Conf. 10.16 (Rev.) and 12.10 (Rev. CoP13), the Parties recognized the need for a standard interpretation of these two paragraphs. The Parties have expressed concern that trade in specimens falsely declared as bred-in-captivity is contrary to the Convention and may be detrimental to the survival of wild populations. (See proposed section 23.46 concerning the registration of operations that breed Appendix-I wildlife for commercial purposes to meet the provisions of Article VII(4).)

This proposed section implements Article VII(5) and allows us to issue a bred-in-captivity certificate for specimens of Appendix-I species bred for noncommercial purposes (see proposed section 23.5) or traveling as part of an exhibition, and specimens of Appendix-II or -III species bred for any purpose. At CoP12, the Parties agreed that facilities that are breeding Appendix-I species for noncommercial purposes must be participating in a cooperative conservation program with one or more of the range countries for that species. We propose to adopt this provision. If the breeding facility is not participating in a cooperative conservation program, specimens will be assigned the source code “F” and are not eligible for a bred-in-captivity certificate. Export of such Appendix-I specimens would only be allowed when the export is for noncommercial purposes (see the discussion in the preamble to proposed section 23.18). We also propose to adopt the recommendations of Resolution Conf. 10.16 (Rev.) for specimens bred-in-captivity (see proposed section 23.63). Appendix-I wildlife that qualifies for a bred-in-captivity certificate does not need a CITES import permit.

General information on hybrids (sections 23.42 and 23.43):

At CoP2, the Parties recognized that it is difficult to distinguish between purebred and hybrid specimens for trade identification purposes. If hybrids were not subject to CITES controls, persons wishing to avoid the controls of CITES could falsely claim that the specimens in question were hybrids. Resolution Conf. 2.13 recommended that hybrids, even though not specifically listed in any of the Appendices, are subject to CITES if one or both parents are listed. The Parties agreed at CoP10 to treat plant hybrids differently from wildlife hybrids. Resolution Conf. 2.13 was repealed, and provisions for hybrids were placed in other resolutions.

Plant hybrids (section 23.42):

Resolution Conf. 11.11 (Rev. CoP13) on trade in plants contains provisions on trade in plant hybrids. We are proposing a new section in the regulations to implement this resolution. Trade in plant hybrids must meet the requirements of CITES unless the Parties agree to exempt an Appendix-II or -III hybrid by a specific annotation to the Appendices (see proposed section 23.92). At CoP10, a number of artificially propagated hybrids of some “supermarket” cacti were granted a general exemption, and at CoP13, artificially propagated hybrids of the orchid genera

Cymbidium

,

Dendrobium

,

Phalaenopsis

, and

Vanda

were granted an exemption under certain conditions.

Plant hybrids are subject to CITES controls if one or both parents are listed in the Appendices. If the hybrid includes two CITES species in its lineage, it is listed in the more restrictive Appendix of either parent, with Appendix I being the most restrictive. Most plant hybrids are the product of artificial propagation using well-established nursery stocks that have been artificially propagated for many years. Thus, the Parties agreed to allow artificially propagated hybrids of one or more Appendix-I species or taxa that had not been annotated to include hybrids to be traded with a certificate for artificially propagated plants. In addition, seeds and pollen (including pollinia), cut flowers, and flasked seedlings or tissue cultures of these Appendix-I artificially propagated hybrids are exempt from CITES controls and do not require CITES documents (see proposed section 23.92).

One commenter stated that all hybrids should be exempt from CITES document requirements. We did not accept this suggestion. See the general discussion of hybrids above for the basis of applying CITES requirements to hybrids of CITES species.

Another commenter stated that CITES Resolution Conf. 9.18 (Rev.) (replaced by Resolution Conf. 11.11 (Rev. CoP13)) amounted to an amendment of the Treaty and, therefore, should not be implemented until it has been ratified by Congress. We disagree since resolutions are not amendments to the Treaty, but are interpretations of the Treaty's requirements that are agreed upon by the Parties. Absent an amendment to the Treaty, there is no requirement to seek the advice and consent of the Senate. If such consultation were required for interpretations of CITES, we would not be able to readily implement any of the interpretations of the Treaty agreed to by the Parties, including measures like the flasked seedling exemption, which represents a relaxation of permit requirements for plant specimens.

The same commenter stated that the rule would increase the reach of the Treaty by treating orchid hybrids the same as species. We again disagree because the treatment of plant hybrids in the proposed rule is based on existing CITES resolutions, and we have always regulated hybrids according to the interpretation of the Treaty by the Parties. Therefore, these proposed regulations do not represent a change in

the scope of the Treaty or the way we apply it to plants.

Wildlife hybrids (section 23.43):

In Resolution Conf. 10.17 (Rev.), the Parties agreed that wildlife hybrids with one or more Appendix-I or -II specimens in their recent lineage are controlled under CITES. The term “recent lineage” means the previous four generations of a specimen's ancestry. We anticipate most hybrids that include a CITES species will continue to be regulated by CITES (note that the proposed definition of “species” includes hybrids since hybrids are controlled under CITES). A hybrid would be excluded from CITES controls only when non-listed CITES species appear in its ancestry for the past four generations. For example, a specimen who's “great-great-great grandfather” was a CITES-listed species would not be considered to be listed under CITES if all specimens within the past four generations of direct line of descent were species that are not listed under CITES. Also, a hybrid of species included in a higher-taxon listing, such as parrots or cats (excluding domestic cats) generally would be regulated by CITES because the crosses usually are between species within that taxon.

We propose to require an excluded wildlife hybrid to be accompanied by a CITES document or letter, issued by the Management Authority of the country of export or re-export. The letter would need to certify that the wildlife hybrid contains no CITES species in its recent lineage. Because not all countries will be aware of this U.S. requirement, a person who plans to import an excluded wildlife hybrid needs to contact the Management Authority of the exporting or re-exporting country to get the appropriate letter or CITES document before making a shipment. For export or re-export from the United States, a person should submit an application to our office that includes information on the hybrid's lineage. After reviewing the information, we will determine if we can issue a letter or if a CITES document is required.

We propose not to require a domestic dog or cat that has no CITES species in its recent lineage to be accompanied by a letter or CITES document. Note, however, that wolf (

Canis lupus

)-domestic dog hybrids that include wolf in the last four generations and domestic cats that include CITES cats in the last four generations (

e.g.

, some Bengal cats) would need to be accompanied by a letter or CITES document upon export, re-export, or import.

Two commenters questioned the legal basis for the four-generation rule, stating that captive hybrids are biologically dead as a wild species. This proposed section addresses the issue of hybrids in a manner that reflects the multilateral interpretation by the Parties. Because some hybrids are phenotypically similar in appearance to the parent species, the failure to control trade in hybrids would create difficulties in enforcing CITES for the listed parent species. We believe the four-generation rule is a reasonable approach to ensure that trade in hybrids does not undermine the effective control of trade in CITES species.

The same two commenters also questioned the scientific basis for the four-generation rule. The Parties adopted the four-generation rule because they made the judgment that a fifth-generation or more distant generation hybrid of a listed species had a negligible genetic relationship to the listed species.

One commenter recommended that we delete this provision and questioned the practicality of the rule as it would be impossible to show that no CITES species is within four generations of the lineage of a specimen, especially for specimens taken on game ranches where hybridization is known to occur with some species. We did not adopt this suggestion because the provision provides a mechanism to exclude some hybrids from CITES controls while helping us maintain trade controls on hybrids that the Parties have agreed to regulate. To qualify for the exclusion, a person needs to provide genealogical records (pedigrees) showing that no specimen of a CITES species was included in the past four generations. Without such records, which are generally kept by breeders, you must apply for a CITES document.

Another commenter was concerned that the importer of wildlife hybrids will frequently get caught without a proper document and suggested that retrospective documents should be available to importers who were unaware of the requirement. We disagree and note that this section provides an exclusion under very limited circumstances. We emphasize that for an importer to be eligible for a retrospective document, he or she must meet the proposed requirements of section 23.53.

Personally owned live wildlife (section 23.44):

Article VII(3) of the Treaty provides that, in some circumstances, the provisions of Articles III, IV, and V of the Treaty do not apply to specimens that are personal or household effects. As discussed previously, Parties have generally excluded live wildlife from this exception. However, in Resolution Conf. 10.20, the Parties recommend that the term “personal and household effects” include personally owned, live wildlife that is registered by the Management Authority in the country where the owner usually resides. To monitor frequent international movement and reduce administrative and technical problems, the Parties agreed to use a certificate of ownership under specific conditions.

We propose to implement this resolution, which should simplify the procedure for people who frequently travel internationally with companion animals or wildlife used in noncommercial competitions, such as falconry. The certificate of ownership acts like a passport, but can be issued only after agreement between the Management Authorities of the Parties concerned. The owner must accompany the specimen when crossing international borders, and the wildlife cannot be sold or otherwise transferred when traveling abroad.

Several commenters strongly supported this provision as a way to reduce the burden on pet owners and the U.S. Management Authority while supporting wildlife protection laws. One commenter suggested that, when the permittee no longer owns the wildlife, he or she should be required to provide information on the disposition of the wildlife, such as death or sale, at the time he or she returns the certificate. We agree and have revised the condition to include this requirement.

Pre-Convention specimen (section 23.45):

Under Article VII(2) of the Treaty, a specimen acquired before the provisions of CITES applied to the species is exempt from Articles III, IV, and V of the Treaty when a Management Authority issues a certificate. Resolution Conf. 13.6 provides guidance on determining when a specimen is considered pre-Convention. We propose to define the term “pre-Convention” in section 23.5 and clarify in this proposed section the general provisions that apply to the acceptance and issuance of pre-Convention documents. One commenter suggested we define “acquisition date.” Another suggested we define “pre-Convention date” separate from “pre-Convention” since the date is an additional piece of information required for a valid pre-Convention document. We did not adopt these suggestions, but did revise the definition of “pre-Convention” in proposed section 23.5 and the text in proposed section 23.23(e)(9) for clarity.

Before CoP13, the date that a Party considered a specimen to be pre-Convention varied depending on when the Party joined CITES and if it had taken a reservation on the species listing. At CoP13, the Parties agreed that

the pre-Convention date should be the same for all Parties and set it as the date on which the species was first listed in the Appendices. The Parties also agreed to advise holders of pre-Convention certificates to check with the importer or with the Management Authority of the country of destination whether the importing country would accept the certificate.

Before we can issue a pre-Convention certificate, the applicant must provide sufficient information for us to determine that the wildlife or plant (including parts, products, and derivatives) was removed from the wild or born or propagated in a controlled environment before the first date that CITES applied to the specimen. This information also is needed for products (such as manufactured items) or derivatives subsequently made from such specimens. If the specific acquisition date is unknown or cannot be proved, then the applicant should provide any subsequent and provable date on which the item was first possessed by a person.

The pre-Convention status applies to the specimen, not to when it was possessed by the current owner. The applicant can provide information to show the specific date the specimen was acquired, or if that specific date is not known, he or she can provide information to show that it was acquired prior to the date the species was first listed in CITES. The Treaty requires that, before issuing an exemption document, a Management Authority must be satisfied that a specimen was acquired before the date the provisions of CITES applied to it. We recognize that exact purchase or import records may not be available for some pre-Convention specimens and accept a wide range of information to show the pre-Convention status of a specimen. An applicant should state that the specimen is pre-Convention and document the origin to the best of his or her ability. If receipts or invoices are not available, applicants may provide other documents, such as photographs, catalogs, advertisements, or inventories that can attest to the origin of the specimen. For example, an antique dealer may not be able to provide the specific date an item was manufactured, but may be able to provide information that shows the item dates to the 16th Century.

Even antiques that are at least 100 years old that clearly qualify as pre-Convention must be accompanied by pre-Convention documents. One commenter suggested that we be flexible in evaluating the documentation for antiques and accept errors in the description of antiques. We note that the description of an item on a CITES document, whether an antique or not, needs to be accurate to ensure that the item being shipped is what was authorized. An error in a description may cause a delay in clearing a shipment or result in a shipment being detained or seized. An unintentional technical error would be considered in any forfeiture proceeding.

Another commenter thought the regulations should not require a person to trace ownership of antiques over the past 100 years. The general import regulations for antiques under the ESA are found in 50 CFR part 14. Except in rare situations, we do not require a person to show the sequential ownership of pre-Convention specimens including antiques. If a CITES species is also listed under the ESA and does not qualify under the ESA as an antique, we will ask for information on whether the specimen has been sold or offered for sale because an ESA species loses its pre-Act status when placed in commerce.

One commenter questioned whether plants obtained before CITES was ratified and their progeny (offspring), including divisions or seedlings, were exempt. The Treaty sets out a limited exemption for pre-Convention specimens, but requires that such specimens in international trade be accompanied by a CITES exemption document. This exemption does not include offspring of pre-Convention specimens, including plants grown from divisions and seeds. Article VII(2) of the Treaty, allows for a Management Authority to issue an exemption document when it “is satisfied that a

specimen

was acquired before the provisions of the present Convention applied to

that specimen

” [emphasis added]. Offspring of pre-Convention specimens do not meet this provision since they did not exist before the provisions of the Convention applied. However, plants grown under controlled conditions may be eligible for an exemption document as artificially propagated.

Further, we will no longer apply the definition of pre-Convention to cell lines whose originating line was established prior to the listing date of the species. These cell lines are continually growing and cells are harvested from growing cultures. Applicants who wish to export cell lines must comply with CITES requirements, including legal acquisition and establishment of the cell line. Cells grown in a controlled environment may be eligible for a CITES exemption document, such as a bred-in-captivity certificate.

Another commenter suggested that if the exemption did not apply to offspring of pre-Convention specimens, it would constitute a retroactive application of requirements. We disagree with the commenter's interpretation of the legal concept of “retroactive.” The provisions that apply to offspring of pre-Convention specimens do not apply to international trade that occurred before the effective date of the existing CITES regulations, only to subsequent trade.

One commenter expressed concern that we require proof that a specimen was acquired before the provisions of CITES applied to it since orchids have been gathered for cultivation for about 150 years. The commenter stated that, prior to CITES, few hobbyists, hybridizers, or commercial growers had reason to maintain records to support the legality of the original acquisition, and many orchid specimens were acquired over the years at auctions, as gifts, or in trade. We are puzzled by this comment since we have not had requests for pre-Convention certificates to export orchids. All orchids have been listed under CITES since July 1975, and we assume there is little international trade in pre-Convention specimens. We also note that this is not a change from the regulations that have been in place since 1977. Again we clarify that the offspring of a pre-Convention specimen does not qualify for this exemption.

One commenter said that, since virtually all who enter the plant trade started as amateur growers of plants, the failure to provide some means for documenting, for CITES purposes, these plants would cause a taking of the commercial productive value of the collection of every amateur. We emphasize that the provisions for pre-Convention in these regulations do not go beyond the terms of the Treaty. We merely are adopting the interpretation of the Parties. There is no taking of property, either as a matter of fact or law. We are not limiting trade, nor are we affecting the use or transfer of plants within the United States. For individuals to be eligible to trade in protected plants internationally, they need to follow the provisions of the Treaty, which is a multilateral agreement. In fact, meeting the requirements agreed upon by the Parties protects property from detention and seizure when in international trade.

One commenter suggested that the use of the word “qualifying” in the proposed regulations is confusing as it gives the impression that only certain Appendix-I species qualify for the exemption. To address this concern, we

revised the text to clarify that no CITES import permit is required for an Appendix-I specimen that meets the pre-Convention exemption.

One commenter asked us to add the term “manufactured items” to the list of what is pre-Convention under issuance criteria in paragraph (d)(1). We adopted this suggestion in the current proposal. Although a manufactured item is a subset of the term “product,” for some items, the date of manufacture into a product can help establish that the item qualifies as pre-Convention.

In 2000, we proposed to establish a voluntary registration of any inventory or stockpile of live specimens or parts, products, or derivatives when species are initially listed on the CITES Appendices. In this notice, we are not proposing to establish such a registration. Based on comments received, the purpose of such an inventory was confusing to the public. It also created another layer of regulation that is not needed to effectively issue pre-Convention certificates.

Registration of Appendix-I commercial breeding operations (section 23.46):

Article VII(4) of the Treaty provides that specimens of Appendix-I species bred for commercial purposes will be deemed to be in Appendix II for CITES document requirements. To clarify, a Management Authority may grant an export permit or a re-export certificate without requiring the prior grant of an import permit, thus allowing specimens that originate in a CITES-registered breeding operation to be traded commercially. The specimens are still listed in Appendix I and are not eligible for any exemption granted to an Appendix-II species or taxon, such as less restrictive provisions for personal and household effects.

The Parties recognize the potential abuse inherent in this exemption because it is difficult for inspectors to distinguish between specimens bred-in-captivity and those removed from the wild. They also recognize that captive breeding for commercial and conservation purposes is increasing. We propose to implement Resolution Conf. 12.10 (Rev. CoP13) and establish application procedures to allow an operation to become registered for each Appendix-I species maintained at the operation. The registration criteria would include whether the species qualifies as bred-in-captivity (see proposed section 23.63).

In May 2000, we proposed to publish a notice when a registration request is received and invite public comment. We now believe that publication of such notices in the

Federal Register

is unnecessary because Resolution Conf. 12.10 (Rev. CoP13) requires the CITES Secretariat to notify all Parties of all registration requests. If a Party objects to, or expresses concern about, the registration within 90 days from the date of the Secretariat's notification, the Secretariat refers the application to the Animals Committee. The Secretariat then communicates the recommendations of the Committee to the Management Authority of the Party that submitted the application and assists in the resolution of the identified problems. If the objection is not withdrawn, approval of the registration will require a two-thirds majority vote by the parties at the next CoP or by a postal vote. Publication of registration requests in the

Federal Register

would not only be duplicative of the review process embodied in Resolution Conf. 12.10 (Rev. CoP13), but would also result in delays in the processing of registration requests. Moreover, as noted earlier, no legal requirement exists for us to obtain public comments on CITES applications, and we already make determinations on whether specimens qualify as bred-in-captivity for other CITES documents without obtaining public comments.

Appendix-I wildlife from a registered breeding operation can be exported with an export permit under Article IV of the Treaty. An import permit is not required, and specimens can be used for primarily commercial purposes. To date, only four U.S. operations have chosen to complete the process of registering, and most U.S. commercial breeders are applying for permits under Article III of the Treaty. We propose to issue permits under Article III only in exceptional circumstances. This reflects the intent of CITES to prohibit trade in Appendix-I specimens for primarily commercial purposes when they do not qualify for an exemption to allow it. Thus, we encourage breeders to register their operations if they plan to trade in Appendix-I specimens internationally (see discussion in the preamble for proposed section 23.18).

One commenter recommended that closed bands should not be required on all birds and that the use of microchips should be allowed as an alternative. We agree and have revised the wording in this section to indicate that closed-banding is an option and that other marking methods may be used. If a microchip is used, we may, if necessary, 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.

Two commenters stated that what is to be included in a study of ecological risks is not clear. We have revised this text so that it no longer states that the applicant must conduct a study of the ecological risks. In this proposal we have added a criterion for registering an Appendix-I breeding operation which states that potential escape of specimens or pathogens from the facility may not pose a risk to the ecosystem and native species. The Scientific Authority would assess the potential impact of the commercial breeding operation on the environment in which it is located. Persons requesting registration of their breeding operation must provide information on whether there is a risk of escape of animals from the facility and identify specific measures that have been taken to prevent escape. Applicants should address possible risks should these measures fail, including the potential for the animals to be invasive if the species is not native to the area where the breeding facility is located. If the species involved is native to the area, a determination should be made whether the stock of the breeding operation is of a different genetic stock than the surrounding wild populations. The application must also demonstrate that disease will not be transmitted from the breeding operation to wild populations, either directly (contact among animals) or indirectly (disposal of animal waste, disposal of waste water, air exchange, or other means). We will not forward a request to the CITES Secretariat to register a breeding operation if the assessment of ecological risks indicates a potential for the breeding operation to result in harm to the surrounding environment.

One commenter stated that no system allowing expedited treatment of commercial facilities should exclude amateurs. Article VII of CITES has different procedures for commercial and noncommercial breeders of Appendix-I wildlife. CITES requires a Party to decide which type of CITES document to issue based on the purpose of the transaction and the ability of the exporter to breed the specimen in captivity. This proposed section outlines the registration requirements for operations that are breeding Appendix-I wildlife for commercial purposes. The requirements for CITES documents for entities that are breeding wildlife for noncommercial purposes are found in proposed section 23.41.

Exporting Appendix-I plants commercially (section 23.47):

The Parties recognize that the artificial propagation of plants is essentially different from captive breeding of wildlife and requires a different approach. Artificial propagation of native plants can provide an economic

alternative to traditional agriculture in countries of origin. By making specimens readily available, artificial propagation may have a positive effect on the conservation of wild populations by reducing pressure from collection, provided the parental stock was legally obtained in a non-detrimental manner.

Article VII(4) of the Treaty provides that specimens of Appendix-I plants artificially propagated for commercial purposes will be deemed to be in Appendix II for CITES document requirements. Just as for wildlife in the previous section, this means that a Management Authority may grant an export permit without requiring the prior grant of an import permit. The specimens are still listed in Appendix I, and they are not eligible for any exemption granted to an Appendix-II species or taxon. For example, seeds of Appendix-I cycads require CITES documents, even if from plants that were artificially propagated for commercial purposes and treated as if listed in Appendix II. These seeds require a CITES document upon export or re-export showing them as artificially propagated and as listed in Appendix I, but they do not require an import permit. They would not be exempt from CITES requirements, as are seeds of Appendix-II cycads, and they also would not be eligible for the personal effects exemption (see proposed section 23.15) if obtained outside a person's country of usual residence.

Two commenters thought that a registration system should be provided for facilities that propagate Appendix-I plants similar to the registration system for wildlife. We note that, at CoP9, the Parties adopted Resolution Conf. 9.19 (Rev. CoP13), which recommends guidelines on the registration of nurseries that e

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