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

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

In this final rule, we, the Fish and Wildlife Service (FWS), revise the regulations that implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), a treaty that regulates international trade in certain protected species. CITES uses a system of permits and certificates to help ensure that international trade is legal and does not threaten the survival of wildlife or plant species in the wild. In this final rule, we have retained most of the general information in the current 50 CFR part 23, but reorganized the sections and added provisions from certain applicable resolutions and decisions adopted by the CITES Conference of the Parties (CoP) at its second through thirteenth meetings (CoP2 - CoP13). The revised regulations will help us more effectively promote species conservation, continue to fulfill our responsibilities under the Treaty, and help those affected by CITES to understand how to conduct lawful international trade in CITES species.

DATES:

This regulation is effective September 24, 2007. Incorporation by reference of CITES's

Guidelines for transport and preparation for shipment of live wild animals and plants

and the International Air Transport Association Live Animals Regulations listed in this rule is approved by the Director of the Federal Register as of September 24, 2007.

FOR FURTHER INFORMATION CONTACT:

Chief, Division of Management Authority, Fish and Wildlife Service, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; telephone, (703) 358-2093; fax, (703) 358-2280; or email,

managementauthority@fws.gov.

SUPPLEMENTARY INFORMATION:

What Acronyms and Abbreviations Are Used in This Rule?

AECA African Elephant Conservation Act (16 U.S.C. 4201-4245)

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

ATA A combination of the French and English words “Admission temporaire/Temporary Admission” used in the name of a type of international customs document, the ATA carnet

CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora, also referred to as the Convention or Treaty

CBP Department of Homeland Security, U.S. Customs and Border Protection

CFR Code of Federal Regulations

CoP Conference of the Parties or a meeting of the Conference of the Parties

ESA Endangered Species Act of 1973, as amended (16 U.S.C. 1531

et seq.

)

FOIA Freedom of Information Act (5 U.S.C. 552)

FWS U.S. Fish and Wildlife Service

IATA LAR International Air Transport Association Live Animals Regulations

ISO International Organization for Standardization

USDA U.S. Department of Agriculture

WBCA Wild Bird Conservation Act  (16 U.S.C. 4901

et seq.

)

Background

CITES was negotiated in 1973 in Washington, DC, at a conference attended by delegations from 80 countries. The United States ratified the Treaty on September 13, 1973, and it entered into force on July 1, 1975, after the required 10 countries had ratified it. Section 8A of the ESA, as amended in 1982, designates the Secretary of the Interior as the U.S. Management Authority and U.S. Scientific Authority for CITES. These authorities have been delegated to the FWS. The U.S. regulations implementing CITES took effect on May 23, 1977 (42 FR 10465, February 22, 1977), after the first CoP was held. The CoP meets every 2 to 3 years to vote on proposed resolutions and decisions that interpret and implement the text of the Treaty and on amendments to the listing of species in the CITES Appendices. Currently 171 countries have ratified, accepted, approved, or acceded to CITES; these countries are known as Parties.

Proposed rule and comments received

: We published a proposed rule on April 19, 2006 (71 FR 20167), to revise the regulations that implement CITES. We accepted public comments on the proposed rule for 60 days, until June 19, 2006. In response to several requests from the public, we reopened the public comment period for an additional 30 days on June 28, 2006 (71 FR 36742). The 2006 proposed rule was a reproposal of revisions proposed on May 8, 2000 (65 FR 26664), which were not finalized. We summarized and addressed comments received on the 2000 proposal in the 2006 proposed rule. Please refer to the preamble to the April 19, 2006, proposed rule for a discussion of those comments.

We received 344 letters in response to the 2006 proposed rule (71 FR 20167). We received comments from individuals, organizations, and State natural resource agencies. Of the comments we received, 240 letters were from Bengal cat enthusiasts and breeders, 33 were from State natural resource agencies and regional associations, 21 were from falconers and falconer organizations, and 13 were from fur trapper organizations.

Resolution consolidation and incorporation

: Since 1976, the Parties have adopted 256 resolutions or revisions to resolutions. In 1994, the Parties began an effort to consolidate some of these resolutions. Some resolutions were no longer relevant, and others needed to be combined because several resolutions were adopted at different CoPs on the same or similar subjects. As a result of this process, there are currently 78 resolutions in effect. This rule incorporates certain of these consolidated resolutions, as appropriate and relevant to U.S. implementation of the Treaty. We cite the current numbers of resolutions since previous resolutions have been renumbered. This allows the reader to easily access the documents currently in effect on the CITES website (

http://www.cites.org

).

Stricter national measures

: Article XIV of the Treaty explicitly recognizes the rights of Parties to adopt stricter national measures to restrict or prohibit trade, taking, possession, or transport of any wildlife or plant species. Resolution Conf. 11.3 (Rev. CoP13) recommends that Parties make use of stricter national measures if they have determined “that an Appendix-II or -III species is being traded in a manner detrimental to the survival of that species” or is being “traded in contravention of the laws of any country involved in the transaction.” The United States has adopted stricter national measures, such as the ESA, Marine Mammal Protection Act (16 U.S.C. 1361-1407), and Lacey Act Amendments of 1981 (16 U.S.C. 3371-3378).

As outlined in the preamble to CITES, “peoples and States are and should be the best protectors of their own wild fauna and flora.” CITES recognizes the sovereign right of a country to regulate trade by passing stricter national measures to help in the conservation of species. Under CITES, an exporting country does not have a sovereign right to override an importing country's laws. When a Party sends information to the Secretariat on how its stricter national measures will affect trade in CITES

species, the Secretariat provides that information to other Parties through a notification. These notifications are available to the public on the CITES website (see § 23.7).

Plain language

: We used plain language in writing these regulations to make them clearer and easier to use. We believe the regulations use an appropriate level of language to lay out the technical requirements of a multilateral treaty.

General comments

: A number of commenters commended us for revising the U.S. CITES implementing regulations and also provided comments on specific sections of the 2006 proposed rule (71 FR 20167). We have addressed comments specific to a particular section in the appropriate section of this preamble. One State agricultural agency noted that, for the aquaculture industry in that State, our changes will help simplify and clarify the documentation process for dealing with CITES species.

One commenter expressed general opposition to international trade in wildlife. We appreciate the comment, but we will not address it here as it is outside the scope of this rulemaking.

Another commenter suggested changes to specific clearance procedures at a port of entry. Those comments were outside the scope of this rule, and we encourage the commenter to provide input when the FWS proposes changes to 50 CFR part 14, which includes the specific clearance procedures pertaining to the import, export, and transport of wildlife.

One commenter asked that we establish a “compliance service” where individuals could receive assistance in filling out and filing the required forms and documents. The commenter noted that the IRS provides such a service and that we should do the same. We believe that such assistance already exists on our website, where we provide information to guide applicants through the required agency permits, answer frequently asked questions, and direct them to the relevant offices for specific information. In addition, applicants can request information and permit application forms from the U.S. Management Authority and wildlife inspection offices. See § 23.7 for contact information.

One commenter argued that all applications for trade in Appendix-I and -II species should be subject to public notice and review. We disagree. Most of the applications we receive involve commonly traded Appendix-II species. As outlined in this rule, the FWS has established specific procedures for making the required determinations under CITES. We do not believe that requesting public comments on all applications involving CITES species would provide a greater level of insight or provide information that is not already available to us.

One commenter recommended adding a provision that would allow for disclosures to be made without penalty and offered the example of identifying merchandise that should have been declared but was not discovered until after the shipment was imported. We did not accept this recommendation because we believe such a provision would undermine our enforcement efforts and our obligations under CITES. We treat specimens traded contrary to CITES the same as other forms of illegally acquired goods. A specimen that has been traded contrary to CITES becomes contraband at the time it enters the jurisdiction of the United States.

One commenter argued that the regulations should allow for electronic submission of CITES information and payment of permitting fees. We recognize the need to keep pace with technology and are actively pursuing an electronic interface in partnership with other Federal agencies to streamline CITES procedures for the trade community. We are also working on an electronic permitting system that would allow submission of applications for CITES documents and applicable fees. Nothing in these regulations would prevent us from allowing electronic submission when we have the technology in place.

Section-by-Section Analysis

The following parts of the preamble explain the final rule, discuss the substantive issues of sections for which we received comments, outline significant changes from the 2006 proposed rule (71 FR 20167), and provide responses to public comments.

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

Definitions (§ 10.12):

We provide a definition of the United States to correctly reflect areas under U.S. jurisdiction. One commenter suggested that the term United States be replaced with regulated territory because of potential confusion due to more common meanings of the term. United States is the term consistently used in conservation statutes administered by the FWS to define the jurisdictional scope of the statute. We believe that consistency between the term used in these regulations and the term used by Congress will reduce, not increase, confusion.

Application procedures (§ 13.11)

: As noted in our final rule on FWS permit fees (70 FR 18311), we will not charge a fee to any Federal, tribal, State, or local government agency. Therefore, we will not charge a fee to a State or Tribe seeking to gain approval of a CITES export program. We also will not charge a fee to add an institution to the Plant Rescue Center Program because this is a voluntary program designed to place live plant specimens that have been confiscated upon import or export, and thereby helps the United States fulfill its CITES implementing responsibilities.

Thirty-five commenters, representing individual State natural resource agencies, State natural resource agency organizations, and trapper organizations, supported not requiring application fees to establish a CITES export program. One commenter opposed our decision not to charge a fee to government agencies seeking approval of a CITES export program. It is our longstanding policy not to charge a fee to Federal, tribal, State, or local governments. Another commenter stated that fees should be raised to reflect the actual value of the wildlife specimen in trade and that no applicant should be exempt from paying an application fee. Thirteen trapper organizations did not agree that small-scale trappers should be charged permit application fees. In addition, one commenter argued that publicly supported, nonprofit conservation organizations should be exempt from any application fees. The FWS fee structure is based on the nature of the activities being permitted, as well as the level of complexity and the time required to process applications and maintain active permit files. For further discussion of our application fees see 70 FR 18311, April 11, 2005.

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

This section requires an applicant to provide an address within the United States when applying for a permit. In a number of situations, a business or an individual in a foreign country may request a CITES document from us for a shipment the entity owns but is shipping out of the United States. We cannot issue the CITES document showing the exporter's foreign address for items that are leaving the United States. Foreign visitors who are requesting a CITES document may provide a temporary address, such as a hotel, since they do not permanently reside within the United States.

For commercial activities conducted by applicants who reside or are located outside of the United States, the name and address of the commercial entity's agent in the United States must be included. We consider any transaction

involving a seller and a buyer, or any retail or wholesale transaction that provides a valuable consideration in exchange for the transfer of a wildlife or plant specimen as a commercial activity. However, we do not consider a hunter who exports his or her personal sport-hunted trophy to be involved in a commercial activity under this section.

Two commenters agreed with these requirements, but one of them suggested that, for non-resident applicants who could only provide a temporary address, we should also require their permanent address in their country of residence, as well as a permanent U.S. address of an agent or attorney. We require a permanent U.S. address for the applicant's agent for commercial transactions. We do not require a foreign address for noncommercial transactions. However, most noncommercial transactions carried out by non-U.S. residents consist of personal effects or personally hunted trophies that are being sent to the individual's home, and the applicant's foreign address is typically included on the application.

One commenter asked that we clarify that the U.S. address does not need to be a domiciliary address or residence. For U.S. residents who are applying as individual applicants, the address they provide must be the physical address of their residence. In some cases, however, for permits for personal or household effects being held in the United States pending issuance of a permit, the U.S. address may be a relative, the storage facility, or the agent. For organizations or companies applying for a permit, we require the company's physical address where the records regarding the application are maintained.

One commenter recommended that the requirements of 50 CFR 13.12 be brought into compliance with CBP's Filing Identification Number (FIN) (19 CFR 24.5). We did not accept this suggestion. The CBP Filing Identification Number is associated with account-based import activities specific to the importing requirements of CBP. The application process carried out by the FWS is a transactional-based activity that requires the identification of both companies and individuals. In addition, we do not have access to CBP's database that contains the FIN data, and therefore we could not utilize the system on a daily basis, as would be required to carry out our permitting process.

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

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

CITES documents, however, do not cover an activity of a continuing nature and are considered void upon expiration. This section clarifies that a permittee may not use a CITES document once it has expired. For other permits of a continuing nature, however, we have retained the process that allows the permittee to conduct permitted activities during renewal if the conditions outlined in 50 CFR part 13 are met. One commenter supported this approach. Another commenter thought we should allow an extension of the period of validity of CITES documents after they have expired, while the renewal process is underway. The commenter did not believe that the Treaty or current resolutions support our policy not to allow extensions. We disagree. Article VI of the Treaty and Resolution Conf. 12.3 (Rev. CoP13) provide specific periods of validity for most permits and certificates. In addition, Resolution Conf. 12.3 (Rev. CoP13) states that, once a CITES document has expired, the permit or certificate is void. While the resolution does not address a period of validity for all of the certificates discussed, for consistency, we have established specific periods of validity for each type of CITES document (see § 23.54). CITES documents that have not been used may be reissued. However, permittees must contact us prior to the expiration date, return the unused permit, and give us sufficient time to review the reissuance request and issue a new permit or certificate.

Maintenance of records (§ 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, § 13.46 outlines the requirement that permittees who reside or are located in the United States, as well as permittees who reside or are located outside the United States but are conducting commercial activities within the United States, maintain records in this country. We received 31 comments in support of this change. One of these commenters also recommended that we establish a timeframe during which permittees must maintain records. A timeframe of 5 years is already codified in § 13.46. However, as discussed under § 23.34, since we must make specific findings based on information provided primarily by an applicant, it may be advisable to maintain records for longer than 5 years in some cases (see discussion on § 23.34).

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

This section puts into regulation the exemption under the ESA, section 9(c)(2), for import of CITES Appendix-II wildlife that is also classified as threatened under the ESA, when the taking and export meet the provisions of CITES and the import is not made in the course of a commercial activity. This ESA provision only exempts the import prohibitions; it does not exempt acquisition in foreign commerce in the course of a commercial activity. Therefore, we require both the acquisition and import to be noncommercial because we consider any transfer of a specimen in pursuit of gain or profit to be a commercial activity. Thus, a person who is importing a specimen under this provision must provide documentation to the FWS at the time of import that shows the specimen was not acquired in foreign commerce in the course of a commercial activity. This exemption does not apply to species that have a special rule in 50 CFR part 17.

Two commenters voiced their support for this section. Another commenter argued that the exemption for certain threatened species that are also listed in Appendix II is inconsistent with the ESA. As we discussed in the 2006 proposed rule (71 FR 20167), Congress provided this exemption, and we believe that this section accurately implements it.

One commenter suggested that we add a definition of “in the course of a commercial activity.” As noted by the commenter, commercial activity is defined in section 3 of the ESA. Therefore, we do not believe it is necessary to define the full term “in the course of a commercial activity.”

This same commenter suggested that a purchase for scientific use, such as an acquisition by a museum, should be covered by the exemption under 17.8(b) and that the exemption should apply to any specimen used for science as long as the collection and sale are legal in the country of origin. We disagree. The exemption under section 9(c)(2) of the ESA applies only if the importation is not made in the course of a commercial activity, regardless of who is commercializing the specimen. Many imports for scientific use are likely to meet the exemption, but the purchase of

a specimen for scientific use is likely to qualify as commercial and thus require issuance of an ESA permit prior to importation.

Two commenters asserted that the requirement for documentation is overly broad and suggested that the FWS describe the type of documentation that would be acceptable. Because of the wide variety of imports that may qualify, and to provide flexibility to the importer, we did not list what form of documentation would be required. We will accept any documentation from the importer regarding the acquisition of the specimen that shows that it was not acquired in foreign commerce in the course of commercial activity. Such documentation may include, for example: proof of a personal sport hunt, documents related to museum or zoological exchange, inheritance documents, or scientific collecting permits.

One commenter stated that requiring such documentation violates the exemption under section 9(c)(2) of the ESA. We agree that the exemption allows a qualifying specimen to be imported into the United States without first having obtained an ESA import permit, but it remains the burden of the importers to show that they qualify for the exemption, including by obtaining and presenting all required CITES documentation, fulfilling all document requirements under section 9(d), (e), and (f), and showing that the importation is not being made in the course of a commercial activity.

One commenter argued that the exemption should only apply when the importer can prove that both the acquisition of the specimen and the importation are noncommercial. We agree, and we require the importer to meet both criteria in § 17.8(b)(1). In § 17.8(b)(5), we specifically require documentation showing that the specimen was not acquired in foreign commerce in the course of a commercial activity. Importers of any wildlife specimens, whether CITES specimens or not, must show the purpose of import under general government importation requirements. We are able to determine from this documentation whether the import is in the course of a commercial activity. However, documentation showing the specimen was not acquired in foreign commerce does not typically accompany a shipment. Therefore, we specifically require that such documentation be provided to us.

Special rule for threatened crocodilians (§ 17.42(c)):

In accordance with this special rule, we allow meat of saltwater crocodiles (

Crocodylus porosus

) originating in Australia and of Appendix-II Nile crocodiles (

C. niloticus

) to be traded without tags, and we clarify that this includes all forms of meat. We do not believe that international trade in crocodilian meat poses a significant conservation risk, but we note that CITES documents still would be required for any meat shipments. The special rule prohibits import into the United States of live specimens and viable eggs of any threatened crocodilians without an ESA import permit.

One commenter disagreed with our assertion that international trade in meat of saltwater crocodiles originating in Australia and Appendix-II Nile crocodiles poses no significant conservation risk and could therefore be traded without tags. We note that the crocodilian product most common in international trade is skin and U.S. import data for 2002 - 2005 show no imports of saltwater or Nile crocodile meat. Therefore, we continue to believe that this type of trade does not pose a significant conservation threat. In addition, there is no CITES requirement for tagging of crocodilian meat.

The special rule includes reporting requirements for range countries. In our final yacare caiman (

Caiman yacare

) rule published on May 4, 2000 (65 FR 25867), we noted that the FWS depends primarily on range countries to monitor yacare caiman. To assist us in monitoring the status of yacare caiman, we require that the governments of range countries wishing to export specimens to the United States for commercial purposes provide a report every 2 years that includes the most recent information available on the status of the species. This information assists us in determining the current conservation status of the species and is used to determine if the species is recovering and may warrant delisting. We also have a section describing conditions under which trade restrictions can be applied to the import of yacare caiman from range countries, including the failure to submit the reports or failure to respond to requests for additional information.

Three commenters supported amendments to the special rule regarding reporting requirements for range countries of the yacare caiman in § 17.42(c). They urged us to include similar reporting requirements if additional crocodilian species are reclassified as threatened under the ESA and are included in the special rule. We will consider monitoring and reporting requirements for other crocodilians on a case-by-case basis, because the conservation needs may vary by species or population.

One commenter argued that we should require yacare caiman monitoring data to be submitted annually instead of biennially and should expand the list of the types of monitoring data required. We believe that the final rule to reclassify the yacare caiman (65 FR 25867, May 4, 2000) adequately justifies reporting requirements for range countries of the species.

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

This subpart describes our responsibilities under CITES.

Scope (§ 23.2):

This section consists of a table with a series of questions and answers to help people determine if CITES regulations apply to their proposed activities. Decisions involve whether a specimen is listed under CITES, is exempt from CITES, is involved in a type of international trade regulated by CITES, and was illegally acquired or traded in contravention of CITES.

The possession and domestic trade of legal specimens are not regulated by CITES unless the specimens had been traded internationally under specific conditions of a CITES document and the conditions still apply. The possession and domestic or international trade of illegally imported specimens, however, are prohibited. Further, any possession of offspring of illegal specimens is also considered illegal. A specimen that has been traded contrary to CITES becomes contraband at the time it enters the jurisdiction of the United States. If such a specimen makes its way into the United States, the individual or business holding or having control of the specimen has no custodial or property rights to the specimen and, therefore, no right to possess, transfer, breed, or propagate such specimens. Further, we clarify that intrastate or interstate movement of specimens traded contrary to CITES involves possession of unlawfully traded specimens and is, therefore, prohibited. We note that these prohibitions are not new with this final rule. The regulatory requirements for CITES specimens, including possession, have been in place since 1977, and the statutory prohibition has been in effect since July 1975.

More than 25 State fish and wildlife resource management agencies and regional fish and wildlife agency associations endorsed our inclusion of a series of questions to assist the regulated community in determining when CITES applies to a proposed activity and our clarification regarding intrastate and

interstate movement of specimens traded contrary to CITES.

One commenter expressed support for the provision making the possession of and trade in illegally acquired specimens and their offspring illegal and encouraged us to specify that requirement in more detail in the regulation. However, another commenter expressed concern regarding our position on the possession of and trade in offspring of illegally imported specimens. The commenter also was concerned about the possible harm to offspring caused by shipping them back to the country of origin. We continue to maintain that any possession of offspring of illegal specimens is considered illegal, and we will take appropriate action when we become aware of such situations. However, we consider the health and well being of a live specimen that has been confiscated or forfeited to us in determining whether to place it in a facility in the United States or return it to the country of origin.

Other applicable regulations (§ 23.3):

In this section we reference applicable regulations in other parts of subchapter B and title 50, since many CITES species are covered by one or more other laws. We also notify the public about the possible application of State, tribal, and local regulations. More than 25 State fish and wildlife resource management agencies and regional fish and wildlife agency associations endorsed the addition of a new paragraph notifying the regulated community of the additional requirement for complying with State, tribal, and local requirements when engaging in activities with CITES species.

Under Article XIV(1)(a) of the Treaty, each Party retains the right to adopt stricter national measures that regulate or prohibit the import, export, taking, possession, or transport of CITES species. More restrictive State or local laws that regulate or prohibit the import, export, or re-export of such species, or their parts, products, or derivatives, must be observed for CITES species that are not listed under the ESA. See

H.J. Justin & Sons, Inc.

v.

Deukmejian

, 702 F.2d 758 (9th Cir. 1983),

cert denied

, 464 U.S. 823. However, in instances where a CITES species is also listed as endangered or threatened under the ESA, any State or local law that would effectively prohibit the import or export of, or interstate or foreign commerce in, specimens of such species is void to the extent that such trade is authorized under the ESA, its implementing regulations, or any ESA permit or exemption. See 16 U.S.C. 1535(f);

Man Hing Ivory & Imports, Inc

. v.

Deukmejian

, 702 F.2d 760 (9th Cir. 1983). One commenter disagreed with this assertion and stated that it is contrary to the standard rules regarding the relationship between State and Federal laws. Our statement reflects the decision of the United States Court of Appeals for the Ninth Circuit in the referenced case, which held that section 6(f) of the ESA, together with an FWS regulation on African elephants (

Loxodonta africana

), preempted a State prohibition on trade in African elephant products by a trader who had secured all necessary Federal permits.

Definitions (§ 23.5)

: Whenever possible we define terms using the wording of the Treaty and the resolutions. Most defined terms are included in this section, but some less frequently used terms are defined in the section in which they are used.

Definition of “applicant”:

Although one commenter believed that we should define the term applicant here to be only a person who owns the specimen(s) subject to trade, we have not defined applicant in this part because the general permit regulations in 50 CFR 13.1 provide sufficient guidance. An applicant must have a valid connection to the transaction and be the person who is responsible for meeting the terms and conditions of the permit. When a broker, attorney, taxidermist, or other person applies for a permit on behalf of the owner of the specimen, he or she must establish a connection to the transaction through a contract or power of attorney and, along with the person represented, becomes the party responsible for meeting the terms and conditions of the permit.

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

We defined these two terms as they relate to the export and re-export of Appendix-I wildlife specimens. These definitions are the result of in-depth discussions by the Parties over the registration of commercial breeding facilities, which resulted in the adoption of Resolution Conf. 12.10 (Rev. CoP13). The Treaty provides in Article VII(4) that specimens of Appendix-I species bred in captivity for commercial purposes shall be deemed to be specimens of species included in Appendix II (see § 23.46). It also provides in Article VII(5) that specimens that are bred in captivity may be issued an exemption certificate (see § 23.41). Although the Treaty does not use the term “bred for noncommercial purposes” in paragraph 5, the Parties have agreed to use this term as the intended meaning of Article VII(5) because Article VII(4) addresses bred for commercial purposes. In Resolution Conf. 12.10 (Rev. CoP13), the Parties agreed to strict definitions for these two terms. Facilities that are breeding for commercial purposes must be registered to export specimens. Facilities that are breeding for noncommercial purposes must be participating in a cooperative conservation program with one or more of the range countries for the species.

One commenter sought clarification on whether an Appendix-I animal bred and raised on a U.S. game ranch, where efforts are being made to conserve the species, would constitute a specimen bred for commercial purposes. If the game ranch was conducting activities that would categorize the facility as commercial (e.g., sale, purchase, or exchange of animals resulting in an economic gain), then the animals bred on the ranch would be considered bred for commercial purposes. This would apply even if the game ranch were carrying out activities that benefited the species within its natural range, such as participation in a cooperative conservation program.

One commenter did not understand how any facility breeding Appendix-I species could engage in noncommercial breeding activities. The commenter believed that, due to the difficulty of distinguishing between commercial breeding and noncommercial breeding, the FWS should combine the two activities under a single bred-in-captivity definition and require that all facilities breeding Appendix-I or -II species become registered. We disagree. Since the Treaty does not prohibit or control the commercial breeding of Appendix-II species, there is no reason to establish a registration process for facilities breeding Appendix-II species. We are confident that the application review process established for the export of Appendix-II specimens is adequate to provide the necessary oversight and control of commercial breeding facilities for Appendix-II species. For Appendix-I species, the Treaty makes a distinction between commercial and noncommercial breeding, and the Parties have enacted resolutions to implement this distinction. Consequently, these regulations outline the criteria for determining when a breeding activity is commercial versus noncommercial, and provide a mechanism to register commercial breeding operations with the Secretariat. To eliminate any confusion and underscore the distinction between commercial and noncommercial breeding, we have added a sentence to the definition of “bred for commercial purposes” to clarify that any captive-bred Appendix-

I specimen that does not meet the definition of “bred for noncommercial purposes” is considered to be bred for commercial purposes. For the same reason, we have made a minor amendment to the definition of “bred for noncommercial purposes” to make it clear that to qualify as noncommercial each donation, exchange, or loan of the specimen must be noncommercial.

Definition of “commercial”:

Three commenters argued that the definition of commercial is too broad and that it is inconsistent with the definition of commercial activity in the ESA, which implements the Convention. We disagree. The new regulatory definition is consistent with the term defined in the ESA. The Convention regulates trade in listed species, and commercial activity under the ESA relates to “all activities of industry and

trade

, including,

but not limited to

, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling.” The definition of commercial in § 23.5 is also consistent with CITES Resolution Conf. 5.10, which explains that an activity should be considered commercial if its purpose is to obtain an economic benefit, including profit, and is directed toward resale, exchange, provision of a service, or other form of economic use or benefit. The definition is also consistent with the use of the term in Resolution Conf. 12.10. All CITES resolutions that address commercializing a specimen focus on use of the specimen in a manner that results in economic benefit.

A number of commenters provided specific examples of transactions that they thought should qualify as noncommercial, such as purchase of a specimen for scientific purposes at a yard sale or estate sale; purchase from a person who is not a collector; or sale by a museum. Determination of whether a specific use qualifies as commercial or noncommercial must be made on a case-by-case basis taking into consideration all of the facts and circumstances. However, we note that, consistent with Resolution Conf. 5.10, the determination is focused on the use of the specimen, not the nature of the transaction. Trade may involve the exchange of some funds to compensate a party for costs such as care and maintenance of a specimen, storage costs, or taxidermy work, which themselves do not necessarily make the trade commercial.

One commenter argued that for trade to be commercial, both parties must have commercial interests. We disagree. Economic enrichment can result when just the importer or just the exporter is obtaining an economic gain or benefit from the trade. The definitions of commercial and noncommercial in this part are used to distinguish trade and uses of specimens for which commercial uses must be limited from those for which commercial uses are not limited. The FWS cannot fulfill its treaty responsibilities unless it examines all ways in which a specimen can be commercialized.

One commenter argued that including a donation that is used as a tax deduction as commercial in essence amends the Internal Revenue Code and asserted that whether something is eligible for a tax deduction is not a matter for the FWS to decide. We are not interpreting or amending the Internal Revenue Code. We are not describing what may or may not be eligible as a charitable contribution, but rather, we are fulfilling our responsibility not to authorize uses of certain CITES specimens that are primarily commercial in nature. Although we believe that in some cases a tax deduction may qualify as an economic gain or benefit, we have removed the phrase, “or tax benefits” from this definition, to eliminate confusion. See also our responses to comments received on § 23.55.

One commenter also challenged that part of the definition that applies to the intended, as well as the actual, use of the specimen. Determinations under CITES cannot be limited to the current, immediate action being taken with the specimen, but may also require consideration of subsequent actions that the person intends to take at the time of the determination. For example, a person may be personally importing a specimen in a manner that at first appears to be noncommercial, but if there is evidence to show that the person intends to sell the specimen and obtain a profit once the specimen is located within the United States,then the purpose is commercial. The definition is written to make clear that the FWS looks at all actions that the person intends to take involving the specimen, not simply the current, most immediate action.

Definitions of “household effects” and “personal effects”:

One commenter supported our definitions of household effect and personal effect to mean only dead wildlife or plant specimens.

Definition of “introduction from the sea”:

We define this term with the language in Article I(e) of the Treaty. Over the last few years, a number of important events have occurred related to introduction from the sea. At CoP11 and CoP13, the Parties considered proposed resolutions on introduction from the sea and were unable to reach consensus on a definition. At CoP12, the Parties agreed to look at marine issues, including introduction from the sea, in consultation with the Food and Agriculture Organization of the United Nations (FAO). In May and June of 2004, FAO convened two Expert Consultations to consider introduction from the sea and other issues related to marine species covered by CITES. At CoP13, the Parties agreed to convene a workshop on introduction from the sea, taking into account the work done through FAO and the relevant documents and discussions from previous CoPs. The workshop was held in November - December 2005. The CITES Secretariat has prepared a document on introduction from the sea, based on discussions at the workshop, for consideration by the Parties at CoP14, to be held in June 2007. We recognize that the Parties may decide on an interpretation of introduction from the sea in the future, but in the meantime the regulations clarify when the prohibition applies, and when and what types of CITES documents are needed for international trade.

One commenter suggested that we adopt the definition of “the marine environment not under the jurisdiction of any State” agreed by the 2005 workshop. This definition, although agreed by the workshop, is still under discussion in CITES and will be considered by the Parties at CoP14. We believe it is likely that changes will be made to the definition at the CoP and that it would be premature for us to adopt a definition before it has been accepted by the Parties.

Definition of “parental stock”

: Based on the language in Resolution Conf. 9.19 (Rev. CoP13) on nursery registration and Resolution Conf. 12.10 (Rev. CoP13) on registration of operations that breed Appendix-I wildlife for commercial purposes, we use the term “parental stock” to mean the original breeding or propagating specimens that produced subsequent generations of captive or cultivated specimens. Two commenters supported our definition.

Definition of “precautionary measures”:

When there is uncertainty regarding the status of a species or the impact of trade on the conservation of a species we are cautious and act in the best interest of the conservation of the species in making decisions on CITES listings and permit findings. We define and use the term “precautionary measures” to describe this approach. While the definition is taken from the concept described in Annex 4 of Resolution Conf. 9.24 (Rev. CoP13), we use it in these regulations because it describes the way we have always

approached non-detriment findings and species listing decisions when there is uncertainty regarding the status of a species or the impact of trade on the conservation of a species. The use of precautionary measures in these instances is consistent with the intent of the Treaty, which is to protect species against over-exploitation. Several commenters supported our definition of precautionary measures. One asked that we provide additional clarification on what information we will use to determine whether or not to issue a permit. Section 23.33 addresses the process we use when evaluating an application. In addition, §§ 23.60, 23.61, and 23.62 address the processes for making the required findings under CITES. We direct the commenters to those sections for more detailed discussion on how we implement the use of precautionary measures.

Definition of “ranching”:

We have not defined this term. At CoP13, the Animals and Plants Committees (committees established by the Parties to provide technical support to the Parties and to the Secretariat) were tasked with looking at production systems, including the consideration of source codes, which include “R” for ranching. This work is still ongoing. One commenter suggested that we develop a working definition of ranching until the Parties come to an agreed definition. We believe that it would be premature, and result in additional confusion, to adopt a definition before the production systems discussions are concluded.

Definition of “readily recognizable”:

We base our definition of readily recognizable on Resolution Conf. 9.6 (Rev.). Two commenters supported our definition.

Definition of “sustainable use”:

We define this term as the use of a species in a manner and at a level that maintains wild populations at biologically viable levels for the long term. It is essentially the same definition used in 50 CFR part 15 to implement the WBCA. The wording has been slightly edited to be consistent with language used in these regulations.

We believe that sustainable use is the essence of a CITES non-detriment finding, and these regulations provide a clear, scientifically based definition of the term. An exporting country can make a finding of non-detriment only if it can show that a given level of harvest is consistent with the long-term viability of the species. This finding must be based on professionally recognized management practices and the best available biological information. The Parties adopted Resolution Conf. 12.8 (Rev. CoP13), which provides for review of significantly traded species, to ensure that countries exporting those species have made the appropriate findings and the export levels are sustainable. Countries with species subject to this review must demonstrate the scientific basis for the quantity of exports they are allowing. (See preamble discussion on non-detriment findings (§ 23.61)). Three commenters supported our definition of sustainable use.

One commenter believed that it was unnecessary for us to state in the preamble to the 2006 proposed rule (71 FR 20167) that sustainable use can include adaptive management but that, “adaptive management does not...imply that when there are gaps in information the assumption would be that trade would be sustainable.” Our intent is not to minimize the value of adaptive management. However, adaptive management is not the only information considered when determining if trade would be sustainable. When making non-detriment findings, we will consider all relevant biological and trade information (see § 23.61).

One commenter agreed with us that sustainable use is the essence of a CITES non-detriment finding. However, the commenter noted that not all permit applications are for activities that have an impact on wild populations. We agree and take this into consideration when making non-detriment findings. Even if a specimen is considered captive bred under the Treaty, certain conditions must be met, including that the founder stock was acquired legally and in a manner non-detrimental to the survival of the species (see §§ 23.46, 23.63).

One commenter stated that certain phrases in our definition could be interpreted in multiple ways, and asked us to provide additional discussion of several phrases, including “biologically viable,” “long term,” and “role or function in its ecosystem.” We do not believe that these phrases require additional clarification because they are concepts that are inherent to conservation and wildlife management. Furthermore, they are not defined in the Treaty or in resolutions agreed by the Parties. We use these concepts for guidance in making non-detriment findings.

Definition of “traveling exhibition”:

We revised the definition of traveling exhibition for clarity, in response to comments received (see preamble discussion for § 23.49).

Management and Scientific Authorities (§ 23.6):

Under Article IX of the Treaty, each Party must designate at least one Management Authority and one Scientific Authority. In the United States, the Secretary of the Interior is designated as the CITES Management Authority and Scientific Authority, and these authorities have been delegated by the Secretary and the Director of the FWS to different offices within the FWS. This section summarizes the major roles of these authorities in the United States. The roles include a wide range of activities, such as the issuance and denial of permits; making scientific and management findings; monitoring of trade and trade impacts; communication with the Secretariat and other countries on scientific, administrative, and enforcement issues; and evaluation of species' status and trade. Another role is to provide training and technical assistance to countries when possible (Resolution Conf. 3.4). Although other Federal agencies, as part of a larger federal involvement in international affairs, also play a role in CITES efforts, for example in communicating with the Secretariat and representing the United States at CITES meetings, they are not part of the Management Authority or the Scientific Authority for the United States.

A number of State fish and wildlife resource management agencies noted that the inclusion of this section summarizing the major roles of the Management and Scientific Authorities was very useful to the regulated community. Additionally, some of these commenters remarked on the need to clarify the process by which a non-Party designates competent authorities to fulfill the role of a Management and Scientific Authority to engage in international trade in CITES species. We decline to make a change in response to this comment because this section is intended to outline the roles of a Management Authority and a Scientific Authority rather than outline the process by which they are designated.

Contact information (§ 23.7):

The table in this section outlines the type of information available from the U.S. Management Authority, U.S. Scientific Authority, the FWS Office of Law Enforcement, APHIS, CBP, and the Secretariat, and the different ways you can contact each office. APHIS is the contact office for information on plant clearance procedures even though the formation of CBP split CITES responsibilities for import and export of plants. CBP inspects and clears shipments of dead CITES plant materials being imported into the United States and live plants being imported from Canada at a designated border port. CBP also identifies and regulates CITES materials in passenger baggage, including live plants. APHIS

continues to inspect and clear shipments for the export and re-export of live and dead plants, and the import of live plants, except for live plants being imported from Canada at a designated border port.

One commenter noted the absence in this section of the contact information for the appropriate office in the U.S. Department of Agriculture for live animal clearance procedures. Another commenter suggested that we include contact information in this section for APHIS Veterinary Services, National Center for Import and Export (NCIE), and the Centers for Disease Control (CDC) because imports of live wildlife and wildlife products may also be regulated by these offices. The commenter pointed out that this information would be useful to the large number of pet bird owners who travel into and out of the United States with their pet birds. Since neither NCIE nor the CDC has direct responsibility for the inspection or clearance of shipments of live CITES specimens, we have declined to include their contact information in this section.

Information collection (§ 23.8):

Each information collection, including each application form, that we use must be reviewed and approved by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501

et seq.

). These information collections undergo review every 3 years. This process gives the public an opportunity to provide input concerning the amount of time it takes to complete the forms and reports and to prepare the information requested. One commenter mistakenly thought that our estimate for the amount of time it takes to complete an application was an estimate of the length of time it takes to obtain a permit.

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

In this subpart, we detail the activities that are prohibited, circumstances when exemptions may apply, and requirements for international movement of specimens. CITES uses a system of documents to ensure that trade in protected species is legal and does not threaten the survival of wildlife or plant species in the wild. The Treaty outlines standardized information that must be included on these documents, and based on experience in inspecting shipments and enforcing CITES, the Parties have adopted a number of resolutions to refine the types of information that need to be included on documents for Parties and non-Parties.

Prohibitions (§ 23.13):

This section implements the international trade prohibitions under CITES. We list introduction from the sea separately from import to clarify that CITES treats these activities differently. We include the phrase “engage in international trade” in the list of prohibitions to clarify that international trade in specimens in violation of these regulations by any person subject to U.S. jurisdiction is prohibited even if specimens are not actually imported into or exported from the United States.

The regulatory language is derived from the language in section 9(c)(1) of the ESA, which makes it unlawful for any person subject to the jurisdiction of the United States to engage in trade contrary to the provisions of CITES. The ESA does not limit this prohibition to import into or export from the United States, but further requires U.S. citizens, and others subject to U.S. jurisdiction, engaging in trade outside of the United States to abide by CITES requirements as a matter of U.S. law. Although this activity may be difficult to detect, we will take enforcement action when appropriate.

Three commenters expressed their support for the clarification in § 23.13 that trade in violation of the regulations by a person subject to U.S. jurisdiction is prohibited even if the specimen is not imported into or exported from the United States. They noted that this will ensure that actions by U.S. citizens do not undermine the purposes of CITES outside the United States. One commenter opposed this part of the section, stating that it was contrary to elemental principles of national jurisdiction to hold a U.S. citizen legally responsible for conducting an activity outside the United States that is a violation of U.S. law when the activity is consistent with the law of the foreign country.

As long as a U.S. citizen engages in trade in a CITES specimen outside the United States consistent with all the requirements of CITES and the foreign countries' domestic laws implementing CITES, it would not be a violation of U.S. law. Section 9 of the ESA makes clear that citizens of the United States have a responsibility to comply with all applicable CITES procedures when they engage in trade in CITES specimens outside the United States. Given that 171 countries are parties to CITES, a U.S. citizen trading a CITES specimen between two foreign countries is likely to need CITES documentation from one or both of those countries. Failure to obtain and present the required CITES documentation would be a violation of the ESA.

One commenter was concerned with our response in the 2006 proposed rule (71 FR 20167) to a previous comment that an applicant's failure to provide adequate documentation showing legality of a specimen, while not necessarily evidence that the specimen was traded contrary to CITES, might prevent us from making the required findings or being able to issue the necessary CITES documents for subsequent import, export, or re-export. The commenter suggested that the FWS establish procedures or describe the kinds of evidence we will accept in lieu of positive documentation.

We have not specified the type of documentation that an applicant must present in order for us to make necessary findings and issue the required documents because it is not possible to describe the full variety of information that could be used to show that a proposed activity is consistent with CITES requirements. In each case, the applicant must present enough information to allow the FWS to make the required determination, but the source of this information and the level of detail needed to make the finding will vary. See § 23.34 for more detail.

Personal and household effects (§ 23.15):

Article VII(3) of the Treaty provides for the import, export, or re-export of specimens that are personal or household effects without CITES documents under certain circumstances. We clarified the current regulations (§ 23.13(d)) based on our experience in administering the Convention and Resolution Conf. 13.7. This section details the circumstances under which a person may travel with personal items of CITES wildlife and plants worn as clothing or accessories, or contained in accompanying luggage without CITES documents. It also details how a person may move personal items of CITES wildlife and plants from one country to another as part of a change of residence. We defined personal effect and household effect in § 23.5. We clarified that we consider qualifying tourist souvenirs to be personal effects.

Six commenters supported, in general, the clarification regarding personal and household effects, and several of those commenters supported specific provisions regarding Appendix-I and live specimens. They believed the clarification would help prevent abuses of the personal and household effects exemption. Three commenters, however, urged us to ease restrictions on individuals traveling with legally acquired CITES species. Although the commenters did not provide specific suggestions, we note that these regulations already provide an

exemption from CITES documentation for many individuals traveling with legally acquired CITES specimens. Another commenter believed that the trade in specimens under the exemption for personal and household effects creates a loophole that may adversely impact imperiled species. We disagree that this exemption has an adverse effect on listed taxa. As noted above, Article VII(3) provides for this exemption under certain circumstances, and the Parties have adopted additional guidelines through resolution.

In Resolution Conf. 13.7, the Parties agreed not to require CITES documents for personal or household effects of dead specimens, parts, products, or derivatives of Appendix-II species unless a Party requires a CITES document. Parties are to notify the Secretariat if they require CITES documents for personal and household effects, and the Secretariat will maintain a list on the CITES website (see § 23.7). Importing countries would generally assume that an export permit is not required if the exporting country had not notified the Secretariat otherwise. For species covered by the Lacey Act Amendments of 1981, however, the United States requires an export permit if such a permit is required by the other Party involved in the trade, even if the Party had not notified the Secretariat of the requirement. It is the responsibility of the importer to consult with the exporting country to determine whether an export permit is needed in such instances. One commenter believed the United States should impose stricter measures and require CITES documents for all personal and household effects. Such a requirement would be burdensome and provide little conservation value in most cases. Therefore, we declined to make a change based on this suggestion. However, these regulations allow for stricter measures under other U.S. laws (e.g., the ESA) for those species that warrant greater scrutiny. We believe this will allow for greater oversight when there appears to be a conservation value in doing so.

One commenter requested that we provide clarification regarding the restrictions imposed by the Lacey Act Amendments of 1981 and notify other CITES Parties of this requirement. The commenter also argued that the Lacey Act covered all foreign CITES species. We state in § 23.15(b) that the personal and household effects exemption does not apply if the country prohibits or restricts the import, export, or re-export of the item. In addition, we state that a personal or household effects shipment must be accompanied by any document required by a country under its stricter national measures. Both of these restrictions are imposed upon shipments because of our obligations under the Lacey Act Amendments of 1981 to provide support for other countries' stricter measures, and actions may be taken based upon information received from those countries about such restrictions.

For certain species, the Parties also agreed to numerical limits of specific types of specimens that qualify as personal and household effects. These specimens include sturgeon caviar, seahorses, crocodilian products, giant clam and queen conch shells, and cactus rainsticks. We note that if someone wants to import, export, or re-export more than the quantity designated in the regulations, the specimens no longer qualify for the personal effects exemption, and they must be accompanied by a valid CITES document for the entire quantity.

One commenter supported our efforts to enforce the quantity limitations and agreed that when the quantities exceed the limit, a CITES document is required for the entire quantity.

We exclude live wildlife and plants (including eggs and non-exempt seeds) and most Appendix-I specimens from the exemption. The drafting history of CITES, as well as significant debate that occurred at CoP4, clearly supports the view that this exemption applies only to dead items, such as clothing or jewelry, that are for personal use and are not for resale. In addition, few countries allow the import or export of Appendix-I specimens, including personal pets, without CITES documents. In the United States, many Appendix-I species are also listed under the ESA and other laws that do not provide an exemption for personal or household effects. Therefore, to assist in the enforcement of the Convention and to reduce the risk to Appendix-I species in the wild, and so not to create conflicts with U.S. laws, we require CITES documents for all Appendix-I specimens, except for certain worked items made from African elephant ivory (see § 23.15(f)). One commenter requested clarification as to whether Appendix-I species could qualify for the personal or household effects exemption, and if so, indicated that they should only be pre-Convention. Section 23.15(d)(2) states that no specimens from an Appendix-I species are included except for certain worked African elephant ivory. Section 23.15(f) on worked African elephant ivory states that the ivory must be pre-Convention.

We clarify that personal effects must be personally owned by the traveler for exclusively noncommercial purposes, the quantity and nature be reasonably appropriate for the purpose of the trip or stay, and either be worn as clothing or accessories or be part of accompanying personal baggage. We believe this requirement provides additional assistance to inspectors at the port when determining whether items are personal effects or are commercial items that a person is attempting to import without CITES documents under the exemption.

We have encountered a number of instances, both in the United States as well as abroad, when individuals have had souvenirs or other items seized when these items were mailed or shipped to them. Although these could be considered items for personal use, the CITES exemption does not apply unless the specimens accompany the individuals.

We clarify that household effects must be personally owned items that are part of a noncommercial household move. A shipment may contain only items acquired before the individual moves. It may not include items purchased, inherited, or otherwise acquired after the person has moved, even though the household goods have not yet been shipped.

We understand that sometimes it is not possible to ship household goods all at one time. Thus, we allow a person to make as many shipments as needed to accomplish the move as long as they occur within 1 year of the person's change in residence. A person is not precluded from shipping his or her household effects after 1 year, although such a shipment would require the appropriate CITES documents.

Two commenters believed that allowing 1 year after a move from one country to another to import or export household effects was too long, and allowed for potential abuse of the system. Based upon years of experience with CITES household moves, which have previously had no timeframe under U.S. regulations, we believe the 1-year timeframe is reasonably appropriate for completing the shipment of household goods to a new residence while preventing abuse of the exemption.

The AECA and ESA include stricter U.S. legislation concerning international trade in African elephant ivory. We allow U.S. residents to travel out of and return to the United States with pre-Convention worked African elephant ivory as personal or household effects under certain conditions, including that the items are registered. Registration consists of obtaining a U.S. CITES pre-Convention certificate, FWS Wildlife

Declaration (Form 3-177), or CBP Certificate of Registration for Personal Effects Taken Abroad (Form 4457). This exemption is limited to ivory already owned in the United States and is not a special opportunity for trade. Upon re-import, travelers must show records that the ivory is pre-Convention and that they registered it before leaving the United States. The exemption does not include items that are purchased while abroad or intended as gifts. We adopted the same definition of raw ivory as found in the special rule concerning African elephants in 50 CFR 17.40(e), which is similar to the definition found in Resolution Conf. 10.10 (Rev. CoP12). Individuals should contact the Management Authority in the country of their destination to find out about its requirements for African elephant ivory.

One commenter did not support this exemption because of concerns regarding the illegal trade in ivory. The commenter believed the exemption sets a bad precedent and should be deleted. We believe that the measures we have put in place, including registration of personally owned pre-Convention worked African elephant ivory before leaving the United States, provide sufficient safeguards.

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

International trade in these specimens is exempt from CITES requirements under certain circumstances. We consider samples of urine and feces to be wildlife byproducts, rather than parts, products, or derivatives. We differentiate between DNA extracted directly from blood or tissue samples and synthetically derived DNA. DNA extracted directly from blood and tissue samples must comply with all CITES permitting requirements. We do not believe that trade in urine, feces, and synthetically derived DNA samples will adversely affect the conservation of, or effective regulation of trade in, CITES species and their parts, products, or derivatives.

At CoP12 and CoP13, there were proposals to annotate the Appendices to exempt these types of samples. The proposals were withdrawn. It should be noted, however, that some Parties do not agree that these specimens should be exempt from CITES controls. If a country requires CITES documents, we will process an application for these specimens.

Three commenters generally supported and two commenters generally opposed the exemption for urine, feces, and synthetically derived DNA in § 23.16. One commenter agreed that urine and feces should be exempt, but wanted to see a statement to ensure that collection methods for urine or feces posed no harm to listed species. Two commenters expressed concern about the exemption because of the potential need to capture and restrain listed species to collect samples. We have exempted urine and feces from CITES requirements and will therefore not require a statement on collection method. However, as noted in the 2006 proposed rule (71 FR 20167), we believe that it is important that researchers collect samples in a manner that does not harm the wildlife and complies with the laws of the country where the collection occurs. Researchers should contact the foreign Management Authority or other relevant wildlife authorities to obtain information on collection and export requirements prior to collection of urine or feces. Another commenter endorsed the exemption and described non-CITES restrictions placed on U.S. researchers regarding collection of these samples. The commenter added that such research oversight is also prevalent in other countries, often through legislation.

One commenter said that the United States should resist promulgating regulations that are more lenient than those agreed to by the Parties and noted that there is no resolution that provides for this exemption. In the 2006 proposed rule (71 FR 20167), we noted that the Parties have not agreed on whether urine, feces, or synthetically derived DNA are regulated by CITES. Where there is a lack of clarity or no agreement, the United States is left to make its own interpretation of the provisions of the Treaty. In our view, these are byproducts and are not recognizable parts or derivatives as defined in Article I of the Treaty. The commenter was also concerned that this exemption could lead to illegal trade in non-synthetic DNA labeled as synthetically derived DNA. We note that this exemption reflects a practice of the FWS that has been in effect since 1994. We have received no information to indicate that this practice has led to an increase in illegal trade in falsely declared DNA, nor do we expect this to occur in the future.

One commenter asked whether ambergris was covered under the provisions of either CITES or the MMPA. Because it is a byproduct, we do not consider ambergris to be covered by CITES provisions. The applicability of MMPA provisions to trade in ambergris is outside the scope of this rule.

Diplomats and other customs-exempt persons (§ 23.17):

CITES Decision 9.15 urges the Parties to remind their diplomatic missions, their delegates in foreign countries, and their troops serving under the flag of the United Nations that they are not exempt from the provisions of the Convention. In these regulations we remind all persons who receive duty-free or inspection exemption privileges that CITES specimens traded internationally must meet the requirements of CITES and these regulations. One commenter strongly supported the requirement for CITES documentation even if a person receives duty-free or inspection waiver privileges. The commenter further emphasized that U.S. officials have the legal authority to confiscate specimens of CITES species if a diplomat attempts to import or export them, or transit through the United States with them, without appropriate documentation.

Required CITES documents (§§ 23.18-23.20):

Articles III, IV, and V of the Treaty outline the types of documents that must accompany Appendix-I, -II, or -III specimens in international trade. Article VII and Article XIV of the Treaty recognize exemptions for certain specimens, such as those that qualify as pre-Convention, bred in captivity, or artificially propagated. Generally, these specimens must be accompanied by CITES exemption documents. The regulations remind people who trade in wildlife and plants to check with the Management Authorities of all countries concerned to determine their requirements before importing, introducing from the sea, exporting, or re-exporting CITES specimens.

We organized the information on what types of CITES documents are required into two decision trees and two tables. The decision trees and tables should make it easier for importers and exporters to understand what type of document is needed for a shipment. They refer the user to the section in the regulations that explains the application procedures, general provisions, issuance and acceptance criteria, and conditions for each type of document. One commenter agreed with this approach and stated that the decision trees and tables in these sections were extremely useful.

One commenter supported the statement in § 23.20(f) that an introduction-from-the-sea certificate must be obtained before conducting the proposed activity and the clarification that international trade following introduction from the sea is considered an export, not a re-export.

Another commenter expressed concern that the document requirements for Appendix-III specimens that originate in a country other than the listing country are not clear. We have addressed this comment under the preamble discussion pertaining to certificates of origin (§ 23.38).

Export of Appendix-I wildlife (§ 23.18):

The decision tree clarifies that international trade in Appendix-I wildlife may not be for commercial purposes when permits are issued under Article III of the Treaty. Article II of the Treaty states that Appendix-I specimens “...must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.” The Parties have agreed that Appendix-I wildlife specimens should not be traded for commercial purposes unless the specimens originated from a CITES-registered commercial breeding operation. In the past, the FWS has allowed commercial breeders of Appendix-I wildlife to export specimens that have been sold to individuals outside the United States provided that the Management Authority of the importing country can make a not-for-primarily-commercial-purposes finding and issues an import permit. After review of this type of trade, we do not believe that Article III of the Treaty was intended to allow such commercial trade. Thus, we no longer allow the use of Article III of the Treaty to export Appendix-I wildlife unless the export is for noncommercial purposes. We also allow the export of Appendix-I wildlife that qualifies for an exemption under Article VII(4) and (5) as bred in captivity only if the specimen was bred at a CITES-registered breeding operation or was bred for noncommercial purposes, respectively. Other captive-bred Appendix-I wildlife will be given a source code “F,” rather than a “C,” and the export will be allowed only if the export is for noncommercial purposes and an import permit has been granted.

One commenter thought that the use of the double negative in the decision tree for export of Appendix-I wildlife in § 23.18 leads the casual reader to assume that noncommercial trade is not allowed. The purpose of the decision tree is to walk the reader through the requirements for trading in Appendix-I specimens under different scenarios, and it is important to read it through in full.

Two commenters strongly supported the requirement that to qualify for an exemption under Article VII(4) and (5) as bred in captivity, the specimen must have been bred at a CITES-registered facility or bred for noncommercial purposes. However, one of these commenters questioned how the terms “not primarily commercial” and “noncommercial purposes” were used. See the discussion regarding the definition of “commercial” in § 23.5.

Reservations (§ 23.21):

Articles XV, XVI, and XXIII of the Treaty allow a Party to take a reservation on a species listing in Appendix I, II, or III. Generally, a reserving Party is treated as a non-Party with respect to trade in the reserved species. Countries that choose not to recognize a listing and take a reservation may continue trading in the species without CITES documents with other Parties that have taken the same reservation or with non-Parties, provided such shipments do not transit a Party country. Trade with Parties that have not taken the same reservation requires CITES documents.

This section emphasizes what types of documents are required from Parties that have taken a reservation on a species listing. We incorporated Resolution Conf. 4.25, which recommends that, when a species is newly listed in Appendix I or is transferred from Appendix II to Appendix I, Parties that take a reservation issue a CITES document and treat the species as if it were listed in Appendix II, rather than not listed, when trading with other reserving Parties or non-Parties. This provision should promote the conservation of species listed in Appendix I because the reserving Party would continue to issue CITES documents based on legal acquisition and non-detriment findings, and report such trade in its annual report. We also incorporated Resolution Conf. 9.7 (Rev. CoP13), which clarifies the requirements in the Treaty that a shipment containing specimens of CITES species traded between non-Parties or reserving Parties or between a non-Party and a reserving Party must be accompanied by CITES documents if it transits a Party country before reaching its final destination.

We explain how a person can provide relevant information and request that the United States consider taking a reservation. Additionally, we note that if the United States entered a reservation to the listing of a species in Appendix I, we will require a CITES document that meets Appendix-II permit criteria for international trade in specimens of that species. To date, the United States has not taken a reservation. Entering a reservation would do very little to relieve importers in the United States from the need for foreign export permits because the Lacey Act Amendments of 1981 make it a Federal offense to import into the United States any animal taken, possessed, transported, or sold in violation of foreign conservation laws. If the foreign country has implemented CITES through its domestic legislation and has not taken a reservation with regard to the species, the United States would continue to require CITES documents as a condition of import. A reservation by the United States also would provide exporters in this county with little relief from the need for U.S. export documents. Unless the receiving country had entered the same reservation or was a non-Party, U.S. exporters would continue to be required to obtain CITES-comparable documents because the Parties have agreed to trade with non-Parties and reserving Parties only if they issue permits and certificates that substantially conform with CITES requirements and contain the required information outlined in Resolution Conf. 9.5 (Rev. CoP13).

One commenter argued that the United States should prohibit all trade in Appendix-I species involving non-Parties or Parties with a reservation if that trade involves a U.S. citizen or if the specimen is to be imported into, exported from, or otherwise transit a U.S. port. We believe that this comment is adequately addressed in the 2006 proposed rule (71 FR 20167), and refer the commenter to that document for further clarification.

In-transit (§ 23.22):

Due to limited transportation routes and schedules, exporters and re-exporters may not always be able to ship specimens from one country directly to another without transshipping them through intermediary countries. Shipments of sample collections may transit a number of countries before returning to the originating country. Article VII(1) of the Treaty provides an exemption for specimens that are in transit through a country while the specimens remain under customs control. We define an in-transit shipment as the transshipment of any wildlife or plant through an intermediary country when the specimen remains under customs control and meets either the requirements of this section or the requirements in § 23.50 for sample collections covered by an ATA carnet. In-transit shipments, other than sample collections (§ 23.50), may stay in an intermediary country, including storage in a duty-free, bonded, or other kind of warehouse or a free-trade zone, only for the time necessary to transfer the specimens to the mode of transport used to continue to the final destination.

In 1983, the CoP recognized the potential for abuse of the in-transit provision, such as when importers claimed the exemption and delayed shipment of the transiting specimen while they found a buyer in a foreign country. In 1989, the CoP noted that, if valid CITES export documents were required to accompany shipments

through intermediary countries, Parties could discover illegal trade by drawing attention to undocumented shipments. The inspection of in-transit shipments was recommended in 1992. Resolution Conf. 9.7 (Rev. CoP13) consolidates the earlier resolutions concerning in-transit shipments.

These regulations reflect the recommendations of the CoP to prevent misuse of the in-transit exemption. A copy of the valid original document may be used for in-transit shipments. However, transshippers should be aware that, if shipments are not accompanied by an original CITES document, intermediary countries could delay movement of the shipment while they determine whether a copy is an accurate copy of the original valid document. If we have reason to question an accompanying copy, we will contact the Management Authorities in the countries of export or re-export and final destination.

The CITES document must designate the name of the importer in the country of final destination. The shipment must also be accompanied by a copy of a valid import permit for Appendix-I specimens, where required, and transportation routing documents that show that the shipment has been consigned to the importer listed on the CITES documents.

A shipment that contains specimens of CITES species protected under other U.S. regulations, such as migratory birds, bald and golden eagles, injurious wildlife, endangered or threatened species, or marine mammals, and arrives in the United States before continuing on to another country is considered an import and must meet all import requirements.

One commenter stated that the regulations should require a “firmer control of original CITES documents by carriers.” The commenter suggested that the carrier should permit the shipment to be held at the destination for no additional charge when the documents are lost by the carrier. The scope of these regulations does not address how carriers control shipping documents or the charges that are assessed by carriers for storage of shipments pending clearance. One commenter suggested that we include a statement that all in-transit wildlife shipments of CITES species must comply with IATA regulations. As stated in § 23.26, all shipments, including in-transit shipments, must meet the IATA requirements. Therefore, we believe it is unnecessary to restate that in-transit shipments must comply with the humane transport requirements.

Required information on CITES documents (§ 23.23):

This section details what information must be included on CITES documents. It applies not only to documents issued by the United States, but also to those issued by other Parties and non-Parties. Article VI of the Treaty provides basic requirements for CITES documents for import, introduction from the sea, export, and re-export. At the first CoP, the Parties recognized the importance of having standardized documents. They also recognized that the process of developing the standards would be a continuous one. The resolution on permits and certificates has been revised at CoPs 2, 3, 7, 9, 10, 11, 12, and 13. The resulting comprehensive resolution (Resolution Conf. 12.3 (Rev. CoP13)) provides guidance on all aspects of CITES documents.

Two commenters had concerns regarding our response in the preamble to a comment stating that “documents that do not contain the required information may be considered invalid and rejected by any Party.” One commenter requested clarification of specifically what would trigger a rejection by the FWS, and the other commenter indicated that the statement was too ambiguous and left too much discretion to the port official. Section 23.23 of the rule details the information required on a permit, and § 23.26 provides guidance on when we consider a U.S. or foreign CITES document to be valid.

Most of the information in this section is presented in a series of tables, organized alphabetically by required information, code, or type of document. This format should help those shipping and receiving specimens to understand what information is needed on CITES documents. A number of commenters appreciated the inclusion of this section, and stated that it would provide a “valuable addition to the regulated community.”

CITES forms (§ 23.23(b)):

This section states that CITES documents issued by a Party must be on a form printed in one or more of the three working languages of CITES (English, French, or Spanish). One commenter stated that, to ensure that our customs and wildlife inspectors are able to understand all statements made on the face of a CITES document, we should require that all CITES documents for shipments coming into the United States be printed in English only. Similarly, the commenter stated that each Party should designate one of the three working languages in which all CITES documents accompanying shipments into that Party's country should be printed. While we agree that having English as the only language appearing on incoming documents would be easier for our inspectors, CITES allows for documents to be printed in any of the three working languages and we cannot regulate the activities of foreign countries through our domestic regulations.

Required information (§ 23.23(c)):

One commenter raised a concern that, while the customs declaration label that is required on the outside of a container of CITES specimens moving from one registered scientific institution to another registered scientific institution (§ 23.48(e)(5)) may constitute a CITES document, it is unlike other CITES documents with regard to the information it must contain. We agree with the commenter that, like phytosanitary certificates, the customs declaration label must contain specific language and information that is not the same as what is required on other CITES documents. We have amended the language in § 23.23(c) to exclude these labels.

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

Although a suggestion was made after we first proposed these regulations in 2000 to require that the air waybill or bill of lading information appear on the face of CITES documents, we declined to make this mandatory because the specific information is not always known at the time the CITES document is validated. One commenter on the 2006 proposed rule (71 FR 20167) supported this approach, agreeing that such information is not always available.

Dates (§ 23.23(c)(4)):

Over the years, we have received many questions about the “valid until” date. In this final rule, we clarify that the validity of a document expires at midnight (local time at the place of presentation) on the date indicated on the document. All activities, including but not limited to transport and presentation for import, must be completed before that time. One commenter expressed a concern that, due to situations beyond an importer's control, such as delayed transport or prolonged customs procedures, shipments may not arrive prior to the expiration date of a document. The commenter argued that, if an importer allows a reasonable period of time for the shipment to arrive in the United States, the documents should be accepted regardless of the expiration date. We cannot accept this suggestion. The Treaty establishes the period of validity for some documents, and the Parties, through resolution, have established a specific time period for which other documents are valid. We strongly urge importers and exporters to

be aware of the expiration date of their documents and to request replacement documents if they do not believe that the shipment can be completed before the document expires.

Humane transport (§ 23.23(c)(7)):

We require that CITES export and re-export documents for live wildlife contain a specific condition that the document is only valid if the transport complies with certain humane transport standards. One commenter indicated that three sections (§§ 23.23, 23.26, 23.36) do not contain the same language with respect to humane transport. The commenter suggested the language used in § 23.36 should be used in all sections because it reiterates CITES language. We declined to make a change based on this suggestion because each section has a different purpose and requires different language. Section 23.23 provides the wording that must be included on a CITES document, § 23.26 lays out the condition for acceptance of a shipment, and § 23.36 provides the criteria for issuance of a permit.

We do, however, make a change to §23.23(c)(7) to incorporate by reference CITES's

Guidelines for transport and preparation for shipment of live wild animals and plants

. We inadvertently omitted this necessary incorporation by reference in our proposed rule, and we are correcting that omission in this final rule.

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

We require that the CITES document accompanying a shipment contain information on any unique number or mark that is used to identify a specimen in that shipment. If the specimen has a microchip, the specific information concerning the code, trademark of the transponder manufacturer, and location of the chip must be on the CITES document, and if necessary, we may ask the importer, exporter, or re-exporter to have the equipment on hand to read the microchip at the time of import, export, or re-export. One commenter supported the provision that an importer or exporter must provide equipment to read a microchip, if requested. Another commenter did not support this approach and argued that the FWS should provide any required equipment. This commenter also did not believe that we should require that unique markings or microchip numbers be identified on the face of the CITES documents. The commenter thought this requirement would be burdensome to exporters that use microchips, whereas those exporters who do not use microchips would not have the same documentation burden. On an application for a CITES document, the applicant is asked to identify the specimens to be imported or exported. If the applicant uses a unique mark or microchip as a form of identification, we will use that as a means of identifying the specimen. Because a CITES document is issued for specific specimens, the use of identification marks or microchips ensures that the specimens identified in the application are the specimens presented at the time of import or export. Requiring that the unique marks or microchips be identified on the face of the CITES document allows for such identification. With regard to the FWS purchasing microchip readers, there currently is no industry standard for microchip readers and the cost to purchase every type for each wildlife inspection station would be prohibitive.

Purpose of transaction (§ 23.23(c)(11)):

Resolution Conf. 12.3 (Rev. CoP13) lists standard transaction codes that are to be used on documents. These are the same codes used by Parties in their CITES annual reports. One commenter expressed confusion over the fact that the regulatory language at § 23.23(c)(11) uses the words “if possible” and therefore allows for the possibility that the purpose of the transaction may not appear on the face of a CITES document. We have amended the text to remove the ambiguity and to clarify that the purpose of the transaction must be identified on the face of the CITES document, either through use of one of the purpose of transaction codes in § 23.23(d) or through a written description.

Quantity (§ 23.23(c)(12)):

We require that standardized units are used on all documents. The unit of measurement should be appropriate for the type of specimen and agree with the preferred or alternative unit to be used in the CITES annual report, if possible. The unit should be in metric measurement. If weight is given, it is important to provide the weight of the specimen, not the packing material. To monitor trade effectively, we need records on quantities that accurately reflect the volume of that trade.

One commenter agreed with the requirement that appropriate units be used on documents. However, the commenter believed that we should include a table of all of the units accepted by the Parties. We decline to accept this comment since the accepted units, which are identified by species or commodity, are too numerous to list. The accepted units are identified in the annual report format guidelines that are available on the CITES website or from us (see § 23.7).

Signature (§ 23.23(c)(16)):

We require that the signatures of individuals authorized to sign CITES documents for a Management Authority be on file with the Secretariat. This requirement will help us determine if a document is valid and avoid delays in the clearance of shipments. One commenter believed that this requirement would be impractical. We disagree and note that this is not a new requirement. Resolution Conf. 12.3 (Rev. CoP13) recommends that Parties communicate to the Secretariat the names of the persons empowered to sign CITES documents and submit examples of their signatures. The FWS provides this information to the Secretariat for documents issued by the United States and verifies signatures with the Secretariat when questions arise about the validity of foreign documents.

Validation (§ 23.23(c)(21)):

We require CITES documents to indicate the actual quantity exported or re-exported, whether the shipment is physically inspected upon export or not. One commenter expressed concerns that this section requires a CITES permit to be validated prior to leaving the country; otherwise it is not considered a valid permit. The commenter stated that the majority of countries do not validate their export permits and that this will become an enforcement burden to the wildlife inspection program to either re-export the shipment for lack of validation or seize the item(s). The commenter questioned if there is a plan to notify all CITES Parties of this new requirement to lessen the burden. We are aware of the lack of implementation of this CITES requirement by some countries, and plan to focus outreach efforts on this issue before the rule enters into effect. However, we are also aware that receipt of a CITES document without validation is not necessarily due to an exporting or re-exporting country having chosen not to validate, but may be because these shipments have evaded export controls. The lack of validation is quite often a violation of the exporting or re-exporting country's CITES laws, and we are committed to ensuring that shipments of CITES species are legally traded.

One commenter had concerns that the FWS would seize specimens if the authorized quantity had been changed without the validation stamp. The commenter suggested that, if a mark-out occurs and a new quantity is written by the Management Authority of the exporting country, the quantity should be verified through a physical inspection by the FWS without action taken against the importer. We disagree with this comment. If any alteration of

the CITES document occurs, this must be identified by the stamp and signature of a person authorized to sign CITES documents for the issuing Management Authority or the document is considered invalid. Without the stamp and signature verifying the originator of the changes, we can only assume such changes were not authorized, and we must take appropriate action.

One commenter raised a concern about requiring validation or certification of a customs declaration label used to identify specimens being moved between registered scientific institutions. We have revised this section to exclude these labels from the validation requirement.

Additional information (§ 23.23(e)):

The table in paragraph (e) provides details on additional information that is required for specific types of documents, such as an annex or certificate of origin. Some documents require additional information because of the type of transaction, the specimen involved, or special provisions, such as quotas. One commenter expressed concern over how quotas are handled by the Parties and believed that this section should include additional language that would provide greater control over quotas. Although we recognize that the Parties are currently evaluating the uses of quotas, this section was not intended to address those concerns. This section provides the additional language required on CITES documents when the specimens identified on the document fall under an established quota. Therefore, we have not made the changes to this section requested by the commenter.

Phytosanitary certificates (§ 23.23(f)):

CITES allows phytosanitary certificates to be used in lieu of CITES certificates to export certain artificially propagated plants under specific circumstances. At this time, we do not allow the use of phytosanitary certificates in lieu of CITES certificates for export of plants artificially propagated in the United States. One commenter believed there was a contradiction in this last statement. To clarify, although the United States does not issue phytosanitary certificates in lieu of CITES certificates, we will accept them from other Parties that have issued such documents, provided the phytosanitary certificate was properly issued and meets the requirements set out in this section.

Source of the specimen (§ 23.24):

The source of a specimen is needed by Management and Scientific Authorities to make the findings required to issue CITES documents and is an important component in analyzing data and monitoring trade. We provide a list of standardized codes that Management Authorities use on CITES documents to identify the source of the specimen. In addition, we provide the definition for each code, and explain that the source code “O” for pre-Convention specimens should be used in conjunction with another source code. The U.S. Management Authority will determine the appropriate code to use when issuing a document, based on information provided in an application.

We often receive questions about the difference between the source codes “C” and “F.” Wildlife bred in captivity can be given the source code “C” and traded under an Article-VII exemption certificate only if the specimen meets the requirements adopted by the CoP for bred in captivity (see § 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 § 23.18.

Two commenters expressed concern that use of the source code “F” for Appendix-I specimens that were commercially bred at a facility that was not registered with the CITES Secretariat would negatively impact their commercial operations. As discussed further in § 23.46, specimens that are produced for commercial purposes at a registered commercial breeding operation are afforded a specific exemption under Article VII(4) of the Treaty. These specimens are given the source code “D” on CITES documents. If a commercial breeding operation for Appendix-I species does not meet the requirements set out in § 23.46 to be registered with the CITES Secretariat, its specimens would not be eligible for the exemption under Article VII(4), and therefore any international trade of such specimens would be subject to the provisions of Article III of the Treaty.

Additional information required on non-Party documents (§ 23.25):

This section provides the additional information that is required on non-Party documents. Article X of the Treaty allows a Party to accept documentation from a non-Party if it is issued by a competent authority and substantially conforms to the requirements of CITES. Because the Parties were concerned that the trade of CITES specimens through non-Parties might jeopardize the effectiveness of the Convention, they adopted Resolution Conf. 9.5 (Rev. CoP13). This resolution recommends that Parties accept documents from non-Parties only if they contain certain basic information, including certifications that a competent authority has made the findings required under Articles III, IV, or V of the Treaty. Therefore, we have incorporated the requirements of Resolution Conf. 9.5 (Rev. CoP13) on trade with non-Parties and Resolution Conf. 12.3 (Rev. CoP13) on permits and certificates. One commenter expressed concern that a certification from a non-Party that findings have been made in accordance with the Convention did not guarantee that findings were accurate or scientifically sound. We believe that the requirements in Resolution Conf. 9.5 (Rev. CoP13) and Resolution Conf. 12.3 (Rev. CoP13) are sufficient to ensure that trade with non-Parties is conducted in accordance with CITES. As noted elsewhere in this rule, if we have concerns regarding a CITES document issued by another country, we will investigate the situation further.

Valid CITES documents (§ 23.26):

Article VIII of the Treaty outlines measures that Parties shall take to enforce the provisions of the Convention. Resolutions Conf. 9.9, 11.3 (Rev.CoP13), and 12.3 (Rev. CoP13) further detail these measures. For CITES to be effective, shipments must be accompanied by valid CITES documents issued by the appropriate authority and must meet all conditions of those documents. Each Party must have border controls for the inspection and validation of CITES documents. To ensure that specimens traded in violation of CITES do not re-enter illegal trade, Parties are urged to consider seizure of specimens, rather than refusal of entry of the shipment. Parties are encouraged to cooperate with other Parties, the Secretariat, and international enforcement organizations to further effective enforcement of the Treaty and provide protection to CITES species.

One commenter stated that the FWS should impose rules that make it clear that a CITES shipment not accompanied by the required CITES documents would be deemed illegal and disposed of pursuant to the FWS laws and policies with all costs borne by the importer, exporter, or re-exporter. We believe the rule clearly identifies the CITES prohibitions. The commenter further stated that if such a rule is not imposed, the FWS should require that countries issuing permits for shipments to the United States should submit electronic copies of the documents to ensure that a record of all trade is available. We disagree with this suggestion because such a requirement has not been agreed upon by the CoP

and would be overly burdensome for both the United States and other CITES Parties.

We included this section in the regulations to outline what requirements must be met for CITES documents to be considered valid. Several commenters objected to our reviewing the legal and scientific bases for a CITES document issued by another country, noting that we should accept a document if it is not procured by fraud and meets Article VI of the Treaty. One commenter argued that if we had a dispute with a country about a permit we should address our concerns to that country, and that the Convention does not give us the authority to refuse entry of shipments or reject permits in the absence of fraud or falsification of the permit.

We have the authority to question any shipment and its accompanying documents if the surrounding facts indicate a potential violation or create a reasonable suspicion of a violation. Section 10(g) of the ESA places the burden on a permittee to prove that the document was valid and in force at the time of entry into the United States. Foreign countries have the same discretion to inquire about documents we have issued. In addition, violations of CITES consist of more than fraud or falsified documents, and the Treaty requires Parties to penalize trade in, and possession of, specimens traded contrary to the Convention. As decided by the United States District Court for the District of Columbia in

Castlewood Products

v.

Norton

(Apr. 16, 2003), and affirmed by the Court of Appeals for the District of Columbia Circuit (Apr. 30, 2004), the role of all CITES Parties is to ensure that international trade in CITES specimens meets the provisions of the Convention, and the Government has the authority to decline to accept export permits at face value when reason is shown to doubt their validity. We note that the United States receives thousands of CITES shipments annually for which CITES documents are accepted as issued. We focus our verification efforts on those shipments and CITES documents for which the available information indicates a problem may exist.

One commenter believed that the FWS relies too heavily on the assumption that an exporting or re-exporting country is issuing accurate and scientifically defensible non-detriment findings. The commenter argued that the FWS must mandate import permits for all Appendix-I and Appendix-II wildlife or mandate internal review of export permits to make concurrence determinations, with no exceptions. The commenter also stated that the regulations should set specific requirements with which foreign Scientific and Management Authorities must comply when completing and issuing their findings. The imposition of a CITES import permit requirement for Appendix-II wildlife and of specific criteria for other countries to use in making their non-detriment findings goes beyond what is required under the Treaty. We have full authority to question a non-detriment finding when we have reason for concern. Requiring import permits for Appendix-II specimens would add significantly to our workload, but would not provide significant benefit.

Acceptance of CITES documents (§ 23.26(c)):

We present the information on valid documents in a table arranged alphabetically by key phrase to assist importers and exporters. Most of the requirements are self-explanatory. However, we believe it would be helpful to discuss some in more detail.

Annual reports (§ 23.26(c)(2)), Convention implementation (§ 23.26(c)(5)), Legal acquisition (§ 23.26(c)(9)), and Non-detriment (§ 23.26(c)(12)):

Three commenters urged us to include regulatory provisions to implement recommended trade suspensions. When the Standing Committee or the CoP recommends a temporary trade suspension, based on the results of the Review of Significant Trade, non-submission of annual reports, the status of adequate national legislation, or ongoing enforcement or implementation problems, Parties are informed of the decision through a Notification to the Parties issued by the Secretariat. All three commenters indicated that temporary suspensions are a valuable tool for ensuring compliance by CITES countries. Two commenters stated that implementation of CITES trade suspensions is a responsibility of the United States in its role as a major importer of CITES species, and one commenter urged regulatory language requiring immediate implementation of CITES trade suspensions. One commenter also suggested that we add a specific key phrase to § 23.26(c) for CITES trade suspensions.

While we believe the regulations as proposed allow us to implement any temporary suspensions of trade, we agree that adding language to § 23.26(c) will provide useful clarification for the public. CITES trade suspensions are based on failure to comply with basic Treaty requirements, and we realize that the basic Treaty requirements are scattered throughout many sections of the regulations. Therefore, to provide clarity, we have added four additional key phrases to § 23.26(c), annual reports, Convention implementation, legal acquisition, and non-detriment, as conditions that must be met before we consider a CITES document valid. The addition of these key phrases also ensures continuity with § 23.26(d) which outlines when we might verify a CITES document with the Secretariat or a foreign Management Authority. Although we indicate that these key phrases form the basis for acceptance of CITES documents, in addition to requirements in other sections, we will not generally question findings made by a Party for each individual shipment. We seek additional information where there is reason to question a shipment or a pattern of trade.

Management Authority and Scientific Authority (§ 23.26(c)(10)):

One commenter supported the requirement that non-Parties designate Management and Scientific Authorities.

Quotas (§ 23.26(c)(14)):

Quotas may be established voluntarily by Parties, adopted by the CoP through a resolution or proposal to amend Appendix I or II, or put into place through the Review of Significant Trade in Appendix-II species (Resolution Conf. 12.8 (Rev. CoP13). The Secretariat notifies the Parties of quotas each year, and we require that, for a given species, the quantity exported not exceed the quota. One commenter agreed with this requirement.

Ranched specimen:

We received one comment related to a provision that appeared in the 2000 proposed rule (65 FR 26664) regarding not allowing international trade in ranched specimens involving non-Parties or Parties with a reservation on a species downlisted from Appendix I to Appendix II subject to ranching. Resolution Conf. 10.18 included language addressing this potential trade restriction. However, Resolution Conf. 11.16, which replaced Resolution Conf. 10.18, does not include this provision. Since the Parties excluded this provision when revising the ranching resolution, we did not include the restriction in this rule.

Shipment contents (§ 23.26(c)(18)):

This paragraph specifies that the contents of the shipment must match the description of specimens on the CITES document and that the shipper may not substitute a new specimen to replace the one authorized. One commenter believed it was reasonable to allow a scientist who had obtained a permit for several specimens of a particular species to substitute different specimens of the same species without having to amend the permit. We

disagree. Findings are made based on information provided by the applicant for specific specimens, and therefore the specimens in a shipment must correspond to what was authorized.

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

This paragraph outlines the situations when we may request verification of documents from the Secretariat or the Management Authority of any country involved in the shipment. They include instances when we have reasonable grounds to believe a document is not valid or authentic.

Verification of CITES documents can be a lengthy process and depends on the issue, the means of communication, and the cooperation of the countries involved. Failure by a country to respond through normal channels of communication or failure to provide sufficient information to determine validity of documents may result in refusal of a shipment.

We rely on Parties and non-Parties to make appropriate findings, and we seek additional information only when we have a specific reason to do so. The Plants and Animals Committees, through the Review of Significant Trade process, regularly evaluate whether Parties are properly making non-detriment findings. Four commenters questioned why we both rely on Parties and non-Parties to make appropriate findings and also allow the Animals and Plants Committees to regularly evaluate whether Parties are properly making non-detriment findings. The commenters suggested that we delegate the process to the Committees. We wish to clarify that Parties and non-Parties are required under CITES to make legal acquisition and non-detriment findings for the CITES documents they issue. Although the Plants and Animals Committees regularly evaluate whether Parties are properly making non-detriment findings, this is only done for selected species determined to be subject to significant levels of trade. Such evaluations are done at the species level, usually range-wide, not for individual permits, and not at the specific request of a country. Individual permit findings cannot possibly be made by the Plants and Animals Committees, which generally meet only annually. We may request information on non-detriment findings made by other countries, including the underlying basis for quotas established by Parties, when we have a question regarding a shipment or a pattern of trade.

Several commenters indicated that if the United States questions a non-detriment finding there should be official notice to the public and the regulated community before a contrary determination is made. Although we encourage the public to provide relevant information if they have concerns about a finding made for a particular shipment, we decline to add a requirement that we solicit public comment whenever we have reason to question a non-detriment finding. We believe it is unnecessary and would undermine any timely and appropriate enforcement action that may be warranted.

One commenter strongly supported the regulations regarding verification of documents and noted that the issuance of a permit without making the relevant findings is inconsistent with Articles III and IV of the Treaty and therefore constitutes noncompliance. Another commenter recognized that the FWS has the authority to respond to violations, but believed that where a document is apparently valid, and not procured fraudulently, importers should have a reasonable expectation of a procedural standard for “looking behind” the document to determine its validity. We agree and have provided detailed information about when we would question the validity of a permit and seek verification. The commenter further stated that the failure to make adequate findings by ignoring, omitting, or failing to review relevant information is no different. The commenter argued that the regulation confirms the FWS' authority to look behind a facially valid permit. The commenter urged us to retain the proposed language in the final rule because it facilitates proper implementation of the Convention and the holding of the United States District Court for the District of Columbia in

Castlewood Products

v.

Norton

(Apr. 16, 2003).

One commenter argued that a CITES export permit must be regarded as the only authorization necessary to trade in CITES species. We agree that as signatories to CITES, the Parties have an obligation to issue export permits in accordance with the requirements of the Convention. However, we have the authority to question any shipment and its accompanying documents if the surrounding facts indicate a potential violation or create a reasonable suspicion of a violation. This position was affirmed by the United States District Court for the District of Columbia in

Castlewood

v.

Norton

and the Court of Appeals for the District of Columbia.

One commenter suggested we include in § 23.26(d)(5) a statement allowing us to request verification of a CITES document when we have reasonable grounds to believe that the specimen was produced from illegally acquired parental stock. We agree and have revised the regulations accordingly.

One commenter stated that the verification process outlined in the 2006 proposed rule (71 FR 20167) would be grossly unfair to importers. We disagree. These regulations provide a greatly expanded explanation of what CITES documents are required for trade, the information that must be contained on a CITES document, when we consider a document valid, and what importers should present at the port of entry. We believe that this section will assist the regulated public in determining what they must do to comply with CITES if they wish to import or export CITES species.

Presentation of CITES documents at the port (§ 23.27)

: Inspecting officials at the ports of exit and entry must verify that shipments are accompanied by valid CITES documents and take enforcement action when shipments do not comply with CITES. To help importers and exporters, we provide a table outlining the type of U.S. and foreign documents they must present for validation or certification, or that they must surrender, when importing, introducing from the sea, exporting, or re-exporting CITES species.

One commenter made a general statement that we should modify these regulations to reflect reality and allow uniform application of the rules, in particular with respect to the validation and clearance process. We believe the regulations governing the CITES approval and validation process are appropriate as written. Article VIII of the Treaty requires the Parties to establish an inspection process that takes place at the ports of exit and entry to ensure that wildlife shipments are in compliance with CITES. The validation process is an important component of CITES that enables U.S. inspection authorities to confirm the authenticity of permits and ensure that wildlife shipments were legally shipped from the exporting country. Such determinations are needed to ensure the proper enforcement of U.S. laws and regulations. Specific problems with clearance procedures in a foreign country should be addressed to the appropriate Management Authority. One commenter supported our clarification in the 2006 proposed rule (71 FR 20167) that CITES documents for wildlife in personal accompanying baggage should be submitted as soon as possible to the FWS if Customs or Agriculture officials fail to collect the documents at the time of arrival of the passenger.

One commenter correctly noted that the documentation that accompanies shipments of CITES specimens moving between registered scientific institutions is not processed at the port in the same manner as other CITES documents. We have removed the registered scientific institution CITES label from the table in § 23.27(b) and added a new paragraph (§ 23.27(d)) to describe the port requirements for such shipments. In addition, we inadvertently omitted the process for presenting phytosanitary certificates for shipments of artificially propagated plants and have corrected that by adding the necessary language to the table in § 23.27(c).

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

This subpart provides information on how to apply for a U.S. CITES document. It also contains general provisions and criteria that apply to both U.S. and foreign CITES documents.

Application procedures (§ 23.32):

This section gives a general overview of the application process for U.S. CITES documents. Much of the information that appears in this section also appears in 50 CFR 13, General Permit Procedures, and is repeated here for the convenience of the regulated public. One commenter appreciated this reiteration of the application process for CITES documents. A number of CITES species are protected under other laws or treaties that we implement. If appropriate, we will accept one application if the applicant provides the information needed under all relevant regulations. An applicant should review the issuance criteria for all relevant regulations when preparing an application to ensure he or she understands the kinds of information we need. This review will help the applicant submit a more complete application and prevent delays in processing.

When we review an application, we decide whether the requirements of an exemption document under Article VII of the Treaty can be met or whether we need to process the application under the standard CITES requirements of Articles III, IV, or V (see §§ 23.35-23.39). If we find that the application is incomplete, we will contact the applicant for additional information. If the applicant does not respond to our request within 45 days, we will abandon the file. We will not re-open the application if the applicant sends the additional information at a later date. The applicant may, however, submit a new application, including any relevant application fees, if he or she still wants to pursue obtaining a permit.

One commenter disapproved of our intent in § 23.32(f)(2) to abandon any application after 45 days when the applicant has not responded to our request for additional information and of the fact that we will not re-open an application file once it has been abandoned. This procedure is not new. Part 13 of this subchapter identifies the process for abandoned application files, and it is repeated in this section for emphasis. We receive over 6,000 permit applications annually, and we work closely with applicants to avoid the need to abandon any application file. In the past, we have received requests to re-open files months, and even years, after a file has been abandoned. Such requests are burdensome, and we have found that it is more efficient to create a new file. As a result, once abandoned we will not re-open an application file.

Decisions on applications (§ 23.33):

This section explains the procedures we follow in making a decision on an application. When an application is complete, we review the information under all applicable issuance criteria, including 50 CFR part 13, regulations under other wildlife and plant laws, and the CITES regulations. We may consult with outside experts, scientists, and staff within the Federal Government, State and tribal agencies, the Secretariat, or foreign Management or Scientific Authorities before we make our findings. The burden of proof in establishing that the issuance criteria are met lies with the applicant. We can issue a CITES document only if we are satisfied that all criteria specific to the proposed activity are met.

One commenter believed that we were inconsistent when we stated in the 2006 proposed rule (71 FR 20167) that we may consult with outside experts and others before making required findings, yet we also stated that we rely on Parties or non-Parties to make appropriate findings and would seek additional information only when we have a specific reason to do so (§ 23.26(d)). We believe that the commenter misunderstood our point in this section with regard to consultation with outside experts. We may consult with outside experts to assist us in making our required findings. This is separate from the issue of whether or not we will accept the findings made by a foreign CITES authority.

One commenter was concerned that the burden of proof is on the applicant to establish that the issuance criteria are met. The commenter noted that the FWS is more likely to have access to certain information than the applicant (e.g., biological status of the species). While it is true that in some cases we may have access to more information than many applicants, we do not believe that it is the burden of the government to obtain the information necessary to prove that the issuance criteria have been met. We inform the applicant of the basis of any denial decision and indicate what information is lacking. If the missing information is difficult for an individual applicant to obtain (e.g., foreign government management plans), we will do our best to obtain such data during the course of reviewing an application. However, it is the applicant's responsibility to prove that he or she meets the issuance criteria.

We received several comments on the process for appeal when an application has been denied. We refer the commenters to the 2006 proposed rule (71 FR 20167), where we addressed this issue, and note that the general permit procedures in part 13 of this subchapter provide the process for review if an application is denied. The procedures in part 13 cover all applications processed by the FWS, including applications for activities under CITES.

Records (§ 23.34):

This section provides examples of the kinds of records individuals and businesses may want to keep if they intend to trade in CITES species internationally. Although the applicant for a CITES document needs to provide sufficient information for us to make the legal acquisition finding, we base the amount of information we need on the risk that the specimen was illegally acquired. For example, we consider whether the specimen is a hybrid; is common in captivity in the United States; breeds or propagates readily; has little illegal trade; or is commonly imported. We give less scrutiny and require less information when there is a low risk that a specimen was illegally acquired and give more scrutiny and require more detailed information when the risk is greater.

One commenter was concerned with our response in the 2006 proposed rule (71 FR 20167) to a previous comment that an applicant's failure to provide adequate documentation showing legality of a specimen, while not necessarily evidence that the specimen was traded contrary to CITES, might prevent us from making the required findings or being able to issue the necessary CITES documents for subsequent import, export, or re-export. The commenter suggested that the FWS establish procedures or describe the kinds of evidence we will accept in lieu of positive documentation.

We have not specified the type of documentation that an applicant must present in order for us to make necessary findings because it is not possible to describe the full range of information an applicant could use to show that their activity is consistent with CITES requirements. In each case, the applicant must present enough information to allow the FWS to make the required determinations, but the source of this information and the level of detail needed to make the findings will vary.

One commenter was concerned that an importer might be unable to show proof of legal import because the documents were retained by CBP and not forwarded to the FWS. The retention of copies by the importer at the time of import is separate from whether CBP transfers paperwork for follow-up investigation or storage by the FWS. Commercial importers must retain copies of documents for their files. Noncommercial importers are encouraged to retain copies of any documents submitted to the government for clearance as an ordinary part of the process whether or not they intend to submit applications in the future. All importers should also be aware that there are recordkeeping obligations under customs laws (19 U.S.C. 1508 and 1509) and customs regulations (19 CFR part 163).

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

The basic requirements for U.S. and foreign CITES documents have not changed since the Treaty took effect in 1975. We have designed U.S. application forms for specific activities and protection levels to make applications easier to complete and to clarify what information is needed. Each of these sections provides information to help an applicant determine which application form to use. The forms can be obtained from our website or requested by phone, mail, or e-mail (see § 23.7).

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

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

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

One commenter stated that we should require the Management Authority of the exporting country to acquire a copy of the import permit before issuing an export permit or re-export certificate. The commenter was concerned that, due either to limited resources or lack of interest, a country will not make the required findings if they know in advance that the importing country will allow the import. We believe that countries strive to fulfill the requirements of the Treaty to the best of their abilities and that it is unlikely that an importing country would issue an import permit based solely on the fact that the exporting country issued an export permit. The commenter also contended that allowing the importing country to provide a “letter of intent” or written assurance that an import permit will be issued will lead to situations where the import permit will not be issued by the time the import actually occurs, placing border officials in a difficult situation. It is the responsibility of the exporter to obtain all the necessary documents before engaging in international trade. We concur with Resolutions Conf. 10.14 (Rev. CoP13) and 10.15 (Rev. CoP12) that allowing importing countries to provide written assurance that an import permit will be issued provides a workable solution that allows the administrative needs of both the importing and exporting countries to be met. If the U.S. Management Authority receives a written confirmation that appears unusual or inappropriate, we will investigate the situation further.

Export permits (§ 23.36):

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

Two commenters expressed their support for registering breeding facilities for Appendix-I wildlife and allowing the export of wildlife from these registered facilities for commercial purposes. However, one commenter thought that measures such as registering breeding facilities create loopholes and do not provide benefit to Appendix-I species in the wild. CITES allows for commercial trade in Appendix-I specimens from registered breeding operations, and we do not believe that this requirement creates a loophole. The commenter also wanted assurances that an Appendix-I specimen bred for noncommercial purposes (i.e., not from a registered breeding facility) would only be traded internationally for noncommercial purposes over its lifetime. We will not authorize commercial trade of an Appendix-I specimen that does not qualify for an exemption under which such trade would be allowed. Additionally, we expect that countries that are party to CITES will abide by the provisions of the Convention, however we do not have control over trade that does not involve the United States.

We address the exemption in Article XIV(4) and (5) for certain Appendix-II marine species protected under another treaty, convention, or international agreement that was in force on July 1, 1975 (the date of entry into force of CITES). Export of a marine specimen exempted under Article XIV requires a CITES certificate indicating that the specimen was taken in accordance with the provisions of the other treaty, convention, or international agreement. One commenter appreciated the clarification in § 23.36(d) of the requirements for CITES documents for certain marine specimens exempted under Article XIV(4) and (5).

We added a new application form to the table in (b) for export of caviar or meat from wild-caught sturgeon and paddlefish (Form 3-200-76). This form was developed after the 2006 proposed rule (71 FR 20167) was published.

Certificate of origin (§ 23.38):

A certificate of origin allows the export of a specimen of a species listed in Appendix III when the specimen originated in a non-listing country. This

section provides specific information on the application form and issuance criteria for a certificate of origin.

One commenter expressed concern regarding documentation requirements for trade in Appendix-III specimens. While he believed that the requirements were clear for specimens originating in the listing country, he stated that there is no uniform format for certificates of origin, which results in considerable variation in these documents, with some countries no longer issuing any documents for the export of Appendix-III specimens. He also noted that acceptance of these documents by the United States varies at different ports of entry and asked that we “formulate clear rules which reflect the ongoing customs and regulations of other countries.”

Sections 23.23 to 23.27 provide clear descriptions of the information requirements for CITES documents, including certificates of origin. These requirements implement the current resolution on permits and certificates, and therefore reflect what has been agreed by the CITES Parties. Some countries have taken reservations for certain Appendix-III species, and we refer the commenter to § 23.21 for an explanation of document requirements when a country has elected to take a reservation on an Appendix-III listing.

Introduction from the sea (§ 23.39):

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

One commenter was concerned that allowing the use of other treaties, conventions, or international agreements to exempt specimens from CITES requirements may reduce their overall protection by allowing trade that may not be permissible under CITES. He stated that the FWS should identify all such agreements in force on July 1, 1975, and provide an analysis comparing and contrasting requirements imposed by these other agreements in relationship to CITES requirements. We disagree. The exemption in Article XIV(4) and (5) for certain Appendix-II marine species is limited in scope and was purposely written into the Treaty to avoid conflicts with pre-existing treaties, conventions, and agreements. Changing or eliminating this exemption would require amending the Treaty, which we do not believe is practicable or warranted.

Another commenter believed that guidance was lacking on when an introduction-from-the- sea certificate is required. Introduction from the sea is defined in § 23.5, and § 23.20(f) and § 23.39 explain clearly that unless the specimen qualifies for an exemption under Article XIV(4) and (5), the introduction from the sea of an Appendix-I or -II specimen requires an introduction- from-the-sea certificate. Criteria for issuance and acceptance of introduction-from-the-sea certificates are provided in § 23.39.

Bred-in-captivity certificates (§ 23.41):

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

One commenter asked if we could issue bred-in-captivity certificates for Appendix-II and -III specimens that are part of a traveling exhibition, or for Appendix-I specimens in foreign-based traveling exhibitions performing in the U.S. As stated above, such certificates may be issued for any purpose, including traveling exhibitions, for Appendix-II or -III specimens. However, we generally do not issue bred-in-captivity certificates for specimens in a traveling exhibition. Traveling exhibitions are addressed by Article VII(7) of the Treaty and we refer the commenter to the procedures for traveling exhibitions described in § 23.49. The same commenter asked whether we could issue a bred-in-captivity certificate to facilitate import of an Appendix-I specimen that had been bred for noncommercial purposes in a foreign country. A Party cannot issue a bred-in-captivity certificate for a specimen outside of its national jurisdiction.

The commenter also expressed concern that issuance of a bred-in-captivity certificate bypasses the requirements in Article III, IV, and V to make a legal acquisition finding and the requirements in Article III and IV to make a finding that the export would not be detrimental to the survival of the species. These findings are made through our adoption of the standard interpretation of the term “bred in captivity” in Resolution Conf. 10.16 (Rev.). We refer the commenter to § 23.63 on the procedures for evaluating the breeding stock from which the specimen was derived.

The Parties have agreed that facilities that are breeding Appendix-I species for noncommercial purposes must be participating in a cooperative conservation program with one or more range countries for the species. The commenter noted that we have not provided a specific definition of what constitutes a cooperative conservation program. We amended the definition in § 23.5 slightly to make it clear that the program must be conducted in cooperation with one or more of the range countries for the species. However, we defined “cooperative conservation program” in general terms because we did not want to limit what might be considered under such a program. These programs may include a wide variety of activities, and we cannot adequately address every variation in this rule. Instead, using our professional judgment and through communication with range countries and species experts, we will evaluate each breeding situation to determine if the activities being conducted constitute active participation in a cooperative conservation program.

The commenter also expressed concern that the issuance of bred-in-captivity certificates would facilitate fraudulent activities by providing a loophole for the international movement

of wild-caught specimens. We disagree. We believe that the procedures we use to review applications for bred-in-captivity certificates and our close coordination with law enforcement, both domestically and internationally, are a strong deterrent to such fraudulent activities.

General information on hybrids (§§ 23.42 and 23.43):

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

Plant hybrids (§ 23.42):

Resolution Conf. 11.11 (Rev. CoP13) contains provisions on trade in plant hybrids. Trade in plant hybrids must meet the requirements of CITES unless the Parties agree to exempt an Appendix-II or -III hybrid by a specific annotation to the Appendices (see § 23.92). Plant hybrids are subject to CITES controls if one or both parents are listed in the Appendices. If the hybrid includes two CITES species in its lineage, it is listed in the more restrictive Appendix of either parent, with Appendix I being the most restrictive.

Two commenters stated that plant hybrids should be exempt from CITES document requirements. See the general discussion of hybrids above for the basis of applying CITES requirements to hybrids of CITES species. The same commenters believed that the exemption for certain hybrids when the specimens are traded in shipments containing 20 or more plants of the same hybrid is unfair to small growers. This exemption was adopted by the Parties as a listing annotation for certain orchid species. The appropriateness of specific species listings and listing annotations is addressed by the CoP and is beyond the scope of these regulations.

Wildlife hybrids (§ 23.43):

In Resolution Conf. 10.17 (Rev.), the Parties agreed that wildlife hybrids with one or more Appendix-I or -II specimens in their recent lineage are controlled under CITES. Therefore, in general, wildlife hybrids of CITES species must be accompanied by a CITES document, issued by the Management Authority of the country of export or re-export.

The Parties agreed to a limited exception for certain wildlife hybrids under specific conditions. When the hybrid specimen is a cross between a CITES species and a non-CITES species, and no purebred CITES specimen appears in the previous four generations of its ancestry, it is exempt from CITES requirements. A hybrid of species included in a higher-taxon listing, such as parrots, falcons, or sturgeons, would not be exempted under this provision because the crosses are generally between two CITES species within that higher-taxon listing. We expect that the wildlife hybrid exemption will apply only rarely.

A specimen that qualifies as an exempt wildlife hybrid does not require CITES documents. However, at the time of import, export, or re-export you must provide sufficient information to demonstrate to CITES border officials that your wildlife specimen contains no purebred CITES species in the previous four generations of its lineage, and you must follow the clearance requirements for wildlife in part 14 of this subchapter.

Initially, we had proposed that either a CITES document or an “excluded hybrid letter,” issued by a Management Authority, must accompany any exempt wildlife hybrid being imported into or exported from the United States. One commenter questioned how the United States could require that a CITES document or a letter accompany an exempt hybrid when other CITES Parties do not require such documentation. After further review, we have decided to eliminate this document requirement. However, as previously stated, individuals traveling with or shipping exempt wildlife hybrids should be aware that they must provide information to clearly demonstrate to border officials that the specimen qualifies as an exempt wildlife hybrid.

We received over 200 comments in support of this section as proposed. While not specifically stated in most of these comments, it was clear that the commenters were under the impression that Bengal cats, a hybrid cross between domestic cats and Asian leopard cats (

Prionailurus bengalensis

), would be automatically exempt from CITES document requirements. Although some Bengal cat specimens may qualify as exempt hybrids, if you cannot clearly demonstrate that your specimen meets the qualifications for the exemption, you must obtain a CITES document for international trade.

One commenter expressed a need for a clear definition of when an exotic specimen becomes domesticated. While we recognize the possible value of this comment, this rule is not intended to address that issue.

Some commenters stated that hybrid falcons should be exempt from CITES controls because international trade in such specimens has no impact on the conservation of wild raptor populations. Trade in hybrids is controlled by CITES because of the difficulty in distinguishing purebred and hybrid specimens. See the general discussion of hybrids above for the basis of applying CITES requirements to hybrids of CITES species.

Personally owned live wildlife (§ 23.44):

Article VII(3) of the Treaty provides that, in some circumstances, the provisions of Articles III, IV, and V of the Treaty do not apply to specimens that are personal or household effects. As discussed previously, Parties have generally excluded live wildlife from this exception. However, in Resolution Conf. 10.20, the Parties agreed that personally owned, live wildlife that is registered by the Management Authority in the country where the owner usually resides may be moved internationally using a certificate of ownership, under specific conditions.

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

Five commenters supported the idea of issuing certificates of ownership, or “passports.” One commenter, while supporting the concept, stated that the certificates should be called “certificates of stewardship” since wildlife should not be “owned,” but should only be held in “trust.” We decline to make a change based on this suggestion since the title of this CITES document was agreed upon by the Parties.

Seven other commenters also supported the issuance of certificates of ownership, but did not believe that the owners of birds covered under the MBTA should be required to notify us when their birds have died or been sold since they must report such events to their Regional Migratory Bird Management office via Form 3-186A. While we are working with the regional migratory bird offices to ensure quick and accurate exchange of information, we have not developed a reliable means

to share data that are submitted by permittees on Form 3-186A. As a result, and because of the different records management systems for handling information submitted by permittees and different uses of the data, it is necessary that both the Division of Migratory Bird Management and the U.S. Management Authority are notified of deaths or transfers. Many CITES “passports” are issued for bird species that are not covered by the MBTA, and therefore would not require the submission of information to a Regional Migratory Bird Management office. We require that all “passport” holders notify us of any change in the status of their personally owned live wildlife.

Two additional commenters supported the issuance of “passports,” but questioned the length of validity of such documents. Both commenters believed that certificates of ownership should be valid until the animal dies or has been transferred. They stated that a 3-year period of validity would create a burden on the permittee. The 3-year period of validity was agreed upon by the Parties and is specified in Resolution Conf. 12.3 (Rev.CoP13). We therefore cannot issue these certificates for longer than 3 years.

Two commenters believed that the process for obtaining certificates of ownership and for moving animals across international borders should be simplified. In particular, the commenters stated that the movement of CITES pets across the U.S.-Canadian border should not require clearance by an FWS Wildlife Inspector, but should be handled solely by CBP officials. While we strive to minimize any inconvenience at the port, this particular comment cannot be addressed by these regulations. The clearance process is addressed in 50 CFR 14, which is not being revised as part of this rulemaking.

Two commenters believed that the issuance of certificates of ownership, particularly for raptors, would facilitate the illegal movement of specimens that were not obtained legally. They did not think that the process under which these certificates are issued would allow for adequate control of specimens, particularly of Appendix-I species, since only the exporting country needs to issue a certificate. The applicant must provide adequate documentation to show that the specimen was legally obtained before a certificate of ownership can be issued. In addition, when applying for a certificate of ownership, the applicant must confirm that he or she does not intend to sell or transfer the specimen while outside of the United States. Finally, since border officials of both the exporting/re-exporting and the importing countries must inspect the wildlife and the accompanying certificate, fraudulent activity would be detected. We believe that this provides sufficient control of the trade in these specimens to minimize illegal activities.

One commenter stated that live specimens should not be considered personal or household effects. We agree and refer the commenter to the definitions of these terms in § 23.5. The commenter also suggested that § 23.44(d)(5) be amended to state that the applicant “will not sell, donate, or transfer the wildlife while traveling internationally” instead of “does not intend to sell, donate, or transfer the wildlife while traveling internationally” and that this restriction should also be expanded to limit sale, donation, or transfer within the applicant's usual country of residence. Section 23.44(d) lists criteria for the issuance and acceptance of certificates of ownership and indicates that an applicant must provide sufficient information for us to determine that he or she

does not intend

to sell or otherwise transfer the wildlife while traveling internationally (§ 23.44(d)(5)). Section 23.44(e) lists U.S. standard conditions for certificates of ownership, including § 23.44(e)(3), which states that the certificate holder “

must not

sell, donate, or transfer the specimen while traveling internationally.” Expansion of this restriction to cover activities within an applicant's country of residence is beyond the scope of CITES and these regulations.

Pre-Convention specimen (§ 23.45):

Under Article VII(2) of the Treaty, a specimen acquired before the provisions of CITES applied to the species is exempt from Articles III, IV, and V of the Treaty when a Management Authority issues a certificate. Resolution Conf. 13.6 provides guidance on determining when a specimen is considered pre-Convention. One commenter supported the use of the date on which the species was first listed in the Appendices to determine the pre-Convention status of a specimen, as recommended in the resolution. We define the term “pre-Convention” in § 23.5 and clarify in this section the general provisions that apply to the acceptance and issuance of pre-Convention documents.

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

Even antiques that are at least 100 years old that clearly qualify as pre-Convention must be accompanied by pre-Convention documents. The general import regulations for antiques under the ESA are found in 50 CFR part 14. Except in rare situations, we do not require a person to show the sequential ownership of pre-Convention specimens, including antiques. If a CITES species is also listed under the ESA and does not qualify under the ESA as an antique, we will ask for information on whether the specimen has been sold or offered for sale because an ESA species loses its pre-Act status when placed in commerce.

We no longer apply the definition of pre-Convention to cell lines whose originating line was established prior to the listing date of the species. These cell lines are continually growing and cells are harvested from growing cultures. Applicants who wish to export cell lines must comply with CITES requirements, and provide sufficient documentation of legal acquisition and the date when the cell line was established. Although most cell lines do not qualify as pre-Convention, they may qualify for other types of CITES exemption certificates.

One commenter expressed concern that international trade will be restricted if cell lines are not traded as pre-Convention specimens. The commenter also argued that our suggestion in the 2006 proposed rule (71 FR 20167) that these specimens may qualify for trade under another CITES exemption document, such as a bred-in-captivity certificate, would be confusing because it differs from the interpretation of other authorities. As discussed previously, the pre-Convention status applies to a specimen that was removed from the wild or born or propagated in a controlled environment before the first date that CITES applied to the specimen. Cell lines that are continually growing and being harvested would therefore not qualify for a pre-Convention certificate. We believe that this is an accurate interpretation of the Treaty requirements and disagree that it will result in a restriction of trade.

Based on our experience with this trade, we do not believe that shipping cell lines under another type of CITES document, other than a pre-Convention certificate, will be problematic for foreign CITES authorities or that it will create difficulties for the industry.

Registration of commercial breeding operations for Appendix-I species (§ 23.46):

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

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

Appendix-I wildlife from a registered breeding operation can be exported with an export permit under Article IV of the Treaty. An import permit is not required, and specimens can be used for primarily commercial purposes. To date, very few U.S. opera

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